COU
URSE – I

“
“PUBL
LIC IN
NTER
RNATIIONA
AL LAW &
HUUMAN
N RIG
GHTS””
(CODE : (BL6601)

Unit I: Intern
national Law – Definition, Naature and historical
h d
developmennt of
Intern
national Law,
L Sourcces, Treatisse, Relatioon betweenn Int. Law and
Muniicipal Laww, Basis of Int. Law. Subjects
S off Int. Law.

Unit II:: Statee- State Soversigrrity, State Territoories andd jurisdiction,

Recoognition, Successionn, Intervvention, Nationality
N y, Diplom
matic
Agen nts, Extradiition and Asylum.
A

Unit IIII: Lawss of war, War-Crime

W es and Criimes againnst- peace, Settlemennt of
Dispu
utes, hijackking narcootics, Treattment of Aliens,
A Eneemy Charaacter,
Contrraband, Bllockade, Sttate Jurisdiiction on Terrorism.
T

Unit IV
V: Uniteed Nationss – Constittution, Powwer, functiion of Uniited Nationns &
Humman Right00 Universsal Declarration on Human Rights, 1948,
Intern
national Covenant
C on Hum man Righhts, Humaan Rightss &
Terro
orism, International Human
H Rigght Commiission.

Unit V:: Humman Rightss in Indiaa, Protectioon of Huuman Righhts Act 1993,
Impleementationn of Human Rights through judicialj prrocess, rolle of
courtts Supremee Courts, High
H Courtts, and other Statutarry Commisssion
–Humman Righhts, Wom men’s Minnority annd Backw ward class –
Consstitution, Poowers, Funnctions andd Procedurre.

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Book Recommended :

1. J.G. Strake : International Law

2. R.G. Hingorani : Modern International Law

3. S.K. Kapoor : International Law

4. M.P. Tondon : International Law

5. H.O. Agarwal : International Law and Human Rights

6. Dr. Gurmukh Sigh (Hindi): Commentary on Protection of Human

Rights Act, 1993

7. D.D. Basu : Human Rights in Constitutional Law.

8. V.R. Krishna Iyer : Human Rights and Law

9. Nagendra Singh : Human Rights & International Law

10. Lauter Pauchte : International Law & Human Rights

2 
 
 

NATURE AND DEVELOPMENT OF INTERNATIONAL LAW

INTRODUCTION

Every society, whether it be large or small, powerful or weak, has created

for itself framework of principles within which to develop. What can be done, what
cannot be done, permissible acts, forbidden acts, have all been spelt out within the
consciousness of that community.

Law is that element which binds the members of the community together in
their adherence to recognised values and standards. It is both permissive in
allowing individuals to establish their own legal relations with rights and duties, as
in the creation of contracts, and coercive, as it punishes those who infringe its
regulations. Law consists of a series of rules regulating behaviour, and reflecting,
to some extent, the ideas and preoccupations of the society within which it
functions. And so it is with what is termed international law, with the important
difference being that the principal subjects of interactional law are nation-states,
not individual citizens. However, this particular notion has changed due to the
dynamics and myriad changes in the realm of international law.

International law denotes norms to regulate relations, transactions and

actions which transcend national boundaries. In the contemporary state of world
affairs this branch of law has assumed immense practical importance. The
lightning means of transport and almost instant communication have bridged the
gaps of time and space; bringing, thus, the peoples of this planet closest ever to
each other. Constraints of development and consequent industrialization have led
to the increasing interdependence of nation-states. The ever growing contacts have
3 
 
 

opened unprecedented avenues of cooperation as well as of conflict. The demands

of "steady and smooth intercourse between states as well as individuals have added
to the significance-nay indispensability-of rules, which we know of today, as
international law.

International law itself is divided into conflict of laws (or private

international law as it is sometimes called) and public international law (usually
just termed international law). The former deals with those cases, within particular
legal systems, in which foreign elements obtrude, raising questions as to the
application of foreign law or the role of foreign courts. By contrast, public
international law is not limply an adjunct of a legal order, but a separate system
altogether, and it is this field that we are concerned with in our endeavour to
understand the changing geo-political scenario world over.

Public international law covers relations between states in all their myriad
forms, from war to satellites, and regulates the operations of the many international
institutions. It may be universal or general, in which case the stipulated rules bind
all the states (or practically all depending upon the nature of the rule), or regional,
whereby a group of states linked geographically or ideologically may recognise
special rules applying only to them, for example, the practice of diplomatic asylum
that has developed to its greatest extent in Latin America. The rules of
international law must be distinguished from what is called international comity, or
practices such as saluting the flags of foreign warships at sea, which are
implemented solely through courtesy and are not regarded as legally binding.

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The study of law of peace entails the characteristics of the international legal
system and the historical and theoretical background necessary to a proper
appreciation of the part to be played by the law in international realm.

Definition of International Law

British jurist, Jeremy Bentham used the words 'international law' for the first
time, in 1780. Since then, these words have been used to denote the body of rules
which regulate the relations among states.
Modern European system has prominent contribution in determining
international law, though it can be traced to ancient Greece, Rome and India as
well.
Oppenheim's Definition: In 1905, Prof. Oppenheim defined interna-tional
law as follows,
“Law of nations or international law is the name for the body of customary
and conventional rules which are considered legally binding by civilized states in
their intercourse with each other.
This definition by Oppenheim has become obsolete and inadequate. It has
been subject to the following criticisms-

1) This definition takes into account the relations of 'states' only. But it is
now generally recognized that not only states but international
organisations and institutions also have rights and duties under
international law. The scope of international law has widened.
2) The use of the term 'civilized states' by Oppenheim is also severely
criticised. In not too distant past, the western states regarded only the
'Christian States' as civilized states. For e.g., although China has 5000
years old culture, she was not included in the group of civilized nations.
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At present there are as many as 185 members of the UN which include

