Notes on International Law

International Law-Definition, Nature and Historical Development of

International Law, Sources, Treaties, Relation between Int. Law and
Municipal Law, Basic of Int. Law
Q:-What do you mean by International Law? What are the scopes of
international law?
Synopsis
a. Introduction
b. Definition
Oppenheim's Definition
Starke's definition
Dr. Schwarzeneggers definition
West Rand Central Gold Mining Ltd. Co. v. King
Queen v. Keyn:
c. Scope of International Law
d. Conclusion
Introduction
International law, also called public international law or law of nations,
the body of legal rules, norms, and standards that apply between
sovereign states and other entities that are legally recognized as
international actors. The term was coined by the English philosopher
Jeremy Bentham (17481832). International law is the set of rules
generally regarded and accepted as binding in relations between states
and between nations. It serves as a framework for the practice of stable
and organized international relations. International law differs from
state-based legal systems in that it is primarily applicable to countries
rather than to private citizens.
International law denotes norms to regulate relations, transactions and
actions which transcend national boundaries. In the contemporary state
of world affairs this branch of law has assumed immense practical
importance. The lightning means of transport and almost instant
communication have bridged the gaps of time and space; bringing, thus,
the peoples of this planet closest ever to each other. Constraints of
development and consequent industrialization have led to the
increasing interdependence of nation-states. The ever growing contacts
have opened unprecedented avenues of cooperation as well as of
conflict. The demands of "steady and smooth intercourse between states
as well as individuals has added to the significance-nay indispensability-
of rules, which we know of today, as international law.
Definition
British jurist, Jeremy Bentham used the words 'international law' for the
first time, in 1780. Since then, these words have been used to denote the
body of rules which regulate the relations among states.
Modern European system has prominent contribution in determining
international law, though it can be traced to ancient Greece, Rome and
India as well.
Oppenheim's Definition: In 1905, Prof. Oppenheim defined international
law as follows,
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.
Starke's definition: 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:
a) the rules of law relating to the functioning of international
institutions/organisations, their relations with each other, and their
relations with States and individuals; and
b) certain rules of law relating to individuals and non-state entities so
far as the rights or duties of such individuals and non-state entities are
the concern of the international community.
This definition does not stand correct for al1 times to come, as and if an
entity not enumerated under it ever comes within the scope of
international law with the passage of time, the definition would again be
subjected to criticism.
Dr. Schwarzeneggers definition: International law is the body of legal
rules which apply between sovereign states and such other entities as
have been granted international personality.
West Rand Central Gold Mining Ltd. Co. v. King: In this case the Court
observed, International Law may be defined as "the form of the rules
accepted by civilized States as determining their conduct towards each
other and towards each other's subjects.
Queen v. Keyn: In the Queen v. Keyn, Lord Coleridge, C.J., defined
International Law in the following words: The law of nations is that
collection of usages which civilized States have agreed to observe in
their dealings with one another:
Scope of International Law
Public international law establishes the framework and the criteria for
identifying states as the principal actors in the international legal
system. As the existence of a state presupposes 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 similarly concerned with
the treatment of individuals within state boundaries. There is thus, a
comprehensive regime dealing with group rights, the treatment of
aliens, the rights of refugees, international crimes, rationality problems,
and human rights generally. It
Conclusion
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. It may be universal or general, in which
case the stipulated rules bind all the states (or practically all depending
upon the nature of the rule), or regional, whereby a group of states
linked geographically or ideologically may recognise special rules
applying only to them, for example, the practice of diplomatic asylum
that has developed to its greatest extent in Latin America. 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.
Q:-Explain the nature and development of International law.
Synopsis
Introduction
Development of International Law
Nature of International Law
International Law as Law
Austin's View
Conclusion

Introduction
International Law consists of certain rules of conduct which modem
civilized states regard as 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
Development of International Law
The present day International law may be said to be four hundred years
old. However, the roots of international law are found in the rules and
usages which were observed by different nations before the dawn of
Christianity. The direct contribution of Greeks and Romans to the
development of international law is relatively meager. The conditions
favourable to the growth of modem law of nations in real sense started
after 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.
The science of modem international law owes its birth to Hugo Grotius,
whose work, De Jure Belli ac Pacis (The Law of War and Peace) appeared
in 1625. Grotius' work lent legal basis to many areas of international
relations and therefore he is popularly known as 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.
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 new international law is based on social interdependence and aims
at bringing what may be called international social justice.
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 growing interdependence of the States, scientific and technological
revolution, growing concern for human rights and humanitarian
principles have given new dimensions to international law and have
considerably widened its horizons.
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 above all the interest of academicians.
However there are still wide gaps in international law but the
international communitys is making all possible endeavors to fill these
gaps.

