1.

The concept of international law and its features

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 (1748–1832).
Historical development
International law reflects the establishment and subsequent modification of a world system founded almost
exclusively on the notion that independent sovereign states are the only relevant actors in the international
system. The essential structure of international law was mapped out during the European Renaissance,
though its origins lay deep in history and can be traced to cooperative agreements between peoples in the
ancient Middle East. Among the earliest of these agreements were a treaty between the rulers of Lagash and
Umma (in the area of Mesopotamia) in approximately 2100 BCE and an agreement between the Egyptian
pharaoh Ramses II and Hattusilis III, the king of the Hittites, concluded in 1258 BCE. A number of pacts
were subsequently negotiated by various Middle Eastern empires. The long and rich cultural traditions of
ancient Israel, the Indian subcontinent, and China were also vital in the development of international law. In
addition, basic notions of governance, of political relations, and of the interaction of independent units
provided by ancient Greek political philosophy and the relations between the Greek city-states constituted
important sources for the evolution of the international legal system.
Many of the concepts that today underpin the international legal order were established during the Roman
Empire. The jus gentium (Latin: “law of nations”), for example, was invented by the Romans to govern the
status of foreigners and the relations between foreigners and Roman citizens. In accord with the Greek
concept of natural law, which they adopted, the Romans conceived of the jus gentium as having universal
application. In the Middle Ages, the concept of natural law, infused with religious principles through the
writings of the Jewish philosopher Moses Maimonides (1135–1204) and the theologian St. Thomas Aquinas
(1224/25–1274), became the intellectual foundation of the new discipline of the law of nations, regarded as
that part of natural law that applied to the relations between sovereign states.
After the collapse of the western Roman Empire in the 5th century CE, Europe suffered from frequent
warring for nearly 500 years. Eventually, a group of nation-states emerged, and a number of supranational
sets of rules were developed to govern interstate relations, including canon law, the law merchant (which
governed trade), and various codes of maritime law—e.g., the 12th-century Rolls of Oléron, named for an
island off the west coast of France, and the Laws of Wisby (Visby), the seat of the Hanseatic League until
1361. In the 15th century the arrival of Greek scholars in Europe from the collapsing Byzantine Empire and
the introduction of the printing press spurred the development of scientific, humanistic, and individualist
thought, while the expansion of ocean navigation by European explorers spread European norms throughout
the world and broadened the intellectual and geographic horizons of western Europe. The subsequent
consolidation of European states with increasing wealth and ambitions, coupled with the growth in trade,
necessitated the establishment of a set of rules to regulate their relations. In the 16th century the concept of
sovereignty provided a basis for the entrenchment of power in the person of the king and was later
transformed into a principle of collective sovereignty as the divine right of kings gave way constitutionally to
parliamentary or representative forms of government. Sovereignty also acquired an external meaning,
referring to independence within a system of competing nation-states.
Early writers who dealt with questions of governance and relations between nations included the Italian
lawyers Bartolo da Sassoferrato (1313/14–1357), regarded as the founder of the modern study of private
international law, and Baldo degli Ubaldi (1327–1400), a famed teacher, papal adviser, and authority on
Roman and feudal law. The essence of the new approach, however, can be more directly traced to the
philosophers of the Spanish Golden Age of the 16th and 17th centuries. Both Francisco de Vitoria (1486–
1546), who was particularly concerned with the treatment of the indigenous peoples of South America by the
conquering Spanish forces, and Francisco Suárez (1548–1617) emphasized that international law was
founded upon the law of nature. In 1598 Italian jurist Alberico Gentili (1552–1608), considered the
originator of the secular school of thought in international law, published De jure belli libri tres (1598; Three
Books on the Law of War), which contained a comprehensive discussion of the laws of war and treaties.
Gentili’s work initiated a transformation of the law of nature from a theological concept to a concept of
secular philosophy founded on reason. The Dutch jurist Hugo Grotius (1583–1645) has influenced the
development of the field to an extent unequaled by any other theorist, though his reputation as the father of
international law has perhaps been exaggerated. Grotius excised theology from international law and
organized it into a comprehensive system, especially in De Jure Belli ac Pacis (1625; On the Law of War and
Peace). Grotius emphasized the freedom of the high seas, a notion that rapidly gained acceptance among the
northern European powers that were embarking upon extensive missions of exploration and colonization
around the world.
The scholars who followed Grotius can be grouped into two schools, the naturalists and the positivists. The
former camp included the German jurist Samuel von Pufendorf (1632–94), who stressed the supremacy of
the law of nature. In contrast, positivist writers, such as Richard Zouche (1590–1661) in England and
Cornelis van Bynkershoek (1673–1743) in the Netherlands, emphasized the actual practice of contemporary
states over concepts derived from biblical sources, Greek thought, or Roman law. These new writings also
focused greater attention on the law of peace and the conduct of interstate relations than on the law of war, as
the focus of international law shifted away from the conditions necessary to justify the resort to force in
order to deal with increasingly sophisticated interstate relations in areas such as the law of the sea and
commercial treaties. The positivist school made use of the new scientific method and was in that respect
consistent with the empiricist and inductive approach to philosophy that was then gaining acceptance in
Europe. Elements of both positivism and natural law appear in the works of the German philosopher
Christian Wolff (1679–1754) and the Swiss jurist Emerich de Vattel (1714–67), both of whom attempted to
develop an approach that avoided the extremes of each school. During the 18th century, the naturalist school
was gradually eclipsed by the positivist tradition, though, at the same time, the concept of natural rights—
which played a prominent role in the American and French revolutions—was becoming a vital element in
international politics. In international law, however, the concept of natural rights had only marginal
significance until the 20th century.
Positivism’s influence peaked during the expansionist and industrial 19th century, when the notion of state
sovereignty was buttressed by the ideas of exclusive domestic jurisdiction and nonintervention in the affairs
of other states—ideas that had been spread throughout the world by the European imperial powers. In the
20th century, however, positivism’s dominance in international law was undermined by the impact of two
world wars, the resulting growth of international organizations—e.g., the League of Nations, founded in
1919, and the UN, founded in 1945—and the increasing importance of human rights. Having become
geographically international through the colonial expansion of the European powers, international law
became truly international in the first decades after World War II, when decolonization resulted in the
establishment of scores of newly independent states. The varying political and economic interests and needs
of these states, along with their diverse cultural backgrounds, infused the hitherto European-dominated
principles and practices of international law with new influences.

