Introduction

DEFINITION OF INTERNATIONAL LAW
•In the words of WHEATON,
“International law consists of those rules of
conduct which reason deduces as
consonant to justice from the nature of the
society existing among independent
nations; with such definitions and
modifications as may be established by
general consent”.

•OPPENHEIM Defines International Law as,
“Law of nation or international law is the
name for the body of customary and
conventional rules which are considered
legally binding by civilized states in their
relation with each other, within a community
which by common consent of this community
shall be enforced by external power”

•Public International Law has been defin
ed by J.G. STARKE 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."

•R.N. GILCHRIST maintains, “International law is
the body of rules which civilized states observe in
their dealings with each other. These rules being
enforced by each particular state according to its
own moral standard or convenience”.
•In the words of T. J. LAWRENCE, “rules which
determine the conduct of the general body of
civilized states in their mutual dealings”.

INTERNATIONAL LAW AS A WEAK LAW
•The popular belief is that international law is not a real law.
•It has to always justify its legitimacy and reality
•It is often challenged on the following grounds:
• By hypothesis and definition, there can be no law governing sovereign
states
• There can be no international law because there can be no international
legislature to make it
• No international executive to enforce it
• No effective international judiciary to develop it or to resolve disputes

•According to john AUSTIN, law is a command of
a sovereign, enforceable and enforces as such.
•And he points out that there is no sovereign
political authority having legislative powers as
in his time the rules of international law were
almost exclusively customs.
• Thus, as per him, the three essentials are missing:
• Command (Legislation)
• Duty
• Sanction (Judiciary)
•He concludes that “international law is not a true
law but positive international morality only,
analogous to rules binding a club or society”

According to BENTHAM,
“International law is international morality or ethics,
courtesy or convention in the social sense of the word,
comity as distinguished from rule of law”
HOOBES & PUFENDORF have also
questioned the true legal
character of international law

INERNATIONAL LAW AS NOT A WEAK LAW
• ACCORDING to STARKE, “Austin’s definition is narrow, contracted
and unbending. He has disregarded law in various phases of its
growth. Law is not a cut and dried system; it is an organism and
result of organic growth.
• Austin’s concept of law is incomplete as he totally ignored
customs. During his time, international law existed in the form of
customary rules and international treaties were unknown and
therefore, he treated international law as a set of morals only.
• States which participate in treaty making process may be called
“international legislature” and resulting law making treaty be
called as “international legislation”

• According to KELSON, “….These norms are created
by custom, constituted by actual behaviour of the
‘states’. These norms are interpreted as actual
legal norms binding the states, because a basic
norm is presupposed which establishes custom
among the sates as a law creating fact….”
• International law is binding in whatever form it
may exist- conventional or customary.
• He explains that the reason why customs are
binding is that there is an antecedent and still more
fundamental legal principle to the effect that states
have a duty to go on behaving as they have
customarily behaved.

•SIR F. POLLOCK rightly observes:
“ If international law were only a kind
of morality, the framers of state papers
concerning foreign policy would throw
all strength on moral argument. But as
a matter of fact, this is not what they
do. They appeal not to the general
feeling of moral rightness, but to
precedents, to treaties and to opinions
of specialists.”

COMMAND
(Legislation)
• Customs
• Treaties
• Conventions
• Covenants
• Protocols
• Charters
• Declarations
• Resolutions
DUTY
(Execution)
• Binding over
states due to
conventions and
customs
• Article-38, ICJ
Statute
• Article-2, UN
Charter
• Helsinki
Declaration, 1975
SANCTION
(Judiciary)
• Article-5, UN
Charter
• Article-6, UN
Charter
• Article-39, UN
Charter
• Article-41, UN
Charter
• Article-42, UN
Charter
• Article-27, UN
Charter
• ICJ, ICC, PCIA etc.

•INTERNATIONAL LAW IS OF VERY RECENT ORIGIN.
THE DEVELOPMENT OF INTERNATIONAL LAW IS THE
RESULT OF THE DEVELOPMENT OF INTERNATIONAL
RELATIONS. IN HIS FAMOUS BOOK, INTERNATIONAL
LAW’, PROFESSOR T.J. LAWRENCE, WHO HAS MADE A
SPECIAL STUDY OF ITS DECENT DEVELOPMENTS, HAS
DIVIDED IT INTO THREE PERIODS.