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.
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.
Nature of International Law
Regarding the nature of international law there are two 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 traditional view are Oppenheim,
Brierly, Hall, T. Gill, Hackworth et.al. However the modern view holds
that international law is dynamic in nature. As to the modern view,
Fenwicks definition of international law succinctly sums lip the
contemporary viewpoint. Others who have propounded similar views
are Starke, Korowicz, Whiteman et. al. Jessup and Kelsen's view lies
between the traditional and contemporary viewpoints. The dynamism of
international law have expanded the horizons of it and acquired for it
completely new dimensions. 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.
International law can, therefore, no longer be adequately or reasonably
defined or described as the law governing the mutual relations of the
States. International law is the law of an organised 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
Is international law true law? This controversy is the most debatable
question regarding international 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.
Austin's View
John Austin is regarded as one of the foremost critic of international law.
According to Austin law is a command of sovereign, enforced by a
superior political authority, violation of which attracts sanctions. Thus
there are three essential elements in the Austin's definition of law
namely command (of the sovereign) duty (of inferiors) and sanction (in
case inferiors commit breach of the command). 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; by fear on the part of nations or by fear on the part of
sovereigns. Austin therefore concludes that international law is not true
law but 'positive international morality' only, analogous to the rules
binding a club or society. This view can be summarised as follows:
a) In International law there does not exist any determination by a
superior political authority, which is there in municipal law.
b) International law lacks an effective legislative machinery.
c) International law lacks sanction which according to the writers of this
persuasion is an essential element of law.
d) 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 the treaties.
e) International law lacks a potent judiciary.
f) Some writers call international law a quasi-law.
Bentham also looks at international law as international morality or
ethics, international courtesy or convention in the social sense of the
word, comity as distinguishable from rule of law.

Hobbes and Pufendorf have also questioned the true legal character of
international law.
Conclusion
International law is a body of rules and principles which regulate the
conduct and relations of the members of international community. The
contention that states alone are subjects of international law is not only
inconsistent with the changing character of international law but has
become completely obsolete and inadequate.
Thus, international law is constantly evolving body of norms that are
commonly observed by the members of international community in
their relation with one another. These non11S confer rights and impose
obligation upon states and, to a lesser extent upon international
organizations and individuals.
Q:-What are the various sources of International Law?
Synopsis
Introduction
a. Sources of International Law
b. Custom
Elements
Duration
Uniformity or Consistency
Generality
c. Treaties
d. General Principles of Law Recognized by The Civilized Nations
e. Judicial Decisions
f. Writings of legal scholars
g. Ex aequo et bono (Equity)
Introduction
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 subject of rights conferred and duties imposed
by International law. But this definition is silent regarding 'general
principle of law' recognized by civilized nation.

Sources of International Law

By sources of international law we mean the actual materials from which
an international lawyer ascertains the rule applicable to a given
situation."
Classification of sources
Sources of international law may be classified into two categories.
(i) Formal sources.
(ii) Material sources.

I. Formal sources of international law:

A formal source is that source which a rule of law derives its force and
validity. there are no formal sources of international law and one of the
main criticism on international law is that it does not have an legislature
of its own, thus its laws cannot have any sanction.
II. Material sources of international law:
Material sources of international law are those actual materials form
which an international lawyer determines the rule applicable to a given
situation article 38 of the stature of international court of justice enlists
such material sources of international law. there are all kinds of sources
in this statute including primary and secondary. Pare second of article
38 of the statute enlists secondary sources of international law.
Article 38 of statute of international court of justice:
The court whose function is to decide in accordance with international
law such disputes as are submitted to it shall apply.
a. International conventions whether general or particular establishing
rules expressly recognized by the contesting states.
b. International custom as evidence of a general practice accepted as
law.
c. The general principles of law recognized by civilized nations.
d. Judicial decisions and teaching of the most highly qualified publicists
of the various nation as subsidiary means for the determination of rules
of law.

