STUDY MATERIAL FOR INTERNAL

CIRCULATION
COURSE & SEMESTER: 5 YEAR B.A., LL.B. VII SEMESTER

SUBJECT: PUBLIC INTERNATIONAL LAW

UNIT-I

Prepared By
Ms. Sahana Florence
Asst. Prof.
BMSCL

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 COURSE- I: PUBLIC INTERNATIONAL LAW

Objectives:

The course includes the study of general principles of international law including law of peace.
Third world concern in respect of security and development and the role of U.N. and
international agencies in structuring solutions in the context of changing balance of power are
also to be appreciated.

COURSE CONTENT

Unit-I

Nature, definition, origin and basis of International Law; Sources of International Law;
Relationship between International Law and Domestic Law; Subjects of International Law

Unit-II

States as subjects of International Law: States in general; Recognition; State territorial

sovereignty.

Unit-III

State Jurisdiction: Law of the Sea; State Responsibility; Succession to rights and obligations.

Unit-IV

States and Individual: Extradition, Asylum and Nationality; the agents of international
business; diplomatic envoys; consuls and other representatives; the law and practice as to
treaties.

Unit-V

The United Nations Organisation: Principal organs and their functions; World Trade
Organisation-Main features; International Labour Organisation.

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 Unit-I
Nature, definition origin and basis of International Law; Sources of International Law;
Relationship between International Law and Domestic Law; Subjects of International Law.

INTERNATIONAL LAW
International Law' is one of the finest subjects for studying, ‘as it opens up new horizons to
navigate beyond the egg-shell enclosure of one’ s mental faculties. It is our duty to know the
law of our Country {Ignorantia juris non. excusat!) but it is a privilege to know the Law of
Nations. States are legal persons and are subjects of International Law. It is impossible to
imagine the States today, carrying on their multifarious activities across the borders, on an
unprecedented scale, in a legal vacuum! That ipso facto must justify the existence of a large
number of principles and rules governing the conduct of the States. In recent years the
proliferation of International Institutions, has given a new dimension to the Law of Nations.
Moreover, there is so much of international activity that hundreds of conferences and meeting
are held round the year, speaking volumes to the fact, that International Law is in operation. In
recent years a countless number of Conventions and treaties have been concluded so much so
the corpus of the Law of Nations has grown in its magnitude Much credit goes to the
"International Law Commission" which has toiled in chiselling & trimming to draft form the
norms of International Law scattered in various forms often obscure and indefinite. The basic
principles of the subject should be carefully studied with a broad outlook, to understand the
significance; Cases and Materials should be adroitly selected. Specialization should be
attempted later. World Peace is the cherished objective of all Nations. International Law is a
means to reach that.

Definitions of International Law

Traditional Definitions of International Law

Public International Law is called as ‘Laws of Nations’. It is simply a set of rules that countries
follow when dealing with each other. International Law regulates the relations between or
among states. States and only states are subjects of International Law. Exponents: Oppenheim,
J.L. Brierly and Hackworth

Oppenheim’s Definition:

“Law of Nations or International Law is “the name for the body of customary and treaty rules
which are considered legally binding by civilized states in their intercourse with each other”

Key components in this definition are

(a) It is a body of rules governing the relations between states;

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(b) States regard these rules as binding on them in their relation with one another. And

(c) those rules are derived from customs and treaties.

According to this definition, rules of International Law cover almost every facet of interstate
activity.

Criticism of Oppenheim’s definition:

Not only states but also international organization is subjects of international law P.E.Corbett:
“The future of International law is one with the future of International Organizations.
Individuals and other private persons have rights and duties in International Law. Not only
customary and conventional International Law but it also includes general principles of Law.

Some other definitions of International Law similar to that of Oppenheim: -

Queen v. Keyn (1876): In this case the Court observed, International Law in the following
words: “The law of nations is that collection of usages which civilised states have agreed to
observe in their dealings with one another.”

West Rand Central Gold Mining Co. Ltd. v. King (1905): In this case the Court observed,
International Law may be defined as “the form of the rules accepted by civilised States as
determining their conduct towards each other and towards each other’s subject.”

S.S. Lotus case (1927): In this case, International law was defined in the following words:
“International Law governs relations between independent States. The rules of law binding
upon States therefore emanate from their own free will as expressed in conventions or by
usages generally accepted as expressing principles of law and established in order to regulate
the relations between these co-existing independent communities or with a view to the
achievement of common aims. Restriction upon the independence of States cannot therefore
be presumed.

Modern Definitions of International Law

International Law not only regulates the relations between states but also deals with
international organizations, individuals and non – state entities.

Definition of J.G. 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 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.”

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Reasons for emergence of new definition includes, establishment of a large number of
permanent international institutions or organisations, protection of human rights and
fundamental freedoms and creation of new rules for the punishment of persons committing
international crime

The definition given by Oppenheim took into the account of states only; Starke has widened
the scope by stating that along with States International Law regulates the rights and duties of
international institutions or organizations, individuals and other non-state entities. These
entities have come within the ambit of International Law because of the radical developments
that took place since the beginning of the present century especially after the creation of the
United Nations. But he conceded that primarily it regulates the rights and duties of States inter
se. In the strict sense, Starke has enumerated in his definition the names of different entities
whose rights and duties are regulated by the rules of International Law. But if an entity not
enumerated by Starke ever comes within the scope of International Law with the passage of
time, and if its rights and duties are regulated by the rules of International Law, the definition
would again be subjected to criticism. Thus, the definition does not stand correct for all the
times to come.

