Theories of International Law

Public vs. Private International Law

Private international law or conflict of law means a collection of standards and rules applied to
private parties concerning transboundary (different countries) cases with at least one specific
legal foreign dimension in it. People from different parts of the world are often interacting with each
other forming legal relations.
For example, an American man and an Indian woman were married in India and now live in Los
Angeles. In case they ever want a divorce, the rules of private international law will determine
where they will be required to go, either to the US or to an Indian court to get divorced.

Public international law refers to rules and regulations governing international relations between
different states and international institutions. It sets rules concerning all mankind: the environment,
international business, the ocean, human rights, etc.
Public international laws apply to international organizations like the United Nation (UN) and the
World Trade Organization (WTO).
Aspects of Public International Law:
 Custom – consistent state practices relying on opinio Juris, that is, belief, that is to be
carried out there is a legal obligation to do so.
 Standard behaviour globally accepted, jus cogens.
 Legal Codes referred to as treaties.
For example, the Kyoto Protocol, a climate agreement, has many countries as signatories for
reduction of their greenhouse gases emissions in order to protect the environment.
We can take Convention on the Rights of the Child, a convention, ensuring the protection of child
rights in the signatory countries.

Is International law a true law?

One view considers International law not a true law, rather, a code of rule of conduct backed by
morality. On the other hand, International law is considered to be a true law and is regarded as a
law, similar to that of ordinary laws of a state, binding upon the citizens.
Austin’s View – International law is not a true law
 Law is the command of the sovereign punished by sanctions in case the command is
violated by the individual.
 There must be a legislative authority enacting the rule of conduct and enforcing
physical sanction.
 Rules are only morally and ethically valid if they aren’t issued by any sovereign authority.
If we apply this theory to International law, we will see there is no legislative power over
the society, based on which Austin concluded that International laws are merely based
on ethics and morality and are not true law.
 Oppenheim’s View – International law
 Laws are nothing but a body of rules for human conduct within a community, which
can be enforced by an external power if there’s a common consent of the
community for the same.
 Community (CBC)
 body of rule of conduct governing the community
 common consent among the community for the rules to be enforced
 not necessary that rules should be enacted by a legislative authority within the
community for them to be legally binding.
Functions of International Law
The main role of international law is to promote global peace and prosperity. Ideally, international
law and its accompanying institutions act as a balm to smooth over opposing interests that nations
may have.
Situations to which International Law is relevant
Co-operation- states are naturally interdependent in many ways and international law facilitates co-
operation. When States have common interest in area, where actions on an international scale is
most effective, they co-operate.
Co-existence – states co-exist with one another and a means of doing this is to define their
relationship by making treaties and other consensual agreements.
Conflict – two main functions: prescribing technical rules of conduct and keeping of any conflict to a
minimum
SOURCES OF INTERNATIONAL LAW (TIGJT)
 Treaties
 International custom
 General principles of international law
 Judicial decisions
 The writings of publicists.
The Law of Treaties
 A treaty can be defined as an agreement (usually written) between two or more
 States (or a State/group of States and an IGO, or two IGOs), governed by international law
and intended to create legal obligations.
 Treaty contracts resemble contracts in that they are concluded to perform contractual rather
than normative functions
 Article 38(1) of the International Court of Justice’s statute identifies treaties as a source of
law, along with general principles and customs.
 They ensure friendly and peaceful relations of states with one another and are a means by
which international organizations take form, regulate and monitor their affairs.
 used to be oral and a ceremony would be held where the parties would conclude it and
swear an oath to God, which used to act as the binding force of the treaty. Now, treaties
must be written and are legally binding between its parties.
 Drafted by the International Law Commission of the UN and taking force on 27 January