1. Custom
Custom is the original and the oldest source of International Law and at
a time it was the most important amongst the sources. Custom is the
foundation stone of the modern International Law. It was so because a
large part of International Law consisted of customary rules.
International custom may mean a kind of qualified practice,
distinguished from others (for example, from usage) by the existence of
a corresponding legal obligation to act according to this practice, hence
by the existence of a corresponding rule of International Law. They
evolve through the practices of and usages of nations and their
recognition by the community of nations. As such, they are not the
creatures of the sovereign or a State.
In order to establish the existence of an international custom, primarily
three elements are required to be present which are duration,
continuity and generality.
Asylum case (1950)
"The rule invoked should be in accordance with a constant and uniform
usage practiced by the states in question."
(iii) Generality practice or observed.
(iv) Opinio juris et necessitates.
a) Duration
When a particular usage is practiced by the States for a long duration, it
has tendency to become custom. How much time usages take to
transform into custom is a question which is difficult to answer. In the
young Jacob and Johanna. Lord Stowell commented that the period of a
hundred years which has since elapsed is simply sufficient to have
enabled what originally may have vested in custom or comity; courtesy
or concessions to grow, by the general assent of civilized nations, into a
settled rule of International Law. The above proposition does not appear
to be sound.
A usage may become custom even in a short time. All depends on the
circumstances of the case and the nature of the rule involved. Practices
relating to continental shelf and rules relating to air space have become
custom in a short time.

b) Uniformity or Consistency
A practice is required to be followed consistently by the States. In the
words of the Permanent Court of International Justice in the Lotus case,
the practice should be constant and uniform.

