Internals question and answers: Public International law

1. Whether international law is the vanishing point of jurisprudence?

Answer: International law is the vanishing point of Jurisprudence

 Holland has remarked that, international law is the vanishing point of

jurisprudence. In his view, rules of international law is followed by courtesy.
Hence they should not be kept in the category of law.
 According to him, rules of international law cannot be kept into category of
law because they lack of sanction which is essential element of municipal
law.
 According to him, basis of law in municipal law are laws made by sovereign,
there is enforcement of law, there are judges and arbitrator to decide breach
of law.
 This thought process was in alignment of John Austin’s theory.
 So according to Holland, int law cannot be kept into the category of law and
he also subscribers ‘Justice V. R. Krishna Iyer (member of the Indian law
commission) it is sad truism that int law is still the vanishing point of
jurisprudence, this view is not correct.
 According to Dias, int law is obeyed and complied with by the states because
it is in the interest of states themselves.

Criticism: For these object they gave the following arguments:

 The judgments of the int Court of justice are binding on states.

 If any state does not honor the order or judgment of int court of justice, the
security council may give its recommendation against the state for action.
 The Judicial power of int court of justice (voluntarily or compulsory) have
been accepted by the state.
 The judgment of international court of justice has been followed till date.
 The system of enforcement i.e., sanctions and fear has been developed.
 The provision to binding upon the parties to dispute and only in respect of
that dispute.
 The provision to this effect is contend in Article 59 of the international court
of justice statues provides that, the decision of the international court of
justice binding upon the parties to the dispute and only in respect of that
 dispute. Article 94 of the United Nations charter provides that each member
of the U.N. undertakes to complain with the decision of the international
court of justice in any case to which it is a party.
 Article 94 further provides that, if any party to a case fails to perform the
obligation upon it under judgment rendered by the court, the other party
may have recourse the Security Council which may if it deals necessary make
recommendations or decide upon the measures to be taken to give effect to
the judgment.
 Article 36(2) of the international court of justice statute provides that the
state may compulsory jurisdiction upon the court in all legal dispute
concerning (i) interpretation of a treaty, (ii) any question of int law, (iii)
existence of any fact which if established would constitute a breach of an int
obligation (iv) the nature or extent of the reparation to be made for the
breach of an int obligation.
2. Custom as a source of international law.

