PUBLIC INTERNATIONAL LAW

Ms. Ayesha Rao

B.A.LL.B.,LL.M.,(Ph.D.)
PRESCRIBED BOOKS :

 H.O. AGARWAL – Concise Book on International Law and

Human Rights
 S.K. KAPOOR – Human Rights and International Law
 OPPENHEIM - International law , Human Rights
 Starke’s Public International Law – S H SHEARER
 Malcolm N Shaw – International Law
 INTERNATIONAL LAW
 UNIT-I Nature, definition, origin and basis of International Law;
Sources of International Law; Relationship between Municipal and
International Law; Subjects of International Law.
 UNIT- II States as subjects of International Law: States in general;
Recognition; State territorial sovereignty.
 UNIT –III State Jurisdiction: Law of the sea; State Responsibility;
Succession to rights and Obligations.
 UNIT – IV State and Individual - Extradition, Asylum and
Nationality; the agents of international business; diplomatic envoys,
consuls and other representatives; the law and practice as to treaties.
 UNIT –VThe United Nations Organization - Principal organs and
their functions; World Trade Organization- Main features;
International Labour Organization.
 UNIT 1 – Nature , origin and development,
sources, relationship of international with Municiple
law, subjects
ORIGIN AND DEVELOPMENT OF
INTERNATIONAL LAW
DEFINITIONS – OPPENHEIM,
J.L.BRIERLY, LOTUS CASE
 Traditional and Modern
 TRADITIONAL
 Regulates relations – states – ONLY subject
OPPENHEIM’S definition
 “Law of Nations or International Law is “the name for the body of
customary and treaty rules which are considered legally binding by
civilized states in their inter Course with each other”
Criticism ?
 Subjects ? INO
 Individuals and other private persons
 Customary, conventions + general principles
 J.L.Brierly –
 The law of nations of international law must be defined as the body of
rules and principles of actions which are binding upon civilized states
in their relations with one another.
 Lotus case –
 INLaw governs relations between independent state.The rules of law
binding upon states.Therefore come from their own freewill as expressed
in conventions or by usages generally accepted as expressing principles of
law and established in order to regulate the relation between there co-
existing independent states or with a view to achievement of common
aims.
MODERN DEFINITION – J.G.STARKE
 International law – regulates relations
 States, INO, Individuals, non- state entities

Development in definitions
 Permanent international institution/ organization
 Protection – human rights and fundamental freedoms
 Creation of new rules – punishment of persons –
international crime.
NATURE OF INTERNATIONAL LAW /
THEORIES OF BASIS OF IN LAW
Q. Whether international law is really a law?

 1. International law is not a true law

John Austin, Hobbes, Holland, Pufendorf and
Bentham

 2. International law is a true law

Luis Henkin, Sir Henry Maine
 JOHN AUSTIN
 Law is the Command of sovereign
 International law -??
 Code of rules
 What is law ?? – determinate sovereign legislative authority

 Ethical rules / moral rules

 POSITIVE INTERNATIONAL MORALITY
 LUIS HENKIN
 TRUE LAW

 International law – principles, obligations

 Objectives and implementation
 SIR HENRY MAINE
 TRUE LAW

 Primitive societies – no sovereign authority

 International law

 Sanctions ?
 NATURAL LAW THEORY
 Binding force of International law  ideal law founded on the
nature of man, the body of rules which nature dictates to human
reasons is law

Human LAW
Reasons Body of rules
LAW OF NATURE

STATE

INTERNATIONAL LAW
THEORY OF POSITIVISM
 INL – WILL of the State
 Consent – Binding agent if International law
 Reduced to set of principles as per the desire of the state.
 External Public International Law
 PACTA SUNT SERVANDA
Anzilotti

