MODULE I: INTRODUCTION TO

PUBLIC INTERNATIONAL LAW

 PUBLIC INTERNATIONAL
LAW: MEANING, SCOPE &
DEVELOPMENT
 International Law: The
Starting Point
• Coined by Jeremy Bentham
• The term "international law" was coined by the English
philosopher Jeremy Bentham in his 1789 book
"Introduction to the Principles of Morals and Legislation".
• Hugo Grotius: The Father of International Law
• Other Names
• International Law is also known as the Law of Nations,
Public International Law, Inter-State Law, Trans-national
Law, etc.
• Traditionally International Law is often regarded to be the law
governing the relationship of the states amongst each other
What is International Law?

International law is also called as:

(1) Law of Nations--Law which regulate the behavior of nation- states

(2) Public International Law-- there is private I.L. or conflict of Laws

(3) Inter-state Law - I.L also provides a system of Rules governing the conduct of
inter-state relations

(4) Philip Jessup called I.L. as Trans-national Law

(5) C.W. Jenks called I.L. as Common Law of Mankind etc.

Oppenheim's Definition and Criticism
Oppenheim's Definition Criticisms of Oppenheim's Definition
Oppenheim defined international law as "the name for the
• Oppenheim's definition has been criticized for its narrow
body of customary and treaty rules which are considered
narrow focus on states as the sole subjects of international
legally binding by civilized states in their intercourse with
international law.
each other."
• It fails to acknowledge the role of international organizations,
organizations, individuals, and non-state entities in the
the international legal system.
Body of Rules governing • The term "civilized states" is also considered outdated and
inter-state relations
and problematic. Additionally, the definition limits
international law to customary and treaty rules, neglecting
states are bound by such
rules only if they give neglecting the importance of general principles of law.
their consent to it law.
• Finally, the term "body of rules" suggests a static nature,
source of such body of
rules are customary and nature, while international law is constantly evolving.
treaty laws
CONTEMPORARY UNDERSTANDING

Expanding Scope J.G. Starke

Modern definitions of international law international law as "that body of law which is
recognize that it regulates not only relations composed for its greater part of the principles
between states but also those involving and rules of conduct which states feel
international organizations, individuals, and themselves bound to observe, and therefore,
non-state entities. do commonly observe in their relations with
each other, and which includes also:
Rules for International Institutions
Rules for Individuals and Non-State Entities
 PIL - CONCEPTS
Fenwick

• IL - as the body of general principles and specific rules which are binding upon the members of
international community in their mutual relations.”

Schwarzenberger

• International Law as the body of legal rules which apply between sovereign states and such other
entities as have been granted international personality

Simply put :-

These rules are primarily those International organizations and

‘International Law is a body of
which govern the relations of to some extent even
rules which is legally binding
states, but states are not the individuals may be subject to
on the states in their
only subjects of International the rights conferred and duties
intercourse with each other.
Law. imposed by International Law
PIL – CONCEPT – KEY TAKEAWAYS
• International Law, also known as Public International Law and Law of
Nations, is the set of rules, norms, and standards generally accepted
in relations between nations. It establishes normative guidelines and
a common conceptual framework to guide states across a broad
range of domains, including war, diplomacy, trade, and human rights.
International Law thus provides a means for states to practice more
stable, consistent, and organized international relations.
• Public International Law refers to the body of legal rules and
principles which determine the international rights and obligations of
nation-states and regulate the operations of international
organizations. Also non-governmental entities and individuals have
become part of Public International Law.
PIL – CONCEPT – KEY TAKEAWAYS
Establishes normative
guidelines and a common Guides states across
Known as Public various domains:
conceptual framework -
International Law (PIL) or 1 2
Body of legal rules / War / Diplomacy / Trade /
Law of Nations
principles / Protocols / Human rights
SoPs / Best Practices, etc.

Governs inter-personal
relationships between
Facilitates more stable,
States / International
consistent, and organized 4
Organizations / Individuals /
international relations
Other Non-Governmental
Entities
 PIL - SIGNIFICANCE
Consequences
for Non-
Constraint on Compliance
Behavior • Potential for
Predictability • Prevents international
and Order States from censure,
actions that economic
Sovereign • Provides a retaliation, or
Equality structured violate
international military action
Governance of • Reinforces and against
International predictable obligations.
the principle violators.
Behavior of equal framework for
sovereignty international
• Regulates relations
conduct of among all
various States.
subjects,
including
States
PIL – SCOPE – ANYTHING
& EVERYTHING!
 PIL – The Diverse Branches…..

International International International

International International International
Humanitaria Human Environment
Air Law Space Law Trade Law
n Laws Rights Laws al Laws

International
International International Law of Seas
International International Women &
Investment Criminal & Maritime
Arbitration Refugee Law Child Rights
Laws Law Law
Law

International
International Diplomatic
Law on International
Dispute & Consular ……
Extradition & Cyber Law
Settlement Law
Asylum
Public International Law Private International Law
• Public International Law focuses on the • Private International Law handles the legal
relationships between states, international connections among private individuals,
organisations and other entities that have legal businesses and other entities that do business
standing in the international arena. across different countries.
• It deals with important matters like the use of • It deals with rules and principles which guide
force, diplomatic privileges, human rights, municipal courts to determine:
global trade and the rights and responsibilities a. their jurisdiction and competence to entertain a
of countries when they interact. suit,
b. the application of particular domestic laws for
enforcement of rights and obligations of
individuals, and
c. circumstances under which foreign judgements
can be recognized and enforced.
• All nations are required to follow this type of • While countries are not bound by Private
law, which is considered either customary or International Law, their national legal systems
based on treaties. recognise it as a set of rules and principles that
govern international transactions.
Public International Law Private International Law
• Public International Law is mainly built upon treaties • Private International Law relies on the laws of
and established practices. individual countries, international agreements and
the principles of comity.

