PUBLIC INTERNATIONAL LAW

Contents:-
•Introduction
• Defination (traditional and modern view)
• Nature of PIL
• Scope of PIL
•Source of PIL
•Subject matter of PIL
•Conclusion
•Bibliography
Introduction:-
International law is also called public international law or law of the nations, is
the body of legal rules, norms and standards that apply between sovereign states
and other entities that are legally recognized as international actors. The term
‘international law’ was coined by the eminent English philosopher Jeremy
Bentham. According to Bentham, transactions that take place between
individuals who are subject of different states are regulated by internal laws and
decided upon by the internal tribunals of any one of the party’s states. The case
is the same when a state has any immediate transactions with a private member
of another state; the state reducing itself to the stature of a private person,
submits itself to either tribunal. This is where Bentham explored the possibility
of another situation where there might be mutual transactions between
sovereigns, and that is where international law comes into the picture.

Every society, irrespective of its population, makes a legal framework

(law) under which it functions and develops. It is permissive in nature as it
allows individuals to form legal relations with rights and duties and restrictive
in nature as it punishes the wrong-doers. These laws are referred to
as Municipal laws. The world today requires a framework through which
interstate relations can be developed. International Laws fill the gap for this.

The term ‘International law’, also referred to as Laws of Nations was first
coined by Jeramy Bentham in 1780. Every country is referred to as ‘state’ in
International Law.

Bentham made two important assumptions about international law. First, he

assumed that international law was exclusively about the rights and obligations
of states inter se and not about rights and obligations of individuals. Second, he
assumed that foreign transactions before municipal courts were always decided
by internal and not international rules.
Law is the element of the society which helps to develop a framework within
which rights and duties can be established. The world today requires a method
where interstate relations can be conducted, and International Law fills this gap.
The United Nations developed this body of International Law for the purpose of
promoting international peace and security.

Modern definition of International Law:-

Bentham’s definition and perspective of international law was traditional and
old schooled, the modern definitions of international law represents its wide
ambit and inclusive approach. According to J.G. Starke, International law
maybe defined as that body of law which is composed for its greater part of the
principles and rules of conduct which states feel themselves bound to observe,
and therefore, do commonly observe in their relations with each other, and
which includes also

i. The rules of law relating to the functioning of international institutions or

organizations, their relations with each other, and their relations with
states and individuals.
ii. certain rules of law relating to individuals and non-state entities so far as
the rights or duties of such individuals and non-state entities are the
concern of the international community.

According to the United Nations, International law defines the legal

responsibilities of States in their conduct with each other, and their treatment of
individuals within State boundaries. Its domain encompasses a wide range of
issues of international concern, such as human rights, disarmament,
international crime, refugees, migration, problems of nationality, the treatment
of prisoners, the use of force, and the conduct of war, among others. It also
regulates the global commons, such as the environment and sustainable
development, international waters, outer space, global communications and
world trade.

In its broadest aspect, international law lays down guidelines, methods, and
mechanisms for international actors primarily sovereign states, but also
increasingly international organizations and certain individuals. The range of
subjects and actors directly involved with international law has considerably
widened, moving beyond the traditional questions of war, peace, and
diplomacy to include human rights, economic and trade issues, space law, and
international organizations. International law differs from international comity,
with the latter compromising of legally non binding practices adopted by states
for reasons of courtesy. Public International law is also distinct from the field
of private international law. The latter being concerned with the rules of
municipal law of different countries where foreign elements are involved.

What is the aim of International law?

The existence of international law is the result of increased interstate
engagement. It mainly aims to maintain international peace and security among
different states. It also helps in:

1. promotion of friendly relations among the member states (members of

the International community, for example, United Nations),
2. providing for basic humanitarian rights,
3. to solve International problems through international cooperation,
4. to refrain the state from using threat or force over the territory of any
other state to provide for right to self-determination to people, and
5. to use peaceful methods to settle international disputes are few of its
functions.

What are the sources of International Law?

The sources of International Law are treaties, custom, general principles of law
recognized by civilized nations, judicial decisions and teachings of publicists.

Treaties
The concept of treaty is based on pacta sunt servanda, which is a customary law
principle which means promises must be kept. In a treaty, countries create their
terms of rights and obligations out of their volition, thus it is very similar to a
contract. Therefore, a treaty is a written agreement between two or more States
which lays down the manner in which every State would act while doing
dealings with other participating States. Sometimes, in place of treaties other
terms such as charters, declarations, conventions and statutes are often used.
However, there is a slight difference in meaning of these terminologies.

Custom
Custom is one of the primary sources of International Law. In International
Law, it is considered to be of particular importance because of its decentralized
nature. Two conditions are essential for an act of a State to constitute as custom:

1. The first being the State practice itself, it is not necessary that the act
of a State necessarily needs to be positive in nature. State practice
should be extensive, uniform and consistent and prevail for at least
such a period of time as would establish it as a recognized act of
States.
2. The second essential is opinio juris, which means, the psychological
belief of a State that its act is creating a legally obligatory position for
itself. But it should be noticed that not every activity of a State would
necessarily create binding rules of customary law. For instance, if a
particular pattern is used by the State on a particular issue in the
General Assembly, it is reflective of the maxim opinio juris.

