LL.B.- II & BA.LL.

B-IV [2017 Pattern] LC 0703 Public International Law

MODULE 01 NATURE AND DEVELOPMENT OF INTERNATIONAL LAW

Meaning and Definition of International Law

Theoretical Basis of International Law

Historical perspective of International Law

Codification of International Law

Meaning and Definition of International Law

INTRODUCTION

International law in its original form as the term connotes, is the sum of the rules
accepted by civilized States, either expressly or tacitly, as determining their conduct towards
each other, and towards each other subjects. It is a body of rules regarded by the Nations of the
world as binding on them in their relations with each other, in peace and wars, and comprises the
rights and duties of sovereign States towards each other. 1 In its broad sweep and expanding
concept and horizon, it governs the relationship of the people of the world, unbounded by

1
Shilpa Jain : Introduction to International Law (2016) Eastern Book Company

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political and geographical constraints, and embraces mankind as a whole, irrespective of color,
creed, relation and political view.
It is impossible today for a state or country, howsoever big, developed and rich to
insulate itself from the rest of the world and to pursue policies, social, political, economic or
external affairs, including military that can be said to be solely in its own national self-interest.
Indeed, perception of what is in one‟s national self-interest is beginning to change. After all, if
there is a bad harvest in the Soviet Union, e.g. chances is that price of gain in the United States
will go up.
The result is that a state must face reactions and interaction of other States and the people of
the world, which are often bitter and even disastrous. The nature and scope on International Law
is wide pervasive enough to bring within its orbit all activities of the states and its subject.
International life is passing through the throes of a great rebirth, brought about by an
unprecedented expansion of knowledge and scientific research in all the known areas of human
intellectual activity.
Man has pushed the frontiers of human experience beyond his widest dreams, almost literally
into the limitless expanse of space itself and the stars. According to Friedman, “International law
is today actively and continuously concerned with such divergent and vital matters as human
rights and crimes against humanity, the international control of nuclear energy, trade
organizations, labor conventions, transport control or health regulations.2

MEANING AND DEFINITION

The term international law was first coined by Jeremy Bentham in 1780. 3 It is
synonymous with the law of nations which corresponds to French and German equivalents droit
international or droit des gens. Bynershoek ascribes the origin of law of nations to reason and
usage basing usage on the evidence of treaties on ordinances. He observes: “Reason commands
me to be equally friendly to two of my friends who are enemies to each other, and hence it
follows that I am not to prefer either in war.”4

2
Gurdip Singh, International Law (2nd ed., 2011)
3
J.G. Strake: Introduction to International Law
4
S.K. Verma: An introduction to Public International Law ( Prentice Hall 1998)

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LAWRENCE
The well-known English jurist defines International Law as “the rules which determine
the conduct of the general body of civilized states in their mutual dealings” 5 Disharmony in
mutual relations among independent sovereign states causes rupture in their dealings.
International Law, therefore, regulates the conduct of states in their mutual dealings, hostile as
well as pacific

OPPENHEIM

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.6
This definition was given by Oppenheim in 1905; however there were significant changes
which took place since last eight to nine decades. Therefore his definition is subject to following
criticism.7
 It is now generally recognized that not only states but public international
organizations have right and duties under International law. The use of term
civilized states is also severally criticized. The criterion of distinguishing so called
civilized states was neither based on long history nor on culture. Even though
China had 5000 years old culture, it was not included in the group of civilized
states. The western states regarded only the Christian states as civilized states this
criteria was undoubtedly wrong. At present there are as many as 195 member
states of the UN. Which include Christian as well as Non-Christian States.
 Even individuals or other private persons may have some rights and duties. After
the Second World War significant changes have taken place in the formal
structure of relation of states as it is moving towards the interest and welfare of
citizens of member states.
 At present it also governs relations between states and international organizations,
between states and private persons, and between international organizations and
private persons.

5
Ibid p. 45
6
Ibid p. 55
7
Ibid p. 60

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 It is now widely recognized that international law consists not only customary and
conventional rules but also of general principles of law. Art. 38 of the Statute of
ICJ mention it.
 The very conception that international law as a body of rules now stands changed
as static and inadequate. Like all living law international law is continuously
reinterpreted and reshaped in the very process of its application by authoritative
decision makers, national and international. International or any law for that
matter is a dynamic concept. Law changes with the change of time and
circumstances. As law, to be living, must be flexible, adaptable and changeable

NEW DEFINITION OF OPPENHEIM (Ninth Ed.)

“International law is the body of rules which are legally binding on states in their
intercourse with each other. These rules are primarily those which govern the relation of states,
but states are not the only subjects of International law. International organizations and, to some
extent, also individuals may be subjects of rights conferred and duties imposed by international
law”8.

Further states are the principle subjects of international law states are primarily, but not
exclusively, the subjects of International Law. To the extent that bodies other than states directly
possess some rights, power and duties in international law they can be regarded as subjects of
international law, possessing international personality.

