Public International Law Final

DAMODARAM SANJIVAYYA NATIONAL LAW
UNIVERSITY
VISAKHAPATNAM, A. P., INDIA.
PROJECT TITLE:
THE THEORIES OF PUBLIC INTERNATIONAL LAW
SUBJECT:
PUBLIC INTERNATIONAL LAW
NAME OF THE FACULTY:
DR. ARUNA KAMMILA
NAME OF THE STUDENT:
KODURI LAKSHMI PRAHARSHITHA
ROLL NO:
2017038
SEMESTER – V
SECTION – A
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ACKNOWLEDGMENT:
“I am highly indebted to Dr. Aruna Kmmila, for giving me a wonderful opportunity to work on
the topic: “THE THEORIES OF PUBLIC INTERNATIONAL LAW”, and it is because of
her excellent knowledge, experience and guidance, this project was made with great interest and
effort . I would also like to thank my seniors who have guided my knowledge of doing research
on such significant topic. I would also take this as an opportunity to thank my parents for their
support at all times. I have no words to express my gratitude to each and every person who have
guided and suggested me while conducting my research work”.
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ABSTRACT:
Public International law is that body of law which is composed of the principles and rules of
conduct which states feel bound to and do observe in their relations to each other.
It also includes rules of law relating to the function of international institutions or organizing
their relations with each other and the states and to the individuals as well as certain rules of law
relating to individuals and non-state entities in so far as the rights and duties of such individuals
and non-state entities are the concern of the international communities.
The period from the Peace of Westphalia to the congress of Vienna in 1815 is considered as a
period of formation of classical international law.International law greatly expanded during the
rest of the 19th Century mainly due to the rise of powerful states in and outside Europe, the
expansion of European influence overseas and modernization of the world transport, the greater
destructiveness of modern warfare and influence of new inventions. This evolution was marked
by the development of the jurisprudence of the international law in the form of the Natural law
and the Positive law theories. All these made it urgent for international societies of states to
acquire a new system of rules which would regulate in an ordered fashion conduct of
international states affairs. A holistic analysis regarding the same demonstrates the fact the they
more or less an output of the hypothesis drawn by various theories of the international law in
general and the Auto-limitation theory and the Consent theory of international law in specific.
The end of the colonization era and the emergence of sovereignty as the ground rule of
international law emphasizes on the fact that it is the free will and the recourse opted by the
sovereign state that decides its strategic relations globally. It can either enigmatically exercise its
sovereign powers, or limit the same for the purposes of diplomatic actions or exercise its free
consent to create a law binding on itself and the other parties involved. The latter events in
succession of the same further justifies the fact that while the natural law theory still stands as
the basis of the equity principles and the other common law doctrines and the positive law theory
justifies the concepts of sanction and the international law enforcement mechanisms, the auto
limitation theory and the subsidiary consent theory forms the modern jurisprudence of the public
international law.
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PROJECT SYNOPSIS
PROJECT TITLE: THE THEORIES OF PUBLIC INTERNATIONAL LAW
INTRODUCTION:
This paper seeks to analyse various aspects of the theories of international law, the link that
explains how they structured the different forces in the international legal order.. First, an
attempt is made to determine the fundamental characteristics of international law as defined as
the classic schools of the International law, the forces that delineate their applications. Secondly,
the multiple relations between law and policy are analysed in light of these theories.. Thirdly, the
discussion focuses on a series of fundamental jurisprudential notions that led to the evolution of
modern International law: the common good, justice, legal security, reciprocity (plus equality
and proportionality), liberty, ethics and social morality, and reason, in light of the theories of
International law.
RESEARCH OBJECTIVE:
 To understand the conceptual basis of International law.

 To study the jurisprudence and the application of competing theories of international law,
including approaches based on natural law, positivism, the Grotian tradition, realism,
rational institutionalism, liberalism, social construction, and critical theory.
 To understand the development of definition of international law based on the above
theories.
RESEARCH METHODOLOGY:
The present study is a doctrinal and analytical study based on the critical review of both primary
and secondary sources.
Secondary and Electronic resources have been largely used to gather information and data about
the topic. Books and other references have been primarily helpful in giving this project a firm
structure. Websites, dictionaries and articles have also been referred.
MODE OF CITATION:
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Mode of citation is Bluebook (19th ed.)
RESEARCH QUESTION:
 How did various theories of International law have developed the jurisprudence of
international law?
 How did the modern definition of international law develop rom the classic theories of
international law?
 What are the recent approaches and modern dimensions of the theories of International
law ?
LITERATURE REVIEW:
 Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 American

Journal of International Law 260 (1940)
This paper briefly explores the practice of theorizing international law. Theorizing is an inherent
part of the practice of international law. Theories of international law have attempted to
demonstrate that laws governing the conduct of sovereigns exist at all, and have been concerned
with the attempt to connect emerging forms of international legal practice to a philosophical or
historical tradition from which international law is said to originate, or to develop a method for
interpreting or systematizing international law.
 Reisman, Michael. "The View from the New Haven School of International Law"
International Law in Contemporary Perspective (Foundation Press, New York, NY 1992)
The paper explains a new school of positivism while explaining how the modern legal
positivists consider international law as a unified system of rules that emanates from the states'
will. According to them, International law, as it is, is an "objective" reality that needs to be
distinguished from law "as it should be." Classic positivism demands rigorous tests for legal
validity and it deems irrelevant all extralegal arguments.
 O'Connell, Mary Ellen. "Symposium on Method in International Law". The American

Society of International Law American Journal of International Law, 1999), 334
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Legal scholars have drawn from the four main schools of thought in the areas of International
law: realism, liberalism, institutionalism, and constructivism to examine, through an
interdisciplinary approach, the content of legal rules and institutions, to explain why and how
legal institutions came to be and why they are effective.
 Finnis, John. "Natural Law and Natural Rights." 9–11 (H.L.A. Hart ed., 1986)(1996)
The paper deals with the preposotions of many early international legal theorists who were
concerned with the natural law. 16th century natural law writer, Francisco de Vitoria, a professor
of theology at the University of Salamanca, examined the questions of the just war\, the Spanish
authority in the Americas, and the rights of the Native American people.
SCOPE OF PROJECT:
The project report deals with the classic concepts of legal naturalism, legal positivism, realism ,
liberalism, their sub schools and the relatively modern concepts of Auto-limitation theory and
consent theory the basis of international law and the manner the definition of international law
has developed based on the above subject. The project report shows development of modern
international law on the basis of these theories and also the application of these classic theories to
the modern scenarios hence studying the new dimensions of the theory of International law.
SIGNIFICANCE OF THE PROJECT:
The theories of International Law comprises a variety of theoretical approaches. the importance
of the study of these approaches lies in the fact that, some approaches center on the question;
why states follow international norms in the absence of a coercive power that ensures
compliance. Other approaches focus on the problem of the formation of international rules: why
states voluntarily adopt international legal norms, that limit their freedom of action. Therefore
the study of the approaches of the theories of the International law help’s in solving the burning
problems that question the sanctity of the International law as a real law.
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CONTENTS:
1. INTRODUCTION……………………………………………………………………….7
2. HISTORICAL DEVELOPMENT AND THE EVOLUTION OF THE PUBLIC
INTERNATIONAL LAW………………………………………………………………8
3. THE THEORY OF NATURAL LAW--- THE BASIS FOR THE EVOLUTION OF
THE INTERNATIONAL LAW………………………………………………………12
3.1 THE PRINCIPLES OF NATURAL LAW
3.2 FURTHER EVOLUTION OF THE PUBLIC INTERNATIONAL LAW ON
THE LINES OF NTURAL LAW
3.3 CRITICISM OF THE NATURAL LAW THEORY
3.4 CASE ANALYSIS
4. LEGAL POSITIVISM---BASIS OF THE POSITIVE THEORY OF THE PUBLIC
INTERNATIONAL LAW……………………………………………………………..18
4.1 POSITIVISM AS A THEORY OF PUBLIC INTERNATIONAL LAW
4.3 CRITICISM OF POSITIVIST THEORY OF INTERNATIONAL LAW
4.4 CASE ANALYSIS
5. THE CONSENT THEORY –THE RULE OF PUBLIC INTERNATIONAL
LAW..................................................................................................................................26
5.1 5.1OPPENHEIM’S VIEWS
5.2 JELLINECK’S VIEWS
5.3 ANZILOTTI’SVIEWS
5.4 CRITICISM OF THE THEORY OF CONSENT
6. THE THEORY OF AUTOLIMITATION……………………………………………30
6.1CRITICISMS OF THE THEORY OF AUTOLIMITATION
6.2CASE ANALYSIS
7. THE THEORIES OF PUBLIC INTERNATIONAL LAW AND THEIR
RELEVANCY TO THE PRESENT INTERNATIONAL RELATIONS………….36
7
8. CONCLUSION…………………………………………………………………………39
1. INTRODUCTION:
Public International law is that body of law which is composed of the principles and rules of
conduct which states feel bound to and do observe in their relations to each other.
It also includes rules of law relating to the function of international institutions or organizing
their relations with each other and the states and to the individuals as well as certain rules of law
relating to individuals and non-state entities in so far as the rights and duties of such individuals
and non-state entities are the concern of the international communities.
ACCORDING TO OPPENHEIM,
“Laws of Nations or International Law is the name for the body of customary and
conventional rules which are considered legally binding by civilized States in their intercourse
with each other.”1
ACCORDING TO TORSTERN GILL,
“The term ‘International Law’ means the body of rules which apply within the
International Community or Society of States”2
This definition covers different developments which have qualified traditional conception of
International Law as purely a system of rules and principles that are applicable to interstate
relations on the basis of either state practice or international multi-lateral treaties. lately they
have emerged numerous regional institutions and organizations endowed with international legal
personality and are capable of entering into relations with each other and with states.Such
regional institutions and organizations are governed by regional international law rules as
opposed to general rules which are of universal application.Further, there has been a general
international movement to protect human rights and fundamental freedoms of individuals, the
1
OPPENHEIM, INTERNATIONAL LAW(Newyork, Longsman, Green & Co., 1905), p.1-2
2
François Modoux, "La Suisse engagera 300 millions pour rénover le Palais des Nations", Le Temps, Friday 28
June 2013, page 9
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creation of new rules for punishment of persons who have committed international crimes,
environmental management and use of the sea, super adjacent airstrips and the outer space.
2. HISTORICAL DEVELOPMENT AND EVOLUTION OF PUBLIC

