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Public International Law[1]

Table of Contents

(Introduction)

QUESTION BANK

Discuss the meaning, nature and sources of International Law.
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.

Explain various theories as to the relationship between International Law and Municipal law. Discuss the Indian practice with the help of case law.
Explain the meaning and nature of International Law. Discuss the sources of International Law.
Critically examine the nature and need of International Law.
What do you mean by International Law? What are various sources of International Law?

Short Notes

Basis of International Law.
Sources of International Law.
Nature of International Law.
Individuals as the subject of International Law.
Custom as a source of International Law.

SYNOPSIS

Introduction-
Definition of International Law-
According to Oppenheim-
According to Brierly-
According to Starke-

III. Subjects of International Law-

State-
a) Definite territory-
b) Permanent Population-
c) Government-
d) A capacity to enter into relations with other states-
Individuals-
International Organization-
Non-State entities-
a) Members of composed states or federal states-
b) Insurgents and Belligerents-
c) National liberation movements-
Nature of International Law-
International Law is not the law in the true sense-
No existence of superior political authority-
Not-fully sovereign State-

(a) Protectorate States-

(b) Vassal State-

(d) Trust-Territories-

Not-Typical States-

(a) Holy See-

(b) Neutralized States-

I. Introduction-

International Law is also known as the ‘Law of Nations’. Jermy Bentham first used the expression in 1789.

Like other divisions, the law can be divided into two parts, viz. (i) Domestic or Municipal law and (ii) International law.

Domestic law or Municipal law governs the subjects[2] of the State or individuals within the State. It applies within the State[3] (Nation), whereas International Law applies among States. The subject of International Law is the State and seldom individuals. We may say that International Law governs the relations between the nations, whereas Municipal law governs the relations among individuals within the State. The subject of our study in this book is International Law, not domestic law.

II. Definition of International Law-

Different authors define the term ‘International Law’ differently. We will discuss some of these definitions to understand the true nature of International Law.

1. According to Oppenheim-

‘Law of nations’ or ‘International Law’ is the name for the body of customary law[4] and conventional rules[5] which are considered legally binding by civilised states in their intercourse with each other.

2. According to 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[6]’’.

3. According to Starke,

“International Law may be defined as that body of law which composed for its greater part of the principles and rules of conduct which State feel observe in their relations with each other, and which includes also-

(a) the rules of law relating to the functions of international institutions or organisations, their relations with each other, their relations with states and individuals, and

(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 international community’s concern.”

III. Subjects of International Law[7]–

An entity possessing International personality is a subject of International Law. International personality means ‘the capacity to possess rights and duties under International Law. To establish its rights, the subject must be capable of bringing an action under International Law. In other words, a subject of International Law is an individual, body or entity recognised or accepted as being capable of possessing and exercising rights and duties under International Law.

According to the earlier views, only States were considered subjects of International Law. International Law was concerned only with States’ rights, duties and interests. In other words, International Law governs relations between states. However, International Law developed over the period of time, and new entitled[8] were made subjects of International Law. In the flux of time, the need was felt to make some entities and even private individuals the subject of International Law capable of possessing rights and duties. The definition of Oppenheim restricts the scope of International Law; it mentions that states are only subject to International Law. However, the definition of Starke in the latter period adds entities and even individuals as subjects of International Law. We will, therefore, discuss the subjects of International Law as follows-

1. State[9]–

The State is a primary and important subject of International Law. International Law was primarily considered with rights, duties, interests, and relations between the states. All the definitions mentioned above unequivocally mention the state as the subject of International Law. In today’s world, the state is considered to be the main subject of international law.

To be called a State, the entity must possess the following qualifications-

a) Definite territory[10]–

To be called a ‘State’ in International Law, it should have definite territory. However, no lower limit of the territory is prescribed. Therefore, the State of ‘Nauru’ has an area of eight square miles, and Vatican City has 100 acres of the area, which are ‘States’ internationally. Moreover, it is not always necessary that the State should have exactly defined or undisputed territory; having boundary disputes does not affect the statehood of the State.

b) Permanent Population[11]–

A state subject to International Law should have a permanent population. However, there is no lower limit to the size of the population. Thus, the State of Nauru, even with a population of 9000 inhabitants, is a State. Similarly, Vatican City had a population of 801 in 2018, which is a ‘State’.

A ‘permanent population’ does not require homogenous racial, ethnic, tribal, religious, linguistic, etc. The only requirement is that the population must be settled[12].

c) Government-

To be called a ‘State,’ it should have its own government. Such a government must be effective and have control throughout its territory. Independent states and dependent states (whether protectorate or colonial) on the way to becoming independent are also subjects of International Law.

