UNIT -I

Basic Aspects of International law

Origin
 The term “ International law” was first
coined by Jeremy Bentham in 1780 which
corresponds to French and German term “
Droit International” or “droit des gens”
 “ Internationales Recht” or “ Volkerecht”
 Italian Spanish term – “ Diritto
internazionale” and “ Derecho
international”
Different Titles and Names of
International Law
 Law of nations
 Universal Law ( Jus gentium)
 International Public Law
 The law between Powers
 Inter- State Law ( Jus intergentes)
 The law of the community States
 Transnational Law
Public international law ?

 Example: Public international law includes,

among others, the law of the sea,
humanitarian law, international
criminal law, human rights law and
refugee law.
 Private international law exists because the

activities of private individuals go beyond

the borders of their county of nationality.
For example, private international law will
deal with a cross-country divorce
settlement.
 The European Union (EU) is one of the
world's most prominent international
organisations that uses a supranational
legal framework. The European Court of
Justice has supremacy over all the
individual countries' courts when it comes
to applying EU law.
 It generally applies to nations rather than
individuals, but it can also apply to
international organisations such as the
European Union.
 International law is not binding but is based on
the concept of “agreement must be kept”,
from the Latin pacta sunt servanda. Countries
typically abide by it through consent in the
knowledge that doing so is mutually beneficial,
and not doing so, may lead to economic,
diplomatic, or military consequences.
 The International Court of Justice (ICJ) is
the United Nations body that supports
countries to settle disputes based on
international law. For the ICJ to have
jurisdiction over a dispute, all countries
involved have to consent to it.
 If consenting countries do not abide by the

recommendations of the ICJ, then the case

will go to the United Nations Security
Council for enforcement.
Defintion
 International Law, with whatever the name
it is called , is the law governing the relation
of States inter se.
Hans Kelsen:
 International law or the Law of Nations is

the name of a body of rules which

according to the usual definition regulate
the conduct of the states in their relations
with one another.
 Alf Ross
International law is the body of legal rules
binding upon States in their relations with
one another.
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 soon came into
existence.
 At the beginning of the 17th century, the
great multitude of small independent states,
which were finding international lawlessness
intolerable, prepared the way for the
favorable 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

equality of all states.
HISTORICAL
DEVELOPMENT
 The essential structure of international law was mapped
out during the European Renaissance, though its origins
lay deep in history and can be traced to cooperative
agreements between peoples in the ancient Middle East.
A number of pacts were subsequently negotiated by
various Middle Eastern empires. The long and rich
cultural traditions of ancient Israel, the Indian
subcontinent, and China were also vital in the
development of international law. In addition, basic
notions of governance, of political relations, and of the
interaction of independent units provided by ancient
Greek political philosophy and the relations between the
Greek city-states constituted important sources for the
evolution of the international legal system.
 The development of international law both its
rules and its institutions is inevitably shaped
by international political events. From the end
of World War II until the 1990s, most events
that threatened international peace and
security were connected to the Cold War
between the Soviet Union and its allies and
the U.S.-led Western alliance. The UN Security
Council was unable to function as intended,
because resolutions proposed by one side
were likely to be vetoed by the other.
 The growth of international law came
largely through treaties concluded among
states accepted as members of the "family
of nations," which first included the states
of Western Europe, then the states of the
New World, and, finally, the states of Asia
and other parts of the world. The law
making conventions of the Hague
Conferences represent the chief
development of international law before
World War I.
 The nuclear age and the space age have led to new
developments in international law. The basis of space law
was developed in the 1960s under United Nations
auspices. Treaties have been signed mandating the
internationalization of outer space (1967) and other
celestial bodies (1979). The Law of the Sea treaty (1982)
clarified the status of territorial waters and the
exploitation of the seabed. Environmental issues have led
to a number of international treaties, including
agreements covering fisheries (1958), endangered
species (1973), global warming and biodiversity (1992).
Since the signing of the General Agreement on Tariffs and
Trade (GATT) in 1947, there have been numerous
international trade agreements.
 According to Oppenheim, International Law
is law in proper sense because:-
 1. In practice International Law is

