Public International Law

Unit 1

History:

 Mutual relations of states during ancient period were governed by certain rules
based on the law of nature.
 Origin: International law is the product of the experience of ht civilized counties.
 According to prof. Oppenheim: origin essentially a product of Christian
civilization and began gradually to grove from the 2nd half of the middle ages.

E.g.: Nature, Jews, Greeks, and Romans. Hindus and Muslims:

Greeks:

 Compared to other states Greek civilization was quite advanced and Greeks had achieved
great advancements in different fields.
 Plato and Aristotle.
 They lived in small city-states (easy to administer).
 Rules only to war & Peace
 Greeks whose civilization was quiet advanced, let an example to the future independent
states can live in a community. In relations are governed by certain rules and customs
based on the common consent of the members of that community.
 Greeks formulated definite laws of war and peace.
 Resolve many laws relating to war and many issues through Arbitration.
 Greeks were more talents for development of art and philosophy
 Greeks ideas and philosophy indirectly contributed to International law.

Romans:

 Romans were endowed with far greater talents for the development of IL.
 Early period, Romans lived in small city-states and had relations with other states. All
relations are based on the rules of IL.

Rules of war:

Romans made a law that, they can go for war only on following grounds:

1. Attack on Roman Territories

2. Violation of the privileges of ambassadors.
3. Contravention of Treaties and
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 4. Assistance to enemy states by friendly countries of Rome.

Modes of termination of War:

1. Through treaty of peace and

2. Conquest and annexation of conquered territories.

Romans divided treaties into :

1. Treaty of Friendship
2. Treaty of Alliance.
3. Treaty of Hospitality.

Hindus:

 Sources of Hindu law, contributed to development of IL:

1. Ramayana: relations between sovereigns in the age of the Ramayana were
governed by code of conduct based on principles which were recognized and
observed by all the sovereigns. Any principles are violated, it was condemned by
the sovereign own counsellors. These very principles are the foundation of modern
IL.
2. Mahabharata,
3. Manusmriti,
4. Kautilya’s Arthashastra.
5. Bhagavad Gita: classified just and unjust wars.

Muslims:

 Relationship with other nations, Ambassadors, Treaties.

 Lack of talents to develop IL, such as:
1. Protection of women and children during war,
2. Observed their treaties in good faith.
 Bad condition with prisoners (kill or make them slaves).

Ancient India and International Law: (Middle age 19th & 20th century)

- India divide into many states called Rajyas or Kingdoms.

 Each kingdom is possessed for all practical purposes the characteristics of
International persons.
 They observed the rules of ‘desh dharam’

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  Ancient Indian literature such as: Manusmrithi, Kautilya’s Arthashastra, Ramayan &
Mahabharath were the sources of law.
 Foreign rules and relations of the kingdoms were governed by dutas (ambassadors).
Ambassadors are those who have expert knowledge of all laws, who has ability to
divine men’s motive from their integrity.
Functions:-
 Communicate with host state,
 maintain treaties,
 seek favours from enemy states,
 maintain good relationship with high ranking officers,
 Gathering information regarding movements of armed forces.
 Dutas enjoyed many privilages and immunities.

International Law in middle Ages:

- Developed in Europe mainly because of its break up of Roman empire

- States had their own maritime rules, customary rules of maritime evolved. These rules
gained international recognition.

Grotius: (1583-1645) Holland on April 10th 1583.

Father of International Law. Grotius at the age of 15 he took the degree of law.

Schools of International law

Three Schools of international Law:

1. Naturalists: (Grotius and Thomarius are the exponents of this theory)

 It is based on the law of nature i.e., on reason, were known to naturalists.
 Law of nations is only a part of the law of nature.
 International Law is part of the law of nature which is a higher law.
 Binding force on international Law.
 Natural law is associated with religion.

Criticism:

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 1. Natural law is very vague and uncertain. It is based on reason, Justice, utilities,
general interest of International Community.
2. Not based on realities and actual practice of the states.

