Vous êtes sur la page 1sur 20

JURISPRUDENCE I

INTERNATIONAL LAW AS THE VANISHING


POINT OF JURISPRUDENCE
SUBMITTED BY:
AKASH BAGHAR
ROLL NO. 11, SECTION C
(Semester V)

SUBMITTED TO:
Mrs. Sreejaya Patil

HIDAYATULLAH NATIONAL LAW UNIVERSITY,


RAIPUR
DATE OF SUBMISSION: 18th October 2016

DECLARATION OF ORIGINALITY

I hereby declare that the project work entitled International Law as the vanishing point of
Jurisprudence submitted to the Hidayatullah National Law University, is a record of an
original work done by me under the guidance of Dr. Kaumudhi Challa, Faculty Member, and
this project work has not performed the basis for the award of any Degree or diploma/
associate ship/ fellowship and similar project if any. Any help taken from sources has been
properly cited as footnotes and is added into the bibliography.

Akash Baghar
Roll. No. 11
Batch XI

CERTIFICATE OF ORIGINALITY

I hereby declare that the project work entitled International Law as the vanishing point of
Jurisprudence submitted to the Hidayatullah National Law University, is a record of an
original work done by me and this project work has not performed the basis for the award of
any Degree or diploma/ associate ship/ fellowship and similar project if any. Any help taken
from sources has been properly cited as footnotes and is added into the bibliography.

Mrs. Sreejaya Patil

ACKNOWLEDGEMENTS

I owe a great many thanks to a great many people who helped and supported me during the
writing of this project.
My deepest thanks to Mrs. Sreejaya Patil, the Guide of the project for guiding and correcting
various documents of mine with attention and care. She has taken pain to go through the
project and make necessary correction as and when needed.
My deep sense of gratitude and thanks and appreciation to the helpful seniors at Hidayatullah
National Law University for their support and guidance.
I would also thank my Institution and my faculty members without whom this project would
have been a distant reality. I also extend my heartfelt thanks to my family, friends and well
wishers.

LIST OF CASES

1. Rudal Sah vs. State of Bihar, (1983) 4 SCC 141


2. Sarwan Singh vs. State of Punjab 1957 AIR 637

LIST OF ABBREVIATIONS

&

And

AIR

All India Reporters

Anr

Another

e.g.

Example gratia/ for example

ed.

Edition

etc.

etcetera

i.e.

That is

Id.

Ibidium/ from the above footnote

Jour

Journal

PAP

Project affected people

SC

Supreme Court

Supra

From the same footnote

v/vs

Versus
4

www

World wide web

TABLE OF CONTENTS
DECLARATION OF ORIGINALITY.........................................................................................................I
CERTIFICATE OF ORIGINALITY...........................................................................................................II
ACKNOWLEDGEMENTS.......................................................................................................................III
LIST OF CASES.......................................................................................................................................IV
LIST OF ABBREVIATIONS....................................................................................................................IV
INTRODUCTION.......................................................................................................................................1
RESEARCH METHODOLOGY................................................................................................................1
PROBLEM................................................................................................................... 2
RATIONALE................................................................................................................. 2
OBJECTIVES OF STUDY.................................................................................................. 2
NATURE OF STUDY....................................................................................................... 2
SOURCES OF DATA....................................................................................................... 2
REVIEW OF LITERATURE................................................................................................. 3
INTRODUCTION.5
THEORIES OF AND BY VARIOUS THEORISTS AND THINKERS....................................................6
FACTORS DECIDING THE INTERSECTION OR DIVERSION............ERROR! BOOKMARK NOT
DEFINED.
THE WILL OF THE SOVERREIGN............................................................................... 7
TRIUMPH OF POLITICS............................................................................................. 8
FROM RULES TO PROCESS...................................................................................... 9
INTERNATIONAL LAW AS THE VANISHING POINT OF JURISPRUDENCE, FITCHBERG'S
THEORY...............10
CONCLUSION.........................................................................................................................................11
BIBLIOGRAPHY.....................................................................................................................................13
BOOKS AND PAPERS................................................................................................... 13