FIRST PERIOD
• The first period
begins with the
origin of the
European
civilization and
lasts till the
beginning of the
Roman Empire.
SECOND PERIOD
• The second
period begins
from the Roman
Empire and
lasts to the
Reformation.
THIRD PERIOD
• The third
extends from
1648 up to the
present time.

FIRST PERIOD:
• India was aware of much of international law
when the rest of the world was in uncivilized
stage. References have been made to these
rules in ‘Kautilya’s Arthshastra’.
• For example, in the post-vedic period there
existed certain rules according to which wars
were declared, and waged, treaties were
renounced, alliances were negotiated and
ambassadors were accredited ambassadors
were not to be killed, because it were they
who gave the message of their rulers to the
foreign rulers.

• They were never convicted whether disclosed
good messages or bad ones. Indian rulers
observed a regular code of war. References
have been made to these rules in the
mahabharata and in other books of ancient
times.
• In the third century b.C., Rhodes, a famous city
of greece, became a very great trade center.
The traders of rhodes started following certain
rules which later on began to be observed by
the other states of greece. These rules are
known as maritime code. They also recognised
“the law of mankind” which established a
system of the protection of envoys, obligations
of alliances and sanctity of treaties

•With the dawn of roman empire, rome
established its relations with the alien states.
They also developed a system for dealings with
the alien states. This system is known as jus
gentium which means law of nations. The jus
gentium is the real contribution of rome in the
development of international law.
•The jus gentium was a code of rules applied to
the dealings with the citizens of different nations.
This code of rules is very similar to the
international law. This is the greatest contribution
of rome to the development of international law.

SECOND PERIOD:
• There was no development in the international law
so long as the roman empire existed. The theory of
common superior (supreme) over all political units of
the world was popular. After the fall of roman
empire feudal states emerged. The feudal rulers
protested against the supremacy of the church.
• The concept of territorially independent state was
brought in with the advent of feudal system. The
supremacy of pope was questioned.
• Pope’s interference in the internal matters of different
states annoyed the european rulers. The rulers
abolished the authority of pope and organized
nation-states.

• Wars were declared by these nation-states against
one another. The Church laid stress to carry out
these wars in human ways.
• Ayala, the judge of Spanish military court; Mr.
Genteel, a prominent figure of italy; Suarge, the
famous jurist of spain and the political thinkers
belonging to the latter half of sixteenth century
maintained that the dealings between different states
should be regulated by the law of reason.
• States should observe the law of reason while
dealing with other states on international level.

THIRD PERIOD:
• The third period extends from the date of
reformation up to the present time. Hugo
grotius’s book, “on the law of war and peace”
(1625), is a notable contribution of this period.
• This book reflects upon the cruelty of wars
fought in sixteenth and seventeenth centuries.
• Hugo grotius, the dutch scholar formulated the
doctrine of international law and analysed
international practice in his book.
• International law owes its birth to grotius and
is popularly known as ‘father of the law of
nations’

•He laid stress on the two fundamental doctrines:
(A) all states are equally sovereign and independent.
(B) the jurisdiction of the state is absolute over its entire area. His book
“on the law of war and peace” deals in detail with the international
laws of war and peace. References have been made to these laws of
war and peace in the ‘Peace Westphalia’ (1648) which ended thirty
years’ war.
•International law of which we are aware in modern times is
essentially the product of this period. Wheateon and Oppenheim are
more prominent among the political thinkers who have expressed
their views on international law.

Peace Of Westphalia
•Peace of westphalia, european settlements of 1648, which brought to an
end the eighty years’ war between Spain and the Dutch and
the German phase of the thirty years’ war. The peace was negotiated,
from 1644, in the westphalian towns of Münster and Osnabrück. The
spanish-dutch treaty was signed on january 30, 1648. The treaty of october
24, 1648, comprehended the holy roman emperor Ferdinand III, the other
german princes, France, and Sweden. England, Poland, Russia, and
the ottoman empire were the only european powers that were not
represented at the two assemblies. Some scholars of international
relations credit the treaties with providing the foundation of the modern
state system and articulating the concept of territorial sovereignty.

