Unit 1

- Origin and Development of International Law.

- Nature and Definition of International Law

- Basis of International Law.

- Sources of International Law.

- Relationship between International Law and Municipal Law.

- Subjects of International Law.

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 ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW

Introduction

Each country in this world formulates different laws to govern the society in a very
efficient manner just to ensure peace and security in the nation. Similarly, when
we look at the international level, when different countries come together at a
certain common platform to formulate law’s that governs intercourse between
countries; it is referred as international law.

International law is distinct from international comity, which comprises legally

nonbinding practices adopted by states for reasons of courtesy (e.g., the saluting of
the flags of foreign warships at sea). In addition, the study of international law, or
public international law, is distinguished from the field of conflict of laws, or private
international law, which is concerned with the rules of municipal law as
international lawyer term the domestic law of states of different countries where
foreign elements are involved.

Evolution of International Law

International law is not only the result of several treaties from the 19th and 20th
centuries, but goes back to antiquity. Traces of its origin can be found since human
existence, where independent communities where set up.

Early Origins

➢ Around 2100 BC, for instance, a Treaty of mesilim was signed between the
rulers of Lagash and Umma which was inscribed in stone block and concerned
the establishment of defined boundaries to be respected by both sides. Treaties
between the Mesopotamian cities are considered to be the foundation of
international law.
➢ Greek acted as an important source in the evolution of International Law. There
were numerous city states in Greek who prescribed certain rules and regulations
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 for interaction so as to minimize conflict amongst them and acquire peace; to
some extent it depicts glimpse of modern International Law. But these rules were
not applicable for interaction with non-Greek states.
➢ On the other hand, Roman Empire felt that there was no need of developing any
International Law because they did not abide by the rules while dealing with
foreign territories. But they did enact municipal laws, called jus gentium, for
interaction of Roman citizens with foreigners and was based on the principles of
Natural Law and even today it can be found in modern International Law.
➢ Later, the development of the concept of natural law highlighted that all human
beings have certain rights inherent, which helped to expand the scope of
international law developed on the European continent.

Middle ages and renaissance

The Middle Ages were predominantly based on the authority of the Church; since
the whole Europe was one religion therefore the Church’s command and authority
was binding on all irrespective of their tribe and religion. In this Era the authority
of Holy Roman Empire along with ecclesiastical law was of prime importance;
however, commercial law and maritime law developed and various mercantile
courts were set up to resolve dispute between tradesmen. Since the law was
applicable in the whole of Europe, it formed International Trade Law; not only
mercantile law but also maritime law was soon applicable on the whole of European
continent. These laws formed European Legal Systems and are considered to be
one of the predecessors of International Law since they dealt with international
circumstances.

Treaty of Westphalia

- Treaty was signed on 24th October 1648, it marked the end of a religious war
that lasted for 30 years.
- The Westphalia area of north-west Germany gave its name to the settlement
ending the thirty years’ war, one of the most devastating in Europe’s history.
- In Central Europe, a new form of political order emerged, focused on peaceful
coexistence between sovereign states. A balance of power had kept inter-state

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 violence in check, and a policy was established against intervention in
domestic affairs of another state.
- The renaissance in Europe played a very important role in the evolution of
international law.
- The treaties established the idea of territorial sovereignty, with each state
solely responsible for law and order, taxes and control over the populations
in their territories. Additionally, the right of every state to order its own
internal religious and political arrangements was recognized. These are now
considered global norms.

Founders of modern International law

The newer approach to international law can be traced back to the

philosophers of the golden age

- Vitoria, the professor of theology demonstrated a remarkably progressive

attitude towards Spanish conquest of South American Indians. By
commenting that international law was founded on the universal law of
nature and war against them can be justified only on the ground of just cause.
- Suarez (1548) , Professor of theology noted that obligatory character of
international law was based upon natural law.
- It is however, Hugo Gratious, a Dutch scholar who is been celebrated as
the father of International law, for his primary works. He remarked that
the law of nature would be valid even if there is not god and it is to be founded
exclusively on reason.
- In a later stage , there was emergence of two different schools of thought, i.e.,
Naturalist School according to which, International Law was based on Law of
Nature (reasoning) and Positivist School, according to which International
Law was distinct from Natural Law and mostly derived from the same method
as the one adopted by the Renaissance, i.e. empirical method.

19th and 20th century

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International law gained in importance, especially in the 19th and 20th centuries.
During the 19th and 20th centuries, international law took its legal form, during
which time various pacts and treaties were signed that eventually resulted in the
formation of the United Nations.

The Congress of Vienna (1815) is considered as the turning point in development

of international law, which took place in 1815. It prevented the outbreak of a major
European war for a hundred years. How did it accomplish this?

- First, all parties, including defeated France, were part of the negotiations.
This was due to the informal format of the Congress, which allowed various
parties, often led by brilliant diplomats such as Talleyrand (France) and
Metternich (Austria) to sit down and hash out their positions, until a
compromise was reached.
- Second, the Congress and the resulting treaties limited the level of
punitiveness imposed on the losing parties. While this did not make everyone
happy, it ensured that nobody was totally unhappy and involved convoluted
horse-trading. For example, Sweden lost Finland to Russia, but gained
Norway from Denmark. Denmark, in turn, gained Swedish Pomerania.

Paris Declaration (1856)

Another milestone in the development of international law is Paris declaration of

maritime law, 55 nations gave their consent on a diplomatic policy with regard to
the law of the sea and this represented a large step in international law. This
declaration laid down some important rules for naval warfare. The consented
principles of declaration were:

- To not privatize effective blockade.

- To forbid the attack on defenseless people and to try to save the life of the
crew before sinking the enemy ship.
- International policies related to shipping on high seas.

Geneva Convention (1864)

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Also known as humanitarian law of armed conflicts whose purpose is to provide
minimum protections, standard of humane treatment and fundamental guarentees
of respect to individuals who become victims of armed forces. In 1864 the first
treaty of the Geneva Convention was passed, which was reformulated and
supplemented in 1906, 1929 and 1949.

Hague Conventions of 1899 and 1907.

Two of the conventions were held in The Hague (Netherlands) along with Geneva
were among the formal statements of laws of war and crime. The convention was
important for the enforcement of international law in the event of a conflict.
Protecting Defenseless people, weapon restrictions, etc. were major outcomes of
this convention. They establish the laws and customs of war by defining the rules
that warring sides must follow. The convention led to the foundation of the
Permanent Court of Arbitration. Third conference was supposed to take place in
1914, but due to outbreak of the World War I, the third conference could not take
place.

The League of Nations (1919) The League of Nations is also called as the son of
the World War I. When the leaders of the Western countries met at Paris Peace
Conference, they decided to create an international organization that would be able
to resolve all kinds of international disputes and also which should not allow
horrific incidents such as World War I. The important purpose of the League of
Nations was made to resolve international disputes through peaceful methods such
as arbitration, negotiation, etc. A member goes to war in opposition to the principle
of the League of Nations; he will be called as an enemy of the entire League of
Nations. The League of Nations was the founder of Permanent International Court
of Justice. For many reasons, the League was unable to achieve its main aim due
to outbreak of World War II, and the same was replaced by, the United Nations.

The United Nations (1945) The Successor of the League of Nations with the
objective of protecting the nations from future wars. It was established on October
24, 1945, the heads of 50 governments met in San Francisco for conference and
drafted the United Nation Charter. Today this establishment is the hub of
international law.
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Recent developments in International Law

The nuclear age and the space age brought new advances in international law.
Under the auspices of the United Nations:

- Five Treaties were signed for the Internationalization of Outer Space (1967) and
Other Celestial Bodies (1979).
- Treaty on the Limited Test Ban 1963 (see Disarmament, nuclear weapons)
banned nuclear tests in the atmosphere, in space and underwater.
- The Nuclear Non-Proliferation Treaty (1968) aimed to limit the proliferation of
nuclear weapons.
- Other treaties included the ban on narcotics (1961), satellite communications
(1963) and terrorism (1973). The Treaty of the Law of the Sea (1982, in force
since 1994) stated the state of environmental problems have culminated in a
multitude of international treaties, including Fisheries Agreements (1958),
Threatened Species (1973) and many other.

Conclusion

The position occupied by International Law and International Organizations has

varied from time to time. Earlier there was no universal law binding on all the
nation states but now they have to abide by laws. The law was once restricted to
one’s region, slowly and steadily, it included in its arena such laws as would help
in maintaining peace in the neighbouring land.

The enactment of International Law was always essential and will be essential in
the time to come provided amendments take place according to the world scenario.
As earlier none would have imagined that restricting the use of nuclear plants
would be important but now, the scenario is such that if it is not forbidden then
nation states would not think twice to have a nuclear war.

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International Law has always acted in the promotion of peace and security, as with
the establishment of International Court of Justice, various nations’ disputes have
been resolved, if there would have been no International Law then the scenario
would be such that the nation states would be waging war even for trivial disputes.
International Law has always been and will be one of the most essential laws,
without which the world could even come to an end.

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 Nature and Definition of International law

Introduction
Law is the element of the society which helps to develop a framework within which
rights and duties can be established. The world today requires a method where
interstate relations can be conducted, and International Law fills this gap. The
United Nations developed this body of International Law for the purpose of
promoting international peace and security. Countries come together to make
binding rules that they believe will benefit their citizens. International Laws
promote peace, justice, common interests and trade. International Law is directly
and strongly influenced by the writings of jurists and publicists, instructions to
diplomatic agents, important conventions even when they are not ratified, and
arbitral awards.

