International Law

• The term international law means the body of law and apply
within the international community or society of states.
• International law is a new concept of human kind. It is
created in 20th century. International law resolves the conflicts
between the nations and maintains peace and security in the
world.
• Morality is the basis of the international law.
• In theory this law is common to all states.
• It incorporates the experience of many centuries during
which people have lived side by side and have done business
with each other.
Definitions:
• Oppenheim defined “International law is the name for the body of
customary and treaty rules which are considered legally binding by
civilized states in their intercourse with each other”.
• Grey defined “International law or the law of nations is the name of
a body of rules which according to the usual definitions regulate
the conduct of states in their intercourse with each other”.
• In 1948 Philip C.Jessup wrote that international law is “generally
defined as law applicable to relations between states”.
• Thorsten Gihl defined “the term international law means the body
of rules of law and apply within the international community or
society of states.
International Law and Municipal Law :
• International Law is largely but not altogether
concerned with relations between states.
• Municipal Law controls relations between
individuals within the state and between the
state and individuals.
• Complete decentralization of the judicial
function in international law and effective
centralization in municipal law is there.
The Sources of International Law :
1.International Conventions
2.International Customs
3.General Principles of Law Recognized by Civilized Nations
4.Decisions of Judicial or Arbitral Tribunals and Juristic
Works
5.Decisions of Determinations of the Organs of
International Institutions
6.Equity and Justice
Treaties : 
• Treaties can play the role of contracts between two or more parties, such
as an extradition treaty or a defense pact
• They can also be legislation to regulate a particular aspect of international
relations, or form the constitutions of international organisations.
Whether or not all treaties can be regarded as sources of law, they are
sources of obligation for the parties to them.
• Article 38(1)(a), which uses the term "international conventions",
concentrates upon treaties as a source of contractual obligation but also
acknowledges the possibility of a state expressly accepting the obligations
of a treaty to which it is not formally a party.
• For a treaty-based rule to be a source of law, rather than simply a source
of obligation, it must either be capable of affecting non-parties or have
consequences for parties more extensive than those specifically imposed
by the treaty itself.
Custom : 
• Article 38.1(b) of the ICJ Statute refers to "international custom" as a
source of international law, specifically emphasizing the two requirements
of state practice plus acceptance of the practice as obligatory or opinio
jurisive necessitates (usually abbreviated as opinio juris).
• Derived from the consistent practice of (originally) Western states
accompanied by opinio juris (the conviction of States that the consistent
practice is required by a legal obligation), customary international law is
differentiated from acts of comity by the presence of opinio
juris (although in some instances, acts of comity have developed into
customary international law, i.e. diplomatic immunity). Treaties have
gradually displaced much customary international law.
• This development is similar to the replacement of customary or common
law by codified law in municipal legal settings, but customary international
law continues to play a significant role in international law.
General Principles : 
• The scope of general principles of law, to which Article 38(1) of the Statute
of the ICJ refers, is unclear and controversial but may include such legal
principles that are common to a large number of systems of municipal law.
• Given the limits of treaties or custom as sources of international law,
Article 38(1) may be looked upon as a directive to the Court to fill any gap
in the law and prevent a non liquate by reference to the general
principles.
• In earlier stages of the development of international law, rules were
frequently drawn from municipal law. In the 19th century, legal positivists
rejected the idea that international law could come from any source that
did not involve state will or consent, but were prepared to allow for the
application of general principles of law, provided that they had in some
way been accepted by states as part of the legal order.
• Thus Article 38(1)(c), for example, speaks of general principles
"recognized" by states.
• An area that demonstrates the adoption of municipal approaches is the
law applied to the relationship between international officials and their
employing organizations, although today the principles are regarded as
established international law.
• The significance of general principles has undoubtedly been lessened by
the increased intensity of treaty and institutional relations between states.
Nevertheless, the concepts of estoppel and equity have been employed in
the adjudication of international disputes.
