International Law
A. Introduction to International Law
International law is a system of rules and principles that govern the conduct of states and other
international entities. It provides a framework for interstate relations, addressing disputes
between states and regulating various aspects of global interaction. Unlike domestic (municipal)
law, which regulates the conduct of individuals within a state, international law operates in a
decentralized manner among sovereign states.
B. Historical Evolution of International Law
Coining of the Term: The term "International Law" was first coined by English philosopher
Jeremy Bentham in 1780.
Founding Father: Dutch jurist Hugo Grotius (1583-1645) is considered the founding father of
modern international law. His work, particularly "On the Law of War and Peace" (1625),
significantly influenced the development of the field, emphasizing concepts like the freedom
of the high seas.
Origins: The origins of international law can be traced to cooperative agreements between
peoples in the ancient Middle East, with its essential structure being mapped out during the
European Renaissance.
C. International Law vs. Domestic Law
International law differs from domestic (municipal) legal systems in several key aspects:
Legislative Power: The United Nations (UN) General Assembly, while composed of
representatives from approximately 190 countries, lacks the power to issue binding laws. Its
resolutions are generally recommendations, except for specific matters like the UN budget,
admission of new members, and election of ICJ judges (along with the Security Council).
Jurisdiction: The international court system, including the International Court of Justice (ICJ),
does not possess absolute jurisdiction. In contentious cases, the ICJ's jurisdiction requires
the consent of the involved states.
Enforcement: There is no international police force or supreme executive authority. The UN
Security Council can authorize the use of force to compel states to comply with its decisions,
but only in cases of aggression. Enforcement actions can be vetoed by any of the five
permanent members of the Security Council. There is no standing UN military; forces are
assembled from member states on an ad hoc basis.
Nature of Law: International law is considered a "weak law" compared to municipal law due to
the lack of centralized enforcement. However, it functions in a decentralized manner based
on the independence and sovereignty of states. Its rules are based on centuries-old customs,
international agreements, and treaties, with enforcement relying on the common consent of
the community of nations.
Scholarly Views:
Oppenheim: Views international law as a "true law."
Austin: Considers international law not a "true law" because it is not enacted by a superior
legislative authority.
D. International Law and International Relations
Conformity: States generally conform to international law rules and principles when
responding to international situations, conscious of their international reputation.
Reciprocity and Self-Interest: The rules of international law are often based on reciprocity or
self-interest. Breaching international rules can lead to a loss of credibility, negatively
impacting future relations.
Certainty and Predictability: Adherence to international rules and principles creates certainty,
predictability, and a sense of common purpose in international affairs.
Globalization: The rise of international and regional organizations due to globalization has
expanded the scope of international law to cover the rights and obligations of these
organizations. New international law is frequently created through processes requiring near-
universal consensus, as seen in environmental agreements and the Law of the Sea treaty.
Complexity: International law is complex and often described as "horizontal" due to the
principle of state equality. However, in practice, some states hold more influence in creating
and maintaining international law.
E. What is International Law?
Definition: International law is a framework of rules and principles that bind the relations
between states, governing their conduct among themselves and with other legally recognized
international entities. It also governs interactions between citizens of different nations. It is a
system of treaties and agreements that dictates how nations interact with each other, their
citizens, and businesses.
Consent-Based Governance: International law largely relies on consent-based governance.
States are typically not obligated to abide by it unless they expressly consent, with exceptions
for customary international law and jus cogens.
Jus Cogens: This Latin phrase means "compelling law." It refers to norms of customary
international law that are so fundamental that no derogation is permitted through particular
agreements. These norms cannot be changed by treaties.
Public International Law
Scope: Regulates relations between states. It is concerned with interstate regulation and the
conduct of one state with another, not with relations between private entities or domestic
laws.
Objective: To provide a framework of rules and regulations that foster stable and organized
international relations.
Key Areas of Application: Peace and security, trade, weapons, human rights, intellectual
property, biodiversity, international crimes, climate change, finance, development, airspace,
sea, science and security, fisheries, extradition, and natural resources.
Expansion: The range of subjects covered by international law has widened considerably.
Example Organization: The World Trade Organization (WTO) is a global international
organization dealing with trade rules between nations, established in 1995 to regulate and
facilitate international trade.
Private International Law (Conflict of Laws)
Scope: A set of rules and principles governing interstate interactions and transactions of
private parties. It involves determining which jurisdiction should hear a case and which law
should be applied.
Components: Constituted of conventions, model laws, domestic laws of states, and
secondary legal sources.
Common Issues: Involves questions about which legal system and norms should apply in
cases with foreign elements, such as marriage laws between couples from different
jurisdictions.
International Bodies Harmonizing Private Laws
Hague Conference on Private International Law: Focuses on developing conventions for
various aspects of private law.
International Centre on the Settlement of Investment Disputes (ICSID): Deals with investment
dispute settlement.
International Institute for Unification of Private Law (UNIDROIT): Works towards unifying
private law.