INTERNATIONAL LAW
Contemporary system of Public International Law is normally traced back in terms of its order
and structure to The Peace of Westphalia 1648 which marked the end of the 30yrs war in
Europe. However, it was not then that International relations started. This was because evidence
was produced of beliefs of rules and procedure regarding international law dates back over 5000
years.From the earliest times, rules of conduct to regulate relations between independent
communities in their usual were not felt necessary and emerged from usages observed by these
communities in their usual relationship.
Treaties, immunities of diplomatic envoys and certain laws and usages of war existed in the
Middle Ages before the dawn of Christianity e.g. in Egypt and India. Around 2100BC, a solemn
treaty was signed between the rulers of Lagash and Umma, the city-states situated in the area
known to historians as Mesopotamia. It was inscribed on a stone block and concerned the
establishment of a defined boundary to be respected by both sides under pain of alienating a
number of Sumerian gods. The next major instance was in 1400BC where the Egyptian
Pharaoh Ramses II concluded a Treaty of Peace Alliance and Extradition with the King of
Cheta which recognized territorial sovereignty over certain areas of each ruler and provided for
the extradition of refugees and the exchange of diplomatic envoys.
The role of ancient Israel must also be noted. A universal ethical stance coupled with rules
relating to warfare was handed down to other peoples and religions and the demand for justice
and a fair system of law founded upon strict morality permeated the thought and conduct of
subsequent generations.There were also historical cases of recourse to international arbitration
and mediation on registration in ancient Greece, China and the early Islamic world.3
However, The scope for any ‘international law’ of states was extremely limited and all that one
can point to is the existence of certain ideals, such as the sanctity of treaties, which have
3
Barry Buzan, Richard Little. International Systems in World History: Remaking the Study of International
Relations. published 2000 pp340.
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continued to this day as important elements in society. But the notion of a universal community
with its ideal of world order was not in evidence.
In the period of the Greece city states there developed some international law though regionally
limited composed of customary rules which had crystallized into law from long standing usages
followed/observed by these states not only among themselves, but also as between them and the
neighboring states. Underlying the rules were deep religious influences characteristic of an era in
which the distinctions between law, morality, justice and religion were not sharply drawn.
Roman civilization before its expansion and conquest witnessed the making of treaties which
Latin cities under which Latin and Romans were given rights in each other’s court and premised
mutual cooperation. The Romans had a profound respect for organization and the law. The law
knitted together their empire and constituted a vital source of reference for every inhabitant of
the far flung domain. Once Rome became an empire, the Romans organized their relations with
foreigners on the basis of Jus Fetiale and Jus Gentium. The Jus Fetiale consisted of religious
rules which governed Romans external relations and formal declarations of war which inter alia
recognized the inviolability of Ambassadors and was at the origin of the distinction between just
and unjust war. On the other hand, Jus Gentium4 was a Roman solution to the necessity of
regulating legal relations between roman citizens and foreigners as Rome expanded. Jus
Gentium simplified rules to govern the relations between foreigners, and between foreigners and
citizens.
Reference must also be made to the growth of Islam. Its approach to International relations and
law was predicated upon a state of hostility towards the non-Muslim world and the concept of
unity, Dar al-Islam, as between Muslim countries. The law dealing with diplomats was founded
upon notions of hospitality and safety (aman), while rules governing International agreements
grew out of the concept of respecting promises made.
The Middle Ages were characterized by the authority of the organized Church and the
comprehensive structure of power that it commanded. All Europe was of one religion, and the
ecclesiastical law applied to all, notwithstanding tribal or regional affiliations. For much of the
4
, John; Smith, Steve (2001). The globalization of world politics : an introduction to international relations (2. ed.).
Oxford [u.a.]: Oxford Univ. Press. p. 149.
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period, there were struggles between the religious authorities and the rulers of the Holy Roman
Empire.These conflicts were eventually resolved in favour of the Papacy, but the victory over
secularism proved of relatively short duration. Religion and a common legacy derived from the
Roman Empire were strongly unifying influences, while political and regional rivalries were not.
But before a recognized system of international law could be created, social changes were
essential.Of particular importance during this era was the authority of the Holy Roman Empire
and the supranational character of canon law.
In the middle ages, two sets of international law namely Lex Mercatoria (Law Merchant) and
the Maritime Customary Law developed to deal with problems that transcended international
boundaries. With the revival of trade in the 10th century, merchants started to travel all
throughout Europe in order to sell, buy and place orders for various goods. These commercial
activities required the establishment of a common legal framework.
Out of necessity, the European merchants created their own rules of conduct on fair dealing
which formed Lex Mercatoria. During the same time, maritime customs and usages were
formed. The High seas were no man’s land but with the development of Maritime Commerce it
became necessary to establish some rules and standards. The rules of the high seas were based on
the Rhodian Sea Law, a codification undertaken under the Byzantine Empire5 were compiled
into widely recognized collections that became accepted all through Europe. The middle ages
also saw the rise of nation states that led in turn to the process of the formation of rules of
customary international law from usages and practices followed by such states in their mutual
relations.
The collapse of the Byzantine Empire centred on Constantinople before the Turkish armies in
1453 drove many Greek scholars to seek sanctuary in Italy and enliven European’s cultural life.
The introduction of printing during the 15th century provided the means to disseminate
knowledge, and the undermining of feudalism in the wake of economic growth and the rise of
the merchant classes provided the background to the new inquiring attitudes taking shape.
5
5.Stéphane Beaulac: "The Westphalian Model in defining International Law: Challenging the Myth", Australian
Journal of Legal History Vol. 9 (2004) ; Krasner, Stephen D.: "Westphalia and all that" in Judith Goldstein &
Robert Keohane (eds): Ideas and Foreign Policy (Ithaca, NY: Cornell UP, 1993), pp.235–264.
11
Europe’s developing self-confidence manifested itself in a sustained drive overseas for wealth
and luxury items. By the end of the 15th century, the Arabs had been ousted from the Iberian
Peninsula and the Americas reach.The rise of the nation-states of England, France and Spain, in
particular, characterized the process of the creation of territorially consolidated independent
units, in theory and doctrine, as well as in fact. This led to a higher degree of interaction between
sovereign entities and thus the need to regulate such activities in a generally acceptable fashion.
The pursuit of political power and supremacy became overt and recognised, as Machiavelli’s
The Prince (1513) demonstrated.
It was the evolution of the concept of an international community of separate, sovereign, if

competing, states, that marks the beginning of what is understood by international law. The
Renaissance bequeathed the prerequisites of independent, critical thought and a humanistic,
secular approach to life as well as the political framework for the future. 6 But it is the latter factor
which is vital to the subsequent growth of international law. The Reformation and the European
religious wars that followed emphasized this, as did the growing power of the nations.
Throughout these countries the necessity was felt for a new conception of human as well as state
relationships. This search was precipitated, as has been intimated, by the decline of the Church
and the rise of what might be termed ‘free-thinking’. The theory of international law was
naturally deeply involved in this reappraisal of political life and it was tremendously influenced
by the rediscovery of Greco-Roman ideas. The Renaissance stimulated a rebirth of Hellenic
studies and ideas of Natural Law, in particular, became popular.
Thus, a distinct value-system to underpin international relations was brought into being and the
law of nations was heralded as part of the universal law of nature.7
With the rise of the modern state and the emancipation of international relations, the doctrine of
sovereignty emerged. This concept, first analysed systematically in 1576 in the Six Livres de la
Republique by Jean Bodin was intended to deal with the structure of authority within the
modern state. Bodin, who based his study upon his perception of the politics of Europe rather
6
Rosenberg, Justin (2006). "Why is There No International Historical Sociology?". European Journal of
International Relations. 12 (3): 307–340.
7
"Interntional Relation", Columbia Encyclopedia (1993) pp.030–0120.
12
than on a theoretical discussion of absolute principles, emphasized the necessity for a sovereign
power within the state that would make the laws. While such a sovereign could not be bound by
the laws he himself instituted, he was subject to the laws of God and of nature.
The idea of the sovereign as supreme legislator was in the course of time transmuted into the
principle which gave the state supreme power vis-à-vis other states. The state was regarded as
being above the law. Such notions as these formed the intellectual basis of the line of thought
known as positivism.
3. THE THEORY OF NATURAL LAW--- THE BASIS FOR THE EVOLUTION OF