• Public International Law is enforced through • Private International Law is enforced through
diplomatic means, international courts and tribunals domestic courts and arbitration
and sometimes economic actions like sanctions.

• In public international law, there isn’t a single • private international law doesn’t have specific
centralised way to enforce it. Countries follow enforcement mechanisms. Instead, it assists courts
international law because they agree to it and choose in various countries in figuring out the right legal rules
to participate voluntarily. This can involve diplomatic to use when dealing with cases that have
discussions, economic penalties and the authority of international aspects. It aids in determining which
international courts and tribunals. court should handle a specific dispute and which
country’s laws should be followed.

• All nations are required to follow this type of law, • While countries are not bound by Private International
which is considered either customary or based on Law, their national legal systems recognise it as a set
treaties. of rules and principles that govern international
transactions.
 NATURE OF
INTERNATIONAL LAW
NATURE OF INTERNATIONAL LAW
• Status of International Law: Jurisprudence divided!

Is International Law really a law?

No. It is code of
conduct with moral Yes, it is applicable the
force same way, domestic
laws are applicable

Depends on What is considered as law?

NATURE OF INTERNATIONAL LAW - I SoT

AUSTIN’s COMMAND THEORY

▪ Hobbes, Bentham, Pufendorf – IL – not legally binding on states.
▪ 19th C – Jurists – Holland Bentham, Brown etc., denied the legal character of international law.
▪ Austin – Law is the command of the sovereign attended by sanction in case of violation of the
command.
▪ Thus, laws should be limited to rules of conduct enacted by a determinate / superior legislative
authority and enforced by physical sanction of the sovereign authority.
▪ Command – Orders backed by threat.
▪ Only then – Law = Proper Law - All other senses of law = Improper Law
▪ Thus – IL – cannot be called as law proper as it has neither sovereign legislative authority to enact
law nor there is an adequate sanction behind it.
▪ IL – POSITIVE INTERNATIONAL MORALITY – as it lacks common and determinate sovereign
issuing orders backed by threat.
▪ Rule of Morality – applies to conscience & conscience only – Rules of Law – X
NATURE OF INTERNATIONAL LAW
No organized force for No centralized dispute UN: Principal
enforcement settlement international
Some writers called mechanism without organization for peace
international law as a state consent and security.
quasi-law, Security Council: Can
No agency for international

Council
International Law
Judicial Enforcement in
legislation

Role of the UN and Security

Starke: International law adopt binding decisions
is a weak law and use military force
(e.g., First Gulf War,
1990–1991).
Many breaches of
international law are not
enforced by the Security
Council.
ICJ – No Compulsory
Jurisdiction
No determinate
impartial arbitrator
Theoretical Perspective on Centralized Enforcement

• Imagines the existence of an • Emphasizes the principle of • Focuses on non-centralized

international court with enforceability over actual modes of enforcement.
compulsory jurisdiction. enforcement. • Uses mechanisms like "out
• Hypothetical scenario where • Argues that a legal system casting" to deny benefits and
reliable international should ideally include cooperation to law-breakers.
mechanisms enforce court provisions for effective • Example: Hathaway & Shapiro
decisions. enforcement. (2011) discuss how this
• Example: Dworkin (2013) • Example: Liam Murphy (2017) operates without centralized
discusses this as an admitted states that properly regulated institutions.
"fantasy" to highlight the ideal third-party enforcement is
of centralized enforcement. always appropriate in
principle.

Normative Decentralized
Fantasy Hypothesis
Interpretation Enforcement
NATURE OF INTERNATIONAL LAW
AUSTIN - CRITICISM
▪ Criticized by jurists belonging to sociological / legal / realism / historical school.

Criticisms by Historical Schools

• Only looks into those laws that are enacted by sovereign legislative authority. Ignores the
significance of customary & unwritten laws.
• Laws are not always followed due to fear of sanctions but because of Inner Morality

Henry Maine
• Laws are also obeyed due to habit of minds & practices of community
• No system of laws can survive on force alone

Pollock
• Austin’s view of law is ‘hard to reconcile with the witness of history’.

Bryce
• Austinian view fails to explain why States themselves regard IL as binding even when there is no
sovereign.
NATURE OF INTERNATIONAL LAW
OPPENHEIM
▪ Law is a body of rules for human conduct within a community which by common consent of this
community shall be enforced by external power.
• Thus, essential conditions of existence of law are
• There must be a community
• There must be a body of rules for human conduct within that community which the communities
must submit to.
• There must be a common consent of that community that these rules shall be enforced by external
powers.

