Name:- Preet Patel

Enrolment No:- 20180401062

Que 1:- “The existence of international law as a viable body of law consisting of rules and
norms governing relations between States, among other things, has given rise to a constant
controversy about the juridical nature of international law among the jurists”. This led to
the development of numerous theories to justify international law as a ‘True Law’ and not a
weak law. Discuss the question “whether international law is a true law?” with specific
reference to the Naturalists and the Positivists approaches to strengthen your arguments.
Ans 1:- 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 lays on absence of legislative power, law
enforcement capacity and single judicial system among the ‘other’ reasons. The law enforcement
capacity of the Security Council itself is very limited politically and legally. It is not a law in a
perfect sense for different reasons. They consider international law as moral rules with no
binding force due to the absence of coercive acts of states, non-interferences in the domestic
affairs of other states and the absence of judicial system. Those who accept international law as a
law consider the state practice, customary international law, general principles, international
legal practitioners, international judicial tribunals and international conventional agreements as
exemplary role. For instance, Oppenheim, Jeremy Bentham, political philosopher of England
was the first person who introduced and used the term ‘international law’ in 1789. He considered
international law as a law. The nature of international law must not be assimilated with domestic
law of states but studied separately in the context of the international community. It mainly
regulates the relationship between states, international organizations and individuals with their
international capacity. According to them, there are multiple roles of international law, especially
in human right, humanitarian role, in bilateral and multilateral role between states, protect
vulnerable groups, set procedures on how to bring wrongdoer to justice, ameliorate harm and
facilitate socioeconomic and political relationship between international communities. The
subjects of international law are legally and morally obligated to obey international law. It could
be easy to write down various rules of international law, but it cannot be easily functioned easily
and effectively against the world community as desired. The world system is built up of
heterogeneous system. There are various political interests, economic power, ideological
orientation, territorial size, population size and structure, religious and social structure. Such
diversity may affect the application, interpretation and enforcement of international law.
Traditionally, or according to the positivist doctrine of 19 th and early 20th century, states were
assumed the only subject of international law, and states were the only sovereign entity, but
today other entities, individuals and the international organizations can be subject to international
law and capable of possessing international rights and duties. For instance, belligerents,
insurgents and the Holy See can be recognized as subjects of international law.

The theories that were developed to determine the view of, weather international law is a law or
not are:-

 Natural Law Theory

 Positivist Law Theory

 Natural Law Theory: ‘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. The naturalist says, it is the law of nature which regulates the
relationship between humans, states and the validity of man-made law is tested based on the
natural law. The natural law as the school of thought had emerged from the Roman
philosophical tradition of law and the Roman Catholic Church. It was inspected under the
legacy of ancient Stoic and Rome legal traditions, but it was developed under the umbrella of
the catholic church. The natural law theorists argue international law is a moral rules with no
binding force. However, there is no state machinery, command of sovereign and universal in
nature, it has no place and time specific. The naturalists believe that international law is
identified with nature and a rule of natural law and it is the only source of law. The Stoic
philosopher Cicero stated the natural law as ‘spread through the whole human community,
unchanging and eternal’. The German scholar Samuel Pufendorf (1632 – 1964) had his work
 De Jure Naturae et Gentium (1672) espoused the view as natural law was the source/bases of
international law. The problem with this theory is that, it doesn’t accept the law developed by
custom or made by either state or individual to govern the relationship between them.
According to natural law theory, natural law is the supreme law and, any law against it
becomes void.

 Positivist Law Theory: In the early 20th century positivism grew and naturalist law shrunk.

– Contributions from Jeremy Bentham, 1800s and the principles of moral and legislation. His
work ushers in end to natural law. He defined international law as concerned transactions
between sovereigns and divided international law into two categories: public and private, the
former referring to states and the latter to individuals.

We can describe positivism in general as: paradigm holds international law based on state
consent. This would be created in contractual like fashion between states. For many years a
related idea was popular: that only states are subjects of international law. After WWII,
individuals were decided to have rights and obligations under international law (e.g. Nuremberg
trials, crimes against humanity, genocide, etc.).

There are 3 key assumptions of positivism as explanation for law’s legitimacy: positive
declaration i.e. law must be expressed; IL is created by sovereign states which are the subject of
international law; it holds that law is effective even if it is unjust when measured against some
moral standard ie there is no necessary conformity of international law to morality.
Some additional thoughts to consider:

-jus cogens. A peremptory norm. Is a fundamental principle of international law which is

accepted by the international community of states as a norm from which no derogation is ever
permitted.
-how can jus cogens exist in the context of positivism. States are bound by jus cogens norms, but
positivism suggests laws can only exist pursuant to some sort of authoritative body. There is an
apparent disconnect.
– Establishment of UN a new era of multilateral law making began.

