DEFINITION OF INTERNATIONAL LAW

The term “International Law”, also referred to as Laws of Nations was first coined by Jeramy
Bentham in 1780 in “Introduction to the Principles of Morals and Legislations, London”,
means the body of rules which regulate the relations among the States.
Jurisprudential Foundation
• Hugo Grotius (FATHER OF MODERN INTERNATIONAL LAW):
✓ His three-volume book: “The Law of War and Peace” is the foundation of modern
international law. He gave Natural law and Just War Theory. He articulated the
concept of natural law, positing that certain moral principles are inherent and
universally applicable, regardless of human-made laws or religious doctrines.
Theory of Just War: Established criteria for determining when using force is
morally justifiable, such as self-defence, proportionality and protecting innocent
civilians.
✓ Advanced principle of legal equality among states and rejected the idea of absolute
sovereignty.
✓ Established freedom of seas, that the ocean is common resource belonging to all
humanity.
✓ Importance of peaceful settlement of disputes.
✓ His ideas profoundly influenced international laws. His works laid groundwork for
the modern legal framework governing interstate relations, including the UN
Charter, the International Court of Justice, and the Laws of War.
• Kelsen:
✓ The kind of approach to law in society reached its climax with Kelson’s “Pure
Theory of Law”
✓ Defined law solely in terms of itself.
✓ Law was to be regarded as a normative science, that is, consisting of rules which
lay down patterns of behaviour.
✓ Basic norm (Grund norm) is the foundation of the legal edifice, because rules that
can be related back to it, therefore, become legal rules. Basic norm is the norm that
identifies custom as the source of law.
✓ As per him, the principles of IL are valid if they can be traced back to the basic
norm of the system, which is hierarchical in the same sense as a national legal
system.
✓ He had his “monist stance”: International law and Municipal law are not two
separate systems, but one interlocking structure, and the former is supreme. ML
finds it ultimate justification in the rules of IL by a process of delegation within one
international normative system.
✓ Prime Rules: Agreement must be carried out in good faith and upon that rule is
founded the second stage within international legal order.
✓ Second Stage: Consists network of norms created by international treaties and
conventions which leads on to third stage.
✓ Third Stage: Those rules established by organs which have been set up by
international treaties. For instance: Decision of the International Court of Justice.
 ✓ Problem: Basic norm of international law is that it appears to be tautological. It
merely repeats that states which obey rules ought to obey those rules which leaves
no room for the progressive development of international law by new practices.
• Prof. I.L. Oppenheim:
✓ Defines IL as the name for the body of customary and conventional rules which are
considered legally binding by civilised states in their intercourse with each other.
✓ Criticism: General principles of law recognised by civilized nations.
• J.L. Briedly and Hackworth:
Says IL consists of a body of rules governing the relations between the States.
• In Queen v Keyn, Lord Coleridge:
IL is the collection of usages which civilised nations agreed to observe in their dealings
with one another.
• Georg Schwarzenberger:
International law is the body of legal rules which apply between sovereign States and
such other entities as have been granted international personality.
• J.G. Starke: (His definition is considered appropriate for the simple reason that the
definition is comprehensive and exhaustive as it reflects the present position of IL.)
International law as that body of law which is composed for the 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:
(i) The rules of law relating to the functioning of international institutions, their
relations with each other and their relations with states and individuals.
(ii) 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 community.

NATURE OF INTERNATIONAL LAW

Every society has a framework of principles within which they work and develop.
Law
(i) binds member of community
(ii) Permissive for individuals to have rights and duties
(iii) Restrictive, punishment for infringement
International law is the body of legal rules, norms, principles and standards that apply
between sovereign states & other entities that are legally recognised as international actors.
It governs the relationship and interaction between the states and provides a framework to
resolve issues that transcend national boundaries, ensuring order, stability, and cooperation
in the international community. This law is not derived from any sovereign authority, rather
is based on the consent of the states.
The principal subjects of international law are nation-states and not the individual citizens.
• International law is itself divided into:
(i) Conflict of laws (Private international law as it is sometimes called):
Deals with those cases within particular legal systems in which foreign elements
obtrude, raising questions as to the application of foreign law or the role of foreign
courts.
Eg.: If two Englishmen make a contract in France to sell goods situated in Paris,
an English court would apply French law as regards the validity of that contract.
(ii) Public International Law (usually just termed as international law): The term
was first used by J. Bentham
It’s not merely an adjunct of a legal order, but a separate system altogether. It covers
relation between states in all their myriad forms, from war to satellites and from
trade to human rights and now on to cyber issues and regulates the operations of the
many international and regional institutions.
As per “North Sea Continental Shelf, ICJ Reports”, the rules of international law
must be distinguished from what is called international comity, or practises such
as saluting the flags of foreign warships at sea, which are implemented solely
through courtesy and are not regarded as legally binding.
Similarly, there is a difference between international law and international morality.
This does not mean that the international law can be divorced from its values.

• Usually, system of laws has: Exe., Judiciary and legis., which is absent in IL.
✓ International law has no legislature. The General Assembly of the United Nations
comprising delegates from all the member states exists, but its resolutions are not
binding save for certain organs of UN for several purposes. (Art. 17 (1) of UN
Charter).
✓ There is no system of courts. ICJ does exist at the Hague, but it can only decide cases
when both sides agree. (Art. 36 of the ICJ Statute.) It cannot ensure that its decisions
are complied with (although the security council of the UN is responsible for its
enforcement.)
✓ There is no executive or governing entity: The UN Security council was intended to
play such role, but at times, has been effectively constrained by the veto power of the
five permanent members (US, Soviet Union [now Russia federation], China, France,
UK)

• Positive Morality: This question has arisen based on a comparison between IL & Domestic
laws. In 19th century, Austin said, “Law is the command of sovereign backed by sanction.”
IL did not fit in this definition and therefore Austin called it “Positive Morality”, rather
than a law, as there is no unified system of sanctions in IL. This was criticized for
oversimplification and the need of “sanction” for something to be considered as law was
questioned. (Usually, the use of ‘force/sanction’ is discouraged in IL. However, in certain
situations, it is used.)
However, Austin’s view was quite positivist. Therefore, Kaczorowska correctly points out:
‘The reply to Austin is that no legal system conforms to his theory. In the US the separation
of powers does not admit a single sovereign, and in the UK the legislature is not the only
source of law-making. Further, Austin’s emphasis on the role of habitual obedience to a
 sovereign does not explain how new sovereign authority emergences. His criticism of
international law is largely based on his peculiar conception of law.

• Role of Force: No unified system of sanctions in IL. But there are circumstances where
use of force is regarded as justified and legal. Sanction may be imposed by the Security
council in the UN upon determination of a threat to peace, breach of peace or act of
aggression. Sanctions may be economic as in 1966 against Rhodesia, or military as in
Korean War in 1950 or both as in 1990 against Iraq.

• International System:
✓ States have a way of doing things through common principles.
✓ The legal structure within all but most primitive societies is hierarchical and
authority is vertical, whereas the IL is Horizontal, consisting of over 190 countries,
all equal in legal theory. (They all possess the characteristics of sovereignty). And
recognise no one has authority over them.
✓ In DL: The law is above individuals, but IL only exists as between the states.
✓ In DL: Individuals can’t make law; they only have the choice to obey it or not. In
IL, states themselves create the law and obey or disobey it. There are instances of
disobey which are mostly publicised. Despite the occasional gross violation, the
vast majority of the provisions of international law are followed.

