Topic : An Introduction to Public International Law (Assignment 1)

PUBLIC INTERNATIONAL LAW

AN ASSIGNMENT SUBMITTED FOR EVALUATION OF INTERNAL

ASSESSMENT OF SEMESTER – V OF B.A.L.L.B (HONS.) 5 YEAR COURSE

UNDER SUPERVISION OF SUBMITTED TO

DR. KAVITA DHULL DR.JAIDEV

Head & Dean Assisstant Professor

Faculty of Law Faculty of Law

M.D.U. Rohtak M.D.U. Rohtak

SUBMITTED BY

Anjuman Jangra

B.A.L.L.B (Sem. V)

Section – B

Roll No. 406

FACULTY OF LAW

MAHARISHI DAYANAND UNIVERSITY

ROHTAK – 124001

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 Topic : An Introduction to Public International Law (Assignment 1)

DECLARATION

This Assignment on the topic “An Introduction to Public International

Law” is being submitted to the Faculty of Law (M.D.U. Rohtak) for Internal
Assessment of Semester–V of B.A.L.L.B (Hons.) 5 Year Course. The matter
embodied in this assignment is original and has not been copied by any other
student of this University.

Dated : 31 January 2022 ANJUMAN JANGRA

Place : Rohtak B.A.L.L.B. (III Year)

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 Topic : An Introduction to Public International Law (Assignment 1)

MAHARISHI DAYANAND UNIVERSITY, ROHTAK

DR. KAVITA DHULL M.D.U. Campus, Rohtak

Head & Dean Phone No. 01262-266755 ®

Faculty of Law

M.D.U. Rohtak

CERTIFICATE OF APPRECIATION

This is to certify that Anjuman Jangra, a bonafide student of Faculty

of Law (M.D.U. Rohtak) has worked on the topic “Nature and Scope of Public
International Law” under my guidance and supervision. His work is original
and meets the requirements laid down by M.D.U. Rohtak for Internal
Assessment of Semester-V of B.A.L.L.B (Hons.) 5 Year Course.

Supervised By Countersigned By

Dr. (Mrs.) Kavita Dhull Dr. Jaidev

Head & Dean Assistant Professor

Faculty of Law Faculty of Law

M.D.U Rohtak M.D.U Rohtak

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 Topic : An Introduction to Public International Law (Assignment 1)

ACKNOWLEDGEMENT

It gives me immense pleasure and a sense of gratitude to

acknowledge my indebtness to my teacher ans research supervisor Dr.Kavita
Dhull (Head & Dean, Faculty of Law, M.D.U. Rohtak). Valuable guidance and
Sparing of time by Dr. Jaidev (Assistant Professor of Public International Law)
has considerably helped me a lot to complete this research work. His keen
interest and scholarly guidance in research work has inspired me at every
stage of my efforts in the completion of this study.

I am highly thankful to my learned and respected teacher Dr.

Jaidev who afforded me every help to conduct this assignment on the topic of
great significance. His continuous encouragement besides the valuable advice
he rendered during discussion relating to complete issues concerning topic of
assignment has also enabled me to complete this study.

I wish to put on record my sense of gratitude to staff of Law

Library (M.D.U Rohtak) for providing me standard books, articles, periodicals,
journals and other materials needed to complete this study.

I am very thankful to my parents who contributed their day and

night for completion of this assignment. I am also thankful to my wife Smt.
Renu Jangra who helped me in this work.

Above all, I am thankful to God for blessing me strength to

complete this work.

Date : 31 January 2022 Anjuman Jangra

Place : Rohtak B.A.L.L.B (III Year)

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 Topic : An Introduction to Public International Law (Assignment 1)

TABLE OF CONTENTS

Sr. No. Description Page No.

1 Introductory Page 1
2 Declaration 2
3 Certificate of Appreciation 3
4 Acknowledgement 4
5 Introduction 6
6 Definition of International Law 6-7
7 Difference b/w Public and Private International Law 7
8 Nature of International Law 8-12
9 Basis of International Law 12-13
10 Sanctions in International Law 13-17
11 Conclusion 17-18
12 Bibliography 19
13 Remarks 20

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 Topic : An Introduction to Public International Law (Assignment 1)

INTRODUCTION

The term “International Law” and “Law of Nations” are

synonymous terms. Initially, it is known as Law of Nations but in1789, Jurist
Benthem gave it the name ‘International law’. As we know that whenever a
person becomes a member of the organization, he has to follow the rules of an
organization. In the same way, when we talk about the word ‘International’, it
suggests the mutual relations of all the nations. Each country is the member of
the world community. For the smooth functioning of International Law, some
rules are formed which are to be observed by each country while dealing with
the country such as municipal law regulates the behavior of its citizens.
International Law seeks to regulate the behavior of its members. Nations are
the subject of international law. The inter-relations of all the nations are
governed by international law.