Sir Fredrick Pollock

• “Only essential conditions for the existence of law are the existence of a political community and recognition
of by its members of settled rules binding upon them in that capacity.” – reflection of modern IL
• Binding Law:
• Treaties, conventions, Customary practices, and principles that states voluntarily agree to follow.
• The procedure and technicalities for the adoption of legislation through international conferences and
institutions
• States consider themselves bound by their members of international society - do not deny the existence of
international law.
NATURE OF INTERNATIONAL LAW
SIR FREDRICK POLLOCK

• Enforcement Mechanisms:
• Diplomatic negotiations
• Arbitration
• Adjudication in international courts like ICJ - binding upon parties to the dispute
• Sanctions:
• Use of sanctions authorized by international bodies such as the United Nations Security Council
• Sanctions include, economic sanctions, travel bans, arms embargoes, or diplomatic isolation

MAINSTREAM LEGAL PHILOSOPHY

• Argues that enforcement is not necessary for a system to be considered law.

• The primary function of law is to generate norms that guide behavior, not necessarily to coerce.
• Example: Philosophers like H.L.A. Hart, John Finnis, and Joseph Raz believe that law can function effectively without
coercive enforcement, as in Raz's "society of angels" scenario.
Compliance with International Law

• Community members recognize and observe international rules.

Recognition and • Affirm the existence of a regulatory framework for conduct.
Observation • Rules practiced in foreign offices, national courts, governmental organs,
and international organizations (e.g., United Nations).

Legal Boundaries and • States accept that they are legally bound by international law.
Acceptance • States do not claim exemption from international law.

• Argument: Frequent breaches indicate low observance is not convincing.

Observance and • Thousands of treaties concluded, with few instances of violations.
Breach of International
Law • Diplomatic immunities and warfare laws are generally observed.
• Breaches are exceptions to general compliance.

• States violating rules do not deny the existence of international law.

State Responses to
Violations • Violating states may justify actions through different interpretations or
denial of specific rules.
IL Compliance – asserted by States themselves!

Numerous states assert Many states incorporate Highest courts of many The U.N. Charter is
State Assertions

Judicial Recognition
Constitutional Incorporation

United Nations and Legal Foundation

the legally binding force international law into states repeatedly based on the true
of international law in their national recognize the validity of legality of international
various international constitutions. international law. law.
forums. Example: U.S. Example: Justice Grey of The Statute of the
States require officials, Constitution Article VI, the U.S. Supreme Court International Court of
courts, and nationals to Para 2, states treaties in the Paquet Habana Justice (ICJ) under
act in accordance with are the supreme law of case stated, Article 38 states that it
international law duties. the land. "International Law is shall decide disputes
part of our law." in accordance with
international law.
The use of
"International Law" in
the U.N. Charter, ICJ
Statute, and
constitutions of
international
organizations affirms
its legal status.
IL is true law – even if Austin’s definition is accepted -
Modern Developments in International Law
• Emerged through • Violations by states • Exists as a court • Existence of
multinational treaties can lead to sanctions whose decisions are international
and conventions. by the aggrieved binding on the legislation, a court,
• Recognition of jus state or collectively parties involved. sanctioning
cogens (peremptory by the United • If a party fails to authority, and
norms) reduces Nations. comply with an ICJ enforcement
purely consensual judgment, the UN machinery in the
rules and establishes Security Council can present century
superior legal rules. enforce the decision supports the view
• States practice upon request from that International
suggests they the aggrieved party. Law is a true law,
consider themselves even by Austin's
bound by these rules. definition

International
International Sanctions and
Court of Justice Conclusion
Legislation Enforcement
(ICJ)
 IS INTERNATIONAL LAW A TRUE LAW?
• Depends upon which School of Thought we align with.
• The debate over whether International Law qualifies as a true law remains a complex and multifaceted issue.
• If World – International Community – Q is – Can there be a community of nations?
• While some jurists, following John Austin's perspective, argue that it lacks the characteristics of a genuine
legal system due to the absence of a single sovereign authority and a centralized enforcement mechanism,
others like Lassa Oppenheim, propose a more inclusive definition that acknowledges the unique nature of
International Law.
• Ultimately, the question of whether International Law is “true law” may come down to interpretation
and viewpoint more than a definitive conclusion. Even though International Law does not easily fit into
the conventional framework of domestic legal systems, it is clear that it plays a role in regulating states’
actions in the International Arena.
• The ongoing debate highlights the need for continued discussion and exploration of the evolving concept of
International Law in the contemporary world.
IS INTERNATIONAL LAW A
WEAK LAW????
THE LEGAL CHARACTER OF INTERNATIONAL LAW
Observance by Nations Judicial Institutions State Practice

International law is observed by The practices of international The way states conduct
almost all nations, as it is crucial judicial institutions, such as the themselves in the international
for peaceful relations and International Court of Justice, arena, through treaties, customs,
cooperation. affirm the legal character of and other practices, further
Its rules are essential for international law. reinforces the legal nature of
maintaining order and stability in These institutions play a vital role international law.
the global community. in interpreting and applying It is not merely a set of voluntary
international law. guidelines, but a system of
binding rules.
WEAKNESS OF INTERNATIONAL LAW
INTERNATIONAL • Enforcement of IL – not comparable to Municipal Law
LEGISLATION • Wide Discretion of States in Interpretation and application of IL.