considered as law, therefore the states are

bound to follow them not only from moral
point of view but from legal point of view
also.
 2. When states violate international law
then they do deny the existence of
international law but they interpret them in
such a way so that they can prove their
conduct is as per international law.
Objectives of International
Law
 To ensure peace and security in the world.
 To resolve any dispute in peaceful manner.
 To co-operate with each other, to strive for the better
and brighter future of human kind.
 Disarmament of weapons of mass destruction especially
nuclear and building trust between nations through
confidence building measures.
 Taking collaborative effort to solve global problems such
as terrorism, climate change, refugee crisis etc.
 International law emphasizes on implementation of
international treaties and conventions in right manner.
Major Differences between Private
and Public international Law
 Public international law is more important than private
international law.
 Public international law deals with States and on the other
hand, private international deals with individual.
 Public international law is similar for all the countries,
while private international law varies from one country to
another.
 Public international law is formulated by international
organizations, based on customs and treaties, while
private laws are framed by legislature of respective
nation.
 Implementation of public international law is quite
intricate task as compared to the private international law.
Sources of International
Law
 According to Starke:
The material source of international law
may be defined as the actual materials from
which international lawyer determine the
rules applicable to given situation.
Important sources of international law
are as follows:
1.Treaties and Conventions
Treaties and conventions at global level are
most important sources of international law.
According to Article 2 of the Vienna Convention
on the law of treaties, 1969, A treaty is an
agreement whereby two or more States
establish or seek to establish relationship
between them governed by international law.
2.International Usage and Customs

 Article 38(b) of the Statute of International

Court o Justice recognises 'international custom,
as evidence of general practice accepted as
law', as one of the sources of international law.
During 19th and 20th centuries, most of
customary sources of international law have
been codified into treaties and conventions,
moreover many of them are gradually displaced
by the treaty. However, still customary law are
playing significant role in the international law.
3.Charter of the United
Nation


The UN Charter is soul of functioning of the

world's biggest organisation. All the
member states are obliged towards the
provision of charter. At present, it is the
important source of international law
enacted by the UN.
4.General Principle of Law
Recognised by Civilised State


It is also an important source of

international law. The general principle of
law means those rules or standards, which
are repeated over time and are recognised
by international community. According to
international organisation, some of the
general principles of law are good faith,
responsibility, prescription, res judicata,
estoppel, subrogation, etc
5.Judicial Decision


Judicial decisions of International Court of

Justice and Arbitral tribunals have also acted as
a source of international law. Article 59 of the
statute of the International Court of Justice
provides that the decision of the court will have
no binding force except between parties and in
respect of that particular case. However,
decision can establish new precedent and
international organisation and States can enact
law following the interpretation of judgment.
6. Equity and Justice


Equity and justice are the foundations of

international law. The purpose for which
international laws were enacted was to
ensure equity and justice at global level. In
the Barcelona Traction case, Sir Gerald
Fitzmaurice emphasised the need for a body
of rules and principle of equity in the field of
international law.
7.Decision or Determination of the
Organ of International Institution
 Integral organ of the UN such as the
General Assembly have strategic and policy
making decisions which are followed by the
member nations. Many inter-governmental
organisations also known as specialized
organs, are also sources of international
law.
Theories of the relationship between International law and Municipal law

 Following are theories about the

relationship between international law and
municipal law.
 Monistic theory.
 Dualistic theory.
 Specific adoption theory.
 Transformation theory.
 Delegation theory.
 Monistic theory:
 According to this theory all laws as a single

unit composed of binding legal rules.

Keslson, wright, and Duguit are chief
exponents of this theory. According to them,
international law and municipal law are
essentially one.
 Kelson's views:
 "Science of law is a unified field of

knowledge and the decisive point is

therefore whether or not international law is
true law. once it is accepted as a hypothesis
that international law is a system of rules of
a truly legal character, it was impossible to
deny that the two systems constitute part of
that unity corresponding to the unity of
legal system."
 Dualistic theory:
 This theory is also known as the Plurastic

theory. According to this theory

international law and municipal law are two
different laws. Tripel and Anzilotti are the
chief exponents of this theory. The subjects
of international law are states only while the
subjects of municipal law are individuals.
The source of municipal law is the will of the
state itself whereas the source of
international law is the will of states.
 Anzolotti's views:
 According to Anzolotti, there is a difference

between the fundamental principles of

international law and municipal law. the
basic principle of state law is that the state
legislation must be obeyed whereas the
basic principle of international law is Pacta
Sunt Servanda agreements between states
are to be respected.
 Specific adoption theory:
 The chief exponents of this theory are