General Principles of Law:-

As in International Law there is no cohesive body for legislating laws or any
Court that has the power to set precedents, thus it is relatively undeveloped as
compared to the Municipal Law. Article 38 of the Statute of the ICJ provides
for ‘general principles of law recognized by civilized nations’ as a source of
law.

Judicial Decisions
As per Article 38, judicial decisions are recognized as subsidiary means of
determination of law. Article 59 of the Statute of the ICJ states that the
decisions of the Court can only guide them but does not have any binding value
on the Court and the court is authorised to apply the previous decisions of the
court which are known as the evidence of International Law. Thus, the doctrine
of stare decisis is not followed in International Law.
Various Scholars on International Law
Various eminent scholars, international jurists, subject experts gave their
interpreted definition of International law. Most popular among them are as
follows:

1. According to Prof. L. Oppenheim, “Law of Nations or International

Law is the name for the body of customary and conventional rules
which are considered legally binding by the civilized states in their
intercourse with each other.”
2. As per Torsten Gihl, “The term International Law means the body of
rules of law, which apply within the International Community or
society of States.”
3. As per J.L. Brierly, “The Law of Nations or International Law may be
defined as the body of rules and principles of action, which are
binding upon civilized states in their relations with one another.”
4. Gray said, “International law or the Law of Nations is the name of a
body of rules which according to their usual definitions regulate the
conduct of states in their intercourse with each other.”
5. In Queen v. Keyn (1876), Lord Coleridge, C.J., defined International
law as “The law of nations is that collection of usages which civilized
States have agreed to observe in their dealings with one another.”

Principles of International Law:-

International Law is based on the following two principles:

1. Jus Gentium: These set of rules do not form part of a legal statute but
mutually governs the relationship between two nations.
2. Jus Inter Gentes: These refer to those treaties and agreements that are
accepted by both countries mutually.
International Law provides effective means through which peaceful settlement
of disputes can be done. It is mainly concerned with the rights, duties and the
interests of the State.
NATURE AND SCOPE:-

Is International Law really a law?

It is one of the most controversial questions that has been debated and on which
jurist’s opinions hugely differ. 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

According to Austin, 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. So based on what he said, it can be concluded that any rule which is
not enacted by any superior or legislative authority, cannot be regarded as a law
and moreover, if laws are violated, sanctions must be imposed.
Based on that, it can be said that 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

According to him, 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. Based on what he said, we can
conclude that, firstly, there must be a community, secondly, a body of rule of
conduct governing the community must be there and thirdly, common consent
among the community for the rules to be enforced power must be present. From
this, we can conclude that it’s not necessary that rules should be enacted by a
legislative authority within the community for them to be legally binding.
Subjects of International Law:-
Subjects of international law can be described as those persons or entities who
possess international personality. Throughout the 19 th century, only states
qualified as subjects of public international law, but this scenario completely
changed after the conclusion of the Second World War with more and more
new actors joining the international legal arena. Intergovernmental
organizations created by the states; non-governmental organizations (NGOs)
created by individuals; and even natural persons like individuals emerged as
new actors. A subject of international law is a body or entity recognized or
accepted as being capable, or as in fact being capable, of possessing and
exercising international law rights and duties. The possession of international
legal personality means that an entity is a subject of international law, and is
capable of possessing international rights and duties, and has the capacity to
maintain its rights by bringing international claims. The subjects of international
law can be categorized into:
States:-
The moment an entity becomes a state, it becomes an international legal person
and acquires an international legal personality. State as a subject of International
Law is the original subject of international law, and the branch of international
law was originally established to regulate relations between the states.

Non-State Actors:-
There are certain Non-State actors with international legal personalities that
include, individuals, armed group involved in conflicts and international
organizations like the EU, UN and African union who are deemed to be subjects
of international law.

International organizations:-
An international organization is also an important subject of international law, it
is defined as an organization established by a treaty or other instrument
governed by international law and possessing its own legal personality. The
United Nations and World Trade Organizations are examples of international
organizations.

It can be said that states have original personality and non-state actors have
derived personality. This is attributed to the fact that states are considered to be
international personalities the moment they are identified as a sovereign state,
on the other hand, non-state actors like international organizations derived their
personality through other means. For example, the rights and duties and its
extent maybe described in their constitutions, charters, and treaties that establish
such organizations.

