INTERNATIONAL LAW

MODULE- 1 History and introduction

PUBLIC INTERNATIONAL LAWINTRODUCTION-
The need of law
What is PIL/IL
Nature and scope of PIL
Why do we need PIL LAW
Law is an element which binds the members of a community together in their adherence to
recognized values and standards. In that it is both:-
 Permissive- allows individual to establish their own legal relations- Contract, Arbitration
 Coercive- punishes those who infringe its regulations.
And so is the case with international law with the important difference that the principle subjects
of International Law are nation states, not individual citizens.
WHAT IS PIL/IL
International Law- term was first used by ‘Jeremy Bentham’ in 1780.
 It is the body of rules binding on States in their relations with one another, and
determining their rights and obligations.
International law itself is divided into conflict of laws (or private international law as it is
sometimes called) and public international law (usually just termed international law).
 The former deals with those cases, within particular legal systems, in which foreign
elements obtrude, raising questions as to the application of foreign law or the role of
foreign courts.
 In simple words private international law concerns the process for determining the
applicable law to resolve disputes between individuals, corporations (and in some
systems the state in certain contractual relationships) in multijurisdictional cases and
transactions. For example, if two Englishmen make a contract in France to sell goods
situated in Paris, an English court would apply French law as regards the validity of that
contract.
 By contrast, public international law is not simply an adjunct of a legal order, but a
separate system altogether.
NATURE/SCOPE OF INTERNATIONAL LAW
1. The first salient feature of international law is that most of its rules aim at regulating the
behavior of States, not that of individuals. States are the principal actors on the
international scene. They are legal entities, aggregates of human beings dominated by an
 apparatus that wields authority over them. Their general goals are quite distinct from the
goals of each individual or group. Each State owns and controls a separate territory: and
each is held together by political, economic, cultural (and frequently also ethnic or
religious) links.
2. Within States individuals are the principal legal subjects, and such legal entities as public
corporations, private associations, etc. are merely secondary subjects whose possible
suppression would not result in the demise of the whole legal system. In international
community the reverse holds true: States are the primary subjects, individuals play a
limited role.
3. Although the protagonists of international life are States as legal entities or corporate
structures, of course they can only operate through individuals, who do not act on their
own account but as State officials, as the tools of the structures to which they belong.
Thus, for instance, if a treaty of extradition is concluded by France with China, the
agreement is negotiated by diplomats belonging to the two States; their Ministers of
Foreign Affairs sign the treaty; the instrument of ratification is formally approved and
signed by the Heads of State, if necessary, after authorization by parliamentary
assemblies. Once the treaty has entered into force, it is implemented by the courts of each
country (indeed, it is generally for the courts to grant or refuse extradition in each
particular case) and, if required, also by officials of the respective Ministries of Justice.
4. Similarly, a State may consider that another country has committed an international
transgression, and therefore decides to react by resorting to peaceful reprisals (today
called countermeasures) such as the expulsion of all the nationals/diplomats of the State
in question. This response is decided upon and carried out by individuals acting as State
agents: the decision is normally taken, at the suggestion of the Foreign Minister, by the
Minister for Home Affairs, after possible deliberation by the Cabinet; the actual
expulsion is carried out by police officers or officials of other enforcement agencies.
5. Indeed, in International law more than in any other field the phenomenon of ‘fictitious
person’, manifests itself in a conspicuous form: individuals engage in transactions or
perform acts not in their personal capacity, that is to protect or further their own interests,
but on behalf of multitude of individuals.
6. Why does the world community consist of sovereign and independent States, while
human beings as such play a lesser role? We shall see later (in historical development)
how the international community evolved and how, after the first modern States
(England, France, Spain) came into being in the fifteenth century, the various
communities in Europe and elsewhere gradually consolidated and 'hardened' into States.
7. It may suffice now to stress that this powerful drive has been a constant and salient
feature of the world community, so much so that most individuals now belong to one
State or another: the world population of about six billion human beings is currently
divided up amongst nearly two hundred States.
In the Middle Ages it was usual to say that outside the Church no salvation could be found (extra
Ecclesiam nulls salus) —at least, this was what the Church encouraged people to believe. Today
it could be maintained with greater truthfulness that without the protection of a State, human
beings are likely to endure more suffering and hardship than what is likely to be their lot in the
normal course of events—witness the plight of stateless persons, which has only lately been
taken up by international institutions.
NEED FOR INTERNATIONAL LAW-
1. The world needs international law, because no State acting alone can achieve its aims.
International co-operation is necessary; and international Law is the framework within
which international co-operation takes place.
2. This point was well made by a former British Foreign Secretary, Douglas Hurd:
Nation states are . . . incompetent. Not one of them, not even the United States as the
single remaining super-power, can adequately provide for the needs that its citizens now
articulate. The inadequacies of national governments to provide security, prosperity or a
decent environment has brought into being a huge array of international rules, and
institutions; the only answer to the puzzle is effective co-operation between those states
for all the purposes that lie beyond the reach of any one of them.'
3. The passage suggests some of the matters with which international law is concerned. The
national security of each State depends upon an acceptance by other States of restrictions
upon the right to use force to achieve their aims. Those restrictions are given their
definitive expression in international law. National prosperity depends upon trade; and
inter-national trade is conducted within the rules that constitute the World Trade
Organization (WTO) trading system and regional systems such as the North American
Free Trade Agreement (NAFTA).
4. Factors that affect international competitiveness, such as national health and safety
legislation and minimum employment standards, are also regulated as part of this broad
scheme. Pollution of the land, sea, and air is the subject of a large and growing network
of global and regional treaties.
5. Fundamental human rights are secured by multilateral treaty regimes in Africa, the
Americas, and the Europe, and are supplemented by increasing numbers of agreements
got more specific matters such as the rights of children, minorities, migrant workers.
Plant, diseases, drugs, are the subject of international agreements.
6. So, too, are transportation, banking, arms control, educational exchanges, and extradition;
the list and the scope of international law, is almost infinite.
The reference to the `huge array of international rules and institutions suggests something of the
processes by which the rules of international law are made. Take for example the question of the
environment. No State can prevent global warming by acting alone. It may impose severe
restrictions upon carbon dioxide emissions and engage in massive tree-planting programmes; but
if no other State is doing so, its efforts will be practically pointless.
Worse, the additional costs imposed on manufacturers and tax-payers as a result of those
measures will tend to put that State's economy at a competitive disadvantage: the role of
ecological custodian comes at a real cost.
Unilateral action is at best ineffective and may be positively counterproductive. Co-operation is
necessary; and co-operation needs a framework. In order even to begin to attempt to co-operate,
States must contact each other and know who is competent to give binding undertakings that will
be respected by the government, the courts, and other public authorities of the other State. They
need to know how to indicate that a particular agreement made by a State is formally binding, as
a matter of legal obligation, and is not regarded simply as a matter of policy that can be varied or
abandoned at will by the other State.
These matters are governed by-principles of diplomatic law and treaty law. In order to negotiate
an agreement on environmental controls, State representatives need to discuss the issue. States
may already have established an international organization with competence in the field, under
whose auspices negotiations can take place. If not, States will have to convene a conference. This
is not easy. If a State representative visits, say, New York, he or she may be threatened with
arrest or with being sued in respect of some wrong that was allegedly committed by the State that
sent them.
The work of State representatives is greatly helped if they are assured that they will not be
subject to such distractions, and the advantages of such immunity are generally thought to
outweigh the disadvantages of closing off that particular means of challenging the conduct of
foreign States before courts of law. Hence, international law provides for the immunity of
diplomats and other State representatives.
 INTRODUCTION
INDIA AND INTERNATIONAL LAW-
International law and municipal law-
 ‘Municipal law’ is the technical name given by international lawyers to the national or
internal law of a state.
 The question of the relationship between international law and municipal law can give
rise to many practical problems, especially if there is a conflict between the two. Which
rule prevails in the case of conflict? How do rules of international law take effect in the
internal law of states?
