Topic covered

INTRODUCTION

DEFINITION OF
INTERNATIONAL LAW

NATURE OF
INTERNATIONAL LAW

PRINCIPLES OF
INTERNATIONAL LAW

CLASSIFICATION OF
INTERNATIONAL LAW
INTRODUCTION
 Law is the element of the society which helps to develop a
framework within which rights and duties can be established.
 The world today requires a method where interstate relations can
be conducted, and International Law fills this gap.
 The United Nations developed this body of International Law for
the purpose of promoting international peace and security.
 Countries come together to make binding rules that they believe
will benefit their citizens.
 International Laws promote peace, justice, common interests and
trade. States work together to strengthen International Law
because it plays an important role in society.
 International Law is directly and strongly influenced by the
writings of jurists and publicists, instructions to diplomatic agents,
important conventions even when they are not ratified, and arbitral
awards.
Contd…..
 The term International Law or Law of Nations has been used in
contradistinction to the National Law or Municipal Law which
means the law of country.
 International Law is, generally, above and outside, the national laws
of the various States and to some extent operates on the territories of
all the States.
 The question whether it can be called a superior law remains in doubt
in spite of the growing acceptance and respect for international law
among the member-States.
 International Law deals with States as legal and political entities and
it applies to all the States equally without any regard to their size and
power.
 However, the powerful States have a peculiar tendency to interpret
the principles of international law in such a manner as to suit their
interest and convenience.
DEFINITION OF INTERNATIONAL LAW

 The words international law was used for the first time by
eminent British jurist, Bentham in 1780. Since then, these words
have been used to denote the body of roles which regulate the
relations among States. Though international law can be traced to
ancient Greece, Rome and India, it cannot be denied that the
public international law which we know today has come to us
through Europe. It is determined by the modem European system.
 Oppenheim's definition
Professor Oppenheim has defined international law in the
following words:
“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.”
The definition given by Oppenheim in 1905 has become obsolete
and inadequate.
Contd….
 In the ninth edition of Oppenheim's book (1992) the term
international law' has been defined differently after taking into
account of 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
organizations and, to some extent, also individuals may be subjects
of rights conferred and duties imposed by international law.”

This new definition of international law is nearly similar to that

given by Starke and Fenwick. However, it is still deficient in one
respect viz. its silence regarding general principles of law'
recognized by civilized nations.
OTHER CLASSIC DEFINITIONS

 BRIERLY
“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.”
 QUEEN V. KEYN, (2 Ex. D. 63 (1876)). Lord Coleridge, C.J. defined
international law as: “The law of nations is the collection of usages which
civilized States have agreed to observe in their dealings with one another.”
 GRAY
“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.”
 COBBETT:
“International Law may be described as the sum of the rules accepted by
civilized States as determining their conduct towards each other, and towards
each other's subjects.”
The above definitions can also be criticised in the same way as Oppenheim's
definition has been criticised. The definitions are inadequate to represent
modem international law.
Modern definitions

 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.”
 The definition takes into account the changes that have taken place after
the Second World War. The words members of the international
community' include States, international institutions, individuals and non-
State entities. The term general principles' is also incorporated in the
definition.
 WHITEMAN:
 “International law is the standard of conduct, at a given time, for States and
other entities subject thereto.”
 A brief but adequate definition; the words other entities subject thereto'
may include international organizations, individuals and non-State entities.
Whiteman has also emphasized dynamic aspect of international law:
International Law is, more or less, in a continual state of change and
development.
Contd….
 STARKE:
 “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:
i. the rules of law relating to the functioning of international
institutions/organisations, their relations with each other, and their relations
with State and individuals; and
ii. certain rules of law relating to individuals and non-State entities so far as
the rights and duties of such individuals and non-State entities are the
concern of the international community.”
 The definition of Starke takes into account the changing character of
international law and truly reflects the present position of international law.
However, if an entity not enumerated by Starke ever comes within the scope
of international law with the passage of time; the definition would again be
subjected to criticism. Thus, the definition does not stand correct for all times
to come.
Contd….
 SCHWARZENBERGER:
“International law is the body of legal rules which apply
between sovereign States and such other entities as have
been granted international personality.”

Thus, unlike Starke, Schwarzenberger very rightly preferred

not to name the entities whose rights and duties are
regulated by international law. According to him,
international law, if and when grants international
personality to any entity, or when international law would be
capable of regulating rights and duties of any entity, its rules
shall apply to them. It is immaterial if only certain miles
regulating the rights and duties are framed for them.
NATURE OF INTERNATIONAL
LAW
IS INTERNATIONAL LAW TRUE LAW?

