1 2

Starke defines International Law as - the body of

1. ORIGIN, DEVELOPMENT, law composed for its greater part, the principles and
BASIS AND PRESENT STATUS OF rules of conduct which States feel themselves bound to
observe and therefore do commonly observe in their
INTERNATIONAL LAW
relations with each other.

SYNOPSIS: Thus the object of International law is to produce

an orderly system of international relations among States
A. Introduction
and other bodies.
B. Origin and Development of International Law
B. ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW:
C. Public International Law and Private
The modern International Law had its origin in the
International law
15th century though International Law prevailed in the
D. General International Law and Particular ancient period.
International Law
1. ANCIENT PERIOD:
E. Codification of International Law
a. In Egypt, International Law seems to have existed in
F. Basis of International Law ancient days. From the presence of certain treaties,
nationality, etc, it is evident that International Law
G. International Law Commission
existed even among the ancient Jews also.
H. Present status of International Law
b. In ancient India, the Dharma Sastras, Manusmriti,
I. Conclusion Kautilaya’s Arthshastra, Ramayana and
Mahabharat revealed about the just and unjust wars,
A. INTRODUCTION: thus showing the existence of certain rules of
International Law is a body of rules which regulates International Law during the period.
the conduct of States in their mutual inter relations.
Therefore, Sir Oppenheim’s contention that International
Oppenheim defines International law as - the body Law is only a product of modern Christian civilization is
of customary and conventional rules which are not correct as there is clear evidence that rules of
considered legally binding by civilized States in their International law existed in ancient India also. However,
intercourse with each other. the rules in ancient India were not uniform.
 3 4
c. In ancient Rome, the International rules were based h. By the fall of Church and the origin of Sovereign
on religious morality. (E.g.) Roman law contracts, States, the concept of Natural Law was revived which
conventions of diplomatic agents, etc. became the basis of International Law.

d. In ancient Greece, the inter- state relations were found i. Since most of these States had their own maritime
to be regulated by religious oriented International Law. rules, customary rules of maritime law evolved.

2. 15TH & 16TH CENTURIES: j. To protect the trade and trading citizens, leagues
and associations were established. These leagues
During the middle ages, there was little development of
stipulated for arbitration on controversies between
International Law. Only in the 15th century, International
their members.
Law began to develop. The important reasons for such growth
of International Law during 15th century are as follows. 3. 17TH & 18TH CENTURIES:
a. After the downfall of Roman Empire, a number of a. During this period, eminent writers systematized the
States disintegrated. subject of International Law and also suggested many
new rules and principles.
b. The sea trade was revived during this period. So,
the maritime law originated. b. Sir Hugo Grotius who is now considered the Father
of the modern International law contributed much
c. Trade leagues were formed to protect the trading towards the growth of International Law.
communities.
i. He was the first writer to give a systematic treatment
d. The system of sending and receiving of of International Law.
representatives between States developed.
ii. He only laid down the rules of justice which would
e . The Industrial renaissance paved the way for the be binding on men living in a social State.
progress of International Law.
iii. He also secularized the concept of Nature and showed
f. The various writings of authors about international peace that the basis of law of Nature was human nature itself.
also formed the basis for progress of International Law.
iv. He also emphasized the binding force of International
g. The keeping of standing armies by certain States treaties and advocated peaceful settlement of
compelled the formulation of rules of warfare. disputes by negotiation, arbitration, etc.
 5 6
v. De jure belli ac pacis: viii.He said that the prisoners of war should be treated
In 1625, he wrote his famous book De jure Belli ac adequately by the captor.
pacis which laid the foundations of International Law.
ix. He introduced the concept of ‘just war’ and ‘unjust
De jure belli ac pacis libri tres contains three books, war’.
On the Law of War and Peace.
c. During this period, the treaty of Westphalia ended
This book was first written and published in 1625 the 30 years of war in the Roman Empire. This treaty
by Sir Hugo Grotius. also attempted the formation of an International
organization for maintenance of peace.
 Book I advances his ideas and conception of war and
of natural justice. d. Further, the jurists got divided into three schools of