Christian as well as non-Christian states. The term 'civilized states' was
thus deleted in the later editions of Oppenheim's book.
3) It is no longer possible to regard international law as governing relations
solely between states. At present it also governs relations between states
and international organisations, between international organizations and
private persons, between states and private persons.
4) The definition lays down that the rules of international law derive only
from customs and treaties, but the Article 38 of the Statute of
International Court of Justice mentions ‘General Principle of Law
recognised by the civilized nations' as third source of international law to
be used while deciding on international dispute.
5) International law is a dynamic and living law as against Oppenheim's
'body of rules' which denotes international law as static or fixed.
6) Oppenheim's definition is a qualified one. For e.g., the words ‘legally
binding’ connote positive character which is diffused and diluted by the
subsequent words 'by civilized states'. Oppenheim does not say that these
rules are ‘legally binding’, but that they are considered so.
In the ninth edition of Oppenheim's book (1992) the term' International Law'
has been defined differently after taking into account the new developments.

“International Law is the body of rules which are legally binding on States
in their intercourse with each other. These rules are primarily those which govern
the relations of States,' but States are not the only subjects of international law.
International organisations and to some extent, also individuals may be subject of
rights conferred and duties imposed by International law ... But this definition is
silent regarding 'general principle of law' recognized by civilized nation.
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Brierly's definition: “The law of nations or international law may be defined

as the body of rules and principles of action which are binding upon civilized states
in their relations with one another.”

Gray's definition: “International law or the law of nations is the name of a

body of rules which according to the usual definitions regulate the conduct of
states in their intercourse with each other.”

Starke's definition: “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/organisations, their relations with each other, and their relations
with States and individuals; and
b) certain rules of law relating to individuals and non-state entities so far as the
rights or duties of such individuals and non-state entities are the concern of
the international community.”

This definition does not stand correct for al1 times to come, as and if an entity
not enumerated under it ever comes within the scope of international law with the
passage of time, the definition would again be subjected to criticism.

Dr. Schwarzenberger's definition: “International law is the body of legal rules

which apply between sovereign states and such other entities as have been granted
international personality.”

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This definition of international law, among others appears to be fairly

satisfactory in that, besides that of Brierly, it lays emphasis on the growth and
evolution of entities, such as the UNO, which have been declared to be possessed
of legal personality.

Philip C. Jessup's definition: “International law or the law of nations must

be defined as law applicable to States in their mutual relation with other states”. He
further adds, “International law may also.., be applicable to certain
inter-relationships of individuals themselves, where such inter-relationships
involve matter of international concern.”

S.S. Lotus case: In this case, international law was defined as follows,
“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 of the achievement of common aims.
Restriction 'upon the independence of states cannot therefore be presumed.”

Torsten Gill: Professor Torsten Gill defines International Law in the

following words: “The term ‘International Law’ means the body of rules of law
which apply within the International Community or Society of States.” This
definition presupposes that States constitute a society and that this society has a
legal system, International Law or the Law of Nations. This is another way of
saying that International Law exists, that there is a body of rules, having the
character of rules of law, which regulate the relations of States inter se.

8 
 
 

Hackworth: In the words of Hackworth: "International Law consists of a

body of rules governing the relations between States. It is a system of
jurisprudence which, for the most part, has evolved out of the experiences and the
necessities of situations that have arisen from time to time.
Queen v. Keyn: In the Queen v. Keyn, Lord Coleridge, C.J., defined International
Law in the following words: “The law of nations is that collection of usages which
civilized States have agreed to observe in their dealings with one another:”

West Rand Central Gold Mining Ltd. Co. v. King: In this case the Court
observed, International Law may be defined as "the form of the rules accepted by
civilized States as determining their conduct towards each other and towards each
other's subjects.

Hall: In the words of Hall: International Law consists of certain rules of

conduct which modem civilized states regard as binding on them in their relations
with one another with a force comparable in nature and degree to that binding the
conscientious person to obey the laws of his country and which they also regard as
being enforceable by appropriate means in case of infringement.”
Kelsen: According to 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 intercourse with one another.”

Charles G. Fenwick: In the words of Fenwick: “International law may be

defined in broad terms as the body of general principles and specific rules which
are binding upon the members of the international community in their mutual
relations”.

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Fenwick's definition is better than all the above-mentioned definitions

because instead of the word ‘states’ he uses the words 'members of the
international community' which include states, international institutions,
individuals and non-state entities. He also uses the term 'general principles', His
definition is very short but pregnant with meaning and takes into account the
changes that have taken place after the Second World War. Indeed it is an
appropriate and correct definition of international law.

Whiteman: Whiteman defines International Law in the following words:

“International law is the standard of conduct, at a given time, for states and other
entities subject thereto.”
This is a very briefbut adequate definition. The words “other entities subject
thereto" may include international organisations, individuals and non-State entities.
The words used in the definition are apparently very simple but they are pregnant
with meaning and very vast in their scope. Moreover, Whiteman has also
emphasised the dynamic aspect of international law. She writes, "International law
is, more or less, in a continual state of change and development. In certain of its
aspects the evolution is gradual in others it is avulsive.”

Conclusion: On the basis of the above definitions it may be concluded that

international law is a body of rules and principles which regulate the conduct and
relations of the members of international commmunity. The contention that states
alone are subjects of international law is not only inconsistent with the changing
character of international law but has became completely obsolete and inadequate.

Thus, international law is constantly evolving body of norms that are

commonly observed by the members of international community in their relation
10 
 
 

with one another. These non11S confer rights and impose obligation upon states
and, to a lesser extent upon international organizations and individuals.

