LEGAL STUDIES – XII

Unit 6 – INTERNATIONAL LAW

A. Introduction
Each state (country) has its own set of domestic laws that regulate the conduct of its citizens
and govern private, social, and commercial activities, as well as state functions. These are
called municipal (local) laws.
However, when disputes arise between states or across international borders, different rules
apply. International Law provides a framework to regulate such disputes, maintaining order
and harmony between different states and private parties across the world.

B. Historical Evolution of International Law

The term International Law was coined by philosopher Jeremy Bentham in 1780.
Dutch jurist Hugo Grotius, is known as the Father of International Law. Hugo Grotius
advocated for free access to the seas in his work On the Law of War and Peace.

International Law vs. Domestic Law

International Law operates outside the control of any single nation, different from Domestic
Law in several ways:
1. Nature of the United Nations (UN):
o The United Nations General Assembly includes representatives from around
190 countries but cannot make binding laws, except for matters like budget
approval and membership.
2. ICJ Jurisdiction:
o The International Court of Justice (ICJ) only handles cases with the consent of
the states (countries) involved.
3. No Enforcement Mechanism:
o There is no global police force or executive authority to enforce the
International Law.
4. Power of Veto:
o The five permanent Security Council members (China, France, Russia, the UK,
and the US) can authorize the use of force for enforcement actions in specific
cases to compel the countries states to comply with its decisions where there is
an act or threat of aggression.
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 Thus, International Law is often considered weaker than Municipal Law (Domestic Law).

Perspectives on International Law

• Oppenheim's View: International law is a valid legal system.
• Austin's View: It is not true law, as it lacks enforcement of law by a superior authority.

International Law and International Relations

States normally follow International Law to maintain their reputation and avoid negative
consequences. Violating treaties can harm the state's credibility and lead to unfavourable future
relationships with other states.
Following international law promotes stability and cooperation in global affairs.

Globalization and the Expansion of International Law

The rise of international and regional organizations has expanded the scope of International
Law. Example:
• Environmental agreements have converted from bilateral to multilateral.
• Kyoto Protocol (1997) was adopted to combat global warming, encouraging the
countries to reduce greenhouse gas emissions.
International Law is based on equality between states, however, more powerful nations play
a larger role in its creation and enforcement.

C. What is International Law?

In International Law, each country is referred to as a “state.”
According to Bentham, International Law is a set of rules that governs relationships between
different states (countries). However, modern International Law also covers individuals and
international organizations.
International Law is also known as Law of Nations.
International Law governs how countries interact with one another, their citizens, and
businesses across the world. It includes treaties and agreements between nations and sets rules
for international obligation towards one another.

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 Features of International Law:

• Consent-Based Governance:
States are usually bound by International Law only if they consent to it.

• Exceptions to Consent:
o Customary International Law: Well-known customs of different countries.
o Jus Cogens: Latin term “compelling law,” these are fundamental norms of
International Law that are universally recognized as fundamental principles and
cannot be changed by agreements (e.g., prohibitions against slavery and
genocide).

Types of International Law:

1. Public International Law:
Public International Law governs relationships between states and international organizations,
dealing with issues such as:
• Peace and Security
• Trade
• Human Rights
• International Crimes
• Extradition
• Natural Resources
Public International Law and the WTO:

• World Trade Organization (WTO), established in 1995 in Geneva, Switzerland.

• WTO 164 members, regulates global trade and helps resolve trade disputes among
different nations.
• It aims to support and promote fair trade, help producers of goods and services,
exporters, and importers to conduct their business.
• WTO also helps to settle the trade disputes.

2. Private International Law (Conflict of Laws):

Private International Law focuses on resolving disputes between private individuals or private
entities across different countries.
Private International Law addresses questions like:
• Which country's court should hear a case?

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 • Which nation's laws should apply based upon the jurisdiction?
Example: If a couple from different countries has a marriage dispute, Private International
Law determines which legal system should apply on the case.

Difference between Public International Law and Private International Law

Public International Law Private International Law

Regulates legal disputes between

Governs relations between countries
Definition private individuals or private entities
or international organizations.
across the world.

Deals with issues like treaties,

Focuses on jurisdiction, and
Scope agreements, diplomatic relations,
enforcement of foreign judgments.
and human rights.

Parties States (countries) or international Private individuals or entities from

Involved organizations. different countries.

Maintains international peace, Resolves legal disputes which are

Purpose
security, and cooperation. international in nature.

Through international courts (e.g., Through national courts applying

Enforcement
“International Court of Justice” ICJ) private laws.

UN Charter, Geneva Conventions, Disputes over contracts, divorce

Examples
Paris Agreement. involving foreign nationals.

International Bodies Harmonizing Private Laws of Different Countries:

Several organizations work to align private laws across countries, such as:
• Hague Conference on Private International Law: Develops conventions on matters
related to private law.
• UNCITRAL (United Nations Commission for International Trade Law): Works on
international trade laws, including arbitration rules.
International Conventions on Private International Law:
• CISG (United Nations Convention on Contracts for Sale of International Goods)
– Vienna Convention: Governs international sale of goods, simplifying legal disputes.
• UNCITRAL Model Law on Arbitration: Provides a legal framework for international
arbitration.