Schwarzenberger has therefore very rightly preferred not to name the entities whose rights and
duties are regulated by International Law. He defines “International Law as the body of legal
rules which apply between sovereign states and such other entities as have been granted
international personality”. As far as the scope of International Law is concerned, his definition
is wider than other definitions. According to him International Law, if and when grants
international personality to any entity or when International Law would be capable of
regulating rights and duties of any entity, its rules shall apply to them. It is clear from the above
that at present International Law deals not only with states inter se, but it also confers rights
and obligations to non-state entities as well, such as international organisations and institutions,
individuals and multinational corporations.

NATURE OF INTERNATIONAL LAW

Whether International Law is law in the true sense of the term or not.

This is the most controversial issue that has been debated and discussed and also the opinions
of jurists are sharply divided on this. Although the rules regulating the relations of states are
referred to as to international law, there has always been one question asked by all jurists: - “Is
International Law, really Law?”

One view is that international law is not a true law but only a code of rules of conduct of moral
force only. Another view is that international law is a true law and it should be regarded as law
in the same way as that of any ordinary law. Whether international law is a true law or no,
depends on what is the definition of the term law.

AUSTINS VIEW

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Austin and his followers are of the view that international law is not legally binding on states.
According to Austin, law is the command of sovereign backed by sanction in case of violation
of the command. This definition contains two elements: 1. Law is a command enacted by
sovereign legislative authority, (anything not enacted by it is not law) 2. That command is
enforced by sovereign or backed by sanction. According to Austin, these two elements are
important in order to call a rule as a proper law, everything else is called improper law. Thus
International Law is not proper law in the true sense. Austin preferred to call it positive
international morality, since it lacked sovereign issuing orders backed by sanction. But this
view of Austin has been criticized by jurists.

OPPENHEIM’S VIEW

According to Oppenheim, law is a body of rules for human conduct within a community which
by common consent of this of this community shall be enforced by external power.

According to this definition there are three essential points for the existence of law:

1. There must be a community

2. There must be a body of rules for human conduct within the community

3. There must be a common consent of the community, that these rules shall be enforced by
external powers.

According to Oppenheim, there is no need of a law-making authority or a law administrating

court within the community. Now these three requirements are satisfied by international law to
an extent. This view is much wider than Austin’s view.

Now finally, it may be concluded that world is regarded as an international community and
there are rules in the form of customs and treaties for regulating the conduct of the members of
the community and the members also recognize, observe and affirm these set of rules and they
also are practised in foreign offices, national courts and other international organizations such
as the UN.

But when we look at Austin’s view, he called International Law as a positive morality.
Austin’s definition also makes it evident that international law is true law, presently
international legislation has come into existence as a result of multinational treaties and
conventions. There is international court of justice whose decisions are binding if party fails to
perform its obligation, Security Council of UN is empowered to take measure to enforce the
decision of court. Thus, now there is international legislation, a court and sanctioning authority
in the light of these development, we can call International Law as a true law even if Austin’s
view is accepted.

INTERNATIONAL LAW IS A WEAK LAW

International Law is a law in its true sense, but it is a weak law. Its rules are not as effective
as rules of municipal law.

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Reasons:

1. There is no court in the true sense. Though International Court of Justice exists to decide
disputes of all the states it does not have jurisdiction to decide the disputes of all the states since
the court acts with the consent of the state only.

2. Enforcement measures are not effective. Under municipal law, if a person commits crime
he will be punished in accordance with law. But in International Law, in a number of cases no
enforcement action is taken even if the action is regarded as illegal.

3. Rules of International Law are violated by states, especially during war.

4. Effectiveness of municipal law lies in the fact that its units are quite weak. In International
community, some units are weak and small whereas some are strong and enormous. And to
compel them for observance of international rules becomes difficult many times.

BASIS OF INTERNATIONAL LAW

Views of jurists differ on the question as to what is the basis of International Law. The
difference of opinion has led to the emergence of the following two important theories:

1. NATURALIST THEORY
Most of the jurists of the 16th& 17th century were of the view that International Law
is based on law of nature. According to them, law comes from God or reason or moral.
International Law is based on this very system. Prominent writers of this view are
Grotius, Pufendorf and Vattel. These jurists argued that all law is derived from God,
and they called God’s superior law as Divine Law. By Natural Law, is therefore meant
the application of Divine Law. Rules of natural law, contain fundamental and
unchangeable principle and it’s above everyone. According to them all laws including
International Law are based on Natural Law. This view has been greatly criticised by
the 19th century writers on the ground that it is vague, meaning of Natural Law is not
clear. Different jurists have given different meaning to it, such as reason, justice and
moral. Despite such criticism, Natural Law has greatly influenced the growth of
International Law.

2. POSITIVISTS THEORY
The view that International Law is based on the law of nature has been condemned by
the followers of another school, which is known by the name of ‘Positivists’. According
to them, only those principles maybe deemed as law which has been adopted with the
consent of the states. The rule of law are binding upon state therefore emanate from
their own free will. The doctrine of positivism teaches that International Law is the sum
of rules by which states have consented to be bound and that nothing can be law to
which they have not consented. The consent maybe giving by states either expressively
or impliedly. While express consent maybe given by the conclusion of treaties or the
acknowledged concurrence of governments consent maybe implied in the case of

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 established usage i.e., custom. Thus, custom and treaties by which consent of a state is
achieved are the basis of International Law.
The consent theory has been criticized on several grounds:
1. All rules of International Law has not been derived from customs & treaties. Some
of them are derived from general principles of law recognized by civilized nations.
2. State remains bound by certain rules of International Law, even it has not given its
consent. Their assent shall be presumed as long as the contrary is not indicated.
3. States in some cases are bound by general International Law even against their
will.