United Nations Commission for International Trade Law (UNCITRAL): Develops model laws
and guides for international trade and commercial law, including the UNCITRAL Arbitration
Rules.
Key Conventions/Model Laws in Private International Law
United Nations Convention on Contracts for the Sale of International Goods (CISG) / Vienna
Convention on Sale of Goods: Provides a framework of substantive rules for contract
disputes, often incorporated into domestic laws unless expressly excluded.
UNCITRAL Model Law on International Commercial Arbitration: Provides a framework for
domestic laws on international arbitration.
Geneva Convention on the Execution of Foreign Arbitral Awards: Facilitates the enforcement
of foreign arbitral awards.
F. Sources of International Law
The most authoritative source for identifying the sources of international law is Article 38(1) of
the Statute of the International Court of Justice (ICJ).
Article 38(1) of the Statute of the ICJ
The Court shall apply: a. International conventions, whether general or particular, establishing
rules expressly recognized by the contesting states; b. International custom, as evidence of a
general practice accepted as law; c. The general principles of law recognized by civilized
nations; d. Subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the determination
of rules of law.
Primary Sources of International Law
These are the main sources the Court considers in its decisions:
1. Treaties (International Conventions):
Definition: Legally binding, written agreements where states agree to act in a particular
manner.
Binding Nature: Binding upon the parties and must be entered into in good faith.
Non-Treaty Agreements: Agreements without the intention of creating binding obligations
are not treaties but may have political effects.
Format: Can consist of one or more related documents.
Adoption: A final draft can be adopted by a two-thirds majority in an international
conference.
Methods of Expressing Consent:
Signature: Representatives with full powers can sign to express consent.
Exchange of Instruments: Consent can be recorded by exchanging documents that
establish agreement.
Ratification: A formal act by which a state establishes its consent to be bound by a
treaty on the international plane, often requiring legislative or executive approval.
2. Customary International Law:
Definition: Rules derived from a general practice accepted as law, existing independently of
treaty law. It refers to binding legal rules developed through continued global or regional
practice.
Importance: Fills gaps in treaty law, particularly during armed conflict, strengthening victim
protection.
Derivation: Derived from the law of nature or mutual consent of states, identified through
state practice and opinio juris.
Opinio Juris: The subjective belief of states that their practice is legally obligatory. It
prevents general practices from becoming customary law if not done out of legal
obligation.
Two Essential Elements:
(1) State Practice: Widespread, consistent, and general repetition of similar
international acts by states.
(2) Opinio Juris: Subjective acceptance of the practice as law, reflecting a belief in legal
obligation.
North Sea Continental Shelf Cases (Germany v. Denmark & Netherlands, 1969): Confirmed
the dual requirement of state practice (objective) and opinio juris (subjective) for the
formation of customary international law. The case also indicated that the duration of
practice is not necessarily an essential factor.
Other Sources: Unsigned treaties and UN declarations can also contribute to identifying
customs.
Disputes: Identifying when state practice becomes legally binding and how to prove the
existence of a customary rule can be contentious.
3. General Principles of Law:
Definition: Principles of law recognized by civilized nations, used to fill gaps when treaties
or customary international law are insufficient.
Examples: Principles of justice, natural law, analogies to private law, principles of
comparative law, general conceptions of international law.
Sources: Found in textbooks, general surveys, treatises, and encyclopedias.
Significance: Their significance may diminish as new treaties and customary law develop
to address emerging international concerns.
Subsidiary Means for Determination of Rules of Law
Judicial Decisions: Decisions of international courts (like the ICJ) and national courts on
international law issues.
Teachings of Publicists: Writings and opinions of highly qualified international law scholars.
Note: While Article 38(1) technically applies to the ICJ, its enumeration of sources is widely
accepted as the general norm for international law.
G. International Human Rights
Impact of WWII: The Second World War significantly spurred the development of international
human rights law, creating a need for a system to protect human rights.
Key Conventions and Treaties:
International Covenant on Civil and Political Rights (ICCPR): Article 4 identifies non-
derogable rights (e.g., right to life, freedom of thought, prohibition of slavery).
Customary International Law: Certain rights, like the prohibition of torture, genocide, and
slavery, and principles of non-discrimination, have become part of customary international
law and are considered inalienable.
Universal Declaration of Human Rights (UDHR): A foundational document (though not
binding per se) that covers liberty, equality before law, prohibition of torture, and socio-
economic rights. It has been referred to in ICJ cases.
Vienna Declaration and Programme of Action (1993): Emphasized the universality,
indivisibility, interdependence, and interrelatedness of all human rights.
UN High Commissioner for Human Rights: Created to be principally responsible for UN
human rights activities, making recommendations and coordinating efforts.
Other Key Legislations/Arrangements:
Convention on the Prevention and Punishment of the Crime of Genocide.
International Convention on the Elimination of All Forms of Racial Discrimination.
Human Rights Council: The successor to the Commission on Human Rights, addressing
human rights issues, though it has faced criticism for political selectivity.