Moreover not only individuals but also certain territorial or political units other than
states, to a limited extent, are directly the subjects to rights and duties under International law.
Therefore the above concept and definition of international law given in ninth edition of
Oppenheim‟s international law is nearly similar to that given by Starke and Fenwick.
However it is still deficient in one respect because it is still conscipicuos for the salience
regarding general principles of law recognized by Civilized Nations. In view of the forgoing
discussion and taking into consideration the present state of International law, International law

8
V.K. Ahuja, Public International Law (Lexis Nexus 2016)

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may be defined “as the body of general principles and specific rules which are binding upon the
members of international community in their mutual relations”9 The term International law is
very appropriate for it includes States, international Organizations, Individuals and other non-
state entities.

HALL

Certain rules of conduct which modern civilized states regard as binding on them in their
relations with one another10

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.11

PHILIP C. JESSUP

“Law applicable to a State in their mutual relations with States.” He further adds,
International law may also be applicable to certain inter-relationships of individuals themselves,
where such inter-relationships involve matter of international concern.12

KELSEN

International law or the law of Nation is the name of a body of rules which according to
the usual definition regulate the conduct of the States in their intercourse with one another13

CHARLES G. FENWICK

International law may be defined in broad terms as the body of general principles and
specific rules which are binding upon the members of the international community in their
mutual relations.14

9
Ibid p. 46
10
Ibid p. 55
11
Ibid p. 60
12
Ibid p. 62
13
Ibid p. 64
14
Ibid p. 66

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In the olden days social groups did not interact with one another much and with the
advent of the concept of nation state, industrial development and advances made in the fields
of science and technology resulted in the states coming together. International relations were
established and there was a need to regulate these relations between the states.
This necessitated the development of a body of rules which governed the relations
between the states and came to be known as the law of nations or international law and also
as transnational law.

MODERN DEFINITION OF INTERNATIONAL LAW

The 19th century saw the development of modern international law and belongs to the
analytical school of jurisprudence. The analytical school believed that law is the command of the
sovereign and carries force or sanction behind it.

J.G. Starke

A celebrated jurist, J.G. Starke who is a modern writer on International Law has defined,
International Law in the following words: “International Law may be 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:
(a) the rules of law relating to functioning of international institutions or organizations,
their relations with each other and their relations with States and individuals;
(b) 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 international
community15
This definition of Starke is said to be a contemporary definition, because it considers the
ever changing dynamics of International Law and reflects the existing status of International
Law.
On the basis of the above definition we may conclude that international law is a body of
rules and principles which regulate the conduct and relations of the members of international

15
J.G. Strake: Introduction to International Law, (latest Edition)

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community. The contention that States alone are subjects of international law is not only
inconsistent with the changing character of international law but has become completely obsolete
and inadequate. In view of the changing character and expanding scope of international law
today, international institutions, some non-state entities and individuals have also become the
legitimate subjects of international law.
Nevertheless it cannot be denied that even today, as pointed out by Starke, “ it 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”

THEROTICAL BASIS OF INTERNATIONAL LAW

The nature of International Law is not similar to that of National Law. The observation
that International Law is not a Law at all, was made by jurists who were educated and who
developed their views from the angle of Municipal Law Jurisprudence and who expected in
International Law all those aspects which they were used to under Municipal Law. 16 They were
of the opinion that, there could be no other law except Municipal Law. What they failed to
observe is that, Municipal Law is essentially a centralized system, whereas, International Law
operates in a decentralized system.
The term “International Law” was framed at a time when the mindset of jurists was
obsessed with the concept of National Sovereignty, therefore, it can be seen that a kind of stigma
and contempt has been attached to International Law. According to some of the jurists,
International Law lacks a superior political authority, an effective legislative machinery and
sanction or force. These jurists totally deny International Law, a legal character. 17
On the other hand, certain jurists believe that International Law is a true law. Their
reasons for such a view are:
 Firstly, while traditional International Law consisted of customary rules of
International Law, modern International Law consists of positive rules of
International Law, which have emerged from international treaties and
conventions.

16
Malcolm N. Shaw, International Law (7th ed., 2015)
17
S.K. Verma: An introduction to Public International Law ( Prentice Hall 1998)

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 Secondly, when International Law questions arise, States do not rely upon moral
arguments, but rely upon treaties, conventions, precedents and opinions of
experts.
 Thirdly, the United National Organization (UNO) is established on the true
legality of International Law.
 Fourthly, International Law is treated as a part of Municipal Law in some of the
countries, such as, United States of America (USA) and United Kingdom (UK)
Now the question that most often crops up is whether international law is true law or not
and most of the international jurists adhere to the view that international law is really a true law.
The essence of law is the force or sanction behind it, if this is considered correct then
international law certainly has sanctions