Answer: International custom: It is one of the prominent source of international

law. It is very oldest and original source. Article 38(1)(b) of the Statute of the
International Court of Justice directs the World Court to apply ‘international
custom, as evidence of a general practice accepted as law.’
According to Starke- “Usage represents the twilight stage of custom, custom
begins where usage ends. Usage is an international habit of action that has yet
not received full legal attestation.”
According to Starke these are two test to identify the difference between
custom and usage:
1.Material test
2.Psychological test
According to Viner, A custom in the international law is such usage as that
obtained the force of law.
Rules related to usage and customs:
1.A custom is the usage which has obtained the force of law.
2.It is not necessary that every usage should always precedes customs.
3.In certain cases usage gives an evidence to international customary law.
4.When a usage is combined with opinio Juris sine-et necessitates.
A rule of customary law exists and it is probably justifiable to say that a usage
reflects a customary rule if it is connected with a practically universal opinio
Juris.
Case: West Rand central gold mining co. V. R (1905)
Court held that for a valid international customs it is necessary that it should be
received by satisfactory evidence that the customs is of such nature, which may
receive general consent of the state and no civilized state shall oppose it.
Essential ingredients of valid custom: following are the main ingredients of an
international custom:
1.Custom is regarded as a form of Tacit agreement: Custom is a habitual course
of conduct that is repeated frequently and voluntarily. When states behave in a
certain way that is generally accepted, they tacitly agree to that behavior. This
tacit agreement can then become a guide for future conduct, and eventually
legally binding.
2.Customary laws can change: For customary international law to change, so
that acts of ‘indirect force’ are now also considered under custom to be
prohibited uses of force, what is needed is the occurrence of sufficient new
state practice and opinio juris to allow the identification of a customary
international law prohibition on indirect uses of force.
3.Uniformity and consistency: the custom should also be uniform and
consistent.
Case: Columbia V. Peru (Asylum case)
The International Court of Justice observed that the rule invoked should be in
accordance with a constant and uniform usage practiced by the states in
question and that this usage is the expression of a right appertaining to the
state granting Asylum and duty incumbent on the territorial state.
Case: Lotus case
The court said that customs must be uniform and constant. It must not be
totally uniform and constant. It must at least be significantly constant state
practice to become customary international law.
4.Long duration: Long duration is generally said to be an essential ingredient of
custom. This is particularly true of custom in Municipal law. In Municipal law, a
custom is required to be ancient and immemorial. But this is not necessary for
an international custom. Article 38 of the Statute of the International Court of
Justice directs the World Court to apply ‘international custom, as evidence of a
general practice accepted as law.’
5.Generality of law: once a practice is established every states bound to those
practice. It is general adoption of practice.
Case: North Sea Continental Shelf case
The International Court of Justice observed that it may be difficult to determine
the number of state to participate in international law before a general practice
can become law because, it is not about majority of votes, the degree depends
on the various subject matters.
6.Opinio Juris et necessitatis: According to Article 38 of the statute of the
International Court of Justice, international custom should be the evidence of
general practice accepted as law. Opinio Juris means and opinion of law or
necessity or in another words, an opinion of law is necessary an obligation to
consider custom as a source of law.
Dixon: According to him, State practice must be accompanied by a belief that
the practice is obligatory. The belief in the obligatory nature of the practice is
called the opinio Juris.
International court of Justice referred its opinion on opinio Juris customary rules
of international law have developed as a result of:
1.Diplomatice relation between the state.
2.Practice of international organs
3.State laws decisions.
4.Treaties between states.
7.Custom can be bilateral or multilateral or general or particular: The
recognition of different customary laws can range from simple bilateral
recognition of customary laws to worldwide multilateral recognition. Regional
customs can become customary international law in their respective regions,
but do not become customary international law for nations outside the region.
The existence of bilateral customary law was recognized by the International
Court of Justice in the Right of Passage Over Indian Territory case between
Portugal and India, in which the court found "no reason why long continued
practice between the two states accepted by them as regulating their relations
should not form the basis of mutual rights and obligations between the two
states".

3. Individual as the subject of international law

Answer: Individuals alone are the subjects of int law: Prof. Kelson, Westale are
the main exponents of this theory.

Views of kelson: (fiction theory)

 In int law the duties of the State are ultimately the duties of the individuals,
there is no difference between int law and State municipal law, both laws are
made to apply to individuals.
 He has analyzed the concept of State and according to him it is a legal
concept which has a mixture of legal rules applicable to all people living
certain area, the obligation of a State in int law is the last resort or the duties
of individuals of which State consist.
 He said that there is no difference between int law and State law. In his view,
both laws apply on the individuals and they are for the individuals. He,
however, admits that the difference is only this that the State law applies on
individuals ‘intermediately’ whereas international law applies upon the
individuals ‘mediately’.

View of Westale is the duties and rights of the state are only the duties and
rights of men who composed them.

The Nuremberg tribunal held that individuals are committing crimes and hence
they are the one who will be punished and int law imposing duties and liabilities
upon individuals as well as upon States has long been recognized.

Criticism: Kelsen’s views appear to be logically sound. But so far as the practice
of the States is concerned it is seen that the primary concern of the int law is
with the rights and duties of the States. From time to time certain treaties have
been entered into which have conferred certain rights upon individuals.

4.Monism and dualism

Answer: Monism: the exponents of this theory emphasize that int law and
municipal law, both are same. According to them, law is a unified branch of
knowledge no matter weather it applied on persons or other entity.

O. Kornell: The objective of all laws is human welfare weather it is state

municipal law or int law.

Main exponents of this theory are Moser, Scelle lauter pacht, Kelsen and
Martens they are called as Monist.