 Dualist and monist theories-
There are two basic theories, with a number of variations in the literature, on the
relationship between international and domestic law.
The first doctrine is called the dualist (or pluralist) view, and assumes that international
law and municipal law are two separate legal systems which exist independently of each
other. The central question then is whether one system is superior to the other.
The second doctrine, called the monist view, has a unitary perception of the ‘law’ and
understands both international and municipal law as forming part of one and the same
legal order. The most radical version of the monist approach was formulated by Kelsen.
In his view, the ultimate source of the validity of all law derived from a basic rule
(‘Grundnorm’) of international law. Kelsen’s theory led to the conclusion that all rules of
international law were supreme over municipal law, that a municipal law inconsistent
with international law was automatically null and void and that rules of international law
were directly applicable in the domestic sphere of states.
In reality, the opposing schools of dualism and monism did not adequately reflect actual
state practice and were thus forced to modify their original positions in many respects,
bringing them closer to each other, without, however, producing a conclusive answer on
the true relationship between international law and municipal law.
INDIAN CONSTITUTION-
Article 51(c) of the Constitution directs the State to ‘endeavour to’, inter alia, ‘foster respect for
international law and treaty obligations in the dealings of organised peoples with one another’.
There are several noteworthy features of Article 51(c). most important one is that this Article
falls in Part IV of the Constitution that identifies the Directive Principles of State Policy (DPSP).
Although the DPSP are not intended to be ‘enforceable by any court’, they are nevertheless
‘fundamental in the governance of the country’, and it is the duty of the state to apply these in
making laws.
INDIAN SC AND INTERNATIONAL LAW-
The courts have raised, used, and ‘incorporated’ international conventions or treaties in several
ways.
First, where an international treaty to which India is a party has been incorporated in domestic
law, and the terms of it are unclear or ambiguous, courts have interpreted the domestic
legislation in consonance or harmony with the international treaty. They do so on the basis of a
prima facie presumption that Parliament did not intend to act in breach of international law and
its treaty obligations. Conversely, where the law on the issue as settled in India is clear enough,
the courts have held that it is unnecessary to look elsewhere (viz. international law). A case that
illustrates this general point is Salil Bali v Union of India-
 The Court was asked to consider the constitutionality of the Juvenile Justice
Act 2000, in relation to the age of a juvenile, in the light of the December
2012 Delhi rape. In upholding the constitutionality of the Act and the
impugned provision, the Court relied, inter alia, on international law. It noted
that the Act was:
o in tune with the provisions of the Constitution and the various
Declarations and Conventions adopted by the world community
represented by the United Nations. The basis of fixing of the age till
when a person could be treated as a child at eighteen years in the
Juvenile Justice (Care and Protection of Children) Act, 2000, was
Article 1 of the Convention of the Rights of the Child ...
Secondly, where an international treaty to which India is a party has not been incorporated into
domestic law, courts have directed the State to nevertheless give effect to it. An example of an
unincorporated treaty being given effect is People’s Union for Civil Liberties v Union of India
(the telephone tapping case), where the Court expanded Article 21 to include the right to privacy
on the grounds that municipal law must be read in conjunction with international law. The
International Covenant on Civil and Political Rights 1966 (Article 17) the Universal Declaration
of Human Rights 1948 (Article 12), to which India is a party, protect the right to privacy. The
Court noted that ‘the provisions of the covenant, which elucidate and go to effectuate the
fundamental rights guaranteed by our Constitution, can certainly be relied upon by courts as
facets of those fundamental rights and hence, enforceable as such’.
Thirdly, where an international treaty to which India is a party has not been incorporated into
domestic law, in addition to giving effect to the treaty, the Court has, at least in one notable
instance, judicially ‘incorporated’ or legislated it. In Vishaka v State of Rajasthan, the Supreme
Court ‘in the absence of enacted domestic law’ laid down ‘guidelines and norms’ on sexual
harassment to be observed at all workplaces until a legislation is enacted for the purpose. The
Court noted, ‘it is now an accepted rule of judicial construction that regard must be had to
international conventions and norms for construing domestic law when there is no inconsistency
between them and there is a void in the domestic law’ Further, ‘any international convention not
inconsistent with the fundamental rights and in harmony with its spirit must be read into these
provisions [Articles 14, 15, 19, and 21 of the Constitution] to enlarge the meaning and content
thereof and to promote the object of constitutional guarantee’. The Supreme Court herein ‘made
law’, and, it did so with reference to international law. The Court referred to the Convention on
Elimination of All Forms of Discrimination Against Women 1980, to which India is a party,
subject to some reservations, to derive legitimacy for its excursion into lawmaking. In order to
derive authority for its lawmaking, the Court claimed to be acting ‘in exercise of the power
available under Article 32 of the Constitution for enforcement of the fundamental rights’. And, it
emphasised that this would be treated as the law declared by this Court under Article 141 of the
Constitution.
It is worth noting that the Court’s power under Article 141 of the Constitution is to ‘declare law’,
a power which only binds courts and tribunals throughout India. The Court does not have the
power, as it has here been assumed, to ‘make law’ binding upon all citizens of India. Giving
effect to unincorporated treaties is in itself a usurpation of the legislative function, let alone
making law to act as a place holder until Parliament steps in. In taking an expansive view of
international law in Vishaka, the judiciary ‘made law,’ extended its own reach, and encroached
on the domain of Parliament Although the extent to which the Supreme Court went in Vishaka
may be unusual, scholars have documented a trend among the world’s common law judges
towards the phenomenon of ‘creeping monism’—the trend of judges to utilise unincorporated
(human rights) treaties in their work.
Finally, and in a similar vein, courts do not hesitate to refer favourably even to treaties to which
India is not a party. A recent case in point is G Sundarrajan v Union of India, where the
Supreme Court was asked to consider whether setting up the Kudankulum nuclear power plant
was contrary to public policy. In holding that it was not, as it served the larger public interest, the
Court nevertheless stressed the obligation that the relevant authorities were under an obligation
to ensure that adequate nuclear safety measures were put in place before the plant commences
operation. In this context, the Court drew attention to several international treaties, including one
that India had not signed. Quoting extensively from this instrument, the Court noted, ‘India is not
a signatory to the same but the said Convention is worth referring to in order to understand and
appreciate the worldwide concern for public safety.’ In relation to treaties to which India is not a
party, the Gujarat High Court decision in Ktaer Abbas Habib Al Qutaifi v Union of India goes
perhaps the farthest. The Court in this case read the principle of non-refoulment, drawn from the
Refugee Convention to which India is not a party, into Article 21. Citing Article 51(c) the Court
held ‘[t]he principle of “non-refoulment” is encompassed in Article 21 of the Constitution of
India and the protection is available, so long as the presence of the refugee is not prejudicial to
the national security’. In doing so, however, it noted that the principle of non-refoulment ‘forms
part of general international law’, and that ‘[t]here is substantial, if not conclusive, authority that
the principle is binding on all states, independently of specific assent’.
As with treaties, the Indian courts appear inclined to incorporate international customary and not-
so-customary norms into domestic law. The classic case in this regard is the Vellore Citizens’
Welfare Forum case, where the Court held that the international environmental law principles of
precaution and ‘the polluter pays’ are part of domestic environmental law. In the Court’s
reasoning Article 21, and other relevant constitutional provisions, as well as India’s network of
statutory environmental laws, were sufficient to render the precautionary and ‘the polluter pays’
principles part of domestic environmental law. It is worth noting that these constitutional
provisions contain a mandate ‘to protect and improve’ the environment, and the network of
environmental laws seeks to further this mandate. At the time there was no reference in any
environmental legislation to the concept of precaution, and the Court did not identify one either.
Further, the Court declared that ‘sustainable development as a balancing concept between
ecology and development has been accepted as a part of the customary international law
although its salient features are yet to be finalized by international law jurists’.
