Public International Law ARNAB KUMAR DAS Port City International University, Chittagong, Bangladesh. SID: LLB 00305037

1. The Necessity of Natural Law as the Basis for International Law
070016117
Dr. Lang

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29 November 2010
IR 3041
1. Introduction
Currently, international law is “experiencing a legitimacy crisis,” largely
based on the idea of authority (Cutler, 133). While positive law at the state level
carries clear legitimacy through the sovereign of the nation derived from the
people, international law faces the problem of implementing comprehensive
policy on nations that see exterior restrictions as a threat to state autonomy
(Hommes, 62). As any law requires a source of legitimacy for moral and practical
success, international law requires a legitimate foundation in order to succeed.
This paper will show that natural law exists not only as the basis of positive
international law, but as the reason international law is possible. By recognizing
that natural law is essentially basic codified morality, and understanding that the
point of international law is to promote moral interactions between state actors,
it is clear that natural law is the basis for international law (Zurbuchen, 426).
This paper will rely on natural law theorists, particularly upon the contributions
of Grotius, Pufendorf, and Vattel, who form a meaningful progression in natural
law theory.
This paper will begin with a basic discussion of the general principles of
natural law, including a description of natural law, the link between natural law
and morality, and why natural law must exist. Next, a discussion of international
law and its definition, before considering how natural law and international law
meet in theory. This paper will then proceed to put forth a unique view on the
necessity of natural law as the foundation for international law on the basis of
establishing a system of morality before extrapolating upon the practical use of
this theory in terms of transnational corporations in the realm of international
law. The paper will conclude by reconciling the historical ideas on natural law in
international law theory with the new theory proposed, and include discussion
on how the new view improves on previous principles to become relevant for the
current state of international law considerations.
2. Natural law Theory
Natural law is a sort of law that “imitate[s] nature” as a form of law that
exists without the additional prescription of positive law (Mare Liberum, 22). The
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details of natural law are different for every theorist, but include similar
principles, like the golden rule (Mare Liberum, 45; Pufendorf, 61). This section
will proceed by examining the definition of natural law in terms of morality, the
inclusiveness of natural law, and the legitimacy of natural law, examining the
contributions of Grotius, Pufendorf and Vattel.
Grotius defined natural law in terms of the principles his model of natural
law espoused. These principles included, “mine and thine,” “obliged to keep our
promises,” “damages must be repaired,” and “breaches of natural law or other
law must be punished” (Prolegomena, 8). Pufendorf and Vattel had different
interpretations with Pufendorf defining natural law in terms of becoming a
“useful member of society,” and Vattel’s comprehensive definition—“those
[laws] that we derive from nature or those whose rationale is found in the
essence and nature of man, and of things in general” (Pufendorf, 35; Vattel, 474).
In practice, the definition of natural law is simple—natural law is codified
morality.
Natural law only encompasses the most basic of moral principles that
“should be obvious to reasonable men,” and while each of the preceding authors
differed on the scope of natural law, each agreed that it was based on the idea
that individuals “possess…the knowledge of good and evil”—conditioning for
right and wrong is not necessary as the conscience of every individual has an
innate idea of what is right and what is wrong (Edwards, 803; De Jure, 1.1, 8).
Individual knowledge of good and evil is essential in the necessary connection
between natural law and morality, as it predicates natural law as the basis for all
positive individual obligation.
It is important to realize that natural law exists equally for all individuals,
groups, and states (Hommes, 62). Vattel described it best stating that the “law of
nations is originally no other than the law of nature,” suggesting that all tenets of
natural law apply to nations through his concept of the law of nations; however,
natural law does not just extend to individuals and states (Vattel, 68). In his
work, Mare Liberum, Grotius argues that the Dutch East India Company had the
right to defend itself against Portugal when attacked, on the basis that the
company and the state had equal rights under natural law (Mare Liberum). This
argument suggests that all non-state actors are equally subject to the benefits
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and restrictions of natural law. Pufendorf viewed inclusiveness slightly
differently by viewing it in terms of the social construct. While all three theorists
believed that no individual could exist without the assistance of other
individuals, such as a parent, Pufendorf viewed the community as natural, and
the means by which natural law should be implemented (Pufendorf, 35). In this
way, Pufendorf means to extend natural law as the foundation of every
community, and by extension, every individual, group and state, in order to
“preserve sociality” (Pufendorf, 35). The inclusive nature of natural law is
essential, especially in terms of modern application, which will be discussed
later.