• Primarily formulated by:

IL is primarily formulated by (i) international agreements, creating rules binding upon
the signatories and (ii) customary rules, which are basically state practices recognised
by the community at large as laying down patterns of conduct that have to be complied
with.

• Need of IL:
✓ Need for framework of rules in a chaotic realm of world affairs within which
the game can be played and IL fulfils that requirement. This gives an element
of stability & predictability to the situation.
✓ When countries are involved in a dispute, it is handy to have recourse to the
rules of IL even if there are conflicting interpretations, since at least there is a
common frame of reference. And one state will be aware of how the other state
will develop its arguments. Both sides will be talking a common language,
constituting a mutually understandable vocabulary book and suggesting
possible solutions which follow from a study of principles.
✓ However, IL cannot solve every problem no matter how dangerous or complex
it is by just being there because IL has not been developed to that particular
stage.

• Why states not simply ignore the IL?

✓ Element of reciprocity: It can be a powerful weapon. States quite often do not
pursue one particular course of action which might bring them short-term gains
as it might have a long-term disadvantage and can disrupt the mesh of reciprocal
tolerance. Example: States everywhere protect the immunity of foreign
 diplomats for not to do so would place their own officials at risk. This induces
states to act reasonably and expect the other state to act reasonably. However, if
a state feels that their action is vital for their survival and in interest, they might
supersede IL.
✓ Advantages or Rewards: It may encourage friendly or neutral states to side
with one country involved in a conflict rather than its opponent, and even take
a more active role. Sometimes, states employ the tactic of involving public
opinion for support.

• Role of Consent:
✓ Earlier, states were considered independent and free agents and accordingly,
they could only be bound by their own consent. There was no authority in
existence which was theoretically or practically able to impose rules upon
various nation-states. This approach found its extreme expression in the “theory
of auto-limitation” or “self-limitation”, which declared that states could only
be obliged to comply with the IL if they had first agreed to be so obliged. (Based
on their choice)
✓ Nevertheless, this theory is the most unsatisfactory as on account of why IL is
regarded as binding or even as an explanation of the international legal system.
✓ This theory also fails as an adequate explanation of the international legal
system, as it does not take into account the tremendous growth in international
institutions and the network of rules and regulations that have evolved over
time.
✓ It fails to explain what happens if a state withdraws its consent—a country
cannot just opt out of IL without consequences.
✓ To accept consent as the basis for obligation in IL, the questions whether what
happens when such consent is withdrawn or revoked as to be answered. The
state’s removal of its agreement to a rule does not render that rule optional,
rather places that state in breach of its obligation in IL if that state proceeds to
act upon its decision.
✓ Indeed, the principle that agreements are binding (Pacta sunt servanda:
Agreement must be kept) upon which all treaty law must be based cannot itself
be based on consent. Otherwise, it will leave the IL meaningless.
✓ Example: On November 21, 2024, the International Criminal Court (ICC)
issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and
former Defense Minister Yoav Gallant. They are accused of war crimes and
crimes against humanity, including the use of starvation as a method of warfare
and intentional attacks against civilians, committed during the Israel-Hamas
conflict from October 8, 2023, to May 20, 2024. INTERNATIONAL
CRIMINAL COURT has issued an arrest warrant against a Western-allied
leader for such charges. Israel is not a part of ICC.

• The Function of Politics:

✓ There can never be a complete separation between law and policy, no matter
what theory of law is professed.
✓ Law vs. Politics:
 In domestic law, political institutions make laws, but courts enforce them
independently. Over time, societies develop a "law-habit"—a tradition of
respecting legal institutions, which limits direct political interference.
In international law (IL), states both create and enforce rules, making IL
highly political. Powerful nations can shape, interpret, or ignore legal norms
when convenient. Unlike domestic law, IL lacks a central authority, relying
on state cooperation for enforcement.
✓ Power Politics vs. International Law
(i) Law as a "Shock Absorber": IL does not prevent conflicts but
moderates disputes, creating rules for diplomacy, war, and trade.
Example: WTO dispute resolution reduces trade wars, though
enforcement remains weak.
(ii) South West Africa Case (ICJ, 1966)
The ICJ ruled that moral arguments alone cannot create legal
obligations (South West Africa Cases (Ethiopia & Liberia v. South
Africa), ICJ Reports 1966).
The Court stated:
"It is a court of law and can take account of moral principles only in so
far as these are given a sufficient expression in legal form."
This showed that IL must be based on legal principles, not just ethics
✓ Strengths & Weaknesses of IL
Utopian vs. Realistic View
(i) Utopian Approach: IL can solve all conflicts (unrealistic).
(ii) Cynical Approach: IL is powerless and only power matters (too
pessimistic).
(iii) Middle Path: IL cannot eliminate power struggles, but it provides
structure, stability, and legal norms that states rely on.
✓ Limitations of IL
(i) No central enforcement authority – No global police or court with
binding power.
(ii) Selective enforcement – Powerful states violate IL without
consequences (e.g., US in Iraq 2003, Russia in Crimea 2014).
(iii) Dependent on political will – IL only works if states choose to comply.

2. SOURCES OF INTERNATIONAL LAW

A source of IL means those origins from where it attains its authority and coercive agency.
Sources are obtained survey of the process by which rules of IL emerge. There is no “Code of
International Law”. International law has no Parliament and nothing that can really be
described as legislation. While there is an International Court of Justice and a range of
specialized international courts and tribunals, their jurisdiction is critically dependent upon the
consent of States and they lack what can properly be described as a compulsory jurisdiction
of the kind possessed by national courts.
 According to Lawrence and Oppenheim: There is only one source of international
law – consent of nation.
The principal sources of IL are enumerated in Art. 38 of the Statute of the International
Court of Justice.
Art. 38 (1) of the ICJ statute is widely recognised as the most authoritative and complete
statement as to the sources of IL. It provides that,
1. The court whose function is to decide disputes in accordance with IL shall apply to:
(a) International Conventions or Treaties: General and particular, establishing rules
expressly recognised by the contesting states.
(b) Customary International Law: As evidence of a general practice accepted as law.
(c) the general principles of law recognized by civilized nations
(d) Subject to the provisions of Art. 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, (To decide a case based on what is right and good) if the parties agree thereto.
This definition is universal as members of UN are ipso facto parties to the statute of IL by
Art. 93 od the UN Charter. (States that are not members of UN can specifically become
parties to the statute of the court. Ex: Switzerland.)