Definitions of International Law –

Traditional Definitions of International Law: International Law regulates the
relations between or among states. States and only states are subjects of
International Law.
Exponents: Oppenheim, J.L. Brierly and Hackworth

• Oppenheim’s Definition:

“Law of Nations or International Law is “the name for the body of customary and
treaty rules which are considered legally binding by civilized states in their inter
Course with each other”
Key components in this definition are
(a) It is a body of rules governing the relations between states;
(b) States regard these rules as binding on them in their relation with one
another and
(c) Those rules are derived from customs and treaties.
Criticism of Oppenheim’s definition:
- Not only states but also international organization is subjects of international
law.
- P.E. Corbett: “The future of International law is one with the future of
International Organizations. Individuals and other private persons have rights
and duties in International Law.
- Not only customary and conventional International Law but it also includes
general principles of Law.
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- The criterion of differentiating so called civilized states was also criticized and
this criterion was completely wrong.
- Modern Definitions of International Law not only regulates the relations between
states but also deals with International organizations, individuals and non –
state entities.

• Definition of J.G. Starke

“International Law may be defined as - body of law which is composed of the

principles and rules of conduct which states feel themselves bound to observe,
and therefore, do commonly observe in their relations with each other, and
which includes also;
(a) 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; and
(b) Certain rules are relating to individuals and non-states entities so far as
the rights or duties of such individuals and non-state entities are the concern
of the international community.”
Reasons for emergence of new definition includes, establishment of a large number
of permanent international institutions or organisations, protection of human
rights and fundamental freedoms and creation of new rules for the punishment of
persons committing international crime.

• New Definition of International law in ninth edition of Oppenheim's Book.

"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 Organisations and, to some extent, also individuals may be
subjects of rights conferred and duties imposed by international law."

Further, "States are the principal subjects of international law States are
primarily, but not exclusively, the subjects of international law. To the extent
that bodies other than States directly possess some rights, power and duties in
international law they can be regarded as subjects of international law,
possessing international personality.
Moreover, "Not only individuals but also certain territorial or political units other
than States, to a limited extent, be directly the subject of rights and duties under
international law."

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Nature of International law
Is international law a true law?
There is a wide divide among the jurists regarding the nature of International law.
There is one view that International law is not a true law. The jurists of this view
think that International law is a code of rules of conduct of moral force only. Other
Jurists think International law is a true law, and it is to be regarded as law in the
same way as that of ordinary laws of a State which is binding upon individuals.
Austin's View: International law is not a true law
Let us understand the nature of International law on the basis of Austin's
imperative or command theory.
Austin's Imperative or Command Theory of Law:
According to Austin, positive law has three main features:

• it is a type of command,
• It is laid down by a political sovereign, and
• It is enforceable to sanction. Thus every law is a species command and
prescribes a course of conduct.
According to Austin the relationship of superior to inferior is due to the power which
the superior enjoy over the inferior. i.e., the ability of the superior to punish the
inferior for disobedience. He further emphasises that the law is law only if it is
effective and it must be generally obeyed and every law should have a sanction of
the physical force of the State.
Holland has remarked that “International Law is the vanishing point of
jurisprudence”.
In his view, rules of international law are followed by courtesy and hence they
should not be kept in the category of law. Holland further says that International
Law is the vanishing point of Jurisprudence because in his view there is no
legislative, executive nor judge or arbiter to decide International disputes and that
the rules of International Law are followed by States by courtesy.
According to this theory International Law is not a true Law. In support of
their argument, they gave the following explanation:
• International Law is only opinion or sentiments among current nations.
• There being no agency for international legislation, hence International Law is not
a command of sovereign or superior determinate authority.
• There is no adequate sanction behind it.

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•There is no mechanism and agency to enforce International Law. Hence obligation
to observe International Law reduces to moral rules.
• The existence of the third party (determinate impartial arbitrator) which can
interpret and enforce International Law is absent. The International Court of
Justice cannot exercise jurisdiction if a State which is a party to a dispute has not
given its consent.
Thus International Law is a body of rules governing the relation of sovereign states
inter se. Hence Austin called International law as "positive international
morality" similar to the rules binding club and Society.
Criticism of above Views:
• Austin has taken into consideration in his definition only that part of law which
is enacted by sovereign legislative authority. He completely ignored the customary
or unwritten laws. Thus the definition cannot be applied for Hindu, Mohammedan
and the Canon law because these laws came into existence long before the state
began to perform legislative functions.
• Austin's theory says that laws are observed because of fear of sanctions behind
them. Austin's definition cannot be applied to a Modern democratic country whose
machinery is employed for the result of the people. In a democratic country, the
sanction behind the law is not the force of the state but the willingness of the people
to obey the same. It is not applicable in International and Constitutional law.
• The main criticism of Salmond is that, the theory disregards the moral or ethical
elements of the law. The end of law is justice. Any definition of law without reference
to justice is inadequate.
Thus Austin's definition of law is inadequate and his inference that International
law is not true is incorrect. It is now generally agreed that Holland’s view that
international law is the vanishing point of jurisprudence is not correct. The jurists
who do-not consider international law as the vanishing point of jurisprudence say
that there is difference between state law and International Law. International Law
cannot be enacted by the state but still there is agency for its enforcement.
Oppenheim's View: International law is a true law
Let us understand the nature of International law on the basis of Oppenheim's
definition. According to Professor Oppenheim (Eighth Edition of the book
International law), "Law is a body of rules for human conduct within a
community which by common consent of this community shall be enforced
by an external power.
The main features of this definition are

• There must be a community.

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 • There must be a body of rules for human conduct.
• There must be a common consent of this community for an external power to
enforce the rules.
This definition is not using words sovereign or legislature. Thus it means that it is
not necessary that rules should be enacted through law making authority.
We can see that there is a community of nations in the world. There is
interdependence of these nations on each other, which is the basis of formation of
such community. There exist rules of conduct, based on interdependence of these
nations on each other, which is the basis of formation of such community. There
exist rules of conduct, based on customs of hundreds of years, International
agreements and treaties. There is common consent of the community of nations for
the enforcement of the rules for international conduct. Hence in the light of
Oppenheim's definition of law, International Law is a true law.
Starke while accepting International Law as Law has said, “That in various
communities, law is in existence without any sanction and legal force or fear and
such law has got the same acceptance as the law framed and enacted by state
Legislative Assemblies. With the result of international treaties and conventions
International Law is in existence.
It is pertinent to mention here that from the above noted contents it is clear
that the following grounds are supportive for accepting the International Law
as law:-
(i) Now so many disputes are settled not on the basis of moral arguments but
on the basis of International Treaties, precedents, opinions of specialists
and conventions.
(ii) States do not deny the existence of International Law. On the contrary
they interpret International Law so to justify their conduct.
(iii) In some states like USA and UK international Law is treated as part of their
own law. A leading case on the point is the, Paqueta v/s Habanna-1900.
Justice Gray observed that the international law is a part of our law and
must be administered by courts of justice.”
(iv) As per statutes of the International Court of Justice, the international
court of Justice has to decide disputes as are submitted to it in accordance
with International Law.
(v) International conventions and conferences also treat international Law as
Law in its true sense.
(vi) The United Nations is based on the true legality of International Law.
(vii) Customary rules of International Law are now being replaced by law
making treaties and conventions. The bulk of International Law comprises
of rules laid down by various law-making treaties such as, Geneva and
Hague conventions.
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International Law is a Weak Law:
The rules of international law are not as effective as municipal law, hence
International Law is weak law. Following are some reasons for such conclusion.

• International Law is a contradictory and vague mass of agreements and

norms that offers few clear guidelines.
• Sometimes they are formulated in such a way as give wide options to the
States parties.
• They are not comparable in efficacy to State legislative machinery.
• Enforcement measures available under the system are not effective. If there
is a dispute between two states and one of the states approaches the
International court of Justice and wishes to summon the other state, then for
that the other state has to accept jurisdiction of the Court for the dispute.
Similarly, the Court has no power to enforce its decisions.
• "Even if we could specify the contents of international law, the absence of an
effective legal system severely limits its impact.
• Domestic legal systems usually enjoy compulsory jurisdiction, whereas
international legal bodies do not. There is the International Court of Justice,
but it does not have jurisdiction to decide the disputes of all the States since
the Court acts with consent of the States only.
• During war, many times, rules of International Law are frequently violated.
Conclusion
- As per Austin's definition International Law is not a true law but with
Oppenheim's concept it is a true law. Thus answer of the question whether
International Law is a true law, depends on which definition of law we consider
as a base.
- It should be noted that at Austin's time international community lacked
legislation, a court, sanctioning power and enforcement machinery. Hence his
conclusion was that International Law is not a true law. But substantial
development has taken place since the definition of law given by Austin. Many
International Treaties are signed. There are organizations like United Nations.
- There is International Court of Justice to solve international level disputes or
disputes between states.
- If party to the dispute fails to perform its obligation, the Security Council of the
United Nations has power to enforce the decision of the Court. In the light of
these changes we can say that International Law is a true law.
- But the rules of international law are not as effective as municipal law hence
International Law is weak law.

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 BASIS OF INTERNATIONAL LAW
International Law is a law but the question arises as to what is the basis of
International Law. There are two main theories in this connection:
1. Naturalist Theory ( Theories as to law of Nature) :-
- The Jurists who adhere to this theory are of the view that International Law is a
part of the Law of the Nature.
- Starke has written, “States submitted to International Law because their
relations were regulated by higher law, the law of Nature of which International
Law was a part.” Law of nature was connected with religion. It was regarded as
the divine Law. Natural Laws are original and fundamental. They incorporate
the will of the Governor and governed and advance their consent or will. That is
why international law is also based on natural law.
- The jurists of 16th and 17th century secularized the concept of law of nature.
- Much of the credit for this goes to the eminent jurist, Grotius. He expounded
the secularised concept of the Law of Nature. According to him, natural law
was the 'dictate of right reason. His followers applied the law of nature as an
ideal law which was founded on the nature of man as a reasonable law was
considered binding because it was in fact, natural law applied in special
circumstances.
- Vattel, a famous jurist of 18th century also expressed the view that natural law
was the basis of International Law. Pufendorf, Christian Thomasius, etc. are
other prominent exponents of Law of nature.
- It was viewed that natural law is uncertain and doubtful but it is accepted that
Natural Law has greatly influenced the growth and has given the birth to
International Law and its development. Most of its laws are framed from Natural
Law.