................................................................................................................................................

DEFINITIONS OF INTERNATIONAL LAW

The International Law is defined by several jurists. The different
definitions of International Law are as under :
According to Oppen Heim, “The International Law is the body of
such treaty or customary rules which are legally binding upon states in their
international relations.”
According to Starke, “The International Law is the body of rules
which all the nations observe in their international relations.”
This definition is criticized on the ground that international law
is applicable, in some aspects, not only on the state but also to non-state
international organizations.

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 Topic : An Introduction to Public International Law (Assignment 1)

Since some decade, international law has undergone some drastic

changes due to the change in international relations. Now, it can be well said
that international law governs the relations of state inter se as well as non-
state entities such as international organizations, institutions, corporations
etc.
...............................................................................................................................................

PUBLIC INTERNATIONAL LAW & PRIVATE INTERNATIONAL LAW

Public International Law is a law which governs the state. It is a
universal law which governs state activities in the sense of international law
of sovereign states.
Private International Law is a law which governs the private
activities of individuals belonging to different states. The subject matter of
Private International Law is non-sovereign activity. This law avoids the
conflicts between municipal law of all nations.
The points of differences between the two laws are as follows :
(1) Sovereign States are the primary subject-matter of International Law
whereas Private International Law governs the different activities of
individuals between states.
(2) Public International Law is universal and applies to all countries in
the world whereas Private International Law applies to the private
activities of the citizen of the countries which are part to it.
(3) Public International Law evolves through the consent of the state by
means of custom and treaties whereas Private International Law is
enacted by the competent legislature of different states.
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 Topic : An Introduction to Public International Law (Assignment 1)

NATURE OF INTERNATIONAL LAW

The true nature of international law can be better understood by
the following points :
(1) Austin’s view
(2) Oppen Heim’s view
(3) International Law as a true law
(4) International Law as a weak law
(5) International Law as a vanishing point of jurisprudence
Detailed explanation of all these points are as under :
(1) Austin’s View
The jurists of 19th century like Hobbes, Bentham, Austin are of the
view that International Law is not a true law. It has no binding force.
Austin gave the definition of law which reads as under, “Law is the
command of sovereign backed by sanction.” If that law is violated,
the person is either punished or fined. Therefore, the law has
binding force and the subject to whom it applies are under obligation
to obey it. In case of infringement, the are liable to be punished.
Now, it is clear that rules made by any authority other than
sovereign cannot be termed as a law. In Austinian sense, it is backed
by sanction. The existence of these two conditions are is necessary in
order to call a rule as law.
All other senses of law are improper. Law may be by analogy
(rules imposed by general opinion of public). Law may be by
metaphor (Some scientific uniformities such as the law of motion or
gravitation). These cannot be called as law in proper sense. So, in
Austinian sense, International Law is not a law in real sense.
In view of the definition given by Austin, it is crystal clear that

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 Topic : An Introduction to Public International Law (Assignment 1)

international law is not a proper law. It is not enacted by proper

sovereign body. It is the result of the agreement of nations. It has no
sanction. In case of infringement , there is no international body to
punish the state. Austin named it as positive international morality.
By morality, he meant that it is a common consent of community
based on common conscience. Sovereignty has three powers-
Executive, Legislature and Judiciary. It is not enacted by competent
legislature. There is no executivetoenforce it. There is no judicial
mechanism to enforce international law.
The Austin’s view of positive international morality is criticized
on the following grounds :
(i) Command theory of Austin is criticized by jurists
belonging to Sociological and Historical School. They
alleged that Austin took only one view. He ignored
customary laws. Savaigne and Henrymein stated that
prior to the era of enacted laws,communities were ruled
by custom.
(ii) The Austin’s view is also criticized on the ground that
the sanction theory is not only the guarantee of the
obedience of law. In order to achieve the fullobedience
of law, there should be moral degree of respect w.r.t the
sentiments of the society. They supported this view if
sanction is regarded as sole guarantee of obedience of
law then no crime will be repeated and no further
disobedience will take place. So, they they disagreed
with the view of Austin.
(2) Oppen Heim’s view