SUPREME COURT’S USE OF INTERNATIONAL LAW CAN BE SUMMARIZED AS
FOLLOWS-
1. The Court’s use of international law has expanded its (already considerable) power and
discretion. This has occurred in several ways.
a. First, the courts have given effect to unincorporated treaties, gradually usurping
parliamentary functions.
b. Secondly, the courts have incorporated customs without examining the
jurisprudence behind them. This has, given the presence of infinite international
legal norms, created uncertainty in the corpus of law that can be expected to be
drawn on to decide cases, especially in the environmental and human rights field.
c. Thirdly, the courts have engaged in a largely superficial manner with the content
of international law. They have often asserted rather than argued and established.
This at most can be said to be a ‘case by case method of judicial governance’.
There are very few exceptions to this position taken by court. One notable
example is Gramophone Company of India Ltd v Birendra Bahadur Pandey,
where the Supreme Court opined that municipal Law must prevail in case of
conflict. National Courts cannot say yes if Parliament has said no to a principle of
international law. National Courts will endorse international law but not if it
conflicts with national law.
d. PROVISIONS-
Art. 51. Promotion of international peace and security. The State shall endeavour
to-
1. promote international peace and security;
2. maintain just and honourable relations between nations;
3. foster respect for international law and treaty obligations in the
dealings of organised peoples with one another; and encourage
settlement of international disputes by arbitration.
ART 73-
Extent of executive power of the Union-
1. Subject to the provisions of this Constitution, the executive power of the Union shall
extend –
 to the matters with respect to which Parliament has power to make laws; and
 to the exercise of such rights, authority and jurisdiction as are exercisable by
the government of India by virtue of any treaty on agreement:
 Provided that the executive power referred to in sub clause (a) shall not, save as
expressly provided in this constitution or in any law made by Parliament, extend
in any State to matters with respect in which the Legislature of the State has also
power to make laws.
ART 253-
Legislation for giving effect to international agreements.
Notwithstanding anything in the foregoing 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.
TREATY MAKING POWER-
Art. 73 states that the executive power of the Union shall extend to the matters with respect to
which Parliament has power to make laws;
The Parliament by virtue of Article 246 read with the relevant entries in the Union List has the
power inter alia to legislate with respect to entering into and implementing treaties and
agreements.
ENTRIES (10 TO 21)
LIST I-
 Foreign affairs, Diplomatic, consular and trade representation
 UNO
 Participation in Int. Conf. and implementing decisions
 Entering into treaties, agreements and their implementation
 War and Peace
 Extradition
 Citizenship, naturalization
 Expulsion, admission, emigration
 Pilgrimages to places outside India
In addition, Article 253 recognises the power of Parliament to make laws for the whole or any
part of India for implementing any international agreement.
In PB Samant v Union of India, Bombay HC held that- There is no manner of doubt that in
case the Government enters into treaty or agreement, then in respect of implementation thereof, it
is open for the Parliament to pass a law which deals with the matters which are in the State list.
In case the Parliament is entitled to pass laws in respect of the matter, then it is difficult to
appreciate how it can be held that the Central Government is not entitled into treaty or agreement
which affects the matters included in the State list.
The position is neatly stated in Maganbhai Ishwarbhai Patel v Union of India thus: ‘[t]he
executive is qua the State competent to represent the State in all matters international and may by
agreement, convention or treaties incur obligations which in international law are binding upon
the State’.
Since the power of the executive, by virtue of Article 73 read with Article 246, the relevant
entries in the Union list, and Article 253 is coextensive with that of Parliament, and Parliament
has yet to legislate in this area, the executive has the unfettered power, for now, to enter into
treaties and agreements, and to determine the manner in which they should be implemented.
The government of India, in an oft-quoted passage, proclaimed, ‘Parliament has not made any
laws so far on the subject [of treaties] and until it does so, the President’s power to enter into
treaties remains unfettered by any international constitutional restrictions. (Law and Practice
Concerning the Conclusion of Treaties (United Nations Legal Series 1953).
The executive has sweeping powers in relation to treaty making—due both to constitutional
prescription and to legislative vacuum. In Ram Jawaya Kapur v Union of India, the Court held
that ‘ordinarily the executive power connotes the residue of governmental functions that remain
after legislative and judicial functions are taken away’. The lesser the terrain occupied by
legislation, therefore, the greater the executive power. Such sweeping executive powers in
relation to treaty making have proven controversial, in particular in the context of India’s
engagement with the GATT/WTO regime.
In theory, Parliament could enact a law providing guidance on the kind of treaties the executive
can enter into. It could also direct the executive to enter into a particular treaty or to refrain from
doing so. Parliament, however, is yet to legislate in this area.
There are, nevertheless, some constraints on the executive’s treaty-making power.
 The first constraint is imposed by international law. Article 46 of the Vienna Convention
on Treaties 1969 prevents States from claiming that their consent to be bound by a treaty
is invalid on the grounds that their consent violated a provision of their internal law
regarding competence to conclude treaties, that is, ‘unless that violation was manifest and
concerned a rule of its internal law of fundamental importance’. Manifest violations of
internal laws of fundamental importance (for instance, constitutions) therefore can
invalidate treaties.
 The second constraint is imposed, in theory, by the fact that India has followed the dualist
tradition. Treaties do not have the force of law unless enacted into law by Parliament.
Treaties do not have the force of law unless enacted into law by Parliament. The Supreme
Court in Jolly Verghese v Bank of Cochin held that international conventional law must
go through a process of transformation into the municipal law before the international
treaty can become internal law’, and that from ‘a national point of view the national rules
alone count’. As noted, before, however, the courts appear to be moving away from this
strict transformation doctrine to one that embraces unincorporated treaties. The executive
is obliged to comply with the provisions of the Constitution and the principles underlying
it, the law of the land, and the fundamental rights guaranteed to citizens. DK Basu v State
 of West Bengal, the Supreme Court expressly nullified a declaration appended by the
executive to an international agreement. While ratifying the ICCPR 1966, the
Government of India had appended a declaration to Article 9(5) which provides an
enforceable right of compensation for unlawful arrest and detention. The Indian
declaration noted that ‘there is no enforceable right to compensation for persons claiming
to be victims of unlawful arrest or detention against the State’. The Supreme Court
opined that the ‘this lost its relevance in view of the law laid down by this Court in a
number of cases awarding compensation for the infringement of the fundamental right to
life of a citizen. In a line of cases beginning with Nilabati Behera v Union of India,the
Supreme Court had implicitly ignored the declaration and awarded compensation, but in
DK Basu, the Court went further. In sum, executive power in this realm is considerable,
and space for a consultative process in Parliament, a fact recognised by the National
Commission to Review the Working of the Constitution, which recommended that
Parliament enact a law regulating ‘treaty making’ so as to democratise the process as well
as to create accountability. Also, a Parliamentary Committee be created to determine
which treaties must be subject to fuller debate in Parliament, and which treaties could be
entered into by the government acting on its own. Many constitutional theorists have also
pressed for review and change.
 Such vast enjoyed by the executive in relation to treaty making is checked to some extent
by the role envisaged for Parliament in treaty implementation. Article 253 provides that
‘[n]otwithstanding anything in the foregoing 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. Although
Parliament has the power to make law to implement treaties, it is neither required to do so
in every instance nor does it. Unless treaties operate to restrict the rights of citizens or
modify its laws, treaties can be given effect to by the executive in the absence of
implementing legislation. The power to legislate in respect of treaties lies with the
Parliament, and making of law under that authority is necessary when the treaty or
agreement operates to restrict the rights of citizens or others or modifies the laws of the
State. If the rights of the citizens and others that are justiciable are not affected, no
legislative measure is needed. In practice, although India is a party to many treaties, few
of these have been incorporated into domestic law. EP ACT, 1986 AND AIR ACT 1981.
WHEREAS the decisions were taken at the United Nations Conference on the Human
Environment held at Stockholm in June, 1972, in which India participated, to take
appropriate steps for the protection and improvement of human environment;
WHEREAS decisions were taken at the United Nations Conference on the Human
Environment held in Stockholm in June, 1972, in which India participated, to take
appropriate steps for the preservation of the natural resources of the earth which, among
other things, include the preservation of the quality of air and control of air pollution.
