INTERNATIONAL LAW

Unit: - 1
DEFINITION:
The expressions ‘international law’ and ‘Law of Nations’ are synonymous and
equivalent. The former was introduced by Bentham in the year 1789. Before it,
International Law was known as the law of nations.
Most of the classical jurists laid down that International Law regulates the
relations of States with one another, and therefore have defined the term in this
sense only. According to Oppenheim, the Law of Nations or International Law
is the name for the body of customary and treaty rules which are considered
legally binding by States in their intercourse with each other. The above
definition contains three important elements. Firstly, International law consists of
a body of rules governing the relations between the States. The term “relations”
means that official intercourse which is maintained by the state through its foreign
officers or the Department of External Affairs. Thus, the rules of international law
cover almost every facet of interstate activity. There are laws to regulate the use
of the sea, Outer space and Antarctica There are rules to govern international
communications postal services the cottage carriage of goods and passengers by
Air International law is the primary tool for the conduct of International Trade.
International law concerns nationality, aliens, extradition, human rights
protection of the environment and security of Nations. In short, there is hardly
any aspect which is done in the international arena that is not regulated by
international law Secondly, States regard these rules as being binding on them
about one another. However, the above definition given by Oppenheim Is not
adequate and is subject to much criticism.
(1) The definition takes into account the relations of States with one another.
But presently States have organisations of themselves and therefore
international organisations and institutions are also regarded as subjects of
international law.
(2) International law also provides certain rights and duties to individuals It
has been so, particularly after the establishment of United Nations
Organisations. But the definition excluded them altogether.
(3) Certain activities of multinational corporations are also regulated by this
branch of law, but they are not covered under the above definition.
(4) The definition lays down that rules of international law derive only from
customs & treaties but it is not correct. The number of international laws
derived from general principles of law reorganised by civil nations. Article
 38 (1)(c) of the statute of the International Court of Justice has stipulated
that principles shall be applied by the court, and consequently, they are one
of the sources of international law.
(5) The expression “body of rules” denotes that the international law is static.
Its rules cannot be changed, but it is not so. International law is a dynamic
and living law. Its rules have been changing with time, out of experience
and necessities or situations.
Oppenheim’s Revised Definition
The above definition was given by Oppenheim in the 8th edition of his book on
international law published in 1905. Since then, drastic changes have occurred in
international law, and therefore the definition has become too narrow. It does not
stand correct at the present international law in 19 th edition, edited by Sir Robert
Jennings and Sir Arthur Watts, published in 1992 the term international law has
been defined differently after taking into account new developments, according
to him:
“International law is the body of rules which are legally binding on the
state in their intercourse with each other. These rules are primarily those
which govern the relation of States, but States are not only subject to
international law. International organisations and to some extent also
individuals may be subject to rights conferred entities imposed by
international law.”
The above definition Is wider than the earlier definition in that it states that
international organisations and individuals are also the subjects of international
law.
Starke’s definition
Starke’s definition of international law is similar to the revised definition of
Oppenheim in scope. He lays down that International Law “is 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 also includes.
(a) The rules of law relating to the functioning of international institutions or
organisations their relations with each other and their relations with States
and individuals.
(b) Certain rules of law relating to individuals and non-state entities, so far as
rights or duties of such individuals and non-state things are concerned of
the international community.”
The above definition is different from the traditional definitions of international
law. While the latter took into the account of States only, Starke has widened the
scope by setting that along with States, international law regulates the right
entities of international institutions or organisations, Individuals and other non-
State entities.

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

KINDS:

PUBLIC INTERNATIONAL LAW AND PRIVATE INTERNATIONAL

LAW
It is to be noted that the expression “International Law” is identical with the so-
called, expression “public international law.” It, as a system, applies to all States.
Thus, a primary and essential characteristic of the public international law system
is its universality. It applies everywhere, including man’s activity in space and
respect of celestial bodies. It is the quality of universality that serves to
distinguish it from private international law, which is the law of different States
and which concerns mainly such matters between individuals as fall at the same
time under the jurisdiction of two or more different States.
For example, contracts of sale and service between persons in
different countries which is governed by rules of private international law. Such
rules have evolved to avoid the conflict, which arises due to conflicting rules of
municipal laws of different States.
DIFFERENCE BETWEEN PUBLIC INTERNATIONAL LAW &
PRIVATE INTERNATIONAL LAW

Public international law Private international law

1. Public international law deals Private International Law deals
primarily with the States and to primarily with the individuals of
some extent with the individuals. two States.

2. Rules of public international law Rules of private international

are not part of the internal Law law are part of the internal Law
of the State concerned. of the State concerned.
3. Laws of public international law Laws of private international law
are uniformly applied to all are not uniformly applied to all
States. States.
4. Evolved largely through the Evolved mainly through
consent of the States through legislation enacted by different
customs and treaties. legislatures of different States.