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 Topic : An Introduction to Public International Law (Assignment 1)

Oppen Heim defines the law as a body of rules for human conduct
within a community which, by common consent of community, shall
be enforced by external common consent.
From the perusal of his definition, it can be concluded that a rule
need not be enacted by any sovereign authority to become a law. He
emphasized on common consent. According to his definition, it is a
law given by municipal law. It is a body of rules having common
consent of all the nations. In the sense of Oppen Heim, it is true law.
(3) International Law : A True Law
Now it may be concluded that world is regarded international
community. According to Oppen Heim’s principle, every community
needs a system of law based on the principle “ubi societia ibi jus”
which means that where there is society there is law. The states,
being the members of international community, do not claim to
above international law.
The argument that International law is openly violated and the
violater is not punished does not appear to be apt and logical. There
are thousands of treaties but we do not have a single instance of
violation.
(4) International Law : A Weak Law
Some jurists are of the view that though, international law has
some features of law. The lack of sanction makes it a weak law. It is a
weak law because of following points :
 The rules of International Law are based upon treaties and
customs. It is not enacted by one authority which is
supreme over the states.
 Besides the common consent of states, there is no executive

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 Topic : An Introduction to Public International Law (Assignment 1)

authority which can execute the international law upon the

states at penal consequences.
 There is no international court in true sense which has
jurisdiction to decide the disputes between the states.
 Enforcement measures which are available under the
system are not effective. In municipal law, it is assumed that
law will be enforced. If a person commits crime, he shall be
given certain punishment. This is not the case with
international law.
 Rules of international law are frequently violated by states
especially during war and claimant of the rights takes law
into his own hands.
(5) International Law : A Vanishing point of Jurisprudence
Holland regards international law as the vanishing point of
jurisprudence because it cannot be kept in the category of law as
there is neither any sovereign authority nor existence of sanction of
it. There is no judge to decide international disputes and the rules of
international law are followed by states by courtesy.
It is submitted that while his view was perhaps correct at his time
but at the present, the same is subject to several criticism and
therefore it is not tenable in the changed character of international
law. It would be wrong to say that there are no sanctions at all in
international law.
It is incorrect to say that International legal system is without a
court to decide international disputes. If a state violates the rule of
international law, it can be enforced by an external power. In
numerous treaties, states have not only accepted it to be binding but

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 Topic : An Introduction to Public International Law (Assignment 1)

also confirm the fact that it is a law between them. Thus, it would be
incorrect to say that International Law is a vanishing point of
jurisprudence.
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BASIS OF INTERNATIONAL LAW
The roots of international law go deep into history and evidence
of treaties, immunities of ambassadors, usages of war etc. can be found in
ancient Egypt, India, the Greek and Roman Empires. The present day
international law owes its origin to great jurists Grotius whose work lent legal
basis to many areas of international relations. His main idea is that there are
certain eternal, changeable, and independent rules of law which have roots in
human reason. This law of reason is called by him as Natural Law.
In the Grotian theory, there are three basis of international law
namely Laws of Reason; Laws of Custom and Laws of Treaties. The following
theories are propounded in this regard :
(1) Naturalist Theory
(2) Positivity Theory
(3) Ecclectic Theory
The detailed description of all the theories are as under :
(1) Naturalist Theory
There exists a system of law which emanates from God or reason
or morals. Law of nations is only a part of nature. According to
scholars such as Grotius, Prufendrof, International Law is based on
this very system. International Peace and Security being necessary
for survival of human kind, all laws relating to it are thus parts of
laws of nature. The theory is criticized on the ground that it is too
vague.

