The words you are searching are inside this book. To get more targeted content, please make full-text search by clicking here.
Discover the best professional documents and content resources in AnyFlip Document Base.
Published by Enhelion, 2019-11-24 05:22:02

Module_1 (Pubic International Law)

Module_1 (Pubic International Law)


Every society large or small develops a framework of principles within which it
develops. This framework of principles adjudges the right and the wrong and the
permissible and the non-permissible actions. Law is basically a tool to regulate
interactions amongst members in a society and there can be no society with a
regularized system that shall regulate the mutual relationships. Therefore, in simple
words International Law assumes a society of nations primarily and governs their
relationship of the member society.
In order to understand International Law one must understand the following two
aspects of international law:

1.1.1 Definition of International law.
Jeremy Bentham fathered the term international law which was eventually to replace
the older phrase law of nations. Earlier International law was a system composed
solely of legal rules and principles binding upon civilized nations only in their mutual
relations. Thus, it was known as ‘Laws of Nations. Various jurists have defined
‘international law’.

According to Oppenheim, “Law of Nations or International Law is the name for the
body of customary and conventional rules which are considered binding by civilized
States in their intercourse with each other.”1 This definition was criticized on several
grounds and thus has become obsolete and inadequate:

i. With change in time international law covered not only states but also
international organizations, individuals etc. which have certain rights
and duties. This was affirmed by the International Court of Justice in
an advisory opinion.

ii. It was recognized that international law does not only consist of
customs and conventions but also general principles of law recognized

1 L. Oppenheim, International Law, Vol I, 8th ed. (Lauterpacht (Ed.), Longman London), 1955, p.6.

by civilized states. This has been stated in Article 38 of the Statute of
International Court of Justice.
iii. The use of the term ‘civilized states’ was also criticized as earlier only
western Christian states were considered to be civilized states. Neither
history nor culture was a criterion to be considered as civilized states.
(later on the word civilized was deleted)
iv. By referring to international law as a ‘body of rules’, it gave it a very
stagnant and static nature which proved to be inadequate as
international law was dynamic and was continuously being
reinterpreted and reshaped from time to time both nationally and
v. Another criticism was that international law is not considered to be
binding and it was up to the states to incorporate such law into the
municipal law and make it binding.
Thus, certain changes were made to the definition and a Modern Definition of
international law was given by making changes to the definition by Oppenheim.
These changes were incorporated in the 9th edition of Oppenheim’s book (1992)
edited by Sir Robert Jennings and Sir Arthur Watts.

Briely defines International law as “Law of Nations or International Law may be
defined as the body of rules and principles of action which are binding upon the
civilized States in their relationship with one another.”2

According to Hall, “International Law consist of certain rules and conduct which
modern civilized Stated regard ad being binding on them in their relations with one
another, with a force comparable in nature and degree that binding the conscientious
person to obey the laws of his country and which they also regard as being
enforceable by appropriate means in case of infringement.”3

2 J.L. Brierly, The Law of Nations, 6th ed. (Humphrey Wadlock (Ed.), Oxford University Press,
Oxford), 1924, p.1.
3 W.E. Hall, A treatise on International Law, 8th ed. (A.P. Higgins (Ed.), Oxford Press University Press,

In Sir Cecil Hurst view, “International Law is the aggregate of rules which determines
the rights which one State is entitled to claim on behalf of itself, or its nationals
against another State.”4

Further, Kelsen states, “International Law or Law of Nations is the name of a body of
rules which according to the usual definition regulate the conduct of States in their
intercourse with one another.” 5 Such an approach towards international law was
adopted by the courts too in West and Central Gold Mining Co. Ltd. v King6 in which
international law was defined as “the form of the rules accepted by civilized States as
determining their conduct towards each other and each other’s subjects.”
J.G.Starke, “ International law may be defined as that body of law which is composed
for its greater part of the principles and rules of conduct which States feel themselves
bound to observe, and, therefore do commonly observe their relations with each other
and includes also:

i. The rules of law relating to the functioning of international institutions
or organizations, their relations with each other and their relations with
States and individuals;

ii. Certain rules of law relating to individuals and non-State entities so far
as the rights or duties of such individuals are the concern of the
international community.”

