Public International Law UNIT I

Unit-I:
Definition, Nature, Scope and Importance of International Law — Relation of International Law
to Municipal Law — Sources of International Law — Codification.
DEFINITION
1. Hugo Grotius - Dutch Jurist
Timeline - April 10, 1583 - August 28, 1645
The Father of the Modern Science of International Law
Book - De Jure Belli ac Pacis (1625; On the Law of War and Peace)
- This is considered one of the greatest contributions to the development of International Law
- He was also a statesman and diplomat
While most of the European thinkers treated law as something independent of mankind, with
its own existence and though some laws were invented by men, but ultimately they reflected
the essential natural laws and such natural law were imposed by deity Grotius believed that
the natural law came from an essential universal reason, common to all men
Two Principles of International Law
 Law was not imposed from above, but rather derived from principles
 Foundation principles included the maxims that promises must be kept (Pacta Sunt
Servanda), and that harming another requires restitution
 He also gave importance to custom or voluntary law thus emphasizing the importance
of actual practices, customs and treaties
Though his thinking was similar to Natural Law, he believed in progressive law by not being
rigid to Law what " is " but being supportive to law what "ought to be".
The Westphalian treaties of 1648 were a turning point in establishing the principle of state
sovereignty as a cornerstone of the international order. However the first attempts at
formulating autonomous theories of international law occurred before this, in Spain, in the 16th
century
2. Jermy Bentham is the first Jurist to coin the term 'International Law' in 1780. He also used
the term 'international relations' in his book Principles of Moral and Legislation in 1789
3. Lassa Francis Lawrence Oppenheim (March 30, 1858 - October 7, 1919) - German jurist
He is also regarded by many as the Father of the Modern Discipline of International Law

1
Public International Law UNIT I

Definition - "Law of Nations or international law is the name for the body of customary law
and conventional rules which are considered binding by civilized states in their intercourse
with each other"
Criticism:
1. Now not only states but international organisations have also certain rights and duties under
international law.
2. It is also recognised that to some extent individuals have some rights and duties
3. international law not only consists of customary and conventional rules but also general
principles of law recognised by the state.
4. the use of the word “civilised” has also been criticised.
5. the very conception that international law is a ‘body of rules’ now stands charged as static
and inadequate.
New definition: “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, to
some extent, also individuals may be subjects of rights conferred and duties imposed by
international law”.
4. J. L. Brierly - The Law of Nations or International Law may be defined as the body of rules
and principles of action, which are binding upon civilized states in their relations with one
another
5. Torsten Gihl - The term International Law means the body of rules of law, which apply
within the International Community or society of Sates
6. Gray - International law or the Law of Nations is the name of a body of rules which
according to their usual definitions regulate the conduct of states in their intercourse with
each other
7. Case Law - Queen v. Keyn, - Lord Coleridge C. J., defined - "The law of nations is that
collection of usages which civilized States have agreed to observe in their dealings with one
another."
8. West rand central gold mining co.Lts Vs King: 1905: International law may be defined as the
form of the rules accepted by civilized states as determining their conduct towards each other
and towards each other’s subject”.
9. S S Lotus case (1927): International Law was defined in the following words: "International
Law governs relations between independent States. The rules of law binding upon States
2
Public International Law UNIT I

therefore emanate from their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law and established in order to regulate the
relations between these co-existing independent communities or with a view to the
achievement of common aims. Restriction upon the independence of States cannot therefore
be presumed."
10.Philip C. Jessup.-Jessup has defined International Law in the following words: "International
Law or the Law of Nations must be defined as law applicable to States in their mutual relations
with States." Judge Jessup further adds, "International Law may also...... be applicable to certain
inter-relationships of individuals themselves, where such inter-relationships involves matters of
international concern."
11. Kelsen: International law or the law of nations is the name of a body of rules which
according to the usual definition-regulate the conduct of the states in their inter course with
one another”.
12. Whiteman- international law is the standard of conduct, at a given time, for state and
other entities subject therto.’
13. Charles G Fenwick: international law may be defined in broad terms as the body of general
principles and specific rules which are binding upon the members of the international
community in their mutual relations”.
Instead of the word ‘state’ he uses the word ’ members of the international community’
which includes states, international organisations, individuals and non-state entities.
14. J. G. Starke- ‘international law may be defined as that body of law which is composed for its
greater part of the principles and rules of conduct which states feel them selves bound to
observe, and, therefore do commonly observe in their relations with each other, and also
includes
a. the rules of law relating to the functioning of international institutions or organisations, their
relations with each other, and their relations with states and individuals.
b. certain rules of law relating to individuals and non-state entities so far as the rights or duties
of such individuals are the concern of the international community”.

