MODULE-I Basic aspects of International Law-nature and basis of international

law-Definition of International Law- sources of international law -Subjects of

International Law-Relationship between Municipal Law and International Law.

MEANING AND DEFINITIONS OF INTERNATIONAL

LAW:
The term "International law, also referred to as Laws of Nations was first
coined by Jeramy Bentham in 1780. Every country is referred to as 'state'
in International Law.

The modern international law system is a product of only the past four
hundred years bearing witness to the influence of various writers and
jurists of sixteen to eighteenth century, who formulated some of its most
fundamental principles. International laws are a set of rules, agreements
and treaties that are binding between countries. Countries come together
to make binding rules that they believe will benefit the citizens. It is an
independent system of law existing outside the legal framework of a
particular state.

International law is the body of law that governs the relations and conduct
of sovereign states with each other, as well as with international
organizations and individuals. It is a complex and dynamic system of law
that covers a wide range of topics, including trade, human rights,
diplomacy, environmental preservation, and war crimes.

International law is different from domestic law in a number of ways.

First, it is primarily based on the consent of states. States agree to be
bound by international law through treaties, customs, and general
principles of law. Second, international law is enforced primarily through
diplomacy and negotiation. There is no central authority to enforce
international law on states. Third, international law is constantly
evolving, reflecting the changing needs of the international community.
International law is important because it provides a framework for
cooperation and order in the world. It helps to protect the rights of states
and individuals, and it promotes peace and security.

Here are some examples of international law:

The United Nations Charter, which establishes the United Nations and its
goals The Geneva Conventions, which regulate the conduct of war
The Universal Declaration of Human Rights, which guarantees basic
human rights to all people
The Convention on the Law of the Sea, which establishes rules for the use
of the oceans
The World Trade Organization (WTO) agreements, which regulate
international trade

DEFINITION OF INTERNATIONAL LAW

Professor Oppenheim has defined international law in the following

words:
‘Law of Nations or international law is the name for the body of
customary and conventional rules which are considered legally binding
by civilized States in their intercourse with each other’.
This definition was given by Oppenheim in 1905 has become obsolete
and inadequate.
Definition has been subject to the following criticism:
A)The definition takes into account of the relations of States' only. But,
presently, international organisations and institutions are also regarded as
subjects of international law.
B)The use of the term civilized States by Oppenheim is also severely
criticised.Earlier, the Western States regarded only the Christian States'
as civilized States. At present there are many members of the U.N. which
include Christian as well as non-Christian States.
The definition lays down that the rules of international law derive only
from customs and treaties, but it is not correct
OPPENHEIM'S NEW DEFINITION

In the ninth edition of Oppenheim's book (1992) the term international

law' has been defined differently after taking into account of the new
developments:

“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 relations of States, but States are not the only subjects
of international law. International organisations and, to some extent, also
individuals may be subjects of rights conferred and duties imposed by
international law.
OTHER DEFINITONS
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.
Hackworth similarly defines: International Law consists of a body of
rules governing the relations between States.
Queen v. Keyn, (2 Ex. D. 63 (1876)). Lord Coleridge, C.J. defined
international law as: The law of nations is the collection of usages which
civilized States have agreed to observe in their dealings with one another.
Gray: International Law or the law of nations is the name of a body of
rules which according to the usual definitions regulate the conduct of
States in their intercourse with each other.

Modern definition- J.G. Starke. In the words of 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 themselves bound to observe, and, therefore, do commonly
observe in their relations with each other, and which includes also:
(a) the rules of law relating to the functioning of international institutions
or organizations, their relations with each other, and their relations with
States and individuals and
(b) certain rules of law relating to individuals and non-States entities so
far as the rights or duties of such individuals and non-state entities are the
concern of the international community."
The definition of Starke is appropriate because it takes into account the
changing Character of international law and truly reflects the present
position of international law
On the basis of above definitions we may conclude that inter national
law is a body of rules and principles which regulate the conduct and
relations of the members of international community.In view of the
changing character and expanding scope of international law
today,international organisations,non state entities and individuals have
also become the legitimate subjects of International law
.
NATURE AND BASIS OF INTERNATIONAL LAW

National Legal System and International Law

NLS- Power is centralised in distinct authorities legislature Executive

and judiciary Govt has supreme or sovereign power to make, determine
and enforce the law on the subjects or individuals.( Vertical legal System)
IL-Operates on a decentralised system.ie.consent of state is the basis of
IL’s legitimacy. States are equally sovereign,ie.no supreme authority over
sovereign states (Horizontal legal system). The law is there, but there is
no enforcement. The law is made by the state for themselves and not for
subjects.
International law is law or not?

