Public International Law in General

• Originally, international law was defined as the

law governing relations among states.
• Therefore, the traditional definition of
international law is; the branch of law which is
composed solely of rules governing the
relations between states.
• This is contrasted from municipal law which
entails the legal system within a particular
state.5
5/17/23 1
 The Origin and Development of
International Law
• Though international law in one form or another has
existed from the very beginning, yet international
law, in the modern sense of the term, is the product
of recent history.
• International law, as the term is understood today,
can trace its origin from the 15th century.
• Even then, for a correct understanding of the
development of international law, a brief link with
international law as it prevailed in the ancient world,
would be necessary.
5/17/23 2
 Cont…
• For the purposes of this course, the history and
development of international law can be divided
into the following stages:
• The Primitive and the Ancient Period.
• The Middle Ages.
• International law in the 15th and 16th Centuries.
• The era of Hugo Grotius and thereafter.
• The 19th Century
• The First World War – and thereafter
5/17/23 3
 Cont…
• The Second World War – and thereafter
• The present-day status of international law
• The Primitive and the Ancient Period:
• In the early stages of human history, there were
some traces of international law in Egypt and
amongst the ancient Jews.
• Around 2100 BC a solemn treaty was signed between
the rulers of Lagash and Umma, the City-states in the
area known to historians as Mesopotamia.

5/17/23 4
 Cont…
• It was inscribed on a stone block and it concerned
the establishment of a defined boundary to be
respected by both sides under pain of alienating a
number of Sumerian gods.
• The next major instance known of an important
binding international treaty is that concluded over
1,000 years later between Rameres II of Egypt and
the king of the Hittites for the establishment of the
eternal peace and brotherhood.

5/17/23 5
 Cont…
• Other points covered in that agreement signed, it
would seem, at kaldesh, north of Damascus included
respect of each other’s territorial integrity, the
termination of state of aggression and the setting up
of a form of defensive alliance.
• From this era, many agreements reflecting
international relations were concluded in the Middle
East.
• However, one need not forget the role played by
ancient Israel on the
5/17/23 6
 Cont…
universal ethical rules relating to warfare with other
people and religions and the demand for justice and
a fair system of law founded upon strict morality.
• For example, the prophet Isaiah declared that
sworn agreements, even where made with the
enemy, must be performed.
• They entered into treaties and accorded respect to
Ambassadors and treated foreigners in the same
way as they treated their nationals.

5/17/23 7
 Cont…
• The peculiarity of the treaties of this time was that
they were surrounded by oaths and religious
symbols.
• Interwoven with religious morality, a rather crude
form of international law prevailed during those
days.
• The concept of Dharma was the basis of the relation
of one State with another amongst the Hindus.
• Wars were divided into just and unjust ones.

5/17/23 8
 Cont…
• There were rigorous rules of war which
confined the extent of war and mitigated its
rigour.
• Though some writers are of the opinion that
these rules of war and rules of inter-State
relations were more moral than legal in
nature, yet some rudiments of internal law
can be traced amongst the ancient Hindus.

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 The Greek influence
• The era of classical Greek, from about sixth
century BC and onwards for a couple of
hundred years, has been of overwhelming
significance for European thoughts.
• Its critical and rational turn of mind, its
constant questioning and analysis of man and
nature and its love of debate, were spread
throughout Europe and penetrated western
consciousness with the renaissance.
5/17/23 10
 Cont…
• However, Greek awareness was limited to their own
competitive city-states and colonies.
• Greek City States were small but independent of one
another and the relationships were inter-municipal.
• This inter-municipal law was composed of
customary rules which had crystilised into law after
long standing usages followed by the need for prior
declaration of war, and the enslavement of prisoners
of war.

5/17/23 11
 Cont…
• The relations between Greek States led to the
international law:
• That the law which was applicable in a State was
called the municipal law in these states.
• The municipal law was used in contrast with
international law.
• Numerous treaties linked the city-states together
in a network of commercial and political
associations.
5/17/23 12
 Cont…
• Rights were often granted to the citizen of the
states in each other’s territories and rules
regarding the sanctity and protection of
diplomatic envoys were developed.
• Certain practices were essential before
declaration of the war, and shocks of the war
were somewhat mitigated by the exercise of
religious and customs regarding
asylum/refuge.
5/17/23 13
 Cont…
• Every era brought about its own history and has
an impact on international law.
• In the Greek states, there was a problem of
piracy which was a result of trading activities.
• If the problem occurred within a certain state
then the municipal law could be applicable but
if the offence was committed against a citizen of
another state then there was a need to invoke
the principles of international law.
5/17/23 14
 Cont…
• As the time went on, there was emergence of
other international offences such as slave trade
which led to the application of international law
rules.
• Romans era:
• The contribution of Romans to the
development of international law was minimal
though they tried to distinguish the religious
nature of customary rules observed by Greek.
5/17/23 15
 Cont…
• During the Rome Empire, there was no real
independent States.
• Thus, law of nations could not be called for.
• Their contributions to international law were
meager.
• The Romans did, however, form municipal
laws governing the interactions between
private Roman citizens and foreigners.