3
Public International Law UNIT I

Private International Law

Mostly covers the controversies between private entities, such as people or corporations, which
have a significant relationship to more than one nation
For example, lawsuits arising from the toxic gas leak in Bhopal, India from industrial plants
owned by Union Carbide, a U.S. corporation would be considered a matter of private
international law
 As they mostly deal with conflicts, they are also called as "conflict of
laws"
 They are limited within countries who have agreed to those laws
 They are mostly applicable to Business (Globalization)

4
Public International Law UNIT I

Public International Law

Mostly covers relations between nation-states and includes fields such as treaty law, law of
sea, international criminal law, the laws of war or international humanitarian law, international
human rights law, and refugee law
The rules of international law are found in treaties, conventions, declarations, agreements,
customs and other sources
For example - The Kyoto Protocol (International agreement on climate change - many countries
have agreed to reduce their greenhouse gas emissions in order to protect the environment)

Between individuals and state, individuals Between states, between states and
and international institutions international institutions and individuals
Part of municipal law Not a part of municipal law
Pit Cobbette: is a law of selection of Except customary law
appropriate law in civil cases which are
presented before a court of a state which
involves a foreign element.
Divorce, adoption, succession

5
Public International Law UNIT I

WEAKNESS OF INTERNATIONAL LAW

Paton - " From institutional point of view International Law is a weak. It has no legislative
support though there is international court of justice but that functions or takes case on the
basis of mutual consent of states. It has no power to get the decisions implemented."
Karbet - "The main course of weakness of International Law is the lack of social solidarity
among highly civilised states"
Weakness :
1. Lack of Law making authority / legislature
2. Lack of Law implementation mechanism / executory authority
3. Lack of compulsory jurisdiction in true sense
4. Lack of power to punish / Weak sanctioning power - States are not really bothered to a
greater extent
5. International Court of Justice is not a compulsory jurisdiction. States choose their comfort
based on requirements
6. International Laws can't interfere with the State Laws as state laws doesn't allow to interfere
- article 2(7) of UNO Charter, UNO is not competent to interfere in the domestic matters of
states
7. International Laws have failed in maintaining peace as super power countries always
supersede for their comforts
8. International Laws are uncertain and vague
- International Laws are not as certain as Municipal Law
- It failed in having sanctioning power
- Failed in keeping peace and order
Queen v/s Ken - 1876 :- There is no such institution or body which can enact laws for sovereign
states and there is no court also which can enforce its decision and to bind the states."

6
Public International Law UNIT I

NATURE, SCOPE AND IMPORTANCE OF INTERNATIONAL LAW

Whether international law is law in the true sense of the term or not: According to Hobbes,
Austin and Pufendorf , that law is command of sovereign enforced by superior political
authority, then international law cannot be included in the category of law.
On the other hand, if we subscribe to the view that the term ‘law’ cannot be limited to the rules
enacted by the superior political authority, then international law can be included in the
category of law”.
According to Austin – law is given by a determinate superior political authority to political
inferiors and is backed by a coercive enforcement agency. Sanction occupies an important place
in the enforcement of law. People fallow law due to sanction or coercive element inherent in
law.’
Holland, Bentham, Jethro brown – deny the legal character of international law. It lacks an
effective legislative machinery, an executive machinery and potent judiciary and above all the
sanction which is necessary for the enforcement of law”.
In the opinion of Prof. Oppenheim: This definition is not correct. It does not cover that part of
municipal law which is termed as unwritten or customary law. There is, in fact, no community
and no state in the worlds which exists only with written law.
Frederick pollock: as probably most competent jurists would today agree, the only essential
conditions for the existence of law are political community and the recognaition by its members
of settled rules binding upon them in that capacity, international law seems on the whole to
satisfy these conditions”.
According to Oppenheim, the existence of law presupposes the existence of three pre
requisites:
(1) a community;
(2) a body of rules; and
(3) common consent of the community that if necessary these rules shall be enforced by an
external power.
As pointed out in the Ninth Edition of Oppenheim's International Law (1992), "The three
requirements of this definition (i.e. Oppenheim's definition of law) are satisfied by
international law, to a greater or lesser extent. The States of the world do together
constitute a body bound together through common interests which create extensive
intercourse between them, and differences in culture, economic structure or political
system, do not affect as such the existence of an international community as one of the
basic factors of international law. Rules for conduct of the members of that community exist
7
Public International Law UNIT I