It is to be noted that presently distinction between public international law and

private international law has been reduced because certain rules of private
international law have become the rules of international law as well. What is not
termed private international law may also have the character of public
international law. It is done mainly by conclusion of treaties as long as they are
not postulated by rules of customer laws, treaties or general principles of law
recognised by civilised nations. They remain the rules of municipal law.
GENERAL INTERNATIONAL LAW AND PARTICULAR
INTERNATIONAL LAW
International law has been divided by some jurists into two kinds:
1. General International Law: Such as provisions of certain treaties, which
are widely, but not universally, binding and which establish rules
appropriate for universal application, tend to become universal
international law. However, no law has acquired the characteristic of
universality as yet.
 2. Particular International Law: Particular international law is that which
is binding on two or a few States only.

NATURE OF INTERNATIONAL LAW

One of the most controversial issues that have long been debated and discussed
on which the opinion of the jurists has been sharply divided since the beginning
of the science of the Law of Nations. Regarding the status of international law
although rules regulating the relations of States are referred to international law
in practice consistently since last more than 200 years several jurists, including
those who use the expression international law, have expressed doubt on the
question: Is international law, really a law? One view is that International Law
is not a true law it is a code of rules of conduct of moral force only. Another view
is that International Law is a true law, and it is to be regarded as Law in the same
way as that of ordinary laws of the State which are binding upon individuals. The
reality is that the answer to the above question depends in large measure as to
what the definition of the term “law” is. It alone would decide whether
international law is a true law or not.

Austin’s view
Hobbes, Bentham and Pufendorf are of the view that international law is not
legally binding on the States. In the 19th century, several prominent jurists took a
similar view. The most prominent among them is the British jurist Austin, and
later his followers. According to Austin Law is the command of the sovereign
attended by sanction in case of violation of command. The definition contains
two important elements firstly, Law is a command enacted by sovereign
legislative authority. Any rule which is not enacted by the superior sovereign
cannot be enacted as law. Secondly, commands are enforced by sovereign
authority means, that if laws are violated there must be an appropriate sanction
for it. The existence of these two elements is essential to call a rule as a “proper”
law. All other senses of Law, according to Austin are regarded as improper law.
It was his view that international law cannot be called law “proper” in the
true sense. Because it consists of opinions or sentiments current among nations
generally, it has neither sovereign legislative authority to enact law nor there is
an adequate sanction behind it. Moreover, there is no enforcement agency which
can enforce it as a body of rules. He therefore preferred to call international law
“positive international morality” since it lacks a common and determined
sovereign issuing orders backed by threats. By positive he meant what in
jurisprudence is commonly meant by that term, namely that the rules are presently
enforceable. Due to the absence of any sovereign authority and sanctions behind
international law, it has been regulated by regarded by him as a rule of morality,
which is analogous to the rules binding a club or society.
A rule of morality is by common consent of the community. It applies to
“conscience and to conscience only” Such rules are different from rules of law,
wherein by common consent of the community, it is eventually enforced by
external power. There is no supreme executive government to enforce these laws,
nor does there exist any judicial organisation with compulsory jurisdiction, so
international law cannot be accepted as the legal system.
Criticism of Austin's view
Austin’s definition of law commonly known as common theory has been
vehemently criticised by jurisdictions belonging to sociological, legal realism and
historical school on different grounds. The exponents of historical schools have
criticised the definition mainly on two grounds:
1. Austin has taken into consideration his definition only that part of the law
which is enacted by the sovereign legislative authority He completely
ignored the customary or unwritten laws German jurists Savigny and Sir
Henry Maine have stated that long before the enacted laws took their place
upon the statue books, Communities were ruled by customs and usages
which enjoyed the full force of law as rules of conduct. Also,
2. It is not correct to say that laws are observed because of fear of sanctions
behind them. In many communities Laws are observed because of inner
morality, i.e. without any formal legislative authorities.
The legal systems of most of the States survive primarily because of a substantial
degree of voluntary obedience to their laws. Pollock cleared, therefore, that the
Austinian view is hard to reconcile with the witness of history. Another jurist
Bryce asserted that the imperative theory of Austin is untrue as a matter of history.
Austinian view fails to explain why States themselves regard international law as
binding, even when there is no sovereign. These criticisms led to the conclusion
that the definition of law given by Austin is inadequate. His inference that
international law is not a law, but merely a positive morality does not appear to
be correct.
Oppenheim’s View
Several jurists have defined the term law in different ways. Oppenheim says that
“law is a body of rules for human conduct within a community which, by common
consent of this community, shall be enforced by external power.” According to
this definition, Essential conditions for the existence of Law are threefold. Firstly,
there must be a community. Secondly, there must be a body of rules for human
conduct within that community, so that the community may be orderly governed.
All communities submit to the rule of law because they wish to afford due respect
and protection to the dignity of men and nations, and thirdly there must be a
common consent of that community that these rules shall be enforced by the
external powers.