5/17/23 16
 Cont…
• These laws, were called the jus gentium (as
opposed to the jus civile governing interactions
between citizens).
• They codified some ideas of basic fairness, and
attributed some rules to an objective,
independent "natural law“[law of nature].
• These ideas of fairness and natural law have
survived and they are reflected in modern
international law.
5/17/23 17
 The Middle Ages development
• During the Middle Ages, the climate was not
fabourable for the development of international law.
The barriers to such development were mainly the
following:
(a)The supremacy of the Church and the universality of
its laws throughout Europe prevented the
development of International law.
• The supremacy of the Pope made international law
in the modern sense of the term, almost
unnecessary.
5/17/23 18
 Cont…
• The Popes claimed, on the ground of their divine
mission, a supreme arbitrary power over all
Christian States, and as such, the necessity of a
secular international law, which would regulate the
relations of equal sovereign States was not felt at all.
(b) Besides the Pope, the Emperor represented the
supreme and universal authority in the Western
world.
• Legally, there was only one monarchy.

5/17/23 19
 Cont…
• Consequently, there could not be international
relations among the princes of the Holy
Roman Empire.
(c) Feudalism undermined internal sovereignty.
• The feudal lords had arrogated to themselves
certain powers which belong to the sovereign.
Quite often, these feudal ties had cut across
the national frontiers.

5/17/23 20
 Cont…
Thus, in the Middle Ages, the absence of
independent national sovereign States
weakened the necessity of international law.
• However, there were some developments in the
middle ages as commercial and maritime law
was developed rapidly.
• English law established the Merchant Law, a
code of rules covering foreign traders, and this
was declared to be of universal application.
5/17/23 21
 Cont…
• Similarly maritime customs began to be
accepted throughout the Europe.
• Most of the rules were enshrined in the Rolls
of Oleron in the twelfth century, and the
maritime textbooks.
• A series of commonly applied customs relating
to sea permeated the naval powers of the
Atlantic and Mediterranean coasts.

5/17/23 22
 International Law in the 15th and 16th
Centuries
• The necessity for international law did not arise until
a number of States absolutely independent of one
another had successfully established themselves.
• That development was spread over from the mid of
the 9th century to the end of the 15th century.
• At that time, Europe was in fact divided into a great
number of independent States and the necessity for
international law to regulate the relations of these
sovereign States arose.

5/17/23 23
 Cont…
• The following factors were mainly responsible for the
growth of the principle of international law during this
period:
• As a result of the revival of ancient learning, the
knowledge of Romans was brought back to the West.
• The sea trade, which had virtually disappeared after
the downfall of the Roman Empire, happened to
revive during those days.
• With the revival of the international sea trade,
customs of maritime law appeared.
5/17/23 24
 Cont…
• This growth of international trade also gave rise
to the controversy regarding the freedom of the
high seas, and thus gave an impetus to the
growth of international law.
• The trading cities began to develop leagues for
the protection of the trade and the trading
citizens. These leagues stipulated for arbitration
on controversies between their member towns.
This also helped the growth of international law.
5/17/23 25
 Cont…
• The custom of sending and receiving
permanent delegations between States
developed.
• The custom of keeping standing armies by the
greater States necessitated the rise of some
universal rules and practice of warfare.

5/17/23 26
The Renaissance and the Reformation;
• The renaissance of science and arts in the
fifteen century revived the ancient learning
Greece.
• With the revival of the ancient learning, the
great philosophic thought of the Greeks
became current, and its concept of the law of
nature laid down a firm foundation for further
development of international law.
5/17/23 27
 Cont…
• The Reformation put an end to the spiritual
mastership of the Pope over the civilized world.
• The protestant states hardly recognized the
authority to act as an Arbitrator.
• This further necessitated the rise of the modern
international law.
• It was during this time that a number of thinkers
and writers began to work out several schemes
for the establishment of an eternal peace.
5/17/23 28
 Cont…
• Such schemes at least impressed the people
about the necessity of universal rules and a
common organization.
• Thus at the end of the period, two factors
become very apparent; the fall of the church
and the secularization of the political force
and the fall of the Roman Empire and the rise
of national sovereign State.

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 Basis for International law
• Here the question is: why international law?
• As no person is self-sufficient, no state can also be self-
sufficient. Mutual relationship with other states is
inevitable.
• Another justification for international law is the Latin
phrase, Ubi Societas Ubi Jusi; which means that where
there is society, there must be law.
• Interaction between human beings requires mechanisms
to regulate their relationship. Thus, where there is
international community, there must be international law.