According to Hobbes, Austin and Pufendort, that law is command of

sovereign enforced by superior political authority to inferiors and is
backed up by a coercive enforcement agency , then international law
cannot be included in the category of law
According to Holland, Bentham etc. international law 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 absence of all these International law is not .
But in the view of some other jurists like Oppenheim, the existence of
law presupposes the existence of three prerequisites (i) a community; (ii)
a body of rules: and (ii) common consent of the community that if
necessary these rules shall be enforced by an external power.Hence IL is
considered as law. IL is considered as law because,

(1) The term law cannot be limited to rules of conduct enacted by a

sovereign 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, 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 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..
(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 Nation is based on the true legality of international law
(11) It is also pointed out that the sanction is not an essential element of
law. However international law is not completely without sanction
although the sanctions behind it weaker as compared to State law. The
decisions of the International Court of Justice a binding upon the parties
to a dispute, In case any party fails to comply with the decision the
Security Council on the request of other party may make
recommendations or decide upon measures to be taken to give effect to
the judgment. Beside this, war, reprisals etc. have been regarded as
sanctions behind international law Chapter VII of UN Charter provides
for international enforcement actions.
(12)Public opinion is also considered as the ultimate sanction behind the
binding force of international law and for that matter, behind any law.
(13) Those who deny the legal character of international law emphasize
that it is frequently violated but it does mean that it is not law. What is
true of Municipal law should also hold good for International law.

Is International Law a mere positive morality ?.-

A rule of morality applies to conscience and is, therefore, not binding. On

the other hand a rule of law is binding and can be enforced by an external
power. Most of the jurists agree that international law has a binding
nature whereas the rule of morality is simply a right behaviour based on
the personal judgments.

Whether IL is a vanishing point of jurisprudence?

Yes, as to Austin and Holland because IL is followed by courtsey and no

sanction
The view of Holland does not seem to be correct. In the first place,
sanction is not most essential element of law. Even if it is regarded as an
essential element, it will not be proper to say that international law has no
sanctions at all. War reprisals, retorsion, Pacific Blockade. etc. are the
sanctions behind international law.The UN Charter also contains a
provision wherein the Security Council may recommend or decide upon
the measures to be taken to implement the decision of the International
Court of Justice
2 In the view of Holland, there is no judge or arbitrator to decide
international disputes. But this statement cannot be accepted because the
ICJ is the judicial organ of the United Nations and its decisions are
binding upon the parties to a dispute.
3 ICJ lacks compulsory jurisdiction , no effective executive authority
to enforce its decisions: its decisions cannot be applied to future cases as
precedents and, above all, the binding force of its decisions is very
limited. Indeed it is not equivalent to the highest Municipal Court.
Nevertheless, the decisions of the International Court of Justice possess
binding force and can be enforced under certain circumstances. They are
binding upon the parties to a dispute and only in respect of that dispute.
(Art.59)
Article 94 of the UN. Charter -each member of the U.N. undertakes to
comply with the decision of the ICJ. in any case to which it is a party. It
further provides that if any party to a case fails to perform the obligations,
the other party may have recourse to the Security Council, which may, if
it deems necessary make recommendations or decide upon measures to be
taken to give effect to the judgment. Thus the international legal system is
not only provided with a judicial organ to resolve international disputes
but its decisions are binding and can be enforced .
Further, under Article 36(2) of the Statute of the ICJ. a State party may
confer compulsory jurisdiction upon the court
Under Chapter VII of the
UN. Charter, the Security Council possesses wide powers to declare
sanctions against the States who are guilty of violation of the provisions
of the UN. Charter relating international peace and security

On the basis of above discussion, it may be concluded that International

Law is, in fact, law and it is wrong to say, that it is the vanishing point of
jurisprudence.