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D. Sources of International Law
Unlike Domestic Law, which is typically based on legislations and court judgments, identifying
the sources of International Law is complex.
International Law doesn't have a single authority to create binding laws, so multiple sources
come into play.
Article 38 (1) of the ICJ Statute (International Court of Justice)
Article 38 (1) outlines how the International Court of Justice (ICJ) resolves disputes based on
International Law. It divides the sources of law into primary and secondary categories:
Primary Sources
1. Treaties and Conventions: Agreements between states that establish rules recognized
by them.
2. International Customs: General practices followed by states, accepted as legal
obligations.
3. General Principles of Law Recognized by Civilized Nations: Principles of fairness
and justice common to most legal systems.
Secondary Sources
1. Judicial Decisions: Previous rulings by international courts.
2. Teachings of Experts (Publicists): Writings by renowned legal scholars, used to
understand and clarify legal principles.
Role of General Principles
• General Principles fill gaps where treaties or customary laws are silent.
• Examples may include concepts of justice and fairness.
Application Beyond ICJ
Although Article 38 (1) is limited to the ICJ, it is widely accepted as a general guide to
understanding the sources of international law.
This ensures that international disputes are resolved using a combination of agreed rules,
common practices, and general legal principles.

Ipso Facto
The Latin phrase ipso facto means “by the fact itself.”
It means that a specific outcome directly results from an action, without needing any further
evidence or explanation.

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Sources of International Law Sources
Primary Sources:
1. Treaties/International Conventions
o Legally binding written agreements between states, involving specific legal
obligations.
o They must be entered in good faith.
o Examples: The UN Charter and trade agreements between countries.
How Treaties Become Binding:
• Adoption: Requires a two-thirds majority at an international conference.
• Expressing Consent:
o By Signature: Authorized representatives sign the treaty.
o By Exchange of Instruments: Parties exchange documents agreeing to terms.
o By Ratification: Formal approval by the state, through the President or the
legislature.

2. Customary International Law

o Customary International Law is developed through general state practices
accepted as law.
o Customary International Law refers to binding legal rules that have developed
on regional levels through continued practice.
o Custom is usually derived by:
▪ State Practice: Repeated and widespread conduct by states.
▪ Opinio Juris: States follow the custom because they believe it is legally
required.
Case: North Sea Continental Shelf Cases (1969)
• Dispute between Germany, Denmark, and the Netherlands over oil-and-gas rich North
Sea areas.
• This case established that both the State Practice and Opinio Juris are necessary to
form Customary International Law.
• This case highlighted that a custom does not require long practice but must be consistent
and believed to be a legal obligation.

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 Secondary Sources:
1. International Court of Justice (ICJ) Decisions
o Article 59 of the Statute of the ICJ states that decisions of the ICJ apply only to
the parties involved and are not binding on other cases.
o Therefore, past decisions of the ICJ are not binding.
2. Teachings of Publicists
o Writings by highly respected legal scholars help clarify and understand the
international legal rules.
This framework provides a structure for resolving international disputes and understanding
legal obligations between the states.

E. International Human Rights

Development of International Human Rights
• The Second World War had a great impact on the development of the human rights law
due to intense destruction, and there was a need for global protection of human rights.
• This led to the rise of widespread activism, addressing these human rights.
Conventions and Treaties on Human Rights
• International Covenant on Civil and Political Rights (ICCPR):
o Protects fundamental rights like the right to life, freedom of thought, and
prohibition of slavery.
o Certain rights (like the prohibition of torture and genocide) are fundamental in
nature and they have become a part of the customary international law,
therefore, they do not require any treaties to be enforced.
• Universal Declaration of Human Rights (UDHR) 1948:
o A foundational document for human rights law, though not legally binding.
o Human Rights include:
▪ Right to liberty (Article 3)
▪ Equality before the law (Article 7)
▪ Prohibition of torture (Article 5)
▪ Right to work and equal pay (Article 23)
▪ Right to social security (Article 25)

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 o Despite the non-binding nature of UDHR, it has been widely referred by courts,
including the International Court of Justice (ICJ).
• Vienna Declaration and Programme of Action (1993):
o This emphasized that all human rights are universal, interdependent, and
interrelated.
o This led to the creation of the post of the UN High Commissioner for Human
Rights to coordinate and recommend UN activities on Human Rights.
• Other Notable Treaties:
o Convention on the Prevention and Punishment of the Crime of Genocide
o International Convention on the Elimination of All Forms of Racial
Discrimination
• Commission on Human Rights:
o Known as Human Rights Council since 2006.
o Reviews global human rights issues but has faced criticism for political
selectivity and failure to review the human rights violations in certain countries.

Erga Omnes:
• Erga Omnes means obligations owed to the entire international community.
• Certain human rights violations are so severe (like genocide and torture) that any state
can take action regardless of where the crime occurred.
• This principle empowers states to hold violators accountable even outside their
jurisdiction.