and have existed for hundreds of years. Equally, there exists a common consent of the
community of States that rules of international conduct shall be enforced by an external
power, though in the absence of a Central authority for this purpose States have sometimes
to take law into their own hands by such means as self-help and intervention...... ." Further
outlawing of resort to force by the U.N. and steps for international enforcement action have
led to less reliance on self-help.
Views of jurists, who regard international law as really law may be summed up as follows:
(1) The term law cannot be limited to rules of conduct enacted by a sovereign authority. It
has been established by Historical Jurisprudence that in many communities a system of law
existed although such communities lacked a formal legislative authority. As pointed out by
Starke, such law did not differ from any State law with true legislative authority.
(2) As pointed out by Oppenheim, in practice, international law is recognised as law by the
States and they consider it binding on them.
(3) Even when the States violate international law they never question its legal existence or
legal character. On the contrary, they try to interpret the rules of international law so as to
justify their conduct.
(4) The Austinian concept of law fails to account for the customary rules of international
law.
(5) In the modern time, customary rules of international law are diminishing and are being
replaced by law making treaties and conventions.
(6) When international disputes arise, States, instead of relying on moral arguments base
their arguments on the provisions of treaties, precedents and opinions of jurists.
(7) In some States (for example U.S.A. and U.K.), international law is treated as a part of
their own law.
(8) The Statute of International Court of Justice provides that the Court shall decide such
disputes as are submitted to it in accordance with international law.
(9) International Conferences and Conventions treat international law as law in the true
sense of the term.
(10) The United Nations is based on the true legality of international law. The Preamble to
the U.N. expresses the resolve of the member States to "establish conditions underwhich
justice and respect for the obligations arising from treaties and other sources of
international law can be maintained.

8
Public International Law UNIT I

Nature of international law

Opinions of the jurists vary with regard to the nature of international law which can be
discussed as follows:
1. International law is not legally binding on states: Austin, Hobbes, Bentham and Pufendorf
are of the view that international law is not law in true sense. According to Austin international
law cannot be called proper law because it neither has sovereign legislative authority to enact
laws nor there is an adequate sanction behind it.
2.International law is law in the true sense: Oppenheim says that law is a body of rules for
human conduct within a community which by their common consent shall be enforced by
external power. The requirements of this definition is satisfied by international law .
3.International law is weak law: Starke is of the opinion that international law is a weak law as
its rules are not as effective as rules of municipal law are.
4. International law is the vanishing point of jurisprudence: Holland opines that international
law is the vanishing point of jurisprudence since it lacks any arbiter of disputed questions.
Scope of international law
Interstate relations and their regulation
The International Law has state subjects. When civilized states came into existence then
interrelation was natural. A mutual understanding and natural interrelation became necessary.
They have framed their own rules, regulations, and treaties for further transactions
International organizations
A major development in the 19th and 20th century in International Law is the prominent
position of the International Organisations. The operations of these organisations is on the
global, regional, and sub-regional level. These organizations seek to achieve the objective of the
welfare of people. These organizations are funded majorly by the developed countries and they
are actively supporting the developing countries for the betterment of the lives of the people
Issues of non-state entities
The non-state entities have played a significant role in maneuvering different important tasks
that fall within the ambit of International Law. The non-state entities is a newly emerged
concept in the recent past. They are struggling to get legal recognition under International Law

9
Public International Law UNIT I

Individual
Individual means a legal person which does not merely includes human beings but all other
entities which have attributed legal personality.
Importance of international law
● To maintain international peace and security
● To provide fundamental freedom and rights
● To maintain territorial integrity and political independence of the state
● To provide the right to self determination of people
● To achieve international cooperation in solving social, economic and political problems.
● To settle international disputes by peaceful means.
Basis of International Law
Naturalist theory:
Most of the jurist of sixteenth and seventeenth century were of the view that international law
is based on law of nature. According to them there exists a system of law which emanates from
god, reason or morals. prominent writers of this view are Grotius, Pufendorf and Vattel. The
theory is criticised on the ground that it is too vague.
Ancient theory. It has its birth even before the birth of christ. As aptly remarked by Dias “ no
other firmament of legal or political theory is so bejewelled with stars as that of Natural laws,
for it has engaged the attention of some of the greatest thinkers of all ages”.
Took long time for development compared to other laws.
16th and 17th century it was termed as “jus genitium” or ‘jus naturale”-considered as highest
law.
In other words,”dictate of right reason”
16th century natural law linked with religion.
International law is observed by nations as it is divine.
2. Positivism
Always concerned with human conduct not concerned what law ought to be.
Law is binding as the states have given consent.
When the legislature given a law, state has to follow.
10
Public International Law UNIT I

Critism: Law made by legislature is a municipal law.