 Book II identifies three ‘just causes’ for war: self- thought namely Naturalist (Law of Nature is the basis
defense, reparation of injury, and punishment. of International Law), Positivist (Custom and Treaties
are the basis of International Law), Grotians (Custom,
 Book III deals with the rules that govern the conduct treaty and Law of Nature are the basis of International
of war once it has begun. According to Grotius, all
Law).
parties to war are bound by such rules, whether their
cause of war is just or not. 4. 19TH CENTURY:
During this period, Treaties, International
His arguments in the first book constitute – the
theory of just war, the second book - about the justice Conferences and International Arbitral Tribunals played
in the resort to war and the third book - about the justice a vital role in the development of International Law. For
in the conduct of war. Thus, these books by Grotius laid e.g., Albama award Claim, the Congress of U.N.O.
the foundation for the present rules of war in Convention of Paris, Geneva Convention, Hague
international law. Conference, etc, dealt with different rules of
International Law in their own spheres.
vi. He distinguished between the Jus Gentium, the
Customary Law of Nations, and the Jus Naturae (the 5. 20TH CENTURY (I AND II WORLD WAR):
Natural Law of Nations).
a. The tendency of 19th century continued till the
vii. He advocated for the freedom of sea. beginning of First World War.
 7 8
b. After the I World war, the Treaty of Versailles laid Difference between Public International Law and
the foundation of League of Nations, Permanent Private International Law:
International Court of Justice.
1. While public International Law deals primarily with
c. The Important treaties namely Treaty of Locarno, the States and to some extent, with the individuals,
Kellogg Briand Pact were entered into, which the private International Law deals primarily with
declared war as illegal and advocated settlement of the individuals of two States.
disputes in a peaceful manner through the League
2. While rules of private International Law are part of
of Nations.
the Internal law of the State concerned, the Public
d. The above treaties were denounced by Germany in International Law applies universally.
1936 and it led to the outbreak of II World War. After
the Second World War was over, the international 3. While public International Law is applied uniformly

organizations like the United Nations Organisations to all the States, the Private International Law differs
and the International Court of Justice were from one State to another State.
established.
4. Private International Law is enacted mainly through
C. PUBLIC INTERNATIONAL LAW AND PRIVATE legislations of different States, whereas Public
INTERNATIONAL LAW: International Law is evolved largely through the
consent of the States by custom and treaties.
The expression “International Law” generally means
“Public International Law” and it is, as a system, applies However, the distinction between public International Law
to all States. It is universal and applies everywhere and private International Law is at present getting
including man’s activities in space and in celestial bodies.
reduced, because many rules of private International Law

Private International Law, on the other hand, is a have become the rules of Public International Law.
law of different States and it concerns mainly matters
D. GENERAL INTERNATIONAL LAW AND PARTICULAR
between individuals under the jurisdiction of two or
INTERNATIONAL LAW:
more different States.
Some jurists have divided International Law as
Contracts of sale or service between persons in different general International Law and particular International
countries are governed by Private International Law. Law. General International Law is binding on many
 9 10
States to become universal International Law. Particular F. BASIS OF INTERNATIONAL LAW:
International Law is binding only on two or a few States. The basis for the authority of international law is
the same as the basis for early laws of every nation. It
E. CODIFICATION OF INTERNATIONAL LAW: is the ‘the general consent of those to be bound by
The term codification means the process of reducing them’.
unwritten laws into written enacted laws.The object of
Such general consent of those to be bound by them
codification is to make the law definite, remove the is strengthened by custom and continued consented
uncertainty and make it easily understandable. practice.

The History of Codification: There is no common superior among nations to

enforce the principles of international law,
The idea of codification of International law started
at the end of the 18th century. The declaration on the Similarly, no single nation can introduce a new
rights of the nation was the first work on codifications. principle of international law into this system.

The following are important instances of codification: In the case of The Antelope, the Supreme Court of
the United States held,
1. The Declaration of Paris 1856
“As no nation can prescribe a rule for others, none
2. Codification by individuals like Professor Lieber, can make a law of nations.”
David, Duddley and others.
Further it said -
3. The Hague Peace Conferences of 1899 and 1907.
“Undoubtedly, no single nation can change the law
4. Declaration of London, 1909. of the sea. The law is of universal obligation, and no
statute of one or two nations can change it.
5. Hague Codification Conference of 1930.
It further observed -
U.N. Charter and codification of International law
“International law rests upon the common consent
and it’s codification. As recommended by the committee
of civilized communities. It is of force, not because it
the General Assembly adopted a resolution establishing
was prescribed by any superior power, but because it
the International Law Commission. has been generally accepted as a rule of conduct”
 11 12
“Whatever may have been its origin, whether in the 5. Draft code of offences against peace and security.
usages of navigation or in the ordinances of maritime
states, or in both, it has become the law of the sea only 6. National including statelessness.
by the concurren t sanction of those nations
7. Law of the sea.
constituting the commercial world”.
8. Arbitral procedure.
“Many of the usages which prevail, and which have
the force of law, doubtless originated in the positive 9. Diplomatic intercourse and immunities.
prescriptions of some single state, which were at first
of limited effect, but which when generally accepted 10.Consular relations.
became of universal obligation”.
11.The Law of treaties.
For eg., the Rhodian law is the first system of marine
Codification and development of International law
rules, but it soon became of general authority,because
has thus become very important because International
it was subsequently accepted and assented to as a wise
and desirable system by other maritime nations. law may enable the states to conduct their relations
along orderly and predictable lines. The absence of rules
Thus only if general assent of concerned nations is and principles of International law may lead the world
effective to give sanction to international law, there to anarchy and ultimately to annihilation of mankind.
can be growth and development of maritime rules.
G. INTERNATIONAL LAW COMMISSION:
(All so refer Chapter No. 7, page no. 67)
The International Law Commission was established
The Commission submitted the following final reports by General Assembly of the United Nations in 1948. It
for codification: was established for the purpose of “Promotion of the
1. Draft convention on rights and duties of States. progressive development of international law and its
codification.”
2. Question of international criminal jurisdiction.
HISTORY OF INTERNATIONAL LAW COMMISSION:
3. Reservation to multilateral conventions.
Several attempts were made in the effort to codify
4. Question of defining aggression. international law.
 13 14
1. By the Resolution of the Assembly of the League of The purposes of creation of an “International Law
Nations, the Committee of Experts recommended Commission” are as follows-
for the Progressive Codification of International
Law. 1. Promoting the codification of International law.