Some other Theories regarding the basis of International Law:

1. Theory of Consent: This is based on the positivists view and has been criticised earlier.
This theory 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.
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 States has
a will. Moreover, auto-limitation is no limitation at all. International Law is binding on
States because they have restricted their power through the process of auto-limitation.
Each State has a will which is completely independent and free from external influence.
But process of limitation they can restrict their powers and follow the international law.
3. Pacta Sunt Servanda: according to Anzillotti, the binding force of international law is
founded on the fundamental principles known pacta sunt servanda, which means that
the agreements entered into by the States must be followed by the, 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 viewpoint.
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.

EVOLUTION OF INTERNATIONAL LAW

There was little scope for an international law in the period of ancient and medieval empires,
and its modern beginnings coincide, therefore, with the rise of national states after the Middle
Ages. Rules of maritime intercourse and rules respecting diplomatic agents (see diplomatic
service) soon came into existence. At the beginning of the 17th cent., the great multitude of
small independent states, which were finding international lawlessness intolerable, prepared
the way for the favourable reception given to the De jure belli ac pacis [concerning the law of
war and peace] (1625) of Hugo Grotius, the first comprehensive formulation of international
law. Though not formally accepted by any nation, his opinions and observations were afterward
regularly consulted, and they often served as a basis for reaching agreement in international
disputes. The most significant principle he enunciated was the notion of sovereignty and legal

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equality of all states. Other important writers on international law were Cornelius van
Bynkershoek, Georg F. von Martens, Christian von Wolff, and Emerich Vattel.

HISTORY & DEVELOPMENT OF INTERNATIONAL LAW

International Law is the product of experience of the civilised countries of the world and
continuous growth for many centuries almost all the civilised states have made their
contribution in the development of International Law. But contribution by Jews, Romans,
Greeks, Hindus & Muslims are more important.

International Law in ancient ages:

1. Jews

Jews had relation with other countries and their relation was regulated by certain rules. They
observed rules of diplomatic immunity. They strictly followed treaties entered into by them
with other countries.

2. Greeks

Greek was quite an advanced civilization. Socrates, Plato, Aristotle and other enlightened the
world through their ideas and philosophies. Their relations with other state were regulated by
rules, they had definite law of war and peace. They resolved their disputes through arbitration.

3. Romans

There was set of rules called Jus Gentium which was applicable to foreigners coming to Rome.
The Greeks developed the Jus Gentium into a system of law governing international relation
i.e., just nations. They had different types of treaties, war, ambassadors enjoyed full protection.

4. Hindus

Ramayana, Mahabharata, Kautilyas, Arthashastra have contributed greatly to International

Law. These laid down principles to govern the relation between different sovereign states in
time of peace, in war etc. the kings during war observed a very civilized code of conduct and
diplomats enjoyed compete community.

5. Mohammedans

Treaties were respected, ambassadors were sent and received they were protected from
personal injury.

International law in the Middle Ages (15th & 16th centuries)

There was discovery of the new world and sea routes. This created rivalry among the nations
of Europe for colonizing the newly discovered states and extending their commercial activities.
To wage war had become a right of sovereign state.

International law in the modern age

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International Law expanded due to number of factors like rise of powerful new stat, expansion
of European civilization overseas, the modernisation of world transport etc. permanent court
of arbitration and International Court of Justice was set up and conventions like Geneva
Convention, declaration of Paris came into force, and United Nations was established in 1945.

SOURCES OF INTERNATIONAL LAW

Sources of international law are the materials and processes out of which the rules and
principles regulating the international personalities are developed. According to Lawrence and
Oppenheim there is only one source of international law and that is the consent of nation.
Brierly considers customs and reasons as the main sources of international law.

Article 38(1) of the statute of the International Court of Justice is widely recognized as the
most authoritative statement as to the sources of international law. On the basis of Article 38
of ICJ Statute five distinct sources can be identified. They are international
conventions/treaties, international customs, General principles of law, Judicial decisions and
writings of the publicists and Reason and equity.

Article 38 (1) International Conventions Article 38 (1) of the Statute of the International
Court of Justice is generally recognized as a definitive statement of the sources of international
law. It requires the Court to apply, among other things,

(a) International conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

(b) International custom, as evidence of a general practice accepted as law;

(c) The general principles of law recognized by civilized nations;

(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination of
rules of law.

Sources of International Law

1. Custom
2. International Conventions / Treaties
3. General Principles of Law Recognised by Civilised Nations
4. Decisions of Judicial / Arbitral Tribunals
5. Writing of Jurists
6. Decisions of the organs of international institutions
1. International Conventions or Treaties
The term “conventions” applies to any treaty, protocol or agreement, regardless of its title
or form. According to Article 38 of the Statute of International Court of Justice, it is the first
source of international law. There is no Legislative organ in the field of International Law,
comparable to legislatures within the State, the enactments of which could bind all the States.