1. The concept of will of state is purely metaphorical. The will of state is nothing but the
will of the people who compose it.
2. Fails to explain the admission of new state into the family of states.
3. Article 2(6) of the united nations charter which are applicable even on non members of
the U N although they had never given their consent for it.
Resolutions passed by general assembly in the form of treaties and conventions, customary
rules.

treaties

Law making treaties: treaties between 2 or treaties relating to contracts

more states-binding on parties- mutual
consent of parties

customary principles (1969 veinna convention, binding on all nations)

Relating to municipal law Relating to international law

3.Theory of consent
Whatever the laws made by the legislature according to the will of the people.
Law is made by general assembly/conventions they follow the will of the nations
Janeva convention, Tokyo convention
4. Theory of auto-limitation
Every state is sovereign and equal.
Since it is a sovereign state, when it becomes member of international community, it is a part of
UN.
Triepel
Oppenheim
Anzillotee
11
Public International Law UNIT I

5.Theory of fundamental rights

Even prior to the existence of UN people used to live in societies with fundamental rights and
liabilities, making contracts with other societies which are binding on both the parties.
Pacta sunt servanda: falls under the thory of consent. Proposed by Anzillotte. When a state is
concluding with other state it enters with free will, free consent, self necessity (self intererest)
Since a nation concluded on trieties, they have to honour.
Some treaties even against will have the force of binding on all nations. These principles are laid
down by international organisations. ILO, INFT, NFT, WAO, START, CTBT
Relation of International Law to Municipal Law
What is Public International Law and Municipal Law?
Municipal law is the national, domestic, or internal law of a sovereign state
Public International law is the body of rules that is legally binding on states and international
organizations in their interaction with other states, international organizations, individuals and
other entities.
Interrelationship between national and international law.
Monism
International law does not need to be translated into national law.
International law can be directly applied by a national judge, and can be directly invoked by
citizens, just as if it were national law.
Delegation Theory (Monist)
There is the delegation of constitution rules to the constitution of each state. These rules decide
when and how the international treaties/conventions will come into force.
Dualism
There is difference between national and international law and the latter must be incorporated
by the former.
1.Monistic Theory
2.Dualistic Theory

12
Public International Law UNIT I

CONFLICT THEORIES
1.Theory of Specific Adoption
2.Theory of Transformation
3.Theory of Delegation
4.Harmonisation (Co-ordination) Theory
1. MONISTIC THEORY
O.Kornell - "The objective of all laws is human welfare whether it is state municipal law or
International Law."
Strake - "International Law is part of state Municipal Law and therefore decisions can be given
by Municipal courts according to the rules of International Law."
Others who were in support of this theory - Moser / Scelle Lauterpacht / Kelson / Martens
Also called Monism theory
This theory believes that there is a close connection between both
All laws are made for individuals
While Municipal Laws binds the Individuals
International law binds the State
We cannot ignore the fact that the very existing of State is because of Individuals
Sources are also similar
International Law respects the Constitution of the State
Final object of both laws are welfare of State and its individuals
They together form a legal order
2. DUALISTIC THEORY
Strake - "The main foundation of the proponents of dualistic theory is that state Municipal Law
and International Law are two different legal systems because the nature of International law is
fundamentally different from State Municipal Law."
Angilotti - "The fundamental principle of State Municipal Law in compliance of law enacted by
state legislature while principle of International Law is Pacta Sunt Servanda i.e. to honour the
agreements executed between the states."

13
Public International Law UNIT I

Others - Garner, Anzilotti, Willoughby and Triepel

Why different?
1. Sources - Municipal Laws are based on Legislations passed by the States where as
International Laws are the results of Customs and Treaties
2. Execution - Municipal Laws have the power of sanction where as International Laws lacks in a
same as there is absence of Sovereign
3.Scope - Municipal Law is for the Individuals, difference between the Individuals /
organizations or for the differences between Individuals/Organizations and State where as
International Laws controls the States and their relationship with each other.

