1.

BASIS OF INTERNATIONAL LAW

Basis of International Law

The roots of international law go deep into history and evidence of treaties, immunities of
ambassadors, usages of war, etc. can be found in ancient Egypt, India, the Greek and
Roman empires. The present day international law owes its origin to the great jurist Grotius
whose work De jure Belli ac Paces (1625) lent legal basis to many areas of international
relations. His main idea is that there are certain eternal, unchangeable and independent
rules of law which have roots in human reason. This law of reason is called by him as
Natural Law.

In the Grotian theory, there are three basis of international law: Laws of reason,
Customs, and Treaties. Emanating from his conception are two theories as to true
basis of international law:

a. Naturalist theory (Pufendrof): There exists a system of law which emanates from
God or reason or morals. Law of nations is only a part of law of nature. Hart explains
that a minimum content of law flowing from the immutable nature of man is that which
is necessary for survival of mankind. International peace and security being
necessary for survival of human kind, all laws relating to it are thus parts of law of
nature. The theory is criticised on the ground that it is too vague.

b. Positivist theory (Bynkershook): Only those principles may be deemed as law

which have been adopted with the consent of the States. Law is that which exists in
fact. It is that law which is enacted or followed by States (i.e. emanate from their own
free will) and is hence binding upon States. Customs and treaties come into
existence from express or tacit consent of States. The theory is criticised as all rules
of international law are not derived from customs and treaties. Further, a treaty may
be binding on third States as well, and, States in some cases are bound by general
international law even against their will.

c. Eclectic theory: The views taken by the naturalists and positivists are extreme
views. A theory giving equal importance to both the views appears to be correct. As
to the true basis of international law, contemporary sociological theories tend to
support Naturalism because they argue that international law is based on social
interdependence and aims at bringing about international social justice. Thus, natural
law underlies even at the positive law (customs and treaties) which is only an
expression of this social interdependence.

2. SOURCES OF INTERNATIONAL LAW

At its most abstract level, international law concerns norms that govern the conduct of States
and the relations between them. That isn't to say that international law's reach does not go
beyond the rights and obligations of States. It is recognised that individuals may incur
responsibility under international law, while corporations have not been left untouched either.
Additionally, over the last century, international organisations have played an increasingly
important role in the development of international law.
The most accepted statement of the sources of international law may be found in Article
38(1) to the Statute of the International Court of Justice. As can be seen, there are three
primary sources in international law: treaty, custom and general principles of law.

1) TREATY:- In discussing the law of treaties, the most common and useful point of
departure is the Vienna Convention on the Law of Treaties. It defines a treaty as "an
international agreement concluded between States in written form and governed by
international law". Accordingly, the Vienna Convention demands the existence of
three elements for an instrument to be considered a treaty: a written agreement,
between States and governed by international law. In actuality, the former two criteria
are not necessary to create a treaty. A treaty may also be agreed between States and
international organisations and between international organisations among
themselves.
2) CUSTOM:- As evident in the ICJ Statute, customary international law contains two
elements: State practice and the belief that such a practice is obligated upon the
State as a matter of law. The latter criterion is known by the Latin term opinio juris.
The following analysis shall elaborate on the meaning of these two criteria. a. State
Practice State practice concerns the behaviour of any official or organ of the State.
Moreover, there are few limits to what form State practice may take. State practice
may involve inter alia physical actions of States and statements made by its officials
and may be found in a State's legislation and its courts' judicial decisions. Yet, it
would be quite preposterous to argue that mere State practice – assuming it is
accompanied by opinio juris – can create custom.
3) GENERAL PRINCIPLES OF LAW :- [G]eneral principles of law recognized by
civilized nations" is probably the vaguest of the sources stipulated in Article 38(1) to
the ICJ Statute. It also suffers from controversy due to the colonial connotation of the
term "civilized nations", though it is now recognised that this part of the definition is of
no significance.In any event, the main purpose of this source of law was to ensure
that there would not be unfilled lacunae when the Permanent Court of International
Justice would have to adjudicate a case on the basis of existing international law.
This source includes those general principles found in the internal laws of States.
This would include principles such as good faith, estoppel and that "no one can be
judge in his own suit".

3. REALATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNCIPAL LAW

International Law in simple term is a set of rules that comes into action when a minimum of
two nation states interact. Unlike International Law, Municipal Law also known as National
Law of the country applies within the domestic territory of a country.Article 27 of the Vienna
Convention on the Law of Treaties: Prohibits the states from invoking its Municipal Law as its
justification for non obligation towards the performance of treaty.