THEROTICAL BASIS OF INTERNATIONAL LAW

NATURAL LAW THEORY

POSITIVE LAW THEORY

GROTIUS THEORY
TTHEORYTHEORY

CONSENT THEORY

NATURAL LAW THEORY TTHEORYTHEORY

The jurist who adheres to his theory, are of the view that International Law is a part of the
Law of Nature. In their view, States follow International Law, because it is a part of the Law of
Nature. According to Stark “States submitted to international law because their relations were

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regulated by higher law, the law of nature of which international law was but a part.” 18 In order
to understand this theory, it is necessary to understand the meaning of „Law of Nature‟.
In the beginning the law of nature was connected with religion. It was regarded as the divine
law. The jurist of 16th and 17th centuries secularized the concept of law of Nature. Much of the
credit for this goes to the eminent jurist, Grotius. He expounded the secularized concept of the
Law of Nature. According to him, natural law was the „dictate of right reason‟. 19 His followers
applied the law of nature as an ideal law which was founded on the nature of man as a reasonable
being.
International law considered as binding because it was in fact, natural law applied in special
circumstances. Vattel, a famous jurist of 18th century also expressed the view that natural law
was the basis of International Law. Pufendorf, Christian Thomasius, etc are other prominent
exponents of Law of Nature.20

CRITICISM

The exponents of natural law are of the view that it is the basis of international law and has
conferred binding force on international law.It may, however be noted that each follower of the
law of nature gives its different meaning. They use it as a metaphor.Different jurist give its
different meaning such as, reason, justice, utility, general interest of international community
etc.Hence the meaning of the law of nature is very vegue and uncertain. 21Moreover, the main
defect of this theory is that it is not based on realities and actual practices of the states.

POSITIVE LAW THEORY

Positivism is based on law positivum i,e. law which is in fact as contrasted with law
which ought to be. According to the positivist, law enacted by appropriate legislative authority is
binding. The positivist based their view on the actual practice of the States. In their views,

18
H. L. A.Hart, TheConcept of Law, Oxford, 1961
19
R. Dias, Jurisprudence, 5th edn, London, 1985
20
J. Austin, The Province of Jurisprudence Determined (ed. H. L. A. Hart), London, 1954,
21
Ibid, p.75

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treaties and customs are the main source of International law. The positivism became popular in
18th century.22
In 17th century naturalist and grotians were in (vogue) popularity. The positivist claimed
to have based their theory on the actual practice of States and laid emphasis on law positivum.
i.e. law which is in fact. In the view of the positivist, will of the state is the main source of
International Law. As pointed out by Starke, “International Law can in logic be reduced to a
system of rules depending for their validity only on the fact that states have consented to them.
As pointed out by Brierly, “ The doctrine of positivism teaches that international law is
the sum of rules by Which States have consented to be bound, and that nothing can be law to
which they have not consented to be bound. 23 The Italian jurist, Anzilotti, one of the chief
exponents of the positivist school deserves a special mention. According to him, the binding
force of international law is founded on a supreme principle or norm known, as pacta sunt
servanda.24 In his view the basis of each rule of international law is pacta sunt servanda in some
or the other way

CRITICISM

The concept of will of the state presented by the positivist is purely metaphorical, therefore
the view of positivist that the whole of international law is based on the consent of the state is far
from truth. To make customary international law binding upon the state no consent requires. 25 A
new state entering the community of nations at once becomes bound by the international
customary rules, and it is never suggested that any of these are not binding. There are some
principles of international law which are applicable on states although states did not give their
consent for them.26
According to the positivist view, treaties and customs are the only sources of international
law. However according to Grotians, international law has originated not only from customs and
treaties but also from natural law.

22
Ibid, p.89
23
Ibid, p.101
24
Ibid, p.122
25
Ibid, p.229
26
Art. 2 of UN Charter, Principles of UN are bonding on the non-members.

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GROTIUS THEORY
Hugo Grotius was born in Holland in 1583, at the age of 15, he took the degree of Doctor of
Laws at the University of Leyden. In 1609, his first work, Mare Libertum was published. In this
book he strongly argued for freedom of the sea-going.27 This was very significant because at that
time maritime powers were appropriating different parts of the sea. In 1625, he published his
most famous work, De Jure Belli ac Pacis (i.e. on the law of war and peace). As pointed out by
Oppenheim, “The science of modern law, of nations commences from Grotius‟s work, De Jure
Belli ac Pacis, because it consist of a fairly complete system of law.28
It has following four main characteristics:
1. In the first place he advocates that state should also be subject to the same rules which
regulate the individuals.
2. Secondly he formulated the „ law of peace‟ which subsequently became the basis of his
whole system.
3. Thirdly he contended that States violating the law may be punished by other states.
4. Fourthly in his view natural law (i.e. right reason) was the basis of determining rules for
the rightful conduct of States.
Grotius‟s work obtained such a worldwide influence that he is correctly styled the “Father of
the Law of Nations.”