This definition was considered appropriate as it takes into considered the changing
character of international law. It can be seen clearly from the above definitions that
the individualistic character of international law is being replaced by the law of social
inter-dependence. The definition now is, “International law is the body of rules which
are legally binding on states in their intercourse with each other. These rules are
primarily those which govern the relation of States, but States are not the only
subjects of international law. International organizations and to some extent also
individuals may be subjects of rights conferred and duties imposed by international

4 Cecil Hurst, International Law (Stevens and Sons Ltd. London), 1950, p.8.
5 H. Kelsen, Principles of International Law, 2nd ed. (Tucker (Ed.) Holt, Reinhart and Winston Inc.)
1966, p.1.
6 (1905) 2 KB 91

1.1.2 Nature of International Law
The nature of international law is intricate and filled with complexities to understand.
According to John Austin, Law is a command issued from a Sovereign power to an
inferior and enforced by coercion. Similarly, according to Sir John Salmond's
definition: Law is the body of principles recognized and applied by the State in the
administration of justice. It is pertinent to note here that unlike domestic law
international law has a different approach as there no system of courts or established
hierarchy that would help define international law and its nature.

The law unlike domestic law is created by the states themselves to regulate them and
they themselves take care of the fact that no violation takes place. There is no
governing body as such that regulates international law neither is there a law making
body of the international law thus the framework of international law is quiet diverse
from the traditional framework of the domestic law.

There is no binding system of international courts the International Criminal Court of
Hague is in the picture but the same has no binding effect upon the individual states
as the matter that can be dealt in that court is only those matter where both parties
submit to the jurisdiction of the said court and not otherwise. Furthermore, it is
pertinent to mention herein that ‘international law’ cannot be defined or measured on
the yardstick of ‘domestic law’ as both are very different from each other and must be
defined individually.

Most jurists subscribe to the fact that international law is law and sanction is not an
essential element of law. Even if it is an essential element it would be wrong to say
that international law does not have any force behind it. The rule of law cannot be
limited to enactments of the sovereign authority. In many communities a system of
law existed even before these communities formed a legislative authority. According
to Starke, such law does not differ from state laws which have a true legislative
authority. Furthermore, in practice international law is regarded as law by the States
which consider it to be binding upon them. It is often said that international law is
frequently violated, but it does not lose its essence in the modern world.

When there are breaches of law, the conduct is justified on legal rules and not on
moral grounds. For example, whenever a state is responsible to pay compensation or
damages this is done on a legal basis rather than moral grounds. International law is
not limited to treaties, and it includes judicial decisions, conventions, customs,
usages, judicial writings etc. which a State feels bound to oblige.

If there is a breach of international law by any state it may be publicized and have
either of the consequences i.e.

i The state which violates the law will be under the constant vigilance of the
other States and therefore their behavior may be moulded.

ii International law will be widely recognized. Courts may apply such law on the
basis of true legality.

Some jurists are of the view that in international law there is no need for an executive,
a legislature or judiciary. It is enough if the principles are followed and accepted by
States in their relations with each other. It is pertinent to note that even though
International legislations like Geneva Conventions, Hague Conventions etc. exist but
there is no specific legislature that exists in the form of some authority. The treaties
exist and are followed by the states.

1.1.3 Theories on basis of International Law
There are two main theories which form the basis of international law: Theories as to
the law of nature and Positivism. Theories as to the Law of Nature
According to the exponents of this theory, international law is a part of the law of
nature and this is why states follow it as the law of nature is a higher law. It is natural
law that has conferred binding force on international law.

In the beginning the law of nature was considered to be associated with religion. By
the 17th century, jurists like Grotius secularised the concept of the law of nature.
Grotius (father of law of nations) stated that natural law was the dictate of right

reason. His followers applied natural law as the ideal law founded on the nature of
man as a rational being. International law was considered binding as it was natural
law applied to special circumstances.