Customs:
• Customary law is not a written source.
• It is the oldest and the original source of IL as well as of law in general. It is such usage
as that obtains force of law. In any primitive society certain rules of behaviour emerge
and prescribe what is permitted and what is not. Such rules develop subconsciously
within the group and are maintained by the members of the group with social pressures
and various other tangible implements. These continue to evolve as per changing
society. These are authentic expression of needs and values of a community at a given
time.
• Refers to international obligations arising from established international practices, as
opposed to obligations arising from formal written conventions and treaties. Customary
international law results from a general and consistent practice of states that they
follow from a sense of legal obligation.
• Ex., requiring States to grant immunity to a visiting Head of State, principle of non-
refoulement etc.
• There are disagreements as to the value of a customary system in IL.
• Custom is of value
✓ While others declare that it is a dynamic process of law creation and more
important than treaties since it is of universal application.
✓ It is activated by spontaneous behaviour and mirrors contemporary concerns of
society.
✓ It does mirror the characteristics of the decentralised international system.
 ✓ It reflects a democratic approach in the sense that if international community
is unhappy with a particular law, it can be changed relatively quickly without
the necessity of convening and successfully completing a world conference.
✓ It reflects the consensus approach to decision-making with the ability of the
majority to create laws binding on all, while the very participation of states
encourages their compliance with customary laws.
• Custom law not significant
✓ Some writers deny that custom can be significant today as a source of law,
noting that it is too clumsy and slow-moving to accommodate the evolution of
IL any more.
✓ Since, international law now has to contend with a massive increase in the pace
and variety of state activities as well as having to come to terms with many
different cultural and political traditions, the role of custom is perceived to be
much diminished.
• Overall Critical Evaluation:
✓ Amid a variety of conflicting behaviour, it is not easy to isolate the emergence of a
new rule of customary law and there are immense problems involved in collating
all the necessary information.
✓ International customary law is flexible as it evolves with state practice, and vague
due to unclear enforcement. The Exclusive Economic Zone (EEZ) under the
Law of the Sea shows this—before UNCLOS, EEZ claims varied, but over time, a
200-nautical-mile zone became widely accepted. Even now, disputes over fishing
rights, resource control, and enforcement persist, showing both the adaptability and
ambiguity of customary law.
✓ It is not always the best instrument available for the regulation of complex issues
that arise in world affairs, but in particular situations, it may meet the contingencies
of modern life.
✓ Sometimes, “Instant Customary law” is followed in certain situations that can
prescribe valid rules without having to undergo a long period of gestation, and
custom can dovetail (fit in) neatly within the complicated mechanisms.
• Art. 38 of the State of the International Court of Justice: Directs the ICJ to apply
‘international custom as evidence of a general practise accepted as law’.
• This implies that it is possible to detect two basic elements in the make-up of custom:
✓ Material facts, that is, the actual behaviour/practise of states
✓ Psychological or Subjective Belief, that such behaviour is law and the belief by
a state to act under legal obligation.
✓ ICJ in Libya/Malta Continental Shelf case, held that substance of customary
law must be looked for primarily in the actual practise and opinion juris of
states.
✓ Opinio Juris Sive Necessitatis: Formulated by French Writer: Francois Geny
to differentiate legal custom from a mere social usage (State practise, here).
• There are two views to the basic elements:
✓ Positivists: Emphasise on state sovereignty, stress the paramount importance of
psychological element. If the course of action is legal and necessary as per the
state, even if only once, then it is to be inferred that they have tacitly consented
to the rule involved. (opinion juris)
 ✓ Other view: Have taken precisely the opposite line and maintain that opinio
juris is impossible to prove and therefore, of no tremendous consequence.
Kelson stated that it is the courts who have the discretion to decide whether
certain set of usages can create custom and the subjective perception of state is
not called upon.
• In IL, emphasis is not laid on a practise being repeated for a long duration, rather
customs have emerged in a short-durations too. There is criterion in national law for a
usage to be custom, (i) common law: “Time immemorial” and (ii) Civil law: for 30-40
years to be practised. But there is not absolute criterion in IL to define the term of
duration and might be different from one case to another. Therefore, duration not
important factor in generating an international custom. In the North Sea Continental
Shelf Cases (1969), the ICJ emphasized that the rapid formation of customary
international law is possible, and the passage of time is not always a decisive factor. A
key example is the rule recognizing coastal States' sovereign rights over their
continental shelves, which quickly gained customary status due to widespread state
practice and opinio juris.

Elements of custom
• Material Fact or Actual Practise
✓ The actual practise by the state is the initial factor to be considered.
✓ Factors about the practise:
(i) Duration: Unlike domestic law, duration is not important of the
components of state practice. It depends on the circumstances of the case
and the nature of the usage in question. In certain fields, such as air and
space law, the rules have developed quickly; in others, the process is
much slower.
(ii) Consistency
(iii) Repetition
(iv) Generality

