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  • Abhijeet Shrivastava

The Failures of Kelsen’s “Grundnorm” in International Law

This article is authored by Abhijeet Shrivastava, a third-year student pursuing B.A., LL.B. (Hons.) at Jindal Global Law School.

Hans Kelsen was a famous Austrian positivist legal theorist who espoused an influential “pure theory” of law, to explain what is authorized as law and how. Kelsen envisaged the law as an objective scheme of interpretation with a hierarchy of norms. He argued that a law/norm ABC is authoritative since it derives its authority from a higher norm PQR. As to why norm PQR is authoritative, he would respond that there is another even higher norm XYZ from which PQR derives authority. This would continue ad infinitum until one reaches the highest norm or the most basic norm, which he called the “Grundnorm”. The “basic” norm, in his view, is one that does not require vindication from another ‘source’ as it is the very foundation of a legal system.

In what follows, it will become clear this idea is palatable for municipal legal systems. However, Kelsen had gone on further to attempt to adapt his idea of a Grundnorm to international law. Exploring the different forms of sources of international law and explaining the reasons for their authority, this post argues that Kelsen’s idea of a Grundnorm strongly fails to account for the peculiarities of international law.

The Grundnorm Explained

To illustrate, a statute enacted by the Pennsylvania State General Assembly would carry legal authority since this legislature is authorized by the Pennsylvania Constitution to make such laws. One step further, the Pennsylvania Constitution would carry such authority given that it derives its own legal force from the US Constitution. One might then think that the US Constitution is the Grundnorm since it is treated as an inviolable and supreme document in the US legal system. This view, however, would be incorrect. Instead, the treatment of the Constitution as inviolable and supreme, i.e., presupposition of the validity of the Constitution and its authority is the Grundnorm, as Kelsen would posit.

Thus, the Grundnorm is not strictly speaking a legal norm, but rather, a “meta-legal” norm that validates the legal system. Without the above presupposition, anything that ultimately derives force from the US Constitution has no legal authority at all. In the US this presupposition exists since the Constitution symbolizes the birth of the US as an independent sovereign State. However, such reasons may vary in different legal systems depending on their historical contexts. In a way, the Grundnorm is the norm that authorizes the historically first legislator.

Shortcomings When Transposed to International Law

While considering the international legal system, the issue that emerges is the lack of an identifiable predominant legislator in international law. Hence, the imagination of a historically first legislator would be misguided here. Contrarily, states can enter into agreements, treaties, conventions, their protocols, and so forth, and thereafter become governed by the rights and obligations contained within such instruments. This system of treaty-based relations is stable owing to the general principle of international law called pacta sunt servanda (now codified under Article 26 of the Vienna Convention on Law of Treaties, (1969). In essence, pacta sunt servanda means that all treaties in force that a State “consented” to must be complied with in good faith. Accordingly, pacta sunt servanda is the presupposition that treaties entered into shall have authoritative force. Given that all treaties have authoritative value owing to this presupposition, Kelsen argued that pacta sunt servanda is the Grundnorm of international law as a legal system, since it validates all treaties. Therefore, to Kelsen, pacta sunt servanda is the most basic norm of international law.

To some extent, this contention is acceptable. However, if pacta sunt servanda is indeed the Grundnorm of international law, then it must validate international law in all its forms and sources. We know that customary international law is also a valid source of law. A norm of customary character is formed when there is “consistent” state practice and opinio juris. This means that when enough states behave in a certain way with the belief or recognition that a legal obligation is involved in that very behavior, a norm of customary character can potentially crystallize. Once crystallized, this norm would make all states in the international order bound to act or not to act in a certain way.

Thus, a norm of customary character, in order to have legal authority, would not require states to actively consent to be governed by it for it to be binding on them. For instance, it is immaterial if a state has not ratified international treaties prohibiting the deployment of chemical weapons in warfare, because this prohibition can concurrently be located in customary international law. Evidently, it is not pacta sunt servanda that gives authority to norms of a customary character. Rather, it is the practice of states (under certain conditions) that can ipso facto lead to the creation of rights and obligations. Since customary international law cannot be traced back to pacta sunt servanda as its final source of authority, the latter cannot be the Grundnorm of international law.

Kelsen’s proponents may defend him by suggesting that the “persistent objector” rule preserves his emphasis on state consent. We see this in the Fisheries case (1951), where the World Court noted that Norway had persistently objected to an alleged customary “ten-mile” rule in demarcating fishing zones. Holding that such a rule did not exist, the court additionally held that even if it existed, it would not apply to the Norwegian coast. As such, if a state does not object during a customary norm’s formation, its consent is tacitly assumed, making the state bound to it by its own silence (acquiescence). While one could argue that such tacit consent is distinct from a positive (explicit) agreement and that pacta sunt servanda covers only the latter, let us consider the opposite arguendo.

There are at least two problems with this defense. First, even if a state objects to a norm persistently during its formation, it will be bound to respect it if it gains recognition as a jus cogens or “peremptory” norm (from which no derogation is allowed). Thus, a state cannot evade the customary norm on the prohibition of torture, even if it had persistently objected to it during its formation. Nor should it be allowed to make this evasion, since states would otherwise have legal impunity against a human rights violation so alarming that it concerns the international community as a whole. Second, if new states are formed after such a customary norm crystallizes, their consent to be bound or not to such a norm would be immaterial, as only old states would have had the occasion to object to such a norm during its formation. For instance, since Slovakia became an independent sovereign state in 1993, its objection to be bound by any customary norm that had crystallized before 1993 will be inconsequential. In both the first and the second situation, a state is bound by a customary norm despite lacking consent to that effect. Consequently, these legal obligations (and rights) would not be authorized by pacta sunt servanda.

Concluding Thoughts

Some authors maintain that Kelsen eventually rejected the proposition that pacta sunt servanda is the “only” basic norm of international law, and instead relegated it to the “most important” norm.

However, the moment he makes this concession, he makes an irreversible departure from his Grundnorm postulate, since there is no longer a “highest” norm that validates all laws.

Seemingly, he later revised his view to believing that the Grundnorm in international law is that states must behave as they customarily have behaved. As the most basic norm, this too is flawed insofar as it fails to account for potential changes in customary international law norms from position X to contrary position Y on the same subject-matter. If states behaved only as they customarily behaved in the past, the formation of contrary authoritative customary norms would be impossible. However, the World Court has acknowledged this possibility of change in its Nuclear Advisory opinion (1996), where it couldn’t identify a universal norm prohibiting the possession of nuclear weapons owing to inconsistencies between the past and the emerging state practice.

Thus, as Kelsen envisioned it, his Grundnorm postulate fails to explain why the sources of international law are authoritative. This is very likely since the Grundnorm in its inception was meant to be a conceptualization of municipal legal systems. The uniqueness of the forms of the sources of international law necessitates a conceptualization specifically tailored to them. Regrettably, there is little scholarly dialogue, let alone agreement on this to date. In this vein, Jean d'Aspremont explains that once international law began to be recognized as equal to other legal disciplines in the 20th century, legal scholars did not deem it necessary to unravel its theoretical foundations. Arguably, their unfortunate omission to build such firm theoretical foundations is part of why many scholars today argue that international law is not law at all. As students, scholars, and practitioners, the onus now falls on us to remedy this lacuna. And we must remain thankful to Kelsen for contributing to this vital conversation that we must continue.

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