The naturalists considered the law of nations as a part of international law. Some of
the naturalists like Hobbes, Puffendorf etc. divided law into- natural law of
individuals and natural law of states. Outside this there existed no positive law. It was
believed that natural law is an independent source of international law apart from
customs. Principles of natural law are necessary for the survival of man and
civilization. It is necessary for the maintenance of peace and harmony in the world.
Recognition of natural law is inherent due to the needs of human nature and also by
experience. Thus the peace and order in the human community can be maintained
only when human interests are protected. This means that law should aim at finding
human needs and necessities. For example, the Stockholm Declaration; New
Economic Order which aims at securing the well- being of all people and filling in the
gaps between the developed and developing countries. Each follower of natural law
gives a different definition to the term natural law. Different meanings are given by
different jurists and hence it is a very vague and uncertain in the international
community. This theory is not based on reality and actual practices of the states and
hence is the biggest demerit of this theory. However, natural law has greatly
influenced the growth of natural law.
Positivists base their theory on the actual practices of the states. It is a will of the
states that is the main source of international law. International law is said to be
binding because states have given their consent to the rules of international law.

Although states are sovereign, yet by the theory of auto-limitation, they have limited
their power and given way to international rules. This theory is based on the will of
the states and independence and sovereignty of the states, which is what international
law and positivism is based on. In international law, state has a personality of its own
and also is capable of possessing its own will through legislation, executive action
and judicial decisions. It is an international person. The will also signifies consent to

legal obligations which the treaty binds the state with. The states consent is important
for the law to be ratified. The binding force of international law and its basis is said to
be pacta sunt servanda- agreements entered into by the states must be respected and
followed in good faith. This theory fails to explain the binding effect of international
customary rules of international law.

With respect to the will of the states, when it becomes decisive is something one
cannot be sure of. Hence the common will of the states in case of international law is
not conclusive. Consent is important but all rules of international law need not be
based on consent and may be based on habitual obedience or custom. There may also
be implied consent. For example, when one state takes over the territory of another
state, its rights are taken but the liabilities of such state are not incurred. Positivism is
also supported by judicial approach.

In the Asylum Case 7 , the court observed that Columbia wanted to establish a
customary rule that it could grant diplomatic asylum to Torres. The court wanted
Columbia to prove it by way of state practices which were binding on the court. Thus
the court can be said to have given effect to positivism. International law is binding
due to the existence of states and the obligations arising thereof and also because of
the interest of the state which each state tends to secure. The days of silent suffering
are said to be gone and the voices of developing countries are being heard. However,
this theory fails to explain the concept of consent when a new state enters the
international community. The concept of consent which the positivist theory is based
on is severely criticized by the jurists.

The ‘general principles of law’ under article 38 of the statute of the ICJ remains
unexplained by the positivists. Despite the criticism, this theory provides a realistic
outlook towards international law.

7 Columbia v Peru (1950) ICJ Rep., p.266 at p.277


1.2.1 Early Origins

i International Law is more than 400 years old. However, the foundation of
International Law is more than a thousand years old as it can be discovered in
the political relations dating back to thousands years.

ii In 2100 BC the existence of a Treaty between rulers of Lagash and Umma
(Mesopotamia) Treaty that related to boundary of territory which marked the
beginning of the concept of ‘sovereignty’ and inter-state relationship.

iii Thereafter, the rulers of Egypt Rameses II signed a treaty with the Hitties
ruler. This treaty was related to code of conduct for warfare and emphasized
upon territorial integrity.

iv In Israel, universal rules of warfare were made applicable which further gave
rise to the concept of ‘just war’ which has a contributed greatly in the
formation of Geneva Convention today.

v The trade rules that governed the mutual relationship of the Indian and
Chinese civilizations also establish the existence of international law.