c) Generality
It is essential that a usage should be practiced by most of the States in
order to transform into a custom. The above implies that there is no rule
which prescribes that the consent of all Stated is a necessary condition to
the formation of a customary rule. In West Rand Central Gold Mining Co.
Ltd. V. R., it was held that it must be proved by satisfactory evidence that
the alleged, that it can hardly be supposed that any civilized State would
repudiate it. In the Fisheries Jurisdiction case the Court used the
expression generally accepted which may mean that a general
customary rule is required to be accepted generally by the States. It
follows that if a usage is practiced only by a limited number of Stated it
will not transform into custom.
2. Treaties
International treaties are contracts signed between states. They are
legally binding and impose mutual obligations on the states that are
party to any particular treaty (states parties). At present, international
treaties are the most important source of International Law. Article
38(1)(a) of the Statute of the International Court of Justice lays down
that the Court while deciding any dispute shall apply international
conventions, whether general or particular, establishing rules expressly
recognized by the contesting States, in preference to other sources of
International Law. Treaties therefore have acquired a dominant
importance in International Law.
Treaties are agreements between two or more States or between other
subjects of International Law by which they create or intend to create a
relationship between themselves. Such agreements are sometimes
referred to convention, protocol, accord etc. The terminology varies but
the substance is the same.
3. General Principles of Law Recognized by The Civilized Nations
Although custom and treaties are in practice the principal sources of
International Law, they cannot be regarded as its only sources.
Paragraph (1) (c) of Article 38 of the Statute of the International Court of
Justice constitutes an important landmark in the history of International
Law inasmuch as the States Parties to the Statute did expressly recognize
the existence of a third source of International Law independently of
custom and treaties.
Article 38 of the Statute of the ICJ refers to the general principles of law
recognized by civilized nations (all nations are now considered as
civilized) as a primary source of International Law. This source is listed
the third after international conventions and international customs. The
Court shall apply the general principles of law in cases where treaties
and customs provide no rules to be applied.
Notably, there is no agreement on what the term general principles of
law means. Some say it means general principles of international law;
others say it means general principles of national law. Actually, there is
no reason why it should not mean both; the greater expansion in the
meaning of this term, the greater chance of finding rules to fill the gaps
in treaty law and customary law. Indeed, international tribunals had
applied general principles of law in both senses for many years before
the Permanent Court of International Justice was established in 1920.
Nevertheless, there are various opinions as to the origin of the general
principles of law. Some regard them as being originated from the Natural
Law which underlies the system of International Law and constitutes the
criteria for testing the validity of the positive rules. Others regard them
as stemmed from the national legal systems (Positive Law) and have
been transplanted to the international level by recognition.
Whatever the meaning of the term general principles of law and the
origin of these principles, these principles are considered to be at the
foundation of any legal system, including International Law. Actually,
there is an agreement that the general principles of law do constitute a
separate source of International Law. Examples of general principles of
law are the principles of consent, equality, administration of justice,
good faith, reciprocity, forbidding abuse of right and res judicata.
Chorzom factory case 1927
"In this case the court of the international justice applied general
principle of Res- Judicata.
4. Judicial Decisions
Article 38 of the Statute of the ICJ directs the Court to apply judicial
decisions as subsidiary means for the determination of rules of law. This
direction is made subject to the provisions of Article 59, which states
that the decision of the Court has no binding force except between the
parties and in respect of that particular case. The provision of Article 59
of the Statute of the ICJ is understood to mean that the Court is not
obliged to follow previous decisions. So while, as Article 59 ascertained,
the doctrine of precedent as it is known in the Common Law, whereby
the decisions of certain courts must be followed by other courts, does
not exist in International Law, it is still that the decisions of the
international courts (PCIJ and ICJ) are quoted as authoritative decisions,
and international courts have always strived to follow their previous
decisions to insert certainty and uniformity within their judicial process,
or at least, they have had to take previous decisions into account.
The judge of the ICJ sometimes does a little more than merely determine
a law; he may establish a law. This has occurred in many instances: the
Anglo-Norwegian Fisheries case of 1951, which stated the criteria for the
recognition of baseline from which to measure the territorial sea and the
Reparations case of 1949, which established the legal personality of
international organizations.
The PCIJ, during its existence, gave a large number of decisions and
advisory opinions on matters of international concern, thereby
developing International Law. The ICJ, the successor of the PCIJ, has been
