MODULE 1: INTRODUCTION TO INTERNATIONAL LAW Prof.
Shreya
Assistant Professor
School of Law, Christ University
INTRODUCTION
Difference between municipal law and
international law
Contrast between
Municipal Law and
International Law
A unique system – different No unified system
Absence of from national law of sanctions
identifying marks like
recognised
legislature, National legal structure is
hierarchical judiciary Law of mostly hierarchical and the
with compulsory co-ordination authority is vertical. The
jurisdiction and rather than international system is
executive subordination horizontal.
DO WE NEED INTERNATIONAL LAW?
In cases of violation there are appropriate
sanctions and reforms
Just as incidents of murder,
Contrary to popular belief, robbery and rape do occur
Transgressions merely reveal
States do observe international within national legal orders
the weaknesses of a legal
law, and violations are without destroying the system,
system
comparatively rare transgressions does not mean
rendering the system redundant
Where countries are involved
The need is felt in the hectic in a disagreement or a dispute,
interplay of world affairs for it is handy to have recourse to
some kind of regulatory the rules of international law
framework even if there are conflicting
interpretations
Mr. Dag Hammarskjold was the
DO WE NEED second secretary general of the
United Nations Organisation. He
INTERNATIONAL LAW? served in this capacity from
1953-1961.
WHY STATES FOLLOW
INTERNATIONAL LAW?
Principle of Reciprocity
Advantages or Rewards
Public Opinion & International Pressure
International Trade and Businesses
Theory of Consent (19th Century Philosophers) – emphasis on contract
Theory of auto-limitation, or self-limitation (can only be obliged on agreement)
Doctrine of consensus – (international co-operation) (influence of majority)(community
acceptance over individual state consent)
The function of politics
VIDEOS TO WATCH
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▪https://www.youtube.com/watch?v=jTzKgI68VLc&list=PPSV
▪https://www.youtube.com/watch?v=5I1Wd1wflB4&t=351s
DEFINITION OF INTERNATIONAL
LAW
Jeremy Bentham J.L. Brierly
The term international law was first “The Law of Nations or International
created by the English Law may be defined as the body of
philosopher Jeremy Bentham in 1789. rules and principles of action, which
are binding upon civilized states in
He defined it as “a collection of rules their relations with one another.”
governing relations between states”
DEFINITION OF INTERNATIONAL
LAW
Gray Lord Coleridge, C.J. in Queen v.
Keyn (1876)
“International law or the Law of
Nations is the name of a body of “The law of nations is that collection
rules which according to their usual of usages which civilized States have
definitions regulate the conduct of agreed to observe in their dealings
states in their intercourse with each with one another.”
other.”
DEFINITION OF INTERNATIONAL
LAW
Prof. L. Oppenheim Lawrence
“Law of Nations or International Law is the “International law is the rules which
name for the body of customary and determine the conduct of the general body
conventional rules which are considered of the civilized state in their mutual dealings.”
legally binding by the civilized states in their
intercourse with each other.”
DEFINITION OF INTERNATIONAL
LAW
Sir Robert Jennings and Sir Arthur Watt Schwarzenberger
International Law is the body of rules which “International Law as the body of legal
are legally binding on States in their rules which apply between sovereign states
intercourse with each other. These rules are and such other entities as have been
primarily those which governs the relations granted international personality.”
of the States, but States are not the only
subject matter of international law.
International Organisation and to some
extent, individuals may be the subject of
rights conferred and duties imposed by
international law.
DEFINITION OF INTERNATIONAL
LAW
Starke
Whiteman International law 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
The standard of conduct at a given time, for observe in their relation with each other and
states and other entities subject thereto. which also includes
1.The rules relating to the functioning of
international organization and international
institutions, their relation with each other and
their relations with state and individuals.
2.Certain rules and law relating to Individuals
and non state entities so far as the rights and
duties of such individuals and non state entities
are concern of the other international
community.
NATURE OF INTERNATIONAL LAW
Viewpoint 1: International Law is not a true law
For those who criticize it, international law has been presumed as the imperfect law i.e., it cannot be
considered as a true law.
The critics focus on the absence of legislative power, law enforcement capacity and a single judicial
system among the ‘other’ reasons. The law enforcement capacity of the Security Council itself is very
limited, politically and legally.
Some jurists consider international law as moral rules with no binding force due to the absence of
coercive acts of states, non-interference in the domestic affairs of other states and the absence of a
judicial system.
absence of judiciary system and lack of
sanctions that are enforceable
more of a moral obligation than proper
law
Austin’s View: The rules commonly called international law are in fact the rules of positive morality;
the rules are analogous to the rules binding a club or society.
Lathan Brown: Calls international law a quasi-law.
Other noted jurists holding similar opinions are Holland, Hobbes, and Pufendorf.
Holland is of the view that International Law is extremely different from ordinary laws as it is not
supported by the State’s authority. He describes International Law as the vanishing point of
Jurisprudence. He is of the view that as International Law lacks sanction (which is the most important
element of Municipal Law) it can not be kept in the category of true law.