1.2.2 In the middle ages and the renaissance

i The middle ages were characterized by the authority organized Church and
the comprehensive structure of power that it commanded. The entire
Europe 0was of one religion and the church made law applied to everyone
notwithstanding their faiths, tribes or affiliations. Therefore, struggles
between the religious authorities and the rulers of the Roman Empire

ii Commercial and maritime law began its advancements and the English law
established the Law Merchant i.e. a code covering foreign traders and this
was declared to be of universal application.

iii Thereafter, maritime customs started being recognized throughout the
continent. These are considered as the seeds of international law as they

were nurtured against a back-cloth of cross national situations and
reflected the need to address such concerns
iv With the change in the leaders and empowerment of the merchant class the
rise of nation states of England, France and Spain as independent units was
observed which further lead to a higher decree pf interaction between
sovereign entities. Therefore, creating a need for laws governing such
v The renaissance stimulated the rebirth of Hellenic studies and ideas
therefore Natural law gained momentum
vi With the rise of the modern state the doctrine of sovereignty emerged.
vii The 19th and the 20th century embarked a radical change in the
international laws due to the various events such as the world war,
democracy of Latin America, creation of League of Nations etc.

The term international law was coined by Jeremy Bentham. After the formation of
League of Nations international law began taking shape. Before the Second World
War international law was called as “law of nations”. However, law of nations is a
misnomer because the subject of International law is not only limited to nation states
but also international organizations, individuals etc.

In Nottebohm Case (ICJ- 1951) Nottebohm was a German who set up business in
Guatemala. He was still in strong connection with Germany. He never accepted
citizenship of Guatemala but accepted permanent residency there. In 1939 Nottebohm
went to Leicester and got citizenship there and thus the German citizenship was
revoked. At the height of 2nd world war he visited Guatemala and was declared a
persona non-granta and sent to US prison. After his release the Leicester government
being a neutral party towards the war approached the ICJ against Guatemala.
Thereafter the ICJ ruled in favor of Guatemala stating that Guatemala is under no
obligation to recognize a nationality granted in such circumstances. Liechtenstein
consequently is not entitled to extend its protection to Nottebohm vis-à-vis Guatemala
and its claim must, for this reason, be held to be inadmissible. The entire framework
of International law is based on the conduct of the states with one another.

1.3.1 Article 38 of the UN charter
According to Article 38 of the UN charter the sources of International Law can be
divided as follows:

i International Conventions
ii International Customs- evidence of general practice that has been accepted as

iii General principles recognized by civilized state
iv Teachings of most high qualified publicists of various nations. International Conventions
The main sources of international law are treaties and conventions. Generally, the
state must express through a concrete act its willingness to undertake the legal
rights and obligations contained within the treaty or convention. The binding
force of international law and its basis is said to be pacta sunt servanda i.e.
agreements entered into by the states must be respected and followed in good faith.

Treaties and Conventions are written agreements that states willingly sign and ratify
and as such are obliged to follow. Such agreements may also be termed as statutes or
protocols, given the mutual relations between states. They are, however, only binding
on those states that have signed and also ratified the particular treaty.

Treaties formulate an important part of the international law as it helps in keeping
pace with the modern international law unlike customs which has a slow process of
The first constructive Step in developing the law through treaties was the
Declaration of Congress of Paris in 1814.

The importance of treaties can also be adjudged from the fact that the Statue of
ICJ under Art 38 (1) (a) treaties have been put as the first recourse which is
court is directed to resort in the settlement of a dispute between parties.
Since treaties are contractual in nature it does not ipso factor bind the non-signatories
except the treaties which are “constitutive” in nature. It is pertinent to note that

treaties are superior to customs. However, they may contain codified customary law
in them e.g. Vienna Convention.