International Law is Subject to Specific Adoption by the State

Base for the Theory of Adoption – Hague convention-1970, Vienna Convention-1972 and Tokyo
Convention, 1975
INDIAN ADOPTION - Indian Constitution – 51 (DPSP)
International law has no application in a soverien state until and unless the sovereign state
specifically adopts the international law by way of enactments.
Promotion of international peace and security
The State shall endeavour to
(a) Promote international peace and security;
(b) Maintain just and honourable relations between nations;
(c) Foster respect for international law and treaty obligations in the dealings of organized
peoples with one another; and encourage settlement of international disputes by arbitration.
Jolly George v/s Bank of Cochin, 1980: The court held that any agreement does not become
part of Indian constitution automatically, but the positive commitment of state parties inspires
their legislative action." The use of International Law in different countries like India, Britain,
America and Russia. The rules of International Law and treads have been based in a different
ways.
Shri Krishna Sharma v/s State of west Bengal, 1964 : It was decided that whenever the court
interprets the domestic Municipal Law, it should be taken into consideration that it does not go
against International Law

14
Public International Law UNIT I

Magan Bhai, Ishwar Bhai Patel v/s Union of India, 1969 :- Court accepted the implementation
of Kutch Agreement between India and Pakistan on the basis of correspondence between them.
Similarly there are two other case viz: Vishakha v/s State of Rajasthan, 1997 and Apparel
Export Promotion Council v/s A.K.Chopra, 1999: In both of the cases the court held that the
right of sex equality of women has assumed the important rule of International Law and its
convention, court said that in cases of violation of human right the court should always consider
international documents and conventions and should make them binding.
1. THEORY OF SPECIFIC ADOPTION
British adoption
British Domestic Law treats International Customs as part of their law
However the same is not exception to conditions
i.Inconsistent International customary rules are not considered as Domestic Laws
ii.The customary rules accepted by the High Courts will be accepted by the lower courts too
iii.Treaties are not binding automatically in England
International Tin Council v/s Dep't., of Trade and Industry, 1900
The Lord Council decided that in England treaties are not binding automatically. It is binding
only when the Parliament makes it a part of English Law and incorporates in Law by enactment
of law in this regard
ADOPTION IN AMERICA -
State Laws interpreted in such a way that it doesn't go against International Law
- International Laws are treated as State Law
Paqueta Habana Case, 1900 : It was held that International Law is part of our state Law and
when any question or case relating International Law is filed before courts of proper powers
then the rights based on these questions should be determined and enforced.
2. THEORY OF TRANSFORMATION
Strake - "That the rules of International Law can be applied when they are transformed in to
domestic law, is not necessary in every case."
Treaties are of the nature of promises which have to be transformed into municipal statutes
which are of the nature of command.
The application of International Law cannot be applied in the field of Municipal Law without
transformation
15
Public International Law UNIT I

Delegation alone is not sufficient. It needs to be incorporated and applied in Municipal Law
3. THEORY OF DELEGATION
Based on Monism Theory
International Laws delegate the power to state
States to how to implement International Law via their Municipal Laws
International Laws are part of Municipal Law hence State Jurisdiction can implement it
Case Law - U.S. Vs. Pink - It was held by the Supreme Court of U.S. that an International Treaty
is a law of the land under the 'Supremacy Clause' of the U.S. Constitution
4. HARMONISATION OR CO-ORDINATION THEORY
Prof. Niboyet - "These two forces never meet, they are not like a gear. But like two wheels
revolving upon the same axis".
Neither municipal law nor international law has the supremacy to each other: they are both
made to solve the problems of humans.
They can be harmonised
They need not to clash
All Contradictions between them must be harmonized, the judges must aim to harmonize both
systems rather than treating one system superior to another.
This theory makes sense because international law and municipal law traditionally addressed
relatively different issues;
But now they have a convergence in their functions because ultimately as the Harmonisation
theory suggests the goal of both of them is to secure well being of individuals.
Ex. Environmental laws, commercial laws, human right laws (right to life)

16
Public International Law UNIT I

SOURCES OF INTERNATIONAL LAW

Article 38 (1) of the Statute of the International Court of Justice is generally recognized as a
definitive statement of the sources of international law. It requires the Court to apply, among
other things.

INTERNATIONAL CONVENTIONS / LAW MAKING TREATIES

WHAT IS A TREATY - Article 2 of the Vienna Convention on the law of treaties 1969 - A treaty is
agreements whereby two or more states establish or seek to establish relationship between
them govern by international law
Prof. Schwarzenbergr - "Treaties are agreements between subjects of international law
creating a binding obligation in international law.”
Article 38 of International Court of Justice directs to apply International Conventions,
Customs, General Principles recognized by the States and the Judicial Decisions of the State as
the means to determine the rules of law.

