Definition : horizontal.
It consists of over
190 independent states that are
PIL is defined as a body of rules that
legally equal and recognize no
governs the conduct of states and
supreme authority over them.
international entities in their mutual
relations, based on consent and w of Coordination: Because there is
recognised principles. no supreme sovereign, international law is
considered a law of coordination rather
JG Starke - PIL as a body of law
than a law of subordination. States create
composed mostly of principles
the law themselves through consent and
and rules of conduct which
choose whether to obey it.
states feel bound to observe in
their relations with each other.
Oppenheim - PIL is the body of 3) No Supreme Legislature: There is no
customary and conventional global body to create or amend PIL; the
rules legally binding on civilized UN General Assembly resolutions are
states in their intercourse. generally not legally [Link]
Compulsory Judiciary: The International
Jessup - The law governing
Court of Justice (ICJ) can only decide cases
relations between states and
when both parties agree to its jurisdiction.
other entities with international
personality.
Private
Nature : Public
International
Feature International
The nature of Public International Law is Law (Conflict of
Law (PIL)
distinct from municipal (national) law due Laws)
to the unique structure of the Primarily
Individuals and
international community. sovereign
private dealings
Subject states and
1) Horizontal System: Unlike with a foreign
international
national legal systems, which element.
entities.
are hierarchical and vertical, the
Origin Custom and National
international system is
treaties. legislatures
(Municipal law).
No
predetermined Predetermined
Court
court; depends national courts.
on consent.
Consiste Uniform for all Differs from state
ncy states. to state.
3) Moral Limits on Sovereignty: States
Theories and BASIS of PIL :cannot justify unjust acts merely by
invoking sovereignty.
Natural Law Theorists -
4) Objective Justice: International law
Law is founded on the universal law of
should reflect what is "right," not just
nature or the will of god.
what is agreed.
Natural law theory argues that law derives
its validity from moral principles inherent
Critiques of Natural Law
in human nature, not merely from state
theorists -
consent or positive enactment.
• Accused of being too abstract or
Employed to preserve the absoluteness
moralistic.
of sovereignty and the sanctity of
private possessions.
• Risk of Western moral imperialism.
Hugo Grotius (Father of IL): Argued that
natural law is founded on reason and • Hard to determine whose morality
would be valid even if God did not exist.
counts.
Vitoria & Suárez: Believed the law of
• Positivists argue it undermines legal
nations was an extension of universal
certainty.
natural law
Positive Law Theorists -
Features of Natural Law Theorists
Law is the aggregate of positive rules to
1) Universality: Certain norms bind all
which states have consented. It focuses
states because they reflect universal
on what states "do" rather than what
moral truths.
they "ought" to do.
2) Inherent Human Dignity: Rights exist
A theory that law is valid because it is
prior to and independent of state
created by a legitimate authority, not
recognition.
because it is moral or just. In
international law, positivism emphasizes
state consent as the basis of legal
obligation.
Features of Positive Law
Theorists
1) State sovereignty is supreme.
2) Consent of states creates binding
rules.
3) Sources of law must be identifiable
and formal.
4) Morality is separate from legality.
5) Law is observable, not philosophical.
International law is binding only when
states consent either through International Custom: Evidence of a
Treaties, Customary practice or general practice accepted as law.
general principles.
Theory of Auto-Limitation:
3) General Principles of Law: Principles
Propounded by Jellinek; recognized by "civilized nations" to fill gaps
(non-liquet) in the law.
States are absolutely sovereign and only
bound if they choose to restrict their own Customary International Law
sovereignty through voluntary self-
limitation Requirements to constitute as custom:
TWAIL (Third World Approach to 1) Custom requires extensive and uniform
International Law) state practice.
2) Practice must be accompanied by opinio
Views the current international legal
juris—a belief that the practice is legally
regime as a predatory system used to
obligatory.
legitimize the subordination of the Third
World by the West. 3) Treaties can crystallize or generate
custom if widely adopted and followed with
Seeks to transform IL to eliminate Third opinio juris.
World powerlessness and historical
imperialism. North Sea Continental Shelf Cases
(1969) –
Sources of PIL :
- Established that practice must be "extensive
ICJ Statutue : Article 38 (1)
and virtually uniform," especially among
1) International Conventions (Treaties): states whose interests are specially affected.
Establish rules expressly recognized by
Portugal v. India (1960)
- Right of Passage over Indian Territory
International Customary Law Perspective.