 One of the most controversial issues that has long been

debated and on which the opinions of the jurists are sharply
divided concerns the status of international law.
 The debatable question is: Is international law really 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
a State which are binding upon the individuals.
 The controversy whether international law is a law or not
revolves on the divergent definitions of the word law' given by
the jurists.
1. Not a true law

AUSTIN'S VIEW
 John Austin, a leading English writer on Jurisprudence supports the view that
International Law is not a law.
 According to Austin, “law is a command of the sovereign attended by sanction in
case of violation of the command.”
 The definition contains two important elements:

i. Firstly, law is a command enacted by the sovereign legislative authority, and

ii. secondly, it must be enforced by the sovereign authority.
 Austin said that international law cannot be called law proper in the true sense,
because 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. The rules commonly called international law are in
fact the rules of positive morality; the rules are analogous to the rules binding a
club or society. International law is a code of conduct with moral force and
nothing more. It consists of opinions or sentiments current among nations
generally'. A rule is a rule of morality, if by common consent of the community it
applies to conscience and to conscience only.
Contd….
 Hobbes and Pufendorff are also of the view that International Law
is not a true law as the law is not truly invested with true legal force
and it is not backed by the command of a superior.
 Holland is of the view that International Law is extremely different
from ordinary laws as it is not supported by the State’s authority. As
per him, the private law is writ large. He describes International
Law as “the vanishing point of Jurisprudence”. He is of the view
that as International Law lacks sanction (which is the most
important element of Municipal Law) it can not be kept in the
category of true law.
 Criticism of Austin's view
The above view which denies the legal character of international law
has been severely criticized by a large number of jurists. According
to Oppenheim, law is a body of rules for general conduct within a
community which by common consent of this community shall be
enforced by external power.
2. A true Law

 Hall And Lawrence consider International Law as

true law. According to them, “International Law is
derived from custom and precedents which are a
source of law and it is habitually treated like a
certain kind of positive law.”
 Sir Frederick Pollock observed that for
“International Law to be binding upon the
members, the only essential conditions are the
existence of political community and the
recognition by its members of settled rules binding
upon them in that capacity. International Law
wholly satisfies these conditions.”
Contd….
 Oppenheim regards international law as law because of the
following two reasons:
i. firstly, international law is constantly recognized as law in
practice, the Government of different States feel that they are
legally as well as morally bound to follow it;
ii. secondly, while breaking it, States never deny its legal existence,
rather they recognise its existence and try to interpret international
law as justifying their conduct.
 According to Brierly:
the best evidence for the existence of international law is that every
State recognizes that it does exist and that it is itself under
obligation to observe it. States may often violate international law,
just as individuals often violate municipal law; but no more than
individuals do, States defend their violations by claiming that they
are above the law.
Contd….
 According to Starke, international law is really law.
He has put forward four main arguments:
i. firstly, in many primitive communities, a system of law
existed without there being a formal legislative authority;
ii. secondly, international legislation in the form of law-
making treaties and conventions has come into existence
today;
iii. thirdly, the authoritative agencies responsible for the
maintenance of international intercourse do not regard
international law as merely a moral code;
iv. lastly, the United Nations is based on the true legality of
international law.
 The arguments of the jurists who regard international law as really law, may be
summed up as follows:
i. The term law cannot be limited to rules of conduct enacted by a sovereign authority.
Customary rules of law do exist viz. common law of England. The rules laid down by
treaties are binding although they do not emanate from a sovereign political authority.
The procedure for formulating international rules is well settled by means of treaties, etc.
ii. When international questions arise, States do not rely upon moral arguments but rely
upon treaties, precedents and opinions of specialists. Thus, States do not deny the
existence of international law. In some States (e.g. USA and UK), international law is
treated as part of their own law (Paquete v. Habanna (1900) 175 US 677), As aptly
remarked by Prof. Hart, international law is law because States regard it as law. Nothing
need be further proved.
iii. International conferences and conventions also treat international law as law in its true
sense. The United Nations is based on the true legality of international law. As per statute
of the International Court of Justice, the Court to decide disputes as are submitted to it in
accordance with international law. The Court's decisions are binding upon the parties to a
dispute, and under certain conditions its decisions can be enforced. Besides this there are
a variety of International Tribunals such as International Tribunal for the Law of the Sea.
iv. So far as sanction in law is concerned, international law does not completely lack it.
v. International law is not very frequently violated.
Principles of International Law

 International Law is based on the following two

principles:
i. Jus Gentium: These set of rules do not form part of
a legal statute but mutually governs the relationship
between two nations.
ii. Jus Inter Gentes: These refer to those treaties and
agreements that are accepted by both countries
mutually.
 International Law provides effective means through
which peaceful settlement of disputes can be done. It
is mainly concerned with the rights, duties and the
interests of the State.
Public International Law Private International Law
 Public International Law is  It regulates private conflicts
regulated by the treaties and between individuals rather
globally accepted norms and than the States. It seeks to
customs which are included resolve disputes in the
as State practice and opinio domestic municipal body
Juris. It regulates the which involves an issue
relationship between those
revolving beyond its
nations and peoples that are
domestic jurisdiction.
prone to be affected by a
particular law as they are
bound by these legal codes
and rules.

CLASSIFICATION OF INTERNATIONAL LAW