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 Topic : An Introduction to Public International Law (Assignment 1)

(2) Positivity Theory

Only those principles are deemed as law which have been
adopted with the consent of the states. Law is that which exists in
fact. It is that law which is enacted or followed by states and is hence
binding upon states. Customs and Treaties come into existence from
expressed consent of states. This theory is criticized as all rules of
international law are not derived from customs. Furthur, a treaty
may be binding on third states as well.
(3) Ecclectic Theory
The views taken by the naturalists and positivists are extreme
views. A theory giving equal importance to both the views appears to
be correct. As to the true basis of international law, contemporary
sociological theories tend to support naturalism because they argue
that international law is based on social inter-dependence and aims
at bringing about social justice. Thus, natural law underlies even at
positive law which is only an expression of this social inter-
dependence.
…………………………………………………………………………………………………………………
SANCTIONS IN INTERNATIONAL LAW

The term sanction designates a state of fact or a state of law that

limits or notifies the society about a possible limitation of a right, legally, in
accordance with the international law, as a response to a possible violation of
a subject of international law by another entity. The legal sanction is a
creation of the law, namely the positive law, a derived legal institution
and an instrument of creating and reintegrating the legal order, that gives
authority to the precept and restores the rule of law through its application.

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 Topic : An Introduction to Public International Law (Assignment 1)

The notion of sanction involves, besides the consequence of a violation or the

ignoring of law rules also the sanction of law by the sovereign state.
Like other institutions of law, the term sanction includes a broad,
general, sense which includes all the possible legal situations and a narrow
sense to refer to a specific segment of a set of situations. Thus, in a broad
sense, the concept of sanction involves physical or psychological suffering
that someone endures because in his turn, he caused a illegitimate or unfair
loss or suffering. The narrow notion of punishment is a legal measure. There
is a correlation of sanctions from the international law with social sanctions,
because they often occur together due to a common and harmonized system
of values and criteria on which it is based.
With regard to the international law, unlike the domestic law,
there are no authorities responsible to follow the enforcement of the
international law’s norms, in the interest of the international community,
and those ensuring compliance and enforcement of international law’s norms
and the relocation of the international norms are subjects of the public
international law, especially the states, individually or collectively and
international organizations.
In the international law, the term "sanction" is used to refer to
the state's responsibility for committing an internationally illegal act. In
another acceptation, this term refers to the legal means available for the
legal system to ensure the states’ compliance with the prescribed rules, or,
in other words, incorporates all means and it is the last that has as objective
the normative integrity guarantee directly, or indirectly, preventive,
restorative through a centralized action or at different levels.
The role of public international law is to ensure social order and
thus international law, by asserting rules of conduct imperative for all

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 Topic : An Introduction to Public International Law (Assignment 1)

participants in international relations, which may or may not be respected

by them. In case of failure to observe the international law, other rules are
established, also imperative, to sanction these penalties, called by the
doctrine, sanctioning legal rules or legal sanctions. These issues arise also
from the definition of public international law, which are all legal rules
created by the states and other subjects of international law, by agreement
of will, expressed in the treaties and other sources of law, to regulate their
relations, rules of which implementation is ensured through the voluntarily
compliance, and if necessary by coercive measures applied by the countries
individually or collectively, or through international organizations .
Sanctioning or repressive rules appear as a normal response,
legally justified, to the ignoring a jus cogens rule of international law or in
response to a non-compliance to a penalty already imposed by the
international law. It should be noted that from the definition of international
law, a number of features in the formation of rules and sanctions of
international law can be extracted, namely: international law is a coordinator
law, as its rules arise from the agreement of the states, in particular, but also
from other subjects of public international law, according to their interests,
gaining legal force and general or universal character, by reaching a
consensus on the issue, the enforcement of international legal norms, when
they are not met, is done by the same entities that have adopted them by
individual or collective measures, directed against the ones guilty of violating
international norms, based on the provisions contained in the bilateral or
multilateral international agreements or in the international organizations.
There are a number of specific characteristics of the public
international law’s sanctions, classified according to certain criteria. Thus,
we can talk about:

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 Topic : An Introduction to Public International Law (Assignment 1)

- The character of public law sanction ;

- The international character of the sanctions ;
- The inchoate character of rules that establish these sanctions in
relation to those from the national law.
The international sanctions can be classified according to several
criteria, such as:
1. According to the field, the penalties are:
- legal sanctions;
- moral sanctions;
- religious sanctions;
- sanctions within organizations;
- sanctions within ethnic groups or small groups;
The most important in this category are the legal sanctions, that are
important because they can only exist within complex social organizations,
state type, which have a defined territory, their execution is mandatory for
all their addressees and the failure of sanctions attracts specific coercive
measures for each community.
2. According to the sector and area of law, the sanctions can be
domestic sanctions as it follows:
- disciplinary ;
- contravention;
- civil;
- criminal;
- sanctions that can be applied in the field of private or public
international law.
3. According to the purpose:
- sanctions containing punitive and adverse consequences of non-