 According to Moser int obligations, Municipal rules are facets of the same
phenomena that to deriving ultimately from one basic norm and belonging to
the unitary order compressed by the conception of law.
 According to Kelsen, int law as well as various state legal system constitute a
unified system of law. The idea he pointed out that one can adopt int law
with the state legal system as a unified system of norms in exactly the same
way as one accustomed to regarding the state legal system as a unity.
 According to ‘Lauter Pacht’ nation exist on its own it is the individuals who
are the fundamental components of society. The rights and obligation of the
‘Municipal legal system’ can be transferred to the int legal system.
 For example: Human rights are available in national and int legal system.
 National and int are not equivalent to each other in the Scenery that right
and obligation under both national and int system delivers the same system
which is to promote the interest of the people.
 Finally according to exponents of this theory believes that:
1.There is close connection between both the laws.
2.All laws are made for individuals
3.While Municipal law binds the individuals and int law binds the state.
4.we cannot ignore that the existing of state is because of individuals and
also sources are similar.
5.Int law respects the constitution of the state and final objects of the both
the laws are welfare of the states and individuals they together form a legal
order therefore both the laws are same.
Criticism: Monism is a very sound theory. It is very difficult to disprove the
views of Kelsen that man lies at the root of all laws. But in actual practice
states do not follow this theory. They contend that Municipal law and int law
 are two separate systems of law. Further, each state is sovereign and as such
is not bound by int law. States follow int law simply because they give their
consent to be bound and on account of other reasons.

Dualism: According to Strake, the main foundation of the exponents of dualistic

theory is that the state municipal law and int law are two different legal systems
because the nature of int law is fundamentally different from state municipal
law.

 The chief exponents of this theory are Triepel, Angillotti, Garner and
Willoughby.
 According to Angillotti the fundamental principle of state municipal law in
compliance of law enacted by the state legislature, while principle of int law
is pacta sunt servanda i.e., to honor the agreements executed between the
states.
 Triepel has pointed out tha following difference between int law and
municipal law:
1.Regarding subject: Individual is the subject of Municipal law whereas state
is the subject of int law.
2.Regarding origin: origin of state law is the will of the state whereas origin of
int law is the common will of the state.
 According to all exponents of this theory, the int law and state municipal law
both are different because:
1.Municipal law are based on legislations passed by the states whereas int
law are the results of custom and treaties.
2.Municipal have the power of sanction whereas int law lacks in a same as
there is absence of sovereign.
3.Municipal law is for the individual difference between the individuals,
organizations and state whereas int law controls of the states and their
relationship with each other.

Criticism: It is not correct to contend that int law is binding only on states. In the
modern period, int law is applicable on States, individuals and certain other
non-state entities. Besides this, the conception of State-will as the source of
state law is incorrect. In fact State-will is nothing but the will of the people who
compose it. Similarly it is not correct to say that the origin or source of int law is
common will of the States.

5. Pacta sunt servanda

In the view of Italian jurist, Anzilotti, the binding force of int law is based on the
supreme fundamental norm or principle, known as pacta sunt servanda. This
means that the agreements entered into by States will be respected and
followed by them in good faith. This is a well-established and recognized custom
of int law. This customary principle of int law has now been codified and finds
mention is Article 26 of the Vienna convention on the law of treaties, 1969.
Article 2 provides that every treaty in force is binding upon the parties to it and
must be performed by them in good faith. According to Anzilotti, this norm is
the foundation of the binding force of int law. Like positivism, the principle of
pacta sunt servanda is also based on the actual practice of States. It emphasizes
the importance of the agreement entered into by States and regards them as
the basis of int law.

Criticism: It cannot but be admitted that pacta sunt servanda is a very important
principle of int law; States must respect the agreements entered into by them
and follow the same in good faith. If it were not so, there would be anarchy and
disorder in the int field. But to assert that the binding force of int law based only
on the principle of pacta sunt servanda is far from truth. It fails to explain the
binding force of customary rules of int law which are not based upon
agreements between States. It has been rightly remarked: “The realization that
int customary law does not rest on agreements and that the tenet pacta sunt
servanda is itself a rule of customary law led to new formulations of the basic
norm. Kelsen himself has decided on a formula which takes into account of
usage as the fact which is the origin of the rules of int law. States ought to
behave as they have customarily behaved.”