Study Notes -

International Law
 INTERNATIONAL LAW

• International law is the body of laws that regulates the relationship with other
nations and other international actors.
• There are 2 types of international laws: Private international Law and Public
International law.
• Private international law is a branch of international law which regulates private
relationships across the borders. In other words Private International law governs
the rules that are applicable in cases when the domestic laws of 2 countries are in
conflict with each other regarding private transactions between parties belonging to
different nations. The dispute may involve:
a. Jurisdiction of court,
b. Applicable laws,
c. Recognition of a foreign judgment.
• Private International Law is also known as conflict of laws.
• Public international law regulates the relation of different nation states with each
other and with other non states entities including MNC, ICJ, and IGO etc.

Difference between Private and Public International Law

S no. Public International Law Private International Law
1. It deals with relationship of It deals with relationship of
different nations with each different individuals of 1, 2
other. or more than 2 nations.
2. Laws are same for all the The laws differ from one
states. country to other.
3. It comes into force from Enacted by legislature of
treaties, conventions, the states
international agreements
and customs.
4. It is both civil and criminal It is civil in nature.
in nature.
 5. Enforced by the concerned Enforced by the fear of
state legislature. outbreak of war between
the nations

• International law is also known as soft law as it is not binding on the sovereign
nations. It is a weak source of law as there is no agency to enforce the international
laws. It is often violated and the powerful nations often interpret international laws
to suit their own needs.
• SOURCES OF INTERNATIONAL LAW
A. Treaties and Conventions
Treaties and conventions are the general agreements entered into by different
nation states with other. They focus on different rights and duties to be
undertaken by the nation states. If any dispute exists between the nation states,
the court shall decide on the basis of the provisions of the treaty/convention.
The Vienna convention defines treaty, the authority which has the capacity and
power to conclude a treaty and also outlines various disputes and interpretation
of treaties. The legal maxim ‘Pacta Sunt Servada’ (which means agreements
must be honoured between states in good faith) is the basis of treaty law.
UN declaration of Human rights (convention) and extradition treaty have gained
huge popularity in recent years.
B. Customs
Customs are the age long practices and beliefs which a nation-state commonly
observes and any violation of such practices is considered as a violation of the
international beliefs. Customary International laws comprises of written and
unwritten laws that comprises of international concept of justice.
Unlike the treaty law, which is applicable to only the participating nation states,
customary law is applicable to all the states, whether they ratify it or not.
Although customary law is not as clearly codified as treaty law, it is of utmost
importance in armed conflicts as treaty law tends to provide only a limited
protection in such circumstances.
C. General Principles of law
 These are the principles of law which have been incorporated by all the nations
in the civil justice system because of their universal applicability. In case of
default of treaty or customary laws, the case is decided on basis of such general
principles of law. But over past few decades, the significance of general principles
of law has declined due to heavy emphasis on treaties and institutional relations
between the states.
D. Judicial Decisions
Although judicial decisions of ICJ are not binding on anyone and neither it has
any binding precedent. They are also cited as a reference judgment. But in cases
where none of the other law applies, previous judgments of ICJ can be taken as a
reference.
E. Juristic writings
Article 38 of the ICJ statute provides that the publications/teachings of the highly
qualified jurists can be taken as subsidiary rules of law. Such scholarly works are
not a source of law but can be used as developing rules source in international
treaties and customs.

• FUNCTIONS OF INTERNATIONAL LAW

The function of international law specifies the object and aim of international law. As
there is no authority to implement international law, the implementation mainly
depends on the will of sovereign nations. As the will of the states are coupled with
various political considerations, every nation enforces these laws in ways that best
suits their interests. Thus, the process of attaining the ends remain slow.
The important functions of international law include:
1. Promoting international justice.
2. Maintaining peace and security among the nations.
 3. Achievement of international co-operation among nation states to solve
problems amicably.
4. Guarantees political and economical sovereignty of the nation states.
5. Maintenance of friendly relation between the states and other international
actors.
• SANCTIONS IN INTERNATIONAL LAW
Sanctions are the tools used to compel the violators of law to obey the law. There
are various instances when different nations or international actors often violate the
international law to pursue their own interests. To make them conform to the law
again, various sanctions such as trade barriers, hike in import duty and international
pressure are used. Fearing the pressure from international community and the trade
barriers, nation states often conform to the laws. International law sanctions can be
of 2 types:
1. Sanctions by states: When the rights of one state are violated by another state,
the aggrieved state has the right to avoid the aggressor from violating its rights.
The defending state often tends to:
i. Sever economic and diplomatic relations with the aggressor state.
ii. Wage war against aggressor state, in order to protect its rights.