• Lack of Centralized / Hierarchical Judicial Mechanism empowered to decide

disputes of all states.
• ICJ or World Court – Jurisdiction is based on Consent.
CENTRALIZED JUDICIAL • It does not have jurisdiction to decide the disputes of all the States unless otherwise
FRAMEWORK consented to
• No real power to enforce decisions
• Post-decision – Sanction enforcement – goes to Security Council – Veto Power
restricts taking any decision on sanction.

• The enforcement of international law is often hampered by the lack of effective

LACK OF sanctions and the challenge of non-compliance.
ENFORCEMENT • Instances of Lack of Enforcement Sanctions despite glaring illegalities. no action
MECHANISMS was taken against the United States after its illegal invasion of Grenada and Iraq and
NATO was not condemned for its action against Serbia
WEAKNESS OF INTERNATIONAL LAW

VIOLATION OF RULES • States frequently violate the rules of international law, especially during times of war,
ESP. DURING WAR and the aggrieved party may have to take the law into its own hands.

• The international community is composed of both small and weak units, as well as
UNEVEN POWER large and powerful states.
DYNAMICS
• Compelling the latter to observe the rules of international law can be challenging.

• Because its constituting units i.e. individuals are relatively weak compared to
nations.
• The result is that the sanctions against breaches of the law are normally effective and
MUNICIPAL LAW – easy to maintain.
EFFECTIVENESS? • International community is one wherein units are small and weak but at the same
time some of them are very strong and enormous.
• To compel the latter for the observance of the rules of International Law becomes
difficult on a number of occasions.
INTERNATIONAL LAW IS VANISHING POINT OF
JURISPRUDENCE
………Sir Thomas Holland

Jurisprudence & International Law, exist on divergent paths that seem

destined to remain forever apart.
Holland: IL – Vanishing Point of Jurisprudence
• Vanishing Point – means - is a point of disappearance, cessation, or extinction. Usually, a vanishing point is a
particular point where two parallel lines, on the same plain, intersect.
• A point at which parallel lines in the same plane appear to meet.
• Holland’s Theory:
• Law governing the international community finds itself at a perplexing juncture in the realm of jurisprudence.
• IL does not belong to the same realm as Municipal Law & thus, its effectiveness / recognition as a sub-set of law
is vanishing / disappearing rapidly.
• Simply put, IL can never be a ‘Law’ in its truest sense.

No sovereign authority No Sanction on Lack of Intl. Dispute

to command Violation Settlement Mechanism

• IL & Municipal Law may be referred to as ‘Law’ & might be appearing that they are one & the same. However,
they are at a vanishing point. i.e., they exist on 2 parallel lines that appear to meet but they actually never meet.
• They occupy opposite ends of a spectrum, rendering their convergence an elusive and enigmatic prospect.
• International Law are followed by States by courtesy & no in recognition of its legal enforceability.
 • Modern Perception of IL
• Primary Objective: Create a peaceful global order through
defined rules and regulations.
• Drivers of Change:
• Development of political, social, and cultural dynamics.
• Necessity for legal frameworks to regulate these changes.
• Modern Context:
• Laws now cover areas such as outer space and air space.
Is this View • Adaptations to subject matters with global influence.
• Reason for Expansion:
Tenable? • Interdependence among sovereign nations.
• Acknowledgement of equal rights for all countries.
• Need for governing systems due to technological
advancements.
• Increasing Role of International Institutions in IL:
• Provides Socio-Economic / Legal Support to Developing &
LDCs.
• Promotes Peace, Harmony & Scientific Development
• Demonstrates the expanded scope and applications of
international law.
EFFORTS TO STRENGTHEN INTERNATIONAL LAW

Progressive
Promoting Acceptance Peaceful Settlement of
Development and
and Respect Disputes
Codification

The United Nations The Decade

The Decade also
Decade of encouraged the
sought to promote
International Law progressive
the use of the
(1990-1999) aimed development and
International Court
to promote the codification of
of Justice and other
acceptance and international law,
means for the
respect for the which can help
peaceful settlement
principles of strengthen its
of disputes between
international law effectiveness and
states.
among states. legitimacy
The Evolving Nature of International Law

Past Criticisms Changing Perspectives Ongoing Developments

In the past, some However, the nature of While international law still
scholars, such as international law has faces challenges, the
Holland, dismissed evolved, and these progress made over the
international law as criticisms are no longer past decades, particularly
the "vanishing point tenable. The growth of in the areas of dispute
of jurisprudence," international resolution and law
arguing that it institutions and the enforcement, suggests that
lacked a sovereign increasing recognition it is becoming more
authority and of the legal character of effective and integral to the
effective sanctions. international law have global legal system.
challenged this view.
CRUCIAL ROLE OF IL IN MAINTAINING PEACE

Diplomacy

International law provides a framework for diplomatic negotiations and the peaceful settlement of disputes,
which are crucial for maintaining global peace and stability.

Sanctions

The enforcement mechanisms of international law, such as economic sanctions and military interventions,
can be used to deter and punish violations of international norms and laws.

Cooperation

International law fosters cooperation among states, enabling them to address global challenges and threats,
such as climate change, terrorism, and the spread of infectious diseases.

