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PUBLIC INTERNATIONAL LAW (INTRODUCTION)
QUESTION BANK
1. Discuss the meaning, nature and sources of International Law.
2. What do you mean by International Law? Explain various theories governing the relationship between International Law and Municipal law.
3 Explain in detail the various sources of International Law.
4. Explain various theories as to the relationship between International Law and Municipal law. Discuss the Indian practice with the help of case law.
5. Explain the meaning and nature of International Law. Discuss the sources of International Law.
6. Critically examine the nature and need of International Law.
7. What do you mean by International Law? What are various sources of International Law?
Short Notes
1. Basis of International Law.
2. Sources of International Law.
3. Nature of International Law.
4. Individuals as the subject of International Law.
5. Custom as a source of International Law.
SYNOPSIS
I. Introduction
II. Definition of International Law
1. Definition by Oppenheim
2. Definition by Brierly
3. Definition by Starke
III. Subjects of International Law
1. State
a) Definite Territory
b) Permanent Population
c) Government
d) Capacity to Enter into Relations with Other States
2. Individuals
3. International Organizations
4. Non-State Entities
a) Members of Composed States or Federal States
b) Insurgents and Belligerents
c) National Liberation Movements
IV. Nature of International Law
1. International Law is Not Law in the True Sense
2. Arguments Supporting the Non-Legal Nature
3. Not-Fully Sovereign States
a) Protectorate States
b) Vassal States
c) Federal States
d) Trust Territories
4. Non-Typical States
a) Holy See (Vatican City)
b) Neutralized States
c) Free Cities
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I. Introduction
International Law is also traditionally referred to as the ‘Law of Nations’. Jeremy Bentham first coined this specific expression in his seminal work in 1789. Like most legal classifications, the broader domain of law can be distinctly bifurcated into two primary branches, namely: (i) Domestic or Municipal Law, and (ii) International Law.
Domestic law, often termed municipal law, governs the subjects of a particular State or individuals residing within that specific domestic jurisdiction. It applies strictly within the territorial boundaries of a State, whereas International Law applies primarily among sovereign States. Historically, the traditional subject of International Law was almost exclusively the State, and it seldom considered individuals. In simple terms, it is observed that International Law governs the relations between sovereign nations, whereas municipal law governs the relations among individuals within the internal framework of the State. The primary subject of our current analytical study is International Law, not domestic or municipal law.
II. Definition of International Law
Different jurists and legal authors define the term ‘International Law’ differently based on their jurisprudential outlook. It is essential to discuss some of these definitions chronologically to understand the true evolving nature of International Law.
1. Definition by Oppenheim
According to Lassa Oppenheim, the ‘Law of Nations’ or ‘International Law’ is the name for the body of customary law and conventional rules which are considered legally binding by civilised states in their intercourse with each other. This classical definition has faced criticism over time because it restricts the scope of international law strictly to states and completely ignores international organizations and individuals.
2. Definition by Brierly
According to 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 civilised states in their relations with one another. While concise, this definition also suffers from the traditional limitation of viewing states as the exclusive actors on the international stage.
3. Definition by Starke
According to J.G. Starke, 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. Moving beyond classical boundaries, Starke explicitly expands this definition to include:
a. The rules of law relating to the functioning of international institutions or organisations, 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 and duties of such individuals and non-state entities are the concern of the international community.
In the contemporary context, the Supreme Court of India has heavily relied on these modern definitions to bridge domestic lacunae. In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, [AIR 1984 SC 667], the Supreme Court explained the relationship between international law and municipal law in India. The Court held that India generally follows the doctrine of incorporation, under which the rules of customary international law are treated as part of municipal law unless they are inconsistent with the Constitution, an Act of Parliament, or binding judicial precedent. It further observed that municipal courts should, wherever possible, interpret and apply domestic law consistently with the accepted principles of international law, thereby promoting harmony between India's domestic legal system and its international obligations.
III. Subjects of International Law
An entity possessing international legal personality is considered a subject of International Law. International personality implies the capacity to possess rights and duties under International Law and the capability to maintain these rights by bringing international claims. In other words, a subject of International Law is an individual, body, or entity recognized or accepted as being capable of possessing and exercising rights and duties under the international legal framework.