17
Public International Law UNIT I

TYPES OF TREATIES
Prof Starke
a) Law making treaties: These are the direct source of international law and the development
of these treaties was changing of the circumstances. Law making treaties perform the same
functions in the international field as legislation does in the state field
b) Treaty contracts: As compared to law making treaties treaty contracts are entered into by
two or more States. This may happen when a similar rule is incorporated in a number of treaty
contracts

SFL Oppenheim
a) Treaties laying down rules and principles of General International Law (This is many States
coming to a treaty)
b) Treaties laying down rules and principles of Universal International Law (This is the outcome
of previous type of treaty + with a passage of time those treaties becoming Universal
International Law).
INTERNATIONAL CONVENTIONS / LAW MAKING TREATIES
WHAT IS A CONVENTION - an agreement between states covering particular matters, especially
one less formal than a treaty
The Convention on the Protection of the Black Sea against Pollution (also referred to as
"Bucharest Convention") was signed in Bucharest in April 1992, and ratified by all six legislative
assemblies of the Black Sea countries in the beginning of 1994
- The Convention on the Prevention and Punishment of the Crime of Genocide
- Unanimously adopted by the United Nations General Assembly on 9 December 1948 as
General Assembly Resolution 260
- The Convention entered into force on 12 January 1951
- It defines genocide (killing or slaughter) in legal terms, and is the conclusion of years of
campaigning by lawyer Raphael Lemkin (Raphael Lemkin, Polish: Rafał Lemkin was a lawyer of
Polish-Jewish descent who is best known for coining the word genocide and initiating the
Genocide Convention)
- All participating countries are advised to prevent and punish actions of genocide in war and in
peacetime

18
Public International Law UNIT I

As of May 2019, 152 states have ratified or assented to the treaty recent being Mauritius on 8
July 2019
Article 2 of the Convention defines genocide as - any of the following acts committed with
intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a) Killing members of the group
(b) Causing serious bodily or mental harm to members of the group
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part
(d) Imposing measures intended to prevent births within the group
(e) Forcibly transferring children of the group to another group
Geneva Conventions for the Protection of War Victims - 1949
The Geneva Conventions extensively defined the basic rights of
- Wartime prisoners (civilians and military personnel)
- Established protections for the wounded and sick, and
- Established protections for the civilians in and around a war-zone
- It also says that the enemy prisoner if wounded should be taken care of and protected
- By Geneva Conventions on POW ethics, Pakistan did not have any alternative but to release
Abhinandan, an Indian Pilot
(Abhinandan was captured after his MiG 21 was shot down by Pakistani forces when he went
chasing after a Pakistani jet in the aftermath of the Balakot air strike)
PACTA SUNT SERVANDA
Concept given by - Hugo Grotius - Dutch Jurist
He is The Father of the Modern Science of International Law
Book - De Jure Belli ac Pacis (1625; On the Law of War and Peace)

19
Public International Law UNIT I

Two Principles of International Law

- Law were not imposed but derived from principles
- Pacta Sunt Servanda (Latin term)
- This is the Foundation Principles of International Law
- Meaning = promises must be kept (Principle of Good Faith of Treaties)
- If not keeping the principle and harming another the there should be restitution
- Promises may be made based on
- Actual practices
Customs
Treaties
In many of the treaties including U N Charter / Vienna Convention on the law of treaties 1969
this doctrine is mentioned
Agreements should be interpreted, applied and complied and shouldn't be withdrawn,
suspended or terminated
- Other than International Law, this concept is utilized in Civil and Canon Law
- Henry of Segusio, usually called Hostiensis (an Italian canonist (The Canon Law of Catholic
Church is system of laws and legal principles made and enforced by the hierarchical authorities
of the Catholic Church to regulate its external organization and government and to order and
direct the activities of Catholics toward the mission of the Church))used this maxim for the first
time in 13th Century, which was published in 16th Century
INTERNATIONAL CUSTOMS
Custom and Usage - Are they same ???
- International customs have been regarded as one of the prominent sources of international
law
- Usage is an international habit which is yet to receive the force of law / may not get the force
of law
- ICJ - 38)1)(b) - "evidence of general practice accepted as law"
STRAKE - "Usage represents the twilight stage of custom, custom begins where usage ends.
Usage is an international habit of action that has yet not received full legal attestation"
(Material Test & Psychological Test)
20
Public International Law UNIT I