 HISTORY OF INTERNATIONAL LAW-RISE OF NATION STATES
According to some authors the evolution of the international community can be roughly divided
into four major stages:
1. from its gradual emergence (sixteenth—early seventeenth century) to the First World
War;
2. First World War to the Second World War (1919-1945);
3. Second World War to the end of the cold war (1945-1989);
4. the present period.
The origin of the international community in its present structure and configuration is usually
traced back to the sixteenth century. It largely crystallized at the time of the Peace of Westphalia
(1648), which concluded the ferocious Thirty Years War.
Of course, international intercourse between groups and nations had existed previously.
From time immemorial there had been consular and diplomatic relations between different
communities, as well as treaties of alliance or of Peace.
During medieval times law on the conduct of belligerent hostilities had gradually evolved.
And yet all these relations were radically different from current international dealings, for the
idea of the international community itself was different. However, it did differ from present
scenario due to two reasons.
1. First, fully fledged States in the modern sense—did not yet exist. They did not have the
typical features of state till 15th century.
2. The period following the Peace of Westphalia inaugurated a new era in a second respect.
Previously...there had been the presence of two poles of authority: The Pope as the head
of the Catholic Church, and the Emperor at the head of the Holy Roman Empire.
Thus, the necessary premise for the development of the present international community is the
rise of modern national States between the 15th and 17th centuries.
PEACE OF WESTPHALIA-
Thirty Years War Involved major European countries. The conflict had started in 1618 for
religious reasons, namely the struggle between Catholic and protestant countries, but it soon
became a war for complete hegemony in Europe. The war became quite infamous and resulted in
great number of casualties.
The peace of Westphalia concluded this war. These treaties of peace thus constitute a watershed
moment in the evolution of modern international community and law. The salient features of the
treaties were-
 First, they recognized Protestantism at an international level and Consequently
legitimized the existence of States based on it. Henceforth, even from the point of view of
religion, it was recognized that the State was independent of the Church.
  Second, the treaties granted members of the Holy Roman Empire the right to enter into
alliances with foreign powers and to wage war, provided that those alliances or wars were
neither against the Empire 'nor against the public peace' and the 'treaty’. Thus, a number
of small countries were upgraded to the status of members of the international
community with quasi-sovereign rights.
 Third, the treaties crystallized a political distribution of power in Europe that lasted for
more than a century. France, Sweden, and the Netherlands were recognized as the new
emerging big powers; Germany was split LIP into a number of relatively small States.
 Fourth, all parties would now recognize the treaty, by which each prince would have the
right to determine the religion of his own state. (the principle of cuius regio, eius religio-
whose realm his religion).
In short, the Peace of Westphalia testified to the rapid decline of the Church (an institution which
had already suffered many blows) and to the de facto disintegration of the Empire. It gave birth
of an international system based on plurality of independent state, recognizing no superior
authority over them.
In other words it effectively ended the Pope’s pan-European political power. Infuriated, Pope
Innocent X declared the treaty "null, void, invalid, iniquitous, unjust, damnable, reprobate, inane,
empty of meaning and effect for all times- though it was ignored even by the catholic kings.
STAGE 1: WESTPHALIA TO WW I-
Since its inception the world community consisted not only of European States, but embraced
other countries and nations as well, and there was some degree of intercourse between all
sections of the community; however, many factors including geographical distance and the
slowness of communication and transport rendered transactions between European and other
countries particularly difficult.
For various reasons, the European Powers set the tone from the outset and played a dominant
role throughout. Western jurists consistently theorized about and buttressed the idea of 'European
superiority. Reasons-
1. Common ideological background (Christianity).
2. Pattern of economic and political development.
3. Industrial revolution in Europe further created gap between European and non-European
states.
4. In a number of respects non-Christian States lived for many years at the margin of
international community: they did not take active part nor did they play any major role in
it.
5. Very few Asian countries had social intercourse with European states on equal footing.
6. By the 19th century these states were left so far behind European states that they were
gradually conquered.
CAPITULATION SYSTEM AND COLONIALISM-
As pointed out above, non-European States bowed to Western 'superiority' and eventually
submitted to the rules elaborated by European countries and the USA. Western States tended to
develop two distinct classes of relations with the 'outside world, depending on whether this
'world' consisted of States proper (the Ottoman Empire, China, Japan, etc.) or was instead made
up of communities lacking any organized central authority (tribal communities or communities
dominated by local rulers, in Africa and Asia).
With the former, Europe and the USA to a large extent based their relations on the 'capitulation'
system. They considered the latter mere objects of conquest and consequently turned them into
colonial territories.
Capitulations served to impose conditions for the residence of Europeans (including US
nationals) in the territories of Non-European countries. They tended to include following
provisions-
1. Europeans who were nationals of a party to the agreement could not be expelled from the
country without the consent of their consul.
2. they had the right practice public worship of their Christian faith; they could erect
churches and have their own graveyards;
3. they enjoyed freedom of trade and commerce and were exempted from certain import and
export duties.
4. reprisals against them were prohibited.
5. Territorial courts usually had no jurisdiction over disputes involving Europeans. These
can be summarized as follows-
a. Europeans came to make up a legal community completely separate from the
local and actually subject to their own national authorities (which thereby
extended their control beyond their own territorial area, and to a foreign country).
b. This regime was not based on reciprocity: it consisted of a number of privileges
granted to European on a Non-European territory, with no counterpart in favour
of non-European nationals.
c. With regards to the ‘other’ countries namely those lacking any state like structure,
or governed by great number of local authorities frequently feuding with each
other- these countries were gradually subjected to colonial domination of western
powers.
d. So, the Europeans first colonized Americas in the 15th century. As soon as the
first signs of rebellion were apparent in America, Asia became a desirable area.
e. In the 18th century first France and then Britain took over large portions of India,
by latter half of 18th century most of India actually became a British colony.
f. When the successful revolt of the USA then followed the independence of South
America (early 19th century), Europeans turned to Africa while also intensifying
their interest in Asia.
g. The Berlin Conference (participated by Germany, Italy, Britain Spain, Belgium,
France, Norway, Portugal etc.) was meant to regulate the European Colonization
in Africa.
ROLE OF INTERNATIONAL LAW HERE?
It can be argued that this ‘euro-centric’ body of laws facilitated the task of European powers.
These territories mostly due to lack of unity were declared as ‘terra nullius’- belonging to no
one, hence subject to acquisition. It was a concept used in International law sometimes that if a
state acquires a territory owned by no one it gets the rightful ownership.
If local rulers opposed the colonial conquest, International Law as it was then offered two
choices to these rulers-
1. War- obviously without those restraints which bound the so called ’civilized’ (European)
nations.
2. Treaties- this was used to a great extent- these lacked reciprocity and gave the European
countries extensive autonomy.
Main features of law during this phase-
1. International rules and principles were the product of Western civilization and had
Eurocentrism, Christian ideology and free market at its core.
2. International norms during this phase were made by great powers to serve their own
interests. Namely-
a. they placed no restraint on the use of force. (being fully aware that the less
powerful nations were no match to their superior military power).
b. A national of these countries living in the foreign territory could request his govt.
to step in and seek reparation for any ‘alleged’ wrong by the foreign country. This
was important legal tools in the hands of those great powers whose nationals went
abroad to set up commercial enterprises. It can be said that there were few
exceptions in this regard:-
i. In some cases the powerful states were forced to give concessions to
smaller states (ex-lawful combatants).
ii. Some treaties were dictated by humanitarian demands (ex. prohibition on
use of weapons causing inhuman suffering). One such declaration adopted
by the Hague Conference of 1899- prohibition of use of expanding bullets.