Human Rights

International law plays a crucial role in protecting and promoting human rights, which are essential for
maintaining peace and stability in the global community.
CRUCIAL ROLE OF IL IN MAINTAINING PEACE & GLOBAL ORDER

Transnational Issues

International law provides a framework for addressing global challenges that transcend national borders,
such as environmental protection, trade, and the regulation of cyberspace.

Inter-dependence

In an increasingly interconnected world, states are more dependent on each other, and international law
helps manage this interdependence and promote mutual understanding.

Legitimacy

International law enhances the legitimacy of global governance, as it provides a set of universally
recognized rules and principles that guide the actions of states and international organizations.
Conclusion: The Enduring Importance of International Law

Despite its weaknesses, international law remains an essential component of the global legal system
CONTINUED RELEVANCE and will continue to play a crucial role in maintaining peace, security, and cooperation among states.

As the international community works to address the shortcomings of international law, such as
ONGOING through the development of stronger institutions and enforcement mechanisms, its effectiveness and
IMPROVEMENTS legitimacy are likely to continue to grow.

The future of international law will depend on its ability to evolve and adapt to the changing global
ADAPTING TO NEW landscape, addressing emerging issues and providing solutions to the complex challenges facing the
CHALLENGES international community.
IS INTERNATIONAL LAW A
WEAK LAW????
 HISTORICAL
DEVELOPMENT OF
INTERNATIONAL LAW
IL IN ANCIENT PERIOD

• IL – Law of Nations
• Mutual Relations of States during Ancient Period were governed by certain rules
based on the Law of Nature
• Natural Law: A system of law based on a close observation of natural
order and human nature.
• Jews / Greeks / Romans / Hindus had practiced rules regarding war & peace.
• Hindus: concept of Dharma, just wars and unjust wars
• Greeks, who civilization was quite advanced, set an example to the future that
independent states can live in a community in which their international
relations are governed by certain rules & customs based on the common
consent of the members of that community.
 • Supremacy of church and the universality of its laws.
• Natural Law – Reflective of Will of God / Church-made Laws
• Universal authority of Emperor and Feudalism.
• Disintegration of the Roman Empire:
• Europe fragmented into numerous sovereign States.
• Necessity arose to manage international relations among these
States.
• Trade and Commerce:
• Extensive trade and commerce between States.
IL IN MIDDLE • Need for common rules to govern trade activities.
• Customary maritime rules evolved, gaining international
AGES! recognition.
• Maritime Rules:
• Individual States had their own maritime laws.
• Over time, customary maritime rules were established and
recognized internationally.
• Protection of Traders and Citizens:
• Formation of leagues and associations to protect trade and traders.
• Leagues promoted arbitration to resolve disputes among members.
Hugo Grotius (1583-1645)
• De Jure Praedae Commentarius (1605) / Mare librum (1609) / De jure Belli ac Pacis, libri iii (1625) –
laid the foundation of International Law – 1st set of systematic & comprehensive literature on IL
• Grotius infused the idea of natural law. i.e., the law of reasoning in the law of nations because he
considered that they are eternal and not changeable
• Although he did not deny that there existed in his time a good many customary rules for the international
conduct of the States, he expressly kept them apart from those rules which he considered were the
outcome of the law of nature.
• He distinguished, therefore between the Jus Gentium, the customary law of nations, and the Jus
Naturae, which later on came to be known as the natural law of nations.
• Customary law of nations are of minor importance and therefore he' concentrated more upon the natural
law of nations
• Subject Areas of IL during Grotius’s time – Law of Sea / War / Trade / Diplomacy
• Diplomatic Immunity - Diplomats are immune to the fiction of extra-territoriality.
Hugo Grotius (1583-1645)
• Law of Warfare:
• Prisoners of war should be maintained adequately by the captor
• PoW were entitled to their religious rights as well
• introduced the concept Just war (i.e., war fought for a cause) and 'unjust war
• doctrine of qualified neutrality i.e., duty of all the States to give assistance to a State which has been
fighting for a just cause
• Rights and duties of individuals and of States
• Law of universal State succession
• concepts of good faith of treaties (Pacta Sunt Servanda)
• Principle of Avoidance of Treaty Obligations upon drastic changes in the original circumstances (Rebus
sic stanti bus)
• IL regulates the relations between the sovereign States not only in time of peace but also in time of war.
• Because of his immense contribution, Grotius is called Father of the Law of Nations.
• His influence was enormous that his followers in the seventeenth and eighteenth centuries were known
as Grotians a school of different thought in the field of International Law.
 3 SCHOOLS OF IL IN 17TH & 18TH CENTURIES

Each School
explains the
basis or Positivists Naturalists
rationale of
International
Law

Grotians
NATURALIST SCHOOL
• Naturalism – The rights of Individuals are directly derived from nature – inherent or in-born rights –
freedom, equality, property, etc.
• “Law of Nature” or jus naturale is the foundation of all law, including IL. The validity of IL is based upon
the “Will of God”.
• all people have inherent rights, conferred not by act of legislation but by "God, nature, or reason
• International Law is based on the Law of Nature.
• Greek origin – further developed by Romans – very much prevalent during the 17th and 18th Centuries.
• Chief Proponent – Samuel Pufendorf (1632-1694) – based international law on natural law exclusively and
denied the existence of positive law – based the law exclusively on moral and theoretical values.
• Law of Nations is only a part of the Law of Nature.
• They completely identified International Law with natural law,
• Thus, the rules of natural law was the only source of International Law
• They denied that there is any positive law of nations, and therefore they were different even from Grotius.
NATURALIST SCHOOL
• Natural law created respect for International law and gave it a humanistic approach.
• Examples – Development of IL in the field of human rights/criminal law.