The development of international law—both its rules and its institutions—is inevitably shaped by
international political events. From the end of World War II until the 1990s, most events that threatened
international peace and security were connected to the Cold War between the Soviet Union and its allies and
the U.S.-led Western alliance. The UN Security Council was unable to function as intended, because
resolutions proposed by one side were likely to be vetoed by the other. The bipolar system of alliances
prompted the development of regional organizations—e.g., the Warsaw Pact organized by the Soviet Union
and the North Atlantic Treaty Organization (NATO) established by the United States—and encouraged the
proliferation of conflicts on the peripheries of the two blocs, including in Korea, Vietnam, and Berlin.
Furthermore, the development of norms for protecting human rights proceeded unevenly, slowed by sharp
ideological divisions.

The Cold War also gave rise to the coalescence of a group of nonaligned and often newly decolonized states,
the so-called “Third World,” whose support was eagerly sought by both the United States and the Soviet
Union. The developing world’s increased prominence focused attention upon the interests of those states,
particularly as they related to decolonization, racial discrimination, and economic aid. It also fostered greater
universalism in international politics and international law. The ICJ’s statute, for example, declared that the
organization of the court must reflect the main forms of civilization and the principal legal systems of the
world. Similarly, an informal agreement among members of the UN requires that nonpermanent seats on the
Security Council be apportioned to ensure equitable regional representation; 5 of the 10 seats have regularly
gone to Africa or Asia, two to Latin America, and the remainder to Europe or other states. Other UN organs
are structured in a similar fashion.

The collapse of the Soviet Union and the end of the Cold War in the early 1990s increased political
cooperation between the United States and Russia and their allies across the Northern Hemisphere, but
tensions also increased between states of the north and those of the south, especially on issues such as trade,
human rights, and the law of the sea. Technology and globalization—the rapidly escalating growth in the
international movement in goods, services, currency, information, and persons—also became significant
forces, spurring international cooperation and somewhat reducing the ideological barriers that divided the
world, though globalization also led to increasing trade tensions between allies such as the United States and
the European Union (EU).

Since the 1980s, globalization has increased the number and sphere of influence of international and regional
organizations and required the expansion of international law to cover the rights and obligations of these
actors. Because of its complexity and the sheer number of actors it affects, new international law is now
frequently created through processes that require near-universal consensus. In the area of the environment,
for example, bilateral negotiations have been supplemented—and in some cases replaced—by multilateral
ones, transmuting the process of individual state consent into community acceptance. Various environmental
agreements and the Law of the Sea treaty (1982) have been negotiated through this consensus-building
process. International law as a system is complex. Although in principle it is “horizontal,” in the sense of
being founded upon the concept of the equality of states—one of the basic principles of international law—in
reality some states continue to be more important than others in creating and maintaining international law.

International legal theory comprises a variety of theoretical and methodological approaches used to explain
and analyse the content, formation and effectiveness of international law and institutions and to suggest
improvements. Some approaches center on the question of compliance: why states follow international
norms in the absence of a coercive power that ensures compliance. Other approaches focus on the problem of
the formation of international rules: why states voluntarily adopt international law norms, that limit their
freedom of action, in the absence of a world legislature; while other perspectives are policy oriented: they
elaborate theoretical frameworks and instruments to criticize the existing norms and to make suggestions on
how to improve them. Some of these approaches are based on domestic legal theory, some are
interdisciplinary, and others have been developed expressly to analyse international law. Classical
approaches to International legal theory are the Natural law, the Eclectic and the Legal positivism schools of
thought.
The natural law approach argues that international norms should be based on axiomatic truths. 16th-century
natural law writer, Francisco de Vitoria, a professor of theology at the University of Salamanca, examined
the questions of the just war, the Spanish authority in the Americas, and the rights of the Native American
peoples.
In 1625 Hugo Grotius argued that nations as well as persons ought to be governed by universal principle
based on morality and divine justice while the relations among polities ought to be governed by the law of
peoples, the jus gentium, established by the consent of the community of nations on the basis of the principle
of pacta sunt servanda, that is, on the basis of the observance of commitments. On his part, Emmerich de
Vattel argued instead for the equality of states as articulated by 18th-century natural law and suggested that
the law of nations was composed of custom and law on the one hand, and natural law on the other. During
the 17th century, the basic tenets of the Grotian or eclectic school, especially the doctrines of legal equality,
territorial sovereignty, and independence of states, became the fundamental principles of the European
political and legal system and were enshrined in the 1648 Peace of Westphalia.
The early positivist school emphasized the importance of custom and treaties as sources of international law.
16th-century Alberico Gentili used historical examples to posit that positive law (jus voluntarium) was
determined by general consent. Cornelius van Bynkershoek asserted that the bases of international law were
customs and treaties commonly consented to by various states, while John Jacob Moser emphasized the
importance of state practice in international law. The positivism school narrowed the range of international
practice that might qualify as law, favouring rationality over morality and ethics. The 1815 Congress of
Vienna marked the formal recognition of the political and international legal system based on the conditions
of Europe.
Modern legal positivists consider international law as a unified system of rules that emanates from the states'
will. International law, as it is, is an "objective" reality that needs to be distinguished from law "as it should
be." Classic positivism demands rigorous tests for legal validity and it deems irrelevant all extralegal
arguments