Summary:
Importance of International Human Rights Law
• International Human Rights Law includes international borders, allowing the global
community to protect individuals' rights, even in other countries.
• This global framework ensures that fundamental rights are safeguarded regardless of
nationality or jurisdiction.

F. International Law & Municipal Law

The relationship between International Law and Domestic (Municipal) Law is complex.
Some believe they are separate and don’t influence each other, but in reality, they often overlap.
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 Principles of Conflict Between International and Domestic Law:
1. Domestic Law cannot justify a violation of International Law. A country cannot
claim its own laws as an excuse for breaking international agreements.
2. A country cannot withdraw from a treaty just because its domestic laws have
changed.
3. Lack of Domestic Law is not a defence. If a country has an international obligation,
it must comply, even if it hasn’t passed a relevant domestic law.
4. International Law is often considered superior to Domestic Law. However, this
doesn’t mean domestic laws are meaningless – both coexist.
How Countries Apply International Law:
• Each country has its own approach. Some integrate international law directly, while
others require formal incorporation.
• International Law often complements Domestic Law.
• When conflicts arise, supremacy depends on the court:
o International courts prioritize treaty law and international principles.
o Domestic courts prioritize their country’s statutes.
Examples:
• United Kingdom (Doctrine of Transformation): International treaties must be
converted into local laws before they apply domestically. Parliament must pass
legislation to enforce treaty provisions.
• United States: In the United States, Customary International Law (CIL) is
considered part of federal law, meaning it can be applied in U.S. courts. However, its
application is limited because domestic laws take priority when there is a conflict.
Summary: International Law impacts Domestic Law, but each country decides the extent of
its influence based on its legal system, constitution, and policies.

G. International Law & India

Constitutional Provisions:

• Article 51 – India aims to respect International Law and treaty obligations.

• Article 253 – The Parliament has the power to implement international treaties, even
if it affects state government powers.

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 How India Applies International Law:
• India follows a dualist approach, meaning international treaties don’t automatically
become law unless Parliament passes legislation.
• Courts sometimes interpret the Constitution in line with International Law, as seen
in Kesavananda Bharti v. State of Kerala.
International Treaties & Domestic Law:
• If a treaty restricts citizens' rights or changes laws, Parliament must pass a law to
implement it.
o Example: If India signs a treaty banning the killing of a turtle species, a law
must be passed to enforce the ban domestically (Magan Bhai Patel v. Union
of India).
• If a treaty does not conflict with domestic law, courts may apply it directly.
o Example: International treaties can be applied in India when they align with
existing laws and do not contradict domestic statutes.
Sheela Barse v. Secretary, Children’s Aid Society: This case reinforced that
India’s ratification of child protection conventions created a legal duty for
the government to protect children’s rights.
• In some cases, courts have used international treaties to create legal obligations,
even without specific legislation.
o Example: In Vishaka v. State of Rajasthan, courts applied CEDAW
(Convention on the Elimination of Discrimination Against Women) to
establish laws on sexual harassment.
Summary:
India does not automatically apply International Law but adapts it as needed. If a treaty
affects rights or contradicts existing laws, Parliament must pass a law. However, courts can
use treaties to support existing laws when there’s no conflict between the two.

H. Dispute Resolution
Domestic vs. International Dispute Resolution
• In Domestic Law, disputes can be resolved through courts, mediation, conciliation,
or arbitration.
• In International Law, disputes arise over treaties or international legal principles
and are resolved through mechanisms like mediation, arbitration, or international
courts.

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International Dispute Resolution Bodies
1. International Court of Justice (ICJ) – The World Court
• Main judicial body of the United Nations (UN).
• Settles disputes between states and provides advisory opinions to UN bodies.
• Located in The Hague, Netherlands and established under the Statute of the ICJ
(1946).
• Binding decisions: Its rulings are final and cannot be appealed.
• No enforcement power: If a state refuses to comply with the decision, the UN Security
Council can take an action.
• Jurisdiction:
o States must agree to submit their disputes to the ICJ.
o The ICJ can issue non-binding advisory opinions on legal matters.
2. International Criminal Court (ICC)
• Established by the Rome Statute (2002) to prosecute individuals for serious
international crimes.
• Handles four major crimes:
1. Crimes against humanity
2. Genocide (mass killing of ethnic or national groups)
3. War crimes
4. Crime of aggression
• Jurisdiction:
o Only applies to countries that accept ICC jurisdiction.
o Can prosecute crimes committed in these countries or by their nationals.
o Cases can be referred by the country itself or the ICC Prosecutor.
• Difference from ICJ:
o ICJ settles disputes between countries.
o ICC prosecutes individuals for serious crimes.
Other Dispute Resolution Mechanisms
• Treaties often have their own dispute resolution processes, like arbitration panels.
• The UN and World Bank have created forums for investment disputes.

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Summary:
International disputes can be resolved through ICJ for state disputes, ICC for serious crimes,
and treaty-based arbitration panels. States must agree to the jurisdiction of these bodies
for them to take action.

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