5/17/23 30
 Purpose of international law
• The main purpose of IL is to promote peace, justice,
cooperation and development.
• It may be noted that many definitions of IL do not
make reference to justice.
• This has led some writers to contend that the major
purpose of IL is to establish an ordered rather than a
just system of international relations.
• This contention may be true when considered way
back before the 2nd world war where IL was concerned
with peace rather than justice.
5/17/23 31
 Is international law true law?
• This is one of the most debatable question in
international law.
• There are two schools on this question:
• One maintaining that international law is no law,
at best, it resembles the rules of positive morality;
• The other school maintains that international law
is not a set of rules of positive morality, but it is as
much a legal system as any other municipal legal
system.
5/17/23 32
 Cont…
• These two schools have widely differed mainly because
their approach to the definition of law has been different.
• The first school, led by Austin and others, defines law as
the command of a determinate superior authority, which
is obeyed by subordinate individuals, and which is
enforced by sanction of the physical force of such
authority.
• Having defined law that way, this school does not
consider international law to be law for the following
reasons:-

5/17/23 33
 Cont…
• There being no agency for international legislation,
international law is not a command of a superior
determinate authority. At best, it is a limitation imposed by
the sovereign state upon itself.
• Auto-limitation is no limitation.
• Therefore, international law is no law.
• There is also no organized force to enforce international law.
• The absence of such a sanction, which would ensure
obedience to international law, would reduce it to a state of
moral rules.

5/17/23 34
 Cont…
• According to this school, the very essence of law is the
presence of a determinate impartial third party which
would interpret and enforce the law.
• In the case of international law, such a determinate
impartial arbitrator is absent.
• Even in the case of the International Court of Justice, the
basis of jurisdiction of the Court is consent of the States.
• The International Court of Justice cannot exercise
jurisdiction if a State which is a party to a dispute has
not given its consent.

5/17/23 35
 Cont…
• For these reasons, it is contended that international
law lacks all the essential characteristics of law, and
therefore, it is no law.
• In The Queen v. Keyn (1878, 2 Ex. D.63), the Court
stated that:
“Strictly speaking, International law is an inaccurate
expression, and it is apt to mislead if its incorrectness
is not kept in mind. Law implies a law-giver, a
tribunal capable of enforcing it and coercing its
transgressors.
5/17/23 36
 Cont…
• But there is no common law-giver to sovereign States; and
no tribunal has the power to bind them by decrees or
coerce them if they transgress”.
• The following are the criticisms leveled against Austin’s
status of international law:
• Modern historical jurisprudence has disproved that force
is the sanction behind law.
• There are many communities which have a system of law
without a formal legislative authority, and law is equally
obeyed as if it was enforced by a formal authority.

5/17/23 37
 Cont…
• The argument that there is no international
legislature might have been true of Austin’s
time, but in modern times, international
legislation is through law-making treaties and
conventions.
• Therefore, the argument that there is no
formal legislative authority has lost all its
force.

5/17/23 38
 Cont…
• The main test of law is the practical test.
• States always refer to legal arguments.
• They justify themselves on the basis of law.
• Moral arguments do not generally find a place.
• Therefore, each state expects other states to obey
international law and maintains that its conduct
has been in conformity with law.
• According to Professor Oppenheim, it is wrong to
deny the legal character of international law.
5/17/23 39
 Cont…
• Further, it must be noted that international law must
be distinguished from the rules of “International
Comity”.
• The rules of international law are legally binding, while
the rules of international comity are, for the most
part, rules of goodwill and civility.
• Austin might have been right in describing rules of
international comity to be of purely moral quality, but
that is not true in the case of rules of international law
proper which are legally binding.
5/17/23 40
 Cont…
• Professor Oppenheim defines law as a body of rules for
human conduct within a community which, by the
common consent of the community, shall be enforced
by an external power.
• Thus, according to him, the three important requisites
are:
• A community,
• A body of rules for human conduct,
• Consent of that community for the enforcement of
those rules by external power.
5/17/23 41
 Cont…
• He maintains that all these three essentials are to be
found in international law.
• In the world today, there exists a community of nations.
• Interests of people from different countries are so
interdependent that a world community has come into
existence.
• Also there exist rules of conduct which have grown up
for hundreds of years as a result of custom, international
agreements, and a vast number of law-making treaties.

5/17/23 42
 Cont…
• One can also see the existence of a common consent
of the community of states for the enforcement by
external power of international conduct.
• Both the government of the states and public
opinion agree and consent that rules of International
law be enforced by external authority.
• However, it is true that there is absence of a central
external authority which can enforce the rules of
international law.

5/17/23 43
 Cont…
• However, international law is not without its
sanction.
• Besides the sanction of public opinion, there is
the ultimate sanction of war.
• The League of Nations and the United Nations
have been gigantic steps towards the
establishment of such a central authority to
provide a sanction for International law.