2. Positivists: - (Bynkershock, moser, George Friedrich von martens) According to

them rules of International Law derive from customs and international treaties.
 Law of nations is not the creation of natural law
 It is based on the consent of the states which may be given either expressly as in a
treaty or it may be implied by the state acquiring a customary rule.
 International law is the sum of the rules by which they have consented to be bound.
 Nothing can be a law to which they have not consented to be bound.
 Positivists bare their theory on actual practice of the states.
 According to them will of the state is main source of international law
 Auto limitation (sovereign restrict their powers by accepted certain rules under
international law & binding upon them)
 Criticized:
1. That all the rules of international law is not based on the consent of the state
they are too many laws which are binding without the consent of the state.
2. New state it will not prove right.

3. Grostians:
 Authors who were of the view the rules of international law derived from positive law as
well as from of nature were known as Grotians.
 It is the product of Natural law as well as customs and treaties. Grotians stands midway
between Natural and Positivists theory.
 Both have equal importance.
 Followers were known as Grotians

Basis of international Law:

1. Theory of Consent:
 This is based on the positivists view and has been criticized earlier.
 States observe rules of international law because they have given their consent for
them.

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2. Auto-Limitation Theory: sovereign restrict their powers by accepted certain rules
under international law & binding upon them. Sovereign submit their power under
International law

3. pacta sunt servanda: Agreements entered into by the states must be followed by
them in good faith.
4. Theory of Fundamental Rights: Based on the naturalistic viewpoint.
Before the existence of states, man used to live in natural state and possessed some
fundamental rights such as right of independence, equality, self-preservation etc.
Criticism:
1. New state admitted, Fundamental Rights are inherent, such rights meaningless unless
until legal system gives consent (validity).
2. More freedom to states restricting social solidarity and co-operation among states.
3. Fundamental rights, not as natural right but as a result of historical development.

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 Definition and concept of International Law
Law of Nations & international law is one and the same law

- International law word was introduced by Bentham in the yr1789 (earlier it was known
as Law of Nations)

According to Oppenheim: Law of nations or international law is the same name for the body of
customary and treaty rules which one considered legally binding by states in their intercourse
with each other.

1. International Law consists of a body of rules governing the relations b/w states.
- IL covers almost every facet of interstate activity.
- Laws to regulate: use of sea, Outer space & Antarctica.
- IL is a primary tool for the conduct of International trade.
- IL is concernmed with nationality, aliens, extradition, human rights, protection of the
environment & security of Nations.

2. State regards these rules as being binding on them in their relations with one another.
 States comply with IL because they feel legally obligated to do so.
3. Rules derive from customs and treaties.

Criticisms:

1. States are only the subjects of IL but neglected to consider International Organisations
& Institutions.
2. IL provides rights & Duties to individuals above definition neglects to consider.
3. Multinational corporations (not covered)
4. The definitions lays down that the rules of IL derive only from custom and treaties is
not correct.
5. The expression body of rules denotes that IL is static. Its rules cannot be changed, but
it is not so.
6. International Law is dynamic & living law.

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 J.G. Starke:- ‘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 includes also:-
1. The rules of law relating to the functioning of international institutions or
organizations, their relation with each other and their relations with states and
individuals and
2. Certain rules of law relating to individuals and non-state entities so for as the rights
or duties of such individuals are the concern of the international community.

Revised definitions:-

Starke’s Definition : IL is ‘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 :

a. The rules of law relating to the functioning of international institutions or organisations,

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 entittes are the concern of the international
community.

J.L. Brierly’s definition: The law of nations or IL may be defined as the body of rules and
principles of action which are binding upon civilized states in their relations with one another.

Kelsen’s definition: IL or Law of Nations is the name of a body of rules which- according to
the usual definition regulate the conduct of the states in their intercourse with one another.