These bullets which expanded on contact, thus caused gaping wounds and
excruciating pain. This bullet had been developed by the British at the
Dum-Dum arsenal in Calcutta in the nineteenth century. The British
authorities justified their production by saying that 'the demands of small
colonial warfare warranted this deviation from the standards of European
armaments. The enemies whom Britain encountered were not armies from
the European countries who had signed the St Petersburg Declaration [of
1868, prohibiting the use in time of war of explosive projectiles under a
certain weight], but "savages", and "barbarians" '. The difference was
deemed substantial: 'civilised man is much more susceptible to injury than
savages . . . the savage, like the tiger, is not so easily influenced, and will
go on fighting even when badly wounded. This ‘distinction’ between
 barbarians and civilized men was not new. Back in 1625 Grotius had
written that poisoning weapons and waters was contrary to the law of
nations, not indeed of all nations but of European nations and of such
others as attain to the higher standards of Europe’. Britain eventually had
to accept this prohibition (not using expanding bullets).
This period also saw the development of international law, with the first Geneva Conventions
establishing laws dealing with humanitarian relief during wartime, and the international Hague
Conventions of 1899 and 1907 governing rules of war and the peaceful settlement of
international disputes.
STAGE 2: WWI TO WWII-
Two major events mark the beginning of a new era:
1. the First World War which, although fought solely in Europe, involved the greater part of
the international community and caused the members of such community to strive to
rebuild it on better foundations;
2. the Soviet revolution and the consequent rise of the first State openly to oppose the
economic and ideological roots of other States and of international relations.
The war had many important repercussions. It marked the passing of the 'European Age'. When
the war was over it became apparent that Europe no longer played a crucial part in the world
community Among the chief factors affecting its position were:
1. the rise of the USA;
2. the emergence in 1917 of the Soviet Union-the falling to pieces of the substantial
ideological and political unity of the 'old' community;
3. the end of colonial expansion--- a striking phenomenon which marked the beginning of
that long process that culminated in the collapse of colonial empires in the 1960s.
PRESENCE OF SOVIET UNION-
It has already been pointed out that although some members of the international community (the
Ottoman Empire, China, Japan, Persia, Siam) had a different economic and ideological outlook
to that of European States, they had actually yielded to the Christian majority based on market
economy.
In 1917 one Government came into being with an ideology and a political philosophy radically at
odds with those upheld by all other States. In the international field, the USSR advocated the
following principles:
1. Self-determination of peoples, to be applied both to national groups in Europe (for
example, the nationalities in Austria-Hungary) and to peoples under colonial domination.
2. The substantive equality of States (the attempt of strong nations to restrict the freedom of
the weaker nations by such indirect methods as economic boycotts, economic subjugation
by means of compulsory commercial agreements, separate customs agreements,
restricting the freedom of trade with third countries should be condemned).
 3. Socialist internationalism, whereby the USSR pledged itself to assist the working class
and the political parties struggling for socialism in any State. Thus, again for the first
time, a member State of the international community proclaimed a policy aimed at
disrupting the fabric of other States.
American Secretary of State, Robert Lansing responded by saying- They indeed plan to
destroy civilization by mob violence . . . the Bolshevik program is to make way with the
military and political authority in Russia and to incite similar destruction in other countries.
LEAGUE OF NATIONS-
From 1919 onwards, a fundamental transformation of the international system took place with
the attempt to organize the international community and to ban the use of force. The creation of
the League of Nations was a revolutionary step in inter-state relations.
It followed the call in the last of President Wilson's Fourteen Points for the establishment of "[a]
general association of nations . . . under specific covenants for the purpose of affording mutual
guarantees of political independence and territorial integrity to great and small states alike".
THE LON was created with a small membership (42 states including 5 British dominions- India,
NZ, SA, Australia, Canada).
US which had significant presence in the creation did not itself become a member. • ILO was
also created during this time. Responsibilities were assumed by the League in the field of the
treaty-based protection of minorities in Europe and in social matters, such as health and fair labor
standards.
Another major institutional innovation was the creation in 1921 of the Permanent Court of
International Justice (PCIJ) in The Hague,' the forerunner of the present International Court of
Justice, which was later established under the United Nations Charter.
FAILURE OF LEAGUE-
In the field of peace and security, the refusal of the United States to join the League naturally
placed the novel organization in a difficult position to achieve its objectives. In effect, the
League subsequently came to be controlled by the interests of France and Britain.
A number of states resorted to force without being subject of military sanctions or at any rate
without the league bringing any kind of satisfactory settlement.
The League remained incapable of dealing with the Japanese aggression against China in 1932
when it occupied Manchuria, and with the Italian aggression against Abyssinia in 1935-6.
Limited economic sanctions against Italy adopted by members of the League failed. This was the
first and last attempt to enforce the Covenant against a major power.
In the Spanish Civil War (1936-9), which was viewed as a threat to world peace because of the
direct and indirect intervention of several States, the League affirmed the principle of non-
intervention (the obligation of States not to intervene in the internal affairs of other States),
demanded the withdrawal of all foreign combatants and condemned the bombardment of open
towns, but the League's resolutions had little effect.
Finally, Germany's attack on Poland in 1939 and the outbreak of the Second World War marked
the beginning of the end of the league.
PHASE III: WWII TO COLD WAR-
The outbreak of the Second World War led to the coalition to constrain the aggression by Hitler
and to stop the unspeakable atrocities committed by Nazi Germany throughout Europe.
The Nuremberg and Tokyo Trials affirmed the individual responsibility of German and Japanese
leaders for committing crimes against peace, war crimes and crimes against humanity, but they
were also seen as the victor's justice, although the procedures before these tribunals were fair.
One of the major reactions to the devastation of the WWII was the desire to setup a world
organization capable of preventing such situations and peacefully settling all major disputes
between the states.
The United Nations Charter, sponsored by the United States, Britain, the Soviet Union and
China, was initially drafted at the Dumbarton Oaks Conference in 1944, signed by fifty-one
States at the San-Francisco Conference on 26 June 1945. (though it came into force on
24/10/1945).
However, 2 events undermined the whole peace process which began in San Francisco.
1. less than two months after adoption of the charter, USA dropped atomic bombs on
Hiroshima and Nagasaki.
2. the end of the war gave rise to a new phenomenon- Cold war- which divided the world in
two camps (either supporting US or Soviet Union).
Many critics argue that US dropped the bomb to showcase its supremacy to the rising USSR.
USSR did eventually successfully test atomic bomb.
Cold war was not just a fight of military superiority but of ideological superiority. US and its
supporters (western bloc)- NATO- UK US France Belgium,
USSR and its supporters (eastern bloc)- warsaw pact- Bulgaria, Romania, Hungary, Poland.
DECOLONISATION-
Another important feature of the third phase has been use of international law for the process of
decolonisation- based upon the principle of self-determination laid down in the UN Charter and
in the common Article 1 of the two 1966 International Human Rights Covenants.
The colonial empires of Britain, France, Belgium, the Netherlands, Portugal and Italy were often
confronted with liberation movements in their colonial possessions. The decolonisation process
was basically completed by the 1960s, after the landmark adoption by the UN General Assembly
in 1960 of the Declaration on the Granting of Independence to Colonial Countries and Peoples.
The increase in the number of States to about 130 by the end of the 1960s, almost half of which
were newly independent States, had a profound impact on the international system in general and
the operation of international organisations in particular. The assemblies of international
organisations were now dominated by the block of communist countries and the new States of
the so called Third World.
ATTITUDE OF THIRD WORLD COUNTRIES TOWARDS INTERNATIONAL LAW-
The newly independent States, organized themselves in different groups (ex. Non-aligned
Movement (NAM) etc.). These institutions are not united by common ideology. Their
governments vary from the far right to the far left of the political spectrum. There are also
considerable cultural and economic differences.
The relative homogeneity of interests of these States is, by and large, dictated by their forming
part of the Global South.
Their initial attitude, from the early years of decolonisation onwards, was driven by the fact that
most developing countries were under alien rule for decades or even centuries, and therefore
played no part in shaping a number of international legal standards that emerged in that period.
This factor, coupled with a feeling of resentment of the exploitation these countries had
experienced in the past, occasionally led their leaders to argue that they were not bound by rules
which they had not helped to create.