Criticism.-
- It may be noted that each follower of the law of nature gives different meaning.
They use it as a metaphor. Different jurists give different meaning such as,
reason, justice, utility, general interest of international community, etc. Hence
the meaning of law of nature is very vague and uncertain.
- The main defect of this theory is that it is not based on realities and actual
practices of the States.

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Influence.
- Despite the above criticism, the Law of Nature has greatly, influenced the growth
of International Law.
- Traces of Natural Law theories survive today, although in a much less dogmatic
form.
- The ideal nature of the natural law has also influenced the growth of
international law.
- Natural law is used as the method of dispute resolution based on a conscious
attempt to perpetuate past similarities in dispute resolution.

2. Positivist Theory:-
- The inadequacies inherent in the naturalist’s postulations brought to birth
another school of thought known as the positivist school.
- Positivism rejected divine authority as the basis for law and argued that only law
that existed was what its subject agreed to. They stressed the consensual basis
of law; rights and responsibilities of international actors were protected by laws
and standards of behaviour which they aligned with themselves.
- Positivism stresses the overwhelming importance of the state and tends to regard
international law as founded upon the consent of the state. This theory is based
on Positivism i.e. law which is in the fact as contrasted with law which ought
to be.
- The positivists base their views on the actual practice of the states. In their view
customs and treaties are the main sources of International Law.
- According to German economist, Hegal, “International Law is the natural
consent of states. Without the consent of states, no law can bind the states. This
consent may be express or implied.”

Criticisms:
- The view of the positivists that the whole of international law is based on the
consent of the State is far from truth.
- The critics of the above views say that consent is not always necessary for all
laws. There are some laws which are binding on states irrespective of their
consent e.g. Vienna Convention on the Law of Treaties. Article 36 of the Treaty
says that the provisions of the Treaty may be binding on third parties even if
they have not consented to it.
- "Even apart from its lack of accord with reality the theory that international law
rests on agreements is problematic in another respect. Declarations of will are,
of course in themselves pure facts which have legal effects only because some
rule of law gives them such effects.

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- The positivist view that treaties and customs are only sources of international
law is also not in conformity with Article 38 of the Statute of International Court
of Justice according to which "General Principles of Law Recognised by Civilized
Nations are also the sources of International Law.

Influence and Contribution

- Despite the above-mentioned defects and criticism, a great merit of this theory
is that it is based on the actual practice of the States. It emphasises that only
those rules are the rules of international law which have been adopted by the
States and are observed in practice.
- Yet another special feature of this theory is that it has encouraged realistic
outlook in international law, in several cases concerning the customary rule of
international law, the International Court of Justice has adopted the positivist
attitude.

3. Eclectic or monist school of thought

The third theory which posited that two levels of law existed. One, which is
universal and timeless, was God-given, and the other which is finite and voluntary,
was man-made. The eclectic school attempted to bridge the gap between naturalists
and positivists; has a perception that naturalist law and positivist law were simply
different sides of the same coin.
Some other theories, regarding the basis of international Law Following are
some other theories regarding the basis of International Law: (1) Theory of
Consent: (2) Auto-limitation Theory: (3) Pacta Sunt Servanda; and (4) Theory of
Fundamental Rights. The first three theories have been derived from positivism and
the fourth has been derived from Theories as to Law of Nature. We will now briefly
discuss these theories one by one.

(1) Theory of Consent.

- In the view of the supporters of this theory, consent of States is the basis of
international law. States observe rules of international law because they have
given their consent for it.
- Positivists have given much support to this view. The chief exponents of this
theory are Anzilotti, Triepel, etc. This theory fails to explain the basis of
customary international law. In the view of the supporters of this theory, States
are bound to observe customary rules of international law, because they have

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 given their implied consent for their acceptance. This theory has been subjected
to severe criticism by many jurists.

Criticism
- As pointed out by Starke, in practice it is not necessary to prove that the other
State or States have given their consent in regard to a specific rule of
international law.
- According to Prof. Smith, all States are bound by international law, no matter
whether they have given their consent or not. In regard to customary rules of
international law, the basis of implied consent is far from correct.
- Theory of consent fails to explain the case of recognition of new State. The
granting of recognition is the act of other States and hence it would be wrong to
say by getting recognition, the recognised State has given its consent in respect
of international law.

(2) Auto limitation Theory.

- According to this theory, international law binding upon States because they
have restricted their powers through the process of auto limitation and have
agreed to abide by international law. This theory is also based on the view of the
positivists.
- This theory lays great stress on independence and sovereignty of the States.
- Jellinck is the chief exponent of this theory.
- The basis of this theory is that each State has a will which is completely
independent and free from external influences. But through the process of auto-
limitation, State can restrict its powers and thereby limit its will.
- In short, States are not bound to follow international law because they are
independent and sovereign but the States can make themselves bound by rules
of international law by restricting its powers.

Criticism:
- This theory is based upon a presumption that there exists a State will in fact the
will of the State is nothing but the will of the people who compose it.
- Besides this, auto-limitation is no limitation at all. The auto-limitation theory
will imply that the State can free itself from self-imposed restriction at its will.
In practice, this is not possible.

(3) Pacta Sunt Servanda.-

- In the view of Italian jurist, Anzilotti, the binding force of international law is
based on the supreme fundamental norm or principle, known as pacta sunt
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 servanda. This means that the agreements entered into States will be respected
and followed by them in good faith. This is a well-established and recognised
custom of international law.
- This customary principle of international law has now been codified and finds
mention is Article 26 of the Vienna Convention on the Law of Treaties, 1969
provides that every treaty in force is binding upon the parties to it and must be
performed by them in good faith. According to Anzilotti, this norm is the
foundation of the binding force of international law.
- Like positivism, the principle of pacta sunt servanda is also based on the actual
practice of States. It emphasises the importance of the agreement entered into
by States and regards them as the basis of international law.

Criticism-
- It cannot be admitted that pacta sunt servanda is a very important principle of
international Law; States must respect the agreements entered into by them and
follow the same in good faith. If it were not so, there would be anarchy and
disorder in the international field. But to assert that the binding force of
international law based only on the principle of Pacta sunt servanda is far from
truth. It fails to explain the binding force of customary rules of international law
which are not based upon agreements between States.

(4) Theory of Fundamental Rights.

This theory is based on the naturalistic view point. According to this view-point,
prior to the existence of State, man used to live in natural state and even in that
state he possessed some fundamental rights, such as independence, equality,
right to self-preservation. Like man, State also possessed these fundamental
rights because so far there is, no world institution over and above the States

Criticism.-
This, theory has been severely criticised by jurists. J.L. Brierly has made the
following criticism of the theory
- According to this theory when a new State is admitted to the family of nations,
it brings with it certain fundamental rights which are inherent. As a matter of
fact, such rights are meaningless unless there is a legal system which confers
validity on them.
- This theory cannot be commended because it is in favour of giving more freedom
to the States and lays less emphasis on social relations and co-operation among
the States.

19 | P a g e
- Last but not the least shortcoming of this theory is that it regards certain
fundamental rights, such as, independence, equality, etc, as natural rights. But
as a matter of fact, these fundamental rights are as a result of historical
development.

New trends regarding basis of obligation in International Law:

• Consent: Since the beginning of modern international law, consent has been
the basis of obligation under international law. Consent played such a
predominant role that it was even extended to explain the basis of customary
rules of international law.

• Majority rule: In the course of time, General Assembly gained strength and
became the most potent organ of the U.N. Though not originally envisaged,
General Assembly even started legislative activities and passed a number of
resolutions which were considered binding or having legal implications. Thus
the fort of unanimity rule seems to be crumbling against the onslaught of
majority rule in international organisations. This change has necessitated a
change in the theory of obligation in international law.

• A unique feature of new international law is that it is found not only in law but
also in law creating conferences such as those of UNCTAZ, GATT, IBRD. IMB,
OECD, OPEC etc. An international law would cease to have any validity or
relevance if it did not take cognizance of the processes through which the world
community pursued its pressing concerns.

20 | P a g e
 SOURCES OF INTERNATIONAL LAW

Where does international law come from and how is it made?

These are more difficult questions than one might expect and require considerable
care. In particular, it is dangerous to try to transfer ideas from national legal
systems to the very different context of international law. There is no “Code of
International Law”. International law has no Parliament and nothing that can really
be described as legislation. While there is an International Court of Justice and a
range of specialised international courts and tribunals, their jurisdiction is
critically dependent upon the consent of States and they lack what can properly be
described as a compulsory jurisdiction of the kind possessed by national courts.
The result is that international law is made largely on a decentralised basis by the
actions of the 192 States which make up the international community. The sources
of international law may be classified into five categories
(1) International conventions;

(2) International customs:

(3) General Principles of Law Recognized by civilized Nations;

(4) Decisions of Judicial or Arbitral Tribunals and Juristic works;

(5) Decisions or Determinations of the Organs of International Institutions.

The above-mentioned third source 'General Principles of Law Recognised by

Civilized Nations' was first mentioned in Article 38 of the statute of the Permanent
Court of International Justice. It was retained in Article 38 of the statute of the
International Court of Justice which mentions the following sources of
international law: (1) International conventions (2) International customs; (3)
General principles of law recognized by civilised nations; and (4) Judicial decisions
and the teachings of most highly qualified publicists of the various countries as
subsidiary means for the determination of rules of law. The above-mentioned Fifth
source, i.e., Decisions or determinations of the Organs of International institution
does not find mention in Article 38 of the statute of the court but it has now become
a well-recognized source.