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 Public International law and private International Law
Private International Law / Public International Law

1. Definition: The law of nations or IL may be defined as the body of rules and principles
of action which are binding upon civilized states in their relations with one another.
Private International Law refers to the part of the law that is administered between
private citizens of different countries.
2. Applicability:
 Public International Law : It applies everywhere including man’s activities in
space and in respect of celestial(of the sky) bodies
 Private International Law: Law of different states and which concerns mainly
such matters b/w individuals as fall at the same time under jurisdiction of 2 or
more different states.

Ex : Contracts of sale or service b/w persons in different countries in an instance which is

governed by the rules of Pvt IL (these rules have evolved to avoid the conflicts which arise due
to conflicting rules of municipal laws of different states)

3. Subjects: PIL deals primarily with states and to some extent with individuals and
International organization.
Pvt IL deals primarily with individuals of two states.

4. Part: But PIL is not so.

Pvt IL is part of Internal Law

5. Uniformity: PIL is applied uniformly to all the states

Pvt IL differs from state to state

Sources: PIL evolves largely through the consent of the states by means of custom and
treaties. General principles of law recognized by civilized nations, they remain the rules
of municipal law.
Pvt IL is enacted mainly through legislation enacted by the legislatures of different
states. Customs and presidents.
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 International Law is true law or not?
According to Austin: Law is the command of the sovereign attended by sanction in case of
violation of the command.

It should be limited to rules of conduct enacted by determinate legislative authority and

enforced by physical sanction

Superior, according to him is the real sovereign.

Two elements:

1. Command enacted by sovereign and not enacted by sovereign cannot be regarded as law.
2. Command must be enforced by the sovereign authority. (adequate sanction behind it)

Oppenheim’s view: Law is a body of rules for human conduct within a community which
by common consent of his community shall be enforced by external power

Superior Political Authority

Elements: a. A community b. A body of rules c. Common consent of the community

View of Jurists, who regard international law as really law may be summed up as
follows :-

1. The term law cannot be limited to rules of conduct enacted by a sovereign authority.
It has been established by Historical Jurisprudence that in many communities a system
of law existed although such communities lacked a formal legislative authority. As
pointed out by Starke, such law did not differ from any state law with true legislative
authority.
2. As pointed out by Oppenheim, in practice, International law is recognised as law by
the states and they consider it binding on them.

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3. Justification according to International law: - Even when the states violate
international law they never question its legal existence. On the contrary, they try to
interpret the rules of international law so as to justify their conduct.
4. The Austanian concept of law fails to account for the customary rules of
international law.
5. In the modern time, customary rules of international law are diminishing and are
being replaced by law making treaties and conventions.
6. When international disputes arise, states instead of relying on moral arguments base
their arguments on the provisions of treaties, precedents and opinions of jurists.
7. In some states, international law is treated as a part of their own law.
8. The statute of International court of justice provides that the court shall decide such
disputes as are submitted to it in accordance with international law.
9. International conferences and conventions treat international law as law in the true
sense of the term.
10.The United Nations is based on the true legality of international law. The Preamble to
the U.N expresses the resolve of the member states to ‘establish conditions under
which justice and respect for the obligations arising from treaties and other sources of
international law can be maintained.
11.Sanction: - It is also pointed out that sanction is not an essential element of law.
However, international law is not completely without sanction although the sanctions
behind it are binding upon the parties to a dispute. In case any party fails to comply
with the decision, the Security Council on the request of the other party may make
recommendations or decide upon measures to be taken to give effect to the judgement.
Besides this, war, reprisals etc, have been regarded a sanctions behind international
law. Chapter VII of UN Chapter provides for international enforcement actions.
12.Public opinion is also considered as the ultimate sanction behind the binding force of
international law and for that matter, behind any law.
13.Frequently violated:- Those who deny the legal character of international law
emphasize that it is frequently violated. It is true that IL is but it does not mean that it
is not law. Even state or municipal law is frequently violated. Frequency of violation
of low and the question of IL being law are 2 different things. Frequency of violation
is connected with the weakness or strength of the enforcement machinery. Though
state or municipal law is frequently violated, it is never said that it is not law. What is
true of Municipal law should also hold good for international law.

