Historical and Theoretical foundation of International Law

• Concept of International Law – Established during the Roman Empire

Jus gentium (Law of nations) invented by the Romans

• Jews, Greeks, Romans and Hindus- rules regarding war and peace
• Ancient India and International Law

Manusmriti
Kautilaya’s Arthshastra
Ramayan
Mahabharat
• International law owes its origin to the great jurist Hugo Grotius

Father of the law of nations

(Father of International Law)
• Jeremy Bentham – The term ‘international law’ was first used by Jeremy
Bentham in 1780 in his Introduction to the Principles of Morals and
Legislation.
Law of Nations

International Law

• First World war – League of Nations (1920)

• Second World war – Emergence of International Law

Oppenhiem’s Definition
“Law of Nations or international law is the name for the body of customary and
conventional rules which are considered legally binding by the civilized States in
their intercourse with each other” (1905)
Subject to following criticism:
• The definition takes into account of the relations of ‘States’ only. Presently,
international organizations and institution are also regarded as subjects of the
international law.
• Oppenheim does not say that these rules are ‘legally binding’, but that they ‘are
considered’ so.
• The definition lays down that rules of international law derive only from customs
and treaties, but it is not correct.
Oppenheim’s revised definition:
“ International law is the body of rules which are legally binding
on states in their intercourse with each other. These rules are
primarily those which govern the relations of States, but States
are not the only subjects of International Law. International
organizations and to some extent, also individuals may be
subjects of rights conferred and duties imposed by International
Law.” (modified by- Sir Robert Jenning and Sir Arthur Watts )
J.L Brierly – “The Law of Nations or International Law may be
defined as the body of rules and principles of action which are
binding upon civilized States in their relations with one another.”

Gray- “International Law or the Law of Nations is the name of a

body of rules which according to the usual definitions regulate
the conduct of states in their intercourse with each other.”
 Nature of International Law

Is International Law True Law?

One view is that International Another view is that International

law is not a true law law is a true law

Austin Oppenheim
Hobbes Starke
Bentham Savigny
Pufendorf Henry Maine
Austin: “Law is the command of sovereign”
• International law has neither Sovereign legislative authority to enact law nor
there is an adequate sanction behind it.

Historical School have criticized the Austin’s view

(Savigny & Henry Maine)

• Austin considered only that part of law which is enacted by sovereign
legislative authority. He completely ignored the customary or unwritten laws.
•Laws are observed because of the fear of sanctions behind them. In many
communities laws are observed because of inner morality.
Oppenheim’s view: International law as law because of the
following two reasons-
• International law is constantly recognized as law in practice, the
government of different states feel that they are legally as well as
morally bound to follow it.
• While breaking it, States never deny its legal existence, rather
they recognize its existence and try to interpret international law
as justifying their conduct.
Prof. H.L.A Hart – International Law is law because states
regard it as law, nothing need be further proved.
 International Law is a weak Law
Its rules are not as effective as rules of municipal law.
• Rules of International law which exist as a result of
international treaties and customs are not comparable in
efficiency to state legislative machinery.
• The ICJ lacks compulsory jurisdiction in the true sense of
the term.
• Although , International Court of Justice exists but it does
not have jurisdiction to decide the disputes of all the States.
• Enforcement measures which are available under the system
are not effective.
• Rules of International law are frequently violated by States,
especially during war and the claimant of the rights takes the
law into his own hands.
• As compared to rules of State law, the rules of International
Law suffer from greater uncertainty.
• These reasons led to the conclusion that International law is
a weak law on the institutional side.
 Basis of International Law

1. Theory of law of nature

2. Positivism
3. Theory of consent
4. auto-limitation Theory
5. Pact Sunt Servanda
6. Theory of Fundamental Rights
 Basis of International Law

1. Theory of Law of Nature : (Naturalists)

•Based on Natural Law (Divine law)

Human rules, Legal and moral

• Jurists of 16th and 17th centuries secularized the concept Law of Nature.

Pufendorf
Christian Thomasius

Criticism:
• Vague and Uncertain
• Not based on realities and actual practices of the States
2. Positivism: (Positivists)

Leading Bynkershoek
Positivists Moser
George Friedrich Von martens

Rules of International Law Customs & International

Treaties
• Law enacted by appropriate legislative authority is binding.
• International law is the sum of rules by which states have
consented to be bound.
Criticism :
1. International law based on the consent of state is erroneous.
2. There are some principles of international law which are
applicable on States although States did not give their
consent for them.
3. Eclectic theory: (also known as Grotians)

Main exponents Initiated by Hugo Grotius

Wolff
Vattel

Positive law
• Rules of International Law derived from
Law of nature
• A theory giving equal importance to both views.
• Accepted both as the source of International Law.
Some other theories regarding the basis of International Law –
1. Theory of Consent Derived from
2. Auto-limitation theory positivism
3. Pacta Sunt Servanda

4. Theory of Fundamental Rights Derived from ‘Theories as to Law of

Nature’