doing the same.
As the term judicial decisions referred to by Article 38 also
encompasses decisions (awards) of international arbitral courts
(tribunals) and the decisions of national courts, these decisions have
been playing a role in the development of International Law.
There have been many international arbitral tribunals, such as the
Permanent Court of Arbitration and the various mixed-claimed
tribunals, including the British-American Mixed Claims Tribunal and the
Iran-US claims Tribunal. Although these tribunals differ from the
international courts in some ways, many of their decisions have been
extremely significant in the development of International Law.
The decisions of national courts of various nations have played a role the
development of International Law, particularly the international
customary law. These Decisions help to form international customs.
They show what the national courts have accepted as international law
and how the International Law, in the given case, is understood in that
country. Examples of such rules of law developed by, or derived from the
uniform decisions of national courts are certain rules of extradition law,
the rules related to State recognition, and the rules of diplomatic
immunity.
One may finally say that judicial decisions, whether international or
national, have played an important part in the development of
International Law. The international customary law has largely
developed from case to case, and a large number of cases have been
submitted to international as well as national courts of various nations.
5. Writings of legal scholars
Article 38 of the Statute of the ICJ includes as a subsidiary means for the
determination of rules of law, the teachings of the most qualified
publicists of the various nations. The term teachings of publicists
means writings, opinions or works of legal scholars, jurists or
writers.
This Article emphasizes the evidentiary value of writings of the legal
scholars. The primary function of these writings is to provide reliable
evidence of the law. Writers on International Law cannot make the law;
their works are to elucidate and ascertain the principles and rules of
International Law. To be binding, the rules and principles must have
received the consent, whether express or implied of States, who are to be
bound by it. Historically, the writers on International Law such as
Gentili, Grotius, Pufendorf and Vattel were a primary factor in the
evolution of the modern International Law; they were the supreme legal
authorities of the Sixteenth to Eighteenth Centuries. They determined
the scope, form and content of International Law. However, the
importance of legal writings began to decline as a result of the emphasis
on the state sovereignty; treaties and customs assumed the dominant
position in the exposition and development of International Law.
Nevertheless, like judicial decisions, the opinions of legal scholars can
provide evidence of the existence of customary law and can help in
developing new rules of law.
The opinions of legal scholars are used widely. Arbitral tribunals and
national courts make extensive use of the writings of jurists. However,
the International Court of Justice makes little use of jurisprudence, and
judgments contain few references; this is, primarily, because of the
willingness of the Court to avoid a somewhat undesirable selection of
citations. However, many references to writers are found in the
pleadings before the Court.
6. Ex aequo et bono (Equity)
Article 38 of the Statute of the ICJ lists ex aequo et bono as an alternative
basis for a decision by the Court in place of the normally employed legal
rules. The Court can decide a case submitted to it ex aequo et bono (in
justice and fairness) only if the parties agree thereto. Ex aequo et bono is
somewhat analogous to but not exactly the same as the Common Law
concept of equity. It is broader than equity and gives the Court greater
power than the latter. It allows the Court to decide a case on
considerations other than legal rules, or even in contrary to these rules,
if it sensed that justice can be served thereby. Thus the term ex aequo et
bono means justice and fairness or equity. Neither the International
Court of Justice nor its predecessor, the Permanent Court of
International Justice, has been called upon to decide a case ex aequo et
bono, although principles of equity have been applied by these courts in
some cases. The ICJ in the North Sea Continental cases (1969) directed
the delimination between the parties (West Germany, Holland and
Denmark) in accordance with equitable principles. The PCIJ in the
Diversion of Water from the Meuse River case (1937) applied principles
of equity after considering them as part of the International Law which it
should apply. Moreover, international arbitral tribunals have resorted
to the principles of equity in several cases.
Despite the application of the principle of equity by international courts,
the existence of equity as a separate and distinct source of law is highly
controversial. Some regard equity as a source of International Law, and
apply it as distinguished from law; however, they often appeal to natural
law in order to strengthen their arguments. Thus to them the three
terms equity, justice and natural law tend to merge into one
another. During the Sixteenth and Seventeenth Centuries natural law
was a major source of International Law. In the Nineteenth and
Twentieth Centurys arbitrators have often been authorized to apply
justice and equity as well as International Law; such authorizations were
more common before 1920 than they are today.
Other scholars do not recognize equity as a separate and distinct source
of law; they regard the principles of equity as part of the general
principles of law that are common to all national legal systems.