Rules related to Usage and Customs -

A custom is the usage, which has obtained the Force of law (Viver's definition)
ii. It is not necessary that every usage should always precede a custom
ili. In certain cases usage gives rise to international customary law
iV. Duration / Generality / Acceptance / Opinio juris (Acceptance of practice as law)
Case Laws -
West Rand Central Gold Mining Compy Vs. R - 1905 - Court held that for a valid international
customs it is necessary that it should be roved by satisfactory evidence that the custom is of
such nature which may receive general consent of the States and no civilized state shall oppose
it
Portugal Vs. India - 1960 - ICJ 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
Dixon refers custom as the 'foundation stones of the modern law of nations' and this was
backed up in the Gulf of Maine case that custom is the ideal right size for the general principles
and always on ground to fill the vacuum any time.
ESSENTIAL ELEMENTS OF VALID CUSTOMS
Hugh - 'the way things have always been done becomes the way things must be done.
International law does not deviate from the pattern discernible in municipal legal systems'
1. Custom is regarded as a form of 'Tacit (Latin - silent) Agreement' - The behaviors of states to
each other in an acceptable way leads to tacit accent to the acceptable behaviour
2. Customary laws can change - Customary law can change on the principle of 'apprehension'
and 'acquiescence'
3. Consistency / Uniform Usage - Assylum case (Colombia v Peru) - To form customary law, it
must be 'in accordance with a constant and uniform usage practiced by states in question'
Lotus case - The court said customs must be 'constant and uniform'. It must not be 'totally
uniform and constant'; it must at least be significantly constant state practice to become
customary international law
Fisheries case(United Kingdom V Norway) - It was settled that customs should be Uniform and
Consistent
4. Generality of Practice - Once a practice is established as forming part of customary
International law', all states are bound

21
Public International Law UNIT I

including states and the new states that failed to contribute to the practice initially
Customary law is about the knowledge of the Custom, to significant number of states
It is a general adoption of practice by state
North Sea Continental Shelf Cases - It may be difficult to determine the number of state to
participate in international law before a general practice can become law because it is not about
majority of votes cast, the degree depends on the various subject matters.
6. Opinio Juris (An opinion of law) - (Opinio juris sive necessitatis - an opinion of law or
necessity / acceptance of practice as law) is an obligation to consider custom as source of law.
Unlike treaties, Customs are invisible
State practice and the firmness and acceptance of such practice can be considered as law
Article 38 (1)(b) of the Statute of the International Court of Justice
This is a psychological feeling, which gives force of law to a custom
Dixion - 'State practice must be accompanied by a belief that the practice is obligatory. The
belief in the obligatory nature of the practice is called the opinio juris'
ICJ on several occasion refer to opinio juris as having equal footing with 'state practice' -
Continental shelf case(Libyan Arab Jamahinya V Malta)
- Legality of Nuclear Weapons Advisory Opinion
- Lotus case
- North Sea Continental Shelf Cases
- Nicaragua case
7. Jus Cogens - The principles which form the norms of international law that cannot be set
aside
8. Customs can be Bilateral or Multilateral / General or Particular - Right of passage over
Indian territory case (India Vs.Portugal (Daman (Dadra-Aveli) passage)
9. Duration - Not a too necessary aspect if consistency / acceptance / general among states
10. Recognition - Article 38 (1)(b) of the Statute of the International Court of Justice

22
Public International Law UNIT I

General Principles of Law recognised by the Civilised Nations:

Article 38(1)(c) of statute of ICJ constitutes an important landmark in history of international
law inasmuch as the state parties to the statute did expressly recognise the existence of a third
source of international law independently of custom and treaties.
When statute of PCIJ was being framed by the Advisory Committee of jurists appointed by the
Council of the League of Nation, one of the issues that cropped up was that of the law to be
applied by the court.
One of the proposal put forward by the committee chairman was that the court should apply in
addition to treaties and custom the rules of international law as recognised by the civilised
nation.
After lengthy debate, general principles of law recognised by the civilised nations was inserted
under article 38(3) of statute of PCIJ. Same text has been included under article 38(1)(c) of
statute of ICJ.
General principles means those principles which have been recognised by civilised nations of
the world community in their domestic law and such principles are applied only when there is
no treaty or customary international law.
Examples of such principles are; good faith, reciprocity estoppel, res judicata.
Principle of res judicata and estoppel was applies in the case of diversion of water from meuse
by PCIJ in 1937.
Principle of estoppel was applied in Barcelona traction case 1970 and temple of Preah Vihar by
ICJ in 1962.
Judicial Decisions:
Judicial decisions are the subsidiary source of the international law. It is so because the decision
of the courts do not create any precedent. They have no binding force except to the parties to a
particular case.
With regard to judicial decisions following may be considered:
International Court of Justice (ICJ): It is at present the main international judicial tribunal.
However its decisions are binding only the parties to a case. Article 59 of statute of ICJ clearly
states that ' The decision of the court has no binding force except between the parties and in
respect of that particular case'
Awards of the international tribunals: Awards of the international tribunals such as permanent
court of arbitration and other tribunals have contributed a lot to the development of
international law.
23
Public International Law UNIT I