However, Western States were anxious not to drive Third World States towards communist
States, and therefore were willing to agreed to accommodate the interests of these countries.
DEVELOPMENT OF LAW- THE UN-
Some principles developed/accepted by UN during this time-
1. the prohibition of the threat or use of force by States;
2. the peaceful settlement of disputes between States;
3. the duty not to intervene in matters within the domestic jurisdiction of any State;
4. the duty of States to cooperate with one another in accordance with the Charter;
5. the principle of equal rights and self-determination of peoples;
6. the principle of sovereign equality of States; and
7. the principle that States shall fulfil in good faith the obligations assumed by them.
PHASE IV: THE PRESENT WORLD ORDER-
The collapse, in 1989, of the Soviet Union and the subsequent break-up of the group of socialist
States led to the demise of the whole of this group. Essentially, there is one superpower, the
USA, politically and ideologically leading the Western States. This superpower tends to acts as
world peacekeeper, i.e. it endeavors to settle political disputes or to promote settlements etc.
Though, this role, is played selectively, that is, only to the extent that it favours its strategic and
geopolitical interests.
Thus, in many cases where these interests were at stake, the superpower forcibly acted through
the UN (Iraq, 1990-1, Somalia, 1992, Bosnia-Herzegovina, 1992-5); in other instances, where
the UN support was not forthcoming, it acted through NATO, in clear disregard of the UN
Charter (Kosovo, 1999).
In yet other instances, it either refrained from taking military action, for its interests were not
involved (e.g. Rwanda, 1994. Sierra Leone, 2000, etc.) or engaged in military operations without
any UN authorization (Iraq, 2003-04).
Another sea change occurred after the September 2001 terror attacks on the United States. The
US Government proclaimed its "war on terror". Through multiple policy statements from 2001
onwards, the US Government has been claiming the right to use force unilaterally in response to
threats that it regards suitable for such a response.
The 2002 and 2006 versions of the National Security Strategy issued by the Bush administration,
as well as the 2010 version adopted by the Obama administration, and the 2016 White House
Report on the use of force, have all endorsed this position, though, seemingly at least, to varying
degrees.
Some positive changes have taken place in this era. The adoption of the Statute of the
International Criminal Court by the Rome Conference in 1998, and of climate change
agreements by conferences held in 1998 in Kyoto and 2015 in Paris, have further strengthened
the trend of State commitment to the international Rule of Law and enhanced their reliance on
using international law to resolve global problems that the community of States is facing.

EVOLUTION OF IL- THE CLASSICAL WRITERS AND THEIR CONTRIBUTION

IDEA OF SOVEREIGNTY-
JEAN BODIN-
The concept was first explicitly explained by Jean Bodin in 16th century and since then
sovereignty has become the central problem in the study, both of the nature of the modern state,
and of the theory of international law.
It is necessary to examine the origins of sovereignty through the writings of few of the writers. •
Bodin's Republic was deeply influenced by the circumstances of its time, and by its author's
sentiments towards them.
France in Bodin's time had been struggling by faction and civil war. Bodin was convinced that
the cause of France's miseries was the lack of a government strong enough to curb the subversive
influences of feudal rivalries and religious intolerance, and that the best way to combat these
evils was to strengthen the French monarchy.
He saw, too, that a process of this kind was actually taking place at that time in his own day
throughout Western Europe, unified states were emerging out of loosely compacted states of
medieval times. and the central authority was everywhere taking the form of a strong personal
monarchy supreme over all rival claimants to power secular or ecclesiastical.
Bodin concluded therefore that the essence of statehood, the quality that makes an association of
human beings a state, is the unity of its government; a state without a summa potestas, he said
would be like a ship without a keel.
He defined states as a multitude of families and the possessions that they have in common ruled
by supreme power and by reason’.
Bodin was convinced that a confusion of uncoordinated independent authorities would be fatal to
a state, and that there must be one final source, and not more than one, from which its law
proceed.
The essential manifestation of sovereign, he thought, is the power to make the laws and since
sovereign makes the law they clearly cannot be bound by the laws they make. However, there are
some laws that do bind him: the divine law, the law of nature or the law that is common to all
nations, and also certain laws. which he calls the leges imperii, the laws of the government.
These laws, which the sovereign does not make and cannot abrogate, are the fundamental laws of
the state, and in particular that include the laws which determine in whom the sovereign power
itself is to be vested, and the limits within which it is to be exercised; today we would call them
the laws of the constitution.
Therefore, according to him the Sovereign power though supreme in its authority over its
subjects is itself derived and defined by a law which is superior to itself.
HOBBES-
Hobbes whose book, Leviathan, was published in 17th century, was himself writing keeping in
mind the political situation in his own country.
Like Bodin he too had seen the civil war and like Bodin , he too believed that sovereignty was
essential principle of order.
He believed that men need, for their security ‘a common power, to keep them in awe, and to
direct their actions to the common benefit’ and for him, the person or body in whom this power
resides, however it may be acquired, is the sovereign.
He said that the Law neither makes the sovereign, nor limits its authority; it is the might that
makes the sovereign. And law is merely what he commands.
Moreover, since the power that is strongest clearly cannot be limited by anything outside itself, it
follows that the sovereign must be absolute and unrestricted.
IDENTIFICATION OF SOVEREIGN-
So long as the sovereign is the highest legal authority, there is usually no difficulty in identifying
him or her. But to identify the strongest power involves us in investigation of many extra-legal
forces, political, social, etc which determine how the institutions of the state shall operate in
practice and the same is actually not feasible? (Why)- Because in reality there is no person or
body of persons whose will always prevails. However, this theory had such a strong hold on the
imagination of the political scientists that when they realized that the personal monarch does not
fit the role anymore, they started searching for the ’location’ of sovereignty as if it was a ’thing’.
With the coming of constitutional government, Locke and after him Rousseau, propounded the
theory that the people as a whole were the sovereign; and in the eighteenth century this became
the doctrine which was held to justify the American and the French Revolutions.
As a fighting slogan, as a protest against arbitrary government, and a demand that government
should serve the interests of the governed and not only of the governors, the doctrine of popular
sovereignty has had beneficent results.
But it still rests on a confusion that tries to combine two contradictory ideas; that of absolute
power somewhere in the state, and that of the responsibility of every actual holder of power for
the use to which they put it. What does this mean?
 Considering the argument of Locke and Rousseau-
o Can whole of ‘the people’ ever be sovereign?
o Are people capable of acting as a body?
o Governance requires skill and time. Is it a good democratic ideal also- people as
sovereign?
o Because people always will act in majority, what is the issue with the statement
their does lie a repository of ‘absolute’ power ‘somewhere’.
o What if the state as a juristic person is sovereign? Then it becomes a problem for
international law as sovereignty would mean absolute power and if states are
sovereign in that sense they cannot at the same time be subject to International
Law.
THE ROLE OF NATURAL LAW-
Jus naturale(Roman concept)- In simple words can be defined as sum of those principles
which should control human conduct, because they were founded in the very nature of man as a
rational and social being.
INFLUENCE OF ROMAN LAW ON NATURAL LAW-
Ancient Rome had conquered the world three times:
1. the first through its armies,
2. the second through its religion,
3. the third through its laws.
Jhering- Roman law was a body of law which in itself had thousand years of jurisprudence in it.
It had such an influence of on the legal systems of Europe that it gave rise to Civil Law Systems
in many countries today (Germany, France, Italy, Spain, Russia, Portugal etc.).
Latin maxims are still used in many countries including common law jurisdictions. Roman jurists
were quite active in formulation of law (contract, tort, sale). As the Holy Roman Empire grew so
did the influence of Roman law on other countries.
The jus civile (citizen law) was the body of common laws that applied to Roman citizens.
The jus gentium (law of peoples) was the body of common laws that applied to foreigners, and
their dealings with Roman citizens. In simple words these are rules observed everywhere.
Jus naturale was a concept the jurists developed to explain why all people seemed to obey some
laws.
