Introduction to International

Law
Nature of International Law
• Law has a central role to play in human existence and civilization
• What can be done, what cannot be done, what is permissible, what is
not permissible
• 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
• The same is true of both national and international law
Nature of International Law
• “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.
• 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.
Definition of International Law
• “The legal system governing the relationships between nations; more
modernly, the law of international relations, embracing not only
nations but also such participants as international organizations and
individuals (such as those who invoke their human rights or commit
war crimes)
• -------- Black’s Law Dictionary, 8th edition
Development of International Law
• The modern system of international law is a product, roughly
speaking of only the last 400 years.
• The modern European system has a prominent contribution in
determining international law, but it can not be denied that the roots
of international law are found in the rules and usages of which were
observed by different nations before the dawn of Christianity.
• The direct contribution of the the Greeks and Romans to the
development of international law is relatively meagre.
Development of International Law
• The conditions favourable to the growth of modern law of nations in
the real sense started after the 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.
Development of International Law
• The science of modern international law owes its birth to Hugo
Grotius whose work De Jure Belli Ac Pacis appeared in 1625.
• Grotius work lent legal basis to many areas of international law and
therefore he is popularly known as the 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.
Development of International law
• 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 growing interdependence of States, the scientific and
technological revolutions, growing concern for human rights and
humanitarian principles have given new dimensions to international
law and have considerably widened its horizons.
Development of International law
• The new international law is based on social interdependence and
aims at bringing what may be called international social justice.
Development of international law
• 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 favorable action of foreign offices and
national legislatures.
• The International Law Commission is currently conducting studies and
preparing drafts in many areas of international law.
Development of international law
• To sum up, there are many factors working towards the creation of
international law – technological developments, economic, political,
sociological and strategic considerations, humanitarian impulses,
interdependence of the world, and the interest of academicians.
• There are still wide gaps in international law but the international
coommunity is making all possible endeavours to fill these gaps.
Scope of international law
• Public international law establishes the framework and criteria for
identifying states as the principal actors in the international legal
system.
• As the existence of a state presupposes a 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 also concerned with the treatment of individuals
within state boundaries.
Scope of international law
• There is thus, a comprehensive legal regime dealing with group rights,
the treatment of aliens, the rights of refugees, international crimes,
nationality problems and human rights.
• 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.
Scope of international law
• 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.
Scope of international law
• While 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.
Scope of international law
• 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.
Scope of international law
• 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 penal
system.
• However, there are means by which breaches are brought to the
attention of the international community and some means for
resolution.
Scope of International Law
• For example, there are judicial or quasi-judicial tribunals in certain
areas of international law such as trade and human rights.
• The formation of the United Nations created a means for the world
community to enforce international law upon members that violate
its charter through the security council.
• But it is certain that international law will be effective only if states
respond by pursuing domestic policies which accommodate prevailing
international opinion.
Scope of International Law
• Traditionally, States and the Sea were the sole subjects of
international law .
• With the proliferation of international organizations over the past
century, they have in some cases been recognised as relevant parties
as well.
• Recent interpretations of international human rights law and
international trade law have been marked by the inclusion of
corporations, and even certain individuals in the ambit of
international law.
Nature of International Law
• Regarding the nature of international law, there are 2 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 the traditional view are Oppenheim, Brierly, Hall and
Hacksworth.
Nature of International Law
• As to the modern view, Fenwick’s definition of international law
succinctly sums up the contemporary viewpoint.
• Others who have propounded similar views are Starke, Korowicz and
Whiteman.
• The dynamism of international law has expanded its horizons and
acquired for it completely new dimensions.
Dynamism of International law
• There are various factors which have lent dynamism to international
law.
• (1) The movement of the international protection and promotion of
human rights
• (2) The emergence of international institutions having international
legal personality.
• (3) Several international conventions
Nature of International Law
• The factors mentioned in the previous slide have profoundly affected
the nature and orientation of international law in a big way and
helped in the adoption of rules of universal character.
• Now, there is greater emphasis on international cooperation,
whereby states work together rather than individually.
• Matters once considered exclusively within domestic jurisdiction are
now susceptible to international regulations.
Nature of International Law
• International law can no longer be adequately or reasonably defined or
described as the law governing the mutual relations between states.
• International law is the law of an organized 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’
• Much theoretical controversy has been waged over the nature of
international law.
• One of the most debatable questions concerning the controversy is
whether international law is true 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.
International Law as Law
• It must always be kept in mind that, the answer to the question
whether international law is true law depends entirely on how one
defines law and what its object is.
International Law: Austin’s view
• John Austin is regarded as one of the foremost critics of international
law and the chief protagonist of the view that international law is not
true law.
• According to Austin, law is a command of the sovereign, enforced by
a superior political authority, violation of which attracts sanctions.
• Thus there are three essential elements in Austin’s definition of law,
namely, command (of the sovereign), duty (of inferiors)and sanction
(in case inferiors commit breach of the command).
International Law: Austin’s view
• 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.
• Austin therefore concludes that international law is not true law but
positive international morality.
Austin’s views on International law
• In international law, there does not exist any determination by a
superior political authority, which is a feature of municipal law.
• International law lacks an effective legislative machinery
• International law lacks sanctions
• 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 treaties.
• International law lacks a potent judiciary.
Criticism of Austin’s view
• Austin’s definition of law commonly known as the command theory
has been vehemently criticised by a large number of jurists.
• The difficulty inherent in the Austinian conception is that he has
analysed law in perfect form.
• Austin’s definition of law is narrow, contracted and unbending.
• Modern historical jurisprudence has discounted the force of his
general theory of law by disclosing that Austin has disregarded law in
various phases of its growth.
• Law is not a cut and dried system. It is an organism and the result of
organic growth.
Criticism of Austin’s view
• As far as the need for a competent legislative body in the Austinian
concept of law is concerned, in many communities without a formal
legislative authority, a system of law was in force and being observed,
and such law did not differ in its binding operation from the law of
any state with true legislative authority.
• Furthermore in addition to legislation, law exists in the form of
customary rules also.
• Austin’s concept of law is incomplete inasmuch as it ignores custom
altogether.
Criticism of Austin’s views