Theories On The Relationship Between International Law And Municipal Law

The relationship between International Law and Municipal Law can be mainly explained by
two principal theories namely Monism and Dualism. The former theory states that
International Law and Municipal Law are two components but complementary to one single
system. While the later states that, both the laws are entirely different, distinct and
independent legal system.

Dualist Theory
The chief exponents of this theory are Anzilloti, Hersch Lauterpacht and Triepel. Dualist hold
the view unlike monist, international law and municipal law are two distinct legal systems.8
To prove that both the laws are entirely different dualist gave three concepts:

a. Origin:
municipal is at will of the state itself whereas international law is the common will of
different nation states.

b. Subjects:
Individuals are the subject of municipal law whereas states are the subject of
international law.

c. Substance of their law:

municipal law is sovereign over individuals whereas in international law no one is
supreme, it's simply the sovereignty between states.9

Transformation or specific adoption theory:

Dualists believe that international law cannot be applied directly within the spheres of
municipal law. The rules of former becomes applied into the later only if, transformed into
municipal law. In simple words, this theory states that, no rule of international will be applied
on the municipal law by its own force, unless they through the transformation theory or they
are specifically adopted by the municipal courts and systems.10 This theory also marks the
difference between international treaties which are promising in nature while the municipal
law which the commanding in nature.11

For example international covenant on civil and political rights and international covenant on
economic, social and cultural rights have been adopted by India under Protection of Human
Rights Act, 1993

Criticism:
The view that international law are transformed or adopted by the municipal law is not true in
absolute sense because there are some norms that are linked with the state at the will of
international law

4. STEPS INVOLVED IN CONCLUSION OF TREATY

A treaty is an express agreement under International Law entered into by actors in

International Law, namely sovereign states and International organizations. A treaty may
also be known as (International) agreement, protocol, Covenant, Convention, exchange
of letters, etc.
Various Stages of formation of the treaties :

According to Starke the various Stages of formation of the treaties are as follows –

1) Accrediting of Representatives:

Each of the State Conducting negotiation appoints a representative or plenipotentiary

for this purpose. He is provided with an instrument given by the Minister for Foreign Affairs
showing his authority to conduct such negotiations, which is known as the full power

2) Negotiation

It is a bilateral process, sometimes multilateral. There are proposals as to

negotiation. In our commercial transaction, there is a bargain there are proposals and
counter proposals. Ultimately leading towards the concluded Contract. in respect of two or
more States, so as to have the discussion with Pleni Potentials. These negotiations are
depended upon the terms of credentials and powers of the representatives. In practices,
before signing the text after negotiation the delegates obtain fresh instruction to sign the
treaties with or without Reservation. If the proposal is accepted, then it is said to be a draft
treaty. In draft treaties, the Conclusion of discussions is put together in the precise
statement and reduced into writing the Commonly agreed terms in various proposals. It is a
premature stage of the final draft.

3) Signature -

When the final draft of a treaty is drawn up, the instrument is ready for signature. The
signature is affixed at a formal closing session. A treaty generally comes into force on
signature by plenipotentiaries of the Contracting States unless the States desire to subject it
to ratification. Treaties and conventions are generally always sealed.

4) Ratification

It is an act of adopting an international treaty by the parties thereto. In other words,

ratification implies the confirmation of the treaty entered into by the representatives of the
different states. States may be bound by the treaties only when they have given their
consent. There are number of ways in which a State may express its consent to a treaty. It
may be given either by signature, exchange of instruments, ratification or accession.

5. DEJURE AND DEFACTO RECOGNIZATION

De Facto De Jure

Factual Recognition is known as De Facto Legal Recognition is known as De Jure

De Facto is temporary. It is not permanent like De Jure. It is a De Jure which is a legal recognition is a permanent
temporary and provisional recognition which can be withdrawn. recognition and it cannot be withdrawn.

The recognition that is conferred by De Facto is based on a De Jure is a recognition given after following due
factual situation and is not a process of law. procedure of law.

Diplomatic representatives are not exchanged. Diplomatic representatives are exchanged

State Succession rules do not apply in de facto Under De Jure, rules of state succession are applied.

De Facto Government cannot recover a state asset or public debt Only a de jure government can recover state assets or
public debt.

Membership to the United Nations is not possible even if there A state can get United Nations membership if the
is a de facto recognition by the majority of states. majority of nations bestows de jure recognition.

The State which receives De facto recognition will have 2 rival The State which receives De Jure recognition has
governments only 1 Government.