CHAPTER I
INTRODUCTION
Ever since Grotius first suggested that desire for esteem from the broader global community
motivates States to comply with international law, identifying just how this desire effects
compliance has proven illusive. The ability to harness the pull of international society is
important to virtually all treaty formation and compliance. It is especially important in the area of
human rights regimes where other compliance forces such as coercion, are rarely, if ever, used.
Recent empirical evidence, however, suggests that human rights regimes are ineffective. Indeed,
in many situations this evidence suggests that the human rights practices f States that ratify such
treaties may actually worsen after ratification. The need to understand how, or whether, the pull
of international society influences state behaviour, thus, as never been greater. This Article
provides an initial detailed model of the forces motivating human rights treaty creation and
compliance by drawing on evolving expressive law literature. It begins by setting forth a needreinforcement model that explains how normative pressure influences rational actors to alter their
behaviour and beliefs while seeking regard from other group members. Next, the Article applies
this model to State treaty ratification and compliance, and describes how treaties exert expressive
effects that lead rational States to change their behaviour because of their desire to be part of and
esteemed by the global community. The Article then demonstrates how an expressive theory
harmonizes the contributions of divergent international law scholars into a more complete theory
of why States enter into and obey international law. In doing so, it provides a framework from
which regime design implications can be drawn.

RESEARCH METHODOLOGY
This research project is largely based on secondary & electronic sources of data. Books, case
laws, journals & other reference as guided by faculty of Jurisprudence are primarily helpful for
the completion of this project.

PROBLEM
The project deals with the age old issue of whether international law is the vanishing point of
jurisprudence or not.

RATIONALE
The rules of international behavior are taken as given, transhistorical. Inasmuch as they are law,
this is simply because they are accepted . . . as legally binding they are law only because we
say they are law, rather than because of their form or essence. Rules, here, are deemed central:
their lawness is epiphenomenal.
OBJECTIVES OF STUDY

To study the concept of International law with respect to jurisprudence.


To discuss theories of various thinkers and theorists regarding the concept.
To test whether International law is the vanishing point of jurisprudence.

NATURE OF STUDY
This research project is Non-Doctrinal in nature since it is largely based on secondary &
electronic sources of data and also since there is no field work involved while producing this
research and it largely involves study of various theories and comparison from different books,
journal and other online sources it is not empirical in nature.

SOURCES OF DATA
Data that were used for the completion of this research project are all secondary sources of data
ranging from books, journal, articles and other online sources and as far as case laws are
concerned these cannot be said to be primary sources since they are not first-hand information or
judgment reports but a modified form found in books or journals.

REVIEW OF LITERATURE
1. VD Mahajans Jurisprudence & Legal Theory, V Edition This book has been referred to
understand the concept of International law by various theorists.
2. Between Equal Rights : A Marxian Concept of International Law: This book has been
referred to understand the relationships between International law and Jurisprudence in
general.

CHAPTER II
THEORIES BY VARIOUS THINKERS AND JURISTS REGARDING
INTERNATIONAL LAW IN JURISPRUDENCE
Given the vast and growing literature on international law1, it is remarkable how few systematic
attempts have been made to uncover the fundamental nature of such law as a social phenomenon.
This poverty of theory has not gone unnoticed. The vanishing point of jurisprudence, for
example, is how T.E. Holland described international law.2 Richard Falk has commented that
most international lawyers, whether inside or outside of universities, profess to be antitheoretical, often contending that theory is a waste of time in legal studies. 3 In B.S.Chimnis
formulation, the eld of international legal theory still gives the appearance of a
wasteland. There are encouraging signs of a growing conscious-ness of theoretical issues in the
eld. The tradition of blindness, even antipathy, to theory, however, still weighs heavy in
international law.
As Koskenniemi points out, though discussion on theory about inter-national law has become
a marginalized occupation, this has not always been so. It is no coincidence that the historic
decline of the jurisprudential science of international law is coterminous with the spread of
international law as a global system. Early modern writers were theorizing and expressing a
developing system, in which new social forces were coming to the fore. International law was a
function of a changing world, and it was not possible to disentangle policy from social
1 It is estimated that 80,000 books on international law had been published by 1967,and that currently 700 books and
3,000 articles on international law are published annually (Malanczuk 1997, p. 8).