2. Force of international law

The use of force has been a long standing phenomenon in international relations and has been considered to
be directly linked to the sovereignty of states-the limitless power wielded by states to use all possible means
to guard and protect their interests. However, the longer period that war has been associated with sovereignty
of state, the more the issue has turned into a legal institution by itself. This paper looks at the prohibited and
permissible use of force in International Relations. Developed social awareness has expanded the limits (and
even led) to the right to resort to war. This indeed has abolished the use of force or any form of threats in
relation among nations, this has become a rule of law in international criminal law-its violation comes with
criminal responsibility in the eyes of the international community. However, there are certain situations in
which it is allowed to use force such as for self defense purposes, humanitarian intervention, and preemptive
power inter alia.

Introduction
In the international community, force has featured as at high levels of decentralization i.e. force has been use
d for different purposes-it has been applied to previous intervention and to punish for noncompliance
according to demand. War is the hardcore form of force and is used to grab territories or to completely
suppress states. Reprisals are also considered as violence in international relations. Kelsen, war has been
considered to be permissible due to existence of sovereignty among the states. [1]

Prohibition to use of force and threats

The United Nations Charter in article 2(4) controls the use of force by member states. The UN Charter states
that;

“All members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the purposes of the
United Nations.”

This law has been ratified by all the members and is protected by the United Nations Charter 1945 to prohibit
the use of force by states. This was the time when Louse Doswald-Beck was the secretary general of the
International Commission of Jurists [2] . Most scholars have interpreted Article 2(4) to be banning the use of
force as in “territorial integrity or political independence of states”; the most commonly held opinion is that
the above factors are only to reinforce Article 2(4)-which encompasses general prohibitions with exceptions
outlined in the Charter such as self-defense and those in Chapter VII by the United Nations security council.
The general principle is to ban the use of armed forces except in cases where; there is collective action-
pursued to maintain or even enforce peace (Articles 24, 25, and Chapter VII) ; and Article 51which states
that, “Nothing in the present Charter shall impair the inherent right to individual or collective self-defense if
an armed attack occurs against a state.” In addition, other cited reasons that permit the use of force include
humanitarian intervention, though this is still controversial, reprisals, and states’ protection of their nationals
in other states.

The United Nations Charter and the International Military Tribunal Statute have been created with regard to
international law. These laws were created by the UN member states in order to protect succeeding
generations from scourges of war. Members resorted that the use of armed forces was not allowed, save in
the interest of all. The UN Charter even though premising on the past is open to future amendments since the
definition of the word ‘war’ has changed (and will change) over time [3] . One may quickly note that the
word ‘war’ is not mentioned in the Charter only “force” is mentioned together with “enforcement measures”.
In addition, total prohibition of use of force is not indicated since an exemption is given, “in the interest of
all”. Somewhat different is the Article 2, paragraph 4, reads:

“All Members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations.” [4]

It is quite clear that the use of force is certainly prohibited in the view of territorial integrity and
independence of member states [5] including armed forces intervention. Thus, it is certain that the United
Nations does not condone any form of reprisals, this is completely out of its purpose. The use of the term
‘force’ clearly indicates that the traditional perception on war and the modern definition are prohibited [6] .
On that note, one can confidently argue that the United Nations Charter has surpassed previous international
Acts that prohibited the use of force. Traditionally, war has been the gravest form of force. However, the
view of war as an institution that permitted the attainment of state’s interests. The Charter only speaks of the
use of force as legal or illegal, it does not recognize just and unjust wars, the former is a rule while the latter
is an exemption.

In the eyes of most scholars, the term ‘force’ is quickly interpreted as ‘armed force’. This is a rejection of
other types of force such as political and even economic. Sharmasanascvilly argues that, the different forms
of force which can be used by states are prohibited as outlined in Article 2, paragraph 4 of the UN Charter.
The armed forces disturb territorial integrity; however, political independence is affected in various ways [7]

The major development in international law is the prohibition of use of threat together with the use of force
itself, “threat or danger from aggression” is prohibited by the League of Nations Council (Article 10). [8]
Thus the prohibition of threat was aimed at “”preventing and eliminating threats to peace and suppression of
aggression or other breaches of peace” (Article 1, paragraph 1″ [9] . The prohibition to use of force has been
sealed by the prohibition to use threat.

Collective action
The UN Security Council is mandated to identify the existence of, and even take action to curb, any threat to
peace and security among the members’ states. However, this power has not been used as expected since
other measures such as the use of sanctions are taken short of the traditional armed forces by some of its
members. The time that the UN used force was in 1950 to ‘force’ North Korea to withdraw from South
Korea. Initially it had been envisaged by the creators of the UN Charter that the organisation would have its
own forces. However, much of the command of these forces has been from the United States. The UN
Security Council for also authorized the use of armed forces in 1960 during the Iraq’s invasion of Kuwait.
During this time, the Council passed Resolution 678 [10] which requested all members to support a forceful
operation in collaboration with Kuwait to ensure Iraqi’s withdrawal from Kuwait. This very resolution was
never revoked until 2003, when the Council passed Resolution 1441 which authorized Iraq’s invasion due to
its non-compliance with the manufacture of atomic weapons-a threat to global peace and security. The UN
also authorized the use of force in countries like Sierra Leone, Yugoslavia and currently Somalia.