THE INTERNATIONAL LAW.
From Ancient Rome, international law inherited the Doctrine of the Universal law of Nature
known as natural law which was developed by the Stoic philosophers of ancient Greece and
adopted by the Romans. This doctrine considered law as the product of right reason emanating
from assumptions about the nature of man and society. Because natural law is the expression of
right reason inherent in nature and man and discoverable by reason, it applies universally and it
is unchanging and everlasting.8
The early theorists of international law were deeply involved with the ideas of Natural law and
used them as the basis of their philosophies. Included within that complex of Natural Law
principles from which they constructed their theories was the significant merging of Christian
and Natural law ideas that occurred in the philosophy of St. Thomas Aquinas 9. He maintained
that Natural law formed part of the law of God, and was the participation by rational creatures in
the Eternal law. It complemented that part of the Eternal Law which had been divinely revealed.
Reason declared Aquinas, was the essence of man and thus must be involved in the ordering of
life according to the divine will. Natural law was the fount of moral behavior as well as of social
and political institutions and it led to a theory of conditional acceptance of authority with unjust
laws being unacceptable. Aquinas’ views of the late thirteenth century can be regarded as basic
to an understanding of present Catholic attitudes, but should be confused with the later
interpretation of Natural Law which stressed the concepts of natural rights.
8
Carlsnaes, Walter; et al., eds. (2012). Handbook of International Relations. SAGE Publications. pp. 1–28.
9
Morganthau, Hans (1978). Politics Among Nations: The struggle for Power and Peace. New York. pp. 4–15.
13
It is with such an intellectual background that Renaissance scholars approached the question of
the basis and justification of a system of international law. Maine, a British historical lawyer,
wrote that the birth of modern international law was the grandest function of the law of nature
and while that is arguable, the point must be taken. International law began to emerge as a
separate topic to be studied within itself, although derived from the principle of Natural law.
3.1. THE PRINCIPLES OF NATURAL LAW:
Natural law theory is a legal theory that recognizes law and morality as deeply connected, if not
one and the same. Morality relates to what is right and wrong and what is good and bad. Natural
law theorists believe that human laws are defined by morality, and not by an authority figure,
like a king or a government. Therefore, we humans are guided by our human nature10 to figure
out what the laws are, and to act in conformity with those laws.The term 'natural law' is derived
from the belief that human morality comes from nature. Everything in nature has a purpose,
including humans. Our purpose, according to natural law theorists, is to live a good, happy life.
Therefore, actions that work against that purpose -- that is, actions that would prevent a fellow
human from living a good, happy life -- are considered 'unnatural', or 'immoral'.11
Laws have a purpose too: to provide justice. From a natural law perspective, a law that doesn't
provide justice (an unjust law) is considered 'not a law at all.' Therefore, a law that is flawed is
one that no one should follow. In short, any law that is good is moral, and any moral law is
good.
Where there were no established customary rules, these jurists devised and fashioned working
principles by reason of analogy to the nature. Not only did they draw from the principles of
Roman law but also had to recourse the precedence of ancient history, theology, canon law and
the semi theological concept of the law of nature.
3.2 FURTHER EVOLUTION OF THE INTERNATIONAL LAW ON THE LINES OF

NTURAL LAW
10
Mingst, Karen A., & Arreguín-Toft, Ivan M. (2011). Essentials of International Relations (5th ed.). New York: W.
W. Norton & Comp
11
Norris, Cochrane, Charles (1929). Thucydides and the Science of History. Oxford University Press. p. 179
14
Among the early jurists were Francisco de Vitoria of the Spanish school of international law
(1480-1546) whose treaties Reflectionis de Indis Noviter Inventis12 confirmed the universal
validity of international law and its application in the Americas: The Italian school of Law
representative Alberico Gentili (1552-1608) who conceived the law of nations as a universal and
natural law applicable between independent pre states and free common wealth.
Francisco’s lectures were preserved by his students and published posthumously. He

demonstrated a remarkably progressive attitude for his time towards the Spanish conquest of the
South American Indians and contrary to the views prevalent until then, maintained that the
Indian peoples should be regarded as nations with their own legitimate interests. War against
them could only be justified on the grounds of a just interests. War against them could only be
justified on the grounds of a just cause. International law was founded on the universal law of
nature and this meant that non-Europeans must be included within its ambit.
However, Vitoria by no means advocated the recognition of the Indian nations as equal to
Christian states of Europe. For him, opposing the work of the missionaries in the territories was a
just reason for war, and he adopted a rather extensive view as to the rights of the Spaniards in
South America. Victoria was no liberal and indeed acted on behalf of the Spanish Inquisition, but
his lectures did mark a step forward in the right direction.
Suarez (1548-1617), was a Jesuit and Professor of Theology and deeply immersed in medieval
culture. He noted that the obligatory character of international law was based upon Natural Law,
while its substance derived from the Natural Law rule of carrying out agreements entered into.
Hugo Grotius (1583-1645), a Dutch scholar considered the greatest of the early writers of
international law. His treaties De Jure Belli ac Pacis which 1st appeared in 1625 has been
acknowledged as the 1st comprehensive and systematic treatise of positivists international law.
One central doctrine in Grotius treatise was the acceptance of the law of nature as an independent
source of the rule of law of nations apart from customs. His work was continually relied upon as
a point of reference and authority in the decisions of courts and text books and later writings of
standing.
Searching for a Cultural Diplomacy Editors: Jessica C. E. Gienow-Hecht & Mark C. Donfried. Berghahn Books ,
12
Oxford 2010 p. 3-13
15
Grotius finally excised theology from international law and emphasized the irrelevance in such a
study of any conception of a divine law. He remarked that the law of nature would be valid even
if there were no God. A statement which although suitably clothed in religious protestation was
extremely daring. The law of nature now reverted to being founded exclusively on reason.
Justice was part of man’s social make-up and thus not only useful but essential. Grotius
conceived of a comprehensive system of international law and his work rapidly became a
university textbook theological distinction between a just and an unjust was, a notion that was
soon to disappear from treaties on international law, but which in some way underpins modern
approaches to aggression, self-defence and liberation.
Besides his earlier work Mare Liberum (1609) distinguished Grotius as the historic standard
bearer of the doctrine of the freedom of the seas.13 In his work, Grotius argued that it would be
against a natural law to rule over the sea because no country was able to monopolize control over
the ocean because of its immensity, lack of stability and lack of fixed limit. Therefore, Grotius
opposed the ‘closed seas’ of the Portuguese that was later elucidated by the English writer John
Selden and emphasized instead the principle that the nations could not appropriate to themselves
the high seas. They belonged to all. It must, of course, be mentioned, parenthetically, that this
theory happened to accord rather nicely with prevailing Dutch ideas as to free trade and the
needs in expanding commercial empire.
However, this merely points up what must not be disregarded, namely that concepts of law as of
politics and other disciplines are firmly rooted in the world of reality and reflect contemporary
preoccupation. No theory cultural and social environment. To ignore this is to distort the theory
itself.
3.3 CRITICISM OF THE NATURAL LAW THEORY
The traces of the Natural law theories still exist today although in a much less dogmatic form.
The approach kindred to that of NL underlies the current movement to bind states by
International covenants to observe Human rights and fundamental freedoms and provides
justification for the punishment of individuals guilty of gross violation of human rights such as
war crimes and genocide.Because of its rational and idealistic character, the concept of the
13
Krasner, Stephen D., ed. 1983. "Structural Causes and Regime Consequences: Regimes as Intervening Variables."
In International Regimes, Ithaca: Cornell University Press, pp. 1
16
development of the law of nature has had a tremendous influence on the development of IL. It
has generated respect for IL and provided moral and ethical foundations.
Its main defect however, has been its aloofness from the realities of International relations
shown in the lack of emphasis of the actual practice of state in their mutual relations although the
majority of rules of IL originally sprung from these practice. Besides the binding force of IL can
be traced back to one supreme fundamental principle or norm expressed by the principles of
Pacta Sunt Servanda14 i.e. that agreements between states are to be respected and carried out in
good faith. Pacta Sunt Servanda is an absolute postulate of the International legal system and
manifests itself in all rules of IL.the same or any similar concept as such has not been postulated
by the natural law theory.
3.4 CASE ANALYSIS:
CASE NAME- The Continental Shelf CASE
PARTYS- Libyan Arab Jamahiriya vs. Malta
YEAR-1985
PRINCIPLE-
It is a course axiomatic that the material of customary international law is to be looked for
primary in the actual practice and opinion juries of state even though multilateral conventions
may have an important role to play in defining and recording rules , deriving from custom or
indeed in developing them.
FACT OF THE CASE-
On 23 May 1976, a Special Agreement was signed between the Socialist People’s Libyan Arab
Jamahiriya and the Republic of Malta providing for the submission to the Court of a dispute
concerning the delimitation of the continental shelf between the two States.
The Parties were broadly in agreement as to the sources of the law applicable to the case, but
disagreed as to the way in which the Court was to indicate the practical application of those
principles and rules. Malta wished the Court to draw the delimitation line, while Libya wanted it
Stuart, Douglas; Starr, Harvey (1981). "The 'Inherent Bad Faith Model' Reconsidered: Dulles, Kennedy, and
14
Kissinger". Political Psychology. 3 (3/4): 1–33.
17
only to pronounce itself on the applicable principles and rules. Having examined the intention of
the Parties to the Special Agreement, from which its jurisdiction derived, the Court considered
that it was not barred by the terms of the Special Agreement from indicating a delimitation line.
The delimitation contemplated by the Special Agreement related only to the areas of continental
shelf that appertained to the Parties, to the exclusion of areas which might appertain to a third
State. Although the Parties had in effect invited the Court not to limit its Judgment to the area in
which theirs were the sole competing claims, the Court did not consider itself free to do so,
especially in view of the interest shown in the proceedings by Italy, which in 1984 order to
achieve an equitable result. Submitted an application for permission to intervene under article 62
of the Statute. The Court had rejected this application.
ISSUE-
Questions before the Court
· What principles and rules of international law are applicable to the delimitation of the area of
the continental shelf that appertains to the Republic of Malta and the area of the continental shelf
that appertains to the Libyan Arab Jamahiriya?
· How in practice can the two Parties, in this particular case, apply such principles and order to
achieve an equitable result. Rules in order that they may, without difficulty, delimit the areas
concerned by agreement?
DECISION-
The Judgment was rendered on 3 June 1985. By fourteen votes to three, the Court held that “with
reference to the areas of continental shelf between the coasts of the Parties within the low-water
mark of the relevant coast of Libya, that initial line being then limits defined in the present
Judgment, namely the meridian 13º 50′ E and the meridian 15º 10′ E.
The principles and rules of international law applicable for the delimitation, to be effected by
agreement in implementation of the present Judgment, of the areas of continental shelf
appertaining to the Socialist People’s Libyan Arab Jamahiriya and to the Republic of Malta
respectively are as follows:
18
· the delimitation is to be effected in accordance with equitable principles and taking account of
all relevant circumstances, so as to arrive at an equitable result;
· The area of continental shelf to be found to appertain to either Party not extending more than
200 miles from the coast of the Party concerned, no criterion for delimitation of shelf areas can
be derived from the principles of natural prolongation in the physical sense.
REASONING-
The Court found that, as to the law applicable to the delimitation of areas of shelf between
neighboring States, which is governed by article 83 of the 1982 Convention, the Convention sets
a goal to be pursued, namely “to achieve an equitable solution” but is silent as to the method to
achieve it.
In the view of the Court, the principles and rules underlying the régime of the exclusive
economic zone could not be left out of consideration in the present case, the two concepts
continental shelf and exclusive economic zone – being linked together in modern law.
The conclusion reached by the Court was that there was no evident disproportion in the areas of
shelf attributed to each of the Parties respectively such that it could be said that the requirements
of the test of proportionality as an aspect of equity were not satisfied.
4. LEGAL POSITIVISM---BASIS OF THE POSITIVE THEORY OF THE PUBLIC