2 Famously quoted as the epigraph to McDougal et al. 1968, p. 188.

3 Falk 1970, p. 8.

explanation. The formulation that the theory and history of international law waned even
though the law itself waxed is misleading. The very historical triumph of inter-national law lay
behind the diminution of international legal science.
Despite perhaps because of the absence of international legal theory or analysis that can
address the fundamental question of international laws nature, there is no lack of dentitions of
the subject matter. These denitionspurport to answer the question What is international law?,
but are generally so thin or self-recursive that they tell the reader very little. Thus for example,
international law is the system of law which governs relations between states 4 and it is usually
dened to include some non-state actors as well. 5 This rule-approach denes a discrete and
bounded arena of internationallaw as a body of rules, thus insisting on a clear-cut distinction
between lawand non-law. This kind of classic, textbook denition represents a widelyheld
perception and the classical view, and it tells us almost nothing ofthe underlying nature of
international law.6
Malanczuk is one textbook writer who seems aware that apparently innocent dentitions imply
philosophical positions. He points out, for example, that the classic (pre-World War I) dentition
of international law as the law that governs the relations between states amongst each other
implies the positivist doctrine that only states could be subjects of international law, 18 which
did not reect reality even at the time. Without apparent censure or approval, he points out that
some textbooks avoid these issues in that they refrain from any attempt to dene international
law and enter directly into the discussion of its sources indeed, Malanczuk himself avoids
dening his subject matter, limiting himself to observations about its scope.
4 Akehurst 1987, p. 1.

5
Higgins 1994, p. 5.

6
Higgins 1994, p. 2. Higgins herself holds an opposing view, baldly opening one book with the claim that
[i]nternational law is not rules (Higgins 1994, p. 1).

Malanczuks hesitancy about providing a dentition comes in his updated version of Akehursts
classic textbook, which in contrast opened with dentition. 7 It is interesting that the reader learns
nothing more, less or different from Malanczuks description of the subjects and scope of
international law, than from Akehursts denition of international law itself. These dentitions, in
other words, generally answer the question What are the subjects of inter-national law? rather
than What is international law?
In as much as international law is the vanishing point of jurisprudence, inasmuch as its nature
as law remains opaque while its role as a regulatory mechanism is retained, this historical
contingency is inevitable. International society regulates itself in various ways, it is claimed, and
in the modern age we happen to call that regulation law. It is to Bulls credit that unlike so
many writers, he sees this implication clearly and does not shrink from it.

It should be pointed out that this thin conception of law is not conned to writers of textbooks,
who are mostly concerned with the technical-regulatory rules, nor to writers such as Bull, writing
from outside international law. Even writers such as Hans Kelsen and H.L.A. Hart, precisely
concerned with the jurisprudence of international law, agree on the basic formulation.
Thus for Hart, as for the textbook writers, international law is law despite its lack of centrally
organized sanctions or secondary rules that specify procedure for adjudication8 as a set of rules
of conduct that are generally observed and regarded as valuable by states. Although it differs
greatly from municipal law, what Hart sees as crucially shared is the idea of ought-the idea of
law as a form of social regulation. International law is clear he calls international laws social
rules9 the lawness, however, is unexamined.

7
Akehurst 1987, p. 1.

8
McCarthy 1998, pp.1546; see also Paust 1979, for a more thorough analysis.

Similarly, Kelsen defends the law-ness of international law inasmuch as it is a coercive order,
a set of norms regulating human behaviour by attach-ing certain coercive acts (sanctions) as
consequences to certain facts, as delicts, determined by this order as conditions, and if, therefore,
it can be described by sentences whichmay be called rules of law. Again, the substance of
the dentition here revolves around international laws regulatory behaviour. Its lawness, however,
is deemed distinct from this, and derives from the fact that it is called law. As one critic says,
Kelsen pro-vides no methodology for analysis of the difference between a moral or a legal
social order.