Theories regarding the subjects of International Law

There are 3 theories of subjects of public international law. They are:

 Realist Theory of International Law

 Fictional Theory of International Law
 Functional Theory of International Law

Realist Theory of International Law:

The Realistic theory reflects the traditions views of international law that were
propounded by the likes of Bentham in the 18 th century. This theory suggests
that only nation states are exclusively to be considered as subjects of public
international law. According to this theory, international law regulates the
conduct of states and hence states alone can be given the status of a subject. The
nation states, irrespective of the individuals that they consist of, are separate
entities having rights, duties and obligations and possess the capacity to
maintain their right under international law, therefore nation states are the
ultimate subjects of international law.
According to the Article 1 of the Montevideo Convention on the Rights and
Duties of States, a state as a person of international law should possess the
following qualifications:

a. a permanent population;
 a defined territory
 a government; and
 capacity to enter into relations with other states
The state as a subject is endowed with rights and duties like; the right to
equality, right to coexistence and self determination, right to independence,
right to respect, dignity etc,. Similarly under the ILC draft declaration on Rights
and Duties of states,1949 lays down rights that states are entitled to like; the
right to independence, right to jurisdiction, duty of nonintervention, right to
equality, duty to protect Human rights and fundamental freedoms, duty to
maintain peace and security , etc.
Criticism of theory:
The realistic theory is very similar to the legal positivism approach to
international law. The positivist definition of international law has had an
enormous impact on modern perceptions concerning the subjects of public
international law. With few exceptions, the theory rejects the notion individuals
are proper subjects of international law. While it may sound prudent to
categorize law on the basis of subjects, in practice international law is
concerned not just with legal rights of states but also other subjects.

A prominent example of the realistic theory’s failure to describe adequately the

reality of the individual as a subject of international law can be seen right from
the time of Bentham himself. In the case of Respublica v. DeLongchamps, an
American municipal court indicted the defendant for assaulting the Consul
General of France to the new United States. It was held that the case must be
determined on the principles of the laws of nations. This case was instrumental
in reiterating Blackstone’s view that, an individual could be guilty of an
infraction of international law.
Similarly in the Paquete Habana case, the United States Navy had seized two
Cuban fishing smacks in the opening days of the Spanish-American War. A
lower federal court condemned the boats as prizes of war. The masters for
themselves, their crews, and their owners, argued before the Supreme Court that
peaceful fishing craft were exempt from seizure under the rules of international
law.
In perhaps the most famous statement ever made about international law by a
United States court, the Supreme Court held that “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.”

This case once again highlighted the fact that individuals cannot be kept
excluded from the spectrum of international law.

These cases clearly showcase the fact that to view nation-states as the only
subject of international law does not fulfill the purpose of the law, and is found
to be wanting when there are circumstances concerning individuals who cannot
be seen isolated from the state or organization that they are a member of, as
seen above in the Nuremberg trials. Further, many of the rules of international
law are are directly concerned with regulating the position and activities of
individuals, and many more indirectly affect them.
Fictional Theory of International Law:
There are certain jurists who ascertain that in the ultimate analysis of
international law it will be evident that only individuals are the subjects of
international law. Professor kelson is the chief proponent of this theory, he
states that an individual alone is entitled to be the subject of international law.
The duties and rights of the states are in reality the duties and rights of the men
who compose them. Many modern treaties do bestow rights and impose duties
upon individuals. From time to time certain treaties have been entered into
which have conferred certain rights upon individuals. Although the statute of
the ICJ adheres to the traditional view that only states can be parties to
international proceedings, a number of other international instruments have
recognized the procedural capacity of the individual. Various international
treaties, judicial tribunals and courts have recognized individual personality
under international law.

For example Treaty of 1907 between five central American states established
Central American Court of Justice, which provided for individuals to bring
cases directly before the court. African Charter 1981 and African Commission
on Human & Peoples Rights The ICSID, 1965 has enabled private foreign
investor to have access to international machinery. The International
Convention on the Suppression & punishment of Crime of Apartheid of 1974
declared apartheid a international crime and individual is directly responsible.

A compelling case that highlights the modern approach to international law and
provides credibility to the fundamental aspect of the fictional theory is the case
of Filartiga v. Peha-Irala. This case was adjudicated by the United States Court
of Appeals for the Second Circuit; in this case both parties to the dispute were
individuals and the court found international law dispositive on the fundamental
question of jurisdiction. The plaintiffs who were Paraguayan citizens were
related to another Paraguayan, who, they contended had been tortured and killed
in Paraguay by the defendant who was also a Paraguayan. Though all the
elements in this case were foreign or alien, the plaintiffs based their claim on a
provision from the Judicial Act of 1789, which provided the federal district
courts of USA with ‘original jurisdiction’ for any civil action by an alien for a
tort only, committed in violation of the law of nations. This statutory provision
is an example of the eighteenth century view of the relationship between
individuals and the international law.
The court concluded that “an act of torture committed by a state official against
one held in detention violates established norms of the international law of
human rights, and hence international law.”
Conclusion
No longer is international law associated with only one particular subject or
personality; evolving since the times of Bentham, it has been able to incorporate
different views and aspects to accommodate the ever growing field of
international law. Though states ultimately play the most important role in
international law, the increasing prominence of individuals, international
organizations and non-state entities cannot be overlooked. The modern
international law as we know today has played a herculean role in the amicable
settlement of issues that have affected the global stage. Intergovernmental
organizations like the UN, EU, IMF, WHO, etc. Have played an economic,
cultural, social and political role in managing international affairs, and have
helped in the development of international law. Staying true to its name,
international law has played an instrumental role in regulating the conduct of all
the subjects that it encompasses and the entire international arena as a whole.
Biblography:-
I. Ipleaders.in

II. Indian Kanoon

III. Wikipedia

IV. Lawbhoomi.com

V. PIL book