. Does International Law comprises of the rules of International

comity?

International comity means practices which the States observe as a

matter of courtesy or convenience. They are not binding upon them. On
the other hand, rules of international law are regarded as binding by the
States. It is, therefore, wrong to say that international law comprises of
the rules of international comity.
DISTINCTION BETWEEN PUBLIC INTERNATIONAL LAW
AND PRIVATE INTERNATIONAL LAW.
(1) Public International Law deals with States and to a lesser extent with
the individuals. Private International Law deals with the individuals.
(ii) Private International Law is a part of Municipal Law but so is not
always the case with Public International Law.
(iii) Public International Law is same for all the States whereas Private
International Law may be different in different States.
(iv) Private International Law determines as to which Law will apply in a
case having a foreign element. There is no such problem in the field of
Public International Law.
(v) Private International Law also determines the court which will have
jurisdiction to decide the issue in question. In this respect also it differs
from Public International Law.
(vi) According to Robert Philimore, rights arising out of Public
International Law are absolute but private international law does not
confer absolute rights.
(vii) International Law comprises mainly of the rules recognised by States
in their relation with each other and mostly arises out of International
customs
and treaties. On the other hand, rules of Private International Law are
framed by the legislature of a State and recognised and developed by
State Courts.

BASIS OF INTERNATIONAL LAW- THERE ARE TWO

THEORIES TO EXPLAIN THE BASIS OF IL.

A) Theories as to law of nature and

B) Doctrine of positivism

Other theories are

A) Fundamental right theory

B) Consent theory
C) Auto-limitation theory and doctrine of PactaSunt Servanda

Theories as to law of nature

1) Theories as to the Law of Nature. According to the exponents of this
theory, international law is a part of the law of nature. States follow
international law because it is a part of the law of nature which is a higher
law. In their view, it is the natural law which has conferred binding force
on international law. In the beginning. Natural Law was associated with
religion. The jurists of 16th and 17th centuries, especially Grotius,
secularised the concept of the Law of Nature. According to Grotius,
natural law, is the 'dictate of right reason'. His followers applied the law
of nature as the ideal law founded on the nature of man as a rational
being. International Law was considered binding because it was in fact,
natural law applied to special circumstances. Vattel, Pufendorf,
Christian Thamasius, etc. are other prominent exponents of the law of
nature.

Criticism.-. Different jurists ascribe different meanings to it such as

reason, justice, utility, general interest of international community etc.
Thus the meaning of the term 'natural law' is very vague and uncertain,
Besides this,the main defect of this theory is that it is not based on
realities and actual practice of the states.
Positivism. Positivists base their theory on the actual practice of the
states. According to them will of states is the main source of international
law and is binding because the states have given their consent for the
rules of international law. It is contended that although states are
sovereign, yet by process of auto-limitation, they have restricted their
powers and accepted certain rules as binding upon them.
One of the weaknesses of the positivist theory is that it fails to explain
the binding force of customary rules of international law. The positivists
have tried to explain this by saying that there is an implied consent in
regard to customary rules of international law.
True basis of International Law.-According to Starke, no specific theory
capable of explaining the true basis of international law. As a matter of
fact, because of inter-dependence of states in the modern period, no State
can escape from the influence of International law.Thus state follow
international law simply because they are states.
OTHER THEORIES

1. Theory of consent.-This is based on the positivists' view and has been

fails to explain the basis of international law. According to this theory,
states observe rules of international law because they have given their
consent for them.
Criticism- (1) As regards customary rules, it is not necessary to prove
that states have given their consent. (ii) In regard to customary rules, the
basis of implied consent is far from correct.iii) it fails to explain the case
of recognition of a new state.
2) Auto-Limitation Theory. This theory is also based on the theory of
consent and fails to explain the basis of International law. It is based on
the presumption that state has a will. Moreover, auto-limitation is no
limitation at all.