Self defense
This is provided for in article 51. The inherent right to individual or collective self-defense in case of an
armed attack allowed until the UN Security Council has intervened. The steps taken by members in the
exercise of self-defense must be reported to the Security Council and must not in any way affect the mandate
of the Council under the current Charter. The article states that,

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an
armed attack occurs against a Member of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security. Measures taken by members in the exercise of this
right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter to take at any time such action
as it deems necessary in order to maintain or restore international peace and security”. [11]

The right to self defense is still provided for in the customary international law, as seen in the International
Court of Justice (ICJ), the best example is the Nicaragua Case [12] . Article 51 preserves the right to self
defense and outlines the procedures to be followed in case of an armed attack. It has also been observed that,
an irregular forceful attack can prompt the use of force as in the case of 9/11 attacks where the Security
Council allowed the US to use force against the terrorists.

Pre-emptive force
The use of self defense is limited under the international customary law. The permissibility of the use of
force in cases of self defense is hinged on the interpretation of Article 51. There is no right to pre-emptive
self defense when an armed attack has occurred, a state does not have to wait for an armed attack to actually
occur to use force. Thus, a distinction has to be drawn between, “preventive”, “anticipatory”, and
“interventionary” self defense. The ICJ has not ruled out the use of pre-emptive armed force to intervene in
the case of an imminent armed attack. However, opinio juris and practice widely suggest that states have no
right to preventive self-defense. This can be explained well by the Caroline’s case. [13]

Protection of nationals
Various states have asserted the controversial claim to protect their nationals abroad. This can be observed
by the UK in Suez (1956), the Israelis in Entebbe-Uganda (1976), and the US force in the Dominican
Republic (1965), Panama (1989), and Grenada (1983). The use of force has in some cases been linked with
other political reasons beside the protection of nationals. For example, the intervention of the US in Grenada
in 1983 was widely linked to the US opposition to the rising socialism in the government of Grenada. The
danger posed to the US nationals in this case was not imminent and this led to strong condemnation from the
United Nations General Assembly. The examples above (except for the Mossad intervention in Entebbe
(1976)), the protection of nationals has been a used as a veil to cover other political agendas.

Humanitarian intervention
In modern times where terrorism has really increased, several countries are beginning to advocate for the
right of humanitarian intervention without the UN’s Security Council. After the Kosovo’s crisis in 1999,
countries like the UK cited the importance of the use of military force to avert such catastrophes in the
future. When NATO flexed its military muscle in Yugoslavia, it had not acquired the UN Security Council’s
permission. On the contrary this action was not condemned since the intervention was necessary on
humanitarian grounds. Many states oppose such unauthorized intervention on legal grounds while others cite
practicality-stronger nations (military wise) could misuse or overuse such powers.

Conclusion
The widespread debate on the significance of the article 2(4) on the use of the word ‘force’ is far much from
over. The strain in opinions is where by Article 51 uses the term “armed attack” while the use of the term
“force” in Article 2(4) is meant to encompass economic or other forms of coercion that are non military.
Such measures are banned by other provisions. However, it does not seem to accommodate the wider
definition of force. This article covers “threat of force” which is non-permissible in itself. This paper looks at
such non-permissible use of force while also looking at the permissible use of force in situations such as
human intervention, protection of nationals and self defense. The paper acknowledges both arguments with
reference to article 2(4).

3. The origin of international law and its periodization

4. The term "modern international law"

5. Functions of international law

6. International and domestic law

International law and municipal law
In principle, international law operates only at the international level and not within domestic legal systems
—a perspective consistent with positivism, which recognizes international law and municipal law as distinct
and independent systems. Conversely, advocates of natural law maintain that municipal and international law
form a single legal system, an approach sometimes referred to as monism. Such a system, according to
monists, may arise either out of a unified ethical approach emphasizing universal human rights or out of a
formalistic, hierarchical approach positing the existence of one fundamental norm underpinning both
international law and municipal law.
A principle recognized both in international case law (e.g., the Alabama claims case between the United
States and the United Kingdom following the American Civil War) and in treaties (e.g., Article 27 of the
1969 Vienna Convention on the Law of Treaties) is that no municipal rule may be relied upon as a
justification for violating international law. The position of international law within municipal law is more
complex and depends upon a country’s domestic legislation. In particular, treaties must be distinguished
from customary international law. Treaties are written agreements that are signed and ratified by the parties
and binding on them. Customary international law consists of those rules that have arisen as a consequence
of practices engaged in by states.
The Constitution of the United States stipulates (Article VI, Section 2) that treaties “shall be the supreme
Law of the Land.” Treaties are negotiated by the president but can be ratified only with the approval of two-
thirds of the Senate (Article II)—except in the case of executive agreements, which are made by the
president on his own authority. Further, a treaty may be either self-executing or non-self-executing,
depending upon whether domestic legislation must be enacted in order for the treaty to enter into force. In
the United States, self-executing treaties apply directly as part of the supreme law of the land without the
need for further action. Whether a treaty is deemed to be self-executing depends upon the intention of the
signatories and the interpretation of the courts. In Sei Fujii v. State of California (1952), for example, the
California Supreme Court held that the UN Charter was not self-executing because its relevant principles
concerning human rights lacked the mandatory quality and certainty required to create justiciable rights for
private persons upon its ratification; since then the ruling has been consistently applied by other courts in the
United States. In contrast, customary international law was interpreted as part of federal law in the Paquette
Habana case (1900), in which the U.S. Supreme Court ruled that international law forbade the U.S. Navy
from selling, as prizes of war, Cuban fishing vessels it had seized. Domestic legislation is supreme in the
United States even if it breaches international law, though the government may be held liable for such a
breach at the international level. In order to mitigate such a possibility, there is a presumption that the U.S.
Congress will not legislate contrary to the country’s international obligations.
The United Kingdom takes an incorporationist view, holding that customary international law forms part of
the common law. British law, however, views treaties as purely executive, rather than legislative, acts. Thus,
a treaty becomes part of domestic law only if relevant legislation is adopted. The same principle applies in
other countries where the English common law has been accepted (e.g., the majority of Commonwealth
states and Israel). Although the incorporationist view regards customary law as part of the law of the land
and presumes that municipal laws should not be inconsistent with international law, municipal laws take
precedence over international law in cases of conflict. Those common-law countries that have adopted a
written constitution generally have taken slightly different positions on the incorporation of international law
into municipal law. Ireland’s constitution, for example, states that the country will not be bound by any
treaty involving public funds without the consent of the national legislature, and in Cyprus treaties concluded
in accordance with its constitution have a status superior to municipal law on the condition of reciprocity.
In most civil-law countries, the adoption of a treaty is a legislative act. The relationship between municipal
and international law varies, and the status of an international treaty within domestic law is determined by
the country’s constitutional provisions. In federal systems, the application of international law is complex,
and the rules of international law are generally deemed to be part of the federal law. Although a treaty
generally becomes operative only when it has been ratified by a national legislature, EU countries have
agreed that regulations and decisions emanating from EU institutions are directly applicable and enforceable
without the need for enabling legislation—except for legislation permitting this form of lawmaking, which is
adopted upon the country’s entry into the union (e.g., Britain’s adoption of the European Communities Act in
1972).