5/17/23 44
 Cont…
• International law is habitually treated and
enforced as law.
• Like any other positive law, it is derived from
customs, precedent and conventions.
• Further, through the International Court of
Justice, the idea of an impartial arbitrator has
also been developed.
• For these reasons, it is maintained that
international law is a true law.
5/17/23 45
 Cont…
• Those who maintain that international law is not true law
do not take into consideration the emphatic assertions of
the binding force of international law by various Courts.
• For example, the United States Supreme Court has
repeatedly recognized the constitutional validity of
international law. In The Charming Betsy (1804) 2 Cranch
64, at P.118, Marshal C.J. declared that an Act of
Congress “ought never to be construed to violate the law
of nations if any other possible construction remains”.

5/17/23 46
 Cont…
• Again in the case of Paquete Habana (1900) 175
U.S.677, the supreme court observed as follows:-
• “International law is part of our law, and must be
asserted and administered by the Court of Justice of
appropriate jurisdiction, as often as questions of
right depending upon it are duly presented for their
determination”.
• Moreover, many states justify their behaviour by
relying on the principles of international law such as;

5/17/23 47
 Cont…
• Self defence.
• This is a well-established rule of customary
international law which provides that states have the
right to use force in self-defence.
• According to customary law, which is taken to be
expressed in the time-honoured Caroline Case
(1837), the state must show that its interests were
threatened with imminent violation and that the
force used was proportionate to the harm
threatened.
5/17/23 48
 Cont…
• Article 51 of the UN Charter provides for the right to
self-defence in the following terms:
• Nothing in the present Charter shall impair the
inherent right of individual or collective self-defence
if an armed attack occurs against a Member of the
UN, until the SC has taken measures necessary to
maintain international peace and security.
• Measures taken by Members in the exercise of this
right of self-defence shall be immediately reported to
the SC
5/17/23 49
 Cont…
and shall not in any way affect the authority and
responsibility of the Security Council under the
present Charter to take at any time such action
as it deems necessary in order to maintain or
restore international peace and security.
• Arguments for and against the proposition
that international law is a true law can be
summed up as under:-

5/17/23 50
 Against
• There is no international legislator.
• It is a law between states and not above the
states.
• IL being in the nature of auto-limitation, it is no
limitation. A strong state has always the choice
or freedom to obey or not to obey international
law.
• Even customary and other rules are obscure and
vague.
5/17/23 51
 Cont…
• During times of crisis, particularly during time
of war, it becomes conspicuous in breach
rather than in obedience.
• It lacks an arbitrator of disputed questions.
• Jurisdiction of the International Court of
Justice is based on consent and has no
universality.

5/17/23 52
 For
• As the basis of law is not force but public opinion,
international law, supported by public opinion is true
law.
• These days, there has been a great volume of
international legislation.
• In practice, states do follow international law and
expect other states to follow it.

• It satisfies all the ingredients of law as defined by Prof.

Oppenheim.
5/17/23 53
 Cont…
• Even during the time of war, states often
commit breaches of law, they do not deny the
existence of law, but try to defend themselves
on the basis of law.
• The rules of international law cannot be
unilaterally altered or changed by states.

5/17/23 54
 RELATIONSHIP BETWEEN INTERNATIONAL LAW
AND MUNICIPAL LAW
• The question of the relationship between international
law and the state law is not only of theoretical, but also
of immense practical importance.
• Firstly the law of treaties, which affect the state law,
cannot be clearly understood unless the relation
between the two legal systems is clearly appreciated.
• Secondly very often, the municipal courts will be
confronted with the problem of giving effect to rules of
international law.

5/17/23 55
 Cont…
• Sometimes, these rules may be in conflict with the
municipal law of the courts.
• In such cases, it is necessary to have a clear grasp of
the relation between international law and state law.
• Thirdly, international courts and tribunals may have
to determine the effect of a rule of municipal law in
the international sphere. Here again, the relation
between international law and state law becomes
very important.

5/17/23 56
 Theories Regarding the Relationship between
International law and municipal law
• There are mainly three theories as to the
relation between international law and state
law. These are:
• Monism;
• Dualism;
• Coordinationism.

5/17/23 57
 MONISM
• According to this theory, international law and state
law are the components of one system of law in
general.
• This theory regards that law is a single unity
consisting of rules, whether those rules are binding
on state or on individuals or on entities other than
states.
• According to this theory, both state law and
international law ultimately regulate the conduct of
the individuals.
5/17/23 58
 Cont…
• The only difference is that, in the case of
international law, as it is applicable to the
international sphere, the consequences of
such conduct are attributed to the state.
• Kelsen maintains that once it is conceded that
international law is law, it is impossible to deny
that both international law and municipal law
are parts of a unified system of law.