(3) Pacta Sunt Servanda.-According to Anzillotti, the binding force of

international law is founded on the fundamental principles known as
pacta sunt servanda, which means that the agreements entered into by
the states must be followed by them in good faith. This principle, though
a fundamental and very important principle of international law, fails to
explain the binding force of customary rules of international law.
(4) Theory of Fundamental Rights.-This theory is based on the
naturalistic view point. According to this theory, before the existence of
states, man used to live in natural State and possessed some fundamental
rights such as right of independence, equality, self-preservation, etc. It is
contended that like man, states also possessed these fundamental rights,
because so far there is no world authority over and above the states.
SOURCES OF INTERNATIONAL LAW
Sources of international law can be classified into the following
(1) International Conventions; (2) International Customs : (3) General
Principles of Law recognised by civilized Nations (4) Decisions of
Judicial or Arbitral Tribunals: (5) Juristic Works and (6) Decisions of
Determinations of the Organs of International Institutions.
International Conventions or Treaties
Conventions or Treaties form the most important part of international
law. The term 'convention' literally means "the act of convening a
conference, as assembly, representatives or delegates assembled for a
common cause".Whereas the term 'treaty' is an agreement, subject to
certain rights and duties entered into between two or more States,
Diplomatic envoys or heads of the States".
In other words, Convention or Treaty is an agreement in general or in
particular. If an agreement is signed and adopted by all or majority of
States, it is called 'Convention'. Eg. United Nations Convention on Law
of the Sea, 1982; Vienna Convention on Law of the Treaties, 1969 etc
International Treaties may be classified into two categories, namely:
a) Law-making treaties; and
b) Treaty contracts.
A law making treaty involves two operations viz., a) legislative opa.
Law-making Treaties:eration i.e. laying down of rules; and b)
undertaking of the contracting parties to conform to the rules.The
Congress of Vienna, 1815, the Declaration of Paris,1856 are the best
examples for law making treaties
. The law making treaties may again be divided into two types, namely,
I) Treaties enunciating the rules of universal international law. Eg. The
United National Charter, and II) International Treaties, which lay down
general principles. Eg. Geneva Convention on Law of the Sea, 1958;
Vienna Convention the Law of Treaties, 1969.

b. Treaty Contracts: Treaty contracts deal with a special matter between

the contracting states only. They are entered into by two or more states
and are binding on the parties to the treaty The treaty contracts entered
into by a few states may be subsequently accepted by several states as
they enter into similar treaties.
II) International Customs
The term 'Custom' means "Achara or Usage" a traditionally followed long
practice by the members of a society. It is a bonafide practice, being
observed for a long time, having the force of law.
Among the sources of international law, custom is the oldest and the
prominent one. Article 38(1)(b) of the Statute of International Court
of Justice recognizes 'custom' as a source of international law, Custom in
its legal sense involves something more than habit or usage - a usage left
by those who follow it to be an obligatory one".
The word custom and usage are used as synonymous, infact there is
difference between the two Usage is in fact the early stage of custom. It
means those habits which are often repeated by states Usage is the
taillight stage of custom, customs begins,usage ends.
Usage is an international habit of action that has yet not recieved full
attestation.
Usage may be inconsistent and opposed to each other,but this can never
be the case with the custom. When the usage receives the general
acceptance of recognition by the states in their relation with each
other,there develops a conception that such a habit of behaviour has
become right as well as obligation of the states, and in this way a usage
becomes a custom, is such a usage as that obtained the force of law.

Custom is a habit which has been repeated for a long time and has
ultimately assumed the force of law. Usage is the earlier stage of the
development of custom. By usage we mean those habits which are often
repeated by the States. Customs begins where usage ends. Usages may be
inconsistent and opposed to each other, but so is not the case with custom

Customary rules of international law have developed in the following

three circumstances (a) Diplomatic relations between States: (b)
Practice of Organs of International Institutions; and (c) State laws,
decisions of the State's Courts and State's Parliamentary or
administrative practices.

CASE LAW-WEST RAND CENTRAL GOLD MINING CO. LTD.