• For example, a state that has, by its conduct, encouraged another state to
believe in the existence of a certain legal or factual situation, and to rely
upon that belief, may be estoppel from asserting a contrary situation in its
dealings.
• The principle of good faith was said by the ICJ to be "one of the basic principles
governing the creation and performance of legal obligations".
• Similarly, there have been frequent references to equity. It is generally agreed that
equity cannot be employed to subvert legal rules (that is, operate contra legem).
• This "equity as law" perception is reinforced by references to equitable principles
in the text of the United Nations Convention on the Law of the Sea 1982, though
this may be little more than an admission as to the existence, and legitimating of
the discretion of the adjudicator. However, the principles of estoppel and equity in
the international context do not retain all the connotations they do under common
law.
• The reference to the principles as "general" signify that, if rules were to be
adapted from municipal law, they should be at a sufficient level of generality to
encompass similar rules existing in many municipal systems. Principles of
municipal law should be regarded as sources of inspiration rather than as sources
of rules of direct application.
• The term international law has been defined in a variety of ways by different jurists.
Some of the definitions may be given as under:
• 1. By Oppenheim: - “Law of Nations or international law is the name for the body of
customary law and conventional rules which are considered binding by civilized states
in their intercourse with each other.”
• 2. By Alf Ross: - Alf Rose defines the term international law as under: “International
law is the body of legal rules binding upon states in their relations with one another.”
• 3. By Lawrence: - According to him, “ international law is the rules which determines
the conduct of the general body of civilized state in their mutual dealings.”
• 4. Modern Definition: - International law has always been in a continuous state of
change. In modern period the term International law may rightly be defined as under;
“That body of legal rules which regulates the relationship of the Nation States with
each other, as well as, their relationship with other International actors.”
There are two major kinds of international law;
• 1. Private International Law, and 2. Public International Law.
1. Private International Law: - The term private International law may be
defined as under: “ That branch of International law which determines that
which law is to be applied to a specific case containing a foreign element is
called Private International law.”
• Explanation: - From the above definition it is evident that private
international law is to regulate those cases where a foreign element involves
in the matter and the difficulty arose that which law shall be applicable to the
case, in other words when it becomes difficult for a domestic court that the
law of which state shall be applicable to a certain case because the case
contains an element of a foreign state/states law.
• In such a case private international law comes to help because it determines
that which law shall be applicable to a certain case.
 Public International Law: - The term Public International Law may be
defined as under: “ A body of legal rules which regulates the relation
of states inter se as well as their relations with other non-state
entities is said to be Public International law.”
• Explanation: - From the above definition it may be concluded that
Public International law is a set of legal rules which not only regulates
the relations between the Nation States but also regulates their
relations with other non-state entities. In other words it is a body of
rules which regulates the relationship of the international actors with
each other.
• These international actors may be given as under: States, individuals,
NGO’s, IGO’s, Multi-National Corporations and Movements.
…………………………………………..
 There is a sheer difference between Private International Law and Public International law.
• 1.It deals with the individuals of one, two or more countries.
• 1.It deals mainly with the relationship of states with each other.
• 2.The rules of Private International law are the out come of state or state laws
• 2.The rules of Public International law are the out come of International customs, treaties and
other sources.
• 3.It differs from state to state
• 3.Public International law is same for all the states of the world.
• 4.It has been enacted by the legislature of the state or states.
• 4.It comes into force of treaties, customs, international agreements or decisions of arbitral
tribunals.
• 5.It is more civil in nature.
• 5.It is both civil and criminal in nature.
• 6.It is enforceable by the concerned state executive.
• 6.It is enforceable by the adverse view of nation of the word and fear of war or breakage of
diplomatic relations etc..
• - Is International law a law in true sense or not?
• The status of International law, that whether it is a law in true sense or not, is a long
debate. Jurists have different views to debate as a result of which different schools of
thought have come to exist. The view of each of such school may be given as under:
• 1. International law is not a law in true sense: -
• According to this school of thought International law is not a law in true sense.