Sri Krishna Sharma v State of Bengal: it was held that whenever the courts interpret
state law they should try to interpret it in such a way that their interpretation should not
be contrary to IL.
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Weakness of IL: Following are the weakness of the IL:-

1. It lacks effective authority to enforce its rules.

2. It lacks effective legislative machinery
3. The international court of justice has no compulsory jurisdiction in the true sense of the
terms.
4. The sanctions behind IL are very weak.
5. It cannot intervene in the matters which are within the domestic jurisdiction of states.
6. Many rules of Il are uncertain and vague
7. IL has failed to maintain order and peace in the world.

Suggestions for improving IL:

1. The international court of justice should be given compulsory jurisdiction in the true
sense of the term.
2. An international criminal court should be established to decide cases of international
crimes
3. IL should be properly codified and scientifically revised from time to time
4. The machinery to enforce the decisions of the world court should be strengthened
5. The powers and scope of the activities of the ILCommission should be expanded.
6. The doctrine of judicial precedents should be applied in the field of IL
7. In order to strengthen the legislative machinery of IL, more law-making treaties and
conventions should be a provision for their revision from time to time.
8. The legislative activities of the general assembly should be further enlarged
9. Such activities of the UN should be encouraged as may develop the feelings of
international brotherhood so as to ensure the encouragement of the development of
international community in the true sense of the term
10.The UN Charter should be amended as to authorise the UN to intervene in such
matters with the domestic jurisdiction of states as are of international concern.

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 Sources of International Law:

Five sources find mention in Art.38 of the statute 6th in the absence of any codified law
on the sources of IL, Art 38 of the statute of the Its court of justice has become
relevant which directs the court to apply :

1st source:-
1. International Conventions Art 38(i)(a): First source of IL under Art.38 of united
charter,
Conventions apply to: Treaty
: Protocol
: Agreement
 Treaty: - Defined by Art.2 of Vienna convention on the law of Treaties, 1969. A
treaty is an agreement whereby 2 or more states establish or seek to establish
relationship b/w them governed by IL.
 Agreement must be in written form

International treaties may be of 2 types:

1. Law making treaties or General treaties: these are those which are entered
into by a large number of states. These are the direct source of IL. Law making
treaties are divided into 2 types
a. Treaties enunciating the rules of universal IL :
 Majority of states have signed
 United Nations charter is an example of such types of treaties
Ex: - Universal international Law.

b. Those enunciating general principles :

Enunciate = Proclaim, pronounce.
Treaties entered by large number of countries proclaim general principles of IL
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 Ex: Geneva Conventions on the law of the sea.
Vienna Conventions on diplomatic Relations 1961.

2. Treaty Contracts or Particular treaties: Treaties which are entered into by 2

or more states.
 Provisions of such treaties binding only to the parties
 Particular treaties are generally referred to bilateral treaties, ordinary treaties.
 2 or more than 2 states are the parties
 T is also called as contractual type of treaties
 Such law creates a law for two or more states.

2nd Sources:

2. International Customs:

Art38 (i) (b) of the statute of the International law of justice has recognised international
customs as evidence of general practice accepted as law.
It is the most important source of law. Custom is a habit which has been repeated for a
long time and has ultimately assumed the force of law.
Usage, habits, often repeated by the states, etc . Custom begins where usage ends.

Ingredients or elements of custom:

a. Evidence of a general practice accepted as law: Art 38. Directs the world court to
apply international custom as evidence of a general practice accepted as law
b. Uniformity and consistency : But complete uniformity not necessary
c. Generality of practice: Practice should have been generally observed or repeated by
numerous states.
d. opinio juris necessitatis: States must recognize the custom as binding upon them as law.
State practice must be accompanied by a belief that the practice is obligatory rather than
merely convenient or habitual.
North Sea Continental Shelf Case: customs should be recognized as being required
under IL.

