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PUBLIC INTERNATIONAL LAW

Definition, Concept and Sources of International Law

Name: Anjali Raj

Roll no: 7
PRN: 2017033800068644
Semester: VIIIth
Date of Submission: 22/02/2021
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INTRODUCTION
The term International Law was used for the first time by eminent British Jurist, John Bentham in 1970.
As per Bentham's exemplary definition, International law is an assortment of rules overseeing relations
between states. In its broadest sense, worldwide law gives regularizing rules just as techniques, systems, and
a typical theoretical language to global entertainers—i.e., basically sovereign states yet in addition
progressively worldwide associations and a few people. The scope of subjects and entertainers
straightforwardly worried about worldwide law has extended extensively, moving past the traditional
inquiries of war, harmony, and discretion to incorporate basic freedoms, financial and exchange issues, space
law, and global associations. It is significant that these International laws that have been made and settled
upon are appropriately followed. Since, at that point these words have been utilized to mean the assemblage
of rules which manage the relations among the States. Despite the fact that International Law can be followed
to old Greece, Rome and India, it can't be rejected that the Public International Law which we know today,
study, and practice needs to come to us through Europe. Since, it is resolved and created by the Modern
European framework, it will subsequently be appropriate to allude it as Modern International Law.
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DEFINITION
The classical jurists set down International Law directed the relations of States with each other, and they
have in this manner characterized the term that sense as it were.
OPPENHEIM’S DEFINTION:
Law of Nations or International Law is the name for the body of customary and conventional rules which
are legally binding by civilized States in their intercourse with each other.1

GRAY’S DEFINITION:
International Law or the Law of Nations is the name of the body of rules which according to the usual
definitions regulate the conduct of the States in their intercourse with each other.

CRITICISM OF OPPENHEIM’S DEFINITION

Narrow Scope: does not included – International Organizations, Individuals, Multilateral Organizations.
The definition just set out the principles of International Law get just from custom and deals, yet it isn't right.
Various guidelines of International Law get from "the overall rule of law perceived by the acculturated
countries'. Article 38(1)(c) of the Statute of the International Court of equity has obviously specified that
such standards will be applied by the Court, and thusly they are one of the wellsprings of International Law.

The articulation "collection of rules" indicates that International Law is static. Its standard can't be changed.
However, it isn't so. Indeed, International Law is a dynamic and living law. Its standard has been changing
with the progression of break of encounters and necessities of circumstances.
• The use of term “Civilized Societies.”
• The term legally binding is qualified with “considered to.”

REVISED DEFINITION OF OPPENHEIM

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 only subjects to
International Law. International Organizations and, to some extent, also individuals may be subjects to rights
conferred and duties imposed under International law.2
1

MODERN DEFINITIONS
Starke's definition of International Law is like the changed meaning of Oppenheim in extension. He sets
out that International Law is 'that assortment of rules which is created for its larger piece of the standards
and rules of lead which states feel themselves bound to notice, and consequently, do ordinarily see in their
relations with one another, and which incorporate likewise:

A. The standards of law identifying with the working of International Institutions or associations, their
relations with one another, and their relations with one another, and their relations with States and
people; and

B. Certain standards of law identifying with people and non-state entities so far as the rights or
obligations of such people and non-states elements are the worry of the International law.

1
Oppenheim, International Law, Vol.1(1905) pp 1-2
2
Oppenheim, International Law, Vol.1, Ninth edn. (1992) p.3
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In the above definition Starke has broadened the scope when he says that alongside States International Law
manages the rights and obligations of international institutions or organizations, people and other non-state
entities. These entities have come extremely close to International Law due to the extreme advancements
that occurred since the start of the current century, particularly after the production of the United Nations.
However, this definition of Starke doesn't stand right for all the occasions to come on the grounds that in
future if and when another entity secures international personality, the definition will get deficient.
Based on the above definitions one may infer that "International law is continually advancing group
of standards that are normally seen by the individuals from International people group in their connection
with each other. These standards are given rights and impose obligations upon states, and less significantly
upon international organizations and people. The above view considers both the new and exemplary
definitions of International Law. The exemplary view is upheld by the way that International law is
principally a situation controlling the rights and obligations of state and that is the reason it is likewise named
as the "law of nations". The advanced view is upheld by the way that International law is a living and growing
code.

CONCEPT
A. Naturalist Theory:
The vast majority of the legal scholars of sixteenth and seventeenth century were of the view that
International law depends on the law of nature. As indicated by them, there exists an arrangement of law
which begin from God or ethics. Unmistakable journalists of this view are Grotius, Pufendorf. By regular
law, it was implied the utilization of heavenly law. There gives off an impression of being truth that
International Law created in the underlying stage on the premise that its standards get from law of nature.

B. Positivists Theory:
The view that International Law is based on the law of nature has been condemned by the followers of
another school of Positivists. According to them, only those principles may be deemed as law which have
been adopted with 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, consent may be implied in
the case of established usage i.e., customs. 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. Prominent writer of this views is
Brynkershoek, Martens and Arzilotti.