INTERNATIONAL LAW
Positivism means law which is in fact as contrasted with what ought to be. According to
positivists, law enacted by appropriate legislation is binding. Positivists view was in vogue in
18th century. Positivism is also a theory on basis of international law. International law can in
logic be reduced to as system of rules depending for their validity only on the fact that States
have consented to it. Positive international law is majorly base on state will and state
sovereignity.
Ever since the turn of the century, internationalists have started with positivist assumptions, have
followed the positivist method, and have professed adherence to the principles of positivism.
Neither the opposition of natural law, nor Kelsen's “neo-positivist criticism," nor, finally, the
19
rather implicit criticism of legal sociologists, has been able to affect the predominance of
positivist thought over the science of international law.
The Permanent Court of International Justice still follows the time-honored pseudo-logical
method of traditional positivism which prevailed in the jurisdiction of the domestic supreme
courts at the turn of the century. The annals of this highest international Positivism is based on
legal positivism i.e. law which is in fact as contrasted with law which ought to be. Legal
positivism is a school of Jurisprudence whose advocates believe that the only legitimate sources
of law are those written rules, regulations, and principles that have been expressly enacted,
adopted, or recognized by a government body, including administrative, executive, legislative,
and judicial bodies.15 It is the thesis that the existence and content of law depends on social facts
and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The
existence of law is one thing; its merit and demerit another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”16
Positivism separates law & morality. Unlike Natural Law, which is based on the belief that all
written laws must follow universal principles of morality, religion, and justice, positivists
acknowledge that ethical theories of morality, religion, and justice may include aspirational
principles of human conduct. Positivists emphasized on the fact that if a written law has been
duly enacted by a branch of government, it should be considered as valid and binding, regardless
of whether it offends anyone's sense of right and wrong.17
Positivist philosophy restricts the object of scientific knowledge to matters that can be verified
by observation, and thus excludes from its domain all matters of an a priori, metaphysical
nature.18 Juridic positivism19 transfers this delimitation into the legal sphere. The twentieth
century realist, Hans Morengthau described positivism as,
15
Renegotiating Westphalia (eds. C. Harding and C. L. Lim), The Hague, 1999, chapter 1
16
Hans J. Morgenthau, Positivism, Functionalism, and International Law, The American Journal of International
Law, Vol. 34, No. 2 (Apr., 1940), pp. 261,262.
17
Supra note 15
18
Ruggiero, Positivism, Encyclopedia of the Social Sciences, Vol. 12, p. 260.
19
Juridic Positivism is that theory which denies moral or normative dimension to the sphere of law, but, equally
refuses to relate its content on the social context of practice, See Derek Robbins, Cultural Relativism and
International Politics
20
“The juridic positivist delimits the subject-matter of his research in a dual way. On the one hand,
he proposes to deal exclusively with matters legal, and for this purpose strictly separates the legal
sphere from ethics and morals as well as psychology and sociology. On the other hand, he
restricts his attention within the legal sphere to the legal rules enacted by the state, and excludes
all law whose existence cannot be traced to the statute books or the decisions of the courts. This
"positive" law the positivist accepts as it is, without passing judgment upon its ethical value or
questioning its practical appropriateness. The positivist cherishes the belief that the "positive"
law is a logically coherent system which virtually contains, and through a mere process of logical
deduction will actually produce, all rules necessary for the decision of all possible cases. Hence,
his system worship and dogmatic conceptualism.”20
Positivism serves two important values. Firstly, all law must be written, it ensures that
government will provide rights and obligations to it’s citizens. In a legal system run in strict
accordance with positivist tenets, litigants would never be unfairly surprised or burdened by the
government imposition of an unwritten legal obligation that was previously unknown and
nonexistent.
Second, positivism curbs judicial discretion. In some cases judges are not satisfied with the
outcome of a case that would be dictated by a narrow reading of existing laws. For example,
some judges may not want to allow a landlord to evict an elderly and sick woman in the middle
of winter, even if the law authorizes such action when rent is overdue. However, positivism
requires judges to decide cases in accordance with the law. Positivists believe that the integrity of
the law is maintained through a neutral and objective judiciary that is not guided by subjective
notions of Equity.
According to positivists, law enacted is by appropriate legislative authority is binding. The

