THEORIES OF

INTERNATIONAL LAW
 INTERNATIONAL LAW TODAY

• Multidimensional development in the field of international law

• The Eurocentric character of international law has been gravely weakened in the last sixty years or so and the
opinions, hopes and needs of other cultures and civilizations are now playing an increasing role in the
evolution of world juridical thought.
• With the interplay of global forces it is important that international law is flexible enough to permit changes
• International law, however, has not just expanded horizontally to embrace the new states which have been
established since the end of the Second World War; it has extended itself to include individuals, groups and
international organizations, both private and public, within its scope.
 NATURAL LAW THEORY

• Most of the jurists of 16th and 17th century were of the view that the basis of any law is law of nature and
international law being part of law has the same basis and for the same reason is binding on the states.
• Natural Law- Ideal Law
• Normative in nature which differentiated right and wrong behavior of human.
• According to this approach, states, as members of universal community, are obliged in order to conserve
peace and security to act always in accordance with the principle that the common good of mankind is
paramount to their individual interest.
• Thus, international law was considered to be binding in nature by this school of thought because its basis
was natural law.
 POSITIVE LAW THEORY

• This school of thought was in vogue in the 19th century and was of the view that people would be bound to obey law if it was
created by appropriate legislative authority or sovereign irrespective of its being reasonable or unreasonable.
• Morality, ethics, Reason, Natural Law was rejected because they were vague and unscientific
• According to them, law must be analyzed empirically, irrespective of its ethical elements, i.e., law must be studied as it exists
and law is the command of the sovereign having sanction.
• Hart says that the rules of international law do not as yet constitute a ‘system’ but are merely a ‘set of rules’.
• This approach to law in society reached its height with Kelsen’s ‘Pure Theory of Law’
• For Kelsen international law is a primitive legal order because of its lack of strong legislative, judicial and enforcement
organs and its consequent resemblance to a pre-state society
 ACCORDING TO KELSEN

• International Law is valid if:

• The principles of international law can be traced back to the basic norm of the system, which is hierarchical
in the same sense as a national legal system.
• Norms created by international treaties and conventions
• Rules established by organs which have been set up by international treaties, for instance, decisions of the
International Court of Justice

Kelsen’s Monoism
 NATURAL LAW AND POSITIVE LAW DEBATE

• The discussion of Natural Law increased and gained in importance following the Nazi experience. It
stimulated a German philosopher, Radbruch, to formulate a theory whereby unjust laws had to be opposed
by virtue of a higher, Natural Law.
• Many of the ideas and principles of international law today are rooted in the notion of Natural Law and the
relevance of ethical standards to the legal order, such as the principles of non-aggression and human rights.
 REALIST THEORY

• According to Realist legal scholars, states adopt only international legal norms that either enhance their power, formalize the
subordination of weaker states, or that they intend to violate deliberately to their own advantage.
• International Law may thus address only peripheral matters that do not impact the states' power or autonomy.
• Realists believe that international politics in modern times generally recognizes no authority above the nation-state.
• Agreements among states are enforceable only by the agreeing states themselves.
• Reciprocity serves as the main tool to enforce agreements in international politics.
• Enforcement of an agreement is devolved to the parties themselves. Damaged parties have the option to respond with retaliatory
sanctions to a violation of an agreement thereby enhancing the deterrent and coercive effects of a stable balance of power
• The threat of reciprocal sanctions may be sufficient to deter violations, and so agreements can be enforced in international
politics.
 THIRD WORLD APPROACHES TO INTERNATIONAL LAW (TWAIL)

• Perceives international law as facilitating the continuing exploitation of the Third World through subordination to the West.
• International law was created during the colonial era and that it was used to legitimize the global processes of marginalization
and domination of the colonized people by Western powers.
• TWAIL scholars seek to change what they identify as international law's oppressive aspects, through the re-examination of the
colonial foundations of international law.
• They refuse to accept the universal character of the international legal system as it emerged solely from the European.
• International law tries to put a limitation of the Third World states’ sovereignty through transferring their autonomous powers to
international institutions controlled by the First World. Ex. Humanitarian Intervention.
• Indian Scholars : R.P.Anand, Upendra Baxi, B.S.Chimni
 FEMINIST THEORY OF INTERNATIONAL LAW