V. R., [(1905) 2 K.B. 291] (RIGHT OF PASSAGE OVER INDIAN
TERRITORY CASE

West Rand Mining company was registered in England and was working
in the Gold Mine of Transwal. Some officers of the South American
Government, under the orders of the South African Govt took into their
possession two parcels of the company. On 11th Oct, The Boar War
started and in that war South Africa was defeated and England included
in its empire. Thus, the British Government became the successor of the
South African government, with the result that it become the successor of
all the rights and duties of the South African Government and as the
liability of returning the two gold parcels or making the payment of their
price to the company was also shifted to British government
It should be proved by satisfactory evidence that the custom is of such
nature that it has received general consent of the States and no civilized
State shall oppose it.
In this case a test regarding the general recognition of custom was laid
down . The court ruled that for a valid international custom it is
necessary that it should be proved by satisfactory evidence the custom is
of such a nature that it has received general consent of the states and no
civilized state shall oppose it
In this case a test regarding the general recogntition of custom was laid
down . The court ruledthat for a valid international custom it is necessary
that it should be proved by satisfactory evidence the custom is of such a
nature that it has received general consent of the states and no civilized
state shall oppose it

PORTUGAL V INDIA, ICJ REP.(1960)RIGHT OF PASSAGE

OVER INDIAN TERRITORY CASE

The Portuguese possessions in India included the two enclaves of Dadra

and Nagar-Aveli which, in mid-1954, had passed under an autonomous
local administration. Portugal claimed that it had a right of passage to
those enclaves and between one enclave and the other to the extent
necessary for the exercise of its sovereignty and subject to the regulation
and control of India; it also claimed that, in July 1954, contrary to the
practice previously followed, India had prevented it from exercising that
right and that that situation should be redressed.
A right of passage for non-military civilians exists as a rule of regional
customary international law between India and Portugal.
In this case the international court pointed out that when in regard to
any matter or practice, two states follow repeatedly for a long time ,
it becomes a binding customary rule the soviet union regards custom
as an inadequate means for the development of international law It
also expressed the view that the development of custom also is based
on agreement between states. Consequently customary rules are
binding only on those states who have given their consent for them.
according to soviet view,agreement between states is the only
adequate means for the development of international law.
INGREDIENTS OR ESSENTIAL ELEMENTS: A custom to be valid,
the following ingredients are to be satisfied:
1) Long Duration or Ancient.
ii) Moral and Reasonable.
iii) Uniformity and Consistency.
iv) Generality of Practice.
v) Opinio juris et necessitatis
i) Long Duration or Ancient: In Municipal law, it is necessary that
custom must be of long duration i.e, ancient and immemorial. But, in
International Law it is not necessary. Article 38 of the Statute of the
International Court of Justice directs the world court to apply
international custom as evidence of a general practice accepted

ii) Moral and Reasonable: A custom to be valid, it must be moral and

reasonable. It must not be contrary to justice, equality and good
conscience and laws of the land. It must not be opposed to public policy.
(ii) Uniformity and consistency. The custom should be uniform and
consistent. But complete uniformity is not necessary. Nevertheless, there
must be substantial uniformity.

(iii) Generality of Practice. Though universality of practice is not

necessary, the practice should have been generally observed or repeated
by numerous States.

iv) Opinio juris necessitatis.-As pointed out by the International Court

of Justice in North Sea Continental Shelf cases, (I.C.J. Rep. 1969, p. 3),
".....customary practice, even when it is general and consistent, is not
customary law unless an opinio juris is present, that is to say, unless the
practice is recognized as being required by international law.
(3) General Principles of Law recognised by the civilized States.-
The general principles of law are those principles which are recognised
by most of the civilized States .When the court finds that a principle has
received general recognition, the court may apply it as a principle of
international law.

International Courts have recognised the following general principles: (i)

good faith; (ii) responsibility: (iii) prescription; (iv) in the absence of any
express provisions to the contrary, every court has a right to determine
the limits of its own jurisdiction;
According to Article 38 of the International Court of Justice, they are
subsidiary means for the determination of the rules of law. This source
includes international as well as State decisions.
The arbitral decisions have still less value because it is generally said that
arbitrators work more as mediators rather than as judges.