✓ Basic rule regarding continuity and repetition was laid down in Asylum
case decided by the International Court of Justice (ICJ) in 1950. The Court
declared that a customary rule must be ‘in accordance with a constant and
uniform usage practiced by the States in question.
✓ Anglo-Norwegian Fisheries case (UK alleged that the practice adopted by
Norway to measure territorial sea did not justify the creation of any custom):
The ICJ emphasized its view that some degree of uniformity amongst state
practices was essential before a custom could come into existence.
✓ North Sea Continental Shelf Case (Germany v Holland, Denmark): State
Practise, including the states that are in conflict/ whose interest are specially
affected, have to be both extensive and virtually uniform regarding the provision
evoked. This was held to be indispensable for the formation of customary IL.
✓ However, in Nicargua v U.S., it was held that it is not necessary that the
question had to be in “absolute rigorous conformity”. Meaning that absolute
uniformity is not needed. In other words, to deduce the existence of customary
rules, the conduct of states should be consistent with such rules, and any act in
 contravention to that should be interpreted as breach of the rules and not
recognition of new rule. Even if some state occasionally violates it, that doesn’t
render the existing rules ineffective.
✓ The threshold that needs to be attained before a legally binding custom can be
created will depend on: Can be applied in situation of ambiguity as faced in the
Asylum Case, where a variety of conflicting and contradicting evidence had
been brought forward.
(i) The nature of the alleged rule
(ii) The opposition it arouses
✓ An unsubstantiated claim by a state cannot be accepted because it would
amount to unilateral law-making and compromise the impartial system of IL.
✓ In the climate of continuously changing world dynamics, there is a need for
faster rule-making system. In these situations, new practises which form a part
of the customary law are quickly created by the state.
✓ Sometimes, a practise may be termed customary bcos its done by influential
states or bcos the states are intimately connected with the subject matter. One
of the instances where law can’t be separated from politics. (Benkarbouche v.
Secretary of State for Foreign & Common Wealth Affairs, ICJ (2017)). So,
we can conclude that for a custom to be accepted and recognised, it must have
the concurrence of major powers in a particular field.
✓ Eg.: Soviet Union and U.S.A. influence on Space Law.
✓ Accordingly, as per the above point, the duration and generality of the practise
may take secondary place, compared to importance of state forming the
practise.
✓ Universality is not required, but some correlation with power is. However,
some degree of continuity must be maintained, but this again depends upon the
nature of usage.
✓ How significant failure to act is? Failures to act are in themselves just as much
evidence of state’s attitudes as are actions. It reflects the way in which the
nation approaches its environment. It can arise from either a legal obligation
not to act, or an incapacity or an unwillingness in the particular circumstances
to act.
✓ Indeed, the continued habit of not taking actions in certain situations may lead
to the formation of a legal rule.
✓ In Lotus case, the Permanent Court of International Justice, predecessor
of ICJ, laid down a high standard by declaring that abstention could only give
rise to recognition of a custom, if it was based on a conscious duty to abstain.
✓ In other words, the acquiescence must be based on the full knowledge of the
rule invoked.
✓ Failure to act when in some way it is connected to lack of knowledge, is not
acquiescence in any manner.
• State Practise?
✓ It is how states behave in practise that forms the basis of customary law, but
evidence of what a state does can be obtained from different sources.
✓ In Germany v Italy (2011): State practice of particular significance is to be
found in the judgements of national courts…”
 ✓ Obvious examples include: Administrative acts, legislations, decisions of
domestic courts and activities on international stage example treaty making.
✓ A state is not a living entity but consists of governmental departments and
thousands of officials. The state’s activities are spread throughout a whole range
of national organs. Each of them engages in activities of different international
levels and therefore, examination of all such material source can be done.
✓ International Organisations may be instrumental in creation of customary law.
Ex.: The Advisory Opinion of ICJ declared that the UN possessed
international personality was partly based on the actual behaviour of the United
Nations.
✓ The International Law Commission has also pointed out that “records of the
cumulative practice of international organisations may be regarded as evidence
of CIL with reference to states’ relation to IO.
✓ Claims and conventions of states in various contexts have been adduced as
evidence of state practice, though the value may depend on circumstances.
✓ Thus, formulation of state practise covers any act/statements by a state from
which views of customary laws may be inferred.
• Opinio Juris
✓ Once the existence of a specified usage has been established, it becomes
necessary to consider how the state views its own behaviour.
✓ Opinio Juris or a belief that a state activity is legally obligatory, is the factor that
turns the usage into a custom and renders it part of the rules of international law.
✓ States will behave in a certain way as they are convinced that it is binding upon
them to do so as ILS Conclusion 9(1) puts it, ‘the practise in question must be
undertaken with a sense of legal rights or obligation.’
✓ Lotus Case:
(i) French ship Lotus collided with Boz-Kourt, a Turkish Ship, leaving
many people from the Turkish Ship drowned. The French officer of the
watch when reached Istanbul, was arrested on charge of manslaughter.
(ii) Question arose whether the Turkey had jurisdiction to try him.
(iii) French maintained that there existed a CIL, that only the flag state
(France) of the accused had exclusive jurisdiction and accordingly the
national state of the victim (Turkey) was barred from trying him.
(iv) They referred to the absence of previous criminal prosecutions by such
states in similar situations and deduced that it was a tacit consent leading
it to be a legal custom.
(v) PCIJ rejected it and said that such practise of abstention would not
amount to a custom, since the states were not legally obligated to
abstain. Thus, the essential ingredient of obligation was lacking and
the practise remained a practise and nothing more.
✓ North Sea Continental Shelf Case:
(i) Similar approach was followed.
✓ Nicaragua v United States:
(i) Reference was made to North Sea case
 (ii) Held, “For a new customary rule to be formed, not only must the acts
concerned ‘amount to a settled practise’, but they must be accompanied
by the opinio juris sive necessitates.
(iii) Either the states taking such action or other states in a position to react
to it, must have behaved so that their conduct is ‘evidence of a belief
that this practise is rendered obligatory by the existence of a rule of law
requiring it’.
✓ Germany v. Italy (Greece application to intervene)
(i) Reaffirmed the same
✓ It is thus clear that the court has adopted and maintained a high threshold with
regard to opinion juris.
✓ Problem connected with opinio juris: If it calls for a behaviour in accordance
with law, how can new customary rules be created, since that obviously requires
actions different from or contrary to what until then is regarded as law?
✓ Thus, when a state practise is there, the response of other states has also to be
taken into account and therefore, the rigid definition of legality of an action is
to be modified as other state’s response help shape whether the new practise
can become a law. Example: If countries start prosecuting cybercrimes
internationally and others accept it, over time, it could become a new customary
law.
✓ As held in Nicaragua v United States, reliance by a state on a novel right or an
unprecedented exception to the principle might, if shared in principle by other
States, tend towards a modification of customary international law. However,
this kind of approach is sometimes difficult because one cannot exactly
pinpoint when one rule supersedes other, which is a complication inherent in
the nature of custom.
✓ This flexible view has to be taken to accommodate the idea of a new law in
future.
✓ There has to be an aspect of legality in the action of state.
✓ Due to difficulty in proving OJ, conduct within IO is considered evidence.
✓ The “Key” here is the conduct of the states.

• Protest, Acquiescence & Change in CL

✓ Customary law is thus established by virtue of
(i) a pattern of claim
(ii) Absence of protest by states, particularly interested in the matter at hand
(iii) Acquiescence by other states.
✓ In Gulf of Maine Maritime Boundary Case, the Chamber of the International
Court, defined acquiescence as “equivalent to tacit recognition manifested by
unilateral conduct which the other party may interpret as consent as founded
on the principles of good faith and equity”.
✓ Actual protests are to be called for by the other states to break the legitimising
process of the State acting.
✓ As ILC Conclusion 10 (3) on the Identification of Customary International
Law put it:
 “Failure to react over time to a practice may serve as evidence of acceptance
as law (opinion juris), provided that States were in a position to react and the
circumstances called for some reaction.”
✓ Lotus Case: Only if such abstentions were based on their being conscious of
having a duty to abstain would it be possible to speak of an IC.
✓ Thus, one cannot infer a rule prohibiting certain action merely because states do
not indulge in such activity.
✓ Anglo-Norwegian: Where a state acts contrary to the established customary rule
and other states acquiesce in this, then the state is to be treated as not bound by
the original rule. In other words, a state opposing the existence of a custom from
its inception would not be bound by it, known as “Persistent Objector Rule”.
✓ 3 points of CA
(i) Protest of a few states against a new rule will not overrule it.
(ii) Constant protest by one state= May be an exception (But depends on
facts also).
(iii) New rule may replace or co-exist with old rule. (Ex.: Territorial sea-
related customary law)
• Regional/Local Custom
✓ Asylum Case: Columbian claim over a particular regional custom peculiar to
Latin American states, validate its position over the granting of asylum. Court
held, “Party which relies on a custom of its kind must prove that this custom is
established in such a manner that it has become binding on the other party.”
However, such a custom could not be proved due to uncertain and contradictory
evidence. STANDARD OF PROOF REQUIRED HERE IS TO BE HIGHER
THAN OTHER ORDINARY OR GENERAL CUSTOMS.
✓ Right of Passage over Indian Territory Case:
(i) Portugal claimed that there existed a right of passage between the
Portuguese enclaves and Indian territory.
(ii) No local custom can be established between only two states.
(iii) Court declared: It was satisfied that if there existed in past a constant
and uniform practice allowing free passage and that the ‘practice was
accepted as law by the parties and has given rise to a right and a
correlative obligation’.
(iv) Thus, the court established that if a practise is clearly established
between 2 states which was accepted as governing relations between
them, this practice will prevail over general practise.
✓ In the general customary rule, the consensus of majority or substantial minority
of interested states is sufficient to create a new custom, but in local custom, the
acceptance of both states is essential.