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The Contracting Parties may, however, establish an international organization by means of the
treaty with authority to bind them by its resolutions or may even lay down rules for their mutual
conduct. In this sense, multilateral treaties are a feeble approach to International Character.
In the modern period, international treaties are the most important sources of international
law. As defined by Article 2 of Vienna Convention 1969, “a treaty is an agreement whereby
two or more States establish or seek to establish relationship between them governed by
international law.” Article 3 adds that the fact that the present convention does not apply to
international agreements concluded between States and other subjects of International law, or
to international agreements not in written form shall not affect:
(a) The legal force of such agreement;
(b) The application to them of any rules set forth in the present convention to which they
would be subject under International law independently of the convention;
(c) The application of the convention to the relations of States as between themselves
under international agreements as to which other subjects of international law are also
parties.
It may be noted that Vienna Convention of Treaties, 1969, entered into force o 27 January,
1980. As of January 2013, as many as 113 countries, even those countries which are not parties
to the Convention regard it as declaratory International Law.

Treaties can be divided into law Making Treaties and treaty Contracts.
A. Law making Treaty- Law making treaties are those treaties which are entered into by
a large number of States. These are the direct source of International Law. These treaties
are binding. Law making treaties may be divided into i) treaty giving the rule of
Universal International Law. ii) Treaty giving general principles. (i) Treaty giving the
rule of Universal International Law - These treaties are signed by a majority of the
State. For Example, United Nation Charter. (ii) Treaty giving general principles - These
treaties are entered into and signed by a large number of countries giving thereby
general principles of International Like. Geneva Convention on Law of sea and Vienna
Convention on Diplomatic Relations, 1961 are examples of such a treaty.
B. Treaty Contract: These are the treaties which are entered into by two or more States.
The provisions of such treaties are binding only on the parties to the treaty. Such type
of treaties is also the source of International Law because they help in the development
of customary rules of International Law. It is criticized that the classification of treaties
is misleading because they both create binding rules. In conventions numbers of State,
parties are involved. Majority of state abides by the obligation and agreed voluntarily.
Treaties create rules and principles of International Law. The basis is the common
consent of the States. There is no law-making authority in the international sphere. The
role played by convention in the absence of such Law-making Authority is significance.
The International convention goes one step ahead of customary rules. Treaty
stipulations override rules of International customary law which are incompatible with
them. This proposition received approbation in the case of S.S Wimbledon 1923, where
the Permanent Court of International Justice held that treaty law takes priority over
international Customary Law. Conventional and customary rules of International Law

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 are not the only source of International Law, but they fill the gap in absence of law-
making authority.

2. International Customs
Custom is the older and original Source of International Law. It is as such Second Important
source of International Law. International Law Custom may mean a kind of qualified practice,
by the existence of a corresponding legal obligation to act according to this practice, hence by
the existence of the corresponding rule of International law. The customs are evolved through
the practices of and usages of the nation and their recognition by the community of nations.
Customary rules are those rules which are practiced by most of the States by way of habit for
a pretty long time. International custom has developed by spontaneous practice and reflects a
deeply felt community of law. Its rules are regarded as possessing density and stability and it
is the repository of the general or common law of the nations.

Dixon refers to it as the ‘foundation stones of the modern law of nations' and this was
backed up in the Gulf of Maine case that custom is the ideal right size for the general principles
and always on ground to fill the vacuum any time obligation and law of treaties are not gaining
global acceptance. Can customary law change? Customary law can change on the principle of
‘apprehension' and ‘acquiescence' but that does not mean customary law is not a strong rule of
law, the process of customary law continuously is a good omen to international law because it
can meet up with the timely needs of international law as the world and law develop, though,
it may have its own disadvantages of more relaxed and slow formation process, it lacks
certainty and visibility unlike treaty. it has advantage as regards to its variety of wide scopes in
similarities with state activities. Treaty has advantage where custom has disadvantage, they are
like twin pillars ready to work together in other to strengthen the sources of international law.
Hugh said, ‘the way things have always been done becomes the way things must be done rules,
international law does not deviate from the pattern discernible in municipal legal systems.
State practice as one of the elements of customary law, it is a continuous and constant state
practice of international acts over a period of time, Governmental actions, rule makings and
execution of policies, governmental declaration and pronouncement, administrative procedures
and policies within states constitute good links and sources of state practice. In Asylum case
(Colombia v Peru), to form customary law, it must be ‘in accordance with a constant and
uniform usage practised by states in question'. The ‘uniformity' and ‘consistency' test is
‘general practice' and not a ‘universal practice' and ‘practice of most influential and powerful
states would carry the greatest weight', deducing from the above, it doesn't mean all states
participation in the practice.
Consistency of state practice as another element is significant to the alteration of an existing
custom. In Lotus case, the court said customs must be ‘constant and uniform'. It must not be
‘totally uniform and constant'; it must at least be significantly constant state practice to become
customary international law. Also, it is well stated in Anglo-Norwegian Fisheries case that the
consistency required may vary in degree based on circumstance. Generality of Practice as
another element in customary law is about the knowledge of the Custom, to significant number
of states. It is a general adoption of practice by state, in North Sea Continental Shelf Cases,
it may be difficult to determine the number of state to participate in international law before a

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general practice can become law because it is not about majority of votes cast, the degree
depends on the various subject matters.