positivists base their views on the actual practice of states. Positivism developed as the modern
nation-state system emerged, after the Peace of Westphalia in 1648, from the religious wars. 21 It
20
Hans J. Morgenthau, Positivism, Functionalism, and International Law, The American Journal of International
Law, Vol. 34, No. 2 (Apr., 1940), pp. 261,262.
21
L. Gross, ‘The Peace of Westphalia 1648–1948’, 42 AJIL, 1948, p. 20; Renegotiating Westphalia (eds. C. Harding
and C. L. Lim), The Hague, 1999, chapter 1, and S. Beaulac, ‘The Westphalian Legal Orthodoxy – Myth or
Reality?’, Journal of the History of International Law, 2000, p. 148.
21
coincided, too, with theories of sovereignty such as those propounded by Bodin and Hobbes, 22
which underlined the supreme power of the sovereign and led to notions of the sovereignty of
states.
In international law, unlike the other branches of legal science, positivism tribunal record no
instance where an advocate, like Brandeis in Muller v. Oregon,23 dared to break through the
network of positivist formulae, nor of any majority opinion which would not have clung, on a
very high level of technical perfection, to the traditional pattern of positivist argumentation.
When Judge Hudson looked for a realistic decision with respect to international law he has to
turn to the Court of Appeals of the State of New York.24 He said that compared to municipal law,
international law is in a retarded stage of scientific development. As represented by its sanest
elements, the science of international law still stands where the science of municipal law stood in
1910; in terms of its post-World War development, its most spectacular branches, invaded by the
political ideology of Geneva, have gone back at least to the point from which positivism started
in the last decades of the nineteenth century.25
The empirical method adopted by the Renaissance was behind the derivation of the positivist
approach. It was based upon the deductions from absolute principles, but rather with viewing
events as they occurred and discussing actual problems that had arisen. The existence of inherent
principles was denied by Locke and Hume26 and postulated that ideas were derived from
experience. The scientific method of experiment and verification of hypotheses emphasized this
approach.27
From this philosophical attitude, it was a short step to reinterpreting international law not in
terms of concepts derived from reason but rather in terms of what actually happened between the
competing states. What states actually do was the key, not what states ought to do given basic
22
Leviathan, 1651
23
3 208 U. S. 412 (1908)
24
Techt v. Hughes, 229 N. Y. 222, 241 (1920)
25
OLIVER JUTERSONKE , MORGENTHAU, LAW AND REALISM, (Cambridge University Press), 1st Edition, 2010, p.
246
26
Friedmann, Legal Theory ,pp.253–5
27
MALCOLM N. SHAW , INTERNATIONAL LAW, 6th edition 2008, p. 49
22
rules of the law of nature. Agreements and customs recognised by the states were the essence of
the law of nations.
4.2 CHIEF EXPONENTS OF THE POSITIVE INTERNATIONAL LAW AND THEIR

VIEWS
The concept of State was first propounded by the German philosopher Hegel and the concept of
Sovereignty by Jean Bodin. The state sovereignty is the basic premise of positivism. The extent
of adoption and implication of rules of international law based on the state sovereignty, i.e , to
the extent state has restricted it’ s sovereignty This theory is known as “auto-limitation” or “self-
limitation” theory. The basic idea of this theory is that a State is absolutely sovereign to the limit
it agrees to restrain. The will of the State is supreme and it cannot be restricted by any external
force. According to Jellinek, the rules of derive their binding force from the consents to the
limitations on it’ s sovereignty. Unlike conventional law, it is difficult to discern consent for
customary rules. To this, the concept of “implied” or “tacit” consent was applied. It means that
the accede to customary rules.
The Italian Jurist, Anzilotti mentioned that the binding force of International law is founded on a
supreme principle or norm known, as pacta sunt servanda.28 It means that the agreement between
States are to be respected. It is the fundamental norm and an absolute postulate of international
legal system from which the international law derives its binding force and authority. He holds
that like treaties, consent is present in customary rules of international law which manifests itself
by way of an implied pactum.29
For quite a long time there has existed the controversy as to whether or not international law is
true law. Some jurists have argued that IL is positive law whereas others have maintained that IL
is only a body of rules of International morality.One theory that has enjoyed acceptance is the
positivists’ law that IL is not true law. John Austin 19th century is the main protagonist of this
theory. Others who have questioned the legal basis are English philosophers like Thomas
Hobbes, Jeremy Bentham and the German jurist Samuel Von Pufendorf.
28
DR. S.K.KAPOOR, INTERNATIONAL LAW AND HUMAN RIGHTS, 18th Edition (Central Law Agency), 2011, p.53
29
S.K. Verma, An Introduction to Public Internatonal Law, 2nd Edition ( Satyam Law International), 2012, p. 14
23
Austin argued that IL is not really law because it has no sovereign. His attitude towards IL was
influenced by his theory of law in general. He defined “laws properly so called as commands of
a sovereign.” According to him a sovereign is a person who receives the habitual obedience of
the members of an independent political society and who in return did not owe such obedience to
any person.
Rules of international law did not qualify as rules of positive law by this test and not being
commands of any sort were placed in the category of “laws improperly so called.” According to
Austin IL was positive to IL morality only analogous to rules binding a club or a society. Austin
further described IL as consisting of “opinions or sentiments among nations generally.”
Positivism has been objected to a number of grounds
i) Modern historical jurisprudence has discounted the force of Austin’s general theory of law
because there is no legal system that conforms to his concept. Modern jurisprudence has
shown that in many communities without a determinate sovereign legislative authority a
system of law was enforced and being observed and that such law did not differ in its binding
operation from the law of any state with a true legislative authority.
ii) Austin’s views however right for his time are not true of the contemporary international law.
in the last one century or so a great number of IL rules has come into existence as a result of
law making treaties and conventions and the proportion of rules of primary IL has
correspondingly diminished. Even if it be true that there is no determinate sovereign
legislative authority in the international field the procedure for the formulation of rules of
international law by means of International conferences or through existing international
institutions is practically a settled and efficient as any state legislative procedure.
iii) Questions of international law are always treated as legal questions by those who conduct
international business in various foreign offices or through various existing international
bodies.
The agencies do not consider international law as merely a moral code. In his Oxford lectures in
1890, Sir Fredrick Pollock sums up the issue in this way namely “if international law were only
a kind of morality, the framers of state papers concerning foreign policy would draw all their
strength on arguments. But as a matter of fact, this is not what they do. They appeal not to the
general feeling of moral rightness, but to precedents, treaties and to opinions of specialists. They
24
assume the existence among statesmen or publicists of a series of legal as distinguished from
moral obligations in the affairs of nations.”30
Furthermore the legally binding force of international law has been severally asserted by the
nations of the world in international conferences. For instance the UN Charter is both explicitly
and implicitly based on the true legality of IL whereas Art 38 of the Statute International Court
of Justice states that the function of the court is to decide “in accordance with international
law” that such disputes are submitted to it.
Austin confused rules of IL proper with rules of Comitas Gentium (International Comity) the
later being rules of good will and civility founded on the moral right of each state to receive
courtesy from other states.
Non observance of a rule of IL may give rise to a claim by one state against others for some kind
of satisfaction whether it be diplomatic in character or it takes the concrete form of indemnity or
reparation.
It is otherwise for rules of International Comity i.e. it does not give rise to a legal claim).The
concept of the law of nature exercised a great influence on the development of International Law.
Several theories of the character and binding force of International Law were founded upon it.
The law of nature denoted the ideal law founded on the nature of man as a reasonable being i.e.
the body of rules which nature dictates to human reason. The essence and relevance then is that
states submitted to international law because their regulations were regulated by the Higher law,
the law of nature of which IL was attached/part.
4.3 CRITICISM OF POSITIVIST THEORY OF INTERNATIONAL LAW:
The positivist theory is mostly based on the actual practices of States. But it is a descriptive
generalization, too broad to apply to many of the problems concerning the binding nature of
international law. It is subjected to the following criticism:
30
The Hague, 1999, chapter 1, and S. Beaulac, ‘The Westphalian Legal Orthodoxy – Myth or Reality?’, Journal of
the History of International Law, 2000, p. 148.
25
1. The concept of State presented by positivists is purely metaphorical. The concept of State
as a personality with will is false. The state functions through individuals, thus, it is
individual’s will and not State will.
2. The view that the international law is based on consent of state is not true. According to
Torsten Gihl, ‘custom is said to be evidence of a general practice accepted by law’.31
3. International custom constitutes general international law, a real law, for the society of
States. The dictum of pacta sunt sevanda cannot be the basic norm of international law,
it is itself rule of international custom.
4. There are some principles which are applicable on States, even though they have not
consented to it. Such as rule for maintenance of peace and security32.
5. In contemporary law, treaties and customs cannot be considered as only source of

international law. Article 38(1)(c) of the Statute of International Court of Justice accepts
‘General Principles of law recognized by civilized nations’ as a source of international
law. According to Manley O Hudson,33 the provision related to ‘general principles of law
recognized by civilized nations’ serves a useful purpose in that it emphasizes the creative
role to be played by the court. It confers wide freedom of choice that no fixed and
definite content can be assigned to the term employed. It highlights the fallacy of
positivism
4.4 CASE ANALYSIS
CASE NAME- The Charming Betsy case
PARTIES- Murray Vs. The Charming Betsey
YEAR- 1804
31
TORTSEN GIHL, THE LEGAL CHARACTER AND SOURCES OF INTERNATIONAL LAW ( Stockholm, (1957), pg. 75
32
Article 2(6) of the U.N. Charter provides that non-member States to be in accordance with Article 2 of the
Charter.
33
The Permanent Court of International Justice, 1920-44, (New York: The Macmillian Company), 1943, p.606-620.
26
PRINCIPLE-
1. Charming Betsy canon is a principle of interpretation applied in interpreting