1) International Conventions

21 | P a g e
- In the modern period, international treaties are the most important source of
International law. This is because the reason, inter alia, that states have found
in this source, a deliberate method which create binding international law.
Article 38 of the statute of the International Court of Justice lists 'International
conventions whether general or particular, establishing rules expressly
recognized by the contesting States as the first source of international law.
- As pointed out by Manely O. Hudson, the term 'conventions is used in a general
and inclusive sense. It would seem to apply to any treaty, convention, protocol,
or agreement, regardless of its title or form
- A convention may be general, either because of the number of parties to it, or
because of the character of its contents; it may be 'particular' because of the
limited number of parties, or because of the limited character of its subject-
matter.
- Whenever, an International Tribunal decides an international dispute then its
first endeavour is to find out whether there is an international treaty on the
point. In case there is an international treaty, the decision of the court is based
upon the provisions of that treaty.
- According to Article 2 Vienna Convention on the Law of Treaties, 1969 which
has 114 parties as of April, 2014, “A treaty is an agreement whereby two or more
states establish or seek to establish relationship between them governed by
International Law” but this definition is narrow and highly criticized for not
including other subjects.
- But Reference may be made here to Vienna Convention on the Law of Treaties
between States and International Organisations or between International
Organisations (21 March 1986). Article 1 of this convention provides that the
present convention applies to: (a) treaties between one or more states and one
or more international organisations; and (b) treaties between international
organisations.
- Article 26 of this convention reiterates the principle of Pacta Sunt Servanda. It
provides that every treaty in force is binding upon the parties to it and must be
performed by them in good faith.
- International treaties may be of the two types:
(A) Law-making treaties and
(B) Treaty contracts:

(A) Law-making treaties. The provisions of law-making treaty are directly the
source of international law the development of law-making treaties received
an impetus from the middle of 19th century. The main reason for this was
that in view of the changing circumstances, customs, which were hitherto
the most important source of international law, were proving to be
inadequate. Consequently, States regarded it necessary and expedient to

22 | P a g e
 enter into treaties and thereby established their relations in accordance with
the changing times and circumstances.
Law-making treaties may again be divided into following two types:-
a. Treaties enunciating rules of universal international law. United Nations
Charter is the best example of such type of treaty.
b. International treaties which lay down general principles. These treaties are
entered into by a large number of countries. 1958 Geneva Conventions on
the law of the Sea and Vienna Convention on the Law of Treaties, 1969 are
good examples of such type of treaties.
Law-making treaties perform the same functions in the international field as
legislation does in the State field.
But an international treaty can enunciate universal principle only when it
receives the support of the essential States. For example a law-making treaty
which does not receive the support from states such as, Russia, Britain,
America, France and China, cannot effectively enunciate general or universal
rules of nations.
(B) Treaty contracts.
As compared to law-making treaties, treaty contracts are entered into by two
or more States. The provisions of such treaties are binding on the parties to
the treaty.

2. International customs.
- International customs have been regarded as one of the prominent sources
of international law for a long time. It is the oldest and the original source;
of international as well as of law in general.
- Customary rules of international law are the rules which have been
developed in a long process of historical development.
- Article 38(b) of the Statute of International Court of Justice recognises
'International Custom, as evidence of general practice accepted as law, as
one of the sources of international law.
- In order to understand the meaning of 'custom', it is necessary to know the
meaning of the word 'usage. Usage is in fact the early stage of custom. By
usage we mean those habits which are often repeated by the States.
- As pointed out by Starke, where a custom begins, usage ends. Usage is an
international habit which has yet not received the force of law.
- Usage is an international habit of action that has yet not received full legal
attestation. But when this usage receives the general acceptance of
recognition by the States in their relations with each other, there develops

23 | P a g e
 a conception that such a habit or behaviour has become right as well as
obligation, of the States and in this way usage becomes the custom.
- It is not necessary that the usage should always precede a custom. It is also
not necessary that a usage must always become a custom. In certain cases
a usage may become a custom in certain other cases it may not become a
custom.
Following are the main ingredients of an international custom:-
I. Long Duration-Long duration is generally said to be an essential ingredient
of a custom. Article 38 of the Statute of the International Court of Justice
directs the World Court to apply international custom, as evidence of a
general practice accepted as law. Emphasis is not given on a practice being
repeated for a long duration. What is more important is the practice of States
accepting the practice concerned as law. But in the field of international law,
customs have also emerged in a short duration. for example, custom
relating to sovereignty over air space and the continental shelf.

II. Uniformity and consistency-

- The custom should also be uniform and consistent. It may, however, be

noted that complete uniformity is not necessary. Nevertheless, there must
be substantial uniformity.
- In its judgment of 27 June 1986 in the case concerning Military and
Paramilitary Activities in and against Nicaragua while referring occasional
violations of the principle of non-intervention, the International Court of
Justice observed: "It is not to be expected that in the practice of states the
application of the rules in question should have been perfect, in the sense
that states should have refrained, with complete consistency, from the use
of force or from intervention in each other's internal affairs. The court does
not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutely rigorous conformity with the
rule. In order to deduce the existence of customary rules the court deems it
sufficient that the conduct of states should in general, be consistent with
such rules and that instances of state conduct inconsistent with a given
rule should generally have been treated as breaches of that rule not as
indication of the recognition of a new rule."

(iii) Generality of Practice

Although universality of practice is not necessary, the practice should have

been generally observed or repeated by numerous States.

24 | P a g e
 (iv) Opinio juris et necessitatis.

- According to Article 38 of the Statute of the International Court of Justice,

International custom should be the evidence of general practice accepted as
law.
- Customary practice, even when it is general and consistent, is not
customary law unless, opinio juris is present, that is to say, unless the
practice is recognized as being required by international law, It is this sense
of legal obligation, as distinguished from motives of fairness, convenience,
or morality, that underlies customary law.
- Customary rules of international law have developed as a result of (1)
Diplomatic relations between States; (2) Practice of international organs; (3)
State laws, decisions of State courts and State military or administrative
practices, and (4) Treaties between States.

It is an important matter to see as to how international custom will be applied

in international law. There are two leading cases on the point:

(a) West Rand Central Gold Mining Company Ltd. v. R 1905 –

In this case a test regarding the general recognition of custom was laid down.
The Court ruled that for a valid international custom it is necessary that it
should be proved by satisfactory evidence that the custom is of such nature
that it has received general consent of the States and no civilized State shall
oppose it.

(b) Right of passage over Indian territory case [Portugal v.India] 1960.
- In this case the International Court of Justice pointed out that when in regard
to any matter or practice, two States follow it repeatedly for a long time, it
becomes a binding customary rule.
- The facts of this case are as follows-
➢ This case deals with the question relating to the right of Portugal to send
its nationals and military through the Indian territory.
➢ Until 1954 Portugal possessed the right of passage through Indian
territory which was in between Dadra and Nagar Haveli and Daman. The
right was however subject to control and regulation by India.
➢ In between October, 1953 and July, 1954, certain incidents took place:
the relation between India and Portugal worsened and Portugal claimed
that India was exercising excessive control.
➢ In July 1954, the people of Dadra (which was a Potuguese Colony)
revolted against the Portuguese Government. It naturally had certain
repercussions over the border areas of Indian territory. Consequently,
25 | P a g e
 the Government of India suspended the right of passage of Portugal over
this area. India contended that it had become necessary due to the
special circumstances that had arisen.
➢ Portugal took this matter to the International Court of Justice. The
International Court of Justice had to decide whether India was entitled
to exercise control over the way and whether Portugal could send its
military or armed forces through the passage? The Court had also to give
its verdict on the point whether India acted contrary to its obligations?
➢ It may be noted that the claim of Portugal was based on the treaty of
1779. The International Court of Justice decided that Portugal was not
entitled to send its armed forces through the way which fell within the
Indian territory. The Court ruled that India did not act contrary to its
obligations. The Court, however, ruled that the Treaty of 1779 was a
valid treaty and Portugal was entitled to get passage through Indian
territory in consequence of the provisions of the said treaty. The decision
is important in so far as that the International Court of Justice ruled
that if under a treaty a State gets right of passage through the territory
of another State and if it continues for a long time, then it gains the force
of law and thereby imposes the obligation upon the State affected to
continue to give right of such passage. It may be noted here that on 31st
December, 1974, a treaty was signed between India and Portugal
wherein the latter recognised the full sovereignty of India over Goa,
Daman and Diu, Dadra and Nagar Haveli.

Importance of custom as a source of international Law and Evaluation.

There has been a marked decline in the importance of customs as a source of
international law in modern times. This is mainly due to the fact that the
process of the development of a new custom is very slow. However, in modern
times also the development of new custom is possible and at times customs
have developed with accelerated speed. Principles relating to sovereignty over
air space and continental shelf are its glaring examples. Thus in the modern
times the importance of custom as a source of law has greatly reduced, with
the simultaneous rise in importance of treaties and conventions, for the
development of international law.

3. General Principles of Law recognized by civilized states"

- Para (1) (C) of Article 38 of the Statute of International Court of Justice
lists General Principles of Law Recognized by Civilised States as the third
source of international law. In the modern period, it has become an
important source.

26 | P a g e
 - This source helps international law to adapt itself in accordance of the
changing times and circumstances.
- There are two views prevalent about the phrase general principles of law
recognized by civilized nations.
a. According to one view the phrase includes general principles (such as both
sides of a dispute should be given a fair hearing and no one can sit in
judgement in his own case) which are found in domestic Jurisprudence
and can be applied to international legal questions.
b. The other view regards the phrase as linked to natural law as interpreted
during recent centuries in the western world. According to this view
general principle of law recognised by civilized nations have emerged as a
result of transformation of broad universal principles of law applicable to
all the mankind into specific rules of international law.
- By general principles of law we mean 'those rules or standards which we
find repeated in much the same form in the developed systems of law,
either because they have a common origin, as in Roman law, or because
they express a necessary response to certain basic needs of human
association. Examples are the rule of pacta sunt servanda, that
contracts must be kept; the principle that reparation must be made for
damage caused by fault; the right of self defence for the individual against
attack on his person or family and the community against clear and
present danger;
- Following are some of the important cases relating to the general
principles of law recognized by civilized States:-

(a) R. v. Keyn. In this case the Court ruled that international law is based
on justice, equality and conscience which has been accepted by long practice
of States.