1. Theory of Consent

Anzilotti
Triepel
Oppenheim
• Consent of States is the basis of International Law
• Supported by Positivists
Criticism by –

Strake
Brierly
Kelsen
Fenwick

Criticism:
1. Theory of consent fails to explain the case of recognition of
new state.
2. Theory of consent cannot explain the true basis of
international law.
2. Auto limitation Theory:

Jellinck

• Theory lays great stress on independence and sovereignty of

the states.
• States has a will which is completely independent and free from
external influences.
Criticism:
• Auto-limitation is no limitation at all.
3. Pacta Sunt Servanda: Latin term

Anzilotti
• It means ‘States are bound to fulfill in good faith the obligations
assumed by them under treaties’.
• The binding force of international law is based on the supreme
fundamental norm or principle, known as pacta sunta servanda.
• Well established and recognized custom of international law.

(Article 26 of the Vienna Convention on the Law of Treaties,

1969)
“Every treaty in force is binding upon the parties to it and
must be performed by them in good faith.”
4. Theory of fundamental rights:
• Prior to the existence of State, man possessed some
fundamental rights

Independence
Equality
Right to self – preservation
• State also possessed these fundamental rights.
Criticism:
1. It is in favour of giving more freedom to the states and lay less
emphasis on social relations and co-operation among States.
 SOURCES OF INTERNATIONAL LAW
• Oppenheim defines the term "source of law" as the name for a historical fact
out of which rules of conduct come into existence.
• The term 'source' refers to methods or procedures by which international
law is created.
• The source may be formal (i.e. legal procedures and methods for the creation
of general rules) or material (i.e. actual materials providing evidence of the
existence of rules).
• Oppenheim opined that there is only one source of international law viz.
common consent.
• Lawrence said that there is only one source of law i.e. consent of nations.

• Consent may be either express or tacit (implied).

• Logically, therefore, there are two chief sources of international law –

Treaties (express consent) and Customs (tacit consent).
Article 38 of the Statute of International Court of Justice
(1) The Court, whose function is to decide in accordance with international
law, such disputes as are submitted to it, shall apply –
(a) International Conventions, whether general or particular, establishing
rules expressly recognized by contesting States.
(b) International Custom as evidence of general practice accepted by law.
(c) General principles of law recognized by civilized nations.
(d) Subject to provisions of Article 59, Judicial decisions and teachings of
most highly qualified publicist of various nations, as subsidiary means
for determining the rules of law.
(2) This provision shall not prejudice the power of the court to
decide a case ex acquo et bono (considerations of fair dealing and
good faith), if the parties agree thereto (compromise, conciliation,
etc.), which may be independent of or even contrary to law.

 Decisions or determinations of the organs of International

institution does not find mention in Article 38 of the statue of the
court but it has now become a well-recognized source.
 International Convention
• International treaties are most important source of
International law.
• Treaties are agreement between two or more states or
between other subjects of International law by which
they create or intend to create a relationship between
themselves operating within the sphere of International
law.
• Treaties are also known as Conventions, protocol,
accord etc.
• A treaty is an agreement whereby two or more states establish or

seek to establish relationship between them governed by

international law- Article 2 of Vienna Convention, 1969.

• Other subjects of International law such as international

organizations can also conclude treaties- Article 3 of Vienna

Convention,1969.
• International Treaties

Law-making treaties Treaty contracts

(General Treaties) (Particular Treaties)
• Treaties enunciating rules of universal Int. law
• International treaties which lay down general principles
 International Customs
• Oldest and the original source of law in general.

• There should be sufficiently uniform state practice.

• Customary rules of international law are the rules which have been
developed in a long process of historical development.
• There should be a belief that such practice is obligatory (opinio Juris)

• Usage

• North Sea Continental Shelf Case

ICJ observed that provisions in treaties can generate customary

law and may be in the words of the court, of a “norm-creating
character”.
• West Rand Central Gold Mining Company Ltd. V. R

- General recognition of custom was laid down.

- For a valid international custom it is necessary that it should
be proved by satisfactory evidence that the custom is of such
nature that is has received general consent of the States and no
civilized States shall oppose it.
 Elements of customs

• Long Duration
•Uniformity and consistency
• Generality of practice
• Opinio juris et necessitatis
General Principles of law recognized by the Civilized Nations
• It means court is directed to apply general principles of law only
when there is no treaty relevant to the dispute or when there is no
customary International law that can be applied in a particular
case.
• By the term general principles of law recognized by civil nations
is meant those principles which have been recognized by civilized
nation of world community in their domestic law.
• E.g – Good faith, estoppel, resjudicata
• Principles of law recognized by many States do not become
principles of International law automatically.
• They are required to be recognized by the world court.
• Chorzow Factory (Indemnity) Case: In this case, the Permanent
Court of International Justice applied the principles of resjudicata
and also held that one who violates a rule is liable to make
reparation.
 Judicial Decisions
• Judicial decisions are the subsidiary means for the
determination of rules of law.
• Decisions of the court will have no binding force except
between the parties and in respect of that particular case. (Article
59 of the Statue of the ICJ)
• State Judicial Decisions may become rules of International law
in the following ways-
a) State judicial decisions are treated as weighty precedents.
b) Decisions of the State Courts may become the customary
rule of international law in the same way as customs are
 Relationship between International Law and Municipal Law