International Treaties:
• In contrast with the process of creating law through custom, treaties are a more modern
and more liberate method as per Oppenheim.
• Art. 38 refers to ‘international treaties’ whether general or particular, establishing
rules expressly recognised by the contracting states.
• Treaties sometimes called convention, agreements, protocols, international agreements,
pacts, general acts, charters, statutes and covenants.
• All these refer to similar transaction, the creation of written agreements whereby the
states participating bind themselves legally to act in a particular way or to set up
particular relations between themselves. A series of conditions and arrangements are
laid out which the parties oblige themselves to carry out.
• Obligatory nature of treaties is founded upon the customary IL principle that
agreements are binding. (Pacta sunt servanda). A treaty does not create either
obligations or rights for a third State without its consent.
• Example: The Charter of the UN, Vienna Convention on Diplomatic Relations
(1969) it was signed, codifying and developing existing customary rules; cam einto
force in 1980, Convention on the Rights of Persons with Disabilities etc.
• Types of International Treaties:
(i) Law-making treaties: Intended to have a universal or general relevance.
(ii) Treaty contracts: Apply only between two or a small number of states.
• 1969 Vienna Convention on the Law of Treaties defines “Treaty” as “an
international agreement concluded between States in written form and governed by
International Law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.”
• It does not apply to international agreements not in written form.
• Excludes agreement between states that is governed by law other than IL.
• Treaties may be concluded by States in any manner they wish. There are no obligatory
prescribed forms or procedures to be followed. Negotiating, formulating, signing and
adopting a treaty are subject to the intention and consent of the contracting States.
• However, the 1969 Convention on the Law of Treaties provides general rules
applicable to the conclusion of treaties, rules regarding the capacity and the
competent persons to conclude treaties, the adoption and authentication of the text of
treaties, and the adoption of treaties.
• State Capacity to Conclude Treaties
✓ Every State has the capacity to enter into treaties.
✓ States act through representatives with the authority to adopt, authenticate, or
express consent to treaties.
• Consent to a Treaty by Signature
✓ A State is considered to have consented if:
✓ The treaty explicitly states that signature implies consent.
✓ Negotiating States agreed that signature would indicate consent.
✓ The representative’s authority (full powers) or negotiation statements confirm
intent.
✓ Signing a treaty = Officially affixing the representatives' names.
• Consent by Exchange of Instruments
✓ A State consents when:
✓ The treaty states that exchanging instruments constitutes consent.
✓ Negotiating States agreed that such an exchange signifies consent.
• Ratification: After sign, may not be binding. Sometimes, subject to the approval of
head on the state, to limit the power of the representative of state entering into the
 Treaty. Also provides time between the sign and the ratification to come up with a
domestic law parallel to the treaty.
• Reservation: The state my object or reserve some legal effects of certain provisions of
the treaty to be followed by it.
• Coexistence of Customary and Treaty Law
✓ A treaty rule covering the same subject as a customary rule does not replace the
customary rule.
✓ Customary international law continues to exist separately from treaty law.
✓ Case: Nicaragua v. United States
✓ The U.S. argued that customary norms on self-defense were subsumed under
Article 51 of the UN Charter.
✓ The Court rejected this, emphasizing that even if a treaty and customary norm
have the same content, the customary norm remains independently applicable.
• Treaties Impacting Non-Parties
Some treaties create a legal regime extending to non-parties.
Examples:
✓ UN Charter (Article 2(6)) – Requires non-member states to follow UN
principles if necessary for maintaining peace and security.
✓ GATT (1947) → WTO – Established international trade rules affecting even
non-member states.
• Legal Maxims:
(i) PACTA SUNT SEVANDA
(ii) PACTA TERTIS NEC NOCENT NEC PROSUNT: Article 34 of the Vienna
Convention which says that “a treaty does not create either obligations or rights
for a third State without its consent.”
(iii) REBUS SIC STANTIBUS: “Things standing thus.”
Where there has been a fundamental change of circumstances, a party may
withdraw from or terminate the treaty in question. An obvious example would
be one in which a relevant island has become submerged.
General Principles
• If there is a situation where then court realises that there is no law covering exactly that
point/ subject matter, neither parliamentary statute nor judicial precedent, in such
situation the judge will deduce a new rule that will be relevant. This will be done by an
analogy
(i) from already existing rules or
(ii) directly from the general principles that guide the legal system.
Whether they be referred to as emanating from justice, equity or considerations of
public policy.
• We need this as a source of law because IL is not quite as developed as Municipal Law
system. Because of this reason, that the provision of the general. It was inserted in Art.
38 as a source of law.
• General principles of law are used primarily as "gap fillers“ to prevent a non liquet
when treaties or customary international law do not provide a rule of decision. We need
this to close the gap legally known as “non-liquet”. International tribunals rely on these
principles when they cannot find authority in other sources of international law.
• Treaties are constitutive in the same sense as they create international institutions and
acts.
• This also shows that even though there is not an immediate legal principle always
catering to every issue, but every issue can be solved as a matter of law.
• Two viewpoints by writers:
(i) Natural law: Some writers regard it as an affirmation of Natural Law concepts
deemed to underlie the system of IL and can test the validity of positive (man-
made) law.
(ii) Positivists: They treat it as a sub-heading under the treaty and customary law
and incapable of adding anything new to the IL unless it reflects the consent of
states.
Soviet writers like Tunkin regarded GPL as “Fundamental precepts of
international law.”
(iii) Most writers accept it as a separate source of law but to a limited extent.
✓ Examples of these general principles of law are laches, good faith, res judicata, and
the impartiality of judges.
✓ Case laws:
(i) Chorzow Factory Case: PCIJ declared that ‘it is a general conception of law
that every violation of an engagement involves an obligation of state to make
reparation’.
(ii) The Corfu Channel case: When referring to circumstantial evidence, PCIJ
pointed out that ‘this indirect evidence is admitted in all systems of law and
its use is recognized by international decisions’.
(iii) The Genocide Convention case (Bosnia and Herzegovina v. Serbia and
Montenegro: The principle of res judicata was recognized.
(iv) Nuclear Tests Cases: One of the basic principles governing the creating and
performance of legal obligations is the principle of good faith. The binding
character of international obligation is based on the same.
(v) Gabcıkovo–Nagymaros Project case- “ex injuria jus non oritur”: Law/right
does not arise from injustice, it was recognized as principle of IL.

Equity:
• Set of principles constituting values of the system.
• One of the most famous cases on equity is “The diversion of water from the River
Meuse Case” (Holland v Belgium): Judge Hudson said that equity has long been a part
of IL.
• Art. 38 of the Statute: The court has some freedom to consider principles of equity as
a part of IL.
• However, we must be cautious about its use as it might be considered as a creative tool
for legal development but the scope of application has to be limited.
• Rann of Kutch Arbitration between India and Pakistan: Equity as a source of IL was
recognized by the tribunal.
• North Sea Continental shelf case: The delimitation in the end was done in accordance
with the equitable principles.
• Libya/Malta Continental Shelf Case: Justice of which equity is an emanation, is not
an abstract justice but justice according to the rule of law. Its application should display
consistency and a degree of predictability.
• The principle of equity has been recognised under Article 59 (Conflict between coastal
and other states regarding EEC), 74 (Agreement between states with opposite or
adjacent coasts) and 83 of the Statute.
• Equity is not equal to equality, however, under special circumstances, the latter is
generally the best example of the former.
• “Elementary principles of humanity”: may lie at the base of such norm, and justify
their existence in the broadest sense.