(b) United States v. Schooner.-In this case Justice Storey of United States
of America ruled that International law should be based on the general
principle of law recognized by civilized States. He was giving decision relating
to abolition of system of slavery.

The International Court have recognised as general principles: (i) good faith;
(ii) responsibility; (iii) prescription; (iv) in the absence of any express provision
to the contrary, every Court has right to determine the limits of its own
jurisdiction; (v) a party to a dispute cannot himself be an arbitrator or judge;
(vi) res judicata; and (vii) in any judicial proceeding the Court shall give
proper and equal opportunity of hearing to both etc.

27 | P a g e
4. Decisions of Judicial or Arbitral Tribunals and Juristic Works

International Judicial Decisions.

- In the modern period International Court of Justice is the main

International Judicial Tribunal. It was established as a successor of the
Permanent Court of International Justice.
- It may, however, be noted that the decision of International Court of
Justice does not create a binding general rule of international law. Article
59 of the Statute of the International Court of Justice makes it clear that
the decisions of the court will have "no binding force except between the
parties and in respect of that particular case" Earlier decisions of the
Court are not binding on the Court itself and the Court is free to deviate
from its earlier decisions.
- However, ordinarily the Court does not deviate from its earlier decisions
and it changes its earlier decisions only in very special circumstances.
Thus while in principle it does not follow the doctrine of precedent, in
practice, it ordinarily follows it.
- So far as the advisory opinion of the International Court of Justice is
concerned it is not binding at all. But it clarifies the rule of international
law on a particular point or matter.
- According to Article (38)(1) (d), subject to the provisions of Art. 59 judicial
decisions are "subsidiary means for the determination of rules of law.
Thus judicial decisions, unlike customs and treaties, are not direct
sources of law, they are subsidiary and indirect sources of International
law.
State Judicial Decisions- State judicial decisions may become rules of
international law when:-
a. State judicial decisions are treated as weighty precedents.

b. Decisions of the State Courts may become the customary rule of international
law in the same way as customs are developed.

Decisions of International Arbitral Tribunals.

- In the view of some jurists the decisions of International Arbitral

Tribunals cannot be treated as source of international law. These jurists
have, rightly too, pointed out that in most of the arbitral cases arbitrators’
act like mediators and diplomats rather than as judges. The Kutch Award
(1968) bears testimony to this fact. Judge Lauterpacht has aptly written,
"One of the reasons usually given for its (i.e. Permanent Court of

28 | P a g e
 Arbitration) inadequacy was that the awards rendered by its tribunals
were not legal in form and substance;
- It may, however, be noted that some of the decisions of the Permanent
Court of Arbitration are treated as weighty precedent and can be regarded
as source of International law.

Juristic works.

Although juristic works cannot be treated as an independent source of

international law, yet the view of the jurists may help in the development of
law. The views of the jurists are not direct sources of international law. But
they sometimes become instrumental in the development of international
customs. According to Article 38 of the International Court of Justice, the
works of highly qualified jurists are subsidiary means for the determination
of the rules of international law.
In the words of Justice Gray, “Where there is no treaty and no controlling
executive of legislative act or judicial decision, resort must be had to the
customs and usages, of civilized nations and as evidence of these, the works
of jurists and commentators who by years of labour, research and experience
have made themselves peculiarly well-acquainted with the subjects which
they treat. Such works are resorted to by judicial tribunals not for the
speculations of their authors concerning what the law ought to be but for
trustworthy evidence of what the law really is".

(5) Decisions or determinations of the organs of International Institutions

- Before the establishment of League of Nations, International Customs and

International Conventions were recognized as the main source of
International Law.
- In addition to these main sources, juristic works and decisions of judicial
and arbitral tribunals were regarded as subsidiary means for the
determination of rules of law.
- The statute of PCIJ under Art. 38 incorporated these sources and also
introduced one new source namely "General principles of law recognised
by civilized nations". Article 38 however, did not at all mention decisions
or determinations of organs of International Institution as source of law.
The reason for this was quite obvious that by this time International
organisations had not assumed such an important role as they have done
now.
- The evolution of International organisation represents a significant stage
in the history and development of International law.
- Even before the establishment of the League of Nations, some
experiments were made for development of international organisations.
29 | P a g e
 - After the establishment of U.N. and of course the establishment of dozens
of inter- governmental organisations which were brought into relationship
with the U.N. and called specialized agencies of U.N.
- International Organisations have become a part and parcel not only of
international life but also of national life. Their impact is clearly evident
on every aspect of our life. For example if there is a health problem i.e.
spread of diseases etc. W.H.O. comes to our rescue; in respect of problems
of workers and labourers, there is I.L.O. which has assumed such a
significant role in this field that its conventions taken as a whole, are
called International Labour Code, which is said to be generally binding on
all states;
- International Law Commission which not only surveys the whole field of
international law but also prepares drafts and make recommendations to
these aspects to General Assembly. The General Assembly in its turn
adopts its recommendations and recommends the holding of
international conferences for adopting international conventions on
different topics.
- In view of these strong reasons, the decisions and determination of organs
are now recognised as an important source of international law.
- Although they do not find mention in Art. 38 of Statute of ICJ but ICJ
itself has recognised it in number of cases.
- In the view of Starke, The organs of International Institutions may lead to
development of International law in the following ways:

a. The resolutions of the organs of international institutions may be binding

on the members in regard to the internal matters of the institution.
b. Organs of international institution can decide the limits of their competence.
c. Sometimes the organs of international institution may make the
interpretation of the different provisions of their constitutional instruments.
This decision becomes a part of the law of international institution which in
its turn becomes a part of the international law.
d. Some organs of international institutions are empowered to give quasi-
judicial decisions. European Economic Community deserves a special
mention in this connection.

Some other sources of International Law

Besides the above sources of International law, following are some of the other
subsidiary sources of international law:

30 | P a g e
 a. International Comity-The mutual relations of nations are based on the
principle of comity. In other words, when a State behaves in a particular way
with other States, the latter have also to behave in the same way. According to
Prof. Oppenheim, international comity has helped in the development of
international law.
b. State Paper- In the modern period almost all the civilized States have
diplomatic relations with each other. They send letters to each other for mutual
interests. These letters are sometimes published. A study of these letters
sometime reveals that certain principles are repeatedly followed by States in
their mutual intercourse. Sometimes these State Papers help in the solution of
a conflict or controversy.
c. State guidance for their officers- It is mostly seen that a number of matters
of the Governments of respective States are resolved on the advice of their legal
advisers. These advices are also, therefore, sometimes treated as sources of
international law.
d. Reason- Reason has occupied a special position in all the ages. In modem
period also it occupies an important place. It has performed a special role in
the development of international law. Whenever there is no rule of international
law to guide the court, the matter is resolved on the basis of reason. By reason,
we mean the judicial reason through which principles are discovered to face
the new situations which are considered valid by the jurists. As pointed out by
Pollock, "The law of nations is founded on justice, equity, convenience, and the
reason of the thing and confirmed by long usage. The court gets an opportunity
of applying these principles particularly when there is some ambiguity about
the meaning of any provision.
e. Equity and Justice. "Equity" is used here in the sense of considerations of
fairness, reasonableness, and policy often necessary for the sensible
application of the more settled rules of law. Strictly, it cannot be a source of
law, and yet it may be an important factor in the process of decision.

The World Court by majority has taken the view that the sources of
international law are not hierarchical but are necessarily complimentary and
inter related.

31 | P a g e
32 | P a g e
 RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

Certain theories have been propounded to explain the relationship between

International Law and Municipal Law. Following are some of the prominent

theories in this connection:

(1) Monism;
(2) Dualism;
(3) Specific Adoption theory:
(4) Transformation theory and
(5) Delegation theory.
These theories have been put forward to explain the relationship between
International Law and State Law. Among all these theories the most popular are
Monism' and 'Dualism' and they are diametrically opposed to each other.

(1) Monism.

- The exponents of this theory emphasize the scientific analysis of the

internal structure of law. According to them law is a unified branch of
knowledge, no matter whether it applies on persons or other entities.
- "According to monist belief, international obligation and municipal rules
are facets of same phenomenon, the two deriving ultimately from one
basic norm and belonging to the unitary order comprised by the
conception of law."
- "In their (le., monists) view the science of law is a unified field of
knowledge, and the decisive point is, therefore, whether or not
international law is true law.
- Once it is accepted as hypothesis that international law is a system of
rules of truly legal character, it is impossible, according to Kelsen (1881-
1973) and other monistic writers to deny that the two systems constitute
part of that unity corresponding to the unity of legal science.
- It has already been pointed out in the earlier Chapter that international
law is a law in the true sense of the term and keeping this view in mind,
monism seems to be reasonable and correct theory. Wright, Kelsen and
Duguit, etc. are some of the prominent exponents of monism.
- According to Starke - International law is a part of municipal law and
municipal courts passes decision according to rules of international law.
- According to Karnell - Objectives of International law and Municipal law
are human welfare.

33 | P a g e
 - According to Kelson – All the norms of International law are Superior to
municipal law. Hence, if municipal laws are inconsistent with
International law are invalid.
- According to the exponents of Monism International Law and Municipal
law are intimately connected with each other. International Law and
Municipal Law are the two branches of unified knowledge of law which
are applicable to human community in some or the other way. In the view
of the monistic writers, in the ultimate analysis of law we find that man
is at the root to all laws. All laws are made for men and men only in the
ultimate analysis.

Criticism
Monism is a very sound theory. It is very difficult to disprove the view of Kelsen that
man lays at the root of all laws.
- But in actual practice states do not follow this theory.
- They contend that Municipal Law and International Law are two separate
systems of law.
- Further, each state is sovereign and as such is not bound by international
law.
- States follow international law simply because they give their consent to
be bound and on account of other reasons.