R V KEYN (1876) EX D.63

The question in the case was whether a foreign subject in command of a
foreign ship could be convicted at the Central Criminal Court of the
manslaughter of a person whose death resulted from the negligent
navigation of the foreign ship within three miles of English territory.
Held, that he could not.
The court ruled that international law is based on justice, equality and
conscience which has been accepted by long practice of States.
Decisions of judicial or arbitral tribunals or juristic works
in the modern period international court of justice is the main
international tribunal
the decision of international court of justice does not create binding
general rule of international law
Art 59 of the statue of the international court of justice makes it clear that
the decisions of the court will have “ no binding force on the courts itself
and the court is free to deviate from its earliar decisions however,,
ordinarly the court does not deviate from its earliar decisions,and it
changes its earliar decisions only in very special circumstances Thus
while in principle it does not follow the doctrine of precedent, in practice,
it ordinarly follows it.According to article 38(1) d ,subject to provision of
art 59 judicial decisions are subsidiary means for the determination of
rule of law

Thus judicial decision ,unlike custom and treaties are not direct sources of
law,they are subsidiary and indirect source of law
State judicial decisions
A) state judicial decisions are treated as weighty precedents
According to chief justice marshall
The decisions of the court of every country show how the law of the
nation in the given case is understood in that country. Will be considered
in adopting the rule which is to prevail in that case.

B) decisions of the state courts may become the customary rule of

international law in the same way as customs are developed.
Decisions of international arbitral tribunals
Such decisions cannot be treated as source of international law, this jurist
point out that, most of the arbitral cases, arbitrators act like mediators and
diplomats rather than judge
Some of the decisions of the permanent court of arbitration is treated as
sourceof international law
JURISTICS WORK-While deciding the case, if the court does not find
any treaty or judicial decision or legislative act or any established custom,
the court may take the help of opinion of jurists as subsidiary means for
the determination of rules of international law.
Decisions or determinations of the organs of international
institutions.
The decisions and determinations of the organs of such institutions are
also, therefore, regarded as the source of international law because they
help in the development of customary rules of international law.
Ex aequo et bono
In a case where the parties are agree thereto, the provision in the statute
would seem to enable the courts to go outside the realm of law for
reaching its decisions.
Only if power has been conferred on it by mutual agreement between the
parties.

SUBSIDIARY SOURCES OF LAW

International comity
The mutual relations of nations are based on the principle of comity
When a state behave in a particular way with other states, the latter have
also to behave in the same way
International comity has helped in the development of international law
2 STATE PAPER
All most all civilizedstates have diplomatic relations with each other.they
send letters to each other for mutual interests. These letters are sometimes
published
A study of the letters sometimes reveal tht certain principles are followed
by states in mutual intercourse. Some times these state papers help in
solution of a conflict or contraversy

3 STATE GUIDANCE FOR THEIR OFFICERS

Number of matters of the government of respective states are resolved on
advice of their legal advisers. These advises also therefore ,sometimes
treated as sources of international law
4) REASON
When ever there is no rule of international to guide the court, the
matter is resolved on the basis of reason. By reason, mean the judicial
reasons through whish principles are discovered to face the new
situations,which are considered valid by jurists.
5)EQUITY AND JUSTICE
Equity 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
The principles of equity and justice make their contribution in the
internatinal law making and in the codification and development of
international law
 SUBJECTS OF INTERNATIONAL LAW

Subjects of International Law.

International law applies upon individuals and certain non-State entities

in addition to States.
Theories regarding subjects of International law

*States alone are subjects of international law.

*Individuals alone are the subjects of international law.
*States are the main subjects of international law, but to a lesser extent
individuals and certain non-State entities, have certain rights and duties
under international law.

States, individual and certain non-State entities are Subjects

Several treaties have conferred upon individuals certain rights and duties.
E.g., International Covenants on Human Rights Geneva Convention on
the Prisoners of War, 1949 conferred certain rights upon the Prisoners of
War The Nuremberg and Tokyo Tribunals propounded the principle that
international law may impose obligations directly upon the individuals
The Genocide Convention 1948 imposed certain duties directly upon the
individuals. Accordingly, persons guilty of crime of genocide may be
punished, no matter whether they are the head of the State, high officials
or ordinary individuals.Some rights are conferred upon individuals even
against the States. e.g., European Convention on Human Rights, 1950.In
regard to the International criminal law, the law-making treaties have
imposed certain obligations upon the individuals and the States have
consented to it. E.g., Narcotic Drugs Convention, 1961, Hague
Convention for the Suppression of Unlawful Seizure of Aircrafts, 1970.