Whatever the position may be, it is doubtful whether equity form a

source of international law. It cannot be assumed that a judge uses
equity as a source of law every time he describes a rule as equitable or
just. Strictly, equity cannot be a source of law; yet it may play an
important role in supplementing the law or may appear as a part of
judicial reasoning. A judge or arbitrator can always use equity to
interpret or fill gaps in the law, even when he has not been expressly
authorized to do so. But he may not give a decision ex aequo et bono
unless he has been expressly authorized to do so.

Public International Law and national law (municipal law as known in

the Common Law Countries) are two legal systems. National law governs
the domestic (internal) relations between the official authorities of a
State and between these authorities and individuals as well as the
relations between individuals themselves. Public International Law
governs primarily the relations between States.

Q:-What is relation between international law and municipal law?

Synopsis
a. Introduction
b. Theories
c. The dualist theory
d. Difference
Regarding Sources
Regarding Subjects
Regarding Substance of Law
Regarding Principals
e. The monist theory
f. Conclusion
Introduction
While International Law is applied in the relations of the States and to
other subjects of International Law, national or State law which is called
municipal law is applied within a State to the individuals and corporate
entitles which are the bearers of rights and duties there under.
Apparently, it might be looking that there is hardly any relationship
between the two systems as they constitute two different legal systems
each of which is designed to operate in its own sphere and they are
applied distinctly to their subjects by different courts, but it not so.
The Theories Dealing with the Relations between International Law and
National Law There are two major theories on the relationship between
Public International Law and national law. The first is the dualist theory.
The second is the monist theory.
1. The dualist theory
The dualist theory considers that International law and national law are
two separate legal systems which exist independently of each other.
Each of these two systems regulates different subject matters, function
on different levels, and each is dominant in its sphere. Public
International Law primarily regulates the conduct of sovereign States.
National law regulates the conduct of persons within a sovereign State.
On this view, neither legal system has the power to create or alter rules
of the other. When national law provides that International Law be
applied in whole or in part within the jurisdiction, this is merely an
exercise of the authority of national law in the adoption or
transformation of the rules of International Law into its legal system.
The national law has a supremacy over the International Law; in the case
of a conflict between International Law and national law, a national
court would apply national law.
The above view that the two systems of law differ from each other on the
following grounds:
a. Regarding Sources
According to dualists, while the sources of municipal laws are custom
grown up within the boundaries of the State concerned and the statutes
enacted by the sovereign, the sources of International Law are custom
grown up among the States and law-making treaties concluded by them.
b. Regarding Subjects
Dualists are of the view that the subjects of international and municipal
law are different from each other. While municipal law regulates the
relations between the individuals and corporate entities and also the
relations between the State and the individuals. International Law
regulates primarily the relations between States.
c. Regarding Substance of Law
Substance of the laws of the two systems is also different. While
municipal law is a law of a sovereign over individuals International law
is a law not above, but between sovereign States. Its norms are created
by its subjects themselves i.e., by the States through agreements where
essence is a concordance of the will of States or by other subjects of
International Law. Thus, municipal law addresses itself to the subjects of
the sovereigns, International Law to the sovereigns themselves.
d. Regarding Principals
Amzilotti is of the view that while municipal laws in a State are obeyed
because they are the principles of State legislatures, International Law is
obeyed because of the principle of pacta sunt scrvanda. Thus, while in
municipal law here is a legal sanctity, International Law is followed
because States are morally bound to observe them.
2. The monist theory
The monist theory which upholds the unity of all law, regards
International Law and national law as forming part of the same legal
system (order). It argues that both laws are based upon the same
premise, that of regulating the conduct and the welfare of individuals.
However, it asserts the supremacy of International Law over national
law even within the national sphere in the case of a conflict between the
two laws, International Law is supreme.
Conclusion
Facing these two basic theories, a third approach is introduced. This
approach is somewhat a modification of the dualist theory. It attempts to
establish a recognized theoretical view tied to reality. While it asserts
that the two laws are of two distinct legal systems, it denies that a
common field of operation exists as between International Law and
national law by which one system is superior or inferior to the other.
Each law is supreme in its own sphere (field). Just as one cannot talk in
terms of the supremacy of one national law over another, but only of two
distinct legal systems each operating within its own field, so
International Law and national law should be treated in the same way.
Each law exists within a different juridical order. Because the above
opposing theories, in reality, do not adequately reflect actual State
practice, the scholars in each side have forced to modify their original
positions in many respects, bringing them closer to each other, without,
however, producing a conclusive answer on the true relationship
between International Law and national law. This fact has led some legal
scholars to pay less attention to these theoretical views and to prefer a
more empirical approach seeking practical solutions in a given case.The
method of solving a problem does not probe deeply into theoretical
considerations, but aims at being practical and in accord with the
majority of States practice and international judicial decisions. On this
view, it is more useful for us to leave the theoretical controversy aside
and direct our attention to the attitude of International Law to national
law and the attitude of the various national laws to International Law;
these are what are discussed in the following two sections.

Q:-Write short notes on Treaties.

Synopsis
a. Introduction
b. Definition
c. Kinds of Treaties
Bilateral Treaties
Multilateral Treaties
d. Who can be Parties to a Treaty
Introduction
The term treaty means a written agreement by which two or more States
or international organizations create or intend to create a relation
between themselves operating within the sphere of International Law.
The above definition contains four important elements.
Firstly, treaties should be in writing. Although classical International
Law did not prescribe that treaties should always be in writing, it is rare
to find an oral agreement between the States. The Vienna Convention on
the Law of the Treaties of 1969 lays down that treaties should be
concluded in written form only. Oral agreements are neither precise nor
permanent, and therefore at present, it has become essential that
treaties should be concluded in writing.
Secondly, parties to a treaty may be either States, or a State and
international organization, or international organizations.
Thirdly, the purpose of a treaty is to create a relationship between the
parties. The relationship may be legal relations or political or moral
relations. It implies that treaties or provisions of treaties may impose no
binding obligations, or be intended not to create legal relations between
the parties. For instance, certain treaties of friendship between States do
not create any legal relationship between the contracting parties.
Fourthly, a treaty should operate within the sphere of International Law.
It is submitted that International law is not the only legal system within
which the States can contract. Some contracts may be governed by
general principles of law including private International Law. Such
contracts may be helpful in resolving difficult but they do not come
within the scope of the term treaty in which it is used in International
Law.
Definition
Article 2 of the vienna convention on the law of treaties 1960 defines
treaty:
"An agreement whereby two or more states establish or seek to
establish a relationship between them governed by international law."
Kinds of Treaties
Treaties may be classified into three categories on the basis of the
parties becoming members to treaties. They are as follows:-