(2) Dualism.
- In the view of the dualistic writers, International law and State law
are two separate laws.
- "The Monist view of law is part of philosophy according to which totality
is a single structure.
- But within the framework of the unitary universe is diversity of
phenomenon...... Differences are significant and the dualist considers
that Municipal law differs markedly from international precepts. Monism
remained in vogue for a long time. Monism exercised a great influence
upon international law, because it had close association with natural law.
- In the 19th century, however, the existence of State-will and complete
sovereignty of the State were emphasized. The conception of State-will
was taken from Hegel, a German scholar and was further developed.
- Dualism is based on the complete sovereignty of States. The chief
exponents of this theory are Triepel and Anzilloti.
- Anzilloti has tried to explain the difference between international law and
State law in a different way. According to him, there is a difference
between the fundamental principles of international law and State law.

34 | P a g e
 a. The fundamental principle of the State law is that laws enacted by
appropriate legislative authorities are to be obeyed.
b. The fundamental principle of international law is pacta sunt servanda,
namely, agreement between States are to be respected.

- Triepel has pointed out the following differences between International

Law and State law:
a. Regarding subject- Individual is the subject of State law, whereas State is
the subject of international law.
b. Regarding origin- Origin of State law is the will of the State whereas origin
of the international law is the common will of States.

Criticism
- It is not correct to contend that International Law is binding only on
States. In the modern period, International Law is applicable on States,
Individuals and certain other non-State entities.
- Besides this, the conception of State-will as the source of State law is
incorrect. In fact State-will is nothing but the will of the people who
compose it.
- Similarly, it is not correct to say that the origin or source of international
law is common will of the States. There are certain fundamental principles
of international law which are binding upon the State, even against their
will.
- "Furthermore, it may be objected to Triepel's theory that it does not
explain the existence of a general International law. Even international
customary law becomes particular law for Triepel, its rules apply only to
the State which by conclusive acts have declared adherence to the 'tacit'
agreements' upon which they rest-a view that is at variance with reality."
- Anzilloti contends that the legal systems of international law and States
laws are different. It cannot be denied that pacta sunt servanda is an
important fundamental principle of International law. But to assert that
it is the only basis of international law seems to be far from truth. In fact,
it is an important illustration of all the important fundamental principles
of international law. It fails to explain the binding force of customary rules
of International Law in regard to which the States have not given their
consent.

Whether Monism or Dualism is the correct theory-

35 | P a g e
 - On the basis of above discussion, monism appears to be the correct theory
but no theory can be complete in itself and it is not possible to include all
the elements in it.
- The practice of States indicates that sometimes there is the primacy of
international law, sometimes there is the primacy of the Municipal law
and sometimes there is mixture of different legal system.
- For example in the Greco-Bulgarian Communities case (1930), The
permanent Court of International Justice held, "it is a generally accepted
principle of international law that in relations of conflicts between
contracting parties to a treaty, the provisions of the municipal law cannot
prevail over the treaty." On the other hand, when the Municipal Courts
find that the conflict between the International law and Municipal law is
of such nature that cannot be avoided, they give primacy to the Municipal
law. In this connection.
- Mortensen v. Peters and Sri Krishna Sharma v. The State of West
Bengal 1906 deserves a special mention. From the technical point of
view, Municipal law cannot give direction for any act which is prohibited
under International law but in practice individuals are compelled to follow
such laws.
- Gould correctly observes: "As matters stand, each situation must be
analyzed by itself, including the tribunal before which litigation, if any, is
brought in order to settle the question of which two conflicting rules of
law of different orders prevail in the concrete dispute.

(3) Specific adoption Theory.

- According to the positivists, international law cannot be directly enforced
in the field of State law.
- In order to enforce it in the field of Municipal Law, it is necessary to make
its specific adoption.
- In short International Law can be applied in the field of Municipal law
only when Municipal law either permits it or adopts it specifically. This
view is generally followed by States in respect of international Treaties. It
is argued that unless there is specific adoption of the International
Treaties Vienna Convention of Diplomatic Relations Act 1972 enacted by
Indian Parliament) or there is some sort of transformation, International
Treaties as such cannot be enforced in the municipal field.
- While considering the International Covenants on Human Rights, the
Supreme Court of India observed, in Jolly George v. The Bank of
Cochin, 1980 "The positive commitment of the States Parties ignites
legislative action at home but does not automatically make the covenant
enforceable part of the corpus juris of India. As regards specific adoption
of international treaties by Indian Parliament, the Anti-Apartheid (United
36 | P a g e
 Nations Convention) Act, 1981, the Anti- Hijacking Act, 1982, the
Suppression of Unlawful Act against the safety of Civil Aviation Act, 1982
and the International Monetary Fund and Bank (Amendment) Act, 1982
deserve a special mention.

Criticism.
This view is not correct in respect of the whole of international law because
there are many principles of international law (especially customary rules)
which are applied in the field of municipal law without specific adoption

(4) Transformation Theory.

The exponents of this theory contend that for the application of international
law in the field of municipal law, the rules of international law have to
undergo transformation. Without transformation they cannot be applied in
the field of 0municipal law.

Criticism

This theory is based an consensual theory which has already been criticized.
It may also be noted that it is not necessary for all treaties to undergo the
process of transformation for their application in the field of municipal law.
There are several law-making treaties which become applicable to the States
even without undergoing the process of transformation. This theory has been
severely criticized by the critics. It is, therefore, incorrect to consider that the
transformation from one to other is materially essential.

(5) Delegation Theory.

As pointed out earlier, transformation theory has been severely criticized by
a number of jurists. The critics of transformation theory have put forward a
new theory called Delegation theory. These critics point out that the
constitutional rule of international law permit each State to determine as to
how international treaties will become applicable in the field of State law.
Thus, in fact, there is no transformation nor is there specific adoption in
every case. The rules of international law are applied in the field of State law
in accordance with the procedure and system prevailing in each State
in accordance with its Constitution.

Criticism
This theory can be regarded simply as a reaction against the theory of
"dualism" and other theories based on positivism, one may ask where are
and what are the constitutional rules of international law? When and how
these rules have delegated power to state constitutions? This theory is far

37 | P a g e
 from true. In fact, each state is equal and sovereign and does not recognize
any authority over and above it.

Thus there is a great controversy in regard to application of international law

in the field of municipal law. In order to arrive at the right conclusion, it is
necessary to go through the practice of States in this respect. But before we
do so, it will be desirable first to consider the question of primacy. In other
words, if there is a conflict between international law and State law, which
will prevail?

Question of primacy
- After discussing the different theories in regard to the relationship of State
law and international law, it is necessary to conclude as to which will
prevail in case of conflict?
- According to the exponents of dualistic theory, there will be primacy of
the State law. The basis of their view is that State is independent and
sovereign.
- On the other hand, there is no uniformity of views among the writers of
monistic theory. Some are of the view that there will be the primacy of
international law. But some other jurists, such as Kelsen maintains that,
in accordance with the facts and circumstances, there may be primacy of
State law as well as international law,
- Thus the view that State law will prevail in case of conflict between State
law and international law is not correct. If we accept this theory, it will
mean that there will be the primacy of more than 193 state legal systems.
Acceptance of such theory will create anarchy and disorder in the
international field. Besides this, this view is subject to the following
criticism:

a. If it is accepted that international law derives validity from the State

Constitution, it will mean that with the disappearance of the State
Constitution, the validity of the rules of international law will also disappear.
This is a very absurd suggestion and cannot be accepted.
b. When a new State is admitted to the family of nations, it becomes bound
to obey the rules of international law even against its will. In fact, the duty
of each State is to adopt its law and Constitution in accordance with the
rules and principles of international law.
c. Most of the States have accepted the supremacy of international law in
their Constitutions.

Practice suggests that, in fact, a mixture of international law supremacy,

municipal law supremacy and co-ordination of legal system exists."

38 | P a g e
 State practices regarding the relationship between international law

1. British Practice.
For the application of international law in Britain, distinction is
maintained in regard to the customary rules of international law and the
rules laid down by treaties. It will, therefore, be desirable to discuss them
separately.
A. British practice in regard to customary rules of international law-
In Britain, customary rules of International Law are treated as a part of
British laws. British courts treat customary rules of international law as a
part of their own law subject however to the following conditions.
a. Rules of international law should not be inconsistent with the British
Statutes and
b. If the highest Court once determines the scope of a customary rule of
international law, then all the courts in Britain are bound by it Influence
of the above practice.

B. British Practice as to Treaties-

- In Britain the practice regarding the rule laid down by treaties is different
from the practice in regard to the customary rule of International law.
- By crown - In regard to treaties, the British practice is based on the
constitutional principles governing the relationship between Executive or
Crown and Parliament. In regard to treaties, the matters, relating to
negotiations, signatures, etc. are within the prerogative powers of the
Crown and when ever such treaties are in conflict with parliament made
law then parliament law shall prevail.
- By parliament - In Britain it is necessary that some type of treaties
should receive the consent of Parliament. Either the Parliament accords
its consent or adopts it in State law through the help of a statute and in
such treaty the treaty accepted by parliament shall prevail over its
previous law.

2. American Practice.
In America also, the practice regarding customary rules of international law
and the rules laid down by treaty is different.
(A) American practice regarding customary rules of international law.
- The American practice regarding customary rules of international law is
more or less same as the British practice.
- In America also customary rules of international law are treated as a part
of American law.
- Besides this the American courts also interpret the Statute of the
Congress in such a way that may not go against international law.

39 | P a g e
 (B) American practice regarding rules laid down by Treaties.
- American practice regarding rules laid down by treaties is different from
British practice. In case of international treaties, the American practice is
not based on the constitutional rules governing the relationship of the
executive and Congress.
- In America, everything depends upon the provisions of the Constitution.
Article VI of the American Constitution provides that Constitution of the
United States, all laws made in pursuance thereof and the international
treaties entered into under the authority of the United States shall be the
supreme law of the land. Thus international treaties have been placed in
the same category as State law in America.
- It may, however, be noted that in America the practice is that if there is a
conflict in between international treaty and a State law, whichever is later
in date shall prevail.
- If there is a conflict between American Constitution and an International
Treaty, the former (ie. the Constitution) will prevail.
- Besides this, in America treaties have been divided into two categories-
self-executing treaties and non-self- executing treaties.
a. Self-executing treaties are those treaties which become applicable in
America without any Act or consent of the Congress.
b. On the other hand non-self- executing treaties are those which can
become applicable in America only after the consent of the Congress
or through its adoption by a specific Statute.