- The Court examined whether:
• Practice was long-standing
• Practice was constant and uniform
• Practice was accepted a s law (opinio juris)
• Practice was peaceful and uninterrupted
- No customary right existed for:
• Armed forces
•Armed police
• Military supplies Treaties
Article 2(1)(a), VCLT:
- Past practice showed tolerance, not Defines treaty as an international
legal obligation, for military passage. agreement concluded between
States in written form an governed by
Nicaragua v. United States (1986) - international law, whether embodied in
a single instrument or in two or more
- Whether principles in the UN Charter related instruments and whatever its
(e.g., particular designation.
non-intervention, prohibition of force)
were also customary law. Types of Treaties :
- ICJ affirmed that these principles were 1) Bi-lateral Treaties (Between 2 countries)
part of
customary international law, even if the 2) Multilateral Treaties (Between multiple
U.S. had not ratified certain treaties. countries)
- Demonstrated that custom can exist Treaty making Process:
independently of treaty law and bind
states regardless o f treaty participation. 1) Negotiation
2) Adoption of text (Article 9 VCLT)
Asylum Case (Colombia v. Peru, 3) Authentication (Article 10 VCLT)
1950). The ICJ held that a custom must 4) Signature (Article 18 VCLT)
be based on "constant and uniform 5) Ratification (Article 14 VCLT)
usage" and that Colombia failed to prove 6) Entry into force (Article 24 VCLT)
such consistency regarding the unilateral 7) Registration with UN
qualification of a political offence 8) Implementation
- Treaty Relied On: 1958 Geneva
Convention on the Continental Shelf.
- The ICJ held that Germany was not
bound by the equidistance principle
because it had not ratified the treaty.
Invalidity, Termination, and Suspension
- Court distinguished between treaty
obligations and customary law.
A treaty may be invalidated due to fraud,
- Held that treaties bind only consenting
corruption, coercion, or error. It is void
states,
if reinforcing the consensual nature
it conflicts with a Jus Cogens of international law.
(peremptory) norm—a fundamental
principle from which no derogation is
permitted, such as the prohibition of Germany v. United States
genocide.
Vienna Convention on Consular Relations (VCCR),
The cornerstone of treaty law is Pacta 1963
Sunt Servanda (Article 26), which
dictates that treaties in force are binding - The ICJ held that the US violated Article 36 of the
upon the parties and must be performed VCCR by failing to inform the LaGrand brothers
in good faith. (German nationals) of their right to consular access.
Rebus sic stantibus (Art. 62): A - The Court emphasized that treaty obligations are
fundamental change of circumstances binding and must be performed in good faith (pacta
may be invoked as a ground for sunt servanda).
terminating a treaty if those
circumstances constituted an essential Cambodia v. Thailand (1962)
basis of consent.
1904 and 1907 Franco–Siam Treaties
North Sea Continental Shelf Case
(1969) - The ICJ interpreted the treaties to determine the
boundary.
- The Court held that Thailand was bound by the
map prepared under the treaty framework.
equity, or public policy—the judge can
General Principles of Law & the
deduce a relevant rule by analogy from
Problem of Non Liquet in existing municipal law structures. This
International Law ensures that the court does not have to
abandon a case simply because of
General Principles of Law: General legal silence.
Principles of Law are referred to under
Article 38(1)(c) of the Statute of the
International Court of Justice (ICJ) as
"the general principles of law
recognized by civilized nations.".
1. Procedural and Evidentiary
These principles represent rules Principles: These are rules
deduced from municipal (domestic) related to the machinery of the
legal systems that are applicable to judicial process, borrowed from
international legal questions to fill gaps the advanced development of
where no specific treaty or custom municipal courts.
exists.
• Res Judicata: The principle that a
The Function of General Principles: decision is final, binding, and cannot be
General principles of law serve as a reopened by the parties.
vital "gap-filler" in the international • Circumstantial Evidence: The
legal order. admission of indirect evidence, as
recognized in all mature legal
Because international law is a systems..
relatively underdeveloped system • Due Process: The right of both sides
compared to municipal systems, judges in a dispute to a fair hearing.
often encounter situations where
neither a treaty nor a specific 2. Substantive Legal Principles:
customary rule provides a solution. Principles that establish
fundamental rights and duties.
By resorting to general principles—
such as the requirements of justice,
• Pacta Sunt Servanda: The
cornerstone of treaty law, stating that
agreements must be kept in good
faith..