Kinds of customary rules:

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 1. General Customary rules: Law which is generally binding on all the states such as
the Basic rules of law of treaties.

Ex: - 1. Diplomatic intercourse or Law of the sea.

2. Practice of organs of International Institutions.

3. State law, decisions of the state’s courts and state’s parliamentary / administrative
practices.

4. Particular customary rules: Particular customary or local customary rules are those
where a practice has developed b/w 2 states. Thus, such rules are binding only on 2
states.

3rd source of international law art 38(i)(c);-

International law is a dynamic law and a living law.

General principles of law recognized by the civilized states: This is an important

source of law through which IL adapts itself in accordance with the changing times
and circumstances.
Eg: Res Judicata, estoppels
 Recognized by most of the civilized states.
 When the court finds that a principle has received general recognition, the court may
apply it as principle of IL.

R.V.Key : In this case the court ruled that IL is based on justice, equity and good conscience
which has been accepted by long practice of states.

United States v. Schooner: Justice held that states of America rules that IL should be based on
the general principles of law recognized by civilized states. He was giving decision relating to
abolition of system of slavery.

International court has recognized the following general principles:

a. Good faith
b. Responsibility
c. Prescription
d. Jurisdiction
e. Himself cannot be an arbitrator or judge
f. Res Judicata
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 g. Equal opportunity to both the parties.

4. Decisions of Judicial and Arbitral tribunals:

 Also a source of IL but they are subsidiary means for the determination of the rules of
law
 This source includes both International as well as state decisions.
 Art 59. Of statute of international court of justice provides that they will have “no
binding force except b/w the parties and in respect of that particular case”
 Doctrine of precedents does not apply in the field of IL; the International judicial
decisions are not generally binding.
 Arbitral decisions have still less value. Arbitrator acts Mediators rather than as judges
 Subsidiary and indirect source of IL
 Subsidiary does not mean secondary.

Contribution of International decisions:

Art.59:

i. International court of justice :

 They carry considerable weight and they are respected
 It is difficult for the court to deviate from its earlier decisions.
 It is significant to note that the decisions of the court have a great impact on the
existing rules of IL and they cannot be ignored either by the court itself or by other
tribunals.

ii. Awards of the International tribunals: Awards of the International tribunals such as
a. Permanent court of Arbitration : Created by the Hague Conference of 1899 and 1907
b. British American mixed claims Tribunal

Awards based on strictly legal considerations in form a substance

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iii. Decisions of the municipal courts: The uniform decisions of the courts of many states
have a tendency to create evidence of international custom especially in their fields of IL
which are interwoven b/w IL and municipal laws such as :
 Nationality
 Extradition
 Diplomatic immunities.

iv. Decision of the Regional Courts: The creation of the regional international courts for
setting the disputes in a particular area is a recent development of international law. This
decision of regional courts has contributed immensely to the development of IL in
particular areas.

5th source of international law:-

Justice works or writings of jurists:

 This also regarded as source of IL

 They are also subsidiary means for the determinations of the rules of IL
 Court does not find any, Treaty , judicial decision , legislative act , Established custom
 Court will take the help of opinion of jurists.

6th source of International law:-

Decisions or determinations of the organs of international institutions:

 In the modern age the decisions or determinations of organs of international

institutions are also treated as sources of IL.
 International organizations is also subject of IL therefore regarded as the source of IL
 After establishment of U.N. most of the development of IL and its codification has
taken place through the instrumentality of international organizations.

Conclusion:

O. Hudson: Art 38 did not establish a rigid hierarchy. A distinction may also have to be drawn
between the categories listed, for they are not on equal footing.
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Nicaragua V USA: ICJ by majority has taken the view that the sources of IL are not
hierarchical but are necessarily complimentary and inter-related.