Although waging war is a rare phenomenon in today’s world, it can be done in

times of crises.

2. Collective sanctions: When a state violates the rights of other states or does not
conform to its international duty, other states/ members of UN can take
collective actions in the form of economic sanctions, financial sanctions, or
millitary sanctions against the wrongdoer.
• INTERNATIONAL LAW COMMISSION
The international law commission was established by the UN General assembly in
1947 to codify and develop the international laws. The commission comprises of 34
members collectively representing the world legal system. The members of the
commission are experts in their individual capacity. The main function of the
 commission is to address relevant issues regarding relations between various nation
states and discuss them with specialized UN agencies like Red Cross and ICJ.
The commission chooses a topic to work upon. After the report of the commission is
complete, the General Assembly convenes an international conference to draft the
relevant treaty. Then the nations are invited to ratify the treaty. When the nation
states ratify such treaty, they are bound by the rules of the treaty.
E.g. the Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents, adopted by the
General Assembly in 1973, is one of the treaties drafted by general assembly on the
recommendation of the law commission.
• INTERNATIONAL COURT OF JUSTICE
Also known as World court, ICJ is the primary UN organ for the settlement of
international disputes. ICJ was founded in 1946 and has taken under consideration
approximately 200 cases till now. The ICJ comprises of 15 members (1 President)
each elected for a term of 9 years (President elected for term of 3 years).
In its judgments, ICJ has addressed various international disputes concerning
economic and humanitarian rights, non-use of force, diplomatic relations, hostage
taking and others. The states bring disputes to ICJ for impartial settlement based on
law. ICJ has often prevented escalation of international disputes by peaceful
settlement of maritime and border disputes.
(Note:
➢ B.N. Rau was the first Indian judge to ICJ.
➢ Nagendra Singh was the first Indian to be appointed as President of ICJ. He
was also first Indian to be appointed twice as a judge in ICJ.
➢ Justice Dalveer Bhandari is presently the Indian judge presiding in the ICJ. He
is serving his second term at ICJ after reelection.)
• Universal Declaration of Human Rights, International Covenant on Civil and Political
Rights and International Convent on Economic, Social and Cultural Rights are known
as the bill of rights.
• UNIVERSAL DECLARATION OF HUMAN RIGHTS(UDHR)- The Backbone of
International Humanitarian Law:
 Universal declaration of Human rights is a milestone document in the history of
human rights. The document was drafted by representatives from legal and socio-
cultural backgrounds from all around the world. The Declaration was adopted by UN
General Assembly on December 10, 1948 in Paris. It was accepted as a common
standard of achievement for all the nations and people. It provided for the
fundamental human rights to be universally protected and was approved by 48/58
nations at that time and translated in over 500 languages. Section 30 of UDHR
affirms the individual human rights. The Declaration also paved the way for
formulation of International Bill of Human Rights, which was completed in 1966 and
came into force in 1976.
• INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR).
ICCPR is a multilateral treaty adopted by United Nations General Assembly on 16
December 1966 and came into force on 23 March, 1976. ICCPR attempts to ensure
protection of civil and political rights. It recognizes the inherent dignity in each
individual and tries to promote conditions within states to allow them to enjoy their
civil and political rights. All the countries that have ratified the ICCPRA are obliged to
preserve and protect the basic human rights. The ratifying countries also ought to
take administrative, legislative and judicial measure to ensure that the rights
enshrined in the treaty are enforced and effective remedy is provided in case of
violation of such rights. Currently there are 74 signatories and 168 parties to ICCPR.
• INTERNATIONAL CONVENT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS(ICESCR)
ICESCR is an international human rights treaty which was adopted in 1966 along with
UDHR (1948) and ICCPR (1966) making up International bill of human rights. The
convention recognizes that the idea of an individual enjoying his basic human, civil
and political rights can be achieved only if the conditions are created whereby he can
enjoy his economic, social and cultural rights as well. The convent came into force on
January 3, 1976. ICESCR ensures the protection of economic, social and cultural
rights including right of non-discrimination, right to work, right to education, right to
social security etc. Although some rights enshrined in the ICESCR can be limited by
the states in certain circumstances, such limitations must be in accordance with the
law compatible with the nature of rights included in the convention and can be
imposed to promote the general welfare of democratic society.
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