Public
Unit-1
Introduction (5 hrs)
1. Definition, Nature and Scope of International Law
2. Origin and Development of International Law
3. Basis of International Law
4. Relation between International Law and Municipal Law
1. Definition, Nature and Scope of International Law
International Law is also called public international law or law of nations
➢ International law means the body of legal rules, norms, and standards
that apply between sovereign states and other entities that are legally
recognized as international actors.
➢ The term International Law was coined by the English
philosopher Jeremy Bentham (1748–1832)
➢ According to Bentham’s classical definition, international law is a
collection of rules governing relations between states.
Definitions:
It is very hard to define International Law.
▪ There are many definitions given by the scholars, subject experts
and international jurists. Prominent among them are given below:
Gray says- “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.”
▪ 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.”
According to 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 intercourse with one another."
Oppenheim- "The Law of Nations or International Law is the body
of customary and conventional rules which are considered legally
binding by civilized States in their intercourse with each other".
• Torsten Gihl-
“The term International Law means the body of
rules of law, which apply within the International
Community or society of Sates.”
International law typically falls into two different
categories.
1. Private international law deals with controversies between
private entities, such as people or corporations, which have a
significant relationship to more than one nation.
For example, 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.
2. Public international law- concerns the relationships between
nations.
➢ These include standards of international behavior, the law of the
sea, the law of air and space, economic law, diplomatic law,
environmental law, human rights law, and humanitarian law.
➢ Some principles of public international law are written/codified" in
a series of treaties, some are known as "customary" laws, and
nations consent to them by doing nothing.
Nature and Characteristics of International law
➢ What is the legal status of international law whether
international law is ‘law’ in the true sense or not.?
➢ The question is still under hot debate among jurists.
➢ Regarding the nature of international law, some writers, like
Zimmer and Willoughby are ambiguous as to whether it is a law or
not.
Views about Nature of International Law
The debate concerning the status and efficacy of international law can be
categorized into three fundamental, opposing schools of thought, each based
on different assumptions about the source of legal validity:
1. International law is not law at all. (Austin, Holland)
2. International law is true law. (Oppenheim)
3. International law is true law, but it is weak law. (Starke)
➢ Since international law appears to control or even affect
states in their actual search of ‘very important national
interest’, which are often narrow and selfish.
➢ Doubts are often expressed that
"international law is law? or not?
➢ A group believes that it is not a true law.
➢ It is nothing but international morality consisting of opinions
and sentiments working among sovereign nations of the world.
➢ It is not binding as it is unsupported by the authority
of a state.
➢ There is no capacity of sanctions against law violators.
➢ So, they support their view by saying that
international law is not law but morality having only
moral force.
➢ Thinkers like Hobbes, Austin, Holland, Zimmerli, Willughby, etc.,
emphasis that international law is not law.
➢ Holland even went to the extent of calling it as ‘the vanishing point of
jurisprudence’. For him it is law by courtesy only, because it has only
moral sanction and no teeth.
➢ It means it is applicable only if states make themselves bound morally
to accept it otherwise it has no adjudicative authority.
Note: "The vanishing point of jurisprudence" is a famous remark by jurist Thomas Holland, meaning
international law appears to be law, but lacks a sovereign authority and sanctions, causing it to
disappear into moral or political theory rather than strict law." (Vanishing= disappearing)
International law is true law
➢Writers like Hall, Lawrence, Prof. Oppenheim, etc., maintain
that international law not only operates as law.
➢ But is distinct from international morality both with regard to
the nature of its rules as well as its sanctions.
➢ Oppenheim however admits that international law is a
weaker law, because ‘it is a law between states and not above
the state.
Scope of International Law
➢ Public International Law is the body of rules and principles that are
recognized as legally binding and which govern the relations of states and
other entities invested with international legal personality.
➢ International law always rules over the subject of Int. law and their
functions.
➢ In this regards the scope of international law has continuously expanding
day by day.
➢ The major scope of area of the International law can be discussed in the
following points.
❑ The law of War
❑ The law of Peace
❑ The law of Sea
❑ The law of Aero-space
❑ Neutrality
❑ International Treaties
❑ UNO and Its Agencies
❑ Diplomatic Agents
❑ State responsibilities
❑ International Crimes
❑ Int. Trades
❑ The Protection of Global Environment
Origin and Development of International Law
➢ The ancient international law governed exchange of diplomatic agents, peace treaties,
etc., in the world of ancient Romans and even earlier.
➢ There is evidence of treaties concluded between Jews & Romans, Syrians and Spartans.
➢ The rules of jus gentium (customary law), seen as a law “to all,”
(jus gentium= law to all) and (jus civilie= law to citizens)
➢ Modern international law began with the birth of nation-states.
➢ Hugo Grotius (Dutch), is considered as the father of modern International law.
➢ The “law of nations” was later given the name of “international law” by the British
philosopher Jeremy Bentham.
➢ The following are some of the significant milestones in the development of international
law:
(a) The Peace of Westphalia (1648), The Westphalia conference held when ended the
Thirty Years War (1618-1648). It established a treaty based framework for peace and
cooperation. And the theory of *pacta sunt servanda arose.
(b) Congress of Vienna (1815), when the Napoleonic Wars ended and created a
sophisticated system of multilateral political and economic cooperation.