7. The system of international law

The international legal system is the foundation for the conduct of international relations. It is this system
that regulates state actions under international law. The principal subjects of international law are states,
rather than individuals as they are under municipal law. The International Court of Justice acknowledged in
the Reparation for Injuries case that types of international legal personality other than statehood could exist
and that the past half century has seen a significant expansion of the subjects of international law. Apart from
states, international legal personality is also possessed by international organisations and, in some
circumstance, human beings. In addition, non-governmental organisations and national liberation movements
have also been said to possess international legal personality.
Since 1945 the international legal system has been dominated by the United Nations and the structures that
were established as part of that organisation. While the UN has been the object of significant criticism, it has
nevertheless played a pivotal role both in the progressive development and codification of international law.
The General Assembly of the UN has sponsored and promoted some of the most important developments of
the last fifty years through the adoption of multilateral treaties and instruments. The Convention on the Law
of the Sea 1982 and the Vienna Convention on the Law of Treaties 1969 are two of the most prominent
examples.
A significant role in the legal work of the UN is played by the Sixth Committee (Legal), one of the six
committees of the General Assembly. The Committee deals with international law under Article 13(1)(a) of
the Charter, which authorises the General Assembly to initiate studies and make recommendations to
encourage the progressive development and codification of international law.

8. Public and private international law

International Law or Law of Nations deals with rules for the governance of Sovereign States in their relations
and Conduct towards one another It Comprises of two parts Namely 1) Public International Law  2) Private
International Law or Law of Conflict. 

    1) Public International Law : 

                                    
                          Public International law is the body of legal rules, which applied between Sovereign States
and other International Personalities. 
                   
    2) Private International Law or Law of Conflict : 

                                Private International Law is also Called as 'Conflict of Law' deals with cases involving
foreign element. In case of Dispute between an individual citizen or  State and Foreign Element, where there
is need to contact with foreign system of law, the Private International Law will apply.

Difference Between  Public International Law and Private International Law / Law of Conflicts

  

No. Public International Law Private International Law / Law of

Conflicts

1) Public International law is the body
of legal rules, which applied
between Sovereign States and other
International Personalities.
Conflict of laws, often called Private
International Law. Private International Law
regulating relationship between Private
persons (Natural or Legal) of two different
States.
 2) Public International law rules are Private International law rules are framed by
outcome of International custom the State legislature.
and treaties.

3) Public International law is enforced Private International Law is enforced by the

by international pressure and fear concerned State executive.   
for example – breakage of
diplomatic relations, sanctions etc.

4) In public International Law there is In private International Law courts are

no Predetermined Court. predetermined.

5) Public International Law is same Private International Law differ from state to
for all the States. state.

For this new article on Space Legal Issues, let’s focus on Private International Law and the
difference between Public and Private International Law. International law is the set of legal rules
that govern relations between states (and international organisations) or between private persons in
an international context. The norms of international law are composed of texts ratified by several
states: agreements, conventions, protocols and international treaties. They can be bilateral (between
two states) or multilateral (between several states). The signatory states undertake to apply these
standards in their territory, only if there is reciprocity, by granting them a level higher than their
national standards.

International courts and tribunals consistently hold that no state may invoke a rule of domestic law
to avoid its international obligations. This is clarified by the 1969 Vienna Convention which states,
in its Article 27 on INTERNAL LAW AND OBSERVANCE OF TREATIES, that “A party may
not invoke the provisions of its internal law as justification for its failure to perform a treaty. This
rule is without prejudice to article 46”. International law is therefore binding on the state, even if a
rule of domestic law is contradictory to it. This does not mean that the international judge can annul
a rule of domestic law. It merely makes it ineffective.

International law consists of two branches: public international law and private international law.
Areas of intervention of international law include war, trade, the high sea and the seabed, outer
space or Antarctica. The International Court of Justice (ICJ), based in The Hague (Netherlands), is
responsible for settling disputes submitted to it in accordance with international law. There are other
international judicial bodies, such as the International Tribunal for the Law of the Sea, the
International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal
Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC), which can lead to
conflicts of jurisdiction. The parties in dispute may also appeal to an international arbitration court.

According to Velimir Zivkovic, “public international law is, most broadly speaking, a system of
norms that governs relationship between legal entities recognized in the sphere of international law;
primarily although not exclusively sovereign states an international organizations. It is further
fragmented into a number of branches, but it is generally considered to have overarching common
principles. Private international law has a bit of deceiving name. It is actually a branch of national
laws that deals, mostly, with determining what the applicable law should be when there is a foreign
element in the relationship (foreign national involved, place of event was abroad, etc.). It is actually
called in common law states conflict of laws which perhaps explains it better”.