national statutes, and general acts of congress. According to this canon, national
statutes should be interpreted in such a way that the interpretation does not conflict
with international laws. This principle evolved from the case.
2. Another principle of this case is in the treaty or custom the state have to maintain
though it is clarified or not. The states have to bind to maintain this kind of treaty or
custom. Even if the Domestic Law as inter-related to the International Law for the
treaty rules or custom.
FACT OF THE CASE-
Once a US national lived in the island named sent Thor conquered by the Denmark. He was the
owner of a ship. In 1800 by the Non Intercourse Act his ship was forfeited. By t his there was no
business transitive allowed with France. There was the allegation brought against him for
breaching this Act. There were a number of reasons had been produce that so far he had been
living in abroad.
ISSUE-
 Whether the U.S authority can forfeit her national’s property solely for staying an abroad
or not.
 Whether U.S. Navy had violated the Non-Intercourse Act of 1800.
DECISION-
In the dispute the chief justice Marshall to do the judgment. Discussed and interpreted the
international country law, conventional law and the effectiveness over the USA of its. According
to his decisions, that any law of USA can’t be operated in opposition direction of the
international norm and International Laws.
REASONING-
27
 There is lots of reasoning he produced in giving of its decision. He said the customary
law has been found into US law with effectiveness. That is why the congress never can
go in the opposite.
 Over the dispute, the allegation which was brought really by the national control of the
USA. The crate can do no matter what it seems to better for the state. As it was the Act
passed in the congress which was not to be opposing of the International Law.
 The court found that there was sue connection exist to go to the step for the discharge the
argument.
5. CONSENT THEORY –THE RULE OF PUBLIC INTERNATIONAL LAW
The chief exponent of the theory of consent was Bynkershoek, which was later followed by more
refinements by other jurists such as Zorn, Triepel and Anzilotti. Bynkershoek took the position
that the express or implied consent was the source of the basis of obligation in international law,
and there was no room for existence of Inter- State law beyond what had been consented by them
either expressly or impliedly. According to these exponents, it is the will of the state that
commands obedience both in municipal law and international law. Zorn goes to the extent of
treating it as a branch of municipal law. Triepel believed the common will of the States was the
basis of the validity of international law, pointed out that it depended on the agreements between
States, which included not only treaties but also custom and the common will was the only
creative source of international law.34
The exponents of the doctrine of consent maintain that the will of the State is the binding force of
international law, but they also put emphasis on the way the consent is expressed by the
State. The will of the State is said to be expressed in domestic law through legislation and in the
case of international law through consent to international rules. The consent theory is divided
into two forms, the actual consent theory and the theory of hypothetical consent. [6] According
to some theorists international law is based on the actual consent of the States, it may be implied
by way of custom or it might be expressly shown through treaties or other international
agreements. The State’s will is manifested in the form of conventional and customary rules and
34
Kissinger". Political Psychology. 3 (3/4): 1–33.
28
since they have consented to them, the rules are binding upon them, and nothing can be law to
which they have not consented.
5.1 OPPENHEIM’S VIEWS
According to Oppenheim “common consent” is the basis of international law as a legal

system. common consent to internationally valid rules regarding important matters such as
international civil aviation, the use of international water bodies is a necessity. This common
consent cannot mean that all states must at all times expressly consent to every part of the body
of rules constituting international law, since such common consent can never be established. The
membership of the international community is constantly changing: new states are formed and
they join the international. Dissent of a particular from a particular rule is not to be taken as a
withdrawal of consent to the system as a whole.35
The common consent that is meant is thus not consent to particular rules but to the express or
tacit consent of states to the body of rules comprising international law as a whole at any
particular point of time. Thus new states which come into existence and become members of the
international community are subject to the body of rules for international conduct in force at the
time of their admission. No single state can say on its admittance into the community of nations
that it will be bound by Rule x of international law and not by Rule Y. Their admission into the
international community is based on their acceptance to all the rules In force except the ones
which are binding on states who are party to some treaty.
5.2 JELLINEK’S VIEWS
According to Jellinek, the rules of international law derive their binding force because the State
consents to the limitations on its sovereignty. However though consent can easily be discerned
for conventional rules, it is difficult to do so with customary rules. To this, positivists attribute
‘tacit” or “implied” consent, i.e. the states acquiescing to customary rules. They admit that
sometimes it is impossible to find any express consent in treaties, state papers, public documents,
diplomatic notes, or the like to be bound by particular customary rules. They therefore
consistently with their consensual theory, argue that in such exceptional cases the consent must
35
29
be regarded as being ‘implied” or ‘tacit”. They observe that the membership of the society of
States involves an implied consent to the established rules of customary international law. Such
general implied consent could only be conditioned by some fundamental rule of international law
itself, and it would be still necessary to explain the source and origin of this fundamental rule.
5.3 ANZILOTTI’S VIEWS
According to Anzilotti36 , a prominent positivist, the principle of pacta sunt servanda(i.e. the
agreements between states are to be respected) is the fundamental norm and an absolute postulate
of international legal system from which the international law derives its binding force and
authority. This has now been codified in Article 26 of the Vienna Convention of the Law of
treaties, 1969. Article 2 provides that every treaty in force is binding upon the parties to it and
must be performed by them in good faith. Anzilotti holds that just as in the case of treaties,
customary rules are based on the consent of states and there is an implied agreement. The main
defect in this analysis is that the norm pacta sunt servanda is only partially an explanation of the
binding force of international law. Anzilotti’s views that customary rules are binding on the
state’s by virtue of an implied pactum is no more convincing than the “tacit” consent argument
of other positivists. It has been rightly observed by Gihl ,’ the realisation that international
customary law does not rest on a agreement and that the tenet pacta sunt servanda is itself a rule
of customary law led to a new formulation of the basic norms.’
5.4 CRITICISMS OF THE THEORY OF CONSENT
The basis of international law on the theory of common consent of the States can be assailed on
grounds more than one. Several objection have been raised against it, the prominent ones
amongst them are:
Treaties and custom are no longer considered to be the only sources of international law. Art
38(1)(c) of the Statute of the International Court of Justice accepts the “general principles of law
recognised by civilised nations” as a source of international law. This helps the judges to develop
36
Donald Markwell, John Maynard Keynes and International Relations: Economic Paths to War and Peace, Oxford
University Press, 2006. Donald Markwell, Keynes and International Economic and Political Relations, Trinity Paper
33, Trinity College, University of Melbourne.
30
the content of international law. This shows us that consent is always not necessary for
international law to become functional.
The theory of consent is also not fully applicable in case of treaties. Dispositive treaties are
examples of treaties which are binding on the states without their consent. a striking example is
paragraph 6 of Article 2 of the United Nations Charter, which provides that the United nations is
to ensure that non member states shall act in accordance with the principles of the Charter so far
as may be necessary for the maintenance of international peace and security.37
It is difficult to reconcile the facts with a consensual theory of international law. In the case of
customary rules, there are many instances where it is quite impossible to find any consent by
states to the binding effect of these rules. Moreover, the consensual theory breaks down in the
crucial case of a new state admitted to the family of nations, as for example Kazakhstan which
was earlier a part of the Soviet Union did not consent to its international commitments which
were binding on it at the time of its birth. Such a new state is bound by international law from
the date of its emancipation without an express act of consent. The idea that in such an instance
there is a “tacit” or implied consent, merely strains the facts. The reality is that other states look
to the new state to comply with the whole body of international law. This has consistently been
the attitude of two influential Great powers, the United States of America and Great Britain .
One of the major defects of the consent theory is that it can be used to justify the withdrawal of
consent from a rule. The question to be asked at this juncture is whether by withdrawing consent,
can a State eliminate its international obligations. According to Brierly, a State cannot deny that
it has violated international law when it does not act in accordance with a treaty which it had
concluded. But if the treaty was said to be no longer binding after withdrawal of, it would lead to
the conclusion that a state can by its unilateral act enforce its unconditional right to relieve itself
from any obligation which it was bound under the treaty. Thus the State would not be under any
obligation because the consent which was the source of the obligation had been withdrawn. As
Brierly comments, a consistently consensual theory would have to admit that if the consent is
withdrawn, the obligation created by it comes to an end.
37
Kissinger". Political Psychology. (3/4): 1–33.
31
According to Westlake:
“It is enough to show that the general consensus of opinion within the limits of the European
civilisation is in favour of the rule”Thus the test which is to be applied is whether the rule is one
which is generally recognised by the society of nations. Thus it is not necessary when invoking a
particular rule of international law against a particular state to show that the state has assented to
it diplomatically.”38
6. THEORY OF AUTO-LIMITATION
Having come to the conclusion that States do observe international law and will violate it on an
issue which is vital to their interest, the question arises as to the basis of obligation in
international law. The nineteenth century with its business oriented philosophy stressed the
importance of the contract, as the legal basis of an agreement freely entered into by both sides,
and this influenced the theory of consent in international law 39. States were independent, and
free agents, and accordingly they could be bound by their own consent. There was no authority
in existence able theoretically or practically to impose rules amongst the various member states.
The approach found its extreme expression in the theory of auto limitation, or self limitation
which declared that states could only be obliged to comply with international legal rules if they
had first agreed to be obliged. The rules of international law are adopted to the extent when the
states have voluntarily restricted their sovereignty. The sovereignty is absolute is absolute in so
far as a State agrees to its limitation. Thus a state has freedom of action, except in so far as it has
agreed to the rules restricting that freedom.
6.1 CRITICISMS OF THE THEORY OF AUTO LIMITATION
However the theory maybe criticised on the following grounds. In the first place the theory is
based on a pre supposition that there exists a State will which is nothing but the will of the
people. It does not explain the fact. For example, when the a treaty has been ratified by say Great
Britain, we can if we like say that the ratification is an expression of Great Britain’s will to
38
39
University Press, 2006. Donald Markwell, Keynes and International Economic and Political Relations, Trinity
Paper 33, Trinity College, University of Melbourne.
32
become bound by a treaty. This language however is very alluring and figurative, merely
describes a situation of fact, that the British executive organ has ratified the treaty, and that the
British people through their representatives have become responsible for their fulfilment of treaty
obligations. The state will is therefore a mere falcon de parler, as the only will or wills which
operate are those of the individuals who govern Great Britain. Secondly auto limitation is no
limitation at all. It implies that the state can free itself from self imposed restriction, but in
practice this is not possible. Thirdly, the theory has been criticised by Brierly, Friedmann 40 and
other jurists on the ground that the theory completely fails to explain how it is known that a state
can only be bound by self imposed obligations or why this theory of sovereignty should be
accepted in advance of proper examination of the actual character of international law. Besides
there is some incoherence in the argument to show that states, because their sovereignty, can
only be subject to be bound by rules which they have imposed upon themselves.
In spite of its many weaknesses, the consensual theory has had one very valuable influence on
the science of international law. It has concentrated attention on the actual practice of states by
emphasising, perhaps unduly, that only those rules which states do in fact observe can be rules of
international law. It is because of its consensual basis and its wide acceptance in the International
community that international law can be equated with State law and that is the main reason why
it is challenged. Without any community interest and the general consent of the application of
rules, international law would have no function. The International Court of justice also took
support of this theory while delivering judgements in the Asylum Case , the Anglo-Norwegian
Case and the US Nationals in Morocco case . This has led to a more realistic outlook in the
works of international law, and to the elimination of much that was academic, sterile and
doctrinal.
6.2 CASE ANALYSIS
CASE NAME- Asylum Case
PARTIES- Columbia vs. Peru
YEAR- 1950, International Court of Justice.
PRINCIPLE-
40
33
 Regional rules are not necessarily subordinate to general rules of international law but
may be in a sense complementary or correlated thereto, and
 An international tribunal must, as between states in the particular region concerned give
effect to such regional rules as are duly proved to the satisfaction of the tribunal.
FACT OF THE CASE-
An unsuccessful military rebellion took place in Peru in October 1948. It was suppressed on the
same day and the President of the Republic issued a decree outlawing the American People’s
Revolutionary Alliance, which he charged with having organized and directed the rebellion. A
warrant was issued for the arrest of Victor Raul Haya de la Torre, the head of the American
People’s Revolutionary Alliance and a Peruvian national, in connection with the rebellion. On 3
January 1949 Haya de la Torre sought asylum in the Colombian Embassy in Lima, the capital
city of Peru.
The Colombian Ambassador informed the Peruvian Government that he had granted diplomatic
asylum to Haya de la Torre under Art. 2, paragraph 2 of the Havana Convention on Asylum
1928, and under Art. 2 of the Montevideo Convention on political Asylum, 1933. He had
qualified Haya de la Torre as a political refugee, and requested the government of Peru to allow
Torre to leave the country.
Peru contended that Haya de la Torre was not entitled to asylum and refused to accept the right
of Colombia to define unilaterally the nature of Haya de la Torre’s offense. After diplomatic
correspondence between two countries, the case was referred to the International Court of
Justice.
ISSUE-
In determining the issues involved, the International Court of Justice considered the following
issues:
 Whether there is an custom so established that it is binding to allow Columbia to grant