a. Bilateral Treaties
Bilateral treaties are described as those treaties in which participation
and rights and obligations arising from the treaty is limited only to two
parties. They are sometimes also called bipartite treaties, although the
word is not apt. Many bilateral treaties bear the closest analogy to the
private law contract, and therefore, they are sometimes referred to as
treaty-contract.
b. Multilateral Treaties
Multilateral treaties are those which are open to participation for all the
States without restriction or to a considerable number of parties. Some
multilateral treaties set-up an international organization for a party.
Some multilateral treaties set-up an international organization for a
parties. Some multilateral treaties set-up an international organization
for a specific purpose or a variety of purposes. They may, therefore, be
referred to as constituent agreements. The United Nations Charter is
both a multilateral treaty and the constituent instrument of the United
Nations.
Multilateral treaties lay down general norms of International Law, or to
deal in a general manner with matters of general concern to other States
as well as to the parties to the treaties. Since the creation of the United
Nations more than five hundred multilateral treaties have been
concluded which, taken together, form a comprehensive legal
framework for the international community. These treaties cover the
spectrum of human activity and reflect the desire of States to establish
rights and obligations among themselves in effect to further enhance the
international rule of law. Multilateral treaties are said to perform the
functions of international legislation. It is to be noted that they might
have semblance of international legislation, yet it would be improper to
describe them so because the expression international legislation is
more a metaphor than a reality. Oppenheim has very rightly observed
that there is as yet no international legislature proper in the
international sphere. However, in the absence of an international
legislation, multilateral treaties are among the most promising methods
for the development of International law.
Who can be Parties to a Treaty?
The Vienna Convention under Article 6 lays down that every State
possesses capacity to conclude treaties. However, the word State has
neither been defined by the Convention, nor it lays down the elements
which got determine statehood. It may, therefore, be interpreted that all
the States including those which are not fully-sovereign have a capacity
to conclude treaties. Thus, a colony, trust territory, a protectorate or a
vassal State may also be a party to a treaty. In the case concerning the
rights of nationals of the United States of America in Morocco, the
International Court of Justice stated that Morocco had America in
Morocco, the International Court of Justice stated that Morocco had
made an arrangement of a contractual character whereby France
undertook to exercise certain sovereign powers in the name and on
behalf of morocco, and, in principle, all of the International relations of
Morocco, but that Morocco had nevertheless remained a sovereign
State and had retained its personality as a State under International
law, Tunisia was another example of the same kind. In the above cases,
the protected State retained a measure of treaty-making capacity, even
although its exercise may be subject to the consent of the protecting
Power. Thus, all States have been put on equal footing for the purpose of
the conclusion of Treaties despite obvious inequalities. However, if there
is a limitation in the capacity of a State to enter into any category or all
categories of treaties by reason of its qualified status or by existing
treaty obligations, that State may not enter into treaties. Thus, the Free
City of Danzing, though held to be a State by the permanent Court of
International justice, was subjected to certain limitations affecting both
the extent and manner in exercise of its treaty making power. Likewise,
a neutralized State is presumably incapable of concluding a treaty of
offensive alliance.
Apart from the States, international organisations also possess capacity
to make a treaty. Thus, the United Nations and its specialized agencies
can make treaties in order to exercise their functions. The United
Nations has concluded many agreements with States which are members
and with non-member States. However, treaties concluded by
international organisations do not come within the scope of the Vienna
Convention. Such treaties are governed in accordance with a separate
Convention which has been adopted in 1986.
Q: - Explain the subjects of international law.
Synopsis
a. Introduction
b. Theories
States alone are subjects of international law.
Individuals alone are subjects of international law.
States, Individuals and certain non-state entities are subjects of
international law.
c. Conclusion