Erga Omens Obligation (Obligation that states owe to international

community) and Jus Cogens (Fundamental principles of IL):
• The question of hierarchy of sources is more complex than appears at first sight. IL is
not as clear as DL, in listing the order of constitutional authority and situation is further
complicated by presence of International courts and tribunals which exist in a non-
hierarchical fashion as well as expansion of IL.
• Judicial Decisions and Writings clearly have a subordinate functjnion in hierarchy since
they are subsidiary means of law under Art. 38 (1) of the ICJ statute.
• While the role of general principles of law as a way of complementing custom and
treaty law places that category fairly firmly in third place.
• The question of priority as between custom and treaty law is more complex.

So, Custom vs. Treaty Law??

• As a general rule, that which is later in time will have priority (lex posterior derogate
priori)
✓ Treaties are formulated to replace or codify existing customs
✓ While treaties in turn may themselves fall out of use or may be replaced by new
customary rules.
✓ Where the same rule appears in both, there is no presumption that the latter is
subsumed by the former.
✓ The two may co-exist, therefore, this principle does not apply.
• A special rule may prevail over a general rule (lex specialis derogat legi generali)
✓ Ex.: Treaty rules between states as lex specialis would have more priority as
against general rules of treaty or customary law between the same states,
although not if the general rule in question was of jus cogens (Fundamental
principle of IL). (Ireland v UK)
✓ But the position is complicated by the existence of norms or obligations to be
of different or higher status than others, whether derived from custom or treaty.
Meaning the principle of special rule prevailing over general rule does not work
if the general rule in question creates an erga omnes obligation (Obligation
towards all) or rule of jus cogens (peremptory norms).
Erga Omnes: Procedural Focus
Jus Cogens: Substantive rules recognised to be of higher status.
 • ICJ in Barcelona Traction Case (Belgium v Spain) (1970), An essential distinction
should be drawn between the obligations of a State towards the international
community as a whole, and those arising vis-à-vis another State in the field of
diplomatic protection.
• Examples of such obligations included the outlawing of aggression and of genocide
and the protection from slavery and racial discrimination, prohibition of torture.
• East Timor Case: Right of people to self-determination has an “erga omnes” character.
• Application of the Genocide Convention (Bosnia and Herzegovina v Serbia and
Montenegro): The rights and obligations enshrined in the convention are rights and
obligation erga omnes.
• Jus cogens: In latin, ius cogens means a “Compelling law.”
• Jus cogens is defined by the convention as: one accepted and recognised by
international community of states as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character.
• The concept of jus cogens is based on acceptance of fundamental and superior values
within the system and in some aspects akin to public order or public policy in domestic
legal orders.
• Two stage approach under Art. 53:
(i) Establishment of proposition as a rule of general international law
(ii) The acceptance of that rule as a peremptory norm by international law community
of states.
Also, it states, that a treaty that is contrary to an existing rule of jus cogens is void ab initio.
• Art. 64: An existing treaty that conflicts with an emergent rule of jus cogens
terminates from the date of emergence of such rule. Similar applies to customary
international law.

Judicial Decisions:
• No rule of stare decisis in IL. (To stand by a decided case/precedent).
• As per Art. 38, JDs are to be utilised as subsidiary means for determination of rules of
law rather than as an actual source of law.
• Although, in Art. 59 of ICJ Statute, the decision of court have no binding force, except
as between the parties and in respect of the case under consideration, the court has still
striven to follow its previous judgements and insert a measure of certainty within the
process.
• Therefore, the Court often refers to its past decisions and advisory opinions to support
its explanation of a present case.
• It does not mean that a decision of the court will be invariably accepted in later
discussions and formulation of laws.
• One example of this is part of the decision in the Lotus case, which was criticized and
later abandoned in the Geneva Conventions on the Law of the Sea. (Croatia v Serbia):
The court declared that it will not depart from its settled jurisprudence unless it finds
very particular reasons to do so.
 • However, the rule of following the precedents (where ruling of certain courts is to be
followed by other courts) is not followed in IL.
• The ICJ itself will closely examine its previous decisions and will carefully distinguish
those cases which it feels should not be applied to the problem being studied.
• Sometimes the question arises as held in Cameroon v Nigeria: The real question is
whether, in this case, there is cause not to follow the reasoning and conclusion of earlier
cases.”
• Sometimes, while interpreting, the ICJ does a little more than what is said to
“Determine” it. Most, outstanding instance is: Anglo-Norwegian Fisheries Case: with
its statement of the criteria for the recognition of baselines from which to measure the
territorial sea, which was later enshrined in the 1958 Geneva Convention on the
Territorial Sea and Contiguous Zone.
• In addition to PCJ and ICJ, JDs also include international arbitral awards and rulings of
national courts.
• The opening of new era for peaceful settlement of international suits by way of
increasing use of JDs and Arbitration methods marked its way through Alabama Claims
Arbitration.

Writers/Juristic Writings
• Teachings of the most highly qualified publicists of the various nations are also among
the ‘subsidiary means for the determination of the rules of law’ under Art. 38.
• Writers such as Gentili, Grotius, Pufendorf, Bynkershoek and Vattel, Giddel on the law
of seas were the supreme authorities of the sixteenth to eighteenth centuries and
determined the scope, form and content of IL.
• Historically, they had more value and influence than state practices and JDs.
• With the rise of positivism and the consequent emphasis upon state sovereignty, treaties
and custom assumed the dominant position in the exposition of the rules of the
international system, and the importance of legalistic writings began to decline.
• Books are now considered more of a source of knowledge rather than source of law
• However, they play an important role in provoking thoughts and values about IL,
pointing out defects and giving suggestions for future.
• There is an exaggerated accusation that textbook writers merely project the natural
stereotypes but it has to be judged on a case to case basis.

Other Possible/Additional Sources

• There are various other sources of law apart from the one in ICJ statute sometimes bcos
they can’t be categorised.
• Soft Law: Non-binding instruments that guide state behaviour and reflect emerging
norms.
• Example:
(i) Resolutions of assembly and declarations are generally not binding and are
merely recommendatory.
(ii) Rio Declaration on Environment and Development (1992).
(iii) UN General Assembly’s Universal Declaration of Human Rights (1948)
(iv) Security Council Resolution (Sanctions and peace-keeping)
 (v) OECD Guidelines for Multinational Enterprises.
• Importance: Often serve as precursors to binding treaties and customs.
• Recognized as supplementary or emerging sources of international law.
• These are not binding unless adopted under specific frameworks (e.g., Chapter VII of
the UN Charter), but they can influence customary law.
• Understanding Law-Making, Law-Determining, and Law-Evidencing in
International Law
✓ Confusion in Law Development

➢ After WWII, various methods of developing law emerged.

➢ Key issue: The role of UN General Assembly (UNGA) resolutions in law-
making.
➢ Developing countries gained more influence, leading to a shift from European
dominance.