Decisions of the municipal courts: Decisions of the municipal courts according to the
oppenheim are not a source of law in the sense that they bind the state from the whose courts
emanate.
Decisions of the regional courts: The creation of the regional international courts for settling
the disputes in a particular area is a recent development of international law. Examples of such
courts are; the court of justice of the european communities, the european court of human
rights and the inter American court of human rights.
They have contributed immensely to the development of international law in particular areas.
Writings of Jurists:
The statute of ICJ lays down that the teachings of the most highly qualified publicist of the
various nations are a subsidiary source of international law.
Although juristic works are not an independent source of laws, sometimes juristic opinion does
lead to the foundation of international law.
Justice Gray of the US Supreme court has observed in Paquete Habana case that 'where there is
no treaty and no controlling executive or legislative act or judicial decisions resort must be
taken to the works of commentators who by years of labour research and experience have
made themselves peculiarly well acquainted with the subjects. Such works are resorted to by
judicial tribunals not for the speculations of their author concerning what the law ought to be
but for trustworthy evidence of law really is' .
Some of the qualified jurists which are often cited in the decisions of the courts are Grotius,
Vattel and Bynkershoek Such cases of example are diversion of water from meuse case (1937)
and asylum case (1950) .
Writings of the highly qualified publicist have been included under article 38(1)(d) of the
statute of ICJ next in importance to the judicial decisions as subsidiary sources of international
law.
Equity:
The term equity as a source of international law is used in the sense of considerations of
fairness, reasonableness and policy often necessary for the sensible application of the more
settled rules of law.
Under article 38(2) of the statute, ICJ has the power to decide a case 'ex acquo et bono' which
means an authorisation to decide a case without reference to the rules of law but in the light of
justice and merits of the case.

24
Public International Law UNIT I

Role of equity was discussed by judge Anzilotti and judge Hudson in their dissenting opinions
in the diversion of water from the meuse case in 1937 regarding a dispute between Holland and
Belgium, the former was of the opinion that the principle is so just so equitable, so universally
recognised that it must be applied in international relations.
In North Sea Continental case and Barcelona traction case, ICJ gave due regard to due regard to
principles of equity.
In the Rann of Kutch, arbitration between India and Pakistan in 1968, the tribunal agreed that
equity formed part of international law and that accordingly parties could rely on such
principles in the presentation of their cases.
Resolutions of the general assembly:
Resolutions of the general assembly of the United Nations do not possess legal character and
are not binding on the states.
However, if a resolution is adopted unanimously or by 2/3rd majority of the members, and if
the same resolution finds reflections in many other subsequent resolutions it must not be
lightly weighted.
ICJ in the advisory opinion given in the legality of the threat or use of nuclear weapons stated
that 'The court notes that general assembly resolutions, even if they are not binding, may
sometimes have normative value'.
Instances of some of the principles that have acquired the status of customary rules of
international law through the adoption of resolutions by the general assembly are prohibiting
the use or threat of force in international relations, non-intervention, right of self defense, self
determination etc.
Codification of public international law
What is Codification
Code is a consolidation of the statute law or statute collecting all the law relating to a particular
subject.
Codification is the process of translating into statutes or conventions, customary law and their
rules arising from the decisions of tribunals, with little or no alteration of the law.
Codification secures, by means of general conventions, agreements among the states upon
certain topics of international law and acts as a check whereby the determination of particular
law is not left to the caprices of judges. It also tends to reconcile conflicting views and renders
agreement possible among different States.

25
Public International Law UNIT I

Brief History of International Codification

The idea of codification of the law of nation (codification of international law) was first mooted
by Bentham at the end of the 18th century. He suggested Utopian International Law which
could be the basis of an everlasting peace between civilized States.
Difficulties of Codification
The main difficulty, however, in the way of codification is as Sir Cecil Hurst aptly remarks, "if it is
left to government to meet in conference for the purpose of deciding what are the rules of
International Law, it is inevitable that their efforts will be directed to agreeing or trying to agree
on the rules of international law as they ought to be for example rules which would be
appropriate to the present day requirements; and delegates will find that the requirement of
government so diversified, so contrary that agreement is impossible.
United Nations Charter and Codification
United Nations Charter, Article 30 of the Charter gives ample scope for the codification of
International law. it reads -"the general assembly shall initiate studies and make
recommendations for the purpose of -
(a) Promoting International co-operation in the political field and encouraging the progressive
development of international law and its codification ....... "
Codification of Space Law
The United Nations General Assembly by the resolution adopted on 13 December 1958,
recognised the common interest of mankind and outer space which should be used up for
peaceful purposes only and established an ad hoc committee on the Peaceful uses of outer
space.

26
Public International Law UNIT I

CODIFICATION

27
Public International Law UNIT I

28
Public International Law UNIT I

29
Public International Law UNIT I

30