C. Israeli Practice.-
In Eichman v. Attorney-General of the Govt. of Israel, the Supreme Court
of Israel said that according to the law of Israel, which is identical on this
point with English law, the relationship between municipal and
international law is governed by the following rules:-
a. The principle in question becomes incorporated into the municipal law
has a part of that law only after it has achieved general international
recognition.
b. This, however, only applies where there is no conflict between the
provisions of municipal law and a rule of international law. But where a
conflict does exist, it is the duty of the court to give preference to and
apply the laws of the local legislature.

D. Indian practice."-
- Pre- Constitution Before the adoption of Indian Constitution the Indian
practice in respect of relation of international law to internal law was
similar to the British practice. After the adoption of the Constitution of
India everything depended upon the provisions of Constitution.

40 | P a g e
 - Post-Constitution In order to know the position of International Law in
the post- Constitution period, it is necessary to examine the relevant
provisions of the Constitution of India. The most relevant provision is
contained in Article 51 which runs as follows:
"The State shall endeavor to
(a) Promote international peace and security;
(b) Maintain just and honorable relations between nations:
(c) Foster respect for international law and treaty obligations in the dealings
of organized peoples with one another; and
(d) Encourage settlement of international disputes by arbitration."
- Article 37 which provides that provisions contained in Part IV of the
Constitution are non-justiciable, adds in unmistakable terms that the
principles therein laid down are "nevertheless fundamental in the governance
of the country and it shall be the duty of the State to apply these principles
in making laws." The majority of constitutional experts in the country now
subscribe to the view that simply because the principles contained in Part III
are non-justiciable, it cannot be successfully contended that they are of no
significance or even of less significance than the fundamental rights
contained in Part IV which are justiciable.
- Nevertheless, a pertinent question arises as to whether the Constitution of
India has altered the position prevailing in pre-Constitution period. In this
connection, Article 372 (1) clearly provides: "Notwithstanding the repeal by
this Constitution of the enactments referred to in Article 395 but subject to
other provisions of this Constitution, all the laws in force in the territory of
India immediately before the commencement of this Constitution, shall
continue in force therein before until altered or repealed or amended by a
competent Legislature or other competent authority."
- Reference may be made here to Article 253 of the Constitution which provides
"Notwithstanding in the foregoing provisions of this chapter ie., Chapter XI of
Part XI, Parliament has power to make any law for the whole or any part of
the territory of India for Implementing any treaty, agreement or convention
with any other country or countries or any decision made at an international
conference, association or other body."
- It would, however, be wrong to contend that the implementation of every
treaty would require legislative aid. This was held by the Delhi High Court in
Shiv Kumar Sharma and others V. The Union of India and others 1969.
This case dealt with the implementation of the "Kutch Award and the question
was whether it involved cession of Indian territory. It also dealt with the
question whether a constitutional amendment or legislation was necessary
for Implementation of the "Kutch Award." The court held that there was no
cession of any territory belonging to India and no constitutional amendment
was necessary for the implementation of the Kutch Award. As regards the
question if legislation was necessary for the implementation of treaty, Mr. S.K.
41 | P a g e
 Kapur, J., of the Delhi High Court made it clear that every treaty does not
require legislative aid.

- In A.D.M. Jabalpur v. S. Shukla 1976 one of the questions, inter alia, for
consideration of the Supreme Court was whether Universal Declaration of
Human Rights and the two International covenants on Human Rights,
1966 were part of Indian municipal law. By majority the Supreme Court
held that they were not part of Indian municipal law. In his dissenting
opinion, however, H.R. Khanna, J. held that if there was a conflict between
the provisions of an International treaty and the municipal law, it is the
latter that will prevail. But if two constructions of the municipal law were
possible the court should give that construction as might bring about
harmony between municipal law and International law or treaty. In his
view, the constitutional provision should be construed in such a way as to
avoid conflict with the Universal Declaration of Human Rights.
- Present Position - But the position will be different when there is no
conflict between International Conventions and the domestic law. As
pointed out by the Supreme Court in Vishaka v. State of Rajasthan, 1997
in the absence of domestic law occupying the field to formulate effective
measures to check the evil of sexual harassment of working women at all
work places, the contents of International Conventions and norms are
significant for the purpose of interpretation of the guarantee Of gender
equality and right to work with human dignity in Articles 14, 15, 19(1)(g)
and 21 of the Constitution and the safeguards of sexual harassment
implicit therein. Any International Convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into these
provisions to enlarge the meaning and content thereof, to promote the
object of constitutional guarantee. This is implicit from Article 51(c) and
the enabling power of Parliament to enact laws for implementing
International Conventions, and norms by virtue of Article 253 read with
Entry 14 of the Union List in the Seventh Schedule of the Constitution. In
this case, the Apex Court was dealing with the problem of harassment of
working women. Delivering the judgement of the Three Judge Bench, J. S.
Verma, C.J.I., observed that the meaning and content of the fundamental
rights guaranteed in the Constitution are of sufficient amplitude to
encompass all the facets of gender equality including prevention of sexual
harassment abuse. Independence of judiciary forms a part of our
constitutional scheme. The International Conventions (especially
Convention on the Elimination of All Forms of Discrimination Against
Women) and norms are to be read into them in the absence of enacted
domestic law occupying the field when there is no inconsistency between
them. It is now an accepted rule of judicial construction that regard must
be had to International Conventions and norms for construing domestic
42 | P a g e
 law when there is no inconsistency between them and there is a vacancy
in the domestic law.

From the above discussion the following conclusions may be derived

(1) Customary rules of international law are treated to be part of domestic

law in a large number of states and in case they do not conflict with existing
municipal law, there is no need of their specific adoption.

(2) Only in a few states, customary rules of international law, without specific
adoption are applied by municipal courts even in case of conflict with
municipal statute or judge-made law.

(3) As regards practice relating to the application of treaties within the

municipal sphere practice of state is not uniform.

(4) In large number of states, municipal courts give priority to the application
of municipal law, irrespective of the applicability of rules of international law
and the question of any breach of international law is left to be settled at the
diplomatic level.

Subjects of International Law

A subject of rules is a being upon which the rules confer rights and capacity
and imposes duties and responses; whereas an object enjoys and is burdened
by no such competence. The law Commands subjects but it merely regulates
the use and disposition of objects. Ordinarily international law deals with the
rights and duties of the States. Ordinarily its rules are for States. Generally
it is the States who enter into treaties with each other and are thus bound
by its provisions. This does not, however, mean that other entities or
individuals are outside the scope of international law. International law
applies upon individuals and certain non-State entities in addition to States.

Various theories regarding subjects of International Law

Following are the three main theories prevalent in regard to the subjects of
international law:
1. States alone are subjects of international law.
2. Individuals alone are the subjects of international law.
3. States are the main subjects of international law, but to a lesser extent
individuals and certain non-State entities, have certain rights and duties
under international law.

43 | P a g e
 1. Only States are subjects of International Law.
- Some jurists have expressed the view that only States are the subjects of
international law. In their view, international law regulates the conduct of
States and only States alone are the subjects of international law.
- As pointed out by Percy E. Corbett: "The triumph of positivism in the late
eighteenth century made the individual an object, not a subject of
international law. This law more and more emphasized the separateness
of States, making their sovereignty, indeed its basic principles."

Criticism.-
- This view has been subjected to severe criticism by jurists.
- This theory fails to explain the case of slaves and pirates. Under
international law, slaves have been conferred upon some rights by the
Community of States. Similarly pirates are treated as the enemies of
mankind and they may be punished for piracy by the States. But the jurists
who subscribe to the view that only States are subjects of international law
to reconcile these exceptions by contending that they are not the subjects,
but objects of international law.
- They have argued that the treaties which confer certain rights over slaves
and pirates impose certain obligations upon the States. If there is no such
obligation of the States, the slaves cannot have any rights under
international law. Hence the exponents of this theory regard pirates,
slaves, etc., as the objects of international law.
- Prof. Oppenheim also subscribes to this view. In his view: "Since the Law
of Nations is primarily a law between States, States are to that extent, the
only subjects of the Law of Nations. This view finds mention in the eighth
edition of Oppenheim's book. In the ninth edition, the editors of his book
have changed this view. According to the view expressed in ninth edition,
States are primarily, but not exclusively, the subject of international law.To
the extent that bodies other than States directly possess some rights,
power and duties in international law they can be regarded as subjects of
international law possessing international personality Thus the wrong to
say that individuals are not the subjects to international law.
- In the view of Prot Schwarzenberger, it is contradiction in terms to say that
individuals are not the subjects but objects of international law because
how can it be expected that individuals who are the basis of society may
only be objects of international law. Thus, as a matter of fact, individuals
are also the subjects of International law.
- Thus the traditional view that States only are the subjects of international
law is not a rule of modern international law. It is now generally recognized
that besides States, public international organizations, individuals and
certain other non-State entities are also the subjects of international law.

44 | P a g e
 2. Only individuals are the subjects of international law-
- Just contrary to the above theory, there are certain jurists who have
expressed the view that in the ultimate analysis of international law it will
be evident that only individuals are the subjects of international law.
- The chief exponent of this theory is Prof. Kelsen. Even before Kelsen,
Westlake had remarked, "The duties and rights of the States are only the
duties and rights of men who compose them." Kelsen has analysed the
concept of State and expressed the view that it is a technical legal concept
and includes the rules of law applicable on the persons living in a definite
territory. Hence, under international law the duties of the States are
ultimately the duties of the individuals. Truly speaking there is no
difference between international law and State law. In his view, both laws
apply on the individuals and they are for the individuals. He, however,
admits that the difference is only this that the State law applies on
individuals 'intermediately’ whereas international law applies upon the
individuals 'mediately’.

