Module I chapter 1– Handout

Module I Chapter 1: Nature and History of International Law

:Internation
i. Historical Evolution of International Law - A Short History of International Law Stephen C
al Legal
Neff
System ii. Is International Law International? https://www.youtube.com/watch?v=SKV0YoGMf2k-
especially please listen at 52 minutes.
iii. Definition of International Law – Handout
iv. Scope of International Law- The Nature of International Law and International system
Chapter 1 (Textbook on International Law–Martin Dixon)
v. Basis of International Law- handouts of (i) and (ii) cover it
vi. Public International Law and Private International Law Handout
vii. Is International Law weak Law? Dispelling Myths- Handout

Excerpts from S K Verma – An Introduction to International Law

Traditional definitions of International Law-

Oppenheim-‘Law of Nation or International Law is the name for the body of customary and
conventional rules which are considered binding by civilized states in their intercourse with each
other.’

Brierly- ‘Law of Nation 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.

Hall- ‘International Law consists of certain rules of conduct which modern civilized states regard
as being 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.’

In Sir Cecil Hurst – International Law is the aggregate of rules which determined the rights
which one state is entitled to claim on behalf of itself, or its nationals against another state.

Contemporary Definitions

Subsequently, qualitative changes took place in International Law. After second world war, a
large number of International organizations were established including UNO, Who etc. These
International organizations and institutions are regarded as international legal entities and
subjects of international law. This was confirmed by the International Court of Justice (ICJ) in its
advisory opinion in Reparation for Injuries Suffered in the Services of the United Nations.

There has also been increase in the subject matter of International law. Due to developments in
science and technology and rules to regulate environment, outer space and deep sea have been
have been adopted. The new developments are increasingly revolving around the individual
There is an active and continuous concern about such divergent and vital matters related to
individuals like human right, which for the first time were conceptualized in the United Nations
Charter and subsequently found their content in the Universal Declaration of Human Rights of
December 10, 1948 and health regulations and treatment of labour under various conventions of
the International Labour Organisations. An individual has also been subjected to duties and can
be held liable for committing the crime to genocide, crime against peace, crime against humanity
and conspiracy to commit these crimes, as implicit in the judgment of the International Military
Tribunal of Nuremberg, 1946. Thus, it is no longer possible to regard international law as
governing relations solely among states.

It is now generally recognized that public international organizations and in certain

circumstances individuals are also endowed with rights and duties. Modern International Law is
said to govern the relations between states and international organizations between international
organizations inter se and private persons. Schwarzenberger defines it as the body of legal rules
which apply between sovereign states and such other entities as have been granted international
legal personality.

Starke similarly defines it as that body of law which is composed for its greater part of the
principles and rules of conduct which sates feel themselves bound to observe and therefore do
commonly observe in their relations with each other and which also includes : (a) the rules of
law relating to the functioning of international institutions or organizations, their relations with
states and individuals and (b) certain rules of law relating to individuals and non states entities so
far as the rights and duties of such individuals and non state entities are the concern of
international community. In other words international law is the body of legal rules to regulate
the conduct of states and other International entities. Neverheless it is predominantly concerned
with the regulation of rights and duties of states inter se.
Bederman and Keitner- International law encompasses those rules of conduct that are binding on
states and other international actors in relations transactions and problems that cross national
borders or implicate core human values.

The main sources of international Legal Obligations are Customary International Law and
treaties. International Law governs the behavior of states International organizations and other
entities and individuals –the subjects of International Law

It covers areas or ‘objects’ including the identity and responsibility of states, human rights,
control of territory and ocean resources, the environment the global economy the use of force
and conduct of hostilities.

Dispelling Myths

Excerpts from David J Bederman and Keitner –International Law Frameworks -

Dispelling Myths

1. International Law is separate and apart from domestic legal systems

Though International Law began as a “Law of Nations’ in which only states had rights and duties
in the international legal system.

This notion has radically changed in the past century, to the point that institutions, individuals,
NGOS, business associations, terrorist insurgent groups and other entities are also capable of
being governed by International Law, just as they are subject to applicable Municipal law.

It would be a profound mistake to think that domestic law has not been affected by or that it
shares no features with International rules of conduct.

It is a myth to think that International Law is separate and apart from domestic legal systems. By
various methods, International law has been incorporated in domestic law. It is fair t say though
that this process has been long and slow. Through technological development of 1880s and
1900s, the world became smaller and allowed for the acceleration of economic integration, a
phenomenon continuing till now. Domestic legal systems have been obliged to transform
themselves in the face of this process of globalization.

2. International law is all theory and no practice

This statement contains a kernel of truth but is otherwise profound distortion. International law
has been ironically enriched by religious values, moral philosophy, political attitudes and
International relations theory. But much of domestic law has similarly been influenced by such
‘non legal’ or ‘outside notions’ and no one suggests that it theory –bound and locks practical
application.

Understanding the historic nature and uses of legal rule in International relations helps one to
identify appropriate and useful sources of International Legal obligations. Having engaged in the
lawyerly task of collecting the sources and materials that describe International Law, one can
then offer an intelligent opinion of the doctrines or rules of International conduct and behavior
only then can a lawyer or policy maker offer helpful advice, whether it is suggesting a course of
diplomatic action, structuring a business transaction, framing arguments in a judicial or arbitral
proceeding or deciding and international dispute. Thus, to criticize International law as being
‘too theoretical’ is really no criticism at all. Theory is just one of the tools in the practicing
International Lawyers tool-chest.

3. International Law is not real Law

This statement is the heart of darkness for detractors of this subject. If this myth were simply
articulating that International Law does not have all the characteristics feature of mature
domestic legal system, it could be unremarkable.