In all of these denitions, what is evident is a failure to systematically analyse or even take
seriously the specicity of the legal form. Hart makes this explicit in his claim that the analogy
between international and municipal law is one of content not of form the content here being
the shared normative obligation contained in both sets of social rules. If the legal form is not
shared between international and municipal law, then they have no legal essence in common, and
the only thing that makes them both law is that they are both called law.
.

DECIDING FACTORS
The will of the sovereign: (Austins theory)

How far can collective decision-making provisions in sovereign bonds be used to facilitate debt
workouts? Another way of asking this question is to inquire whether, and to what extent, these
clauses can be used to replicate the features of an international bankruptcy code applicable to
sovereign debtors along the lines recently proposed by the First Deputy Managing Director of the
IMF, Anne Krueger.49 As articulated by Ms. Krueger, the principal objectives of an international
bankruptcy system would be:
9
Hart 1961, p. 231.

to shield the sovereign debtor from disruptive litigation by individual creditors while the
debt workout is underway (the automatic stay feature)
to ensure that a debt restructuring plan that is acceptable to the large majority of creditors
will bind any dissenting minority (the cramdown feature);
to facilitate the sovereigns ability to attract new financing from private sector sources
during the workout period (the debtor-in-possession or DIP financing feature); and
to permit a greater level of coordination among the different types of creditors (banks,
bondholders, bilateral creditors, trade creditors and so forth) caught up in a sovereign
debt problem (the coordination feature).

The triumph of politics:


Science and politics approach the issues of wilderness allocation differently. From the
perspective of science, a good wilderness area is an ecosystem where nature takes its course
without human manipulation or interference. For that to happen, you have to have all the
ecosystems natural plants and animals, and you have to have them in numbers great enough to
support healthy genetic diversity. If a good wilderness area is complete and undisturbed, a good
wilderness system includes representative examples of each ecosystem type. In short, individual
wilderness areas should be natural. The composite wilderness system should be ecologically
representative.
From the perspective of politics, a good wilderness area is one that garners more support if
preserved in a relatively natural state than if devoted to some other use. A good wilderness is an
area that has high value for primitive recreation and scenic appreciation, and low value for
alternative uses like mining, power generation, farming, timber harvest, livestock grazing and
golf. From the perspective of politics, a good wilderness system includes those areas which are
more valuable when preserved as wilderness than when devoted to some other use. So, which
kind wilderness system do we have? The scientists representative sample of complete natural
8

ecosystems? Or the politicians collection of areas not very valuable for anything else? To
anyone acquainted with the National Wilderness Preservation System, the answer is obvious.
Some years ago, George Davis, a leading advocate of ecological representation in the wilderness
system, answered the question with some precision. Davis found the wilderness system
adequately represented 81 of the nations 233 ecosystems (Davis 1984). In their state-ofknowledge presentation, The Contribution of Wilderness Areas to Conservation GoalsNow
and in the Future, Barbara L. Dugelby and Dave Forman, reported that 157 of 261 ecosystems
are now represented in the wilderness system, but only 50 of them in wilderness areas greater
than 100,000 hectares. These data all confirm what history teaches: Wilderness areas have been
designated from what is left over after areas valuable for other purposes have been exploited. As
a result, our National Wilderness Preservation System is anything but systematic in its
representation of American geology and biology. In short, wilderness allocation in the United
States reflects the prescriptions of politics over the sensibilities of science
From rules to process:
In recent years there has been a welcome increase in the attention paid by behavioral scientists to
the legal system. A great deal of it-like much jurisprudential thought-has been process oriented.
Theorists have been concerned with the way in which decisions are made-in whether precedent,
race, education, social background, personality, or some other factor predisposes a judge toward
one side or another in particular controversies. Scholars have, of course, been extremely
interested in the output of legal institutions, but they have often limited their definition of output
to results or decisions and have not concerned themselves with another kind of formal outputrules of law. A decision (or result) is a unique application of preexisting rule. A rule is a general
statement capable (or at least apparently capable) of application to more than one concrete
situation. Rules may be as important a product of legal institutions as decisions. A great number
of institutions make up the legal system (including courts, legislatures, and administrative
bodies); these institutions are engaged in making and applying law, in producing both decisions
and rules. Some fresh attention to rules-how they change, what institutional regularities they
exhibit, what their relationship is to actual behavior of institutions, and what life-cycles they
follow-may illuminate some social characteristics of legal institutions left dark in the course of
research and theory devoted to the decision making process.
9