National or State Law

• Municipal Law applied within a State Individuals
Corporate entities
• International legislative machinery operating mainly through law-
making conventions is weak as compared to the legislative
machinery of States.
• International law can’t work without the co-operation and support
of national legal systems.
Municipal Law:
“Municipal law is the act made by the legislature or the law
making authority of a state, applicable to that state alone”.
• The relation between International and Municipal law are
prominent.
 Theories

1. Monistic Theory

2. Dualistic Theory

3. Transformation Theory

4. Specific adoption

5. Delegation Theory
1. Monistic Theory:
• Propounded in the 18th century.
• Later developed in the early 20th century by Kelsen.
• International law as well as municipal law is part of one
universal Legal System.
Serving the needs of the Human Community
• Law is the unified branch of knowledge.
• International law and Municipal law Same Phenomenon
• All laws are made for men & men only in the ultimate analysis.
• The difference is that municipal law is binding on individual

while International is binding on states.

• It had close association with natural law.

• According to Strake- International law is part of state

Municipal law and therefore decision can be given by

Municipal courts according to the rules of Int. law

• In actual practice States do not follow this theory.

2. Dualistic Theory:
International law and municipal law
Distinct
Separate
Self-contained legal system
• Chief exponents – Triepel and Anzilloti
• Reasons:-
 Subjects: Municipal Law Individuals
International Law States
 Origin: Source of municipal law Will of the State
Source of international law common will of the States
Principles: Municipal law Principles of State legislature
International law Principle of Pact Sunt Servanda

Subject-matter: International law Dynamic

Municipal law Limited
3. Theory of Specific Adoption:
• Int. law cannot be directly enforced in the field of state law. In
order to enforce it in the field of Municipal law, it is necessary to
make its specific adoption.
• This theory based on Hague Convention 1970, Vienna
Convention,1972and Tokyo Convention, 1975.
4. Transformation Theory :
• Transformation of the treaty into national legislation
• Not merely a formal but a substantial requirement.
5. Delegation Theory:
• According to the exponents of this theory as per the statutory
rules of International law, the power have been delegated to the
constitution of different states to determine that how and to what
extent Int. law will become applicable in the field of Municipal
law in accordance with the procedure and system prevailing in
each state in accordance with its constitution.
• Right to decide
• No transformation nor specific adoption
Primacy of Municipal law or International law
• Monists Primacy to International Law
• Dualists Primacy to Municipal Law
• Basis of both State is independent and sovereign
• States responsible or liable for their failure to perform
international obligations.
• The practice of States indicate that sometimes there is the
primacy of international law, sometimes there is the primacy of
municipal law and sometimes there is mixture of different legal
systems.
• National courts endeavour to interpret statutes in such a way as
U.K
• British courts treat customary rules of international law as a part of
their own land, subject to the conditions that they are not inconsistent
with the British statues.
• In case of inconsistency- municipal law prevails.

• All treaties do not automatically come into force, required to be

incorporated by parliament through legislation.

US
• Justice Gray in Paquete habana Case stated that ‘International law
is part of our law’.
• As far as treaties are concerned, American practice is different from
•Article 6 of the constitution states that all treaties made by
United States shall be the “Supreme law of the land”.
• In case of conflict between international treaty and a state law,
whichever is later in date shall prevail.
• If there is a conflict between American constitution and an
international treaty, the constitution will prevail.
Indian Practice:-
Article 51 of the Indian Constitution- provide the general
obligation of India to the world “The state shall endeavour to –
a) Promote international peace and security
b) Maintain just and honourable relations between the States
c) Foster respect for international law and treaty obligations in
the dealing of organized people with one another
d) Encourage settlement of international disputes by arbitration.
• In A.D.M Jabalpur v Shukla (1976) International customary
rules were merely ethical principles and were not applicable ipso
facto.
• In Gramophone Co. of India Ltd. v B.B. Pandey (1984)
National court shall approve international law only when it does
not conflict with national law. National courts being organs of
the State and not organs of international law must apply national
law if international law conflicts with it.
• Treaty making is an executive act in India.

• Under Entry 14, List I r/w Art. 246, power to make laws with

respect to implementation of treaties rests with the Union

Parliament.

• Art. 253 says that Parliament has power to make any law for the

whole or any part of the Indian territory for implementing any

treaty, agreement or convention or any decision made at any

international conference.
• In Shiv Kumar Sharma v UOI (1968) Treaties do not have the

force of law and consequently obligations arising there from will

not be enforceable in municipal courts unless backed by

legislation.

• Other view, all treaties do not require implementation by

legislation.