PUBLIC

INTERNATIONAL
LAW
SPRING 2022

PROFESSOR ABHINAV
MEHROTRA
NATURE AND DEVELOPMENT OF
INTERNATIONAL LAW
• Principle Subjects of International Law are the Nation States. In this sense,
International Law operates outside and between states, international organizations
and in some cases the individuals.
• What differentiates Public International Law from Private International Law is that
the latter deals with cases within the particular legal system, ie dealing with issues of
application of foreign law and the role of foreign courts.
 UN CHARTER

• Article 1

The Purposes of the United Nations

• To maintain international peace and security, and to that end take effective collective measures
for the prevention and removal of threats to the peace, and for the suppression of acts of
aggression or other breaches of the peace,and to bring about by peaceful means, and in conformity
with the principles of justice and international law, adjustment or settlement of inter- national
disputes or situations which might lead to a breach of the peace.
• To develop friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples, and to take other appropriate measures to strengthen
universal peace;
 UN CHARTER

• Article 2
• The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles.
 1. The Organization is based on the principle of the sovereign equality of all its
• Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfil in good faith the obligations assumed by them in accordance
with the present Charter.
HISTORICAL DEVELOPMENT OF
INTERNATIONAL LAW
• Historically, International law is based on the European notions of sovereignty,
independent nation state and the commonly accepted standard of behavior.
• These notions were premised on the development of western culture and political
organization.
• The first known treaty was signed in 2100 BC between rulers of Lagash and Umma,
the city states situated in the area known as Mesopotamia. The treaty focused on the
establishment of a defined boundary.
HISTORICAL DEVELOPMENT OF
INTERNATIONAL LAW
• ROLE OF ANCIENT ISRAEL
• In ancient Israel, the rules relating to warfare were put in place and people and different religious
communities were to be bound by such rules.
• Such rules came into being based on the demand for justice and fair system of law.

• ERA OF CLASSICAL GREECE

• Emphasis on philosophical, scientific and political analysis.
• Those who belonged to different origin were termed as barbarians and not deemed worth of association
HISTORICAL DEVELOPMENT OF
INTERNATIONAL LAW
• ROMAN EMPIRE
• It was based on respect for organization and law . Early Roman law known as Jus
civile only applied to the Roman citizens . Whereas the common law of the Roman
Empire known as Jus gentium consisted of simplified rules to govern the relations
between foreigners and between foreigners and citizens .
• Interestingly, the classical rules of Roman law were collated by Byzantine philosophers
in AD 534 in the Corpus Juris Civils .
HISTORICAL DEVELOPMENT OF
INTERNATIONAL LAW
• NATURAL LAW
• It was formulated by Stoic philosophers of third century BC.
• It consists of body of rules of universal relevance.
• Has been considered as a precursor to the contemporary concern with human rights.
• Has been used as justification by Roman empire for Jus Gentium based on the belief
that rational principles are common to all civilized nations
THE MIDDLE AGES AND THE RENAISSANCE

• This period is signified by the authority of the Organized Church and its structure of power.
• Under this system, the ecclestical law applied to all.
• Throughout this period, there existed struggles between religious authorities and the rulers of Holy
Roman Empire.
• During this period, English law established the Law Merchant, that were a code of rules covering foreign
traders. Similarly, Maritime Customs that were based on Rhodian Sea Law that was a Byzantine work.
• Renaissance was a period that gave birth to the creation of territorially consolidated units of England,
France and Spain and to the characteristics defining the interaction between states such as
diplomacy, statesmanship, theory of balance of power and the idea of community of states.
FOUNDATION OF MODERN INTERNATIONAL
LAW
• Spanish Philosophers of its Golden Age
• i) Francisco Vitoria :- Referred to Rights of South American Indians even after the
Spanish Conquest.
• ii) Suarez :- He believed that the obligatory character of International Law was based
on Natural Law.
• iii) Albertico Gentili : Originator of the Secular school of thought in International
Law.
FOUNDATION OF MODERN INTERNATIONAL
LAW
• Hugo Grotius (Father of International Law)
• Law of Nature based on Reason .
• Concepts of Just and Unjust War are valid.
• Freedom of Seas was proclaimed.
• Locke & Hume :- Formulated empiricism [experiment & verification of hypothesis]
• (This means the reference to Agreements & Customs : (What states actually do )
FOUNDATION OF MODERN INTERNATIONAL
LAW
• NATURAL LAW:- (GAVE RISE TO NATURAL RIGHTS)
• Individualistic assertion of political supremacy
• Idea of social contract i.e. agreement between individuals pre-dated and justified
civil society.
• Acceptance of Sovereign as Absolute (Hobbes)
• Conditional Acceptance of Authority (Locke)
THE NINETEENTH CENTURY

• International Law became Euro-centric, preserve of civilized Christian states. The

characteristics that define this period is practical, expansionist and positivist.
• Democracy, Nationalism and Industrial Revolution
• The positive and negative elements of nationalism i.e. the unification of Germany
and Italy as well as expansionism and racial superiority.
• Whereas Industrial revolution, created an economic dichotomy of capital and labour
THE NINETEENTH CENTURY

• In 1815, the Final Act of the Congress of Vienna, established the principle of freedom
of navigation, and to regulate the same, Central Commissions were setup in Rhine
and Danube.
• Conventions, Peace and Conflict
• The International Committee of the Red Cross, founded in 1863 promoted the series
of Geneva Conventions in 1864 for ‘humanization’ of conflict.
• Hague Conferences of 1899 & 1907 established the Permanent Court of Arbitration
and dealt with treatment of prisoners and control of warfare.
THE TWENTIETH CENTURY

• 1914-18 : Great War undermined the foundation of European civilization.