Although hardly an original statement (Austin) it is still true that International Legal system
does not have a supreme ‘law maker’ or legislature (such as Congress or Parliament), a
commanding ‘law enforcer’ or executive or a single ‘authoritative’ ‘law interpreter’ or judiciary.
Indeed if we had a world parliament, a police force the fact of International relations would be
utterly different. In fact it would not be International relations at all, it would be world
government.
International law remains a rudimentary legal system in the sense that it makes its law through a
combination of consensual and coercive means. Enforcement is often unilateral self help rather
than by multilateral action.

The consistent practice and understandings of the International community (CIL) is an actual
source of law- and an exceedingly effective one. The codification of existing and new rules of
conduct through an expanding network of bilateral and multilateral treaties that both adjust
potential disputes between nations and prescribe rules for the future is also significant.

At the same time International law is evolving towards an administrative and regulatory model
for prescribing rules of conduct of such areas of functional cooperation as the international
economy and finance, protection of the global environment and combating global terrorism and
managing common resources. To say International Law is unreal is both false and misleading. It
is false in the sense that international doctrines and international institutions are evolving to
replicate the successful forms of law making in domestic legal systems. But much more than
that, since International law serves the interests of a special constituency (global community and
special value-rule of law is International Relations) it is unreasonable and unfair to expect that it
should precisely mimic domestic legal systems.

4. Myth 4: None Obeys International law

Undoubtedly, states follow International law out of self interest. But that self interest is
expressed as more than a situational observance of a particular rule. Nations have self interest in
promoting a systemic regard for the rule of law in International relations or a ‘culture’ of law
observance. As a prominent international law scholar famously noted ‘almost all nations observe
all of their obligations almost all the time’

And while violations of International law norms are extraordinarily well publicized, the literally
thousands of instances of law compliance go unnoticed and unheralded. In sum, countries have a
self interest in the predictability and stability that law and legal relations bring to international
affairs.
States do disobey International law but that cannot be the operating standard for any ‘real’ legal
system. Even in most highly advanced domestic legal systems, lawlessness may be rife. The
question for International law and the International Legal System is whether flagrant and
indisputably unlawful conduct is regularly tolerated by the International community. Despite
unevenness in enforcement, International Relations today are firmly embedded in a robust
framework of International law and institutions.

Actions that are regarded as violating International Law elicit quick and vociferous protests.
Even when states engage in legally dubious conduct, they still attempt to justify or rationalize
their behavior on legal grounds. These defences may be spurious and the avenues for effective
relief from unlawful behavior limited but the attitude and culture of International law is that
actors may not justify bad behavior by expediency or strength.

A related myth is that International law is simply what powerful states say it is. There is always a
legitimate concern that the ‘great powers’ exercise a disproportionate influence on the
development and application of International law. It is wrong however to believe that one state
even the last remaining super power – can unilaterally dictate the content and implementation of
the International legal doctrines.

5. Myth 5- International Lawyers are not real lawyers

This is misguided. In fact International Lawyers’ job is more challenging because growing
dimensions of interaction between states. Further International law versus have come to pervade
domestic legal practice. When a party seeks to enforce one country’s judgment in another
country, it involves International law (eg. jurisdiction). When a company owned or operated by a
foreign sovereign is sued, this also raises international law issue (foreign sovereign immunity).
Many criminal enterprises have international aspects (narcotics trafficking) which requires
recourse to international law of criminal jurisdiction.

International law practice is here to stay in the US and elsewhere. But practising International
Law is not just about a secure professional future, it is also about doing well by doing good, and
being involved in a practice area that promotes the global rule of law, peace and justice. The very
characteristics that make international legal system appear enigmatic also make International law
engaging and rewarding for students and practitioners and policy makers.
Public International Law and Private International Law (Excerpt from ‘individuals as
subjects of International law – M W Janis)

Before positivism there was no theoretical insistence that the rules of law of nations applied only
to states. Eg for Blackstone individuals and states were both proper subjects of International
Law. That is why he made no distinction between Public International Law and Private
International Law. But in 1789, Jeremy Bentham in ‘Introduction to the principle of morals and
legislation’, Bentham defined the new concept as the law which relates to ‘the mutual
transactions between sovereigns as such’. The mutual transactions between which may take
place between individuals who are subjects of different states, there are regulated by internal
laws and decided upon by the internal tribunals of individual sovereign states (ie he distinguished
between Public and Private International Law). Public International law went to International
matters affecting states, while private international law concerned matters between individuals.

But for Austin, since sovereign could not be regulated by outside authority, public international
law was merely positive morality. Hart also assumed that the essence of international law that it
addressed states although he was more open to accepting similarities between international law
and municipal law, he accepted uncritically Bentham’s subject based approach to international
law.

But many earlier cases in the US and EU counter this distinction. Example – Republica Vs
Delongchamps and Paquette Habana Cases in the US and ECHR in EU.

Public International law- It is uniform for all states and regulates conduct of states in their mutual
relations. Rights under Public International Law are absolute and breach constitutes a causus
belli justifying recourse to war.

Private International law- deals with acts of individual. Conditions under which a case with
foreign element can be entertained by state courts and determine the system of law which will
govern the rights of parties to the case. Pvt International law is part of municipal law. It
reconciles conflict between individuals of different states. Eg. Divorce, marriage, succession,
contract, inheritance etc. Therefore Pvt International law guides municipal law in determining
jurisdiction and competence to entertain a suit, particular territorial system of law by reference to
which rights of parties will be ascertained, circumstances in which a foreign judgment can be
recognized and applied. This is law convenience to facilitate relationship between subjects of
different countries. They don’t confer absolute right. Basis of this law is comity of nations. Rules
of private international law may be common to several states and may evolve as a custom in
international law.