political asylum
34
 Whether the granting of diplomatic asylum was a practice or custom in the region of
Latin America.
 Whether Columbia is competent to qualify the offence of Haya de la Torre and granting
asylum.
 Whether such asylum was being practiced recurrently as customary norms of the
international law.
DECISION-
The international Court of Justice decided that a State granting diplomatic asylum do not have
the unilateral right to qualify an offense for The purpose of asylum, nor was Colombia entitled to
claim guarantees for the safe departure of the man to whom he had given asylum.
REASONING-
Columbia cited several conventions, of which some Peru was not a party so not binding, and
others that were accepted by so few states it is very weak. Columbia also refers to many cases
where political asylum was granted, but court cannot determine whether they were granted due
to usage, or for political expediency. Court says Columbian Govt. has not through its arguments
proven the existence of such a custom. And, if there was such a custom, it could not been forced
against Peru, because they were not party to the Montevideo convention which included matters
of political asylum
CASE NAME- Anglo-Norwegian Fisheries Case
PARTY-United Kingdom v. Norway, ICJ
YEAR- 1951
PRINCIPAL-
Extension by costal state of fisheries jurisdiction case, fishery zone, preferential rights and
concurrent rights of other stats and conservation measures.
FACT OF THE CASE-
Since 1911 British trawlers had been seized and condemned for violating measures taken by the
Parties in order to avoid further legal differences; and the Norwegian Government specifying the
35
limits within which fishing was prohibited to foreigners. In 1935, a Decree was adopted
establishing the lines of delimitation of the Norwegian fisheries zone.
On 28 September 1949, the Government of the United Kingdom filed with the Registry of the
ICJ an application instituting proceedings against Norway. The subject of the proceedings the
Parties in order to avoid further legal differences; and was the validity, under international law,
of the lines of delimitation of the Norwegian fisheries zone as set forth in a Decree of 12 July
1935.
The application referred to the declarations by which the United Kingdom and Norway had
accepted the compulsory jurisdiction of the ICJ in accordance with Article 36 (2) of its Statute.
ISSUE-
· To declare the principles of international law applicable in defining the baselines by reference
to which the Norwegian Government was entitled to delimit a fisheries zone, extending seaward
to 4 nautical miles from those lines and exclusively reserved for its own nationals; and to define
the said baselines in the light of the arguments of the Parties in order to avoid further legal
differences.
· To award damages to the Government of the United Kingdom in respect of all the written reply
and later in the oral argument by the United Kingdom and, consequently, no interferences by the
Norwegian authorities with British fishing vessels outside the fisheries zone, which, in
accordance with the ICJ’s decision, the Norwegian Government may be entitled to reserve for its
nationals.
DECISION-
The Fisheries Case was brought before the Court by the United Kingdom of Great; Britain and
Northern Ireland against Norway. By a Decree of July 12 th, 1935, the Norwegian Government
had, in the northern part of the country (north of the Arctic Circle) delimited the zone in which
the fisheries were reserved to its own nationals.
‘Me United Kingdom asked the Court to state whether this delimitation was or was not contrary
to international law. In, its Judgment the Court found that neither the method employed for the
delimitation by the Decree, nor the lines themselves fixed by the said I)decree, are contrary to
36
international law; the first finding is adopted by ten votes to two, and the second by eight votes
to four. Three Judges-M.M. Alvalez, Hackworth and Hsu Mo appended to the Judgment; 21
declaration or an individual opinion stating the particular reasons for which they reached their
conclusions; two other Judges- Sir Arnold McNair and Mr. J.E. Read-appended to the Judgment
statements Of their dissenting Opinions.
REASONING-
 It was agreed from the outset by both Parties and by the Court that Norway had the right
to claim a 4-mile belt of territorial sea, that the fjords and sands along the coastline,
which have the character of a bay or of legal straits, should be considered Norwegian for
historical reasons, and that the territorial sea should be measured from the line of the low-
water mark.
 The Court found itself obliged to decide whether the relevant low-water mark was that of
the mainland or of the skjaergaard, and concluded that it was the outer line of the
skjaergaard that must be taken into account in delimiting the belt of Norwegian territorial
waters.
 The Court then considered the three methods that had been contemplated to effect the
application of the low-water mark. The Court rejected the method of the “tracé parallèle”,
which” consists of drawing the outer limit of the belt of territorial waters by following the
coast in all its sinuosities”, as unsuitable for so rugged a coast. Furthermore, that method
was abandoned in the written reply and later in the oral argument by the United Kingdom
and, consequently, no longer relevant to the case.
 The Court also declined to apply the “courbe tangente” (the “arcs of circles” method)
inasmuch as it was concededly not obligatory by law. Thus, the instant case required the
application of a third delimitation method according to which the belt of the territorial
waters must follow the general direction of the coast. Such a method consisted of
selecting appropriate points on the low-water mark and drawing straight lines between
them. The Court found that the method had already been applied by a number of States
without giving rise to any protests by other States.
 However, the Court held that the delimitation of sea areas had always had an
international aspect and could not be dependent merely upon the will of the coastal State
37
as expressed in its municipal law. Although necessarily a unilateral act, the validity of
delimitation of sea areas with regard to other States depended upon international law. The
Court considered that in drawing straight baselines, the coastal State had to follow the
general direction of the coast.
7. THEORIES OF INTERNATIONAL LAW AND THE RELEVANCY TO THE