International Law of Jurisprudence


This article analyses H.L.A. Harts concept of international law from the perspective of
analytical jurisprudence and in light of the state of contemporary international law. The article
challenges Harts view that international law is law but not a legal system. Hart arrives at this
conclusion on the basis of a comparison of the international legal order with the municipal legal
system. This comparison is distorted by Harts general focus on private law and criminal law and
becomes less convincing when constitutional law is added to the equation. As a consequence,
Harts methodological approach is inconsistent and should be modified. Rather than asking
whether international law resembles municipal law in form, it should be asked whether
international law encompasses legislative, executive, and judicative structures which are able to
perform the same functions as the legal order of a nation state, and which thereby overcome the
defects of a primitive social order. Against the background of this modified analytical
framework, Harts analysis is revisited in light of recent developments and changes in the
structure of international law at the beginning of the 21st century.
International Law is the Vanishing Point of Jurisprudence
This is a largely critical review of Professor Aaron Fichtelbergs philosophical analysis of
international law. The centerpiece of the books affirmative agenda, a non-reductionist
definition of international law that purports to elide various forms of international law
skepticism, strikes the reviewer as circular, misguided in general, and, in its application to
substantive international legal issues, difficult to distinguish from a rote form of legal positivism.
Law at the Vanishing Points avowed empirical methodology and critical agenda, while largely
unobjectionable, offer little that has not been said before, often with equal if not greater force. I
commend the authors effort to bring the professional philosophers toolkit to bear on the
perennial questions about international laws reality and efficacy, and the authors philosophical
aptitude emerges clearly in the work. But I doubt that many readers will find the non-reductionist
definition particularly helpful in this regard: it is unclear what the philosophical excursions in
Law at the Vanishing Point add to the continuing debates about international law. The need for
serious and legally informed philosophical attention to the manifold questions subsumed by
international legal skepticism has sadly remained, with few and partial exceptions, unchanged
10

since H.L.A. Hart explored the issue in his canonical 1961 work, The Concept of Law, only to
see it largely neglected by a subsequent generation of legal philosophers.
Law at the Vanishing Point, by Aaron Fichtelberg
The Department of Sociology and Criminal Justice at the University of Delaware, has a dual
agenda: first, to discredit certain commonplace skeptical claims about international law; and
second, to defend a non-reductionist definition of international law,1 one that seeks to disarm
these forms of skepticism, avoid reference to international laws functions, and show that there
is a limited need for theoretical foundations for international law. The two parts of this agenda,
of course, interrelate. Yet the latter, I think, proves deficient in several respects, while the former
partially succeeds but owes its force more to relatively familiar replies to international legal
skepticism than to the non reductionist definition, which, in practice, proves difficult to
distinguish from a form of legal positivism.
The authors replies to international legal skepticism, in contrast, strike me as strongly redolent
of constructivism in international relations scholarship and the views of Louis Henkin and
Harold Koh in international legal scholarship. Skepticism about international lawits existence,
nature, efficacy, explanatory value, predictive power, and normative force, all distinct issues
despite their frequent conflation into a confused indictment of the entire fieldis a perennial
albatross for international lawyers. A student treatise aptly informs those new to the field that
No other area of law is compelled to justify its very existence, and yet, international law seems
condemned to perpetually do so. It is not, of course, an anthropomorphic international law that
is saddled with the Sisyphean task of replying to these oft recycled and superficially repackaged
skeptical critiques; it is international lawyers and, almost always, academics. It is telling that few
practitioners of international law suffer from an existential professional crisisfor this particular
reason at any rate. From one perspective, the author may therefore be right to say that for most
functioning legal systems, theory is a sideshow, separate from the practical activity of actual
lawyers.
There is something to be said, for example, about who should bear the burden of proof as to most
forms of international law skepticism; the simple fact is that thousands of people, in diverse
11