Development of International Law

The present day International law may be said to be four hundred years old.
However, the roots of international law are found in the rules and usages which
were observed by different nations before the dawn of Christianity. The direct
contribution of Greeks and Romans to the development of international law is
relatively meagre. The conditions favourable to the growth of modem law of
nations in real sense started after 15th century when in Europe there began to
evolve a number of independent civilized States. The growth of independent States
led to the initiation of the process of formation of customary rules of international
law.
The science of modem international law owes its birth to Hugo Grotius,
whose work, De Jure Belli ac Pacis (The Law of War and Peace) appeared in 1625.
Grotius' work lent legal basis to many areas of international relations and therefore
he is popularly known as father of the law of nations. Grotius started from the law
of nature, since his intention was to find such rules of law of nations which were
eternal, unchangeable and independent of special consent of the single States.

Naturalists opined that there is no positive law of nations and maintained

that law of nations is only a part of law of nature. The positivists stated that
positive law of nations is the outcome of custom or international treaties.
The new international law is based on social interdependence and aims at
bringing what may be called international social justice.

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The attempts to codify international law have been made by private

individuals, learned societies and Governments. However, development of
International law through codification was not possible without the favourable
action of foreign offices and national legislatures.

The growing interdependence of the States, scientific and technological

revolution, growing concern for human rights and humanitarian principles have
given new dimensions to international law and have considerably widened its
horizons.

To sum up, there are many factors working towards the creation of
international law-technological developments, economic, political, sociological,
and stategir considerations, humanitarian impulses, interdependence of the world
and above all the interest of academicians. However there are still wide gaps in
international law but the international communities is making all possible
endeavours to fill these gaps.

Scope of International Law

Public international law establishes the framework and the criteria for
identifying states as the principal actors in the international legal system. As the
existence of a state presupposes central authority and jurisdiction over territory,
international law deals with the acquisition of territory, state immunity and the
legal responsibility of states in their conduct with each other. International law is
similarly concerned with the treatment of individuals within state boundaries.
There is thus, a comprehensive regime dealing with group rights, the treatment of
aliens, the rights of refugees, international crimes, rationality problems, and human
12 
 
 

rights generally. It further includes the important functions of the maintenance of

international peace and security, arms control, the pacific settlement of disputes
and the regulation of the use of force in international relations. Even when the law
is not able to stop the outbreak of war, it has developed principles to govern the
conduct of hostilities and the treatment of prisoners. International law is also used
to govern issues relating to the global environment, the global commons such as
international waters and outer space, global communications, and world trade.

Whilst municipal law is hierarchical or vertical in its structure (meaning that

a legislature enacts binding legislation), international law is horizontal in nature.
This means that all states are sovereign and theoretically equal. As a result of the
notion of sovereignty, the value and authority of international law is dependent
upon the voluntary participation of states in its formulation, observance, and
enforcement. Although there may be exceptions, it is thought by many
international academics that most states enter into legal commitments with other
states out of enlightened self-interest rather than adherence to a body of law that is
higher than their own. As D.W. Greig notes, “international law cannot exist in
isolation from the political factors operating in the sphere of international
relations.”

Breaches of international law raise difficult questions for lawyers. Since

international law has no established compulsory judicial system for the settlement
of disputes or a coercive penal system, it is not as straightforward as managing
breaches within a domestic legal system. However, there are means by which
breaches are brought to the attention of the international community and some
means for resolution. For example, there are judicial or quasi-judicial tribunals in
international law in certain areas such as trade and human rights. The formation of
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the United Nations, for example, created a means for the world community to
enforce international law upon members that violate its charter through the
Security Council.

Traditionally, States and the Holy Sea were the sole subjects of international
law. With the proliferation of international organizations over the last century, they
have in some cases been recognized as relevant parties as well. Recent
interpretations of international human rights law, international humanitarian law,
and international trade law have been marked by the inclusion of 'Corporations,
and even certain individuals.

Nature of International Law

Regarding the nature of international law there are two views. The
traditional view holds that international law is composed solely of rules governing
the relations between States only. Thus, the traditional view restricts the domain of
international law to the regulation of the conduct of States inter se. Those who hold
traditional view are Oppenheim, Brierly, Hall, T. Gill, Hackworth et.al. However
the modern view holds that international law is dynamic in nature. As to the
modern view, Fenwick’s definition of international law succinctly sums lip the
contemporary viewpoint. Others who have propounded similar views are Starke,
Korowicz, Whiteman et. al. Jessup and Kelsen's view lies between the traditional
and contemporary viewpoints. The dynamism of international law have expanded
the horizons of it and acquired for it completely new dimensions. There are various
factors which have lent dynamism to international law:
1. The movement of the international protection and promotion of human
rights

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2. The emergence of international institutions having international legal

personality
3. Several international Conventions.

International law can, therefore, no longer be adequately or reasonably defined

or described as the law governing the mutual relations of the States. International
law is the law of an organised world community, constituted on the basis of States
but discharging its community functions increasingly through a complex of
international and regional institutions, guaranteeing rights to, and placing
obligations upon, the individual citizen, and confronted with a wide range of
economic, social and technological problems calling for uniform regulations on an
international basis which represent a growing proportion of the subject matters of
the law. In short, international law is the standard of conduct, at a given time, for
States and other entities subject thereto.

International Law as ‘Law’

Is international law true law? This controversy is the most debatable

question regarding international law. The popular belief is that international law is
not really law. Critics have argued that there can be no international law since there
is no international legislature to make it, no international executive to enforce it
and no effective international judiciary to resolve disputes about it.

Austin's View
John Austin is regarded as one of the foremost critic of international law.