• Obligation to make Reparation:
conception that every violation of an
engagement involves an obligation to
repair the damage..
• Ex injuria jus non oritur: The
principle that legal rights cannot arise
from wrongful or illegal acts.
3) Equitable Principles
Vienna Convention on the Law of
Treaties (VCLT) Significance of VCLT
- Adopted: 23 May 1969; Entered into force: 1. Codification of Custom: It transforms
unwritten customary practices into a clear,
27 January 1980
written code, making the law more
accessible and predictable.
- Drafted by the International Law
2. Pacta Sunt Servanda (Art. 26): The
Commission of the UN VCLT enshrines the fundamental principle
that every treaty in force is binding upon
the parties and must be performed in
- Codifies customary international law on good faith.
treaties
3. Supremacy over Municipal Law
(Art. 27): It reinforces international
- Known as the 'treaty on treaties' obligations by stipulating that a party may
not invoke the provisions of its internal law
as a justification for failure to perform a
- Article 26: Pacta sunt servanda – treaties must treaty.
be performed in good faith 4. Protection of Peremptory Norms
(Jus Cogens): Under Article 53, the VCLT
establishes that a treaty is void if it
- Amendment/Modification: Requires consent of conflicts with a peremptory norm of
parties general international law, such as the
prohibition of genocide or racial
discrimination.
- Termination/Suspension: Material breach,
impossibility, fundamental change Signature vs. Ratification
• Definition: Signature is a preliminary act
by which a State representative expresses
a political commitment to the treaty text.
• Legal Effect: In most modern multilateral
treaties, signature alone does not create a
binding substantive obligation to perform
the treaty's terms. However, under Article
18, a signatory state is under a legal duty
to refrain from acts which would defeat
the object and purpose of the treaty until
it has made its intention clear not to
become a party.
They allow states to join a convention
while opting out of specific clauses that
might conflict with their domestic laws or
sovereign interests. However,
reservations are not permitted in
bilateral treaties, as they would
effectively amount to a proposal for a
new treaty.
• Definition: Ratification is the formal
international act whereby a State
establishes its final consent to be
bound by a treaty on the international
plane.
• Significance: Ratification provides a
"cooling-off period," allowing a State to
seek necessary domestic legislative
approval, consult public opinion, or
amend internal laws to ensure Permissibility (Article 19): A State may
compliance with the new international formulate a reservation unless:
obligations. This is particularly vital in
dualist systems (like India), where
treaties are not self-executing and 1. The reservation is expressly prohibited
require parliamentary intervention to
become part of domestic law. by the treaty;
The Framework on Reservations 2. The treaty provides that only specified
reservations may be made; or
Under Article 2(1)(d), a "reservation" is a
unilateral statement made by a State
3. The reservation is incompatible with the
when signing, ratifying, or acceding to a
object and purpose of the treaty.
treaty, whereby it purports to exclude or
modify the legal effect of certain
Legal Effects of Objections (Articles 20–21):
provisions of the treaty in their
When a state makes a reservation, other
application to that State.
contracting states have three choices:
Reservations are a pragmatic tool
• Acceptance: The treaty enters into
designed to encourage maximum
force between the reserving and
participation in multilateral treaties.
accepting states as modified by the
reservation.
• Objection (Limited): The objecting state
opposes the reservation but not the
entry into force of the treaty. In this
case, the provisions to which the
reservation relates do not apply between
the two states to the extent of the
reservation.
• Objection (Total): The objecting state
expressly declares that its objection
precludes the entry into force of the
treaty between itself and the reserving
state; thus, no treaty relationship exists
between them.
Declaration on the Establishment of a
New International Economic Order (NIEO)
SOFT LAW
Soft law refers to international
instruments, documents, or treaty
provisions that do not possess legally
binding force but are intended to exert a
significant influence on the behavior of
states and the development of
international legal norms.
These typically take the form of
recommendations, guidelines, codes of
practice, or resolutions adopted by
international organizations.
Soft law serves as a vital tool in the
decentralized international system by
enabling states to establish guidelines
and standards for new or complex areas
of concern without the immediate
necessity of formal treaty ratification.
It allows for flexibility and inclusivity,
acting as a precursor to the eventual
formation of binding law through either
the conclusion of a treaty or the
development of a customary rule.
Important Statues :
The Friendly Relations Declaration
(1970)