Any form of law, or in a broader sense, authority, requires a root of
legitimacy. For government, legitimate authority is generally derived from the
people. Civil law, or “those [laws] that regulate the rights and conduct of the
citizens among themselves,” uses this legitimate authority as the basis for
positive law; however, natural law cannot derive legitimacy from the people, as it
must exist without the consent of the populous for it to remain in the state as it
has been defined here (Vattel, 92). Early theorists, like Thomas Aquinas, view
God as the root of natural law (Hittinger, 15). Pufendorf agrees entirely, believing
that “it is clear by the light of reason that their author [natural laws] is the author
of the universe” (Pufendorf, 29). Grotius, while an earlier theorist agrees, but
takes the bold step towards secularism in saying that natural law would “still
have a degree of validity even if…there is no God;” it should be noted that despite
Grotius’ belief that natural law can be affirmed through reason in the absence of
God, he is clearly a theist (Prolegomena, 11). In understanding natural law in
terms of morality, as previously discussed, natural law can be substantiated in
secular terms. Just as individuals have an instinctive understanding of “good and
evil,” natural law exists within the conscience of every individual. Vattel, as the
most secular thinker discussed here, best describes the true origins of legitimacy
“in the essence and nature of man and things in general” (Vattel, 748).
Individuals may not give explicit consent to natural law, but every individual has
a clear understanding of what is right and what is wrong, which suggests that
there must be some universal principle from which natural law derives
legitimacy.
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While Grotius, Pufendorf and Vattel treat the obscure details of natural law
in great detail, natural law does not need to be so complicated—natural law is
simply what is moral. Every individual has a sense of what is right and what is
wrong built into their conscious; it is this principle that requires every individual
adhere to its principles, and gives legitimacy to its cause.
3. International Law
This section will explore the normative connection between natural law and
international law as prescribed through the tradition of Grotius, Pufendorf and
Vattel. First, it is important to understand the definition and purpose of law,
positive law, and international law. Next, a discussion of international law and its
differences from positive law, before continuing on to describe the natural law
and the law of nations described by Grotius, Pufendorf and Vattel. This section
will conclude with a discussion of the traditional argument for the link between
natural law and international law.
Vattel defines law in general as “a rule by which we are obligated to
determine our actions” (Vattel, 747). For Pufendorf, law requires an authority to
which the subject of the law must submit. In any discussion of law, natural,
international, or otherwise, it is necessary to understand what is required to
constitute a law. Vattel’s definition does not stipulate a particular source of law,
nor does he stipulate requirements for upholding natural law—law is simply
rules that guide an individual’s actions. Pufendorf frames the discussion slightly
differently by requiring a source of authority; for Pufendorf, God is the authority,
which legitimizes natural law, though as discussed before, the sense of morality
that exists in the conscience of every individual is sufficient authority as a means
of proving natural law.
Law generally presupposes the state as the primary instrument of positive
law, as a government must derive legitimacy before it can constitute itself as the
rightful government. International law requires that the state give up its
autonomy and submit to a greater authority, which is an unattractive notion for
sovereign states (Cutler, 135). Traditionally, this has led to questionable
legitimacy in terms of international law, since international law required that
states give up a piece of their autonomy in order to submit to the authority of the
collective; however this arrangement does not account for natural law.
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The law of nations, according to Vattel, is “the science which teaches the
rights subsisting between nations or states, and the obligations correspondent to
those rights” (Vattel, 67). Vattel and Pufendorf view the law of nations as a re-
imagination of natural law for implementation on states, or a moral law to which
all states are required to subscribe. This is an important principle in that states
are already obligated to a greater authority and do not have complete autonomy
of action within the bounds of their state.