CONSENT THEORY

In the view of the supporters of this theory, consent of States is the basis of international
law. States observes rules of international law because they have given their consent for it.
Positivist has given much support to this view. The chief exponents of this theory are Anziloti,
Triepel, Oppenheim, etc. This theory fails to explain the basis of customary international law. In
the view of the supporters of this theory, States are bound to observe customary rules of
international law, because they have given their implied consent for their acceptance. 29 This

27
Supra Note 6, pp. 280-281
28
Ibid, p. 197
29
H. Kelsen, General Theory of Law and State, London, 1946, pp. 227

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theory has been subjected to severe criticism by many jurists, such as, Starke, Brierly, Kelsen,
Fenwick etc.

CRITICISM

As pointed out by Starke, in practice it is not necessary to prove that the other State or
States have given their consent in regard to a specific rule of international law. According to
Prof. Smith, all States are bound by international law, no matter whether they have given their
consent or not. In regard to customary rules of international law, the basis of implied consent is
far from correct.30 The States are bound by general international law even against their will.
Prof. Kelsen has cited the example of new States, which get rights and duties under
international law immediately after becoming the subject of International law. 31 Theory of
consent fails to explain the case of recognition of new State. The granting of recognition is the
act of other States and hence it would be wrong to say by getting recognition, the recognized
state has given its consent in respect of international law.

HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW

ANCIENT ERA

International law in one shape or another has existed in almost all times and ages. It is
true that the concept of family of nations or one world was new to the ancient world, but
nevertheless nations came into contact with one another and as a result of the contact there
sprang up international trade, rules regarding the declaration and conduct of war, treaties and
diplomatic privileges. The history of the Indians, Jews, Greeks and Romans is replete with
such instances.

With the advance of civilization the rules regulating the dealings of civilized states with
one another have become very articulate so much so that it has now become impossible for
nations, big or small, to live in isolation.

30
Ibid, p.222
31
Ibid, p.234

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HINDUS

Traces of International Law in the form of privilege of ambassadors, treaties and the rules
governing the declaration and conduct of war are to be found even in the history of ancient
India.

The epic of Ramayana and Mahabharata although preaching in the main, religious
discourses, make pointed references to rules and usages governing war, peace and neutrality
based on Dharma. They attach due importance to the inviolability of a duta or ambassador
and also heralds in battle.32

The Bhagavadgita- the book of hindu scripture whose teaching have gain appreciation far
beyond the borders of India, deals with full measures with just and unjust wars. Lord Sri
krishna thus address Arjuna who was overwhelmed with pity: “there is nothing more
welcome for a man of the warrior class than a righteous war and it is only the lucky among
the kshatriyas, who gets such an unsolicited opportunity for war, then, abandoning your duty
and losing your reputation, you will incur sin.” (Ch. II, Verses 31 to 33)33

The need for a prior declaration of war by blowing of conches by the warriors on both
sides has also been emphasized there. Elaborate rules were laid down in the Arthashastra of
Kautilya and Nitishastra of Kamandaka for the conduct of Government and foreign affairs.34

Kautilya advocated the abandonment of the principles of morality for the application of
Dharma in the war. He advocated adoption of all means, whether fair or fouls, during war.

Manu distinguishes between righteous and unrighteous wars and observes that it is the
highest merit of a valorous Kshatriya to die in a righteous war. It was forbidden to kill or
wound enemy persons who had surrendered. Inviolability of temples was recognized by him.
And he granted immunity to prisoners of war and non-combatants. Hindus had great regard
for treaties.35

32
Gurdip Singh, International Law (2nd ed., 2011)
33
Ibid, p.45
34
Ibid, p.48
35
Ibid, p.52

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MOHAMMEDAN
S
The Mohammedan rulers in India had also developed relations with some of the foreign
States. They received ambassadors from European Countries and also entered into treaties.
The Muslim rule is full of instances where war is known as Jehad was waged for the
protection of Islam against an alien or hostile non-muslim State.36

The Muslim rules governing war recognized the distinction between combatants and non-
combatant and gave protection to womens, children, the aged and the infirm during the jehad.
Prisoners of the war remained at the mercy of the Imam who either enslaved or killed them.
Respect was paid to treaties as well.37

JEWS

The Jews had the same laws for foreigners residing on Jewish territory as for themselves.
“Love the strangers: for ye were strangers in the land of Egypt.”38 A reading of the bible,
however, illustrates that on account of their monotheism the Jews did not recognize other
nations who professes with in polytheism as their equals.39 With friendly nations the Jews
had international relations. They faithfully observed treaties and considered ambassadors as
sacrosanct.