West Lake defines custom as that line of conduct which the society has consented to regard
as obligatory. For a valid international custom, the following essential elements are important:

1. Duration – when a particular usage of practiced for a very long time, it becomes a
custom. How much time usage takes to transform into a custom is a question which is
difficult to answer. A usage may become even in a short time. It all depends on the
circumstances of the case and the nature of rule involved.
2. Uniformity or Consistency –A practice is required to be followed consistently by the
states. In the asylum case, the International Court of Justice observed that a custom
must be uniform if it has to be adopted as an International Law. In the words of
permanent court of International Justice in the lotus case, the practice should be
constant and uniform while complete uniformity is not required uniformity should be
substantial. In Anglo-Norwegian fisheries case, the court refused to accept the existence
of a 10-mile rule for base, because the practice was not substantial consistent. It was
also stated in this case that the degree of consistency required may vary according to
the subject matter of the rule in dispute. Occasional violation of a principle does not
detract the principle from acquiring the legal character.
3. Generality of Practice– It is essential that a usage must be practiced by most of the
states in order to transform it into a custom. The above implies that there is no rule
which prescribes that the consent of all states is a necessary condition to the formation
of a customary rule. In West Rand Central Gold Mining Company Ltd. Vs R, it was
held that it must be proved by satisfactory evidence that the alleged rule is of such a
nature and has been so widely and generally accepted that it can hardly be supposed
that any civilized state would repudiate it.
4. Opinio Juris Et Necessitatis – Some writers have regarded this element as essential for
a usage to acquire the status of custom. This means that a recognition of a certain
practice has obligatory by the states. The states must recognise the custom as binding
upon them as law. In the Lotus Case, the permanent court of International Justice
observed that Opinio Juris is an essential element in the formation of customary law.

3. The general Principles of Law Recognised by Civilised States

The General Principles of law are based on moral Principles and law of nature; it has
relation with the State Practice. The statute of the International Court of Justice authorizes the
Court to apply the general principles of law recognized by civilized nations in addition to
international conventions and custom, which are the two main sources of International law. It
makes national legal systems as a source of law for the creation of International Law. The
special arbitral tribunal between Germany and Portugal also applied the general principles of
law in the Maziua and Naulilaa case where the arbitrators observed that in the absence of rules
of International law applicable to the facts in dispute, they were of the opinion that it was their

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duty to fill the gap by principles of equity fully considering the spirit of International Law,
which is applied by way of analogy and its evolution.
Article 38 para (1) (c) statute of international court of justice says that general principles of
law recognised by civilised state are the 3rd source of International Law. General Principle of
Law Recognised by Civilised States means principles that are recognised by almost all states
and repeated. Example Pacta Sunt Servanda i.e., agreements between states must be respected
and followed right of self defense for the individual against attack on him or his family. General
Principles of Law actually resembles the municipal law, which are same in all jurisdiction i.e.,
they are common in most of the civilized states. Example: • Right of double jeopardy • Right
of private defense • Right of defense, fair hearing and one cannot sit in judgment in his own
case.
Followings are some of the important cases relating to the general principles of law
recognised by civilised States:
(a) R. Key (1876): In this case the court ruled that international law is based on justice,
equity and good conscience which has been accepted by long practice of States.
(b) United States v. Schooner: In this case Justice Storey of United States of America ruled
that International Law should be based on the general principles of law recognised by
civilised States. He was giving decision relating to Abolition of System of Slavery.
(c) Chorzow Factory (Indemnity Case) 1938: In this case, the Permanent Court of
International Justice applied the principles of res judicata also held that one who
violates a rule is liable to make reparation.

4. Judicial Decision
According to Article 38 of the Statute of the International Court of Justice, Judicial
Decisions are subsidiary sources of International Law. They are not the automatic sources of
law. Judicial Decisions by International Court of Justice, Permanent Court of Justice,
International Arbitral Tribunal and Municipal Courts are subsidiary sources of International
Law.
Article 59 of the Statute of the International Court of Justice expressly provides that the
decisions of the court have no binding force except between the parties and in respect of that
particular case. This means that the judicial decisions are binding only on the disputed States.
Under the provisions of this Article, the Court is specifically required not to apply precedent
or doctrine of stare decisis in its decisions. Decisions of International Court of Justice are to
have only persuasive value. The content of earlier decisions has some element of law and it is
clarified, impartially, as certainly carried by International Court of Justice. How it contributes
in the development of International Law? Its repeated application is relied upon. Later on, it
does not remain only persuasive and it does convert into rules of International Law.

5. Text writers, Juristic Works and Commentators

It is referred and relied on by International Court of Justice which author is quoted in
which decision. The opinion of jurist is also regarded as sources of international law but they
are subsidiary means for the determination of rules of international law. While deciding the
case, if the Court does not find any treaty or judicial decision or legislative act or any

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established custom, the Court may take the help of opinion of jurist as subsidiary means for the
determination of rules of International law. Although juristic works are not independent sources
of law, sometimes juristic opinion leads to the formation of International law. It throws light
on the rules of International law and their writing makes it easier to frame a particular rule. The
value of juristic writings carries more weight particularly in those fields of international law
where treaty or customary rules do not exist. The Writings of Ayala, Gentilis Grotius, Vattel,
Kent Zouche, etc have tended to transform the transitory state of usages into custom and
represented a strong element to consolidate the customary law.