PUBLIC INTERNATIONAL LAW

Public international law refers to all the legal rules governing international relations between public
entities such as States and international organizations. In order to settle a public international law
dispute, it is the International Court of Justice (ICJ) sitting in The Hague (Netherlands) that may be
seized. The International Court of Justice is the principal judicial organ of the United Nations.

PRIVATE INTERNATIONAL LAW OR CONFLICT OF LAWS

Every legal order in the world has its own rules relating to matters of private law and private
international law encompasses all the rules of law conditioning international relations between
private persons. It includes business law, labour law, civil law between agents of different countries,
but also conflicts of law and jurisdiction. It is constituted by all the principles, usages or
conventions that govern the legal relations established between persons governed by the laws of
different states. It can be described as a “tool for managing the diversity of laws”. Settlement of
international disputes may be brought before a state court or subject to international arbitration. It is
the set of rules applicable to the relations of private persons of different nationality. Its purpose is to
resolve conflicts of law arising out of relations between foreign persons, in particular to know
which law applies to the relationship and to deal with conflicts of jurisdiction.

The main concept of private international law is the “foreign element”. Private international law is
the area of law that comes into play whenever a court is faced with a question that contains a
foreign element, or a foreign connection. The mere presence of such a foreign element in a legal
matter raises a number of questions and it is the function of private international law to provide an
answer to these questions and to ensure just solutions.

MONISM AND DUALISM

Monism and dualism were originally conceived as two opposing theorizations of the relationship
between international law and domestic law. The subject of considerable debate in the first half of
the twentieth century, monism and dualism are regarded by many modern scholars as having
limited explanatory power as theories because of their failure to capture how international law
works within states in practice. Notwithstanding their decline as theories, monism and dualism
retain power as analytical tools. They act as consistent starting points for examinations of the
relationship between international and domestic law. The terms monism and dualism are used to
describe two different theories of the relationship between international law and national law. Many
states, perhaps most, are partly monist and partly dualist in their actual application of international
law in their national systems.

In international law, monism considers that international treaties are directly applicable in the
domestic law of the country, as is the case in France for example, because of their superior position.
They do not have to be transposed into domestic law to acquire legal force, as is the case with
dualism. Indeed, monism is based on the principle that international law and domestic law belong to
one and the same legal entity.

In international law, dualism considers that international treaties acquire legal force only after
having been transposed into the domestic law of the country, as is the case in Canada for example.
In dualist systems, international law must be translated into national law, and existing national law
that contradicts international law must be “translated away”. It must be modified or eliminated in
order to conform to international law. However, the need for translation in dualist system causes a
problem with regard to national laws voted after the act of translation. In a monist system, a
national law that is voted after an international law has been accepted and that contradicts the
international law, becomes automatically null and void at the moment it is voted. The international
rule continues to prevail. In a dualist system, however, the original international law has been
translated into national law but this national law can then be overridden by another national law on
the principle of “lex posterior derogat legi priori” which means in Latin that “the later law replaces
the earlier one”. This means that the state, willingly or unwillingly, violates international law. Thus,
a dualist system requires continuous screening of all subsequent national law for possible
incompatibility with earlier international law.
Diane Pretty was suffering from motor neurone disease and was paralysed from the neck down, had
little decipherable speech and was fed by a tube.[1] It is not a crime to commit suicide under
English law, but the applicant was prevented by her disease from taking such a step without
assistance. It is however a crime to assist another to commit suicide (section 2(1) of the Suicide Act
1961).[2]
Pretty wanted her husband to provide her with assistance in suicide. Because giving this assistance
would expose the husband to liability, the Director of Public Prosecutions was asked to agree not to
prosecute her husband. This request was refused, as was Pretty's appeal before the Law Lords.

Pretty v UK (Application no. 2346/02)