Relationship b/w International law and municipal law:

1. Monism :-
 Pronounced in 18th century by two German scholars Moser and Martens. It was
developed by Kelsen.
 Law is a unified field of knowledge
 No matter it applies on individuals, states and other entities.
 IL and ML are connected with each other.
 One set of legal system
 They are two branches of unified knowledge law.
 Ultimate analysis of law we find that individual is at the root of all laws.
 All laws are made for individuals.

Introduction: - IL is applied in relations of the states and to other subjects of IL

ML is applied within state to the individuals and corporate entities

2. Dualism: (Triypel and Anzilloti)

 IL & ML are two separate laws.
 IL & ML of the several states are two distinct, separate and self contained legal
systems.
 IL and state law are different because their subjects are different.
 Individual is a subject of state law. State law is a subject of IL.
 Origin of the state law is the common will of the state.

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a. Regarding sources:
ML sources are custom grown up within the boundaries of the state concerned and the
statutes enacted by the sovereign.
IL is custom grown up among the state and law making treaties concluded by them.
Origin of the state is the will of the state.

b. Regarding subjects :
Municipal law regulates the relations between individual and corporate entities,
relationship between state and individuals. But IL regulates primarily the relation
between states.

c. Regarding substance of law:

ML: - law of sovereign over individuals.
IL: - is a law not above, but between sovereign state subjects will create law. Will of the
state (agreements made).

d. Regarding principles:
ML: - is obeyed because they are the principles of the state legislations.
IL: - international law is followed because states are normally bound to observe them.

3. Specific adoption theory: Based on the theory of practicality.

International law can be enforced in the field of state law only after it has been
specifically adopted by state law.
Criticism: IL is captured in the field of municipal or state law without specific adoption.
Only after adoption only IL will become law under municipal laws.
Eg: TOKYO convention Act 1972,
Vienna Convention of Diplomatic Relations Act, 1972.
Customary rule cannot be adopted in ML without specific adoption theory.
Eg:- UN general assembly adopted RTI on 1958 but India adopted in 2005 Right to
Information Act.
Child right convention under international law was adopted under Protection of Child
Rights Act 2006.
Anti-Apartheid Act 1981. Anti-Hijacking Act 1982.
George V The Bank of Cochin: positive commitment of the state Legislative action is
necessary, but does not automatically make convention enforced as a part of the law,
corpus juris india.

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 4. Transformation Theory: International law to be applied in the field of ML only
after undergoing transformation. This theory was also based on theory of consent.

5. Delegation theory: Constitutional rules of international law permits each state to

determine how international treats will become applicable in the field of state law.
Constitution of each state contains provision in this connection.

The rules of IL are applied in the State law in accordance with procedure and
system prevailing in each state in accordance with its Constitution.

Section: 253:- Legislation for giving effect to international agreements:

Notwithstanding anything in the forgoing provisions of this chapter, parliament has power to
make any law for the whole or any part of the territory of India for implementing any treaty,
agreement or convention with any other country or countries or any decision made at any
international conference, association or other body.

Conclusion:

Theory of Harmonization:

1. Both IL and ML have been made to solve the problem of human beings.
2. Both law required to be harmonized.

IL and ML though autonomous in the sense that they are absorbed to a specific and to some
extent an exclusive area they are of human conduct, are harmonious in their totality because
they aim to a basic human good.

Judges of all courts:

 Municipal as well as international courts should aim at harmonising the systems rather
than to treat one system superior than other.

“The two systems are not like a gear, but like two wheels revolving up on the same axel.”

 However, in the rare instance of conflict between the two systems, the view
acknowledges that the judge is obliged by his jurisdictional rules. Thus, neither municipal
law nor international law has supremacy to each other

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British Practice as to the application of International Law within
Municipal Sphere:
Great Britain:

a. CUSTOMARY INTERNATIONAL LAW

In UK all such rules of customary IL are either universally recognized or have at any rate
received the assent of the UK as a part of law of land.