Various Theories regarding subjects of International Law

The difference of opinion among jurists as to what entities are deemed
to be the subjects of international law has led to the emergence of three
popular theories. These are:
a. States alone are subjects of international law.
b. Individuals alone are subjects of international law.
c. States, Individuals and certain non-state entities are subjects of
international law.

a. States alone are subjects of international law.

According to the orthodox positivist doctrine, States only are subjects of
international law. This theory asserts that States alone are the bearers of
rights and obligations under international law; individuals lack juridical
personality because they possess neither rights nor duties under
international law. International law regulates the conduct of States and
it is the State which performs all types of international obligations under
treaties and conventions.
b. Only Individuals are the Subjects of International Law Contrary to the
above theory
Some jurists have asserted that the ultimate analysis of international
law will show that only individuals are the subjects of international law.
c. Prof. Kelsen, the chief exponent of this theory analyses the concept of
State and held the view that it is a technical legal concept which includes
the rules of law applicable on the persons living in a definite territory.
The difference between international law and state law dissolves, both
laws apply on the individuals and they are for the individuals. While the
former is binding on them directly, the latter is binding indirectly, that
is, through states
Q:- What are the Basis of International Law?
Synopsis
Theories
Introduction
Grotius Theory
Naturalistic theory
Positive theory
Eclectic theoryssssss
Conclusion
Introduction
International Law consists of certain rules of conduct which modem
civilized states regard as 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
Basis of International Law-Theories
The intellectual seeds of modern international law germinated in the
16th and 17th centuries, when the influence of the Roman Catholic
Church in international affairs gradually weakened. Many early
international legal theorists were concerned with axiomatic truths
thought to be reposed in natural law. Among the early natural law
writer, Francisco de Vitorio, Dominican professor of theology at the
University of Salamanca, examined the question of just war and Spanish
authority in the Americas. He did so while Spain was at the height of its
power, after the violent Spanish conquest of Peru in 1536.
(a) Grotius Theory:
Central in the development of modem international law was Hugo
Grotius a Dutch theologian, humanist and jurist. In his principal work De
jure Belli ac Pacis Libri Tres (Three Books on the Law of War and
Peace, 1625), Grotius claimed that nations as well as persons ought to
be governed by universal principle based on morality and divine justice.
Much of Grotius' content drew from the Bible and from classical history
Gust war theory of Augustine of Hippo). Drawing also from domestic
contract law, he also notes that relations between polities were
governed by jus gentium, the law of peoples, which had been)
established by the consent of the community of nations.

(b) Naturalistic theory:

Most of the jurists of sixteenth and seventeenth century 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 reason or
morals. International Law, according to them, is based on this very
system. Prominent writers of this view are Grotius, Pufendorf and Vattel.
The view has been greatly criticised by the writers of the nineteenth
century on the ground that it is too vague.
(c) Positive theory:
According to them only those principles may be deemed as law which
have been adopted with the consent of the States. The rules of law are
binding upon States 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 may be given
by States either expressly or impliedly. While express consent may be
given by the conclusion of treaties or the acknowledged concurrence of
governments, consent may be implied in the case of established usage,
i.e., custom. Thus, custom and treaties by which consent of a State is
achieved are the basis of International Law. Unless and until a State has
given its consent to a particular rule of International Law it cannot be
regarded as binding on it. Martens and Anzilotti also share the above
view.
(d) Eclectic theory
The views taken by the naturalists and positivists are extreme views.
The jurists belonging to eclectic school have preferred to adopt a middle
course in the positivist-naturalist debate. Eclectics 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 derive from both natural law as well as voluntary law
(laws made with the consent of the States). This view appears to be
appropriate than those taken by the jurists of naturalist and positivist
Schools, and therefore it may be concluded that International Law is
based solely neither on the law of nature nor on the consent of the
States.