Grotian implications of equality are the most effective means to understand
the link between natural law and the law of nations. According to Hommes,
Grotius views natural law as “equally valid for individuals and states,” meaning
that the principles of natural law and basic morality are not exclusive to the
individuals (Hommes, 62). States have a responsibility to act morally, as the
point of positive law is “to promote men’s security or convenience” (Pufendorf,
53). Any state that violates the moral natural law is “guilty of a crime against her
own conscience” (Vattel, 76).
The advantage of using natural law as the basis for international relations is
that “if certain actions are right or wrong by nature…at least there is a corpus of
moral truth that is beyond dispute;” the morality of natural law is beyond
dispute, and it provides a means of viewing international law free from the
questions of legitimate authority (Bull, 72).Natural law requires that all
individuals and states prescribe to its precepts, which binds all individuals and
states together through the principle of equality. So long as individuals and
states are equal and natural law exists, natural law does form a necessary
foundation of international law with an authority that is greater than the states.
4. International Law: New View
This section will put forth a unique notion on the place of natural law in
international law, using support from the theoretical tradition of Grotius,
Pufendorf and Vattel. It will proceed by reestablishing the necessary existence of
natural law, then continue to discuss the contribution of natural law to positive
law and its link to international law. It will conclude by recognizing the benefits
of this analysis in terms of the inclusive nature of viewing international law as
the product of natural law and the differences from the theories previously
discussed.
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Doubts on the validity of natural law lay at the crux of the argument against
natural law as the basis of international law, but this is due mainly to a
misunderstanding of the definition of natural law. It is important to see natural
law in its secular sense as being derived from innate individual nature and as the
equivalent of morality. As long as natural law includes the contested idea of God,
it is vulnerable and cannot conclusively prove its necessary existence. Natural
law does exist within the conscience of every individual, which acts as legitimate
authority for its implementation. It follows that any other law must not violate
the morality recognized by the conscience of every individual as described by
Vattel. After accepting natural law in its secular sense, and equating its nature as
the legal corollary of morality, natural law can provide the basis for all law, as it
has “true legal character” (Hommes, 69).
Positive law, or civil law, is the means by which the morality of natural law
may be augmented. Pufendorf believed that “it is the duty of sovereigns to lend
[natural law] force and effectiveness of civil law,” in an effort to maintain the
“effectiveness” of natural law (Pufendorf, 155). It is important to recognize that
while civil law exists as an opportunity to legislate above and beyond natural
law, any form of positive law must not violate the principles of natural law. In
this way, civil law should support the tenets of natural law and require no
obligation contrary to the tenets of natural law as that would be immoral and not
be in the best interest of the people.
International law follows logically from civil law and is subject to the same
restrictions in term of morality that restricts civil law—international law must
also conform to the tenets of natural law. Natural law is necessary for the
possibility of international law for two reasons:
First, it is commonly accepted that laws “ought to relate to the welfare of the
state and its citizens,” that it should be moral, and that its purpose is to benefit
those obligated to follow it (Vattel, 92). This morality is inherent in every
individual, suggesting that there is some natural morality that exists in the world
without the addition of positive law. As this exists in every person, it must
constitute the highest morality, and any discussion of just law must come from
natural law. International law is an extension of this.
Second, if there were no fundamental basis for morality in the world, there
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would be no reason to have any sort of law. While stronger groups could
subjugate smaller groups and bend them to their will, this would not be derived
from any legitimate authority and could not constitute law. States could willingly
give up autonomy in order to legitimize international law, but the laws created
would not be based on what is moral, nor would the sovereign governments
constitute a legitimate authority without the legitimate backing of just morality.
So long as international law exists, natural law is the only means by which it can
be legitimate.
This argument also has the benefit of inclusive nature. All natural law is
based on the idea that all individuals, groups and states are equal. Traditionally,
this equality has been discussed in terms of individuals and states, but there is no
reason not to include groups, like corporations, in this discussion. If an individual
and a state have equal rights, then corporations should have the same benefits
and restrictions as individuals and states. In Mare Liberum, Grotius argues that
the Dutch East India Company should have equal rights to the Portuguese,
advocating for the right of self-defense (Mare Liberum). This marked the
beginning for the inclusion of non-state actors in natural law, but it makes sense.