They give following arguments in support of their view:
• 1. There is no superior political authority
• 2. There is no legislature to enact the rules as in municipal law,
• 3. There is no judicial machinery to interpret the laws,
• 4. There is no executive authority to enforce international law v. International law is
frequently violated by states.
• So, on the basis of the above arguments this school of thought has contended that
international law is not a law in its true sense.
• 2. International law is a law in true sense: -
• According to this school of thought international law is a law in true sense. They give
the following arguments in support of their view:
• 1. For the definition of law a political superior authority is not so necessary,
• 2. In fact there is a legislative body in the shape of General Assembly and Security Council
and the states enter into treaties which also act as legislature,
• 3. In fact there is a potent judicial machinery in the shape of International Court of Justice
( IJC ). Though its decisions are binding on the parties when they by their mutual consent
refer the case to it.
• 4. It is wrong to say that there is no executive authority to enforce International law,
because the adverse view of the member states and fear of cessation of diplomatic and
economic ties and fear of war act as sanction for its implementation.
• 5. It is right to say that international law has frequently been violated but on this basis the
status of international law as a law shall not be denied because law is law and its
obedience is totally an other factor. And municipal law has also been violated.
• 6. Furthermore, states themselves consider it binding upon them
 3. International law is a law but a weak law: - This school of
thought accepts the status of International law as a law but
according to them it is a weak law.
• They give following arguments in the support of their view:
• 1. There is no coercive agency to enforce it,
• 2. It has frequently been violated,
• 3. Big powers interpret it according to their wishes,
• 4. Though there is an international court of justice, but it
enjoys no compulsory jurisdiction. Its decisions are only
binding in circumstances where both the parties by their
mutual consent refer the case to it.
• Sources of International law means those origins from where it
attains its authority and coercive agency. According to the
provisions of the Statute of International Court of Justice there
are following sources, on the basis of which Court can decide a
case
• 1. Treaties: - The term treaty may be defined as “ the agreement
entered into by Nation states for their relations with each other
and to undertake certain duties, obligations and rights is said to
be a treaty.”
• The statute declares that the Court shall have to decide any
dispute between Nation States in accordance with the provisions
of the treaty between them if existed.
2. Customs: - Customs are those habits and practices
which the nations states commonly observe and the
violation of which is considered as against the
courtesy of International behavior.
• There are certain practices which the world
community observes without any express provisions
but because of practice they honour the same.
• So if there is no treaty between the parties to a
dispute then the statute binds the Court to decide the
case in the light of such international customs
3. General Principals of Law Recognized by Civilized Nations: - There are
certain principles of law, which have been incorporated, in the domestic
laws of many countries because of their universal application.
• So, in default of any treaty or international custom the statute reveals
that the court then shall have to decide the case in the light of such
general principles of law as recognized by civilized nations of the world.
4. Judicial Decisions: - Usually the Judicial decisions of the International
Court of Justice are not binding and they have no value in the sense
that they are related and binding only to that certain case for which
they have given.
• And they cannot be cited as strict reference in any other case. But
despite the fact the Statute reveals that in case of default of all the
above sources the court shall resort to the prior judicial decisions
• 5. Juristic Works: - The jurists or publicists also declares rules by
legal philosophy and analogy and also by comparing different
legal systems of the world and they also analyze the historical
perspectives of the different legal systems of the world.
• So, as they have devoted their lives for the legal study, they must
be deserve to consult in deciding a dispute. In other words, their
opinion on a specific question of law weights because of the
their valuable experiments and sound study on the topic.
• So, the statute further reveals that if there is no treaty, legal
custom and general principles of law then the Court shall resort
to writings of these jurists.
6. Other Sources: - Beside the above sources there are also some
other sources which court can resort for the decision of a case.
• As for example “Equity” and the resolution by the UN
organization. No where in the statute these sources have been
declared for the Court to derive law but by practice the
common and universal principles of equity have been
observed by the courts while deciding cases. And also the UN
organization when passes a resolution on specific subject the
Court feels its moral duty to decide the case in the light of such
resolution if there is no express provisions for deciding a case