Conclusion: - From the above two definitions and two different views It may be
concluded that the answer to the question - is whether international law is a law.
In the true sense, depends primarily upon another question that is, which of the
above two definitions of law is accepted? If the imperative definition of Austin
and his followers is accepted, legal character to the rules of international law may
be denied and if broader definitions, as given by Oppenheim, are accepted taking
into account the historical development of municipal laws, international law may
be termed as law in the true sense.

International Law is a True Law:

It may be concluded that, at present, the world is, in reality, regarded as an
international community and it is difficult to see how many communities of
nations can exist save based on law ubi societas, ibi jus. A set of rules in the form
of customs and treaties exists to regulate the conduct of the members of the
community. Members of the community recognise and observe these rules and
affirm that there is a set of rules for regulating their conduct. They are practised
in foreign officers, national courts and other governmental organs of state, as well
as in international organisations such as the United Nations. They accept as they
are legally bound by the rules of international law. Further, the States do not claim
that they are above the law, or that international law does not bind them. The
argument that international law is breached very often by States, and therefore
general observance of it is not higher than that really, it does not appear to be
convincing. Thousands of treaties have been concluded by the States, But the
instances of their violations are few. It can be treated as an exception that the
States breach some of the laws. Even a State who has breached a law will not say
or deny the existence of the international law as a whole.
International Law is a weak Law
International law is a law in the true sense of the term. State practice as well as
practises of international judicial institutions affirm the legal character of
international law. It is observed by almost all Nations and almost all the time,
because it is crucial for peaceful relations and Corporation. However, it has to be
conceded that it is a weak law. Its rules are not as effective as the rules of
municipal laws. It is so because of many reasons which are as follows:
1. Rules of international laws 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 as to give wide options to the state parties.

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

3. Enforcement measures which are available under the system are not
effective. In municipal law, it is assumed that the law will be enforced. If a
person commits a crime, he shall be given punishment by law. In
international law, this may not be the case. On several occasions, no
enforcement measures are taken, even if the action is regarded as illegal
for instance, no action was taken against the United States after its illegal
invasion of Grenada and Iraq. And NATO was not condemned for its action
against Serbia. Further, the court does not have any real power to enforce
its decisions, its decisions are enforced by the Security Council of the
United Nations, which is a political body. Its decisions on many of its
occasions are found to be politically motivated.

4. Rules of international law are frequently violated by his States, especially

during war and the claimant of rights takes the law into his own hands.
Although the charter of the United Nations has reduced the arena of self-
help, international law is far behind in being quite effective.

5. The effectiveness of municipal law lies in the fact that its units are quite
weak. The result is the sanctions against breaches of the law are normally
effective and easy to maintain. The international community is one wherein
the units are small and weak, but at the same time, some of them are strong
and enormous. To compel the latter to follow the rules of international law
sometimes becomes difficult. As long as the international community itself
 does not become stronger than the units, rules framed by the former would
be observed as per the convenience of the unit.

Basis of International Law

Views of tourists differ on the question as to what is the basis of international law
The difference of opinion has led to the emergence of the following three
important theories:
(1) Naturalist theory: - Most of the jury stops 16th and 17th centuries 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 reasons or
morals. Prominent writers of this view were Grotius, Pufendorf and Vattel.
Writings of these jurisdictions were influenced greatly by the work of
religiously oriented scholars such as St Augustine, Victoria and Suarez.
These publicists argued that all law is derived from God and they call
“God’s superior law” as “divine law”. Thus, all laws, including
international law, according to them are based on natural and in term divine
law.
(2) Positivists Theory: - The view that international law is based on the law
of nature has been condemned by followers of another school, which is
known by the name of “positivist”. According to them, only those
principles may be deemed as laws which have been adopted with the
consent of States. The rules are binding upon States and therefore emanate
from their own free will. Bynkershoek was the exponent who was of the
view that the basis of International Law is the consent of the States.
The consent theory has been criticised by many writers on several
grounds. All the rules of international law did not derive from customs and
treaties. Some of them derive from general principles of law recognised by
civilised nations. International Court of Justice has equivocally recognised
it under Article 38(1)(c) of the statute.
(3) Ecclectic Theory: - The views taken by the naturalists and positivists are
extreme views. The jurists belonging to Ecclectic school have preferred to
adopt a middle course in positivist-naturalist debate. Ecclectics 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 derives from both natural laws as well as voluntary law
(Laws made with consent of the States).