1) Reference Details
Jurisdiction: European Court of Human Rights
Date of Decision: 29 April 2002
Case Status: Decided on merits
Link to full case:
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal
=hbkm&source=externalbydocnumber&table=1132746FF1FE2A468ACCBCD1763D4D8
149
2) Facts
The applicant, a British national, was paralysed as a result of a degenerative and
terminal illness, and sought a guarantee from the Director of Public Prosecutions (DPP)
that her husband, if he helped her to commit suicide, would be immune from
prosecution. Her intellect and capacity to make decisions remained unimpaired by the
illness. She emphasised her determination to control how and when she died, but her
disease prevented her from committing suicide which is legal under UK law. She claimed
that the domestic law on assisted suicide infringed her rights under Articles 2, 3, 8, 9 and
14 of the European Convention on Human Rights.
3) Law
The applicant alleged infringement of Article 2 (right to life), Article 3 (prohibition of
torture and degrading treatment), Article 9 (freedom of thought, conscience and
religion) and Article 14 (non-discrimination).
The applicant sought to challenge the validity of the refusal of the DPP to assure her
husband’s immunity from prosecution, and Section 2(1) of the Suicide Act 1961, which
made it a crime to assist another to commit suicide.
4) Legal Arguments
The Applicant
The applicant submitted that Article 2 protected the right to life, not life itself, and
protected an individual from arbitrary deprivation of life by a third party, not from the
individual’s own choice to die. She argued that Article 3 encompasses a government’s
positive obligation to protect people from degrading treatment, which is what she
believed the manner of her death if unassisted would amount to; that Article 8
encompassed the right to make decisions about one’s own body and that the state’s
interference with this right was not justified; and that Article 9 protected her freedom to
believe in the notion of assisted suicide, and that the blanket ban in the UK allowed no
consideration of the applicant’s personal circumstances.
Concerning Article 14, the applicant alleged that she suffered discrimination by being
treated in the same way as those whose circumstances were completely different. She
was prevented from enjoying the right to end her own life as exercised by others
because of her disability. The applicant submitted that the Government justified the ban
in terms of protecting the vulnerable, but as she was not vulnerable there was no
objective or reasonable justification for the difference in treatment.
2
The Government
The Government submitted that Article 2 imposed primarily a negative obligation, and
expressly provided that no one should be intentionally deprived of life save in very
restricted circumstances which did not apply to this case. It submitted that Article 3 was
not engaged in this case as again it had been found to comprise a primarily negative
obligation except in three exceptional circumstances which did not apply to this case,
and that even if it were engaged it would not confer a legally enforceable right to die.
Also that Article 8 in providing a right to family life did not provide a right to die, and
even if it did then the State was entitled, within its margin of appreciation, to determine
the extent to which an individual could inflict and injury on him/herself; and that the
facts of the case did not fall within the ambit of Article 9 as it did not confer a general
right of an individual to engage in any activity in pursuance of their beliefs. The
Government argued that Article 14 did not apply as the applicant’s complaints did not
engage any of the substantive rights she relied upon. Further to this, it argued that even
if Article 14 was engaged there would still be no discrimination as the applicant was in
the same position as others who were unable to take their own lives without assistance,
the Suicide Act 1961 conferred no right to commit suicide, and there were clear and
reasonable justifications for any alleged difference in treatment.
5) Decision
The Court determined that the facts of the case fell within the ambit of Article 8, which
was examined in conjunction with Article 14, focussing on the claim that she was
prevented from exercising a right enjoyed by others who could end their lives without
assistance because they were not prevented from doing so by any disability. The Court
emphasised that under the Convention, discrimination may entail equal treatment of
those in different conditions, but also reiterated that member states have a margin of
appreciation in their application of the convention. In this case, the Court found the
Government had reasonable justification for not creating different legal regimes
concerning assisted suicide for those physically able and those physically unable due to
the risk of abuse and undermining of the protection of life safeguarded by the 1961
Suicide Act. For these reasons, the Court unanimously found no violation of Article 14 of
the Convention, and no violation of Articles 2, 3, 8 and 9.
EUROPEAN COURT OF HUMAN RIGHTS
235
29.4.2002
Press release issued by the Registrar
CHAMBER JUDGMENT IN THE CASE OF PRETTY v. THE UNITED KINGDOM

The European Court of Human Rights has today notified in writing its Chamber judgment[1] in the
case Pretty v. the United Kingdom (application no. 2346/02). The Court unanimously found the
application admissible and held that there had been:

no violation of Article 2 (right to life) of the European Convention on Human Rights,

no violation of Article 3 (prohibition of inhuman or degrading treatment or punishment),
no violation of Article 8 (right to respect for private life),
no violation of Article 9 (freedom of conscience), and
no violation of Article 14 (prohibition of discrimination).

1. Principal facts

Diane Pretty is a United Kingdom national, born in 1958 and living in Luton. She is dying of motor
neurone disease, a degenerative disease affecting the muscles, for which there is no cure.

The disease is now at an advanced stage; the applicant is paralysed from the neck downwards and
her life expectancy is very poor. However, her intellect and capacity to make decisions are
unimpaired. Given that the final stages of the disease are distressing and undignified, she wishes to
be able to control how and when she dies and be spared that suffering and indignity.

Although it is not a crime to commit suicide in English law, the applicant is prevented by her
disease from taking such a step without assistance. It is however a crime to assist another to commit
suicide under section 2 § 1 of the Suicide Act 1961. Ms Pretty wishes to be assisted by her husband
in committing suicide, but the Director of Public Prosecutions (DPP) has refused her request to
guarantee her husband freedom from prosecution if he does so. Her appeals against that decision
have been unsuccessful.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 21 December 2001. The
Court decided on 22 January 2002 to give priority to the case and to communicate the application to
the United Kingdom Government as matter of urgency[2]. On 19 March 2002 the Court held a
public hearing on the admissibility and the merits of the case, which
Ms Pretty and her husband, Brian Pretty, attended.

Judgment was given by a Chamber of seven judges, composed as follows:

Matti Pellonpää (Finnish), President,
Nicolas Bratza (British),
Elisabeth Palm (Swedish),
Jerzy Makarczyk (Polish),
Marc Fischbach (Luxemburger),
Josep Casadevall (Andorran),
Stanislav Pavlovschi (Moldovan), judges,
and also Michael O’Boyle, Section Registrar.

3. Summary of the judgment[3]

Complaints

The applicant complains, under Article 2 of the Convention, that it is for the individual to choose
whether to live and that the right to die is the corollary of the right to live and also protected.
Accordingly there is a positive obligation on the State to provide a scheme in domestic law to
enable her to exercise that right.

She also complains under Article 3 that the United Kingdom Government is obliged not only to
refrain from inflicting inhuman and degrading treatment itself, but also to take positive steps to
protect persons within its jurisdiction from being subjected to such treatment. The only effective
step available to protect the applicant in this way would be an undertaking not to prosecute her
husband if he assisted her to commit suicide.

She further relies on Article 8, arguing that this explicitly recognises the right to self-determination,
and Article 9, complaining that the failure to give the undertaking and provide a lawful scheme for
allowing assisted suicide violates her right to manifest her beliefs. Under Article 14, she argues that
the blanket prohibition on assisted suicide discriminates against those who are unable to commit
suicide without assistance, whereas the able-bodied are able to exercise the right to die, under
domestic law.
Decision of the Court

Admissibility
The Court considered that the application as a whole raised questions of law which were
sufficiently serious that their determination should depend on an examination of the merits. It
accordingly declared the application admissible.