5/17/23 59
 Cont…
• It is further maintained that the two legal systems
must be considered to be essentially identical, as
many of the fundamental notions of international
law cannot be understood, unless one starts with the
premises that the various systems of municipal law
are to some extent derived by way of delegation
from international law.
• For example, the territorial jurisdiction of the ICJ
over states which are parts of municipal law, are
essentially derived from international law.
5/17/23 60
 Cont…
• Lauterpacht, once noted that "it is true that
International law is made for states, and not
states for international law, but it is true only
in the sense that the state is made for human
beings, and not human beings for states.

5/17/23 61
 DUALISM

• According to this theory, international law and

state law are two legal systems which are entirely
different.
• They differ as regards their source.
• They differ regarding the relations they regulate.
• Municipal law regulates the relations between
the individuals who are under the sway of states,
whereas international law regulates relations
between states.
5/17/23 62
 Cont…
• These two legal systems differ regarding the
sanction behind international law.
• Municipal law, being a law of a sovereign over
individuals subjected to his control, has a
strong sanction behind it, whereas
international law, not being a law above the
states but a law between the sovereign state,
has a weaker sanction.

5/17/23 63
 Cont…
• Those who support dualistic theory put forward the
following reasons:
• The subjects of state law are individuals, whereas the
subjects of international law are exclusively the states.
• Judicial origins for municipal and international law are
also different.
• The source of municipal law is the will of the state,
whereas the source of international law is the
common will of the states.

5/17/23 64
 Cont…
• Starke points out that the first of the above
propositions is wrong, particularly, in the
modern context.
• Today, the subjects of international law are not
exclusively the states, but individuals and
entities other than states can also be its
subjects.
• He further points out that second proposition is
misleading.
5/17/23 65
 Cont…
• Anzilotti, another eminent jurist, maintains that
these two systems are different for the following
reasons:
• State law is based on the fundamental principal that
legislation is to be obeyed, whereas international law
is based on the pacta sunt servanda principle which
means, agreements between states are to be
respected.
• These two schools being entirely different, no
conflict between them is possible.
5/17/23 66
 Cont…
• It may be noted that the Dualistic theory enjoys
support from the positivists.
• But there are also some writers who are not
positivists and yet support the Dualistic theory.
• According to them, the difference between the
two legal systems lies in the fact that international
law mostly consists of customary and treaty rules,
while municipal law consists mainly of judicial
precedents and statutes passed by the legislature.

5/17/23 67
 Coordinationism
• This is a minor group which is neither monism nor
dualism.
• It argues that although it is true that international law
must be attributed to superiority, it cannot be ignored
that states are sovereign and exercise great liberties.
• Therefore, the best answer as to whether international
law or municipal law is superior, is to apply an example
of a federal state in which regional states enjoy
autonomy and are superior in some situations while
federal state enjoys superiority in other situations.

5/17/23 68
 Cont…
• Applying this analogy in the international
sphere, it can be concluded that the state laws
are supreme in certain respects and
international law is supreme in other respects
and this division of supremacy is to be
determined by what may be called an
international constitutional law.

5/17/23 69
 Which law is to prevail in case of conflict?

• If a rule of international law contained in a

treaty prescribes one thing and the municipal
law of a state prescribes just the opposite
which should prevail, international law or
municipal law?
• The dualists maintain that, in such
circumstances, the state law, which is the
creation of the sovereign will of the state,
should prevail over international law.
5/17/23 70
 Cont…
• The monists do not have a uniform opinion on this question.
• They are divided. For example,
• Kelsen, developing a pure theory of law, maintains that each
law is governed by another legal principal.
• There is a hierarchy of legal rules.
• One legal rule derives its validity and binding force from
another higher rule.
• He gives an example of a rule laid down in a regulation or an
order of a government which is regulated by a supreme rule
laid down by a parent Act.

5/17/23 71
 Cont…
• Act of the legislature is governed by the rule
laid down in the constitution.
• From principle to principle, from rule to rule, a
legal analysis eventually reaches one supreme
fundamental principle which is the source and
foundation of all law.
• According to Kelsen, this fundamental principle
may be either internation law or state law.

5/17/23 72
Theories concerning the application of international law within the municipal sphere

• There are mainly two theories regarding the

application of international law within the
municipal sphere.
• The problem here is, how the rules of international
law become applicable in the municipal sphere?
• There are two views :
• One view maintains that any rule of international
law has to be applied by municipal courts for the
mere reason that it is a rule of international law.