States alone are subjects of international law

International law regulates the conduct of States and

only States alone are the subjects of international law Emphasised the
separateness of States, making their sovereignty, its basic principles

Criticism-Fails to explain the case of slaves and piratesTraditional view

that States only are the subjects of international law is not a rule of
modern international law
Besides States, public international organizations, individuals and certain
other non-State entities are also the subjects of international law.

Individuals alone are the subjects of international law

Chief exponent- Prof. Kelsen -It is a technical legal concept and includes
the rules of law applicable on the persons living in a definite
territory.Duties of the States are ultimately the duties of the individuals
No difference between international law and State law Only difference
that the State law applies on individuals ‘intermediately’ whereas
international law applies upon individuals ‘mediatel
Criticism - Although, individual possesses a number of rights under
international law, his procedural capacity to enforce the observance of
these rights is grossly deficient.In most of the cases claim on his behalf
can be brought only by the State whose national he is

Place of Individuals in international law

Pirates-enemies of mankind Harmful acts of individuals-e.g., if a person

causes harm to the ambassador of another State, then under international
law he deserves to be given stringent punishment.
*Foreigners-it is the duty of each State to give to them those rights which
it confers upon its own citizens
*War Criminals-punished under international law
* Espionage-crime under international law
*Individuals conferred upon some rights whereby they can claim
compensation or damages against the States.e.g., Treaty of Versailles
*UN-Charter begins with the words, ‘Peoples of the UN’
*The persons who invest their money in foreign countries have been
conferred upon certain rights against the State concerned. e.g.,
Convention on the Settlement of *Investment Disputes between States
and the Nationals of other States
International Covenant on Civil and Political Rights, 1966 and the
Optional Protocol confer rights directly upon the individuals.
Human Rights Council have enabled the individuals to send petitions
even against theirownStates

RELATIONSHIP BETWEEN MUNICIPAL AND

INTERNATIONAL LAW

To explain the relationship between municipal law and International Law

certain theories have been propounded
1 Monism
2 Dualism
3 Specific Adoption
4 Transformation
5 Delegation
MONISM

Wright, Kelsen and Duguit some of the prominent exponents of monism

Law is a unified branch of knowledge, no matter whether it applies on
persons or other entities
In actual practice States contend that Municipal Law and International
Law are two separate systems of law.
Each State is sovereign and not bound by international law
DUALISM
Triepel and Anzilloti are chief exponents of this theory
International law and State law are two separate laws
Individual is the subject of State law, whereas State is the subject of
international law
Origin of State law is the will of the State whereas origin of the
international law is the common will of States
International law is applicable on States, individuals and certain other
non-State entities
State-will is nothing but the will of the people who compose it

TRANSFORMATION THEORY
For the application of international law in the field of municipal law, the
rules of international law have to undergo transformation.
Criticism- there are several law-making treaties which become applicable
to the States even without undergoing the process of transformation.

No transformation no specific adoption

the rules of international law are applied in the field of State law in
accordance with the procedure and system prevailing in each State in
accordance with its Constitution.
Criticism- each State is equal and sovereign and does not recognize any
authority over and above it
Art.37- provisions contained in Part IV of the Constitution are non-
justiciable.
Art.253-Parliament has power to make any law for the whole or any part
of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at
an international conference, association or other body

Vishaka v State of Raj AIR 1997 SC 3011

In the absence of domestic law occupying the field to formulate effective
measures to check the evil of sexual harassment of working women at all
work places, the contents of international Conventions and norms are
significant for the purpose of interpretation of the guarantee of gender
equality and right to work with human dignity in Art.14, 15, 19(1)(g) and
21 of the Constitution and the safeguards of sexual harassment implicit
therein.

Jolly George Varghese v Bank of Cochin, (1980) 2 SCC 360

International conventional law must go through the process of
transformation into the municipal law before the international treaty can
become an internal law
A.D.M.Jabalpur v Shukla AIR 1976 SC 1207
Majority UDHR and the two international covenants not part of Indian
municipal law.
Dissenting opinion-Justice H R Khanna held that if there was a conflict
between the provisions of an international treaty and the municipal law, it
is the latter that will prevail.
If two constructions of the municipal law were possible the court should
give that construction as might bring about harmony between municipal
law and international law or treaty