Pufendorf: identified international law with the law of nature which is a moralistic system
Viewpoint 2: International Law is a true law with
equal footing as domestic law
The second viewpoint supports the idea international law is considered a law with equal footing in municipal
law. For them, the absence of an international legislator, judicial system, command rule and obedience role
doesn’t halt the status of international law as law.
Hall and Lawrence consider International Law as true law. According to them, International Law is
derived from customs and usages which are sources of law and it is habitually treated like a certain kind of
positive law.
Sir Frederick Pollock observed that for International Law to be binding upon the members, the only
essential conditions are the existence of a political community and the recognition by its members of
settled rules binding upon them in that capacity. International Law wholly satisfies these conditions.
Brierly: the best evidence for the existence of international law is that every State recognizes that it does exist
and that it is itself under obligation to observe it. States may often violate international law, just as individuals
often violate municipal law; but no more than individuals do, States defend their violations by claiming that
they are above the law.
Oppenheim: law is a body of rules for general conduct within a community which by common consent of this
community shall be enforced by external power. Oppenheim said that the three requirements of this definition are
satisfied by international law, to a greater or lesser extent
Prof. Hart: international law is law because States regard it as law. Nothing need be further proved.
According to Starke, international law is law because-
1. in many primitive communities, a system of law existed without there being a formal legislative authority;
2. international legislation in the form of law-making treaties and conventions has come into existence today;
3. the authoritative agencies responsible for the maintenance of international intercourse do not regard
international law as merely a moral code;
4. the United Nations is based on the true legality of international law.
Viewpoint 3: International Law is a weak Law (Starke)
YOUR TAKE ON THE NATURE OF
INTERNATIONAL LAW
▪ Whether the absence of ultimate
international lawmaker and
enforcement limitation obscures the
legality of international law
▪ Points in favour of International law
being an effective system:
Existence of Jus Cogens norms,
Binding nature of international law,
Treaties, Membership to United
Nations, International Criminal Court,
Role in Human Rights protection,
Global Commons
JURISPRUDENTIAL THEORIES ON THE
BASIS OF INTERNATIONAL LAW
Naturalism driven by morals
driven by rational thought
▪ Naturalists deny that there is any positive law of nations and maintain that law of nations is
only a part of the law of nature.
▪The term Natural Law is here evidently used for those rules of justice, which ought to govern
the conduct of men, as moral and accountable beings, living in a social state, independently
of positive human institutions and which may more properly be called the law of God, or the
divine law, being the rule of conduct prescribed by Him to his rational creatures, and
revealed by the light of reason, or the sacred scriptures.
▪Natural law theorist’s view that there is a natural law which applies to the states, like it
applies to the individuals and other creatures.
▪Samuel Pufendorf: Outside the natural law no voluntary or positive law of nations exists
which has the force of real law.
▪ All acts or omissions are obligatory which are necessary for the peaceful
maintenance of a community
▪The peace of the universal human community can only be maintained if the common
human interests are satisfied which includes the needs of the poor and
underdeveloped. Therefore, it must be respected by all States of international
community.
▪ The Declaration of Human Environment adopted on 16 June 1972 by the Stockholm
Conference
▪The concept of the common heritage of humankind
▪The view that natural law flows from universal reason and authority emanates from
philosophers in ancient Greece, continues through Christian antiquity and the Middle
Ages and develops various branches of international law in modern times.
▪The leading principles of natural law are not only recognised by the inherent needs of
human nature but also proved by experience.
▪Revival of natural law theory in the 20th Century – concepts of social, economic,
political justice – Justice, equity and good conscience – Distributive Justice.
Positivism
▪ Positive law of nations is the outcome of custom or international treaties.
▪ The positivist school of thought dominated the international jurisprudence in the 18 th and 19th
century
▪According to the positivists perspective, the law is a man-made instrument, it is a command of
sovereigns, a conduct of human community (custom) and or established based on the
conventional agreements. States are obligated to obey the international law and it can be
derived from the consent of sovereign states and states have consented to be bound by it.
▪John Austin defined law as a command of sovereign entity which has to be followed by
sanctions and he doesn’t believe in international law as there is no sovereign body to make
sanctions on it unlike domestic law. The
Grotius Theory
▪ The science of modern international law owes its birth to Hugo Grotius whose work De Jure Belli ac
Pacis (The law of war and peace) appeared in 1625.
▪Popularly known as Father of International Law
▪ Jus Gentium (Ancient Roman Legal System to be distinguished from Jus Civile – Principles of
equity between foreign subject and Roman Citizen)
▪Grotius distinguished between Jus Voluntarium (voluntary law) and Jus Naturae (natural law of
nations)
▪Grotius integrated law of nature as his intention was to find law which was eternal, unchangeable and
independent of special consent of states, with positive law which had developed through customary
international law and treaties.
▪ Grotius law of nature founded upon dictates of reason and rational nature of human beings.