According to earlier, orthodox legal views, only sovereign States were considered true subjects of International Law. International Law was concerned solely with the rights, duties, and interests of States. However, International Law developed significantly over time, and new entities were gradually accommodated. In the flux of time, the pressing need was felt to make non-state entities and even private individuals subjects of International Law. The traditional definition of Oppenheim severely restricts the scope of International Law by mentioning that states are its only subjects. Conversely, the modern definition by Starke adds entities and individuals. The contemporary subjects of International Law are evaluated below:
1. State
The State remains the primary and most important subject of International Law. Historically, International Law was exclusively preoccupied with the rights, duties, interests, and relations between sovereign states. All classical definitions unequivocally highlight the state as the foundational subject. In today’s interconnected global order, the state is universally acknowledged as the principal actor. To be legally recognized as a State, an entity must possess the following mandatory qualifications as codified in Article 1 of the Montevideo Convention on the Rights and Duties of States (1933):
a) Definite Territory
To be called a ‘State’ under International Law, an entity must have a certain defined territory. However, no absolute lower limit for the territory is prescribed. Therefore, micro-states like Nauru, which has an area of just about 21 square kilometres (eight square miles), and Vatican City, which covers a mere 100 acres, are fully recognized as sovereign ‘States’ internationally. Moreover, it is not mandatory that the State should have completely undisputed borders; having ongoing boundary disputes does not strip an entity of its inherent statehood.
b) Permanent Population
A state must have a stable, permanent population. There is no lower limit to the size of the population. For instance, Nauru, with around 10,000 inhabitants, is a recognized State. Similarly, Vatican City, despite having a tiny population of roughly 800 citizens, maintains its status as a State. A ‘permanent population’ does not require a homogeneous racial, ethnic, tribal, religious, or linguistic identity; the only requirement is that the community must be settled.
c) Government
To satisfy the requirements of statehood, an entity must have its own functional government. Such a government must be effective and maintain administrative control throughout its territory. Independent states, as well as dependent states (whether protectorates or colonies) that are on a clear path toward independence, are interactional actors. The existence of an effective government, backed by centralized administrative and legislative organs, ensures the internal stability of the State and demonstrates its structural ability to fulfil international obligations. Crucially, a State does not cease to exist when it is temporarily deprived of an effective government due to an internal civil war or a temporary breakdown of law and order.
d) Capacity to Enter into Relations with Other States
To be called a state, the entity must possess the legal and political capacity to enter into foreign relations with other sovereign states. This is a vital attribute of an independent, sovereign State.
2. Individuals
There are now several modern treaties and frameworks that directly confer international rights and duties upon individuals. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are prime examples of instruments conferring fundamental rights upon individuals globally. Similarly, the Geneva Conventions of 1949 confer explicit humanitarian protections and rights directly upon prisoners of war.
Moreover, modern International Law imposes direct criminal obligations upon individuals. This shift occurred because, as famously noted during the Nuremberg Trials, crimes against International Law are committed by men, not by abstract entities like the State. Therefore, individuals who commit egregious crimes such as genocide, war crimes, and crimes against humanity are directly punishable under international frameworks like the Rome Statute of the International Criminal Court (ICC).
Certain regional frameworks grant individuals the right to sue their own states; for instance, the European Convention on Human Rights (ECHR) of 1950 allows individual petitions before the European Court of Human Rights. Additionally, specific international agreements grant special legal protections and rights in Favor of astronauts and diplomats.
In India, the Supreme Court has significantly elevated the status of the individual by reading international human rights standards into the fundamental rights guaranteed under the Constitution of India. In People's Union for Civil Liberties (PUCL) v. Union of India [AIR 1997 SC 568], and later in the nine-Judge Constitution Bench decision in Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, the Supreme Court reaffirmed that international human rights instruments constitute important interpretative aids in constitutional adjudication. The Court held that the provisions of international conventions and covenants, particularly those that elucidate the content and scope of fundamental rights, should ordinarily be taken into account by Indian courts so long as they are consistent with the Constitution and do not conflict with municipal law. These decisions underscore India's commitment to harmonising domestic constitutional guarantees with internationally recognised human rights norms and reinforce the centrality of individual dignity and liberty in constitutional jurisprudence.