THEORIES ON THE BASIS OF INTERNATIONAL LAW
GROTIUS
THEORY
Natural law as
independent
source of
international
law apart from
customs and
treaties
Grotius’ law of
nature
remained
widely accepted
for more than
200 years
(17th century)
NATURALISM
(e.g. HLA Hart)
Denies any
positive law
of nations
Maintains that
law of nations
is only part of
natural law
(17th century)
POSITIVISM
(e.g. Rachel,
Moser)
Positive law of
nations is the
outcome of
custom or
international
treaties
Had not much
influence in
the 17th
century
REVIVAL OF
NATURALISM
Contemporary
sociological
theories tend
towards
revival of
natural law
Both world
wars lead to
its revival
(20th century)

•The scope of international law is extended to all the
free and independent nations.
•According to International Law all the states whether
they are small or big enjoy the same status.
•“No principle of law”, said Chief Justice Marshall, “is
universally acknowledged than the perfect equality of
nations. Russia and Geneva have equal rights. It results
from this equality that no one can rightfully impose a
rule on others”.

•Contents:
Following is the more comprehensive division of
the contents of international law:
(1) laws governing states in times of peace.
(2) laws governing states in times of war.
(3) laws governing states in the relation of
neutrality.

LAWS RELATING TO PEACE
•Laws of peace include the rights and obligations concerning
independence and equality of the states.
•They also include maritime code and navigation laws. They
are the rules of intercourse of states.
•They include the rights and duties of officials attached to
foreign offices.
•They include privileges and facilities of the diplomatic
representatives, organization and procedure international
conferences and nature and method of treaty making, etc.

LAWS IN TIME OF WAR
•Rules of war form the large portion of international law.
•The rules of war include the declaration of war, the classification of
wars, laws and customs of war on land, sea and air, the after-effects
of war, the dealings with war prisoners.
•According to the laws, it is quite unconventional to use poisonous
gases and bacteria’s in the warfare and to bombard the civil areas.
•These rules prohibit the states, engaged in war, from seeking
foreign military assistance and from mining the ports.

LAW GOVERNING STATES IN THE RELATION
OF NEUTRALITY
•The laws of neutrality embrace the duties of
belligerent states of neutral states, duties of
neutral states to belligerent states, neutral
trade, commerce, contraband and blockade,
etc.

INTERNATIONAL LAW
• INTERNATIONAL LAW IS A SYSTEM OF
TREATIES AND AGREEMENTS BETWEEN
NATIONS THAT GOVERNS HOW
NATIONS INTERACT WITH OTHER
NATIONS, CITIZENS OF OTHER
NATIONS, AND BUSINESSES OF OTHER
NATIONS.
MUNICIPAL LAW
• MUNICIPAL LAW IS THE NATIONAL,
DOMESTIC, OR INTERNAL LAW OF
A SOVEREIGN STATE DEFINED IN
OPPOSITION TO INTERNATIONAL
LAW. MUNICIPAL LAW INCLUDES
STATE, PROVINCIAL, TERRITORIAL,
REGIONAL, OR LOCAL LAW.

INDIVIDUALS
MUNICIPAL
LAW
INTERNATIONAL
LAW

THEORIES
MONISM DUALISM TRANFORMATION DELEGATION

•In principle, international law operates only at the
international level and not within domestic legal
systems—a perspective consistent with positivism,
which recognizes international law and municipal
law as distinct and independent systems.
•Conversely, advocates of natural law maintain that
municipal and international law form a single legal
system, an approach sometimes referred to
as Monism.

•A principle recognized both in international case law
(e.g., The Alabama claims case between the United
States and the United Kingdom following the American
civil war) and in treaties (e.g., Article 27 of the 1969
Vienna Convention on the law of treaties) is that no
municipal rule may be relied upon as a justification for
violating international law.
•The position of international law within municipal law is
more complex and depends upon a country’s domestic
legislation.

MONISM
• Monists assume that the internal and international legal systems
form a unity.
• International law does not need to be translated into national law.
• The act of ratifying the international law immediately incorporates
the law into national law.
• A judge can declare a national rule invalid if it contradicts
international rules because, in some states, the latter have priority.
• In other states, like in Germany, treaties have the same effect as
legislation, and by the principle of lex posterior, only take
precedence over national legislation enacted prior to their
ratification.

CONT..
• In its most pure form, monism dictates that national law that
contradicts international law is null and void, even if it predates
international law, and even if it is the constitution.
• It maintains that the subject of the two systems of law namely,
international law and municipal law are essentially one in as
much as the former regulates the conduct of states, while the
latter of individuals.
• 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 of individuals.

DUALISM
•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 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.

CONT..
•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 are not expressly or tacitly received
into the other system.

CONT..
• 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. The
latter is therefore a weak law

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.

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 assumes the primacy of international legal order but fails to
explain the relations existing between municipal and international
laws.

Introduction

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Introduction