The agreements between states are to be respected

Binding force of International law
 SOURCES OF
INTERNATIONAL LAW
APPROACH
 Lawrence and Oppenheim
 There is only one source of international law and that is the
consent of nation
 Brierly
 Customs and Reasons
 Statute of International Court of Justice – Article 38
1. International conventions/ treaties
2. International customs
3. General principles of law
4. Judicial decisions and writings of
the publication
1. Reasons and Equity
UNITED NATIONS CHARTER
STATUTE OF ICJ

LEAGUE OF UNITED
NATIONS NATIONS
ORGANIZATION
• PERMANEN • INTERNATIONA
T COURT L COURT OF
OF JUSTICE JUSTICE
 INTERNATIONAL CONVENTIONS/
TREATIES
 Contracting parties  treaty  establish INO
 Multilateral treaty
 Bilateral treaty

 Treaties :
1. Law making treaty
2. Treaty Contracts
1. Law making treaty
 A. Treaty giving the rule of Universal International
 B. Treaty giving general principles

 Persona non-grata

2. Treaty Contract
 Enacted by 2 or more states
 Paris treaty, NAFTA
 Extradition – Indian Extradition Act 1986
Treaty Contracts :-
 Rule of Double Criminality
 Rule of Specialty

 SS Wimbledon 1923
 Paquete Habana Case

EXTRADITION TREATY
CONTRACTS
PAQUETE HABANA CASE
2. INTERNATIONAL CUSTOMS
 Usage  Custom  Convention

 Qualified practice -> Legal obligation

Ingredients :
 Longer duration
 Uniformity and Consistence
 Generality in practice
 Opinio juris et necessitatis
 Justice Grey – ‘ a judge by their years of labour, experience as
well as knwoledge, have contributed much towards
International Law’
 ANGLO-NORWEGIAN FISHERIES CASE
 16th century - 1616-18 to 1906
 Trawlers
 1906
 1908
 1911
 1922, 1924, 1932
 West Rand Central
Gold Mining Co. v. R

 Company – South African

Republic
 S. Africa * England
 England – won

 Private agreements
3. GENERAL PRINCIPLES OF LAW
RECOGNIZED BY CIVILIZED NATIONS
 Moral principles
 State practice

 Statute of International Court of Justice - general

principles of law + IN Conventions + Customs

 Applied ? – absence of IN Convention/Treaty , IN

Customs
 Case laws :-
 Administrative Tribunal case – Res Judicata
 Eastern Greenland case - Estoppels
 Mavromattes Palestine Concessions case -
Subrogation
 Temple of Preah Vihear case - Estoppels
 Corfu Channel Case – Albania – England
every state is obliged not to knowingly allow its territory to be used to commit acts
against the rights of any other state.
 PACTA SUNT SERVANDA
 Article 26 – Vienna Convention
 Article 2(2) – UN Charter
 All members in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations
assumed by them in accordance with present charter

 Nuclear Tests Case

 International Court of Justice
 GENERAL PRINCIPLES -
1. In the absence of any express provision to the contrary, every
court has right to determinate the limits of its own
justification
2. Party to the dispute cannot himself be an arbitrator or judge
3. Res Judicata
4. In any judicial proceedings, the court shall give proper and
equal opportunities of hearing to both parties
 4. Judicial Decisions and Juristic
Writings
 State Judicial Decisions
 Juristic works
 Arbitral awards

 ICJ, PCIJ, IAT, NSC

 Precedents
 Article 38 and 59 of Statute of ICJ
The decisions of the court has no binding force except between the
parties and in respect of that particular case
 PERSUASIVE VALUE
 The Fisheries Case
 The Reparations Case
 Palmas Island Case
 Savarkar’s Case
 Pious Fund Case
 North Atlantic Coast Fisheries' Case
 Franconia Case
 Scotia Case
 Paqueta Habana Case
 JURISTIC WRITINGS :
 Publicists of the various nations
 16th and 17th Century – pre eminent
 Present – uncertainty
 Hugo Grotius, Zouche, Pudendorf, Oppenheim, IN Law Commission.
 Not independent sources – but paves way for formation of INLaw

JURISTIC PERSUASIVE IN
JUDGES NATURE
WRITINGS
 KUTCH AWARD
 Arbitration Award – 1968
 Rann of Kutch – border of Gujarat and West Pakistan
 3000 sq. miles.