3. International Organizations
An International Organization is an association of States established by a treaty between two or more nations. It functions across multiple countries and is endowed with an independent international legal personality for specified functional purposes. During the middle and latter parts of the nineteenth century, a global trend began to endow international organizations with a distinct personality separate from the states that created them.
The international personality of such organizations is limited to the specific rights, duties, purposes, and powers laid down in their founding constituent treaties. For example, the legal personality of the United Nations Organization is derived directly from the United Nations Charter. The definitive legal validation of this concept came through the landmark Advisory Opinion of the International Court of Justice (ICJ) in the Reparation for Injuries Suffered in the Service of the United Nations (1949) case. The ICJ held that the United Nations is an international person, meaning it is a subject of international law capable of possessing international rights and duties, and it has the capacity to maintain its rights by bringing international claims.
Apart from universal bodies like the United Nations and its specialized agencies, there are several regional organizations that hold international personality within their geographic spheres, such as the African Union (formerly the Organisation of African Unity), the Organisation of American States (OAS), and the European Union (EU).
4. Non-State Entities
Certain entities, although they do not satisfy the strict criteria of independent statehood, are granted a limited degree of personality under International Law. These entities have specific rights and duties, can participate in international conferences, and may enter into limited treaty relations. However, they do not enjoy the comprehensive suite of sovereign rights that normal States possess. These entities are classified as follows:
a) Members of Composed States or Federal States
Unless explicitly recognized by foreign nations and permitted by the domestic constitution of their parent federation, the component units or provinces of a federation do not enjoy an independent international personality. However, historical anomalies exist; for instance, the Soviet Republics of Byelorussia and Ukraine were admitted as original members of the United Nations in 1945 despite being component units of the larger USSR.
b) Insurgents and Belligerents
Insurgents are individuals who participate in an organized insurrection against their own established domestic government. Belligerents, on the other hand, represent a more advanced body of insurgents who have succeeded in establishing a temporarily organized government, control a stable portion of territory, are regarded as lawful combatants, and conduct hostilities in a manner consistent with the laws of war. When recognized by the parent state or third-party states, such insurgents and belligerents are accorded a limited international personality, bringing their actions under the purview of international humanitarian law.
c) National Liberation Movements
To counter anti-colonial actions and support self-determination, the United Nations and various regional organizations have conferred a degree of international personality upon specific national liberation movements. Historically, in the 1970s, recognized groups included movements fighting for independence in Angola, Mozambique, and Rhodesia, as well as the Palestine Liberation Organization (PLO), which was granted observer status at the United Nations.
IV. Nature of International Law
Jurists are sharply divided into two distinct schools of thought regarding the actual nature and enforceability of International Law. The fundamental question before them is whether International Law is true law in the real sense of the term. In short, does it fulfill the essential jurisprudence-based characteristics of ‘Law’? According to one school of thought, it is law in the true sense, whereas the opposing analytical school maintains that it cannot be classified as true law.
1. International Law is Not Law in the True Sense
This perspective argues that international law lacks the basic coercive teeth required to be classified as real law. Renowned analytical jurists such as Thomas Hobbes, Samuel von Pufendorf, John Austin, Thomas Erskine Holland, and Jeremy Bentham are the main proponents of this view. They are broadly categorized as ‘positivists.
According to John Austin's command theory of jurisprudence, law is strictly defined as the command of a political sovereign, backed by a sanction or punishment for non-compliance. Based on this narrow definition, positivists deny the legal character of International Law. They argue that because there is no global sovereign ruler to issue commands, International Law is merely a system of 'positive international morality' rather than actual law.
2. Arguments Supporting the Non-Legal Nature
The jurists who claim that International Law is not true law put forth several structural arguments. They highlight that there is no supreme legislative assembly to enact global laws, no mandatory international court with compulsory jurisdiction over all nations without their explicit consent, and no centralized executive authority or international police force to enforce compliance or execute judgments.
3. Not-Fully Sovereign States
To be recognized as an international person, a State does not always need to be completely independent or fully sovereign. In other words, even a non-sovereign or partially sovereign State may be treated as a limited subject of International Law. What is necessary is that the entity must possess the basic characteristics of statehood to a functional degree. However, such states are not considered normal or perfect subjects of International Law.