Natural law would understand international law as the source being a validity that comes from a
system of norms such as reason or morality. A natural law understanding would say that a law
cannot be created by states that contravenes jus cogens norms.

A positivist approach would say that its state consent that creates international law. Law does not
have to be consistent with morality or a higher state of reason.

Que 2:- In the long run march of mankind from “cave to computer” a central role has
always been played by the idea of law, the idea that order is necessary and chaos inimical to
a just and stable existence. Every society, whether being large or small, powerful or weak,
has created for itself a framework of principles within which to evolve. What can be done,
what cannot be done, what shall be done, have all been spelt out within the consciousness of
that community. Progress, with its inexplicable leaps and bounds, has always been based
upon the group as men and women combine to pursue commonly accepted goals, whether
of hunting animals, growing food or even making money. In such a framework, law is that
element which binds the members of the community together in their adherence to
recognised values and standards. It consists of a series of rules regulating behaviour and
reflecting, to some extent, the ideas and pre-occupations of the society within which it
functions. In that context, the law of nations existed primarily to protect and preserve
nation states as opposed to individual citizens. However, in the post-World War II scenario
the law changed the society and the society changed the law encompassing individuals as
part of international law.
- Based on the above statement, explain the historical instances that contributed to the
development of public international law.
- Examine the possibility of evolution from cave to computer without compromising the
principles of jus cogens and obligatio erga omnes substantiating the structural development
of public international law?
Ans 2:- International law reflects the establishment and subsequent modification of a world
system founded almost exclusively on the notion that independent sovereign states are the only
relevant actors in the international system. The essential structure of international law was
mapped out during the European Renaissance, though its origins lay deep in history and can be
traced to cooperative agreements between peoples in the ancient Middle East. Among the earliest
of these agreements were a treaty between the rulers of Lagash and Umma (in the area of
Mesopotamia) in approximately 2100 BCE and an agreement between the Egyptian
pharaoh Ramses II and Hattusilis III, the king of the Hittites, concluded in 1258 BCE. A number
of pacts were subsequently negotiated by various Middle Eastern empires. The long and rich
cultural traditions of ancient Israel, the Indian subcontinent, and China were also vital in the
development of international law. In addition, basic notions of governance, of political relations,
and of the interaction of independent units provided by ancient Greek political philosophy and
the relations between the Greek city-states constituted important sources for the evolution of the
international legal system.
Many of the concepts that today underpin the international legal order were established during
the Roman Empire. The jus gentium (Latin: “law of nations”), for example, was invented by the
Romans to govern the status of foreigners and the relations between foreigners and Roman
citizens. In accord with the Greek concept of natural law, which they adopted, the Romans
conceived of the jus gentium as having universal application. In the Middle Ages, the concept of
natural law, infused with religious principles through the writings of the Jewish
philosopher Moses Maimonides (1135–1204) and the theologian St. Thomas Aquinas (1224/25–
1274), became the intellectual foundation of the new discipline of the law of nations, regarded as
that part of natural law that applied to the relations between sovereign states.

After the collapse of the western Roman Empire in the 5th century CE, Europe suffered from
frequent warring for nearly 500 years. Eventually, a group of nation-states emerged, and a
number of supranational sets of rules were developed to govern interstate relations,
including canon law, the law merchant (which governed trade), and various codes of maritime
law e.g., the 12th-century Rolls of Oléron, named for an island off the west coast of France, and
the Laws of Wisby (Visby), the seat of the Hanseatic League until 1361. In the 15th century the
arrival of Greek scholars in Europe from the collapsing Byzantine Empire and the introduction of
the printing press spurred the development of scientific, humanistic, and individualist thought,
while the expansion of ocean navigation by European explorers spread European norms
throughout the world and broadened the intellectual and geographic horizons of western Europe.
The subsequent consolidation of European states with increasing wealth and ambitions, coupled
with the growth in trade, necessitated the establishment of a set of rules to regulate their
relations. In the 16th century the concept of sovereignty provided a basis for the entrenchment of
power in the person of the king and was later transformed into a principle
of collective sovereignty as the divine right of kings gave way constitutionally to parliamentary
or representative forms of government. Sovereignty also acquired an external meaning, referring
to independence within a system of competing nation-states.