6. Decision or determinations of the organs of International Institutions

In the modern age the decisions or determination of the organs of international Institutions
are also treated as sources of International Law. In the view of constant change in the forms
and content of the International Law, International organizations have also become a subject
of International law. The decisions and determination of the organs of such institution are also,
therefore, regarded as the sources of International Law because they help in the development
of customary rules of international law.

Some other Subsidiary Sources of International Law

Following are the other subsidiary sources of international law:
(i) International Comity: Since mutual relations of nations are often based on the
principles of comity, international comity has helped the development of
international law. That is to say when a State behaves in a particular way with other
States, the latter reciprocate and behaves in the same way.
(ii) State Papers: In the modern period, almost all the civilised States have diplomatic
relations with each other. They send letters to each other in respect of matters of
mutual interests. These letters are sometimes published. A study of these letters
reveals that certain principles are repeatedly followed by States in their mutual
intercourse. Sometimes these State papers help in the solution of a conflict or
controversy.
(iii) State guidance for their Officers: It is mostly seen that a number of matters of the
Governments of respective States are resolved on the advice of their legal advisers.
These advices are also, therefore, sometimes treated as sources of international law.
(iv) Reason: ‘Reason’ has occupied a special position in all ages. In modern period also,
it occupies an important place. It has performed a special ole in the development of
international law.
(v) Equity: Equity is used in the sense of consideration of fairness, reasonableness and
policy often necessary of the sensible application of the more settled rule of law.
Though equity cannot be the direct source of International Law, It is of great
importance in those fields where rules are not readily available. Some jurists say
that, it is not the formal source of law but it is a a subsidiary source of law. Equity
principles originate from culture and interest of state concerned, equity principles
vary from State to State. Equity in international law is uncertain. It is subjective,

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 and to bring objectively to the principles of equity as a principle of natural law are
considered. The Concept of Equity has been referred to in several cases.

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

International Law is the law which governs the Relations of sovereign independent States inter
se Municipal law or State law or national law is the law of a State or a country and in that
respect is opposed to International Law which consists of rules which civilized States consider
as binding upon them in their mutual relations. Kelsen observes that national law regulates the
behavior of individuals International law the behavior of States or as it is put whereas national
law is concerned with the international relations the so called domestic affairs of the State.
International Law is concerned with the external relations of the State its foreign affairs.
Legislature and court systems are different on the international and municipal levels. Where
the municipal level uses a legislature to help enforce and test the laws, the international court
system relies on a series of treaties without a legislature which, in essence, makes all countries
equal.
Enforcement is a major difference between municipal and international law. The municipal
courts have a law enforcement arm which helps require those it determines to follow the rules,
and if they do not they are required to attend court. The international court system has no
enforcement and must rely on the cooperation of other countries for enforcement.
There is a divergence of opinion on the question as to whether International Law and
Municipal Law on the various national laws can be said to form a unity being manifestations
of a single conception of law or whether International Law constitutes an independent system
of law essentially different from the Municipal Law. The former theory is called monistic and
the latter dualistic.
1. Monistic Theory
This theory was developed by jurists like Kelson, Westlake and Lauterpacht. Monists
assume that the internal and international legal systems form a unity. Both national
legal rules and international rules that a state has accepted, for example by way of a
treaty, determine whether actions are legal or illegal. According to this theory municipal
law and international law are parts of one universal legal system. Municipal Law is
binding on individuals directly and international law is binding on them through States.
Monists are of the opinion that individuals are the root of all legal systems thus
international law and municipal law are intimately connected with each other. They are
the two branches of unified knowledge of law. In ultimate analysis, all laws we find
that individuals are at the root of all laws. According to it International Law and
Municipal Law are two phases of one and the same thing. The former although directly
addressed to the States as corporate bodies is as well applicable to individuals for States
are only groups.

2. Dualistic theory
Dualists emphasize the difference between national and international law, and require
the translation of the latter into the former. Without this translation, international law
does not exist as law. International law has to be national law as well, or it is no law at

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 all. If a state accepts a treaty but does not adapt its national law in order to conform to
the treaty or does not create a national law explicitly incorporating the treaty, then it
violates international law. But one cannot claim that the treaty has become part of
national law. Citizens cannot rely on it and judges cannot apply it. National laws that
contradict it remain in force. According to dualists, national judges never apply
international law, only international law that has been translated into national law.
According to the dualist view the systems of International Law and Municipal Law are
separate and self-contained to the extent to which rules of the one is not expressly or
tacitly received into the other system. In the first place they differ as regards their
sources. The sources of Municipal Law are customs grown up within the boundaries of
the State concerned and statutes enacted therein while the sources of International Law
are customs grown up within the Family of Nations and law-making treaties concluded
by its members. In the second place Municipal Laws regulates relations between the
individuals under the sway of a State or between the individuals and the State while
International Law regulates relations between the member States of the Family of
Nations. Lastly there is a difference with regard to the substance of the law in as much
as Municipal Law is a law of the sovereign over individuals while International Law is
a law between sovereign State which is arrived at an agreement among them.