‘Not-fully sovereign states’ are political entities that remain structurally subject to the overarching external authority of one or more foreign states. They are classified into the following traditional categories:
a) Protectorate States
A protectorate is a State that, through a formal bilateral treaty, places itself under the protective umbrella of a stronger State. In doing so, it typically surrenders the control of its foreign relations and defense to the protecting power while retaining a significant measure of internal autonomy over its domestic governance.
Historically, Morocco became a protectorate of France through the Treaty of Fez in 1912. Similarly, Bhutan entered into a close, special relationship with India through the Indo-Bhutan Treaty of Friendship in 1949, guiding its foreign policy in consultation with India, though it has since evolved into a fully independent member of the United Nations while maintaining deep bilateral ties with India.
b) Vassal States
A state that remains under the direct suzerainty of another dominant state is historically termed a ‘Vassal State’. The suzerain state completely absorbs and manages all international relations of the vassal state, leaving the latter with no independent capacity to enter into treaties or foreign alliances. For a long period, Tibet’s complex geopolitical status was viewed through the lens of suzerainty, culminating in historical agreements with China.
c) Federal States
A Federal State is a constitutional union of several constituent states or provinces. This union is generally created by a domestic constitutional pact or historical integration rather than an active international treaty. The member states or provinces within a federal structure accept the supreme authority of the common federal constitution. Consequently, individual members or states of a federation are not recognized as independent international persons; they are neither full nor half-sovereign political entities on the global stage. Instead, it is the centralized 'Federal State' as a collective whole that exercises sovereign international powers and enters into foreign relationships.
For instance, India is an asymmetric federal union consisting of 28 States and 8 Union Territories, where only the Central Government has the power to represent the nation internationally under the Constitution of India. Similarly, the United States of America is a powerful federal union of 50 states, where external sovereignty rests solely with the federal government.
d) Trust Territories
Following the demise of the League of Nations and the conclusion of the Second World War, the United Nations established the International Trusteeship System under Chapter XII of the UN Charter. This system replaced the older Mandate System of the League of Nations, which had placed territories unable to stand by themselves under the administrative control of developed nations. These trust territories were not sovereign; they were administered by designated administering powers like Australia, New Zealand, Belgium, France, Italy, the United Kingdom, and the United States, under close UN supervision. Over the decades, the system successfully completed its mandate, and all territories placed under the trusteeship system have successfully transitioned into independent nations or integrated into neighboring states. The system became non-operational when Palau, the last remaining trust territory, achieved full independence.
4. Non-Typical States
There are certain unique international entities that participate actively in international law but do not fit the typical, standard definition of a geopolitical state.
a) Holy See (Vatican City)
The Holy See is an exceptional sovereign entity under International Law. It operates from Vatican City, which is a tiny landlocked enclave within Rome, Italy, encompassing an area of about 0.44 square kilometres and holding a resident population of roughly 800 citizens. While the term ‘Vatican City’ refers to the physical territory, the term ‘Holy See’ refers to the supreme central governing organ of the global Catholic Church, headed by the Bishop of Rome, the Pope. The Pope acts as the sovereign monarch of this entity. The Holy See maintains an active, universally recognized international personality, enjoys full diplomatic relations with over 180 countries, holds permanent observer status at the United Nations, and functions as a recognized subject of International Law.
b) Neutralized States
A Neutralized State is a sovereign state that, by virtue of an international agreement or unilateral constitutional declaration ratified by other powers, permanently undertakes not to take up arms against any other state except in absolute self-defence. In return, the rest of the international community agrees to permanently respect the territorial integrity and neutrality of that state.
Switzerland stands as the most prominent contemporary example of a permanently neutralized state, maintaining its strict neutrality through changing global conflicts. Historically, nations like Belgium and Luxembourg were neutralized states, but their status altered significantly following the geopolitical realignments of the First and Second World War.
c) Free Cities
Free Cities represent a historical category of subjects under International Law where an individual city or small urban enclave is constituted as an independent, self-governing state under international supervision. Historically, the Free City of Cracow and the Free City of Danzig were created via international settlements to defuse regional geopolitical tensions. Similarly, following the Second World War, the Free Territory of Trieste was established under the direct supervision of the United Nations Security Council, though it was eventually dissolved and partitioned between Italy and Yugoslavia, rendering the concept of free cities largely a matter of historical precedent in modern international relations.
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