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According to Austin law is a command of sovereign, enforced by a superior

political authority, violation of which attracts sanctions. Thus there are three
essential elements in the Austin's definition of law namely command (of the
sovereign) duty (of inferiors) and sanction (in case inferiors commit breach of the
command). Austin's views about international law are coloured by his theory of
law in general. Referring to international law Austin points out that there is no
sovereign political authority having legislative powers as in his time the rules of
international law were almost exclusively customary. Accordingly he holds that
duties which international law imposes are enforced by moral sanctions; by fear on
the part of nations or by fear on the part of sovereigns. Austin therefore concludes
that international law is not true law but 'positive international morality' only,
analogous to the rules binding a club or society. This view can be summarised as
follows:
a) In International law there does not exist any determination by a superior
political authority, which is there in municipal law.
b) International law lacks an effective legislative machinery.
c) International law lacks sanction which according to the writers of this
persuasion is an essential element of law.
d) There is no such executive power in international law as may enforce the
decisions of the International Court of Justice and ensure the observance of
the provisions of the treaties.
e) International law lacks a potent judiciary.
f) Some writers call international law a quasi-law.

Bentham also looks at international law as international morality or ethics,

international courtesy or convention in the social sense of the word, comity as

16 
 
 

distinguishable from rule of law. Hobbes and Pufendorf have also questioned the
true legal character of international law.

Conclusion
International law has deficiencies and limitations. Its violations are more
frequent than the violations of many domestic laws. Nevertheless, the deficiencies
of international law are not critical. Instead of saying that the cup of international
law is half empty, it must be stressed that it is half full. Despite inadequacies in its
legislative method, international law has grown, developed and changed. If
international law is difficult to make, yet it is made; if its growth is slow, yet it
grows. If there is no judiciary as effective as in some developed national systems,
there is an International Court of Justice whose judgements and opinions, while
few, are respected. The inadequacies of the international judicial system are in
some measure reduced by other bodies; international disputes are resolved and law
is developed through a network of arbitrations by continuing or ad hoc tribunals.

Basis of International Law-Tbeories

The intellectual seeds of modern international law germinated in the 16th
and 17th centuries, when the influence of the Roman Catholic Church in
international affairs gradually weakened. Many early international legal theorists
were concerned with axiomatic truths thought to be reposed in natural law. Among
the early natural law writer, Francisco de Vitorio, Dominican professor of theology
at the University of Salamanca, examined the question of just war and Spanish
authority in the Americas. He did so while Spain was at the height of its power,
after the violent Spanish conquest of Peru in 1536.
(a) Grotius Theory: Central in the development of modem international law
was Hugo Grotius a Dutch theologian, humanist and jurist. In his principal work
17 
 
 

De jure Belli ac Pacis Libri Tres (“Three Books on the Law of War and Peace”,
1625), Grotius claimed that nations as well as persons ought to be governed by
universal principle based on morality and divine justice. Much of Grotius' content
drew from the Bible and from classical history Gust war theory of Augustine of
Hippo). Drawing also from domestic contract law, he also notes that relations
between polities were governed by jus gentium, the law of peoples, which had
been) established by the consent of the community of nations.

The central doctrine in his work was the acceptance of the ‘law of nature’ as
an Independent source of rules of the law of nations, apart from custom and
treaties. The Grotian law of nature was founded primarily on dictates of reason and
on the rational nature of men as social human beings. Grotius distinguished
between Jus Gentium (i.e., the customary law of nations which he called Jus
voluntarium) and Jus natural (i.e., law of nature concerning the international
relations of the States). .

(b) Naturalistic theory: Most of the jurists of sixteenth and seventeenth

century were of the view that International Law is based on the law of nature.
According to them there exists a system of law which emanates from God or
reason or morals. International Law, according to them, is based on this very
system. Prominent writers of this view are Grotius, Pufendorf and Vattel.
The view has been greatly criticised by the writers of the nineteenth century
on the ground that it is too vague.

(c) Positive theory: According to them only those principles may be

deemed as law which have been adopted with the consent of the States. The rules
of law are binding upon States therefore emanate from their own free will.
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Bynkershoek was the exponent who was of the view that the basis of International
Law is the consent of the States. The consent may be given by States either
expressly or impliedly. While express consent may be given by the conclusion of
treaties or the acknowledged concurrence of governments, consent may be implied
in the case of established usage, i.e., custom. Thus, custom and treaties by which
consent of a State is achieved are the basis of International Law. Unless and until a
State has given its consent to a particular rule of International Law it cannot be
regarded as binding on it. Martens and Anzilotti also share the above view.

The consent theory has been criticised by many writers on several grounds.
Firstly, all the rules of International Law are not derived from customs and treaties.
Some of them derive from the general principles of law recognised by civilized
nations. International Court of Justice has equivocally recognised it under Article
38(I)(c) of the Statute. Secondly, a State remains bound by certain rules of
International Law even if it has not given its consent. According to Article 36 of
the Vienna Convention on the Law of Treaties a treaty may be binding on third
States as well. Their assent shall be presumed as long as the contrary is not
indicated. Thirdly, States in some cases are bound by general International Law
even against their will. The above criticisms show that the consent theory as
propounded by positivists is not totally correct.

(d) Eclectic theory: The views taken by the naturalists and positivists are
extreme views. The jurists belonging to eclectic school have preferred to adopt a
middle course in the positivist-naturalist debate. Eclectics such as Vattel accepted
the simultaneous existence of two tiers of law-one at the natural level and another
at the positivist level. Thus, according to them International Law derive from both
natural law as well as voluntary law (laws made with the consent of the States).
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This view appears to be appropriate than those taken by the jurists of naturalist and
positivist Schools, and therefore it may be concluded that International Law is
based solely neither on the law of nature nor on the consent of the States.
International Law is a Weak Law

International law is said to be weak law. Its rules are not as effective as rules
of municipal law. Thus the weakness of international law become evident when we
compare it with Municipal law. Following are some of the weaknesses of
international law:-

(1) Rules of International Law which exist as a result of international treaties

and customs are not comparable in efficacy to State legislative machinery. Rules
expressed in treaties as well as customs are sometimes formulated in such a way so
as to give wide options to the States parties.