GREEKS

The Greeks were more civilized than heir neighbors whom they regarded as
barbarians. Their notions of superiority prevented them from developing mutual relations
with their neighboring nations.40 The Greeks lived in numerous small city states which were
independent of one another. The inhabitants of these states belonged to the same race, blood

36
Ibid, p.56
37
Ibid, p.60
38
Ibid, p.66
39
Ibid, p.70
40
Ibid, p.75

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and religion. This close affinity in course of time united these independent fragments into a
community of states which observed certain rules inter se in times of war and peace.41

They frequently resorted to arbitration for settlement of their disputes. They treated
heralds and priests who carried the holy fire as inviolable. Commenced no war without a
previous declaration, gave burials to warriors dying in the battlefield. Exchanged the prisons
of war or let them off on payment of ransom. Special privileges were given to ambassadors
who were ceremoniously received and their persons treated as inviolable.

The Greeks developed theories concerning proper conduct of war. Their expositions
of these theories and the surviving records of Greek practice in war furnished authority to
early writers on International law for propounding their rules.

ROMANS

The Romans had a set of 20 priests, termed fetials who managed relations with foreign
states by the laws called jus fetials. The Romans had one set of laws which were applicable
exclusively to themselves, viz., jus civile, the law applicable to Romans, and another set for
foreigners, viz., jus gentium, the which they had in common with other nations.42 The jus
gentium: a Latin term from which the phrase law of nations has been derived, was later on
strengthened by the development of jus natural, which was the law that was constituted by
right reason, common to nature and to man.

With the introduction of the general principles of law and justice having a universal
application in jus gentium, it later on identified itself with jus naturale and the two terms
became synonymous in Roman law. Roman law recognized four just reasons for war, viz.,43

 Violation of the roman dominions

 Violation of ambassadorial privileges
 Violation of treaties, and
 Support given during war to an opponant by a hitherto friendly State.

41
Ibid, p.78
42
Ibid, p.80
43
Ibid, p.82

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War could be ended according to romans through a treaty of peace, by surrender or

through conquest of the enemy‟s country

DEVELOPMENT OF INTERNATIONAL LAW DURING 16TH AND 17TH

CENTURIES

According to Brierly the term International is a modern concept and it originate 44only
during sixteenth and seventeenth centuries from the modern European State System. Therefore to
understand the main features of this modern state system, it is necessary to understand the nature
of International Law. The middle ages witnessed many obstacles in the growth of strong
centralized Governments. The two main such obstacles were Feudalism and the Church.

The Treaty of Westphalia of 1648, ended the thirty years‟ war of religion and results in to
the beginning of the acceptance of new political order in Europe. Political developments
were leading to the separateness and irresponsibility of every state. 45 Meanwhile there were
certain counter factors leading to intimate and constant relations of states with one another
According to Brierly the following were such causes46

 The impetus to commerce and the new route to indies

 The common intellectual background fostered by the renaissance
 The sympathy felt by co-religionist in different states of one another, from which
arose a loyalty transcending the boundaries of State
 The common feeling of revulsion against war, caused by the savagery with which the
wars of religions were waged.

All these causes co-opted to make it certain that the separate state could never be accepted as
the final and perfect form of human association and that in the modern as in the medieval
world it would be necessary to recognize the existence of the wider unity. The rise on
international law was the recognition of this truth.

44
Oppenheim‟s, International Law, (9th Ed. 1992) p. 44
45
Ibid, p.48
46
Ibid, p.55

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CONTRIBUTION OF HUGO GROTIUS

Hugo Grotius was born in Holland in 1583, at the age of 15, he took the degree of
Doctor of Laws at the University of Leyden. In 1609, his first work, Mare Libertum was
published. In this book he strongly argued for freedom of the sea-going.47 This was very
significant because at that time maritime powers were appropriating different parts of the sea.
In 1625, he published his most famous work, De Jure Belli ac Pacis (i.e. on the law of war
and peace).

As pointed out by Oppenheim, “The science of modern law, of nations commences from
Grotius‟s work, De Jure Belli ac Pacis, because it consists of a fairly complete system of law.
It has following four main characteristics:48

 In the first place he advocates that state should also be subject to the same rules which
regulate the individuals.
 Secondly he formulated the „law of peace‟ which subsequently became the basis of
his whole system.
 Thirdly he contended that States violating the law may be punished by other states.
 Fourthly in his view natural law (i.e. right reason) was the basis of determining rules
for the rightful conduct of States.

Grotius‟s work obtained such a worldwide influence that he is correctly styled the “Father of
the Law of Nations.”

DEVELOPMENT OF INTERNATIONAL LAW DURING 18TH CENTURY

17th and 18th Centuries were conspicuous for giving birth to three different schools of
International Law, namely, the Naturalist, the Positivist and the Grotians. Naturalists are
those writers who were of the view that Law of Nations is only a part of the law of nature.49
They deny that there is any positive law of Nations. In order to understand the view of

47
W. S. M. Knight, The Life and Works of Hugo Grotius, London, 1925, and „Commemoration of the Fourth
Century of the Birth of Grotius‟ (various articles), 182 HR, 1984, p. 24
48
Ibid, p.35
49
Ibid, p.66

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Naturalist, it is necessary to understand the meaning of „Law of Nature‟. In the beginning law
of nature was connected with the religion. It was regarded as the divine law.