Criticism.-

- Kelsen's views appear to be logically sound. But so far as the practice of

the States is concerned it is seen that the primary concern of the
international law is with the rights and duties of the States.
- From time to time certain treaties have been entered into which have
conferred certain rights upon individuals.
- Although the statute of the International Court of Justice adheres to the
traditional view that only States can be parties to international proceedings,
a number of other international instruments have recognized the procedural
capacity of the individual.
- But as Phillip C. Jessup has aptly remarked: "But while I agree...that States
are not the only subjects of international law, I do not go to the other extreme
and say that Individuals are the only subjects. Although, individual
possesses a number of rights under international law, his procedural
capacity to enforce the observance of these rights grossly deficient. In most
of the cases claim on his behalf can be brought only by the State whose
national he is and as pointed out by the Permanent Court of International
Justice. "It is an elementary principle of international law that a State is
entitled to protect its subjects when injured by acts contrary to international
law committed by another State.
- In practice, International law for its major part still deals with the rights and
duties of States. Therefore, it would be absurd to contend that States are not
the subjects of international law. The correct position therefore is that
besides States, Individuals, public international organizations and some
non-State entities are also the subjects of International law
45 | P a g e
 (3) States, individual and certain non-State Entities are Subjects.

- The third view not only combines the first and second views but goes a step
ahead to include international organisations and certain other non-State
entities as subjects of international law. This view undoubtedly appears to be
far better than the first two views Following arguments may be put forward
in support of this view:

a. In the present time, several treaties have conferred upon individuals certain
rights and duties. International Covenants on Human Rights and 1965
Convention on the Settlement of Investment Disputes between States and
Nationals of other States deserve a special mention in this connection.
b. In Danzing Railways Official Case, 1928 the Permanent Court of Justice
ruled that if in any treaty the intention of the parties is to confer certain
rights upon some individuals, then international law will recognize such
rights and will enforce them. In this case, Poland had entered into an
international agreement with a Danzing Railway Co. Under the said
agreement Poland had agreed to provide certain facilities to the officials of
the said railways company. Subsequently, Poland refused to provide those
facilities to the officials of the Company. Poland argued that since the said
agreement was in the form of an international treaty, it created rights and
duties only in respect of the parties to the treaty and hence the individuals
as such cannot possess any rights under the said treaty. The Permanent
Court of International Justice rejected the contention of Poland and ruled
that it the intention of the parties is to confer certain rights upon individuals
then international law will not only recognize such rights of the individual
but may also enforce them.
c. 1949 Geneva Convention on the Prisoners of War has conferred certain rights
upon the Prisoners of War.
d. The Nuremberg and Tokyo Tribunals propounded the principle that
international law may impose obligations directly upon the individuals. As
observed by the Nuremberg Tribunal, "Crimes against International law are
committed by men, not by abstract entities and only by punishing individuals
who commit such crimes can the provisions of international law be
enforced."***
e. The Genocide Convention of 1948 has imposed certain duties directly upon
the individuals. According to the convention, persons guilty of crime of
genocide may be punished, no matter whether they are the head of the State,
high officials or ordinary individuals. So far 146 countries have become
parties to the Convention on the Prevention and Punishment of the Crime of
Genocide, 1948.

46 | P a g e
 f. In addition to the above example, a new trend or movement has started in
the international field under which some rights are conferred upon
individuals even against the States. A glaring example of this is the European
Convention on Human Rights in 1950. Under the provisions of the said
convention, European Commission and the European Courts were
established. The European Commission is entitled to investigate the violation
of human rights. It may, however, be noted that the case may go to the
European Court on Human Rights only with the consent of the State
concerned. The International Covenants on Human Rights, 1966, and the
Optional Protocol represent the culmination of the benign trend (so far as
human rights are concerned) that individual can claim rights directly (ie.
without the medium of the State) under international law. It may also be
noted that an individual who is the victim of the violation of human rights
and whose State is the member of the U.N. may send a petition regarding
violation of human rights by his own State to the U.N. Commission on
Human Rights.
g. the International Court of Justice decided that the United Nations is an
International Person under international law. In the words of the
Court".......what it does mean is that it (U.N.) is a subject of international law
and capable of possessing rights and duties and it has capacity to maintain
its rights by bringing international claims."
h. In regard to the international criminal law, the law-making treaties have
imposed certain obligations upon the individuals and the States have
consented to it. In this connection, Narcotic Drugs Convention, 1961, Hague
Convention for the Suppression of Unlawful Seizure of Aircrafts, 1970, etc.
deserve special mention.

(ix) There are certain international treaties in regard to the minorities. These
treaties have conferred upon minorities certain rights. The example of
Articles 297 and 304 of the treaty of Versailles, 1919, may be cited in this
connection. In some cases the protectorate States may also be treated as
subjects of international law. Article 8 of the Constitution of the World Health
Organization permits such States to become associate member. International
Law also permits the recognition of insurgents. Bangladesh became a
member of WHO long before it was admitted as a member of the U.N.

Thus States are not the only subjects of international law. No doubt they are
still the main subjects and the bulk of International law concerns with their
conduct and relations but in view of the developing and changing character
of international law, international organizations, some non-State entities,
individuals are also the subjects of international law.

Place of Individuals in International Law

47 | P a g e
 As pointed out earlier, individuals are also treated to be the subjects of
international law although they enjoy lesser rights than States under
international law. Thus, it is no longer possible, as a matter of positive law,
to regard states as the only subjects of international law, and there is an
increasing disposition to treat individuals, within a limited sphere, as
subjects of international law. In the beginning they were accepted as subjects
of international law as an exception of the general rule, and number of jurists
treated them as objects rather than the subjects of international law. This
view has now been discarded. In the recent times, several treaties have been
concluded wherein rights have been conferred and duties have been imposed
upon the Individuals. Some of the provisions of the international law under
which rights have been conferred upon individuals and obligations that have
been imposed upon them are as follows:-

(1)Pirates-Under International law pirates are treated as enemies of mankind.

Hence every State is entitled to apprehend them and punish them. Thus
under international law it is the obligation of the parties not to commit piracy.

(2) Harmful acts of individuals. For the amicable and cordial relation of the
States it is necessary that the individuals should not be involved in such acts
as may prove detrimental for the good relations among States. Therefore,
under international law there are several such provisions which provide that
the persons who commit such crimes may be punished. For example, if a
person causes harm to the ambassador of another State, then under
international law he deserves to be given stringent punishment. A leading
case on the point is the Ex parte Petroff, 1971, decided by the Supreme Court
of Australia, wherein two persons, who were found guilty of throwing
foreigners. According to international law, it is the duty of each State to give
to them those rights which it confers upon its own citizens.

(4) War criminals-War criminals can be punished under international law.

This conception is based on the principle that rules relating to war crime are
not only for the States, but individuals are also bound by them. Nuremberg
and Tokyo Tribunals have established the principle in unequivocable and
unambiguous terms that since crimes under international law are committed
by individuals, only by punishing them the provisions of international law
can be enforced.

(5) Espionage-Espionage is a crime under international law. Hence, when the

spies are apprehended, they may be punished.

48 | P a g e
 (6) Under some treaties individuals have been conferred upon some rights
whereby they can claim compensation or damages against the States. For
example, the Treaty of Varsailles, 1919, provided under Art. 297 that any
individual could file suit against Germany for compensation or damages.

(7) The United Nations Charter has also given a place of importance to the
rights of individuals. The preamble of United Nations Charter begins with the
words, "Peoples of the United Nations. This is not incidental but deliberate
and meaningful. There are a number of provisions of the U.N. Charter such
as Article 1(3), Article 13(1)(b), Article 55(c), Article 62(3), Article 68 and
Article 76 (c) which deal with individuals. Besides this, the United Nations
adopted the Universal Declaration of Human Rights in 1948. This
Declaration mentions in detail the fundamental rights and freedoms of the
individuals. Moreover, in 1948, the General Assembly of the United Nations
adopted the Genocide Convention. This convention imposes an obligation
upon the individuals in respect of the crimes of genocide. It is, therefore, clear
that the United Nations Organization has given much significance to the
rights of individuals.
(8) Besides the above-mentioned examples, some very important steps are
being taken in respect of the rights of individuals under international law.
International law now confers upon the individuals certain rights not only
'mediately but 'immediately. An example of this is Convention on the
Settlement of Investment Disputes between States and the Nationals of other
States. As is clear from its very name, the persons who invest their money in
foreign countries have been conferred upon certain rights against the State
concerned.

(9) The International Covenant on Civil and Political Rights, 1966 and the
Optional Protocol conter rights directly upon the individuals. International
Covenant on Civil and

Political Rights, 1966 has been ratified by 168 countries. Besides this,
optional Protocol to Civil and Political Rights has been ratified by as many as
115 countries as of September, 2013. The U.N. Commission of Human Rights
(which has now been replaced by Human Rights Council) have enabled the
individuals to send petitions even against their own States. The Human
Rights Council has replaced U.N. Commission of Human Rights, Human
Rights Council consists of 47 members. It has come into force since 19 June,
2006.

Conclusion:
"States are becoming increasingly realistic in acknowledging the position of
the individual in the legal order. It seems that the basis of law is being
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 shaken. International law today cannot without qualification be described as
the law between States. Thus slowly and gradually individuals are occupying
place of importance under international law. They are no more mere objects
of international law. They are in fact the subjects of international law. It
cannot, however, be denied that even today States are the main subjects of
international law and the bulk of international law deals with their rights and
duties. In a distant future, these interests, especially the interests of the
individuals for whose welfare other institutions exist in both democratic and
socialist theory, may achieve a better balance in Universal Law with the
national interest of Sovereign States

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