(c) Covenant of the League of Nations (1920), which included the Treaty of Versailles.
The League of Nations was born & Its membership consisted of 43 states.
(d) The UN Charter (1945), when The League of Nations failed to prevent II world war
*Sovereign states should perform their obligations in good faith.
(e) After the Cold War period: Public Int. law becomes politicized after cold war.
➢ Decolonisation and development issues dominate the international agenda.
➢ The period of cooperation (from 1990) international cooperation is reflected the
strengthening of international and regional organizations (WTO and EU)
➢ The extension of the powers of the UN Security Council.
➢ The increase in the number of international conferences, which deal with global
problems.
➢ The UN Conference on Environment and Development, UN Conference on Children,
UN Conference on Woman, UN Conference on Health etc.
Note:- The Peace of Westphalia was a series of peace treaties signed
between May and October 1648 in the Westphalian cities of
Munster(Catholic) and Osnabruck (Protestant).
These treaties ended the Thirty Years' War (1618–1648) in the Holy Roman
Empire and the Eighty Years' War (1568–1648) between Spain and the
Dutch Republic.
The conference is regarded as a landmark event in European history, often
cited as the foundation of the modern international system of sovereign
states.
Basis of International Law
➢ The basis of international law rests on state consent.
➢ Where sovereign states voluntarily agree to abide by rules—treaties, customs, and
general principles—to regulate their interactions.
➢ It is primarily founded on a sense of legal obligation (opinio juris) rather than a central
enforcement authority.
Basic foundational elements of International Law:
➢ Customary Law: The general, consistent, and widespread state practices followed out
of a sense of legal obligation are also the basis of International Law.
➢ Treaties and Conventions: The Explicit, written agreements (e.g., the UN Charter)
that bind signatory states are also the basis of International Law.
➢ General Principles of Law: The others bases are the Legal concepts recognized by
civilized nations (e.g., pacta sunt servanda - agreements must be kept).
➢ Natural Law and Historical Tradition: Early foundations were influenced by
universal principles of justice and human reason.
➢ Equity and Other theories: The equity and equity based theories are also the basis
of International Law.
Core Theoretical Bases:
Positivism: The idea that international law consists of rules to which states have expressly or impliedly
accepted. Int. Law is man made, and it can change according to time and place.
Naturalism: The view that law is based on reason and morality, binding regardless of state consent.
Law is not easily changeable because it is based on a number of fundamental norms.
Relation between International Law and Municipal Law
International law
➢ International law is the body of rules and principles that govern the relationships
and interactions between states and other international actors.
➢ It is concerned with issues that transcend national boundaries, such as
diplomacy, international trade, human rights and the global environment.
➢ International law is based on agreements and treaties between states, as well as
customary practices that have evolved over time.
➢ It is enforced through diplomatic means, international organisations, and, in
some cases, the International Court of Justice.
Municipal law:-
➢ Municipal law, also known as domestic law, refers to the body of law that
governs the internal affairs of a specific country or state.
➢ It consists those law that apply within the territory of the state, regulating
interactions between individuals and entities within the state, as well as
between individuals and the state itself.
➢ Municipal law covers a wide range of legal areas, including criminal law,
civil law, administrative law and constitutional law etc.
➢ It is enforced by the state’s legal system, with courts interpreting and
applying the law in accordance with established procedures and principles.
Aspect International Law Municipal Law
Scope International Communities State Boarder/Citizens
Authority Derives authority from the treaties Derives authority from the state
and consent of states, sovereign.
Nature Moral and Optional Compulsory and Binding/Legal
Strength Weaker due to weaker sanctions. Stronger enforcement mechanisms.
Sources Treaties, conventions, customs and Legislation, precedent and customs
general principles of law
Subject Matter States & Int. Organisations Individuals & State Org.
Enforcement voluntary and diplomatic measures Uniformly enforceable throughout a
state.
Aspect International Law Municipal Law
Judiciary ICJ & Its Jurisdiction State Courts
Legislature UNO, Int Agreement State Legislature
Enforcement Difficulty Difficult to enforce. Easier to implement.
No specific provision for Punishments are clearly
Punishment for Violation
punishment. defined.
Superpower states may Difficult for individuals to
Compliance Difficulty
refuse to obey. disobey
Theoretical Frameworks Explaining the Relationship
The relationship between the two systems is best understood through two principal
theories: Monism and Dualism, and a few modern approaches that bridge these theories.
A. Monistic Theory
Monism asserts that international law and municipal law form one unified legal system. According
to this view, international law is automatically part of domestic law and does not require legislative
transformation to be applied within a state.
Key Features:
➢ International law is directly applicable in domestic courts.
➢ All laws form part of a single hierarchy with international law at the apex.
➢ Individuals are subjects of both domestic and international law.
B. Dualistic Theory
➢ Dualism holds that international law and municipal law are two distinct systems operating
independently.
➢ To enforceable domestically, international law must be incorporated through national
legislation.
Key Features and Relations:
• International and municipal laws have different sources and subjects.
• International law requires transformation into domestic law to be effective.
• Conflict between the two is avoided since each applies in its own sphere.
• International law governs the relations between states, while municipal law governs individuals.
• International treaties need legislative incorporation or ratification.