(2) There is no court in the true sense which could decide the legal disputes
of all the States. Although, International Court of Justice which is commonly
known by the name of ‘World Court’ exists, it does not have jurisdiction to decide
the disputes of all the States since the Court acts with the consent of the States
only.

(3) Enforcement measures which are available under the system are not
effective and when used, have been used despairingly.

(4) Rules of International Law are frequently violated by States, especially

during war and the claimant of the rights takes the law into his own hands.

20 
 
 

Although the Charter of the United nations has reduced the area of self-help,
International Law is far behind from being quite effective.

(5) The greatest shortcoming of international law is that it lacks an effective

executive authority to enforce its rules.

(6) It lacks an effective legislative machinery.

(7) A great limitation of international law is that it cannot intervene in the

matters which are within the domestic jurisdiction of States.

(8) As compared to rules of State law, the rules of International Law suffer
from greater uncertainly.

(9) International Law has, in many cases, failed to maintain order and peace
in the world.

Codification of International Law

The codification of international law involves three basic processes: firstly,

the grouping together of the rules dealing with a given subject of law in an orderly
and logical manner; secondly, an attempt to correct defects in those rules, that is,
the filling of omissions, the elimination of archaisms, and, in general, the
modification of the rules to take into account changes in conditions and policies;
and thirdly the enactment of new set of rules into binding law by some agency
having the power to do this act. It is true, however, that 'codification' is sometimes
used in a more limited sense to refer thereby to the systematization of rules, or the
21 
 
 

systematization and modification of rules, without regard to the essential element

of their being put into effect.

In the last quarter of eighteenth century, Jeremy Bentham proposed a

codification of the whole of international law, though in a Utopian spirit.
Bentham's proposal, although an ideal one was not based on logical considerations
inasmuch as codification of international law depended upon the consent of the
States which was difficult to obtain in an environment vitiated by political
tensions, strains, stresses and strife.

The attempts to codify international law have been made by private

individuals, learned societies and Governments. Although Governments can
directly constitute a body of written international law, private codification
institutions and individual writers, have also had a considerable effect on the
development of international law. Particularly noteworthy are the various draft
codes and proposals prepared by the InstitutE de Droit International, the
International Law Association (both founded in 1873) and the Harvard Research in
International Law (established in 1927). The United Nations wasn't conferred
legislative power to enact binding rules of international law. However, certain
concessions were granted to General Assembly. By virtue of Article 13 of UN
Charter, the General Assembly was granted certain limited powers of study and
recommendation Artic1e 13(J) reads as follows:

The General Assembly shall institute studies and make recommendations for
the purpose of encouraging the progressive development of international 'law and
its condification, sometimes, known as the committee of Seventeen’. On 21st

22 
 
 

November1947, The General Assembly established the International Law

Commission.

The object of the International Law Commission is the promotion of the

progressive development of international law and its codification. The
International Law Commission has initiated studies and prepared draft codes on
diverse fields of international law which have led to the adoption of multilateral
law-making treaties between the States. The International Law Commission is
currently conducting studies and preparing draft codes in many areas of
international law.

Sanction. In International Law

Rules of legal system are binding upon the subjects to whom it is addressed.
If rules are violated or obligations contained therein are not observed by the
subjects, enacted specific penalty which is imposed in order to enforce obedience
to a law is called sanction. Penalty imposed under international legal system is
referred to international sanction. International Law has been regarded as a legal
system in the true sense. The governments of the different States are of the opinion
that its rules are legally binding on them. A question arises as to ~hat junctions
International Law provides to those States which violate the rules.

Sanctions in the modem International Law are quite different from those
which existed in the classical International Law. The latter provided the sanction
generally in the form of war and reprisals. War waged by its own armed forces was
the supreme sanction of international Law. However, at present, war as well as
reprisals in most of the cases have become unlawful. Sanctions applied by the
23 
 
 

aggrieved' State are required to be lawful and they must conform to the provisions
of the U.N. Charter. Sanctions which are provided in International Law at present
may be applied by the States individually or collectively by international
organisations.

Whether international law is the vanishing point of jurisprudence?

Holland holds this view, as in his view, these rules are followed by courtesy
and hence they should not be kept under category of law, they lack sanction which
is a must in municipal law. This option is not followed since, all recognise the
presence of certain sanctions although they may be weak e.g. under Article 59
decisions of ICJ are binding on the parties to the dispute. At the same time, public
opinion is the ultimate sanction behind international law and for that matter any
law. Thus it is wrong to say that there are no sanction behind international law.

R. W.M. Dias remarked, “the principal reasons why states obey international
law appears to be fear and self interest”. It cannot be denied that absence of
effective implementation machinery is greatest shortcoming of international law.
This is because the truism which holds good for the individuals cannot be same for
states.
Holland regards it an end part since there is no judge or arbiter to decide
international disputes and that the rules of international law are followed by states
by courtesy. But this view is far from truth. Earlier there was a Permanent Court of
Justice and now the International Court of Justice has helped in propounding the
international law even though the dispensation of justice is not to the level of
municipal courts but yet it possesses a binding character. 47 states have conferred
themselves to the compulsory jurisdiction of the International Court of Justice.
24 
 
 

Thus, it is incorrect to say that international law is a vanishing point of

jurisprudence.

Is International Law a mere Positive Morality

As per Oppenheim, “A rule is a rule of morality if by common consent of
the community it applies to conscience and to conscience only, where as, on the
other hand, a rule is a rule of law if by the common consent of the community, it'll
be eventually enforced by external power”.

Thus a rule of morality applies merely on conscience and can't be enforced

by external power while a rule of law can be enforced by external power.
International morality or ethics has been defined "as standards of right behaviour
that are based on personal judgment”. They may not be observed till accepted by
authoritative decision-makers as Constituting international law.