5/17/23 73
 Cont…
• Another view is that there cannot be such
automatic application of the rule of
international law by the municipal courts
unless such a rule has been specifically
adopted or incorporated as part of municipal
laws.
• This process of incorporation is also known as
the “Transformation and specific Adoption
Theory.”
5/17/23 74
 Cont…
• According to this theory, which is based on the
Dualistic theory, no rule of international law, by its
own force, can claim to be applicable in municipal
courts unless such rule has undergone the process
of specific adoption or specific incorporation.
• As the two legal systems are separate and distinct,
international law cannot impose rules on state law
unless the state, by its own constitutional
machinery, incorporates such rule of international
law.
5/17/23 75
 Cont…
• Even in the case of treaties, the rules of treaties must
be transformed into state law by the legislative
machinery of the state.
• Unless such transformation takes place, the rules of
the treaty cannot be extended to individuals, even
through the treaty requires such extension.
• For example, the Berne Convention on Literary and
Artistic Works provides that books published in one of
the member states must enjoy copyright in any other
state which is a party to the Convention.
5/17/23 76
 Cont…
• According to the transformation theory, a
person infringing copyright cannot be held
liable by the municipal courts unless the
provisions of the Berne Convention on
Copyright have been adopted by an Act of the
local legislature.
• It is this Act of the local legislature alone which
makes the rules of a treaty applicable to an
individual.
5/17/23 77
 Cont…
• The following observations on the above theories may be
noted:
• These theories are based on the positivistic theory of law.
• They are also based on the Dualistic theory of
international law.
• These theories maintain that the treaties are only
promises, while the rules of municipal law are commands
which must be obeyed.
• Therefore, unless the promise is transformed into a
command, it will not be applicable to the individual.

5/17/23 78
 States’ practice in application of
international law in Municipal Sphere
• British Practice
• In Great Britain, distinction is made between customary
rules of international law, and the rules laid down by
treaties.
• Practice regarding customary rules of international law:
• In the 18th century, customary international law was
automatically deemed to be part of Common law.
• See Mansfield, L.J., in Triquet v. Bath (1876), 2 Ex. D.
130; where he observed that “The law of nations, in its
full extent, is and forms part of the laws of England.”

5/17/23 79
 Cont…
• In the latter part of the 19th century, a departure was
made from the above traditional view in The Queen V.
Keyn,
• The majority of judges held that an English Court could
not give any effect to any rules of international law,
unless such rules were proved to have been adopted by
Great Britain in a positive manner.
• It was also held that if such rules of customary law
conflict with established principles of the English
common law, an English court was not bound to apply it.

5/17/23 80
 Cont…
• In 1905, the Court of Appeal made an attempt to return to
the incorporation doctrine in West Rand Central Gold
Mining Co. Ltd. v. R. where Lord Alverstone observed:
• “It is quite true that whatever has received the common
consent of civilized nations must have received the assent
of our country and that to which we have assented along
with other nations in general may properly be called
international law, and as such, will be acknowledged and
applied by our Municipal Tribunals when legitimate
occasion arises for those tribunals to decide questions to
which doctrines of international law may be relevant.”

5/17/23 81
 Cont…
• In Chung Chi Cheung V. R., [1939] AC 160, Lord
Atkin laid down the modern law regarding the
relation between customary international law
and the English municipal law. In this case,
amongst other things, it was necessary for the
Privy Council to decide whether rules of
customary international law could be deemed
to have been incorporated in English law
which was applicable to Hong Kong.
5/17/23 82
 Cont…
• Long Atkin observed that the rules of
international law must be treated to have been
incorporated into the domestic law, so far as
the rules of international law are not
inconsistent with rules enacted by statutes or
finally declared by the tribunals.
• Thus, the British practice regarding application
of customary rules of international law within
municipal sphere can be summed up as follows;
5/17/23 83
 Cont…
• Customary rules of international law are deemed to
be part of the laws of England and will be applied by
British municipal courts if;
– Such rules of international law are consistent with British
statutes, whether the statutes were earlier or later than
the customary rule.
– Once the scope of customary rules has been determined
by British courts of final authority, all British Courts are
bound by such customary rule, even though subsequently
a different customary rule of international law develops.

5/17/23 84
 British practice as to Treaties
• As treaties in England are executive acts, the
coming into operation of such treaties within Great
Britain automatically might result in the changing of
the ordinary law of the realm by the executive.
• This might be derogative of the legislative powers of
the Parliament.
• Therefore, in most cases, treaties are not
automatically operative, unless specifically adopted
by an Act of the Parliament.

5/17/23 85
 American Practice

• In America, the rules of international law are also

classified into customary rules of international law and
rules laid down by treaties.
• Practice Regarding customary International law
• The America practice regarding application of
customary rules of international law within the
municipal sphere is similar to the British practice.
• Practice Regarding Rules Laid Down by Treaties
• The American practice here differs from the British
practice.
5/17/23 86
 Cont…
• The American practice depends on two factors:
– If there are provisions of the Constitution of the U.S.A
declaring that treaties are part of American laws;
• If there are no such provisions, America Courts
classify treaties into two categories, namely, self-
executing and non-self-executing treaties.
• A self executing treaty does not require legislation to
be operative within the municipal sphere, provided
that the treaty is made within the powers granted by
the Constitution.
5/17/23 87
 Cont…
• A non-self-executing treaty requires legislation;
therefore, the American Courts are not bound to apply
it unless necessary legislation is enacted.
• Indian practice is similar to British practice.
• Practice of other states: Many states treat customary
rules of international law as part of their municipal
laws. Practice regarding the rules laid down by treaties
varies from state to state. In Tanzania, international
law does not form part of municipal laws unless they
are incorporated by an Act of parliament.
5/17/23 88
 SOURCES OF INTERNATIONAL LAW