The actions of a non-state actor have the same effects and are governed by the
same moral principles to which individuals and states are obligated. By accepting
natural law as the basis for international law, all actors of any sort must be
afforded the benefits and restrictions of moral natural law.
This argument differs from the traditional argument for natural law as the
basis of international law by discussing the necessity of moral legitimacy in
creating an authority capable of instituting international law and modernizing
the ideas of the traditional thinkers discussed in this paper. Regardless of its
origins, natural law is the same as morality. Just as genocide tends to make an
individual feel something is wrong, natural law exists in every individual’s
conscious to moderate actions.
5. Modern Link: Transnational Corporations
Non-state actors have traditionally fallen under a separate category in
discussion of law, which has resulted in a blind spot that has allowed
transnational corporations to “benefit from their international nonstatus”
(Cutler, 142). International law based on the consent of sovereign nations does
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not generally consider transnational corporations, as they tend to fall subject to
the law in the countries in which they operate, despite their activity across state
lines (Cutler, 141). Frequently “national governments are willing to insulate
them from…international pressures” (Cutler, 143). International governing
bodies, like the UN have sought to include transnational corporations in policy by
creating a special category for them; this is viewed as a threat to the autonomy of
the sovereign nations from which some academics incorrectly derive the
legitimacy of international law.
While states jealously guard their autonomy in terms of policing the actions
of transnational corporations existing within their boarders, these non-state
actors clearly fall outside of the bounds of traditional civil law (Cutler, 142).
Without some comprehensive, universal law to which all corporations across the
world are required to subscribe, there can be no meaningful law set down to
moderate the actions of transnational corporations. Legitimate authority derived
from the consent of the states fails to offer a solution.
Cutler notes “one solution is the recognition of the transnational
corporations as a legal subject, bearing rights and responsibilities linked directly
under international law” (Cutler, 146). It is clear that states are not the source of
legitimacy in international law, and that natural law provides the moral
foundation on which international law exists, giving transnational corporations
the legal status referred to by Cutler. Natural law prescribes all actors as equal,
and as Grotius shows in Mare Liberum, non-state actors are obligated to the
benefits and restrictions imposed by the tenets of natural law.
In practice, this means that transnational corporations must be held to the
same moral standard as individuals and states. For each of the theorists, this
means a slightly different thing, from contracts, to freedom of choice, but it is
more than that; if natural law is the basis for the application of positive
international law that is based on moral principles, which it must be as morality
must stem from natural law, then the international community has the right to
create positive law that applies to the actions of transnational corporations.
States are still within their rights to police the actions of any actors within their
boarders, but all positive laws, created by the state or the international
community must meet the standard of morality set by natural law.
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6. Conclusion
Many academics dismiss the idea of natural law on the basis that it is not
necessary, lacks legitimacy, and has no means of enforcement; however, this is
an error (Mumford, 265). Natural law does exist, and provides the basis for just
law at any level, including international law.
Grotius, Pufendorf and Vattel represent a significant piece of international
law theory through their contributions to natural law and the law of nations, but
it is important to bring their into the twenty first century and find a way to make
it applicable today. Removing God as a necessary precondition in Grotius, and
removing God entirely in Vattel represents the first step in modernizing these
thinkers, but more is required.
The unique natural law theory put forth in this paper represents a
culmination of these three thinkers works with a modern twist. While each of
these three thinkers connected their ideas to the concept of morality, none
realized that morality is the necessary characteristic, which clearly links natural
law to positive law.
The modern implications of international law in general are wide, and
transnational corporations represent a small portion of the potential of natural
law in international law, but it is an important place to start. In this paper, each
section has sought to define terms by establishing a definition, to whom the law
pertains, and what makes it legitimate. Natural law is clear in its definition and
its legitimacy, but establishing the universal coverage that could not be reached
by legitimacy from sovereign nations represents an important first step in
international law. By establishing the subjects of the law, implementation can go
forward and have legitimate meaning.
The case for natural law is clear—natural law exists in the conscience of
every individual who is capable of telling right from wrong which constitutes a
basic moral code; laws must be based on human conceptions of morality; and
without a sense of morality, there could be no legitimate law. Natural law is
necessary in order to define law in moral terms.
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