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 Topic : An Introduction to Public International Law (Assignment 1)

compliance to the compliance norms (negative sanctions) and

- sanctions consisting in measures of incentive and stimulation of the
perpetrator, in order to force him to stop the illegal action (positive
sanctions) - specific to the contemporary public international law.
4. According to the form and nature, there are:
- sanctions involving deprivation of liberty;
- corporal sanctions;
- sanctions relating to heritage;
- moral sanctions;

- sanctions relating to the restriction of the various rights that the

members of a community have, etc.
5. According to the type of the active subject of the sanction (the person
who applies the sanction):
- sanctions applied by individuals with attributions in the field, they can
work in public and private organizations, within the state and trans-
state;
- the sanctions applied by some entities, other than the individual, such
as private national organizations, states, international governmental
and non-governmental institutions, institutions within them, courts
etc.
………………………………………………………………………………………………………………

CONCLUSION

In terms of the topic, we can say that international law is ensured

through the voluntary compliance of the norms of international law and, if
necessary, by force or coercive measures applied directly by the states,
individually or collectively, or through international organizations,

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 Topic : An Introduction to Public International Law (Assignment 1)

regarding the state responsible for the violation of the norms of public
international law. When an international dispute arises as a consequence of
the infringement by a state, of the norms of the public international law, that
can not be resolved by peaceful means, the aggrieved party has the
opportunity to use a series of limited measures and countermeasures,
coercive against the one/ones who has / have committed such acts, but with
the recommendation to avoid as possible the armed force.
In such cases, it is required to use special tools for dispute settlement
embodied in international sanctions with complementary role in relation to
the means of peaceful solving the conflicts. The coercive measures may
have different functions related to the state’s conduct, in order to restore
the violated legality, to remove the non-amicable acts, to restore the violated
rights, international peace and security and, last but not least, to obtain the
repairing of the caused damages. The sanctions imposed by the
international states and organizations appear as countermeasures - the most
diverse manifestation - grouped in measures of retaliation and reprisal, plus
armed self-defense, military blockade and other sanctions against the states,
members of some organizations, for not respecting some mandatory
provisions. The countermeasures aim at determining the guilty state, at
stopping actions that violate the norms of international law or the rights of
the state that applies those sanctions. This term refers to certain acts or
omissions of a state, which become correct as a defense reaction and stop of
the international illegal act .
……………………………………………………………………………………………………………….

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 Topic : An Introduction to Public International Law (Assignment 1)

BIBLIOGRAPHY
(1) REFERENCE TO BOOKS

(i) Name : H.O. Aggarwal

Book : Public InternationalLaw & HumanRights
Publication : Central Law Publications
Edition : 2012

(ii) Name : D.J. Harris

Book : Cases & Material on International Law
Publication : Sweet & Maxwell Pvt. Ltd.
Edition : 2013
(iii) Name : S.K. Kapoor
Book : International Law
Publication : Central Law Publications
Edition : 2013
(iv) Name : D.W Garg
Book : Commentary on International LAw
Publication : Butterworths & Co. Publishers
Edition : 2007

(2) REFERENCE TO INTERNET SOURCES

 https://www.google.com/search?
q=sanctions+in+international+law+pdf&rlz=1C1UEAD_enIN978IN978&oq=
&aqs=chrome.2.69i59i450l8.164682334j0j15&sourceid=chrome&ie=UTF-8

 https://www.utmsjoe.mk/files/Vol.%209%20No.%202/UTMSJOE-2018-
0902-09-Ilieva-Dashtevski-Kokotovic.pdf

 https://www.google.com/search?
q=introduction+to+international+law&rlz=1C1UEAD_enIN978IN978&ei=AM
33YevjNM-fseMPm7SHuA0&ved=0ahUKEwjr4-
me9tv1AhXPT2wGHRvaAdcQ4dUDCA4&uact=5&oq=introduction+to+intern
ational+law

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Topic : An Introduction to Public International Law (Assignment 1)

REMARKS

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