Erga Omnes Obligations: Certain human rights violations are so grave that any state may take
action against them, regardless of jurisdiction, due to a shared interest in their elimination.
This empowers the international community to protect the rights of citizens of other
countries.
H. International Law and Municipal Law (Domestic
Law)
The relationship between international law and municipal law is complex and debated.
Non-Intersection View: Some argue that international law and municipal law are separate and
cannot affect or overrule each other.
Practical Intersection: In practice, there is significant interplay.
Principles on Conflict:
Municipal law cannot be used as a defense for breaching international law.
A state's consent to a treaty is not invalidated by changes in its municipal law.
Lack of domestic legislation cannot be a defense for failing to meet an international
obligation.
Prevalence: While international law is generally considered prevalent over domestic law,
domestic legislations retain their force.
Treaty Implementation: Many international treaties require states to adopt domestic
legislation to align with their international obligations, blurring the distinction. Domestic
courts increasingly consider international obligations in domestic disputes.
Application by Countries: Each country has its own method for applying international law.
International provisions often supplement domestic law when concurrent.
Forum Preference:
International Forums: Generally prefer treaty law and other international sources.
Domestic Forums: Tend to prefer statutes of their own jurisdiction.
Doctrines of Application
Doctrine of Transformation (e.g., United Kingdom): International agreements must be
transformed into municipal law through domestic legislation before they can be applied
domestically.
United States of America: Customary international law is considered federal law. Treaties are
generally respected, but a domestic rule to the contrary may be given precedence.
I. International Law and India
Indian Constitution:
Article 51: Mandates the state to foster respect for international law and treaty
obligations.
Article 253: Empowers the Parliament and the Union of India to implement treaties, even
overriding state government powers.
Application of International Law in India:
India generally follows a system where affirming a treaty by the executive, unless
legislative ratification is required, suffices.
Kesavananda Bharati v. State of Kerala: The court observed that constitutional provisions
should be interpreted in light of the UN Charter.
Evolution of Treaties in Indian Law:
Restrictions on rights require legislative amendment.
Enhancing or broadening rights through treaties is allowed if not contradicted by domestic
law.
Magan Bhai Patel v. Union of India: If a treaty restricts citizen rights or modifies state
laws, legislative measures are needed.
If no rights are restricted, a treaty may not require legislative enactment to have weight in
domestic law.
Override: International treaties cannot unilaterally override domestic law. Treaties not
enabled by the legislature may not have the same force if contradicted by domestic law.
Sheela Barse v. Secretary Children's Aid Society: The Supreme Court held that ratified
child protection conventions created an obligation for state governments to implement
their principles, as they supplemented existing law.
Vishaka v. State of Rajasthan: Indian courts used the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) to create legally binding obligations
regarding sexual harassment, demonstrating the direct application of international law
when domestic law is silent or insufficient.
J. Dispute Resolution in International Law
International disputes can be resolved through various mechanisms.
International Court of Justice (ICJ) or World Court
Principal Judicial Organ of the UN: Settles legal disputes submitted by states in accordance
with international law and provides advisory opinions.
Establishment: Established in 1946 with the adoption of its Statute by the UN General
Assembly.
Jurisdiction:
All UN members are parties to the ICJ Statute by default. Non-members can also become
parties.
Jurisdiction in contentious cases requires the consent of the parties.
Can also have jurisdiction if provided for in a treaty between parties.
Can issue advisory opinions on international legal issues to UN bodies and agencies.
Judgments: Final, binding on the parties, and without appeal.
Enforcement: The ICJ has no enforcement powers; the UN Security Council may take action if
states do not comply.
Subsidiary Means: Judicial decisions are considered subsidiary means for determining rules
of law.
International Criminal Court (ICC)
Establishment: Set up through the Rome Statute in 2002.
Jurisdiction: Exercises jurisdiction over individuals for the most serious crimes of
international concern (Crimes against Humanity, Genocide, War Crimes, Crime of
Aggression). It is complementary to national criminal jurisdictions.
Limitations: Prosecutes crimes committed in countries that accept the court's jurisdiction or
when referred by the ICC Prosecutor.
Complementarity: Acts when national courts are unable or unwilling to genuinely investigate
or prosecute.
Distinction from ICJ: The ICC deals with criminal matters concerning individuals, whereas the
ICJ handles disputes between states.
Other Dispute Resolution Mechanisms
Treaty Provisions: Treaties often specify dispute resolution procedures, such as mediation,
arbitration, or specialized panels (e.g., the dispute resolution panel within the General
Agreement on Trade and Tariffs).
Mediation and Arbitration: Common methods employed by states to resolve disputes.
Specialized Forums: Institutions like the International Centre for Settlement of Investment
Disputes (ICSID), in association with the World Bank, handle investment disputes.
Flexibility: Numerous other forums can be created based on agreements between parties and
treaty provisions. The ICJ's enabling provisions are broad enough to handle most disputes
between member states.