• 1919 Peace Treaty: Creation of the League of Nations (in absence of US & Soviet
Union)
• Permanent Court of International Justice was setup in 1921 at the Hague and was
succeeded by International Court of Justice in 1946. At the same time, the
International Labor Organization (ILO) was also formed.
• System of Mandates : The colonies of defeated colonial powers were administered by
Allies for the benefit of their inhabitants.
COMMUNIST APPROACHES TO INTERNATIONAL
LAW
• Classic Marxist Theory : It describes law and politics as means where ruling
classes maintain their domination of society.
• Post Second World War:- The following Principles were recognized
i) State Sovereignty
ii) Recognition of different social systems
iii) Aim of peaceful co-operation
iv) Role of sanctions
COMMUNIST APPROACHES TO INTERNATIONAL
LAW
• Emphasis on opinion juris or legally binding element of custom
(recognition as legal form)
• Chinese conceptions of Law
i) Western concepts aimed at preserving the dominance of bourgeois class.
ii) Russians were interested in maintaining status quo & Soviet-American
superpower supremacy .
DEVELOPING COUNTRIES

• After Second World War (Disintegration of colonial empires & birth of new states) in
the so-called “Developing countries” or “Third World”
• Legacy of bitterness over its past status as well as host of problems relating to their
social, economic and political development.
• Embrace the ideas of sovereignty, equality of states, principles of non-aggression,
non-intervention.
• Even the composition of the ICJ and Security Council was based on geographic
lines.
DEVELOPING COUNTRIES

• Article 9 ICJ Statute :- Main forms of civilization and principal legal system of the world must be
represented.
• Security Council :- There exists 10 non-permanent seats i.e.
5 seats (Afro-American States)
2 seats (Latin American)
3 seats (Europe & other states)
• 1960 General Assembly Resolution 1514 (XV) : The Declaration on the Granting
of Independence to Colonial Countries and Peoples (recognised their sovereignty & right to
self-determination)
RESOLUTION 2625 (XXV): DECLARATION ON PRINCIPLES OF
INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS
AND CO-OPERATION AMONG STATES IN ACCORDANCE
WITH THE CHARTER OF THE UNITED NATIONS
• 1) UN CHARTER :- Maintenance of International Peace and Security founded upon
freedom, equality, justice and respect for fundamental rights and human rights
• II) Promoting the Rule of Law among nations.
• III) Universal application of principles embodied in the Charter.
• IV) Practice tolerance and live together in peace with one another as good neighbours.
• V) Early Settlement of disputes through negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies etc.
RESOLUTION 2625 (XXV): DECLARATION ON PRINCIPLES OF
INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND
CO-OPERATION AMONG STATES IN ACCORDANCE WITH THE
CHARTER OF THE UNITED NATIONS

• NEED FOR NOT USING THREAT OR USE OF FORCE

• I) To respect international boundaries of another state.
• II) To respect international lines of demarcation such as armistice lines.
• III) To refrain from organizing, instigating, assisting or participating in acts of civil
strife or territorial acts of another state.
• iv) To refrain from military occupation of another territory by use of force.
• v) To conclude the treaty on general and complete disarmament
 CUSTOMARY INTERNATIONAL LAW

BASIC ELEMENTS :-
A. Uniform and Consistent Practice
B. Required by Law (Opinio Juris)
•Customary international law is unwritten.
•Generally gathered from sources that include diplomatic
correspondences, government documents, legal
advisors opinion etc.
•Other materials may be included
such as the behaviors described in states’ reports to the
UN treaty bodies, material gathered for the Human Rights
Council Universal Periodic Review (UPR) process, and the
work and documentation of National Human Rights
Institutions.
 
• 
GENERAL
PRINCIPLES OF
INTERNATIONAL
LAW
JUDICIAL DECISIONS

•  Article 38(1)(d) ICJ Statute provides that judicial

decisions are ‘subsidiary means’ for determining
rules of international law.
• The formal position is that international courts do
not make law and that their decisions are binding
only on the parties to the particular case and can be
discounted in subsequent cases.
• Through the interpretation and application of
treaties and custom, judicial decisions elucidate
and develop international law.
WRITINGS OF JURISTS

•Article 38(1)(d) ICJ Statute includes the ‘teachings of the most highly
qualified publicists’ as another subsidiary means for determining the law. These
include the UN Human Rights Council Special procedures (Special Rapporteurs,
Fact-finding missions, Working groups, Expert meetings), reports of the UN
specialized agencies, and NGO reports such as those of Human Rights Watch
and
Amnesty International
OTHER • RESOLUTIONS OF INTERNATIONAL
SOURCES INSTITUTIONS

• An important omission from Article 38(1) ICJ

Statute is resolutions of International
Institutions like the General Assembly and
Human Rights Council etc.
• The foundational document of international
Human Rights law—the UDHR—is in the form
of a General Assembly resolution .
SPECIAL SOURCES OF INTERNATIONAL HUMAN
RIGHTS LAW
SOFT LAW • On the international legal landscape, alongside
‘hard’ law, there exists at least a conceptual
category of ‘soft law’. 
• It may itself constitute a material source, in the
sense that a non-binding instrument (e.g. a
General Assembly declaration) may prescribe
something that thereafter becomes a rule of
customary law.
• There are multiple other forms of soft law.
They include guidelines, codes  of conduct,,
standards of behaviour and the final
instruments of global summit meetings of
held under UN auspices.