• Principles of international law can be deduced from the essential

The doctrine of nature of the state.
fundamental rights
• Self-preservation, independence, equality, respect, etc.

• All laws are the result of a society, and their validity is based on a
The doctrine of social kind of social bond, social contract or social solidarity.
contract
• State exercise some self-restrictions, compromise & reservation.

• Thus, Naturalist school laid down the foundations of the law of nations.
 Expression 'natural' is too vague, and
therefore it is practically meaningless.

NATURALIST Susceptible to multiple

interpretations.
SCHOOL -
CRITICISM To some, it means religion, and to
others it is reason, and to others it is
justice.

In fact, the view has not been

practiced by States in their relations
with each other.
POSITIVISTS SCHOOL (19th Century)
• Positivists are the antipodes of the Naturalists & replaced the dominance of naturalism.
• Chief proponent – Bynkershock (1673-1743) – stressed the importance of modern practise of IL which is
derived from customs and international treaties.
• Law of Nations is not the creation of natural law. It is based on the consent of the States which may be given
either expressly, as in a treaty or it may be implied by a State acquiescing in a customary rule.
• “Will of States” is the ultimate source of all laws (International or domestic), and the basis of binding force
in IL is only possible through “State Consent”. International law is binding on states because they have
expressly or impliedly consented to be bound by it.
• Denied the existence of innate principles and postulated that ideas were derived from experience
(empirical method) – What states actually do, was the key and NOT what they ought to do.
• The doctrine of positivism teaches' that International Law is the sum of the rules by which States have consented
to be bound and that nothing can be law to which they have not consented to be bound.
• Bynkershoek (1673-1743), Moser (1701-1785) and George Friedrich Von Martens (1756-1821) are the leading
positivists.
• Their writings have considerably influenced the writers of nineteenth and twentieth centuries.
POSITIVISTS SCHOOL (19th Century)

• George W. Hegel – First to analyse and propose the doctrine.

THE DOCTRINE OF
WILL OF STATE • Law is ultimately dependent upon the will of the sovereign in a national
system and the “will of the state” in an international system.

• States are sovereigns whose ‘will’ can reject any type of external limitation.
AUTO LIMITATION
THEORY • If their sovereignty is anyway limited, that limitation cannot come from
external force but only from the states themselves.

• Dionisia Anzilotti – formulated the theory.

• “Agreements between States are to be respected”
PACTA SUNT
SERVANDA • Rules of IL can either be customary or in the form of treaties. States are
bound to obey such rules by reason of pact both express and implied. States
must respect agreements concluded between them.
POSITIVISTS SCHOOL (19th Century)
Criticisms:
• all the rules of International Law are based on the
consent of the States is erroneous
• There are certain rules which are binding on States even
if they have not given their consent.
• For e.g.: Statute of the International Court of Justice has
laid down under Article 38(c) that apart from custom
and treaties, 'general principles of law recognized by
civilized nations' is also a source of International Law.
GROTIAN SCHOOL
• The rules of International Law derived from positive law as well as from the law
of nature
• They gave equal importance to both, and therefore, they stood midway between the
Naturalists and the Positivists.
• Since the view was initiated by Grotius, his followers were known as Grotians
• Main exponents of the School were Wolff (1679-1754) and Vattel (1714-1767).
• Criticism:
• The chief deficiency of the School lies in its arbitrariness.
• law legal maxims, incidents of State practice and the decisions of the courts what
appears to fit into their a priori (mages of International Law.)
• Since they follow a middle path, they have been designated as the 'ecclectics'.
INTERNATIONAL LAW IN THE 19th CENTURY
• Positivists School was dominant | Rapid Development of Customary & Treaty Based IL.
• Several jurists including Westlake, Phillimore, Maine and Twiss were of the view that International Law is based
largely on the consent of the States.
• Positivist School of Thought – heavily inspired by European values / Eurocentric. Examples –
• Treaty of Westphalia (1648), Congress of Vienna (1814-15) – established a new International Order based on
the European Balance of Power.
• European Conferences proliferated and contributed greatly to the development of rules governing waging of
war
a. International Committee of the Red Cross (ICRC), 1863 – Geneva Conventions (humanisation of
conflict)
b. Hague Conferences of 1899 and 1907 – establishment of Permanent Court of Arbitration (PCA),
treatment of prisoners of war, control of warfare.
• Gradually, IL which was confined only to Europe and to Christian States in the earlier centuries, extended to
other parts of the world due to emergence of several States.
• With active role played by US & Arab Nations, IL ceased to be a law between Christian States only.
• Parallel Scientific Development & Increasing Juristic Writings contributed significantly to the development of
International Law
FACTORS THAT CONTRIBUTED TO THE DEVELOPMENT OF IL IN 19TH CENTURY
Increasing Deliberations & Negotiations of States on Intl Affairs
• States began to negotiate with others on issues which were of importance to all the States
• For eg: The Congress of Vienna where many rules of International Law were formulated, for instance, rules
relating to classifications of diplomatic agents and international rivers.