C. Ecclectic Theory:
Jurists belonging to eclectic school have preferred to adopt a middle course in the positivist naturalist
debate. According to them, International law derive from both natural law as well as voluntary law. This
view appears to be most appropriate basis of International law. It may be concluded with this that
International law is based solely neither on law of nature.
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SOURCES OF INTERNATIONAL LAW

SOURCE

Principal Subsidiary

38(1)(a) 38(1)(d) The

International 38(1)(b) teachings of
conventions, 38(1)(c) The
International the most
whether general or general 38(1)(d)
Custom, as highly
particular, principles of law Judicial
evidence of a qualified
establishing rules recognized by decisions
general practice publicits of
expressly recognised civilized nations.
by the contesting accepted as law the various
states. nations

Article 38(1) of the Statute of the International Court of Justice is generally recognized as a definitive
statement of the sources of International law. It requires court to apply, among the other things.

According to the provisions of the Statute of International Court of Justice there are following sources, on
the basis of which Court can decide a case:
A. Treaty and International Convention:
It is the important source of International Law. The term treaty may be defined as the agreement entered
between the nations. Through agreement certain duties and obligation and rights that is enforced is
considered as “Treaty”.
• Treaty is known as conventions, agreement, pacts, general acts, charters, statues, declaration and
covenants.
• Treaty can be bilateral and multilateral. Bilateral means when treaty is formed between two nations
and when there is treaty between more than two nations is considered as Multilateral.
• Important treaties are:
a) Geneva Convention – It is a series of treaties on the treatment of prisoners or war and soldiers
who are otherwise rendered outside the fight, or incapable of fighting.
b) Vienna Convention – The Vienna Convention on Diplomatic Relations of 1961 is an International
treaty that defines a framework for diplomatic relations between independent countries.3
Types of International treaties:
Lawmaking Treaties: These are those treaties which are entered into a large number of states. These are
considered as direct source of International Law. Such treaties are binding on all nations. Treaties are U.N
Charter, The Genocide Conventions of 1978.
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Treaty Contract: This is such type of treaty which are entered into by two or more states. The provision of
such treaties is binding only on the parties of the treaty. Such type of Treaties is also considered as the source
of International law. It also helps in development of customary International law. E.g.: Indo Nepal Trade
Treaty
B. Customs
It is older and original source of International Law and is integral part of law. Customs are those habits
and practices which the Nation’s states commonly observe and the violation of which is considered as
against the courtesy of International behavior. The Article 38(1) of the statues of the International Court
of Justice recognize International custom as source of International law.
Element for making custom as international law:
• Duration of state practices – Any practice that is newly started in the society is not considered as
customary law.
• Uniformity and consistency and Generality in Practice.
• Opinio Juris- Such practice can be element of customary law which are not against the public
policy.

C. General Principle of Laws:

It is based on moral principles and law of nature. The statute of International Court of Justice authorities court to apply
the General Principle of Law are based on Justice and Equity. It includes basic principle of law which are indisputable.

Explanation behind Inclusion – It is that such circumstance may emerge when there is nonattendance of law
relating precisely forthright. Worldwide law has no technique for enacting to give rules to control the new
circumstance neither one of the it follows the standard of Past Precedents. Henceforth the arrangement of
general standard was set up as a wellspring of law to fill the hole and take care of the issue of non-liquate
circumstance when the court won't settle questions on the guidelines are not accessible.
D. Judicial decisions and writing of Publicists:
Article 38 recognizes a judicial decision as subsidiary source of International Law but not on the actual
source. Article 59 of the statute of ICJ provide that the decision of court has no binding force except
between the parties in respect of that particular case. There is no concept of precedent.

Article 38 of statute of ICJ recognize the teaching of the most highly qualified publicists of the various
nations. The renowned writer who known world widely their book or opinion is also considered as the
source of International Law. The nature of Juristic writing carries more weight particularly in the field
of International Law.
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CONCLUSION
Today, International law alludes to those guidelines and standards which manage the conduct of states and
other entities which whenever are perceived as being supplied with worldwide character, for instance
international organizations and individuals, in their relations with one another. International law is drilled
consistently in the Foreign Offices, public courts and other legislative organs of states; Global Law has been
changed from a European-based framework empowering sovereign states to cooperate in a moderately
predetermined number of territories to a genuinely worldwide request with significant and progressively co-
usable necessities. Globalization has guaranteed that the principle of the power of states has practically
speaking been adjusted, as the multiplication of provincial and worldwide global associations illustrates.
Besides, the development of huge exchanging blocks has underscored both local and worldwide reliance,
however it additionally has animated and organized contentions between various squares. In an expanding
number of cases, certain sovereign forces of states have been assigned to global organizations. Law
understudies can contribute towards reclassifying the fundamental beliefs and rules that shape worldwide
law into a sound and compelling framework for the advancement of soundness, harmony and security, and
equity in a period of globalization and reliance if there should be an occurrence of Public International Law.
And further more if there should arise an occurrence of Private International Law, Law understudies can
break down Private International Law as well as take a gander at the ideas, foundations and meaningful
standards that are normal to the control universally or if nothing else territorially.
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REFERENCES
1. https://www.youtube.com/watch?v=DYzDS1himUE&list=PLjLZ-rO7j7nL80lRlFBtRt__Y-snvJQNv
2. https://www.youtube.com/watch?v=WG-OjlhajEQ&list=PLIEVEMAFhG4 eCNMcyAkIJl4BsTkO0bL_
3. https://www.slideshare.net/asmtkakar/international-law-notes-by-
asmatullah#:~:text=Public%20International%20Law%3A%20%2D%20The%20term,definition%20it%20may%
20be%20concluded