Because they were founded in the very nature of man as a rational being. In effect jus gentium
and jus naturale are same set of rules looked from different angles. Because rules which are
everywhere observed surely must be the rule which the rational nature of man prescribes to him.
This concept of jus naturale was later used by medieval writers to expound ‘natural law.’
St Thomas Aquinas, taught that the law of nature was that part of the law of God which was
discoverable by human reason, in contrast with the part which is directly revealed. Such an
identification of natural with divine law necessarily gave the former an authority superior to that
of any merely positive law of human ordinance, and some writers even held that positive law
which conflicted with natural law could not claim any binding force.
The effect of such a conception as this, when applied to the theory of the relations of the states to
one another, is obvious, for it meant that it was not in the nature of things that those relations
should be merely anarchical; on the contrary they must be controlled by a higher law, not the
mere creation of the will of any sovereign, but part of the order of nature to which even
sovereigns were subjected.
As against the theory of sovereignty, standing for the new nationalistic separation of the states of
Europe, was set the theory of a law of nature denying the irresponsibility of states and negating
the finality of their independence from one another. No doubt it was impossible to point to any
authentic text of this law, and different interpretations of it were possible; but in spite of all
appearances, the belief remained that the whole universe, and the relations of sovereigns to one
another, must be ruled by law.
And the natural law writers had Roman law as a guide. The position of Roman law in Europe the
sixteenth century has an important bearing on the beginnings of international law. There were
some countries, such as Germany, in which acceptance of Roman law taken place; that is to say,
it had driven out the local customary law and had been accepted as the binding law of the land.
In other countries the process had not gone so far; but even in these countries the principles of
Roman law were held in great respect, and were appealed to whenever no rules of local law
excluded them. Everywhere, in fact, Roman law was regarded as the ratio scripta (written
reason); and a medieval writer, seeking to expound the law of nature, had only to look around to
see a system of law, actually operative in the world, which was the common heritage of every
country, revered everywhere as the pinnacle of human reason.
Thus Roman law reduced the difficulty of finding the contents of natural law; in fact the
founders of international law turned unhesitatingly to Roman law for the rules of their system.
Example- Law relating to territory in International law are still essentially the roman rules of
property.
WHY/HOW NATURAL LAW STILL SURVIVES-
Though different terminologies are used to understand natural law- we recognize the validity of
those truths as fully as ever. For one thing, the law of nature stands for the existence of purpose
in law, reminding us that law is not a meaningless set of arbitrary principles to be mechanically
applied by courts, but that it exists for certain ends, though those ends may have to be differently
formulated in different times and places. Thus where we might say that our aim is to embody
social justice in law (giving to that term whatever interpretation is current in the thought of our
time), a medieval thinker might have said that the validity of positive law must be tested by its
conformity to a law of higher obligation, the law of nature.
Even today, when modern lawyers ask what is reasonable, they only look for an answer that is
valid here and now, and not for one that is finally true; whereas a medieval writer might have
said that if ultimate truth eludes our grasp, it is not because it is undiscoverable, but because our
reasoning is imperfect. Some modern writers expressed this difference by saying that what we
have a right to believe in today is a law of nature with a variable content.
Natural law, therefore, or a similar principle under some other name, is an essential principle that
is admitted into the actual administration of law. This is so because any system of law has to deal
with life which is too complicated, and human foresight too limited for law to be completely
formulated in a set of rules.
Situations perpetually arise which fall outside the rules as formulated. Law cannot, and does not,
refuse to solve a problem because it is new and unprovided for. Law meets such situations by
resorting to a principle, outside formulated law, whose presence is not always admitted. In fact, it
falls back on the solution which the court or the jury think is reasonable under the circumstances.
The English common Law is perpetually appealing to reason as the justification of its decisions,
asking what is a reasonable time, or what is a reasonable price, or what a reasonable person
would do in given circumstances. We do not suppose that our answers to those questions will be
scientific truths; it is enough if they are approximately just; but on the other hand, can we
eliminate this test of reasonableness by substituting fixed rules?
 No, because it would be impossible to do so. But this appeal to reason is merely to appeal
to a law of nature. Sometimes, indeed, English law still uses the term `natural justice and
the courts try their best to decide-What 'natural justice' requires in particular
circumstances.
WRITERS AND SCHOLARS OF INTERNATIONAL LAW-
GROTIUS AND VATTEL
• Grotius (1583-1645) was a Dutch diplomat and lawyer. • His book De jure belli ac pacis (on the
law of war and peace) is considered one of the most important books on International Law. • He
is also known as father of International law. • Though, no single person can be said to have
‘founded’ international law. In his book he observed: There is a common law among nations,
which is valid alike for war and in war, I have had many and weighty reasons for undertaking to
write upon this subject. Throughout the Christian World I observed a lack of restraint in relation
to war, such as even barbarous races should be ashamed of; • I observed that men rush to arms
for slight causes, or no cause at all, and that when arms have once been taken up there is no
longer any respect for law, divine or human; it is as if, in accordance with a general decree,
frenzy had openly been let loose for the committing of all crimes. • (In contrast with this
anarchy, he proclaimed that even states ought to regard themselves as members of a society,
bound together by the universal supremacy of justice. Man, he said, is not a purely selfish
animal, for among the qualities that belong to him is an appetitus societatis, a desire for the
society of his own kind, and the need to preserve this society is the source of the law of nature,
which he defines in his book as: • A dictate of right reason which has moral necessity in quality
and accordingly is prescribed by the author of nature, God. • Besides being subject to natural
law, he says, the relations of peoples are subject to `law of nations’ ; for just as in each state the
civil laws look to the good of the state, so there are laws established by consent which look to the
good of the great community of which all or most, states are members, and these laws make up
‘law of nations’ (jus gentium) • it is obvious that this is a very different meaning from that which
the term bore in the Roman law; there, as we saw, it stood for that part of the private law of
Rome which was supposed to be applicable everywhere else ; whereas in Grotius it has come to
be a branch of public law, governing the relations between one people and another. • It is
important, Grotius tells us, to keep the notions of the law of nature and the law of nations (to
adopt a mistranslation of jus gentium which its new meaning makes almost necessary) distinct.
JUS AD BELLUM & JUS IN BELLO • Jus ad bellum (just war/right to war) refers to the
conditions under which States may resort to war or to the use of armed force in general. [The
prohibition against the use of force amongst States and the exceptions to it (self-defence and UN
authorization for the use of force), set out in the United Nations Charter of 1945, are the core
ingredients of jus ad bellum] • Jus in bello regulates the conduct of parties engaged in an armed
conflict. IHL is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts,
notably by protecting and assisting all victims of armed conflict to the greatest extent possible. •
International Humanitarian law is essentially jus in bello. • Least of all should that be admitted
which some people imagine, that in war all laws are in abeyance. On the contrary war ought not
to be undertaken except for the enforcement of rights; when once undertaken, it should be carried
on only within the bounds of law and good faith. • Demosthenes well said that war is directed
against those who cannot be held in check by judicial process. For judgements are efficacious
against those who feel that they are too weak to resist; against those who are equally strong, or
think they are, wars are undertaken. • Let the laws be silent, then, in the midst of arms, but only
the laws of the State, those that the courts are concerned with, that are adapted only to a state of
peace; not those other laws, which are of perpetual validity and suited to all times. • Between
enemies, he said, written laws- that is the law of a particular states, are not in force but the
unwritten laws are in force:- • These are:- • Those which the nature prescribes or • The
agreement of nations has established. INFLUENCE • It was proof of his success that within a
few years of his death his book had become a university textbook and still quoted by theorists. •
His work had lasting impact on Law of War. • Some of his principles ex. Open sea cannot be
subjected to sovereignty of any state is established law. VATTEL • Emerich de Vattel (1714-69),
who was a Swiss who served in the diplomatic service of Saxony (Germany). He intended his
work as a manual for men of affairs, and his work is still sometimes cited as an authority in
international disputes. He accepted the doctrine of the state of nature: • 'Nations are being
composed of men naturally free and independent, who, before the establishment of civil
societies, lived together in the state of nature; • These nations or sovereign states are to be
considered as so many free persons living together in the state of nature'; and since men are
naturally equal, so are states. • 'Power or weakness does not in this respect produce any
difference. A dwarf is as much a man as a giant; a small republic is no less a so state than the
most powerful kingdom. • Necessary law and voluntary law • Law of nations is merely law of
nature applied to nations (necessary law) • However, there is another element to it, the voluntary
laws- which nations agree to follow or give consent to. • Vattel tells us that by the necessary law
a state has a duty to maintain free trade, because this is for the advantage of the human race; but
by the voluntary law that state may impose any restrictions it wants in any proposed trading
treaty, for its duties itself are more important than its duties to others. • By necessary law, again,
for Vattel there are only three lawful causes of war: self-defence, redress of injury, and
punishment of offences: but by voluntary law we must apparently always assume that each side
has a lawful cause for going to war.