3. Transformation Theory
According to this theory it is the transformation of the treaty into national legislation
which alone validates the extension to individuals of the rules set out in international
agreements. The transformation is not merely a formal but a substantial requirement.
International Law according to this theory cannot find place in the national or Municipal
Law unless the latter allows its machinery to be used for that purpose. This theory is
fallacious in several respects. In the first place its premise that International Law and
Municipal Law are two distinct systems is incorrect. In the second place the second
premise that International Law binds States only whereas municipal law applies to
individuals is also incorrect for International Law is the sum of the rules which have
been accepted by civilized states as determining their conduct towards each other and
towards each other’s subjects. In the third place the theory regards the transformation
of treaties into national law for their enforcement. This is not true in all cases for the
practice of transforming treaties into national legislation is not uniform in all the
countries. And this is certainly not true in the case of law-making treaties.

4. Specific Adoption Theory

This theory says that International Law cannot be applied in sovereign states unless and
until the sovereign state specifically adopts that law by way of enactments. Examples:
International Covenant on Civil and Political Rights and International Covenant on
Economic, Social and Cultural Rights have been adopted in India under the Protection
of Human Rights Act, 1993. Similarly, the Model Arbitration Law (MAL) of United
Nations Commission on International Trade Law was enacted by India as the
Arbitration and Conciliation Act, 1996

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 5. Delegation Theory
According to this theory there is the delegation of a right to every State to decide for
itself when the provisions of a treaty or convention are to come into effect and in what
manner they are to be incorporated in the law of the land or municipal law. There is no
need of transformation of a treaty into national law but the act is merely an extension
of one single act. The delegation theory is incomplete for it does not satisfactorily meet
the main argument of the transformation theory.
It is settled by the leading English and American decisions that International Law forms
part of the municipal law of those countries. The United States has unambiguously
applied the doctrine that International Law is part of the law of the land. All
international conventions ratified by the USA and such customary International Law as
has received the assent of the United States are binding upon American Courts even if
they may be contrary to the statutory provisions. There is a presumption in cases of
conflict that the United States Congress did not intend to overrule international law in
India.
In India, SC has held in several cases such as Vishakha vs State of Rajasthan, Randhir
vs Union of India, Unnikrishnan vs State of Karnataka, that domestic laws of India,
including the constitution are not to be read as derogatory to International law. An effort
must be made to read the domestic law as being in harmony with the international law
in case of any ambiguity. At the same time, the constitution is still the supreme law of
the land and in case of any directly conflict the constitution will prevail.

SUBJECTS OF INTERNATIONAL LAW

A subject of International Law is a person (entity) who possesses international legal

personality, i.e., capable of possessing international rights and obligations and having the
capacity to take certain types of action on the international level. Traditionally, States have
been the only subjects or persons of International Law. However, with the establishment of
international organizations, it has become necessary that a sort of international legal personality
be granted to these entities. Thus, international organizations become subjects or persons of
International Law. Beside States and international organizations, non-States entities such as
members of federal States, belligerents, insurgents, national liberation movements, and
international territories are granted a sort of international legal personality. Special
international status was granted to the Holly See and the Vatican City, and the Sovereign Order
of Malta. Moreover, individuals, ethnic minorities, and indigenous peoples are considered, in
certain circumstances, subjects of International Law.

Dixon – “A subject of international law is a body or entity recognized or accepted as being

capable, or as in fact being capable, of possessing and exercising international law rights and
duties”

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The terms “subjects of international law” refers to entities endowed with legal personality,
capable of exercising certain rights and duties on their own account under the international
legal system.

According to Starke, the term “Subject of international law” means; an incumbent of rights and
duties under international law; The holder of procedural privileges of prosecuting a claim
before an international tribunal; and the possessor of interests for which provision is made by
international law

Oppenheim says that an international person is one who possesses legal personality in
international law meaning one who is subject of international law so as to enjoy rights, duties
or powers established in international law. It also gives the capacity to act on the international
plane either directly or indirectly through the state.

In the Repartitions for Injuries case, it was observed that an entity capable of possessing
international rights and duties and having the capacity to maintain its rights by bringing
international claim, is a subject of International Law. The concept of international person is
thus derived from International Law. The question as to what are the entities which possesses
above the three capacities is solely determined by the rules of International Law. Thus
International Law itself selects the different entities to which it grants international personality
by endowing legal functions. It is significant to know that it is not necessary for an entity to
possess all the rights and duties by International Law. If an entity is competent to perform only
a few acts or even a single act as provided by the rules of International Law, that entity would
be regarded as to have possessed capacity to become a subject of International Law. Views of
jurists differ on the question as to what entities are deemed to be subjects of International Law.
The difference of opinion has led to the emergence of three popular theories.

Theories regarding subjects of International Law

1. Realist Theory (States alone are subjects of International Law)

According to this view, only States are the subjects of international law. According to Prof.
Oppenheim, “the law of nations is primarily a law of international conduct of states and not of
their citizens”. If individuals have any right then it can be claimed only through the states. The
Jurists of this school believes that the states are the subjects of international law, while
individuals are the objects of international law.