The jurist of 16th and 17th centuries secularized the concept of law of Nature. Much of the
credit for this goes to the eminent jurist, Grotius. He expounded the secularized concept of
the Law of Nature. According to him, natural law was the „dictate of right reason‟.50 His
followers applied the law of nature as an ideal law which was founded on the nature of man
as a reasonable being. International law considered as binding because it was in fact, natural
law applied in special circumstances.

Vattel, a famous jurist of 18th century also expressed the view that natural law was the
basis of International Law. 51 The positivist on the other hand, contended that it was the
positive law of nations which had real force law. According to them, positive law of nations
was the outcome of custom and International treaties.

Positivism is based on law positivum i,e. law which is in fact as contrasted with law
which ought to be. According to the positivist, law enacted by appropriate legislative
authority is binding. The positivist based their view on the actual practice of the States. In
their views, treaties and customs are the main source of International law. The positivism
became popular in 18th century. In 17th century naturalist and grotians were in (vogue)
popularity.52 The positivist claimed to have based their theory on the actual practice of States
and laid emphasis on law positivum. i.e. law which is in fact.

They emphasized on law which is as distinct from law which ought to be. In their view,
therefore, law enacted by appropriate legislative authority is binding. As regards the grotians,
as it has been pointed out earlier that they stood in between the naturalist and the positivist.
They maintained the distinction between the natural and positive law of nations as
expounded by Grotius but in contradistinction to Grotius, they give equal importance to

50
Ibid, p.70
51
Ibid, p.78
52
Ibid, p.88

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natural and the positive law. In their view, international law is the outcome of the law of
nature as well as custom and international treaties.53

Thus they had shared certain things with both the naturalist and the positivist but differed
with them in so far as they gave equal importance to the natural and positive law of Nations.
The most prominent among the Grotians were Christian Wolf (679-1754) and Emerich de
Vattel (1714-1767).

DEVELOPMENT OF INTERNATIONAL LAW DURING 19TH and 20th CENTURY

The relation of the states and their mutual contracts had greatly increased during the
said period and may rules and principles were formulated on the basis of the practice of
States and the needs and requirements of the changing times and circumstances. This is
discussed under following heads.

CONGRESS OF VIENNA, 1815

It was the first important European conference where may rules of International law were
formulated, e.g. rules relating to international rivers, classification of diplomatic agents, etc.54

DECLARATION OF PARIS, 1856

The declaration of Paris was a law making treaty in which may rules relating the naval
warfare were laid down. Attack on undefended people during naval war was prohibited. It
was also laid that enemy ships could be sunk or otherwise destroyed during war but before
doing so, precaution should be take to save the life of the crew of the ship.55

53
Year Book of International Law Commission (1973), p. 122
54
Ibid, p.80
55
Ibid, p.88

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GENEVA CONVENTION, 1864

Many rules relating to the wounded and sick members of the armed forces during land
warfare were laid down in Geneva Convention of 1864. killing of wounded soldiers was
prohibited and rules were made for providing certain facilities to them.56

HAGUE CONFERENCES OF 1899 AND 1907

Hague Conferences of 1899 and 1907 are rightly reckoned as great landmarks relating the
development of International law. They resulted in the adoption of several conventions on
various subjects of international concern. These conferences emphasized the settlement of
international disputes through peaceful means. Many rules relating to land warfare and naval
warfare were formulated. Bombardment over undefended people was declared illegal.57

Endeavour was also made to determine the limits of armament and to achieve ultimately
disarmament. Duties and rights of neutral states during naval war were also clearly laid
down. Yet another great contribution of Hague conference was the establishment of the
Permanent Court of Arbitration. It contributed much in the attainment of the objective of
international law to settle international disputes through peaceful means.

THE LEAGUE OF NATIONS, 1919

After the First World War, the Nations of the world felt the need of an International
Organization which might be able not only to regulate amicably the mutual relations among
the nations but could also prevent future wars. The League of Nations was established under
the treaty of Versailles, 1919. For the first time it imposed certain restrictions upon the
nations right to resort to war at their will.

It provided that before resorting to war, they would first settle their disputes through
arbitration, judicial settlement, or enquiry by council. If their disputes were not solved
through these means, they would not go to war until the lapse of three months after such
failure. If any member of the League going to war in violation or disregard of the provisions

56
Ibid, p.90
57
Ibid, p.95

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of the covenant could be deemed to be enemy of the whole League of Nations. 58 It

established the Permanent Court of International Justice which contributed much to the
progressive development of International Law. Since the establishment of League of Nations
the development of International law has been accomplished primarily through the creation
of International Organizations by law making treaties and the conclusion of law-making
treaties through International Organizations.