 SOURCES OF INTERNATIONAL LAW (MODULE 2)
UNITED NATIONS: BRIEF OVERVIEW UN Headquarters: New York Members: 193
countries: Vatican and Palestine as observers Mandate: to end international war, and promote
social and economic development. Key structure: six principal "organs" are the General
Assembly (all UN members, to make recommendations to states), the Security Council (fifteen
members, to take enforcement action on international security), the international Court of Justice
(to decide legal disputes between states), the Secretariat (the SecretaryGeneral and staff), the
Economic and Social Council (fifty-four members, to make recommendations on economic and
social questions), and the Trusteeship Council (defunct). • Key obligations: member states must
give up the use of force except for selfdefense, must carry out Security Council decisions, and
can conclude no treaty that contradicts the Charter. Enforcement: the Security Council can take
any action it deems necessary, including the use of force, to respond to threats to international
peace and security. Key legal clauses of the UN Charter: Article 2(1) "The Organization is based
on the sovereign equality of all its Members." Article 2(4) "All Members shall refrain in their
international relations from the threat or use Or force Article 2(7) "Nothing ... in the present
Charter shall authorize United Nations to intervene in matters which are essentially in the
domestic jurisdiction of any state ..." Article 4(2) "Membership in the United Nations is open to
all . peace-loving states." • Article 10 "The General Assembly may discuss any questions ...
within the scope of the present Charter ... and] make recommendations to the Members of the
United Nations or to the Security Council Article 24(1) "... the United Nations ... confer on the
Security Council primary responsibility for the maintenance of international peace and security."
Article 25 "The Members of the United Nations agree to accept and carry out the decisions of the
Security Council." Article 42 "[The Security Council] may take such action by air, sea, or land
forces as may be necessary to maintain or restore international peace and security." • Article 51
"Nothing in the present Charter shall impair the inherent right of individual or collective self-
defense if an armed attack occurs against a Member of the United Nations." • Article 103 "in the
event of a conflict between the obligations or the Members of the United Nations under the
present Charter and their obligations under any other international agreements, their obligations
under the present Charter shall prevail." • The United Nations Charter defines the UN formal
institution of limited powers as well as a generalized system of constitutional principles to
govern all powers of inter-state politics. The formal parts of the UN, such as the General
Assembly d the Security Council, are required to operate within these principles, but the
principles themselves are refined and brought to life through the daily practices and actions of
the states and others who make use of them. The two are to be understood together. • When, for
instance, the Charter says that the Security Council has "primary responsibility for the
maintenance of international peace and security" 'Art. 24(1)), the only way to know what is
meant by the key terms “primary" and "international peace and security" is to look at how the
Council and others have used these terms through the years in debates, justifications. and
argument. • UN therefore has to be understood with one eye on the language of the UN charter
and the other eye on the application of that language in real scenarios. • As a formal
organization, the United Nations is a system of many constituent sub-organizations of varying
degrees of independence and authority. The Charter describes the six principal organs of the
United Nations that make up the central core of the system • They are the General Assembly, the
Security Council, the Trusteeship Council, the International Court of Justice, the Economic and
Social Council, and the Secetariat. Each has a distinct sphere of operation and a set of powers
delimited by the Charter, and each has the power to act as an independent and primary player in
world politics. • Beyond these six lies a vast universe of "specialized" agencies (WHO, ILO,
UNESCO, FAO) and "related" organizations and funds; these include many of the largest stand-
alone organizations (such as the WTO ) that agree to report their activities to the United Nations
but are not formally subordinate to it in any way. • It also includes subsidiary bodies of the UN
itself, such as the UN Population Fund and the UN Development Program. 6 PRINCIPAL
ORGANS • The Security Council (SC) is responsible for responding to threats to international
peace and security and has the authority to force states to change their policies through military
enforcement if necessary. • The General Assembly (GA) has a broader conceptual scope than the
SC in that it can discuss any matter within the jurisdiction of the UN, including and beyond
"international peace and security," but its authority extends only to making recommendations to
states and to other parts of the UN rather than making "decisions" • The Secretariat is the
bureaucratic staff of the headed by the Secretary General The staff is drawn from member states
but they are formal employees of the international organization and so owe their loyalty to the
UN rather gran to their home governments. • The Trusteeship Council (TC) is responsible for
supervising any people and territories that have been placed under “trusteeship" with the UN,
and is now moribund as there are no more such territories. The TC is interesting today mainly as
evidence of how hard it is to amend the text of the Charter to remove outdated provisions, though
some have suggested that the Trusteeship Council could be cleansed of its colonialist overtones
and become a device for dealing with the administration of "failed states."' • The International
Court of Justice (ICJ) is a judicial body where sites bring complaints that other states have failed
to live up to their obligations under international law. • Finally, the Economic and Social Council
(ECOSOC) contains a subset of GA members and has the power to undertake studies and make
recommendations on a range of non-security topics. • The charter spells Out the general
obligations of UN members and the general powers and limits of the UN as an organization.
These define the general parameters within which the UN exists and within which inter-state
relations are supposed to take place. • The organs of the UN take their place within this
framework and are governed by it. This makes the Charter the fundamental international treaty.
Its status is explicitly affirmed in Articles 102 and 103, Which require that every other inter-state
treaty is subordinate to the UN Charter. • Article103 says that "in the event of a conflict between
the ... present Charter and [states') obligations under any other international agreement, their
obligations under the present Charter shall prevail" • And Article 102(2) says that states cannot
invoke their obligations under any other treaty if that treaty has not been registered with the UN
Secretariat in advance. In other words, no treaty that contradicts the UN Charter or that is not put
on deposit with the Secretary-General is considered legally binding. • The singular importance of
the UN Charter is evident in the way the document was physically handled in 1945: at the end of
the San Francisco conference, the copy of the Charter that had been signed by the founding states
was flown to Washington DC by an American official, Alger Hiss. • The box containing the
Charter was equipped with a parachute, but none was provided for Hiss. • Article 2 of the
Charter contains several clauses crucial to modern international politics. Article 2(4), in
particular, stands ahead of almost anything else in the Charter. It says that "all members shall
refrain in their international relations from the threat or use of force against ... any state In the
eyes of the framers of the Charter at San Francisco in 1945, this was perhaps the single most
important component of the new international system they were despising. It means that all UN
members (which today includes all 193 of the world's states) are forbidden from using or
threatening war against other states. • Articles 2(1) and 2(7) have a kind of constitutional status
because of the breadth and severity of the limits they place on the organization. These clauses
say that "the Organization is based on the principle of the sovereign equality of all its Members"
(Art. 2(1)) and that the UN cannot "intervene in matters which are essentially within the
domestic jurisdiction of any state" (Art. 2(7)). • These rules address themselves to the United
Nations as an institution rather than to its member states, and they therefore define fundamental
rules for the operation of all UN business transactions. To understand the impact of these two
clauses, it is worth looking at the Article 2 further which basically means that UN “shall” act on
the principles of equality of states. Everything it must do reflects this position.