Criticism
This view has been criticized by various jurist because this theory fails to explain the case of
slaves and pirates. Under international law slaves have been conferred upon some rights by the
states. In the same way pirates are treated as Enemies of the mankind and they may be punished
for piracy by the state. The jurist who emphasis that States alone are the subjects of
international law, are of the view that slaves and pirates are exception and are objects of
international law. It is argued that the treaties which confer certain rights over the slave and
pirates impose certain obligations upon the states if there is no search obligation of the states,

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the slaves cannot have any rights under international law. Professor Oppenheim is of the view
that since the law of nation is primarily a law between the States, state is to that extent, the only
subject of the law of nations. Professor Oppenheim subsequently has changed the view and
mentioned that," States are primarily, but not exclusively, the subjects of International law. To
the extent that bodies other than States directly possesses some rights, power and duties in
international law they can be regarded as subjects of international law possessing international
personality. Many of the rules of international law are directly concerned with regulating the
position and activities of the individual and many more directly affect them. Thus, it is wrong
to say that individuals or not the subjects of international law. Some Jurist are of the view that
individuals who are the basis of the society and are the subject of international law and not the
object of international law. Even the International Court of Justice has rejected the proposition
that states are the only subject of international law. But held that the states are responsible for
an act of his agent. As per the modern international law, it is generally recognised that besides
States public International organisations, Individual and certain other non-state and entities are
also the subject of international law."

2. Fictional Theory (Individuals alone are subjects of International Law)

Some Jurist Express the view that in the ultimate analysis of International law, it will be
evident that only individuals are the subjects of international law. Professor Kelson is the
chief exponent of the theory. Even before Kelson, Westlake had remarked, "The duties and
rights of the States are only the duties and rights of man who composed them. Prof. Kelson
has analysed the concept of the state and expressed the view that state is a technical legal
concept and includes rules of law applicable on the persons living in a definite territory.
Hence under International Law duties of the states are ultimately the duties of individual.
And there is no difference between International Law and State Law. As per Kelson both
laws apply to the individual and they are for the individual.

Criticism

The view taken by the Kelson is more logical and practical. So far as the practice of the
state is a concerned, it is seen that the primary concern of international law, is with the
rights and duties of the states.
It can be seen, certain treaties have been entered into which have conferred certain rights
upon individuals. As per International Court of Justices, statute, though States can be
parties to the international processing, a member of other international instruments have
recognised ready procedural capacity of the individual. There are number of examples
wherein international law applies on individual not only mediately but also directly. It is
wrong to say that pirate, slave,etc are only object of International Law.
Philips C. Jessup , has taken the view that although individual possesses number of rights
under International Law , in most of the cases claim on his behalf can be brought only by
the state whose National he is. It is an elementary principal of international law that state

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 is entitled to protect its subjects when injured by the acts contrary to international law
committed by another states.

3. Functional Theory (States, Individuals and some non-state entities are subjects of
International law)
The jurists with a moderate view criticize both of the above theories. These Jurists believe
that States, Individuals and certain non-state entities are subjects of international law. Now,
Individuals got right even against the states. An example of this is the European
Convention on Human Rights in 1950. Under International Covenants on Human rights
1966, it is held that individuals can claim rights directly under international law. In some
cases, non-state actors like Colonies and Protectorate states are treated as subjects of
international law.
The reason in support of this view is as under
1) In present times, several treaties have conferred upon individual certain rights and
duties, for example International Covenant on human rights.
2) Permanent Court of Justice in Danzing Railways official case, 1928, held that if any
treaties the intention of the parties is to enforce certain rights upon some individuals, then
International Law will recognise such rights and enforce them.
3) Geneva Convention on Prisoners of War 1949, has conferred certain rides upon the
Prisoners of law.
4) The Nuremberg and Tokyo tribunals laid down the principle that International Law may
impose obligations directly upon the individuals.
5) The Genocide convention, 1948 has imposed certain duties upon the individual and
persons guilty of the crime of genocide maybe punished.
6) A new trend has started in the international field under which some rights have conferred
upon individuals even against the States. for example, European convention on human
rights,1950, International convention on human rights 1966, optional protocol, by which
an individual who is the victim of the violation of human rights, May send petition
regarding violation of human rights by his own state to the United Nations Commission on
Human rights.
7) It is now agreed that international organisations are also the subject of international law.
United Nation is an international person under international law and it is held by
International Court of Justice that United Nation is a subject of international law and
capable of possessing rights and duties and it has capacity to maintain its right by bringing
international things.
8) The law-making treaties in respect of international criminal law, have imposed certain
obligations upon the individuals, for example narcotic drugs convention, 1961, Hague
conversation of suppression of unlawful Seizure of aircraft 1970.
Thus, the states are not only the subjects of international law. There is no doubt that states
are still the main subject of international law and most of the part of international law
concerns with the conducts and relationship of state with each other, but in view of the
developing and changing character of the International Law, International organisations
and some non-state entities individuals are also the subject of international law. It is

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apparent from the above discussion that the position of subjects of international law has
greatly changed with the passage of time. Originally, sovereign States were the only actors
in the international community, but in present century new non state entities such as
international organisations and Institutions and individuals have been given the status and
rank of international legal subjects.

International Organizations as subjects of International Law

The advent of international organizations in the 20th Century is having immense
significance. There are different types of International organizations, some are Global like
the United Nations and others are regional like the African Union

Individuals as subjects of International Law

Modern states practices have accepted in a limited way that Individuals have international
legal personality. This position of the individual is not equivalent to the states; still,
individuals have got legal personality due to many reasons. Individuals have got various
rights at International law, which gives them the confidence to be a part of it. The Universal
Declaration of Human rights, 1948, gives various rights to individuals at an international
forum.

Conclusion
Today in modern times, states are not the only subjects on international law. They are still
the main subjects but in changing character of international law, international
organizations, individuals and certain non-state entities got the status of subjects in
International Law. Now Individuals can enforce their rights in certain capacity against the
states. Though, there is a wide gap which exists between the rights of the states and
individuals at the other end.

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