The International Court of Justice in South-West Africa, cases made it clear

that the court “can take account of moral principles only in so far as these are
Kiven in a sufficient expression in legal form”.

In North Sea Continental Shelf case, the court observed "whatever the
legal reasonings of a court of justice, its decisions must by definitions be just and
therefore in that sense equitable".

Distinction between Public International Law and Private International Law

The main recognised distinction being that private international law

regulates relation of individuals whereas public international law regulates the
25 
 
 

relation of States. But since the international law now regulates the relations of
international community which include individuals as well, the old definition
becomes obsolete.
As per Pitt Cobbet “Private International Law decides law applicable in the
issue in dispute involving more than one nations and determine the court which
will have jurisdiction to decide the issue. It is now popularly called as conflict of
laws.”

Differences
1. Public International Law for its major part deals with states and to a
lesser extent with the individuals but private international law deals
with individuals.
2. Private International Law is a part of municipal law but so is not
always the case with Public International Law. Only customary rules
of international law are considered to be part of the domestic law of a
state.
3. Public International Law is same for all states where as Private
International Law may be different in different states.
4. Private International Law determine as to which law will apply in a
case having a foreign element. There is no such element in the field of
Public International Law. Public International Law is confronted with
different type of problems whenever there is a dispute between its
internal law of the state, the problem arises as to which law shall
prevail.
5. Private International Law also determine the court which will have
jurisdiction to decide the questions in issue which is not so in Public
International Law.
26 
 
 

6. Rights arising out of Public International Law are absolute and their
breach constitutes a causes belli (whatever involves or justifies was)
but Private International Law doesn't confer absolute rights.
7. Public International Law comprises mainly of rules recognised by
states in their relation with each other and mostly arises out of
international custom and treaties. On the other hand rules of Private
International Law are framed by the legislature of a state and
recognised and developed by state courts.

In certain exceptional cases rules of Private International Law may become

rules of Public International Law if they are incorporated in the treaties.

Subjects of International Law

It is the function of the Taw to apportion rights and duties to certain entities
as it sees fit. Legal personality is very important as without it individuals,
institutions and groups cannot operate, as they need to be able to maintain &
enforce claims. Personality in international law necessitates the consideration of
the interrelationship between rights and duties afforded under the international
system and capacity to enforce claims. A personality is a relative phenomenon
varying with the circumstances, a varied range of factors need to be carefully
examined before it can be determined whether an entity has international
personality. Contemporary international law has a wide range of participants,
which includes states, international organisations, regional organisations, non-
government organisations, public companies, private companies and individual.
But which entities will constitute legal persons would be determined by various
factors.

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The term '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.

Various Theories regarding subjects of International Law

The difference of opinion among jurists as to what entities are deemed to be
the subjects of international law has led to the emergence of three popular theories.
These are:
1. States alone are subjects of international law.
2. Individuals alone are subjects of international law.
3. States, Individuals and certain non-state entities are subjects of
international law.

(1) States alone are subjects of International Law

According to the orthodox positivist doctrine, States only are subjects of
international law. This theory asserts that States alone are the bearers of rights and
obligations under international law; individuals lack juridical personality because
they possess neither rights nor duties under international law. International law
regulates the conduct of States and it is the State which performs all types of
international obligations under treaties and conventions.

Percy E. Corbett in his book, "The Growth of World Law" has made the
remark that, "The triumph of positivism in the late eighteenth century made the
individual an object, not a subject of international law. This law more and more
emphasised the separateness of states, making their sovereignty, indeed its basic
principles."

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Criticism
This theory has been subjected to severe criticism by jurists. It does not tell
about the certain laws bestowed upon individual and certain international offences
for which individual may be punished. Right conferred upon slaves and
punishment to pirates arc good examples where individual is directly a subject of
international law.

Prof. Oppenheim in the eighth edition of his book “International Law, Vol.
I” pointed out that “Since the law of nations is primarily a law between states,
states arc to the extent, the only subject of international law”.
But in the ninth edition of his book editors changed this view. According to
the new opinion.

“States are primarily, but not exclusively, the subject of international law.
To the extent that bodies other than states directly possess some rights, power and
duties in international law they can be regarded as subjects of international law,
possessing international personality”. Further, international law is no longer if ever
was, concerned solely with states. Many of its rules are directly concerned with
regulating the position and activities of individuals, and many more indirectly
effect them.

In Reparation for Injuries Suffered in the Services of the UN, the ICJ
held "that the United Nations has the capacity to bring an international claim
against the state for obtaining reparation when an agent of the U.N. suffers injury
in the performance of his duties in circumstances involving the responsibility of
states". The "court by implication rejected the proposition that only states are
subject of international law".
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Prof. Schwazenberger pointed out that "it is contradiction in terms to say

that individuals are not the subject of international law because how it can be
expected that individuals who are the basis of the society may only be the object of
international law. Thus as a matter of fact, individuals are also the subject of
international law."

(2) Only Individuals are the Subjects of International Law3 Contrary to the
above theory, some jurists have asserted that the ultimate analysis of international
law will show that only individuals are the subjects of international law.

Prof. Kelsen, the chief exponent of this theory analysed the concept of State
and held the view that it is a technical legal concept which includes the rules of law
applicable on the persons living in a definite territory. The difference between
international law and state law dissolves, both laws apply on the individuals and
they are for the individuals. While the former is binding on them directly, the latter
is binding indirectly, that is, through states.

Prof. Westlake also remarked that, "The duties and rights of the States are
only the duties and rights of men who compose them."

There are cases where international law 4 binds individuals immediately and
not merely mediately in Kelsen's sense. It is a distortion of facts to say that slaves
and pirates jure gentium are not subjects, but objects of international law. For
instance, the rule of international law by which states are authorised to attack,
seize, and punish pirates jure gentium, is a rule 'imposing a legal duty directly upon
individuals and establishing individual responsibility'.