Holland, Gray, and Lawrence. according to

them, international law cannot be directly
enforced in the field of municipal law.
international law is applicable in a state
only when municipal law permits its specific
adoption.
 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 international
law cannot find a place in national or
municipal law.
Practice of states regarding the application of
international law in the municipal sphere:

 I. Position in Britain:
 There is a distinction between the

customary rules of international law and the

law laid down by the treaties about their
operation in Great Britain the customary
rules of international law are treated as part
of British laws.
 (A) Regarding customary rules of
international law:
 The British courts treat customary rules of

international law as a part of their law.

 (B) Regarding treaties:
 Regarding treaties, British practice is based

on conventional principles governing the

relationship between the executive crown,
and parliament.
Position in U. S:

 (A) Regarding customary rules:

 The customary rules are treated as part of

U. S laws.
 (B) Regarding treaties:
 It is different from British practice. treaties

and state law are equal in force. in case of

conflict later in the date prevails.
III. Position in France:

 Rules of international law are considered

part of state law and treaties are
administered and applied by French courts.
IV. Position in Russia:

 According to the principles of the civil

legislation and civil procedure of the Soviet,
Union, in case of conflict between
international law and the Soviet Federal
statute the former shall prevail but if there
is a conflict between an international treaty
and the provisions of the Soviet Constitution
the latter shall prevail over the former.
V. Position in Pakistan:

 In Pakistan, courts are empowered to

interpret the rules of international law in the
municipal sphere.
 Case law
 Messers Najib Zarb L T D v/s Govt. of Pakistan
9PLD 1993 Karachi 93)
 Held:
 Municipal law must respect the rules of
international law. if there is no conflict the
international law shall prevail if there is
conflict the municipal law shall prevail.
Position in INDIA
 In India Courts are constant with the
dualistic approach. They are simply in view
that unless and until any law, treaty or
custom remains untransformed in the
legislation, the same cannot be enforced in
the court of law.
 The Supreme Court also made it clear that
international customs and norms which are
not contrary to the municipal law shall be
deemed to have been incorporated in the
domestic law. In the landmark case
of Vishakha v State of Rajasthan the
apex court clearly stated that if there is not
a law regarding any subject matter in Indian
law then the reference can be taken from
the customary International Law.
 Birma v State :
In this case the court stated that treaties
which are the part of international law do
not form the part of the municipal law
unless it is expressly incorporated by the
legislative authority. In the mentioned case
the treaty remained a treaty only and no
action was taken to incorporate the same in
municipal law. So, the treaty cannot be
regarded as a part of municipal law.
 PUCL v Union of India:
In April 2001, the PUCL approached to Supreme Court on
behalf of the starving people in a writ petition on the right
to food. This case represents a great advance in the
justice of the rights to food as human rights, as the
orders of the court in this case have transformed
the policy choices of the government into
enforceable and justiciable rights of the people. The
facts were such that the grains were kept outside while
the non perishable goods were put into godown. Despite
the fact that poors were unable to purchase and they were
starving, though the food grain was available. After the
court looked into the matter of the case poor could get the
grains at subsidized rate and several acts came into force.
4. Relations between international law and
municipal law:

 I. As to relation:
 International law deals with the relations of

sovereign states with each other.

 Municipal law deals with the rights and

duties of individual subjects.

 II. As to application:
 International law applies to all states.
 Municipal law applies to one state.
 III. As to enforcement:
 International law has no power and

machinery for enforcement.

 Municipal law has power and machinery for

enforcement.
 IV. As to jurisdiction:
 International law involves foreign elements

as to jurisdiction.
 Municipal law does not involve foreign

elements as to jurisdiction.
 V. As to conflict of laws:
 International law does not involve a conflict

of the system of laws.

 Municipal law may involve a conflict of laws.
 VI. As to source:
 International law is not out come of

legislation of sovereign authority.

 Municipal law is out come of legislation by

the national parliament.