Project Report PIL Morality in International Law: Name: Aditi Indrani 2013004

Project Report
PIL
Morality in International Law
Name: ADITI INDRANI

2013004
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VIZAG.Page 1
TABLE OF CONTENT
1.
2.
3.
4.
5.
6.
7.
Introduction
International law- problem and solution
Formulation of international law
International Trade and Morality
International Law and Morality: The Alternative Approach
Conclusions
Bibliography
INTRODUCTION
This project Morality and International Law is an endeavor to scrutinize the influence of
morality in the development of international law. Analysis of the existing jurisprudence suggests
that very little material is available on the subject and same is in its nebulous stage. One of the
reasons behind this may be that doubts still exist about the validity of international law i.e.
whether it is a law or not? This doubt led Austin to tag international law as positive
international morality. He wrote that:
Grotius, Puffendorf, and the other writers on the so-called law of nations, have
fallen into confusion of ideas: they have confounded positive international
morality, or the rules which actually obtain among civilized nations with their own
vague conceptions of international morality as it ought to be1.
Many believe that until there is an objective affirmation among the scholars about the true nature
of international law, the role of morality in international law may not be discussed. However, I
believe that this approach is completely wrong. The validity of international law and the
significance of morality in its development are two intertwining topics and the study of one,
independently of other does not serve any purpose.
The aim of this project is to show that the concept of international law has changed since the
term international law was first coined by Bentham and morality played a very significant role
in its fruition. In fact, it is because of the moral concepts associated with it, that, certain
important concepts of international law today are considered to be legally binding at all. Since
the subjects of international law are very, I will take up few important ones among them and will
show with their help as to how and to what extent does morality play a role in international
law. The project is divided into five chapters. The first chapter will introduce the topic and will
put forth the problems which arise when one attempts to study the role that the morality plays
in relation to international law. Chapter II, III and IV will provide a case-study of various fields
of international law where morality (both subjective and objective) comes in contact with
international law and influences it. The final chapter will sum-up the topic and provide the
1 Austin, The Province of Jurisprudence Determined, 1861 at p. 187.
authors conclusions about the same.
International law- problems and solution

Man is a social being. He does not live his life in isolation. He interacts with other members of
society so as to earn the basic necessities that sustain life on the planet. This interaction of men is
governed by law which is laid down by the State. Moreover, these laws also define and govern
the manner in which the State interacts with its subjects. Since centuries man has understood law
to be rules which are laid down by a proper legislature and executed by an executive.
Moreover, men have always perceived a legal society to have a judicial body that will provide
for interpretation of laws and settlement of their disputes. As has been stated, in systems of
municipal law the concept of formal source refers to the constitutional machinery of law-making
and the status of the rule is established by constitutional law 2. For this reason it is considered to
be valid. However, such a formal structure is absent in the international arena. Largely, as a
result of its very nature (that is, the fact that it is comprised of many sovereign States co-existing)
the international community is characterized by the absence of any defined sovereign or formal
structure comparable to that present within national jurisdictions. This issue has been a subject of
debate for a very long time and I believe that to understand the role of morality in international
law, and it is not necessary to debate it here as well. As such, for the purpose of this project I am
assuming that international law is a valid law.
It is clear that States have become more and more dependent on each other, a phenomenon
perhaps largely attributable to the growing institutionalization of the international community3.
This so-called interdependence requires regulation.
Although this is sometimes achieved by way of agreements reached between individual States
the lacuna is also filled through the recognition by individual States of a so-called international
conscience which imposes legal regulation on the actions of States and in doing so ensures
2 I. Brownlie, Principles of Public International Law (Fifth Edition, 1998), p. 1.
3 J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties, (1974), pp. 35, 165.
[Mentioned in Rafael Nieto-Navia, International Peremptory Norms (Jus Cogens) And International
Humanitarian Law
international respect for basic social values 4. Similarly this is reflected in the so-called
international moral infrastructure which itself is subject to normative disciplines 5. The provisions
of international law develop or are created not by an international legislator or sovereign, but
very generally through the consensus of States which have recognized that certain values
amount to valid legal norms which must be respected as between States In this regard, it is
possible to talk of the validity of international law. However, sometimes it becomes very
difficult for countries to reach such consensus, mainly because the definition of values in some
cases may come in conflict with each other. Even, then it is clear that moral obligations play a
very vital role in solving issues of international importance.
4 Based on this moral code international recogniti on and respect for certain basic social values can
mean that particular agreements reached between a limited number of States become valid for all.
Sometimes, it is called customary international law and sometimes higher principles of international
law known as jus cogens.
5 According to F. Hauriou the best way an institution can express itself is not legal but moral and
intellectual

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Project Report

Name: ADITI INDRANI

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VIZAG.Page 1

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VIZAG.Page 2

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VIZAG.Page 3

authors conclusions about the same.

International law- problems and solution

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