Types of Treaties

Particular/Contractual Law-making/General
(Create obligations and rights between signing (Source of law as they apply to all or Due to
parties only or limited no of parties or limited number or nature binding on non-signatories as

character or subject matter) well)

S.S. Wimbeldon Case8:
Where in there was a dispute w.r.t Art 380 of Treaty of Versailles by which a canal
was kept free and open to all those vessels of all nations at peace with Germany, was
in issue before the Permanent Court of International Justice. In a war between Poland
and Russia, German officials stopped S.S. Wimbeldon, British Ship carrying
ammunition through the canal to Poland, on the ground that by allowing the passage
munition through its territory to a belligerent State, Germany would be compromising
its neutrality under the customary law. However, the court held that the treaty takes
precedence over such a rule and Germany was held in content. Customs
Customs play an important role in international law. Even though it is considered
important its importance has reduced in the modern times due to the increasing use of
treaties and conventions as law-creating method.

Custom is a habitual course of conduct. A customary international law may be
defined as a rule which community of States has since long recognized as the right

8 PCIJ Rep., Series A, No. 1 (1923)

rule of conduct and which has the force of law. In the Asylum case9 the ICJ described
custom as a constant and uniform usage accepted as long. It is pertinent to note that
even though custom and usage are used interchangeably they are distinguished from
each other.

For a usage to be a custom the following is important:
(i) Usage has been constantly and uniformly practiced by the States.
(ii) Opinio juris sive necessitate- the state must feel legally obligated to follow it. State Practice
State practice is of paramount importance for a custom. However, what amounts to
State Practice is still debatable. State practice generally covers every activity of the
State organs or officials in an international context. It may include e treaties,
diplomatic correspondence and relations, executive decisions etc. State Practices can
be categorized into the following:-

i Mutual Relations among States
Practices of the states with other nations in the firm of diplomatic correspondence,
press releases, bilateral treaties, MoU’s etc. constitute evidence of state practices as
they define the mutual relationship of the states with one another. Fisheries
Jurisdiction Case10wherein the dispute to extend exclusive fishery zone was denied
as the customary international law limited the zone to 12 miles.

Right of Passage over Indian Territory case11
Marathas granted the right to passage, the Britishers granted the right to passage and
even after independence India granted the right to passage. However, there was
tension created after the events of Dadra. In this the Court accepted the validity of
Portugal’s claim based on custom. However, it ruled that they were not entitled to
send army through India and the right of passage was limited in nature.

ii Practice of International Organizations

9 Columbia v Peru (1950) ICJ Rep., p.266 at p.277
10 UK v Iceland, (1951) ICJ Rep., p. 116.
11 Indian v Portugal, (1960) ICJ Rep., p.6

International Organizations also positively contribute towards development of
customary law by providing a clear concentrated form of State Practice. The
statements made and the votes casted and the behavior of the state representatives on
legal matters provide strong evidence on existing or emerging international customary
In the Reparations case,12 wherein the diplomats of United Nations were assassinated
in Israel by the militants. United Nations claimed reparations from Israel. Thereafter,
Israel defended itself by stating reparations can only be claimed by a country.
Thereafter, the Hon’ble Court held that among various reasons it is to be the
relationship of UN and its specialized agencies treaty relations with the States provide
and evidence of customary law w.r.t. to the relationship of states with the
international organizations.

iii Unilateral Acts of the State
They are basically acts that are being uniformly performed by all states they are like
an accepted norm or practice that all states follow. General Practices
The term general principles of law followed by civilized nations is a very vague terms
and possess a wide includes though not confined to principles of municipal
laws administered by their respective courts. The phrase applied to fundamental
principles of justice which have been accepted and adopted by civilized nations
generally. The court can adopt this recourse if there is no convention or any clear
customary rule in a case before it. It is necessary to avoid any situation of non-liquent
i.e. the possibility that a court or tribunal would be unable to decide a case law
because of the gap in the law. This also includes principles of natural justice. Judicial Decisions
The only international tribunal existing with limited jurisdiction over disputes is the
International Court of Justice which succeeded the Permanent Court of International
Justice. It is to be noted that the decisions have no binding force and merely

12 Advisory Opinion on Reparation for Injuries Suffered in the Services of the United Nations (1949)
ICJ Rep. p.174

persuasive in nature. The only binding effect of such pronouncements is on the parties
of the case. Resolutions
The Resolutions passed in various international organizations are not considered as a
formal source of international law but only a material source of international law.
However, their significance has significantly increased over the due course of time. It
is apparent that no express provision has been made for resolutions of General
Assembly or Security Council as a source of International law.