The existence of an effective government, with some centralised administrative and legislative organs, assures the internal stability of the State. Such a government also shows its ability to fulfil its international obligations. However, a State does not cease to exist when it is temporarily deprived of its government because of civil war, etc.

d) A capacity to enter into relations with other states[13]–

To be called a ‘state’, it must be capable of entering into relations with other states. It is an important attribute of an independent or sovereign State. The State should be capable of entering into relations with other states.

2. Individuals[14]–

There are several treaties which confer certain rights and duties on individuals. International covenants on human rights are one such treaty which confers rights and duties upon individuals. Similarly, in 1949, the General Convention on the Prisons of war conferred certain rights on war prisoners. Moreover, International Law imposes direct obligations upon individuals. This is because individuals commit crimes against International Law, not abstract entities like the State. Therefore, crimes of genocide are punishable. Some rights are conferred upon individuals against the State, such as the European Convention on Human Rights 1950. There are some rights granted in favour of astronauts by different agreements.

3. International Organization[15]–

An International organisation is an association of States established by a treaty between two or more states. It functions in different countries and is endowed with International personalities for certain purposes.

During the earlier part of the nineteenth century, the trend started to endow International organisations with personality. Such International organisations were considered ‘states’ to be the subject of International Law.

Such ‘International organisations’ include all purposes universal organisations, universal functional organisations and regional organisations.

The International personality of such organisations is limited to the rights, duties, purposes, and powers laid down in the treaty creating them. The international personality of the United Nations Organisation is derived from the United Nations Charter. Moreover, there are some regional organisations, such as the Organisation of African Unity, the Organisation of American States, and the European Community.

4. Non-State entities[16]–

Certain personalities, although they are not independent states, are granted limited personality under International Law. Such entities have certain rights and duties. They can participate in international conferences and enter into treaty relations. However, they do not enjoy similar rights as States. Such entities are as follows.

a) Members of composed states or federal states-

Unless recognised by other States and permitted by the constitution of the federation, component units of the federation do not enjoy international personality. However, the Soviet Republic of Byelorussia and Ukraine was admitted as a member of the United Nations in 1945.

b) Insurgents[17] and Belligerents[18]–

‘Insurgents’ are individuals who participate in an insurrection against their government. ‘Belligerents’ are a body of insurgents who, by their temporary organised government, are regarded as lawful combatants and conduct lawful hostilities. Such insurgents and belligerents, for some purposes, are regarded as international personalities possessing certain rights and duties.

c) National liberation movements[19]–

To counter anti-colonial actions by some states, the United Nations and regional organisations have conferred International personality upon some national liberation movements. In 1974, such recognised movements were Angolan, Mozambican, Palestinian, and Rhodesian.

IV. Nature of International Law[20]–

Jurists are divided into two groups as to the nature of International Law. The question before them is whether International Law is true law. In short, does international law fulfil the characteristics of ‘Law’? According to one view, it is law in the true sense, whereas, according to another view, it is not the law in the true sense.

1. International Law is not the law in the true sense-

In one view, international law is not true law. Jurists Hobbes, Pufendorf, Austin, Holland, Jermy Bentham, etc., are the main proponents of this view. They are called ‘positivists’. According to them, the law is a command of the sovereign. Therefore, they deny the legal character of International Law. According to them, International Law is not true since it does not hold the character of sovereign command. These jurists put forth the following arguments supporting this view that International Law is not true law.

2. No existence of superior political authority-

According to this view, municipal law has a determinate superior political authority. However, there exists no such determinate superior political authority in International Law.

3. Not-fully sovereign State-

To be an international person, a State doesn’t need to be sovereign. In other words, even a non-sovereign or not-fully sovereign State may be the subject of International Law. What is necessary is that the State should possess four basic characteristics[21], even to the smallest degree. However, such states are not perfect and normal subjects of International Law. ‘Not fully Sovereign’ are the states which remain subject to the authority of one or more other states. Such states are as follows-

(a) Protectorate States[22]–

‘Protectorate State’ is a State that, by formal treaty, places itself under the protection of a stronger State, surrendering to the latter control over its foreign relations while retaining a large measure of control over its domestic government.

Bhutan is the Protectorate of India through a Treaty of Friendship entered into in 1949. Morocco became a protectorate of France through the Treaty of Fez in 1912.