 Arbitrator 1 -Yugoslavia
 Arbitrator 2 - Iran
 Arbitrator 3 - ??

 Arbitral Court – 19th Feb 1968

 320 sq. miles.
5. Equity and Good Conscience
Ex aequo et bono
 Final source of International law
 Fundamentals of judiciary – solve disputes on one hand and
not plead its helplessness on another
 Diversion of water from the river Meuse case
 He who seeks equity must do equity.
 Rann of Kutch Arbitration
 Continental shelf case
 Barcelona traction case
ADDITIONAL SOURCE
Decision or Determination of
organs of International
Institutions

 Modern times
 Subjects of international law
RELATIONSHIP BETWEEN MUNICIPAL
LAW AND INTERNATIONAL LAW
Basis :
 1. Whether both the laws are part of a Universal legal order
or are two different systems ?
 2. The conflict between them in Municipal Courts

Theories :
1. Monist Theory
2. Dualist Theory
 MONISM / MONIST THEORY
German Scholars

Moser and Martins

“Monism is the best theory where it makes no difference
between INL and ML”

Australian Jurist – Kelson

“All laws are made for men, because man by nature nasty,
brutish and violent”

Universal legal system

Human Community
Indistinguishable
Domestic legal order
 INL ML

BINDING

INDIVIDUALS

MUNICIPAL
COURTS
 DUALIST THEORY
 Separate and distinct
 Antipode
Triepel – 1899 – German Scholar
 INL and ML existed on separate planes
Anziloti, Starke :-
 “Theory represents 2 entirely distinct legal
systems”
Grounds :
1. Sources
2. Subjects
3. Substance of law
4. Principles
5. Dynamism of the subject matter
Source

Subject

Substance
Of
law

Principle

Dynamism
Of the
Subject matter
PRACTICE OF STATE
1. Great Britain
2. United States of America
3. European and Latin America States
4. India

 International Customary Law

 Treaties
1. Great Britain
 A. International Customs
 Doctrines :
1. Incorporation
2. Transformation

 Blackstone –
 Customary International Law is part of the law of the land
 Buvot v. Barbuit and Triquet v. Bath
 The law of nations in its full extent was part of the law of England
A. International Customs

 Incorporation :
1. Should not be against law
2. Final authority

 Leading Cases :
 Westrand Central Gold Mining Case – 1905
 Reaffirmed –Incorporation
 R V. KEYN 1876
 Doctrine of Transformation
 British vessel and German ship
BRITISH
FRANCONIA VESSEL
 Court – British
 Jurisdiction??
 House of Lords – Municipal
Law
 Where was the law ?? – No
jurisdiction !
CUSTOMARY INL Constitutional
 Neutralized – Territorial machinery
Jurisdiction Act 1878
 Chung Chi Cheung v. King
 Privy council
 Chinese Vessel –
Hongkong territorial waters
– cabin boy

 Trendtex Trading Corp v. Central Bank of Nigeria

 2 schools
 Incorporation

 MaclaineWatson v. Department of Trade and Industry

A. TREATIES
Application
1.Conditional
2.Direct
 2. United States of America
 Similar – GB
 CUSTOMARY INTERNATIONAL LAW :-
Pacquette Habana Case
 INL is a part of our law and must be ascertained and
administered by the courts f Justice of appropriate
jurisdiction as often as questions of rights depending upon it
are duly presented for their administration
Macleod v. US
 The statute should be construed in the light of the purpose of
the government to act within the limitations of the principles
of International law, the observance of which is so essential to
the peace and harmony of nations
TREATIES -
 Different from Great Britain
 Article VI, Clause 2 f US Constitution
 ‘… all treaties made, or which shall be made under the
Authority of the United States, shall be the supreme law of
the land’.
 Treaty  President  Law of the land
 Treaties , Executive agreements
U.S. v. Pink
 “ A treaty is a law of the land”
 American Courts – do not regard- strictly law of the land –
Self executing and Non- self executing
United States v. Palestine Liberation
Organization
3. European and Latin American States
European States
 Incorporation – judicial practices – constitutional
provisions
Latin American States
 Constitutions – separate provision
 INL part of the law
 Resulotion No. XIII – essential principles of INL
4. Indian Practice
 Article 51
 The State shall endeavor to —
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and
(d) encourage settlement of international disputes by arbitration.