Merits
Article 2

The Court recalled that Article 2 safeguarded the right to life, without which enjoyment of any of
the other rights and freedoms in the Convention was rendered nugatory. It covered not only
intentional killing, but also the situations where it was permitted to use force which resulted, as an
unintended outcome, in the deprivation of life. The Court had moreover held that the first sentence
of Article 2 § 1 enjoined States not only to refrain from the intentional and unlawful taking of life,
but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This
obligation might also imply in certain well-defined circumstances a positive obligation on the
authorities to take preventive operational measures to protect an individual whose life was at risk
from the criminal acts of another individual.

In its case-law in this area the Court had placed consistent emphasis on the obligation of the State to
protect life. In these circumstances it was not persuaded that “the right to life” guaranteed in Article
2 could be interpreted as involving a negative aspect. Article 2 could not, without a distortion of
language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor
could it create a right to self-determination in the sense of conferring on an individual the
entitlement to choose death rather than life.

The Court accordingly found that no right to die, whether at the hands of a third person or with the
assistance of a public authority, could be derived from Article 2. There had therefore been no
violation of that provision.

Article 3
It was, the Court noted, beyond dispute that the respondent Government had not, themselves,
inflicted any ill-treatment on the applicant. Nor was there any complaint that the applicant was not
receiving adequate care from the State medical authorities. The applicant had claimed rather that the
refusal of the DPP to give an undertaking not to prosecute her husband if he assisted her to commit
suicide and the criminal law prohibition on assisted suicide disclosed inhuman and degrading
treatment for which the State was responsible. This claim however placed a new and extended
construction on the concept of treatment. While the Court had to take a dynamic and flexible
approach to the interpretation of the Convention, any interpretation had also to accord with the
fundamental objectives of the Convention and its coherence as a system of human rights protection.
Article 3 had to be construed in harmony with Article 2. Article 2 was first and foremost a
prohibition on the use of lethal force or other conduct which might lead to the death of a human
being and did not confer any claim on an individual to require a State to permit or facilitate his or
her death.

The Court could not but be sympathetic to the applicant’s apprehension that without the possibility
of ending her life she faced the prospect of a distressing death. Nonetheless, the positive obligation
on the part of the State which had been invoked would require that the State sanction actions
intended to terminate life, an obligation that could not be derived from Article 3. The Court
therefore concluded that no positive obligation arose under Article 3 in this context and that there
had, accordingly, been no violation of that provision.

Article 8
The applicant was prevented by law from exercising her choice to avoid what she considered would
be an undignified and distressing end to her life. The Court was not prepared to exclude that this
constituted an interference with her right to respect for private life as guaranteed under Article 8 §
1.

The Court recalled that an interference with the exercise of an Article 8 right would not be
compatible with Article 8 § 2 unless it was “in accordance with the law”, had an aim or aims that
was or were legitimate under that paragraph and was “necessary in a democratic society” to attain
such aim or aims.

The only issue arising from the arguments of the parties was the necessity of any interference and
those arguments had focussed on its proportionality. In this connection the applicant had attacked
the blanket nature of the ban on assisted suicide.

The Court found, in agreement with the House of Lords, that States were entitled to regulate
through the operation of the general criminal law activities which were detrimental to the life and
safety of other individuals. The law in issue in this case, section 2 of the Suicide Act, was designed
to safeguard life by protecting the weak and vulnerable and especially those who were not in a
condition to take informed decisions against acts intended to end life or to assist in ending life.

The Court did not consider that the blanket nature of the ban on assisted suicide was
disproportionate. The Government had stated that flexibility was provided for in individual cases by
the fact that consent was needed from the DPP to bring a prosecution and by the fact that a
maximum sentence was provided, allowing lesser penalties to be imposed as appropriate. It did not
appear to be arbitrary for the law to reflect the importance of the right to life, by prohibiting assisted
suicide while providing for a system of enforcement and adjudication which allowed due regard to
be given in each particular case to the public interest in bringing a prosecution, as well as to the fair
and proper requirements of retribution and deterrence.
Nor in the circumstances was there anything disproportionate in the refusal of the DPP to give an
advance undertaking that no prosecution would be brought against the applicant’s husband. Strong
arguments based on the rule of law could be raised against any claim by the executive to exempt
individuals or classes of individuals from the operation of the law. In any event, the seriousness of
the act for which immunity was claimed was such that the decision of the DPP to refuse the
undertaking sought could not be said to be arbitrary or unreasonable.

The Court concluded that the interference could be justified as “necessary in a democratic society”
for the protection of the rights of others. There had therefore been no violation of Article 8.

Article 9
The Court observed that not all opinions or convictions constituted beliefs as protected by Article 9
§ 1. The applicant’s claims did not involve a form of manifestation of a religion or belief, through
worship, teaching, practice or observance as described in the second sentence of the first paragraph.
The term “practice” did not cover each act which was motivated or influenced by a religion or
belief. To the extent that the applicant’s views reflected her commitment to the principle of
personal autonomy, her claim was a restatement of the complaint raised under Article 8. The Court
concluded that there had been no violation of Article 9.

Article 14
For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly
similar positions was discriminatory if it had no objective and reasonable justification, that is if it
did not pursue a legitimate aim or if there was not a reasonable relationship of
proportionality between the means employed and the aim sought to be realised. Discrimination
could also arise where States without an objective and reasonable justification failed to treat
differently persons whose situations were significantly different.
There was, in the Court’s view, objective and reasonable justification for not distinguishing in law
between those who were and those who were not physically capable of committing suicide. Cogent
reasons existed for not seeking to distinguish between those who were able and those who were
unable to commit suicide unaided. The borderline between the two categories would often be a very
fine one and to seek to build into the law an exemption for those judged to be incapable of
committing suicide would seriously undermine the protection of life which the 1961 Act was
intended to safeguard and greatly increase the risk of abuse.

Consequently, there had been no violation of Article 14.