GENEVA CONVENTION, 1929

This convention was signed by 47 states of the world. Many rules relating to the
treatment of prisoners of war were laid down in this convention. Reprisal against the
prisoners of war, cruelty towards them and collective penalties against them were prohibited.
Rules were also formulated for providing medical and other facilities to the prisoners of
war.59

SECOND WORLD WAR

Almost all the above rules of International Law were flagrantly violated during the
Second World War which turned into a „total war‟. It however, sowed the seeds of a future
world organization because the devastating effects and hair-splitting experiences of the war
once more compelled the nations of the world to make their attempt afresh to establish an
International Organization. Which may ensures lasting peace to the world and establish rule
of law in the international field.60

Consequently the Second World War indirectly led to the eventual establishment of the
United Nations.

UNITED NATIONS, 1945

The united nations Charter came into force on October 24, 1945, and thus the United
Nations was established. In the beginning the number of its members was only 51 which has
now swelled to 193. The United Nations is an International Treaty which regulates the
58
Ibid, p.102
59
Ibid, p.110
60
Ibid, p.122

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mutual relations of its members. As per Art. 13 Para1 (a) of the Charter provides that the
General Assembly shall initiate studies and make recommendations for the purpose of
promoting international Co-operation in the political field and “ encouraging the progressive
development of international law and iots codification”. For this purpose, the General
Assembly established the International Law Commission which conducts study and research
in different aspects of International Law and submits its reports to the General Assembly.

Accordingly International Law Commission has performed its task with great distinction.
Declarations have been enunciated, important principles have been formulated, new
conventions have been drafted, and the ways and means for making evidence of customary
law more readily available received the attention of commission also. It has also prepared
draft articles of several conventions and treaties which have been eventually adopted. It has
thus credibly performed the task of assisting the General Assembly in “encouraging the
progressive development of International Law and its Codification”.

The more important of such treaties and conventions are

 Vienna Convention on Diplomatic Relations, 1961

 Vienna Convention on Law of Treaties, 1969
 Vienna Convention on State Succession in respect of Treaties, 1969
 UN Convention Against Removal of All Sorts of Discriminations against Women
 International Convention on Protection and Punishment of crimes Against
Internationally Protected Persons (including Diplomatic Agents), 1973
 International Convention on Representatives of International Institutions, 1975
 International Convention on State Property, Archives and Debts, 1983
 UN Convention on the Law of Sea, 1982
 International Convention for the Suppression of Financing of Terrorism, 1999
 International Convention for the Suppression of Acts of Nuclear Terrorism, 2005

Thus after the establishment of the United Nations the development of International Law
has been effected mainly through multi-lateral law making treaties. The chief objective of
International law is to establish the rule of law in international field and to ensure the

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maintenance of international peace and security. It is possible only when it adopts itself to the
changing times and circumstances.

CODIFICATION OF INTERNATIONAL LAW

INTERODUCTION

By the term codification we ordinarily mean the process reducing the whole body of law
into code in the form of enacted law. It generally connotes a systematic arrangement of the
rules of law which are already in existence According to Sir H. Lauterpacht, “The task of
codifying International Law means a process of bringing about an agreed body of rules
already covered by customary or conventional agreement of State.61

MEANING OF CODIFICATION

Codification means any systematic statement of the whole or part of the law in written
forms, and that it does not necessarily imply a process which leaves the main substance of
law unchanged, even though this may be true od some cases. In other words, codification
properly conceived is itself a method of the progressive development of law.‟ Codification is
the process of translating customary law and the rules arising out ofdecisions of tribunals into
statutes or conventions with little change or no change at all ofthe law.

The thought of codifying the law was initially put forth by Jeremy Bentham at theend of
the eighteenth century and was later carried into the field of international law. It isthe
procedure of consolidation of statute law or a statute collecting all the law relating to
aspecific area and arranging them systematically in written form.

Codification was considered significant because it would enable the lawyer and the
courts of law to easily and conveniently trace the law of a particular field.In 1789 Jeremy
Bentham in his book, The Principles of Morals and Legislation,introduced codification of
law. Later the Institute of International Law which wasestablished in Belgium produced
several drafts on different topics of international law andin the same year, Association for the

61
R. P. Dhokalia, The Codification of Public International Law, Manchester, 1970

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Reform and Codification of the Law of Nations wasestablished. This Association even today
continues to function by the name ofInternational Law Association.

The first Hague Conference began the work of codificationof international law and
the second landmark development was the codification under theLeague of Nations and later
under the United Nations.62 The General Assembly of the UnitedNations in pursuance of one
of its important functions of encouraging the progressivedevelopment of international law
and its codification established the International LawCommission. Subsequently the General
Assembly in 1966 established a working group of36 governmental experts in the field of
international trade law and thus the United NationsCommission for International Trade Law
(UNCITRAL) came into existence.63

INTERNATIONAL LAW COMMISSION

Established by General Assembly (GA) in 1947 5n 6rder to promote the progressive

development of international law and its codification. It consists of 34 members elected by
GA for five-year terms (eligible for re-election). It holds Meeting annually. Members serve
in individual capacity (not as representatives of their Governments). Members must have
recognized competence in international law, Commission members represent the principal
world legal systems (geographic representation ensured).