• Article 38 of the Statute of the International Court

of Justice (ICJ) provides a definitive list of sources
of international law. It stipulates as follows:
• 38(1), The Court, whose function is to decide in
accordance with international law such disputes
as are submitted to it, shall apply:
(a) International conventions, whether generally or
particularly establishing rules expressly recognized
by the contesting states;

5/17/23 89
 Cont…
(b) International customs, as evidence of a
general practice accepted as law;
(c) The general principles of law recognized by
civilized nations;
(d) Judicial decisions and teachings of highly
qualified publicists of the various nations, as
subsidiary means for the determination of
rules of law.

5/17/23 90
 Cont…
• Therefore, the sources of international law
are:
a. Treaties/Conventions,
b. International Customs,
c. General Principles of law accepted by
civilized states,
d. Precedents and academic writings.

5/17/23 91
 1. Treaties/Conventions
• International treaties may be defined as
agreements between states.
• They resemble contracts in municipal laws in the
sense that the parties create binding obligations.
• They can be bilateral or multilateral agreements.
• Multilateral agreements involve many states while
bilateral treaty is an agreement between two states.
• Nowadays, international treaties are important
source of international law.

5/17/23 92
 Cont…
• According to Starke, there has been an astonishing
development of law making treaties since mid 19 th C.
• The rapid expansion of international law making
treaties was due to the inadequacy of customs to
meet an urgent demands for the regulation of
common interests among states.
• The urgency of these demands arose from the deep
rooted changes which were transforming the whole
structure of international life.

5/17/23 93
 Cont…
• The position of customs which were earlier the major
source of international law was replaced by treaties from
the end of the 2nd ww.
• Treaties are of two types namely law making treaties and
treaty contract.
• Law making treaties are the means through which
international law can be adopted in accordance to the
changing times.
• Treaty contracts are entered between two or more states
and provisions of such treaties are binding on the parties to
the treaty.
5/17/23 94
 2. International Customs
• Customs means the long standing usages which
are regarded as binding on persons who are
covered by them.
• International customs are recognized as one of
the sources of international law.
• The rationale for customs is that states behave
in a certain way because they are convinced
that a particular existing custom which is
binding upon them requires them to do so.
5/17/23 95
 Cont…
• The words custom and usage are often used
synonymously.
• However, there is a difference between usage and
custom.
• Usage is an international habit of action that has not
yet received full legal attestation.
• Usage is the early stage in the development of custom.
Usages can be conflicting while customs cannot.
• When usage crystallizes itself, it becomes a custom.
Custom begins where usage ends.
5/17/23 96
 Cont…
• Usages become custom when they become unified and
self-consistent. As such, custom is a usage which has
obtained a force of law.
• The essence of custom according to art 38(1) of the statute
of the ICJ is that it should constitute evidence of general
practice accepted as law.
• It must be practiced for a long time for a usage to be
accepted as custom.
• The ICJ in Columbia v. Peru (Asylum case) in 1950
described custom as a constant and uniform usage
accepted as law.
5/17/23 97
 The following are the main ingredients of
international customs:
a. Long Duration of practice,
b. Uniformity and consistency of the practice,
c. Acceptance of the practice as law – Opinio
juris sive necessitatis (an opinion of law or
necessity),
d. Generality of the practice.

5/17/23 98
 a) Duration of Practice

• No particular duration is required for practice to

become law provided that the consistency and
generality of a practice are proved.
• Long duration is an ingredient to establish custom
in the scope of municipal Law – in this area
custom ought to be ancient and immemorial.
• In the North Sea Continental Shelf Cases (1969) it
was stated that there is no precise length of time
during which a practice must exist.

5/17/23 99
 b) Uniformity and Consistency of the Practice

• Some degree of uniformity among states’ practice is

essential before a custom can come into existence.
• In Colombia v. Peru, the court felt that in asylum
litigations, states’ practice had been so uncertain and
contradictory as not to amount to a constant and
uniform.
• However, complete uniformity is not required and
minor inconsistencies will not prevent the creation of
a customary rule provided that there is substantial
uniformity.
5/17/23 100
 Cont…
• In the North Sea Continental Shelf Cases the court
noted that states’ practice should be both “extensive
and virtually uniform”
• In Nicaragua V. US (1986), the ICJ indicated that it was
not necessary that all states’ practice be rigorously
consistent in order to establish rule of custom.
• It suffices if such custom is consistent with the rule
and instances of practice inconsistent with the rule
must be treated as a breach rather than a recognition
of a new rule.
5/17/23 101
 c) Acceptance of the practice as law (Opinio juris sive necessitatis)

• Before usage develops to a custom, it must undergo two

tests:
I. The material test;
II. Psychological test.
• Material test: There must be recurrence or repetition of
the acts which give birth to international custom.
• The frequency and length of time for which such acts
have occurred are relevant in determining whether
usage has developed into international custom or not.