1980, the Vienna Convention on the Law of Treaties set out some fundamental rules as to how
 treaties are to operate and take form. More than half of the member states of the UN are a
party to the Convention.
Main features of the 1969 Vienna Convention on the Law of Treaties
 The VCLT is the fruit of 20 years of work of the ILC, which, at its first session held in 1949,
selected the law of treaties as a topic for codification (see Chapter 2.13). The VLCT was
adopted on 22 May 1969 and entered into force on 27 January 1980, after achieving the
required 35 ratifications.
 Article 1 VCLT states that the VCLT applies to treaties between States.
 VCLT does not apply to the international agreements listed in Article 3 VCLT, i.e. agreements
concluded between subjects of international law other than States; agreements between
States and non-State actors; and treaties entered into by States which are not in writing
Excluded from the scope of application of the VCLT: (SRE)
 State succession in respect of treaties. Limited because it contains provisions which
favour former dependent territories, i.e. States which became independent as a result
of decolonization.
 The responsibility of a State for breach of a treaty.
 The effect of armed conflicts on a treaty
 The content of the VCLT is the codification of customary law on treaties and its
progressive development as evidenced by Articles 9(2), 19–23, 40–41 and Part V.4
 Article 4 VCLT provides that the VCLT only applies to treaties concluded by a State after
the entry into force of the VCLT for that State.
 The treaty will not apply to acts or facts which are completed or to situations which have
ceased to exist before the treaty comes into force for the State concerned
 Obviously, a State may always decide to accord the VCLT or to some of its provisions
retrospective effect. Without prejudice to the application of any rules in the VCLT to which
treaties would be subject under international law independently of those contained in the VCLT
The VCLT and customary law
 The VCLT confirms in Articles 39(a) and 4 and the eighth paragraph of the preamble that
customary law will apply to issues not regulated by its provisions.
 It is submitted that the VCLT mirrors, to a great extent, the rules of customary international
law and certainly any court or tribunal will consider a rule contained in the VCLT as a
starting point when determining whether a disputed rule reflects customary law or whether
State practice indicates that the rule should be supplemented or replaced in any given case.
 It is also submitted that Article 66 VCLT and the provisions of the VCLT relating to
reservations and their effects on treaties are not part of customary law.
 There will be no need for any reform of the VCLT as its built-in safeguards ensure the
necessary flexibility to take account of evolving State practice
Fundamental principles of the Law of Treaties (FGP)
 The fundamental principles of the law of treaties are identified in the third paragraph of the
preamble to the VCLT as being the principles of free consent, good faith and pacta sunt
servanda.
 Principles of free consent
 cannot be bound by a treaty to which it has not consented.
  Exceptions:
Recognised exceptions - It is accepted that a treaty provision may become binding on non-parties if
it becomes a part of international customary law.
Good faith
 foundation of the international legal order
 The principle of good faith applies throughout the life of a treaty, from its negotiation,
through its performance (Article 26 VCLT) to its termination. Treaties must be interpreted in
good faith (Article 31(1) VCLT) not only by contracting parties but also by third parties, e.g.
arbitrators, international courts and domestic courts.
Pacta sunt servanda
 embodied in Article 26 VCLT which states that: ‘Every treaty in force is binding upon the
parties to it and must be performed by them in good faith’. Close connection between the
principle of good faith and the principle of pacta sunt servanda.
 applies only to treaties which are in force, not to invalid, suspended or terminated treaties.
Requisites or Elements for a Valid Treaty (WSGC)
 it must be a written instrument or instruments between two or more parties;
 the parties must be States within the meaning of international law;
 it must be governed by international law; and
 it must be intended to create legal obligations.
Treaties and Executive Agreements
Treaties are formal documents which require ratification with the approval of two-thirds of the
Senate. Executive agreements become binding through executive action without the need of a
vote by the Senate or by Congress
Conclusion of Treaties
Reservation of Treaties
Entry into Force, Deposit, Registration, and Publication of Treaties
Validity of Treaties
Application of Treaties
Amendment and Modification of Treaties
Interpretation of Treaties
Termination and Suspension of Treaties
Settlement of Disputes