(b) Vassal State[23]–

A state that remains under the suzerainty of another state is called a ‘Vassal State’. The suzerain state absorbs all international relations of the Vassal state. A Vassal State is not capable of entering into relations with other states. Tibet was the Vassal State of China by the treaty of 1951.

(c) Federal States[24]–

A Federal State is a union of several States. Such a union is generally based on the international treaty of Member States. Member States accept the constitution of the Federal State. Members of a federal state are not recognised as international persons. They are neither full nor half-sovereign political entities. ‘Federal State’ exercises international powers and relationships. For example, India is a federal union of 29 States and 7 union territories. Similarly, the USA is a union of 50 federal states.

(d) Trust-Territories-

After the First World War, the League of Nations put eleven states (unable to manage themselves) under the control of other states. This system was called a trusteeship system. In fact, these states were not sovereign while under trusteeship. They were administered by administering powers like Australia, Belgium, France, Italy, etc.

All the territories placed under the trusteeship system have become independent.

4. Not-Typical States[25]–

There are some states that are members of international law, but they cannot be typically called states.

(a) Holy See-

The Holy See is a small sovereign State with a land area of about half a square kilometre and a population of about 800 in 2019. The term ‘Holy See’ refers to the supreme organ of the Catholic Church, i.e., the Bishop or Pope. The head of the Catholic Christian Pope is the monarch of the Holy See.

Holy See is an international person, hence, the subject of International Law.

(b) Neutralized States[26]–

A Neutralized State undertakes not to take arms against any state except for defence. However, the other states should agree on the declaration of neutralisation by that State. Switzerland is a Neutralized State in the present day. Belgium and Luxemburg were Neutralized states. However, they ceased to be so after the First World War.

(c) Free Cities[27]–

Free Cities are subjects of International Law. A city constituting an Independent State is called a ‘Free City’ State. Cracow and Danzig were free city-states; presently, ‘Trieste’ is a free city-state.

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[1] सार्वजनिक अंतराष्ट्रीय कायदा

(येथून पुढे काही महत्त्वाच्या इंग्रजी शब्दांचे मराठीत/ व कौसात हिंदी अर्थ दिलेले आहेत. त्याचा उद्देष विद्याथ्र्यांना विषय चांगल्या प्रकारे समजावा एवढाच मर्यादित आहे. मराठी अर्थ हे विशयाला धरुन केले असल्यामुळे ते शब्दकोषाप्रमाणे अगदी बरोबर असतीलच असे नाही. विद्याथ्र्यांनी अभ्यास करताना विविध मराठी व इंग्रजी शब्दकोष वापरावेत.)

[2] प्रजा/नागरीक

[3] The term ‘State’ is used in the sense of ‘Nation’/ ‘Country’ in International Law. ईथे ‘स्टेट’ ही संज्ञा अंतरराराष्ट्रीय कायदयाच्या दृश्टीने ‘राष्ट्र’ª अशा अर्थोने वापरलेली आहे; त्याचा अर्थ भारतातील वेगवेगळी राज्य अषा अर्थोने घेउ नये.

[4] परंपरागत कायदा

[5] संघटनेने ठरविलेले नियम

[6] अंतराष्ट्रीय कायदा म्हणजे ‘असेा नियम व कृतीची तत्वे कि जीं सुसंस्कृत राष्ट्रावर त्यंचेमधिल परस्पर संबंधात बंधनकारक असतात.

[7] अंतराष्ट्रीय कायदयाची प्रजा/ अंतराष्ट्रीय कायदा कोणास लागु होतो?

[8] संघटना

[9] ^राष्ट्र*

[10] निष्चित भुभाग

[11] स्थाई लोकसंख्या

[12] स्थिर

[13] दुसरे राष्ट्रांचे बराबर संबंध ठेवण्यची योग्यता

[14] व्यक्ती

[15] अंतराष्ट्रीय संघटणा

[16] गैर राष्ट्रीय संघटणा

[17] बंडखोर

[18] भांडखोर संघटणा

[19] राष्ट्रीय स्वनंत्रता चळवळ

[20] अंतराष्ट्रीय कायदयाचे स्वरूप

[21] Territory, population, government and capacity to enter into relation with other States.

[22] संरक्षित राष्ट्रीय

[23] दुस-या राष्ट्रच्या अंकीत राष्ट्र

[24] संघराज्य

[25] राष्ट्रच्या संकल्पनेत पुर्णपने न बसनारी राष्ट्र

[26] युघ्दात भाग न घेनारे व हमला न करणारे – तटस्थ राष्ट्र

[27] मुक्त शहर