30 
 
 

Thus, according to the supporters of this theory, welfare of individuals is the

ultimate goal of international law and therefore individual in the only subject of it.

In practice, international law for its major part still deals with the rights and
duties of States. The correct position therefore is that besides states, individuals,
public international organisations and some non-state entities are also the subjects
of international law.

These and other developments of recent years appear to show that the theory
that states are the excl usive subjects of international law cannot be accepted today
as accurate in all respect, although it may be a good working generalization for
international lawyers. The use of the State as a medium and screen for the
application of international law cannot now do justice to all the far reaching aims
of modern sys-:

8. Human Rights and Fundamental Freedoms: The dream of Grotius of

recognization of human rights and fundamental freedoms of individuals at
interna-tional law was ultimately realized when the Charter of the United Nations
incor-porated as one of its purpose 'to achieve international cooperation ...in
promoting and encouraging respect for human right and fundamental freedoms for
all with-out distinction as to race, sex, language or religion'. Since its establishment
the United Nations has kept the issues of fundamental human rights consistently in
focus of world public opinion. Following the adoption of Universal Declaration of
Human Rights by the General Assembly in 1948, the two covenants on Eco-nomic
Social and Cultural Rights and on Civil and Political Rights along with optional
protocol were adopted in 1966. Although the covenants envisaged in them in not
directed towards effective protection or enforcement of human rights.
31 
 
 

On the other hand, the European Convention on Human Rights and

Fundamental Freedoms and the American Convention project a comparatively
better implementation mechanism in the form of a commission and a court of
human rights. Western European arrangement on protection of human rights have
now been functioning for over three decades. The first ever case before the
European Court of Human right was:

The Lawless Case [56 AJIL (1960) 187]

Mr. Lawless an Irishman was detained without trial in a military camp on
the charge that he was’a suspected member of illegal Irish Republican Army. After
his petition for habeas corpus was rejected by the High Court and Supreme Court
of Ireland, he approached the Commission of Human Rights alleging violation of
European Convention of Human Rights, 1950. Although he was released on an
undertaking not to engage in illegal activities, the Commission remained seized of
the matter and gave its finding that the Convention was violated. Ireland
challenged Commission's conclusion in the European Court which also held that
the arrest and detention of Mr. Lawless was incompatible with Article 5 of the
Convention.

A case decided by the European Court of Human Rights is:

The Soering Case (1989) Jens Soering, an eighteen year old German
national, allegedly murdered the parents of his girlfriend in March 1985 and
disappeared from Virginia (U.S.) in October 1985. He was arrested in England in
April 1986 for a cheque fraud. On 11 August 1986 the U.S. Government requested
his extradition. After serving his prison sentence for cheque fraud, Soering was

32 
 
 

detained on 30 December 1986 pending his extradition to the United States to face
murder charges in Virginia.

On II February 1987 Bonn Court issued a warrant of Soering's arrest in

connection with the alleged murders. A month later West German Government
also requested for his extradition. After dismissal of his petition for habeas corpus
by House of Lords on 3 August 1988, the British Secretary of State signed a
warrant ordering his surrender to the U.S. authorities.

Soering challenged the warrant before the European Commission and later
before the European Court of Human Rights alleging that his extradition to United
States would be in breach of British obligation under Article 3 of the European
Convention on Human Rights: "No one shall be subjected to torture or to inhuman
or degrading treatment or punishment". Virginia law provided death for murder
and the average time taken between trial and execution was six to eight years.
Pending execution the treatment meted out in jail was sub-human-lodged in small
cell, chained around waist etc. In contrast German law provided for life
imprisonment for murder. Soering submitted a declaration to the European Court
conveying no objection on deportation to Germany; should the United Kingdom
decide on his extradition.

The eighteen-member full court unanimously held that United Kingdom is

under an obligation not to extradite Soering to United States if he faces a real risk
of treatment or punishment prohibited by Article 3 of the Convention. Sending
Soering to his own country for trial would prevent a fugitive criminal from going
unpunished and at the same time prevent the risk of intense and protracted
suffering by him on death row.
33 
 
 

Court held that British Government's decision to extradite Soering to the

United States, if implemented, would constitute breach of Article 3 of the
Convention.

The net effect of these efforts at the United Nations and regional levels in
the area of human rights is that certain fundamental rights of the individual human
being have come to be recognised at international law and the states are under a
corresponding duty to ensure enjoyment of these rights to one and all within their
respective jurisdictions. True, the individual has not yet the procedural capacity to
vindicate his rights in international tribunals, the fact that in Western Europe the
Commission does it on his behalf find an analogy in municipal jurisdictions where
infants can sue only through a next friend, and it does not militate against their
statute subjects of municipal law.

Place of Individuals in International Law

As pointed out earlier, individuals iife'a1so treated to be the subjects of
international law although they enjoy lesser rights than states under international
law. Thus, "It is no longer possible, as a matter of positive law, to regard states as
the only subjects of international law, and there is an increasing disposition to treat
individuals, within a limited sphere, as subjects of international law". In the
beginning they were accepted as subjects of international law as an exception of :

1) Pirates: Under international law pirates are treated as enemies of mankind.

Hence every state is entitled to apprehend them and punish them. Thus,
under international law it is the obligation of the parties not to commit
piracy.

34 
 
 

2) Harmful acts of individuals: For the amicable and cordial relation of the
states it is necessary that the individuals should not be involved in such act
as may prove detrimental for the good relations among states. Therefore,
under international law there are several such provisions which provide that
the persons who commit such crimes may be punished.

3) Foreigners: To some extent international law also regulates the conduct of

the foreigners. According to international law, it is the duty of each state to
give to them those rights which it confers upon its own citizens.

4) War criminals: War criminals can be punished under international law.