PRESENT INTERNATIONAL RELATIONS
The major changes which have occurred in succession in the world since the start of the
1970s, including new developments in U.S.-China and U.S.-Soviet relations, unrest and
reform of the international monetary system, the fourth Middle East war and the ensuing oil
crisis, intensification of various difficulties in the international economy, the drastic
changes in the situation in Indochina etc can be viewed at as outputs of the wills of the
sovereign states and hence can be justifiable inlight of the consent theory of the
international law.
A detailed justification to the consent theory being the jurisprudence of the current international
relations in light of the following scenario. Since the mid-1960s, the Eastern and Western blocs,
centering around U.S.-Soviet relations, have initiated moves to begin improving their mutual
relationship. Particularly, after the start of the 1970s, the United States and the Soviet Union
have begun negotiations with a view to avoiding military confrontation and the outbreak of
nuclear war, and have concluded various agreements with the objective of improving their
bilateral relations.41 In Europe as well, various agreements have been reached between the East
and the West, including the treaty between the Federal Republic of Germany and the U.S.S.R. In
Asia, the progress made in U.S.-China relations since 1972, together with the improvement in
Japan-China relations, has been a factor in the stabilization of the situation in the region.
However, international relations in Asia remain complicated by the presence of factors for
potential instability in the Korean Peninsula and South east Asia, and of the continued Sino-
Soviet conflict.
However, the theories of auto limitation and consent may not hold good in justifying all the
global phenomenon taking place right now. For example,Progress in the development of nuclear
weapons and the means of their delivery has, in particular, brought about fundamental changes to
41
38
the concept of security. Today, not a single country can assure its own security, in the
conventional sense of the word, in the event of a total, nuclear war. Neither the United States nor
the Soviet Union can be considered an exception.The United States and the Soviet Union,
however, each have the capability to carry out large-scale retaliation and to destroy the enemy
even after suffering a nuclear attack. (This is usually called the "second-strike" capability, and
nuclear-powered submarines armed with nuclear missiles constitute one of the effective elements
of such capability.) This fact makes it difficult for nuclear war or a conventional war which
could lead to nuclear war to break out between the United States and the Soviet Union or
between the East and the West, which include allies of the respective superpowers. This effect is
referred to as " nuclear deterrence." Therefore, this phenomenon of nuclear deterrence can be
portrayed as an aspect of positive law rather than that of the auto limitation theory, as in this case
the super powers are acting as the real sovereign powers on the international platform and
impliedly forcing their will on the other nations in the world.
States obey international law due to a variety of factors. It cannot be said that the true basis of
international law lies neither in the consent amongst states nor exclusively in natural law. It is
mainly due to their “self interest” that States obey international law. A state recognizes the fact
that it is better to obey international law rather than to lose all the advantages gained from it.
Thus in cases where there are reciprocal benefits in question, a State will hesitate to break the
law. Thus most rules in international law are based on identical or reciprocal benefits of both the
nations. Thus “self interest”42 seems to be the basis for compliance with international law. In
Lissttzyn’s views, there are three reasons for obeying the law: self interest, sense of moral
obligation and habit. Man as a reasonable human being will obey international law as long as it
is in his self interest
8. CONCLUSION:
The period from the Peace of Westphalia to the congress of Vienna in 1815 is considered as a
period of formation of classical international law. The period witnessed the breakup of the feudal
state system and the formation of society into free nation states.The congress of Vienna ended 25
42
University Press, 2006. Donald Markwell, Keynes and International Economic and Political Relations, Trinity
Paper 33, Trinity College, University of Melbourne.
39
years of the Napoleonic War in Europe. It was convened by four European powers which had
defeated Napoleon with the main objective of establishing a balance of powers of political forces
in Europe which would ensure lasting peace and maintain a status quo in Europe by repressing
political warships.International law greatly expanded during the rest of the 19th Century mainly
due to the rise of powerful states in and outside Europe, the expansion of European influence
overseas and modernization of the world transport, the greater destructiveness of modern warfare
and influence of new inventions. All these made it urgent for international societies of states to
acquire a new system of rules which would regulate in an ordered fashion conduct of
international states affairs. There was remarkable development in the law of war and neutrality
and great increase in adjudications in international arbitral tribunals as provided sources for
rules.
The current international relations are hence an interplay of various tools of diplomacy , trade
and global economic phenomenon. However a holistic analysis regarding the same demonstrates
the fact the they more or less an output of the hypothesis drawn by various theories of the
international law in general and the auto-limitation theory and the consent theory of international
law in specific.
The end of the colonization era and the emergence of sovereignty as the ground rule of
international law emphasizes on the fact that it is the free will and the recourse opted by the
sovereign state that decides its strategic relations globally. It can either enigmatically exercise its
sovereign powers, or limit the same for the purposes of diplomatic actions or exercise its free
consent to create a law binding on itself and the other parties involved. The latter events in
succession of the same further justifies the fact that while the natural law theory still stands as
the basis of the equity principles and the other common law doctrines and the positive law theory
justifies the concepts of sanction and the international law enforcement mechanisms, the auto
limitation theory and the subsidiary consent theory forms the modern jurisprudence of the public
international law.
40

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DAMODARAM SANJIVAYYA NATIONAL LAW

VISAKHAPATNAM, A. P., INDIA.

THE THEORIES OF PUBLIC INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW

NAME OF THE FACULTY:

DR. ARUNA KAMMILA

NAME OF THE STUDENT:

KODURI LAKSHMI PRAHARSHITHA

PROJECT TITLE: THE THEORIES OF PUBLIC INTERNATIONAL LAW

 To understand the conceptual basis of International law.

 Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 American

 O'Connell, Mary Ellen. "Symposium on Method in International Law". The American

SIGNIFICANCE OF THE PROJECT:

ACCORDING TO TORSTERN GILL,

2. HISTORICAL DEVELOPMENT AND EVOLUTION OF PUBLIC

It was the evolution of the concept of an international community of separate, sovereign, if

3. THE THEORY OF NATURAL LAW--- THE BASIS FOR THE EVOLUTION OF

3.1. THE PRINCIPLES OF NATURAL LAW:

3.2 FURTHER EVOLUTION OF THE INTERNATIONAL LAW ON THE LINES OF

Francisco’s lectures were preserved by his students and published posthumously. He

Oxford 2010 p. 3-13

3.3 CRITICISM OF THE NATURAL LAW THEORY

3.4 CASE ANALYSIS:

CASE NAME- The Continental Shelf CASE

PARTYS- Libyan Arab Jamahiriya vs. Malta

FACT OF THE CASE-

Kissinger". Political Psychology. 3 (3/4): 1–33.

Questions before the Court

4. LEGAL POSITIVISM---BASIS OF THE POSITIVE THEORY OF THE PUBLIC

4.1 POSITIVISM AS A THEORY OF PUBLIC INTERNATIONAL LAW

According to positivists, law enacted is by appropriate legislative authority is binding. The

4.2 CHIEF EXPONENTS OF THE POSITIVE INTERNATIONAL LAW AND THEIR

Positivism has been objected to a number of grounds

4.3 CRITICISM OF POSITIVIST THEORY OF INTERNATIONAL LAW:

5. In contemporary law, treaties and customs cannot be considered as only source of

4.4 CASE ANALYSIS

CASE NAME- The Charming Betsy case

PARTIES- Murray Vs. The Charming Betsey

1. Charming Betsy canon is a principle of interpretation applied in interpreting

FACT OF THE CASE-

5. CONSENT THEORY –THE RULE OF PUBLIC INTERNATIONAL LAW

Kissinger". Political Psychology. 3 (3/4): 1–33.

5.1 OPPENHEIM’S VIEWS

According to Oppenheim “common consent” is the basis of international law as a legal

5.2 JELLINEK’S VIEWS

5.3 ANZILOTTI’S VIEWS

5.4 CRITICISMS OF THE THEORY OF CONSENT

Kissinger". Political Psychology. (3/4): 1–33.

6.1 CRITICISMS OF THE THEORY OF AUTO LIMITATION

6.2 CASE ANALYSIS

CASE NAME- Asylum Case

PARTIES- Columbia vs. Peru

YEAR- 1950, International Court of Justice.

FACT OF THE CASE-

 Whether there is an custom so established that it is binding to allow Columbia to grant

CASE NAME- Anglo-Norwegian Fisheries Case

PARTY-United Kingdom v. Norway, ICJ

FACT OF THE CASE-

7. THEORIES OF INTERNATIONAL LAW AND THE RELEVANCY TO THE

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