Early writers who dealt with questions of governance and relations between nations included the
Italian lawyers Bartolo da Sassoferrato (1313/14–1357), regarded as the founder of the modern
study of private international law, and Baldo degli Ubaldi (1327–1400), a famed teacher, papal
adviser, and authority on Roman and feudal law. The essence of the new approach, however, can
be more directly traced to the philosophers of the Spanish Golden Age of the 16th and 17th
centuries. Both Francisco de Vitoria (1486–1546), who was particularly concerned with the
treatment of the indigenous peoples of South America by the conquering Spanish forces,
and Francisco Suárez (1548–1617) emphasized that international law was founded upon the law
of nature. In 1598 Italian jurist Alberico Gentili (1552–1608), considered the originator of
the secular school of thought in international law, published De jure belli libri tres (1598; Three
Books on the Law of War), which contained a comprehensive discussion of the laws of war and
treaties. Gentili’s work initiated a transformation of the law of nature from a theological concept
to a concept of secular philosophy founded on reason. The Dutch jurist Hugo Grotius (1583–
1645) has influenced the development of the field to an extent unequaled by any other theorist,
though his reputation as the father of international law has perhaps been exaggerated. Grotius
excised theology from international law and organized it into a comprehensive system, especially
in De Jure Belli ac Pacis (1625; On the Law of War and Peace). Grotius emphasized the freedom
of the high seas, a notion that rapidly gained acceptance among the northern European powers
that were embarking upon extensive missions of exploration and colonization around the world.
Jus cogens or peremptory norm means a body of fundamental principles of international law
which binds all states and does not allow any exceptions. It is basically a compilation of norms
that lays down the international obligations which are essential for the protection of the
fundamental interest of the international community and any violation of these norms is thereby
recognized as a crime against the community as a whole.

It is binding upon all the members of the international community in all circumstances. Jus
cogens imply absolute restrictions on genocide, slavery or slave trade, torture or other inhuman
treatment, prolonged arbitrary detention, and racial discrimination. Any activity or treaty carried
out by the states or international organizations that contradict human dignity and rights will
offend the concept of jus cogens and thus, be void. It can be said that jus cogens exist to protect
and uphold human dignity and rights.

Origin of the doctrine

It stemmed from the idea of a binding law which would be in alignment with natural law and
would render contrary customs and treaties invalid. This idea led to the existence of hierarchical
superior norms that would invalidate the treaties and customs. The doctrine of Jus cogens was
initially defined in Article 53 of the Vienna Convention on the law of treaties 1969. It was later
stated as a customary principle but Article 53 of the Vienna Convention, however, contains no
reference to any element of practice.

In international law, the concept of erga omnes obligations refers to specifically determined

obligations that states have towards the international community as a whole. In general legal
theory the concept “erga omnes” (Latin: ‘in relation to everyone’) has origins dating as far back
as Roman law and is used to describe obligations or rights towards all. In municipal law it has
the effect towards all in another, general context.
The concept is very important because in today’s structure of international society, composed of
independent entities giving rise, as a rule, to legal relations on a consensual basis, erga
omnes obligations can further enable the International Court of Justice to go beyond reciprocal
relations among states based on consent in further developing international law on the basis of a
natural law approach. By its very nature this affects the freedom of state consent and the
sovereignty of states.

Que 3:- In 1900, two fishing vessels named the Rithvik and the Devon separately sailed
from the Rudra colony of Mayon-Island. Both the vessels were eventually captured by a
merchant vessel of Chozha, comprising military personnel without the knowledge of the
crew who were blockading the island amid rising tensions between the two countries.
President Karikala proclaimed that the blockade was in pursuance of the laws of the
Chozha and public international law applicable to such cases.

Thereafter, the Rudra-Chozha War was officially declared and the president Karikala
issued another proclamation stating that the war would be conducted in harmony with the
present views of nations and sanctioned by their recent practice and establishing rules for
the prize capture; however, there was no mention of fishing vessels. The Rithvik and the
Devon were ultimately taken to the city of Arshida, in Chozha and referred before the
federal district court of Arshida, which had jurisdiction over prize cases.

Admiral Arulmozhi, who commanded the blockade, justified the seizures by stating that
most fishing vessels flying under the Rudra banner were manned by well-trained seamen
with prior naval experience who could be called upon to fight for Rudra. The Chozha also
relied on the longstanding international practice of capturing enemy vessels as prizes of
war. The Admiral Arulmozhi’s argument accepted by the federal court of Arshida and
delivered the judgment accordingly. But the owners of the vessels appealed to the Chozha
Supreme Court, citing a centuries-long tradition of nations exempting fishing vessels from
prize capture, even during war.