5/17/23 102
 Cont…
• Psychological test: This is famously known as Opinio
juris sive necessitatis.
• Recurrence of acts alone is not sufficient for a usage
to become custom; it is also necessary that such
recurrence has been a result of conviction that
there is a compulsory rule behind that recurrence.
• This conviction (opinio juris), is necessary to decide
whether usage or practice has crystallized itself into
a custom.

5/17/23 103
 Cont…
• Therefore, for a usage to become custom, it :
a) Must have been applied for a long time,
b) Such application must be consistent,
c) Must not be conflicting with other existing
rules of international law,
d) States must feel convicted to conform to that
usage. E.g. diplomatic relations among states.

5/17/23 104
 Cont…
• The rule in question must be regarded by
states as being binding in law i.e. states are
under legal obligation to obey such rule.
• This distinguishes custom from the rules of
international comity which are based on a
consistent practice of state not accompanied by
any feeling of legal obligation e.g. a saluting by a
ship at sea of another ship flying a different flag.
• Read the Lotus Case (France v Turkey) (1927).
5/17/23 105
 Cont…
• A classic example is that of all states writing on white
papers.
• The most that can be inferred from such a practice is
that international law does not forbid it; however,
there can be no inference that writing on white paper
is obligatory.
• Similarly, in the Legality of the Use of Nuclear Weapons
Case (1996), the ICJ held that the mere fact that
nuclear weapons have not been used since 1945 does
not signify an understanding that their use is illegal.

5/17/23 106
 Cont..
• States must psychologically feel that they are
bound by a particular existing practice.
• The technical term given to this psychological
element is Opinio juris sive necessitatis, i.e, a
conviction that certain conduct is legally
obligatory.
• While it is easy to speak of this sense of
obligation, proving it is hard.

5/17/23 107
 d) Generality of the practice

• Practice of a particular rule of international law by a large

number of states raises a presumption that the rule is
generally recognized.
• Although the practice must be general, universality is not
required. If majority of states observe a particular practice,
it must be law.
• Much depends on the nature of a particular rule.
• For instance, because rules regulating use of the seas are of
little concern to landlocked states, it is irrelevant whether
such states observed or protested against maritime
practices.
5/17/23 108
 Cont…
• A limited number of states may establish customary
rights and duties among themselves.
• In the Asylum Case, for instance, it was accepted that
the right of diplomatic asylum was limited to Latin
American states, and the Right of Passage over Indian
Territory (Merits) (1960) established that only two
states can create a local custom.
• It is also possible for a single state to establish a rule
of customary law by declaring a particular practice to
which other states accept.
5/17/23 109
 Cont…
• In the Anglo Norwegian Fisheries Case (1951), for
example, the Norwegian government delimited
its territorial sea by drawing straight base lines
linking the outermost points of land, a method
that was contrary to the normal practice.
• The ICJ found nothing in international law to
prevent Norway from determining its base lines
in this manner, primarily because there had been
no objection by other states.

5/17/23 110
 3. General principles of law
• This is a subsidiary source of international law which
can be used only in the absence of treaty or custom.
• When international court is confronted with lack of
law to be applied in a matter before it, reference is
made to domestic law.
• General principles of law contain certain basic
principles based on Common law e.g. the Latin
maxim “salus populi supremo lex esto” which means
that welfare of the people overrides the interests of
individuals or groups.”
5/17/23 111
 Cont…
No one should benefit from his own wrongdoing,
no right arises out of wrongdoing; tribunals must
hear both parties; no one ought to be a judge of
his own case; e.t.c.
• Despite infrequent use elsewhere, this source
has the advantages of prevention of any
argument that international law has ‘gaps’ and of
facilitating the incorporation of broad principles
of equity such as a duty to act bona fide.

5/17/23 112
4. Judicial decisions (Art 38 (1) (d) + 59 of the
statute of ICJ)
• ICJ is the main international judicial tribunal.
• Its decisions do not create a binding general rule of
international law.
• Art 59 of the statute of ICJ makes it clear that decisions
of the ICJ will have no binding force except between the
parties and in respect of that particular case.
• Earlier decisions of the court are not binding on the
court itself and the court is free to deviate from its
earlier decisions except in very special circumstances.

5/17/23 113
 Cont…
• Thus, on principle, the ICJ does not follow the
doctrine of precedent but in practice it follows it.
• Under art 38(1)(d), alleged rules of international law
may be proved by referring to ‘judicial decisions as
subsidiary means for the determination of rules of
law'.
• This article speaks only of subsidiary means, so it
suggests that there are other, principal means.
These are state practice: what states do and say in
their relations with one another.
5/17/23 114