2. The Committee of Experts’ work led to the League 2. Solving problems within both public and private
of Nations Codification Conference of 1930. The International law.
Conference dealt mainly with the issues of
3. Working procedures for the Commission were
Nationality laws, Territorial waters and State
elaborated in Articles 16-26.
Responsibility to damage caused to foreign
nationals. 4. The work of the Commission is regulated by its
Statute.
3. The United Nations adopted many concepts of the
League’s resolution in Article 13, Paragraph 1 of a) Governments are requested to submit to the
the Charter of the United Nations. Commission their written opinions on the issues
in question, as specified in the plan of work.
4. On December 11, 1946, the General Assembly
passed Resolution 94, to establish a ‘Committee b) The appointed ‘Rapporteur’ writes a report of his
of Legal Experts’ to make recommendations to the or her recommendations on the subject under
UN Secretary-General on the ways the General discussion.
Assembly could encourage the progressive
development of international law and its codification. c) The report gets approved by the rest of the
Commission and by the UN Secretary-General
5. The Committee of Experts consisted of 17 members
before it becomes an ‘Official Commission
and convened from May 12 to June 17, 1947. It
Document’.
recommended to establish a ‘ Perman ent UN
Commission’ to promote these objectives. d) The Commission reconsiders the report after
receiving additional written opinions from
6. On November 21, 1947, the UN General Assembly
governments, and the report is submitted to the
passed Resolution 174, provided for the creation of
General Assembly for approval.
an “International Law Commission” to fulfill the
obligations of the Charter. The Commission consists 5. If the commission is requested by a government, an
of 34 members elected by the General Assembly. inter-governmental organization or a UN agency to
 15 16
draft proposals for international conventions on drafted a ‘New Code of Offences Against the Peace
various issues, the Commission formulates a plan of Mankind’.
of work and receives written opinions from
governments on the issue in question. This final b) It prepared a document on the rights and duties of
draft is also submitted to the General Assembly. States in International law. It established a
‘Criminal Chamber’ within the International Court
6. The commission also works independently of
of Justice, for prosecuting political leaders guilty of
external requests by its regular work of considering
crimes against International law.
questions of international law. In these cases also,
all recommendations for actions are submitted to c) It made a ‘General Survey’ of ‘Topics of
the General Assembly for final approval.
International Law’ that require codification into
MEMBERS OF THE COMMISSION: treaties and conventions.

1. The list of members of the International Law d) It studied the ‘Rights and Duties of States’.
Commission are persons of recognized competence
in international law”. The members of the e) It defined the crimes against the peace of mankind
Commission are persons who possess recognized in relation to the Nuremberg Principles.
competence and qualifications in both doctrinal and
practical aspects of international law. f) It explored the possibility of establishing a ‘Judicial
Body’ to prosecute leaders guilty of genocide.
2. Members are drawn from the various segments of
the international legal community, such as g) It found ways to make the rules and documents of
academia, the diplomatic corps, government International law available to the public and
ministries and international organizations. scholars.

3. No two members of the Commission may be nationals h) Highest priority was given to the topics of Law of
of the same State. Treaties, Arbitration and Regime of the sea, and

ANNUAL SESSIONS OF THE COMMISSION:

rapporteurs were elected accordingly.