Based on the statement of facts and the decision of the federal court of Arshida, how do you
justify the seizure of fishing vessels? Whether the fishing vessels are exempted from prize
capture? Being a judge of the Supreme Court of Chozha, what would be your opinion
based the merits of the case? As a Student of law, what is your critique upon the decision of
the federal court of Arshida?
Note: Both parties in the case were invoking customary international law.

Ans 3:- The above given case study rely on a case wherein facts of the case are:-

In April 1898, two fishing vessels, the Paquete Habana and the Lola, separately sailed from
the Spanish colony of Cuba. Both were eventually captured by merchant vessels comprising the
United States blockade of the island, which, unbeknownst to the crew, had been instituted amid
rising tensions between the two countries. President William McKinley proclaimed that the
blockade was "in pursuance of the laws of the United States, and the law of nations applicable to
such cases."

Shortly thereafter, the Spanish–American War was officially declared, and McKinley issued

another proclamation stating that the war would be conducted "in harmony with the present
views of nations and sanctioned by their recent practice" and establishing rules for the capture
of prizes; however, there was no mention of fishing vessels. The Paquete Habana and
the Lola were ultimately taken to Key West, Florida, where they were auctioned by the federal
district court, which has jurisdiction over prize cases.

Admiral William T. Sampson, who commanded the blockade, justified the seizures by stating
that most fishing vessels flying under the Spanish banner were manned by well trained seamen
with prior naval experience who could be called up to fight for Spain. The U.S. also relied on the
longstanding international practice of capturing enemy vessels as prizes of war.

The owners of the vessels appealed to the U.S. Supreme Court, citing a centuries-long tradition
of nations exempting fishing vessels from prize capture, even during war. At the time of capture,
neither vessel had evidence of aiding the enemy, no arms were found on board, and no attempts
were made to either run the blockade or resist capture. Pointing to McKinley's proclamation that
the blockade conformed with international law, the claimants thus argued that the blockade
should not have captured the vessels as prizes.

On appeal, the U.S. government argued that it had complied with international law, under which
there was precedence for the executive of a nation, through his military commanders, to exercise
discretion as to whether there was an exemption of fishing vessels from prize capture. Notably,
the government never contested that it must abide by international law.

Both parties in the case were invoking customary international law—the prevailing and long-
running practices and norms that are observed and accepted by most countries as obligations—
but differed as to what it permitted with respect to prizes.

Judgment

In a 6-3 decision authored by Justice Gray, the Supreme Court ruled that coastal fishing vessels
are exempt from capture as prizes of war under customary international law, which, barring a
"controlling executive or judicial decision," must be incorporated into the corpus of U.S. law.

The Court cited lengthy legal precedents in support of this conclusion, which it described as an
"ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a
rule of international law." In 1403, King Henry IV of England decreed his officers leave
fisherman alone during times of war. He then signed a treaty with France reaffirming this act
between both parties. Similarly, in 1521, a treaty between Emperor Charles V of the Holy
Roman Empire and Francis I of France exempted fishing vessels from capture, on the basis that
both nations would face widespread hunger if fishermen did not feel safe to set sail.

Justice Gray also relied on the theories and opinions of contemporary jurists and commentators
from across the world to buttress the Court's reasoning, decades before such scholarly legal work
would be codified as a primary source of international law:

At the present day, by the general consent of the civilized nations of the world, and
independently of any express treaty or other public act, it is an established rule of international
law, founded on considerations of humanity. . . and of the mutual convenience of belligerent
states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed
and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt
from capture as prize of war.

Among the most oft-cited and famous quotes of the decision concerned the relationship of
international law to domestic U.S. law:
International law is part of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the customs and usages of
civilized nations, and, as evidence of these, to the works of jurists and commentators who by
years of labor, research, and experience have made themselves peculiarly well acquainted with
the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but for trustworthy evidence
of what the law really is.

The Supreme Court decision reversed the district court and ordered that the proceeds of the
auctions, as well as any profits made from the vessels' cargo, be restored to the claimants "with
damages and costs."

Being a law student I would critique the decision of the federal court of Arshida, by arguing that
the capture of fishing vessels as prizes was both in accordance with customary international law
and militarily necessarily, and that any exemption is under the discretion of the President as the
nation's executive.