• Assumes the use of feminist theory as a basis for critical analysis, that is to show how the
structures, processes, and methodologies of international law marginalize women by
failing to take account of their lives or experiences

• A feminist approach takes as its central concern the position of women and denotes a
form of analysis. It takes gender as its primary organizing category, places women at the
center of inquiry, and works for an end to the oppression of and discrimination against
women.
 FEMINIST THEORY OF INTERNATIONAL LAW

• Women’s campaigning for the international legal system to address structural inequality
in global political, social and economic systems and to take account of particular
concerns, for example modern forms of slavery, human trafficking, gender-based crimes,
and the nationality of married women.
• The emergence of a global women’s movement gained impetus from the International
Women’s Year proclaimed by the United Nations (UN) in 1975 and subsequently
extended to the International Decade for Women, 1975–85.
 MAJOR ISSUES IN INTERNATIONAL LAW FROM A
FEMINIST PERSPECTIVE

Lack of representation of women interests - World and international politics are controlled by men. Very
little scope of representation of women interests like domestic violence, lack of political participation.
Reforms – CEDAW
Lack of women decision makers - No Women SG of the UN, Very less number of women judges in the ICJ
(4 out of 15)
Human rights violation different for both men and women. State-building, or post-conflict reconstruction are
all experienced differently by women and men. However, it is the male experiences and male knowledge
that are privileged and have shaped the framework for traditional legal inquiry and analysis. These are made
to appear objective, natural, and universal in contrast to women’s experiences that appear as exceptional,
deviant, and the other. Example GBV, genital mutilation, rape, trafficking, wartime rape.
 LIBERAL THEORY OF INTERNATIONAL LAW

• Contemporary liberal theory is grounded on the assumptions that people are morally equal and that each
individual should be free to pursue his or her own conception of the good life, constrained by the requirement
that one’s actions not cause harm to others.
• The subject of international law is state – very little opportunity for individuals to be part of the global order
through international law. Liberalism counters this place of international law by putting the individuals at the
center point of international law.
 MAIN FEATURES OF LIBERAL THEORY

Main features of liberal theory of international law

1. “Bottom –up” focus on the demands of individuals and social groups, and their relative power in society, as fundamental forces
driving state policy. For liberals, every state is embedded in an interdependent domestic and transnational society that
decisively shapes the basic purposes or interests that underlie its policies, its interaction with other states, and, ultimately,
international conflict and order.
2. Rejection of power politics as the only possible outcome of international relations; it questions security/warfare principles of
realism
3. Mutual benefits and international cooperation
4. The role of international organizations and nongovernmental actors in shaping state preferences and policy choices[1]
 MAIN FEATURES OF LIBERAL THEORY

Liberals assume that states are embedded in a transnational society comprised of individuals, social
groups, and substate officials with varying assets, ideals and influence on state policy.
The first stage in a liberal explanation of politics is to identify and explain explain the preferences of
relevant social and substate actors as a function of a structure of underlying social identities and
interests. They treat globalization, as transnational interdependence, material or ideational, among
social actors.
Such interdependence creates varying incentives for cross-border political regulation and interaction.
State policy can facilitate, block, or channel globalization, thereby benefitting or harming the
interests or ideals of particular social actors.
MARXIST COMMUNIST THEORY

• Classic Marxist theory described law and politics as the means whereby the ruling classes
maintained their domination of society.
• Classical International Law founded on the idea of Nation State and National states were
dominated by the capitalist class and would have to disappear in the re-organizing process.
• Professor Tunkin emphasized on new series of international legal ideas:
(a) principles of socialist internationalism in relations between socialist states,
(b) principles of equality and self-determination of nations and peoples, primarily aimed against
colonialism, and
(c) principles of peaceful coexistence aimed at relations between states with different social systems.
• Professor Tunkin defined international law as :
“the aggregate of norms which are created by agreement between states of different social systems, reflect the
concordant wills of states and have a generally democratic character, regulate relations between them in the
process of struggle and co-operation in the direction of ensuring peace and peaceful co-existence and freedom
and independence of peoples, and are secured when necessary by coercion effectuated by states individually
or collectively.”