sociopolitical contexts, legal systems, and professional settings, practice international law daily
and get paid, often handsomely, for it. The U.S. State Department, too (and hardly alone
among foreign ministries), sees fit to employ hundreds of international lawyers to advise it on
how to create, influence, apply, and interpret international law or obligations. These facts about
the world would seem to require a compelling alternative explanation if it were true, as a strong
version of descriptive realism maintains, that international law is only epiphenomenal
In the second term of President George W. Bushs tenure, for example, within an administration
often criticized for its dismissive attitude toward international law, John Bellinger III, legal
adviser to the State Department, and William Haynes II, general counsel to the Defense
Department, chose to invest government resources in producing a joint letter-brief to the
International Committee of the Red Cross (ICRC),9 a sui generic international nongovernmental
organization (NGO). They did this in part to record the administrations disagreement with the
ICRCs proffered evidence of, and methodology for discerning, customary international
humanitarian law (IHL).

CONCLUSION
Foreign relations depend on legal order, operate within a legal framework, and require legal
principles and concepts that influence policy and limit choices. To be sure, the United States
derives benefits from international legal rules and agreements with other states. Legal rules keep
international society functional, contribute to economic order and political stability, and provide
a basis for common ventures and mutual intercourse. Given that international law serves to limit
12

the actions of all governments, it therefore enhances the security and independence of the United
States in its dealings with other states. International legal rules establish common standards
where they are deemed by states to be desirable and make more predictable what behavior to
expect from states in their relations with each other. That is no less true for the United States in
this age of globalization and increasing interdependence.
But international law also limits the freedom of countries to act in its foreign affairs. The United
States is obligated to certain restraints, irrespective of what its government might like to do when
the time comes to act. Political arrangements legitimized by formal agreements are more difficult
to unravel or modify. The predictability of state behaviour established by international law means
that countries are not free to be disorderly or promote changes on their own whim. To foster the
security and independence of its own territory and limit the conduct of other governments, the
United States must accept corresponding limitations on its own behaviour. To secure the
confidence accrued from law, the United States must consent to being restricted in its ability to
frustrate the expectations of other states. U.S. foreign policy therefore evolves in tandem with
how international legal rules are regarded. Each successive administration builds its foreign
policy on the legal framework constructed by its predecessors. Since World War II, U.S. foreign
policy has moved slowly but perceptibly away from pragmatic, nationalist principles toward a
more legalist, international doctrine. With the end of the Cold War, this tendency has accelerated.
In the early twenty-first century, U.S. foreign policy was moving toward more universal values,
bound by increasing legal commitments in formal multilateral agreements.

13

BIBLIOGRAPHY
BOOKS AND PAPERS
1.

Jackson, Robert H. 1987, Quasi-States, Dual Regimes, and Neoclassical Theory: International
Jurisprudence and the Third World, International Organization, 41, 4:519549.

2.

Anand, R.P. (ed.) 1972, Asian States and the Development of Universal International Law ,Delhi: Vikas
Publication.

3.

Hart, H. L. A. (1961; 1994, 2nd ed with Postscript). The Concept of Law. Oxford: Clarendon Press. ISBN 019-876122-8.

4.

Rawls, John (1999). A Theory of Justice, revised ed. Cambridge: Harvard University Press. (Philosophical
treatment of justice).

5.

Paust, Jordan J. 1979, The Concept of Norm: A Consideration of the Jurisprudential Views of Hart, Kelsen
and McDougal-Lass well, Temple Law Quarterly 52: 949.

14