 Application on courts ???

 Article 51 - PLEDGE
 Customary International Law
 Incorporation
 Shri Krishna Sharma v. State of West Bengal
 Internal law – Domestic law
 ADM Jabalpur v. Shukla
 Justice HR Khanna – conflict
 Gramophone Company of India Ltd. V. Birendra
Bahadur Pandey
 Incorporation
Treaties
 Article 253 – legislative power of Parliament
 Birma v. State of Rajashthan
 Express implementation
 Shiv Kumar Sharma and others v. UOI
 Enforceability – force of law, consequent obligations
 Motilal v. UP government
 Maganbhai v. UOI
 Nirmal v. UOI
 Jolly George Verghese v. Bank of Cochin
 Article 253
Civil Rights Vigilance Committee Bangalore
v. UOI

 Boycott and Cook

 Cricket players
 Gleneagles accord + UN Obligations
 Should be allowed ????
 Human rights violations
 Vishaka v. State of Rajashthan
 Supreme Court
 - absence of domestic law ?
 - Inconsistency ?
SUBJECTS OF INTERNATIONAL LAW
INTERNATIONAL PERSONALITY
 Who is regulated by INL?
 Who can create INL?
 Powers, rights and duties?

 International person
 Reparations for injuries case –
 An entity may be deemed to posses international personality if its is
capable of possessing international rights, duties and having the
capacity to maintain its rights by bringing international claims
INTERNATIONAL PERSONALITY
Dixon
 Body / entity – recognized / accepted  capable to possess
and exercise
Starke
 Rights and duties
 Procedural privileges
 Processor of interests
Oppenheim
 International person – legal personality
 Act through state
 REALIST THEORY
 States
 Traditional concept
 Bearer of rights and obligations
 Legally distinguishable
 SUBJECTS , OBJECTS
 Prof. Oppenheim – the law of nations is primary a law of N
conduct of states and not of their citizens
Criticism :-
 Modern opinion – certain rights and duties
 Reparations for injuries suffered in the services of UN Case
 UN has the capacity to bring an international claim against the state
for obtaining reparation when an agent of UN suffers injury.
 FICTIONAL THEORY
 Opposite – realist
 INDIVIDUALS
 State – no capacity – autonomous will
 Abstract structures
 Prof. Kelson – ultimate application – individuals
 Municipal law ( direct) , International law ( indirect)
 STATE – Fictional
Criticism :
 Enforcement ??
 Palestine Concession Case – 1934
 Elementary principle of INL that a state is entitled to protect its
subjects
 FUNCTIONAL THEORY
 INL – dynamic in nature – substantial changes – new
participants
INO 
 Rights and duties , different from states
 Legal functions – personality
 WHO – Egypt Agreement (advisory opinion – ICJ)
 INO are subjects of INL, as such are bound by any
obligations incumbent upon them under general rules of INL,
under their constitution or under international
agreements to which they are parties
 FUNCTIONAL THEORY
Individuals 
PRIMARY
 Punishment, Right to Claim
STATE
 Rights and duties , IN Personality
 UNLIMITED PERSONALITY – full capacity, primary totality of
rights
 RESTRICTED PERSONALITY – partial , secondary
 FUNCTIONAL THEORY – capable of performing functions
 OPPENHEIM SECONDARY
 1st 3 editions INO
INDIVIDUALS
th
 9 edition
 States , individuals, INO, Non- state entities, Special Case entities,
Minorities and indigenous people