Scientific Developments leading to New Methods of Warfare

• They were likely to cause more harm to human beings.
• States concluded multilateral treaties on rules & regulations on war.
• Declaration of Paris 1856) was adopted wherein rules relating to naval warfare were laid down.
• Geneva Convention (1864) provided rules relating to the wounded & sick members of the armed forces
during the land warfare.
• Hague Conventions of 1899 and 1907 also stipulated various rules of warfare and neutrality.

Increasing Use of International Dispute Settlement Mechanisms

• States began to submit their disputes for arbitration whose awards were regarded by them as binding.
• Alabanta Claims Arbitration (1872) was perhaps the most important arbitration wherein the award of the
arbitration was in favour of America, and ruled that Britain should pay 1,55,00,000 dollars in gold to
America as compensation
INTERNATIONAL LAW IN 20th CENTURY
• Continuation of Positivists School i.e., the consent of States is the basis of International Law.
• IL is derived from customs & treaties – consent-based sources.
• However, they also recognized that reason and justice are also important at least in those cases where practice
of the States was not available.
• International courts and tribunals recognized these factors in their decisions

Factors that contributed to the development of IL in 20th Century

Establishment of International Organizations

• Organisations of universal character were set up. League of Nations (1919) and thereafter, United
Nations Organisation (1945) were established primarily for the maintenance of world peace.
• Handling of social, cultural and economic problems of the States by specialized agencies of UNO

Setting up of International Courts

• By the creation of the Permanent Court of International Justice (1921), and thereafter International
Court of Justice (1946) many legal disputes of the States have been resolved.
INTERNATIONAL LAW IN 20th CENTURY
Factors that contributed to the development of IL in 20th Century

Codification of International Laws in Contemporary Areas of Practice

• conclusion of treaties in many frontiers which had never been imagined in the earlier centuries.
• For instance, at present, space, moon, and deep sea, are governed in accordance with the rules framed
through multilateral treaties.
• Bodies & Procedures for authoritative interpretation of IL developed.

Expansion in Scope of International Law

• International Law has not only remained limited only to the relations of States.
• International Organizations, Individuals and multinational corporations have also been regarded as
subjects of International Law
• Further, it is significant that individuals have been given a right to make petitions before a few
international forums.
CONTEMPORARY APPROACHES

• developed after WWII

• IL based on Needs of the International Community – not nature /
religion.
• Also accepts – IL is based on Will of the Sovereign – but the ‘Will’ is
essentially driven by ‘Need of the Intl. Community’.
DOCTRINE OF NEO-
NATURALISM • Eg: Need to protect & promote Human Rights / Global Justice / Maintain
Intl. Peace & Security
• international law should be guided by principles of justice, fairness, and
the common good, reflecting the needs of a morally grounded
international community.
 CONTEMPORARY APPROACHES
DOCTRINE OF NEO-POSITIVISM

• Kelson’s Pure Theory of Law

• Largely influenced by Kelson’s Pure Theory of Law which describe law as a normative science, free from
the influences of politics, morality, and other social factors.
• The Grundnorm is a hypothetical foundational norm from which all other norms in the legal system derive
their validity.

• Pure Theory & Neo-Positivist Approach

• Neo-Positivism recognizes that legal norms can be influenced by social, political, and economic factors.
However, it still emphasizes that the primary focus of legal analysis should be on the normative aspects.
• Recognize the hierarchical structure of international legal norms, where treaties, customary international
law, and general principles of law derive their validity from fundamental principles of the international legal
order.
• Acknowledge the influence of global politics and state interactions on the formation and interpretation of
international norms, while maintaining that these norms should be analyzed primarily through their normative
structure.
• Emphasize the legitimacy of international norms
 THE CONTEMPORARY APPROACHES

Doctrine of Peaceful Co-existence

• Maintained by former Soviet writers
• League of Nations(1919) – United Nations (1945)
• PCIJ (1921) – ICJ (1945)

Theory of Power Politics (Third world approach)

• Fears, hopes and concerns of newly decolonised states (developing states) –
Power Hegemony
• The current International order does not reflect the needs and interests of
third-world nations.
CONCLUSION
• Progression of IL → Codified Framework
• At present, international community has legislation, a court,
whose decisions are regarded binding on the parties.
• Sanctions may also be applied against a State which violates the
rules of International Law. However, International Law is still a
weak law due to its limited effectiveness.
• Attempts made to strengthen it.
 CODIFICATION OF
INTERNATIONAL LAW
CODIFICATION OF IL
• Codification is a major factor that contributed to the development of International Law in the 20th
century.
• Customary Law: Previously, customary International Law regulated state relations in all spheres.
• Issues with Customary Law:
• Lack of precision
• Slow evolution
• Preference for Written Law: States preferred written law for its clarity and precision.
• Advantages of Codification:
• Rules become clear and easily identifiable.
• Simplifies application by courts and tribunals.
• Removes uncertainties and fills existing gaps.
• Promotes uniformity across states.