This conception is based on the principle that rules relating to war crime are
not only for the states, but individuals are also bound by them.

5) Espionage: Espionage is a crime under international law. Hence, when the

spies are apprehended, they may be punished.

6) Under some treaties individuals have been conferred upon some rights
whereby they can claim compensation or damages against the states.

7) The United Nations Charter has also given a place of importance to the
rights of individuals.

8) Besides the above-mentioned examples, some very important steps are being
taken in respect of the rights of individuals under international law.
International law now confers upon the individuals certain rights not only

35 
 
 

'mediately' but 'immediately:. An example of this is Convention on the

Settlement of Investment Disputes between states and the nationals of other
states. As is clear from its very name, the persons who invest their money in
foreign countries have been conferred upon certain rights against the state
concerned.

9) The International Covenant on Civil and Political Rights, 1996.

Conclusion
In view of the above developments it would be presumptuous to say that
States arc the exclusive subjects of international law. It also does not connote that
States can lay the claim to their being the exclusive subjects of international law, as
articulated by Lautherpacht:

'It is true that international law is made for states and not states for
international law, but it is true only in the sense that the state is made for human
beings and not human beings for state'.

It can, however, not be denied that still a major portion of international law
deals with rights and duties of states. As far as an individual as subject of
international law is concerned, while a lot of progress has lately been made in this
direction as compared to the position in traditional international law, there is much
truth in what Prof. Green has to say:

36 
 
 

'Despite all the idealism in the Charter of the United Nations, there appears
to be little doubt that the individual has still a long furrow to plough before he
receives recognition of his status under international law'.

QUESTIONS WITH ANSWERS

Q. 1. Is International Law 'law' in the proper sense?

Ans. Almost from the early stages of the development of the science of the
Law of Nations the question whether International Law is law in the true sense, has
been a subject of much speculation. Has it any binding force? Opinion has sharply
been divided on this vexed question. The leading English writer on Jurisprudence
John Austin has maintained that International Law is not true law, but a code of
rules of conduct of moral force only. He defines law as a rule of conduct imposed
and enforced by the sovereign. Hobbes and Pufendorf, who preceded Austin, also
answered the question in the negative by observing that there is no positive law of
nations properly invested with a true and legal force, and binding as the command
of a superior. Hobbes defined law as the commands of him or them that have
coercive power. According to Vattel, the Law of Nations, in its origin, is nothing
but the law of nature applied to nations. Holland maintained that International Law
differed from ordinary law in being unsupported by authority of a State. According
to him, the Law of Nations is but private law "writ large". In this view of the
matter he called International Law as the vanishing point of jurisprudence.
Bentham also criticized International Law as the law proper. On the other hand,
eminent authorities like Hall and Lawrence maintain that International Law not
only operates as law but is distinct from international morality by a radical
difference, both in the nature of its rules and sanction. The former observes that

37 
 
 

International Law is habitually treated as law and that certain part of what is at
present acknowledged to be law is indistinguishable in character from

It: the latter emphasizes that International Law is generally observed by

States, though here and there like other law some of its commands are disregarded.

Austin holds that International Law is no law as it did not emanate from a
law lt1ving authority and had no sanction behind it. He observes that the law
obtaining between nations is not a positive law for every positive law is set by a
given overeign to a person or persons in a state of subjection to its author. The law
obtaining between nations is, according to him, only law set by general opinion
und the duties which it imposes are enforced by moral sanction. There is no
compelling sanction derived from superior authority inasmuch as there is no
Sovereign power over and above the disputant States. He described International
Iaw as "positive international morality" consisting of "opinions or sentiments
current among nations generally".

Holland, as stated above, subscribes to the view taken by Austin. According

to him, "such rules as are voluntarily, though habitually, observed by every State in
its dealings with the rest can be called law only by courtesy." It is not supported by
the authority of a State. It is the vanishing point of jurisprudence, since it lacks any
arbiter of disputed questions save public opinion, beyond and above the disputant
parties themselves, and since in proportion as it tends to become assimilated to true
law by the aggregation of States into a large society, it ceases to be itself, and is
trasmuted into the public law of a federal government. .

38 
 
 

No doubt, International Law is less imperative and less explicit than the
State law but nevertheless it is law inasmuch as it is enforced partly by the
conviction that it is good and partly by those subtle influences which make it
difficult for a man or body of men to act in defiance of strongly held views of those
with whom they associate. Compulsion alone is not the sanction behind law. It b
enforced by the consideration of justice as much as of force. The element of fear is
also not absent. Nations are afraid that a gross violation of international rules of
conduct might make the nemesis fall on them. Like ordinary law International Law
is also sometimes evaded but that does not mean that the. law does not exist. As
Mr. Roosevelt said in his last Annual Message to Congress; "It would be
preposterous to think that international relations are governed exclusively by force,
and that statesmen are not moved by considerations of right and law and justice."
In the words of Brierly, it is not the existence of a police force that makes a system
of law strong and respected, but that strength of the law that makes it possible for a
police force to be organised.

Sir Henry Maine while criticising the Austinian conception of law observes
that men do sometimes obey rules for fear of punishment, but compared with the
mass of men in each community this class is but small, probably it is confirm to
what are called the criminal classes. The largest number of rules which men obey
are obeyed unconsciously from a mere habit of mind.

As said above, the Austinian view regards law as the command of a

sovereign enforced by a sovereign political authority, and as such Austin classified
International Law as positive morality. This view has rightly been commented

39 
 
 

INTERNATIONAL LAW (K-107)

Unit – I

Q.1. What do you mean by International Law? Is International Law is true law? (or
law in proper sense)

Q.2. Explain the nature and development of International law.

Q.3. Enumerate the various sources of International law and assess their comparative
importance.

Q.4. What is relation between international law and municipal law?

Q.5. Explain the subject of international law.

Q.6. What is the Basis of International Law?

40