The United Nations General Assembly is one of the six principal organs of the United
Nations, the only one in which all member nations have equal representation, and the
main deliberative, policy-making, and representative organ of the UN. Each country
has one vote. Some Member States in arrear of payment may be granted the right to
vote. .The Assembly has adopted its own rules of procedure and elects its President
and its 21 Vice-Presidents for each session.

It is pertinent to mention here that the resolutions passed by Security Council are
binding in nature. However, resolutions passed by General Assembly only have a
persuasive value and are binding only upon certain parties as mentioned or in certain
cases upon the member states whereas in case of Security Council they are binding
upon non-member states as well. However, this does not mean that such resolutions
do not have a legal effect. The importance attached to a resolution may depend upon a
certain factors that may be termed value determinants or variants such as:-

i Foremost among these factors is the degree to which the principles
embodied in a resolution show a departure from the established practice.
Resolutions embodying declarations of customary international law will be

more readily accepted and adhered to than those whose merit lies in their
revolutionary character.
ii The degree of support given to the respective resolution also indicated the
extent to which it reflects the wills of States
iii The subject matter of the resolution also plays a crucial role as a resolution
concerning major political controversies is less likely to be accepted that
one dealing with harmless technical issues such as weather.
iv The legal value of a resolution will also depend on whether it embodies
broad general principles of contains specific rules, the effective of a
proposition as a rule of law depends, to some extent, on its degree of
abstraction from the aforementioned. A high degree of abstraction may
lead to the conclusion that resolution is intended to lay down guide lines,
rather than to state law, while a lesser degree may give the appearance of
expressing the law.
v The consent of state is also an important factor. Especially the consent of
the state against which enforcement of resolution is sought important.
vi Intention of the General Assembly also plays a vital role in determine its
legal effect. Is it intended to law down law or to express pious hope?

The relationship between international law and municipal law is a complex one. The
structure of international law is completely different from that of municipal law and
one cannot put them on scale of comparison for the same reason. There are two
theories put forward by scholars on the relationship between international law and
municipal law i.e. monism and dualism.

1.4.1 Monism
The theory of monism was propounded by Kelsen and Starke. The theory of monism
regards that international law and municipal law both have a common legal basis as:-

i They both derive their origin from the law of nature that binds equally the
state and the individuals.

ii The State law and International law both ultimately regulate the conduct of
individuals, one immediately and other immediately.

iii Thereafter monists believe that they both operate without any conflict within
their own sphere.

iv Therefore, it is to be noted that the monist do not believe in supremacy of one
over the other as they both have their independent spheres.

1.4.2 Dualism
The chief exponents of this theory are Tripel and Anzilotti
➢ While the monist believe that law has a unified front and cannot be classified

the dualist believe that international law and municipal law operate on
different levels.
➢ While international law regulates mainly the relations and obligations
between sovereign and independent states, the municipal law governs the
relations and obligations of individuals within the state.
➢ The dualist theory focuses on differentiating between municipal and
international law.
➢ The difference in the laws lies in their subject matter, sources and juridical

Basis of Differentiation International Law Municipal Law
Subject matter Exclusively States

Sources Customary and Treaty Legislative enactments

Rules. and judge made law.

Juridical origin Common will States will

1.4.3 Theories on application of International Law within Municipal Law
i Transformation Theory or Specific Adoption Theory

This theory basically states that International law can be applied in the sphere of
municipal law if it transforms itself which can happen if the state adopts the
international law within its municipal system. It is argued that unless there is

“transformation” of treaty into municipal law. It is perceived that treaties are a
promise and municipal statues are command.

ii Delegation Theory
Whereas the Dualist relies on the delegation theory which in turn believes that
international law is the supreme and in case of dispute the former prevails over the

Click to View FlipBook Version