Basis of International Law

The roots of international law go deep into history and evidence of treaties, immunities of
ambassadors, usages of war, etc. can be found in ancient Egypt, India, the Greek and Roman
empires. The present day international law owes its origin to the great jurist Grotius whose
work De jure Belli ac Paces (1625) lent legal basis to many areas of international relations. His
main idea is that there are certain eternal, unchangeable and independent rules of law which
have roots in human reason. This law of reason is called by him as Natural Law.

In the Grotian theory, there are three basis of international law: Laws of reason,
Customs, and Treaties. Emanating from his conception are two theories as to true basis
of international law:

a. Naturalist theory (Pufendrof): There exists a system of law which emanates from God
or reason or morals. Law of nations is only a part of law of nature. Hart explains that a
minimum content of law flowing from the immutable nature of man is that which is
necessary for survival of mankind. International peace and security being necessary for
survival of human kind, all laws relating to it are thus parts of law of nature. The theory
is criticised on the ground that it is too vague.

b. Positivist theory (Bynkershook): Only those principles may be deemed as law which
have been adopted with the consent of the States. Law is that which exists in fact. It is
that law which is enacted or followed by States (i.e. emanate from their own free will)
and is hence binding upon States. Customs and treaties come into existence from
express or tacit consent of States. The theory is criticised as all rules of international law
are not derived from customs and treaties. Further, a treaty may be binding on third
States as well, and, States in some cases are bound by general international law even
against their will.

c. Eclectic theory: The views taken by the naturalists and positivists are extreme views. A
theory giving equal importance to both the views appears to be correct. As to the true
basis of international law, contemporary sociological theories tend to support
Naturalism because they argue that international law is based on social
interdependence and aims at bringing about international social justice. Thus, natural
law underlies even at the positive law (customs and treaties) which is only an expression
of this social interdependence.