Two Doctrine of UK:

1. The Doctrine of Incorporation: customary IL is applied only when it is incorporated by

state. (Act).
a. Customary IL should not be inconsistent with the Acts of Parliament or legislation.
b. Decisions of Judicial authorities are final. (precedent)
c. Established usages. (Customs).

R v Keyn: popularly known as “Franconia” case:

 Customary law is part of the England only is so for as the rules have been clearly adopted
and made part of law of England- legislation or judicial decision or established usages.

2. Doctrine of Transformation: Customary IL is adopted only by the use of appropriate

Constitutional machinery such as Act of parliament is necessary before it is applied by
the courts.
Rand Central Gold Mining Co V Lord Alverstone:
 Whatever had received the common consent of civilized nations, must also have received
the assent of Great Britain and as such would be applied by the Municipal Tribunals.
 He stated that the proposed rule of IL have to be proved by satisfactory evidence to have
been recognized and acted upon by our own country.

b. Treaties:

Statutes will prevail over International Treaties:

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  Certain treaties binding on the courts only if an enabling Act of Parliament has been
passed.
 This rules are applies to treaties which effect private rights or liability, or which imposes
any financial obligation, or require modification of the common law or statute for their
enforcement in courts.
 Treaties which expressly stipulate that they shall be applied subject to the approval of
parliament, shall be given effect only when the parliament approves them which is given
in the form of statute.
 Treaties involving Cession (transfer of property through treaties). British territory is
an example wherein approval of parliament is necessary.

 Statute contains provisions which are unambiguously inconsistent with those of an

earlier treaty, a British municipal courts must apply the statute in preference to the
treaty.

International Law will prevail over Municipal Law:

 When statute is ambiguous, a presumption arises that parliament did not instead to
legislate contrary to the Crown’s international obligations under a treaty, the courts
may look at the treaty for the purpose of interpreting.
 Special exception: European Convention on Human Rights and Fundamental
Freedoms of 1950 and European Communities treaties are binding upon the
British Courts. They do not require the enactment of enabling legislation.

Conclusion:

 International law is considered as part of law of land and is binding directly on courts and
individuals does not mean that English law recognizes in all circumstances the
Supremacy of International Law.

India:

Doctrine of Incorporation was followed in India:

Shri Krishna Sharma V The state of West Bengal: Indian Courts shall apply IL only it is
found in:

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 1. The Constitution of India
2. The statute enacted by the parliament of India and
3. The statutes enacted by the state legislatures.

Court held that:-

 Conflicts between IL and Municipal Law than Municipal Law must be obeyed.
 Any rules or right and obligations are inconsistent with the positive regulation of
Municipal laws the courts override the latter.

Treaties in India:

Treaties are not binding upon Indian courts unless they have been implemented by legislations.

Basu: ‘no treaty which was not been implemented by Legislation shall be binding on the
Municipal courts” ex art 253.

Birma v state of Rajasthan: “no treaty which has not been implemented legislation shall be
binding on the municipal courts”. Ex: Art 253 of the Indian Constitution.

Birma V State of Rajasthan

Shiva Kamur Sharma V Union of India.

Motial V Union of India.

Nirmal V Union of India.

Jolly George Verghese V Bank of Cochin.

In all above cased court held in India, treaties do not the force of law and consequently
obligations arising there from will not be enforceable in municipal courts unless backed by
legislation.

Legislative powers exclusively belongs to parliament Art 253.

 Civil Rights Vigilance Committee: Bengalore V Union of India.

 Boycott V Cook (Cricket Player) (Apartheid).
 Vishakha V State of Rajasthan.
 A.D.M Jabalpur V Shukla: Justice H.R. Khanna held that if any conflicts between IL
and ML, the courts shall give effect to ML.