CHARTER OF THE UNITED NATIONS, ARTICLE 13(1)

Governments drafting the Charter of the UN were opposed to conferring on the UN

legislative power to enact binding rules of international law However, strong support for
conferring on the GA the more limited powers of study and recommendation, which led to
the adoption of article 13(1) of the Charter: “The General Assembly shall initiate studies and
make recommendations for the purpose of encouraging the progressive development of
international law and its codification.” To discharge its responsibility under article 13, the
GA established ILC

62
The Work of the International Law Commission, 4th edn, New York, 1988
63
Ibid, p.34

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STATUTE OF THE INTERNATIONAL LAW COMMISSION

Article 1(1): Commission shall have for its object the promotion of the progressive
development of international law and its codification;

Commission entrusted with both progressive development and codification of international

law (Article 15 of Statute):

Progressive development refers to the preparation of draft conventions on subjects

which have not yet been regulated by international law or where the law has not yet been
sufficiently developed by state practice;

Codification refers to the more precise formulation and systematization of rules of

international law in fields where there already has been extensive State practice precedent
and doctrine.

ILC RELATIONSHIP WITH GOVERNMENTS

Governments play an important role at every stage of the work of progressive

development of international law and its codification such as

 Provide information at outset of ILC's work;

 Comment upon drafts;
 May decide upon the initiation or priority of work; and
 Determine outcome of the Commission‟s work.

ILC Statute gives Governments an opportunity to share views at every stage of Commission's
work

Article 16(c) (progressive development) requires ILC, at the outset of its work, to
circulate a questionnaire to Governments, inviting them to supply data and information
relevant to items included in plan of work;

Article 16(g) requires Commission to publish a document containing drafts and

explanations, supporting materials and information supplied by Governments in
questionnaire;

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Article 16(h) and (i) invite Governments to submit comments on this document,
which are taken into consideration by the Commission in its final drafts; Similar provisions
exist regarding codification (articles 19, 21 and 22);

Written comments submitted by States are supplemented by comments made during the
annual debates of the Sixth Committee on the ILC‟s report to the GA;

After the ILC has submitted its final draft to the GA on a topic, the GA normally requests
comments of Governments on that draft. Such comments are considered by the Sixth
Committee in connection with consideration of the topic prior to convening a diplomatic
conference or in connection with the elaboration of a treaty by the GA itself.

ILC RELATIONSHIP WITH GENERAL ASSEMBLY

The ILC submits to the General Assembly a report on the work done at each session;
Sixth Committee annually considers the ILC's reports; General Assembly, usually on the
recommendation of its Sixth Committee, has: Requested ILC to study a number of topics or
to give priority to certain topics, Rejected or deferred action in respect of certain drafts and
recommendations of the ILC, Decided to convoke diplomatic conferences to study and adopt
draft conventions prepared by ILC, and Decided to consider and adopt draft conventions
prepared by the ILC.64

ILC RELATIONSHIP WITH OTHER BODIES

In addition to its close working relationship with the GA and its Sixth Committee, the
ILC also maintains cooperative relationships with other bodies, including:

 Principal organs of the UN other than the GA;

 Specialized Agencies;
 Official bodies established by intergovernmental agreement (Pan American
Union);
 Inter-American Juridical Committee;
 Asian-African Legal Consultative Committee;

64
See articles 2, 3 and 8 of the Statute of the ILC

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 European Community on Legal Cooperation; and

 Arab Commission on International Law.

SINCE 1949 THE COMMISSION HAS SUBMITTED FINAL

DRAFTS/REPORTS ON

Sr. No. Title of Report

1 Regime of the High Seas
2 Regime of territorial Waters
3 Nationality, including statelessness
4 Law of treaties
5 Diplomatic relations and immunities
6 Consular relations and immunities
7 Arbitral procedure
8 Succession of States in respect of treaties
9 Succession of States in respect of matters other than treaties
10 Jurisdictional immunities of States and their property

ILC REPORTS RESULTING IN KEY TREATIES

NAME OF TREATY SUBJECT MATTER

Rome Statute of the International Criminal Creates permanent court on most
Court, 1998 serious crimes against humanity
Vienna Convention on Diplomatic Relations, Defines conduct/standards of
1961 diplomatic relations
Vienna Convention on the Law of Treaties, 1969 Codifies treaty law

Convention on the Prevention and Punishment of Protect diplomatic immunities and

Crimes against Internationally Protected privileges
Persons, including Diplomatic Agents, 1973

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