1. I SESSION, 1949: 2. II SESSION, 1950:

a) The Commission formulated principles based on the The II session was held in Geneva from June 5 to
‘Judgement of the Nuremberg Tribunal’ and July 29, 1950.
 17 18
The agenda and the final resolutions of the session The agenda of the session was as follows:
were as follows:
a) Formulated the ‘Draft Code of Offenses against the
a) The draft declaration on the ‘Rights and Duties of Peace of Mankind’.
States’.
b) Disscussed ‘Duties of states in the event of the
b) Priority to the issue of ‘Territorial Waters’ outbreak of hostilities’

c) Formulated a set of ‘Seven Principles’ to be referred c) In ‘Law of treaties’ the acceptance of reservations
to as “Nuremberg Principles”. to multilateral treaties accepted.

d) Establishing an ‘International Court’ to try political 4. IV SESSION, 1952:

leaders guilty of genocide - The commission adopted a preliminary draft
regarding arbitral procedure consisting of 32
d) Discussion regarding ‘Laws of Treaties’.
articles.
e) Disscussion regarding ‘Arbitral procedure between
5. V SESSION, 1953:
states’
The commission began work on drafting a convention
f) In the ‘Regime of the High Seas’ - every ship on to reduce the problem of ‘Statelessness’.
the high seas must have only one nationality flag
for identification purposes. 6. VI SESSION, 1954:

The commission formulated a draft convention for

g) Wide distribution be made of UN publications on
the reduction of statelessness and a draft code of crimes
International law and that the UN begin publications
against the peace of mankind.
of documentary series on international tribunals
and national laws and constitutions of various 7. VII SESSION, 1955:
states.
The 7th session was held in Geneva from May 2 to
3. III SESSION, 1951: July 8, 1955.

The 3rd session was held in Geneva from May 16 to a) The commission adopted Provisional articles
July 27, 1951. concerning the regime of the high seas.
 19 20
b) Its recommendations the UN Secretary General accepting its recommendations when formulating
paved the way to orderly publication of the conventions.
commission’s yearbook.
2. Its annual sessions were brief and hence did not
Till 2013, the International Law Commission held allow thorough study of the problems under
65 sessions and during these sessions, it helped UNO discussion.
to codify many International unwritten laws.
3. The Commission refrained from formulating
ACHIEVEMENTS: principles on new issues and thus presented itself
The work of International Law Commission has led as incompetent.
to the creation of a number of treaties and other works
of international law that are key to the present H. PRESENT STATUS OF INTERNATIONAL LAW:
international legal order. The increasing multi-lateral treaties became the
sources of International legislations. International Law
The following are the important works of
has become an indispensable body of rules to regulate
International Law Commission.
the orderly relations between States. It has almost
The Vienna Convention on the Law of Treaties. become impossible to maintain State relations without
the help of International Law.
The Vienna Convention on Succession of States in
respect of Treaties. The development of International Law is at a faster
rate by Codification by International Law Commissions
The Vienna Convention on Diplomatic Relations. and by establishment of number of Permanent
International Organisations. The scope of International
The Draft Articles on the Responsibility of States
Law has widened to cover economic and social interest of
for Internationally Wrongful Acts.
States and also the fundamental freedom of human beings.
The International Criminal Court, first proposed in
J. CONCLUSION:
December 1948 at the request of the UN General
Assembly. International Law has become an important tool
to maintain International peace and order. The scope of
CRITICISM:
International Law also has become wide.To put it in the
1. Many governments ignored the conclusions of words of Prof. Starke, the International Law in the
International Law Commission and refrained from present status includes the laws relating to the
 21 22
functioning of International Institutions and their
relation with each other and also their relation with
2. DEFINITION AND NATURE OF
States and individuals and Non-State entities. INTERNATIONAL LAW

However, International Law is still a weak law due

(INTERNATIONAL LAW - A TRUE LAW OR NOT)

to its limited effectiveness. It should become strong and (INTERNATIONAL LAW - A VANISHING
effective to enable the States to live in peace and prosperity.
POINT OF JURISPRUDENCE)
UNIVERSITY QUESTIONS FOR REVIEW:
(MOST IMPORTANT)

1. Trace the origin and development of International law.

SYNOPSIS:
2. “The scope of International law has become wide
A. Introduction
unlike in the past”- Comment.
B. Definition
3. Define “International Law”. Trace the post second
world war development in the def inition of C. International Law - is not a law
international Law?
D. International Law - a law
4. Write Short Notes on: (a) Hugo Grotius (b) Ancient
International law (c) Basis of International Law E. International Law - a weak law
(d) International Law Commission (e) Present day
F. Steps to strengthen International Law
status of International Law.
G. International Law - a vanishing point of
Jurisprudence

A. INTRODUCTION:

Even from the early stages of International Law,

there was much speculation about it’s juristic nature. There
were extreme views and sharply divided opinions on this
controversial point. The controversy is due to the weakness
of International Law and also in the way of defining it.