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United States of America:
Customary International Law:

 CIL which is universally recognized or has at any rate received the assent of the US, is
binding upon American Courts and will be applied by them.
 According to Justice Grey in Paquete Habana case stated that, “IL is part our law and
must be ascertained and administered by the courts of Justice of appropriate jurisdiction
as often as questions of rights depending upon it are duly presented for their
determination.

Macleod -V- US case

 Court stated that ‘the statute should be construed in the light of the purpose of the
Government to act within the limitations of the principles of IL, the observance of which
is so essential to the peace and harmony of nations.

Conclusion:

However, if there exists a statute which conflicts with a rule of IL, the former shall prevail.
In many cases it has been observed by the American Courts that a later clear statute will
prevail over CIL.

Treaties:

 Art VI , Clause 2 of the United States:

“All treaties made, or which shall be made under the Authority of the US, shall be the
Supreme Law of Land”.

 The treaty power rests exclusively in the hands of Federal Government, is explicit
under Art 1 section 10.
 Federal government can make treaties without any interference of the states.
 US V Palestine Liberation Organization: Federal District Court held that statutes
and treaties are the Supreme Law of the land.

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 Subjects of International Law

These are 3 main theories in regard to the subjects of international law:-

1.Realist theory :- ( States)

 According to one view” states are the only subjects of international law.”
 States alone are the bearers of rights and obligations under international law.
 According to this theory individuals lack any juridical personality because they possess
neither rights nor duties under international law.
 If individual have any rights at all, that can be claimed only through the states.

Criticism:

1. Pirates: are treated as the enemies of mankind and they may be punished for
piracy by the states, but jurist argue that states are not only the subjects of IL but,
individuals are also the subjects of IL.
2. Slaves: treaties which confer rights over slaves and pirates impose certain
obligations upon the states. But according to this theory slaves do not have rights
under IL.
3. Courts: courts by implications, rejected the proposition that only states are the
subjects of IL.
4. Traditional view that states only the subjects of IL is not a rule of modern IL.

2. Fictional theory (Individuals)

 This theory is opposite to realist theory.

 According to this theory individuals only are subject to international law like
Muslim law.

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  “Because states do not have soul and they have no capacity to form and express an
autonomous will.
 They are abstract structures acting through individuals.

According to kelren:-
“Rules of ML as well as those of IL are meant for human beings, while former is binding
on them directly, the IL is binding indirectly, I,e; through state.
The theory is based on a fiction that duties and right of the states are only the duties and
rights of men who compose them.
The theory is called “fictional” theory since according to it the state has been regarded as
a fiction.

3. Functional theory :- ( International organisations)

 In both the above theories extreme views have been taken place in it. There is a
proliferation of law participants in international relations.
 International organizations distinct form states have been endowed rights and duties in
addition to states.
 International org perform certain legal functions and they have distinct legal
personality in IL from that of the member states.

WHO-Egypt agreement under IL:-

International organizations are subjects of international law and as such are bound by any
obligations incumbent upon them under general international law agreements to which they
are the parties.

Conclusion

1. Individuals have certain duties as well as rights in IL. Provisions of punishments if they
fail to perform their duties.
2. Given a right to claim benefit as provided by IL.
3. They are also the legal actors or to say, international persons.
4. States have been endured totally of rights and duties under IL.

States

1. Unlimited personality.
2. They have full capacity, therefore the primary subjects of state.
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 3. Restricted personality - individuals and international organisations.

International Organization:-

1. International org are created on the bases of international agreements (charter, statutes or
other constituent instructs) for certain specific tasks. Since association of states for the
performance of specific functions.
2. They do not acquire the character of international govt because they do not dictate the
states.
3. They have separate legal personality, so they are subject to IL.

Elements:

1. International org are the associations of states.

2. International org are set up by the states through a treaty.
3. They are established for specific purposes.
4. They possess international personality by virtue of having distinct rights and duties.
5. They are created in accordance with the rules of international law.

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