International Law on Law

of Peace International Law on Law of
Warfare
I HAGUE PEACE CONFERENCE
1899: Hague Peace Conference I was convened to codify a few rules of
international law with 26 nations - resulted in the adoption of
Major Conventions / Declaration on Minor Conventions /
Convention for the Codes Prohibiting the Codes
Pacific Settlement of Use of the use
International of asphyxiating
Disputes gases

Declaration on
Convention on Laws Prohibiting the
and Customs of War use of
on Land expanding
bullets
Declaration on
Convention Prohibiting the
concerning the discharges of
adaptation of the projectiles or
Geneva Convention explosives from
to Naval Warfare balloons
II HAGUE PEACE CONFERENCE (1907)
• attended by the representatives of 44 States produced thirteen conventions.
• Redrafted the 3 Conventions of the I Hague Peace Conference & introduced 10 new conventions

Convention
Convention Convention
Convention Convention relative to the
respecting the Convention relative to the
for the Pacific respecting the Rights and
Limitation of the Legal Position of
relative to the Duties of
Settlement of Employment of Laws and Enemy Merchant
Force for Opening of Neutral Powers
Ships at the
International Customs of and Persons in
Recovery of Hostilities Start of
Disputes[a War on Land
[

case of War on
Contract Debts Hostilities
Land

Convention Convention for Convention Convention

Convention Convention relative to
relative to the the Adaptation concerning
relative to the concerning Certain
Laying of to Maritime the Rights and
Conversion of Bombardment Restrictions with
Automatic Warfare of the Duties of
Merchant by Naval Principles of the regard to the
Submarine Exercise of the Neutral
Ships into Forces in Time Geneva
Contact Right of Capture Powers in
War-ships of War Convention
Mines in Naval War Naval War
CODIFICATION u/d LEAGUE OF NATIONS
• Partial Codification in the field of Law of Peace through:
General Act of Pacific
Covenant of the General Treaty on
Statute of PICJ Settlement of
League of Nations International Disputes Renunciation of War

• League of Nations was entrusted to handle codification of International Law.

• The Council of the League, in 1924, appointed a Committee of 16 jurists to report on those questions which
were ripe for codification and to report as to how their codification could best be achieved
• 7 identified areas

Diplomatic Responsibility of States for Damage

Territorial
Nationality Privileges and Piracy done in their Territory to the Person on
Waters
Immunities Property of Foreigners

Procedure of International Conferences

Exploitation of the Products of the Sea and Procedure for the Conclusion and
Drafting of Treaties
CODIFICATION u/d LEAGUE OF NATIONS
• III Hague
Conference
1930 : Convention
concerning
Protocol relating
Adoption of: Certain Questions
to Military
Obligations in
relating to the
certain cases of
Conflict of
Double Nationality
Nationality Laws

Protocol relating Special Protocol

to Certain Cases of concerning
Statelessness Statelessness.
CODIFICATION u/d UNITED NATIONS
Article 13 General Assembly shall initiate studies and make recommendations for
the purpose if “promoting international co-operation in the political
(1) of UN
field” and “encouraging the progressive development of International
Charter Law and its codification

• Article 13 (1) (a) of the U.N. Charter lays down that the Codification of International Law is done by the
various agencies of the United Nations such as International Law Commission (ILC), United Nations
Commission for International Trade Law (UNICTRAL), General Assembly and the Specialized Agencies of
the United Nations.
• Codification evidence of progressive development of International Law –
• It is 'the formulation of draft conventions on subjects which have not yet been regulated by International Law
of in regard to which the law has not yet been sufficiently developed in the practice of States
• the more precise formulation and systematization of International Law in fields where there already has been
extensive State practice, precedent and doctrine.
CODIFICATION u/d UNITED NATIONS
• International Law Commission’s (Subsidiary Organ of UNGA) – played a Crucial Role on Codification of IL.
• ILC’s Object: promotion of the progressive development of International Law and its codification
• Estd. 1949 – Concluded numerous Multilateral Treaties.
Convention on the
Geneva Vienna Prevention and
Convention on Convention on
Conventions Convention on Punishment of
Consular Special Mission
(four) on the Law Diplomatic Crimes Against
Relations (1963) (1969)
of the Sea (1958) Relations (1961) Internationally
Protected Persons

Vienna Vienna Convention Convention on Convention on

Convention on on Succession of the Law of the Law of the
,Convention on
Succession of States in respect of Treaties to which Non-
the Law of
States in Respect State Property, International Navigational Use
Treaties (1969);
of Treaties Archives and Debts Organisations are of International
(1978); (1983); Parties (1986) Watercourses.

One of the most outstanding contribution of the Commission has been the preparation of the draft Statute of the
International Criminal Court. On the basis of the draft, Rome Statute of the International Criminal Court has been
adopted on July 17, 1998.
CODIFICATION u/d UNITED NATIONS

• Role of the United Nations in Codification of International Law

• Transformation: Under the auspices of the United Nations, customary
International Law has been transformed into treaty rules.
• New Rules: New rules have been codified by the International Law
Commission and other UN agencies.
• Ongoing Process: The codification process is ongoing.
• Future Goals:
• Codify most of the uncertain and scattered customary rules.
• Include new rules emerging from the changing structure of International Law.