✓ UNGA Resolutions vs. UN Security Council Resolutions

➢ Security Council (SC) resolutions are binding under Articles 24 & 25 of the
UN Charter.
➢ The ICJ in the Legality of the Threat or Use of NuclearWeapons Advisory
Opinion observed that General Assembly resolutions, even if they are not
binding, may sometimes have normative value
➢ Originally, GA was meant to be an advisory body, while SC made binding
decisions.
➢ For example, the 1960 Declaration on the Granting of Independence to
Colonial Countries and Peoples, which was adopted with no opposition and
only nine abstentions and followed a series of resolutions in general and
specific terms attacking colonialism and calling for the self-determination of
the remaining colonies, has marked the transformation of the concept of self-
determination from a political and moral principle to a legal right and
consequent obligation, particularly taken in concurrence with the 1970
Declaration on Principles of International Law.

✓ Growing Importance of GA Resolutions

➢ Many significant resolutions & declarations have influenced international law.

➢ Voting patterns in GA reflect state practice and legal understanding.
➢ Example: A country consistently voting against apartheid shows acceptance of
the rule against racial discrimination.

✓ Nicaragua v. United States (ICJ Case)

➢ The International Court of Justice (ICJ) suggested that GA resolutions can

contribute to customary international law.
➢ the opinio juris requirement could be derived from the circumstances
surrounding the adoption and application of a General Assembly resolutions.
The effect of consent to resolutions such as this one ‘may be understood as
acceptance of the validity of the rule or set of rules declared by the resolution
by themselves.
 ➢ Opinio juris (belief that a practice is legally binding) may be derived from
how states vote and react to resolutions.
➢ Example: UNGA Resolution 2625 (on Friendly Relations) was seen as
evidence of legal principles.

✓ Impact on Customary Law

➢ If states accept a resolution as valid, it may speed up the process of creating

customary international law.
➢ GA resolutions can help clarify or develop existing legal commitments under
treaties like the UN Charter.
➢ The same cautious approach applies to resolutions from other international
organizations.

The International Law Commission

• The International Law Commission was established by the General Assembly
in 1947 with the declared object of promoting the progressive development of
international law and its codification.
• Many of the most important international conventions like the international
conventions on the Law of the Sea, convention on Diplomatic Relations,
have grown out of the Commission’s work.
• ILC will prepares a draft convention which is submitted to the various states for
their comments and is usually followed by an international conference convened
by the United Nations which eventually emerges as treaty. This procedure was
followed in Law of Sea (1958), Special Missions (1969). Etc.
• The drafts of the ILC are often referred to in the judgments of the International
Court of Justice
• Structure:
✓ 34 members from Asia, Africa, America, Europe
✓ Remain in office for 5 years each
✓ Appointed from lists submitted by national governments.
✓ The Commission is aided in its deliberations by consultations with various outside
bodies.
• Apart from preparing drafts, ILC also issues reports and studies and has
formulated such documents as the Draft Declaration on Rights and Duties of
States, 1949 etc. These drafts are referred to by councils during judgements.
• Thus, one case say that ILC is involved in at least two of the major sources
of law: Treaties and CIL.
Other Bodies
• Although the International Law Commission is by far the most important of the
organs for the study and development of the law, there do exist certain other
bodies which are involved in the same mission.
1. International Law Commission (ILC)
• Most important organ for studying and developing international law.
Established by the United Nations (UN) to codify and progressively develop
international law.
 2. UN Bodies Involved in International Law
• United Nations Commission on International Trade Law (UNCITRAL)
✓ Focuses on international economic and trade law.
✓ Develops harmonized legal frameworks for global trade.
• United Nations Conference on Trade and Development (UNCTAD)
✓ Works on laws related to economic, financial, and development
activities.
✓ Helps developing countries integrate into the global economy.
• Committee on the Principles of International Law
✓ A temporary organ that drafts declarations & statements on key legal
principles.
3. Specialized UN Agencies Developing International Law
• International Labour Organization (ILO)
✓ Develops international laws & conventions on labour rights &
working conditions.
• United Nations Educational, Scientific and Cultural Organization
(UNESCO)
✓ Works on cultural, scientific, and educational law at the international
level.
4. Independent Bodies Contributing to International Law
• International Law Association (ILA)
✓ Studies and promotes the development of global legal principles.
• Institut de Droit International (IDI)
✓ A leading private organization dedicated to advancing international
law.
• Harvard Research Drafts (Pre-WWII)
✓ Academic research that provided valuable legal insights & principles.
✓ Still holds significance in modern international law studies.
Unilateral Acts

• In certain situations, the unilateral acts of states, including statements made by

relevant state officials, may give rise to international legal obligations.
• Such unilateral acts include recognition and protests, which are intended to have
legal consequences.
• Unilateral acts, while not sources of international law as understood in article
38(1) of the Statute of the ICJ, may constitute sources of obligation.
• Such unilateral statements may be used as evidence of a particular view taken
by the state in question.
• For this to happen, the intention of the state is important as it will lead to
publicity or notoriety and such intention may be ascertained by way of
interpretation of the act and the principle of good faith.
• Recognition by the third party is important here, so that the acts can be
opposable by them.
 THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW

Introduction:
The role of the state in the modern world is a complex one. According to legal theory, each
state is sovereign and equal. However, in reality, with the phenomenal growth in
communications and consciousness, and with the constant reminder of global rivalries, not
even the most powerful of states can be entirely sovereign.
Interdependence and the close-knit character of contemporary international commercial and
political society ensures that virtually any action of a state could well have profound
repercussions upon the system as a whole.
With this rise & extension, there are questions which are beginning to arise regarding the
parallel role played by the state within the IL and the rules of a particular country. The
relationship between international law and municipal law has been the subject of scholarly
debate and judicial interpretation for centuries.
Relevance: The interaction between these legal systems is crucial in determining how states
implement international treaties, resolve conflicts between domestic and international norms,
and uphold their obligations in the global legal order.
Definitions:
International law- Consists of the rules and principles of general application dealing with the
conduct of states and international organisations in their international relations with one
another. It deals with issues between state and international organisations. It establishes legal
norms on diplomatic relations, war and peace, trade, environment protection and fundamental
human rights.
Municipal law- The national, domestic, or internal law of a sovereign state defined in
opposition to international law. Deals with issues between individuals or between individuals
and administration. Regulating various aspects such as criminal law, constitutional law,
administrative law, property law and civil law.
The application of international law in municipal court depends upon the Constitution of the
State. Public international law leaves each country to decide on the relationship between
international law and municipal law.
One of the primary issues in this discourse is whether international law is automatically
incorporated into a state's legal system or whether it requires specific legislative action to
be enforceable. This distinction has led to the development of various legal theories. From
the point of view of public international law, it is upon each State to decide upon the
relationship between international law and the State’s municipal law (i.e national law). On the
theoretical plane, there exist two polar theories that find application in constitutional law of
respective States, namely (i) dualism and (ii) monism (iii) Specific Adoption Theory/
Transformation Theory and (iv) Delegation Theory
Some states, such as Germany and the Netherlands, adopt a monist approach, where
international treaties become part of domestic law upon ratification. Others, like India, the
United Kingdom, and Australia, adhere to dualism, requiring legislative approval before
international law can be enforced domestically.
Monism
The monist theory, developed by Hans Kelson, assets that
• The ultimate basis of the legitimacy of all legislation is a basic rule of international
law known as the "Grundnorm." Kelsen's Grundnorm Theory proposes that all
legal norms derive their authority from a fundamental norm in international law.
• International and domestic legal orders are normatively interconnected.
• International and domestic law are part of the universal legal order.
• National Law that contradicts international law is null and void.
• International law and municipal law form a one unified legal system where IL takes
precedence. If they collide, regulating the same subject matter, any such conflict
would be resolved in favor of public international law.
• Once a state ratifies a treaty, it automatically becomes a part of domestic law without
requiring additional legislation.
• The International law principles were immediately applicable in states' domestic
spheres
• Examples of Monist Systems:
✓ Netherlands: International law applies directly in Dutch courts without the
need for transformation.
✓ France: Article 55 of the French Constitution gives primacy to international
treaties over national law.
✓ Germany: A Monist Approach with Dualist Aspects for Treaties
➢ The Grundgesetz (Basic Law) of Germany explicitly recognizes the
supremacy of international law in specific circumstances.
➢ Article 25(2) of the German Constitution states that "The general
rules of public international law shall be an integral part of federal
law. They shall take precedence over laws and shall directly create
rights and duties for the inhabitants of the federal territory."
➢ This provision ensures that customary international law and basic
principles of international law automatically become part of
German law, taking precedence over conflicting national legislation.
➢ However, Germany follows a dualist approach for treaties, as per
Article 59(2) of the German Constitution, which states that treaties
must be incorporated through federal legislation before they
become enforceable domestically.
✓ United Kingdom: A Limited Monist Approach for Customary Law
➢ The british structure is most similar to Indian approach although its
stricter as to the incorporation of international treaties and conventions.
➢ Here, CIL is to be treated to be as a part of British law.
 ➢ Il must be in consonance with British law.
➢ The United Kingdom, despite its strong dualist approach toward
treaties, recognizes customary international law as part of English law
so long as it does not contradict Acts of Parliament.
➢ Rule of Harmonious Construction: British court try to stricke a
balance between Int. and National Law.
➢ Trendtex Trading Corporation v. Central Bank of Nigeria (1977)
established that customary international law is automatically
incorporated into English law, provided it does not conflict with
legislation.
➢ Treaties, however, require an Act of Parliament to be transformed
into domestic law, therefore reflecting a dualist system of law.
reaffirmed in R v. Lyons (2002), also in Salomon v Commissioner of
Customs and Excise.
➢ Int. treaties and conventions do not automatically become law of land
but CIL does.
✓ France and the Netherlands: Pure Monist Systems
➢ Article 55 of the French Constitution ensures that treaties
automatically become part of domestic law once ratified and take
precedence over national legislation.
✓ The Netherlands (Article 93 of the Dutch Constitution) follows an even
stronger monist approach, allowing individuals to directly invoke
international treaties in Dutch courts without requiring parliamentary
approval.

• Key Case Law:

✓ Costa v. ENEL (1964) – European Court of Justice: Established that
European Union (EU) law takes precedence over national law in monist legal
systems.
✓ Paquete Habana Case (1900) – U.S. Supreme Court: Ruled that customary
international law is part of U.S. domestic law, supporting monism for
customary norms.

Dualism
• The Dualist Theory supported by Heinrich Triepel (German) and Dionisio Anzilotti
(Italian), posits that Il and ML are two independent legal systems, separate from one
another.
• Neither of the two legal systems has got the power to create or modify the norms of the
other.
• International and domestic laws operate in distinct and compartmentalized spheres
• Dualists argue that international treaties and norms do not automatically become part of
domestic law; instead, they must be incorporated or transformed through legislative
action before they can be enforced.
• The sources of law, its subjects, and subject matter are the primary distinctions between
international and domestic law as per Anzilotti. International law is derived from states'
collective will, its subjects are the states themselves, and its subject matter is international
 relations. Domestic law is derived from the sovereign's or State's will, its subjects are
persons inside the State, and its subject matter is the relationships between persons and
government.
• The only mechanism for the transformation of international law into domestic law is
through regular domestic law-making processes.
• In Dualism, at no circumstances, the IL can prevail over the ML, it is the ML which is
always supreme.
• Sanctioned by domestic legal processes
• Examples of Dualist System:
✓United Kingdom: Treaties must be incorporated into domestic law through an Act
of Parliament.
✓ India: Treaties require legislative approval under Article 253 of the Indian
Constitution.
✓Australia: International treaties must be implemented through national legislation.
• Key Case Law:
✓ R v. Lyons (2002) – UK House of Lords: Confirmed that treaties are not
enforceable in UK courts unless incorporated into domestic law.
✓ Jolly George Varghese v. Bank of Cochin (1980) – India: Supreme Court held
that international treaties must be incorporated into domestic law before they can
be enforced.

Transformation Theory/ Specific Adoption Theory:

It argues that IL must be transformed into National Law through a formal legislative process.
A treaty or international rule must be converted into a domestic statute by the legislature
before it becomes legally enforceable.
• According to the Positivists, IL can only be implemented in the realm of ML if
Municipal legislation allows or approves it.
• This doctrine grew from the procedure whereby international agreements are rendered
operative in municipal law by the device of ratification by the sovereign and the idea
has developed from this that any rule of international law must be transformed, or
specifically adopted, to be valid within the internal legal order.
• Example: The Indian Parliament passed the Diplomatic Relations Act, 1972, to
accept the Vienna Convention on Diplomatic Relations, 1969. The Indian Extradition
Act of 1962, the United Nations Convention Against Apartheid Act of 1981, the Anti-
Hijacking Act of 1982, etc.
• The criticism of this theory was that this perspective is incorrect in terms of all
international law because many elements of international law (particularly customary
rules) are implemented in the realm of municipal law without formal adoption.
• Jolly George Varghese v. Bank of Cochin, ruled that just because India has made an
international commitment or signed a treaty, it does not automatically become a law in
the country. For it to be legally binding in India, the Parliament must pass a law
incorporating it into the Indian legal system.

Incorporation Theory:
 • Well-settled principles of IL are incorporated in State law automatically or by way of
evidence.
• In Orissa State Abolition Act Case, Property was acquired by the govt. Questions
were raised regarding compensation to be paid by the govt. for the same under sec. 17
of the UDHR. But there was a provision for same under art. 31 of the Indian consti.,
hence, Art. 31 was upheld.

Delegation Theory:
• Acc. To this theory, there is the delegation of a right of rule-making power to every
state to decide for itself when the provisions of a treaty or convention are to come into
effect and in what manner they are to be incorporated in the law of the land or ML in
respect with the procedure and system prevailing in each state.
• Two premises of this theory:
(i) There must exist constitutional principles of IL.
(ii) Delegation of IL to the states.
• There is no need of the transformation of a treaty into National law but the act is
merely an extension of one single act.
• Presumes the IL is superior
• This theory cannot stand if there is consent on the part of sovereign states.
• The delegation theory is incomplete for it does not satisfactorily meet the main
argument of the transformation theory.
• It assumes the primacy of international legal order but fails to explain the relations
existing between ML and IL.
Implementation of IL in Indian ML:
India is a dualist state, which can be understood by way of its constitutional framework and
judicial precedents.
• Constitutional Framework:
✓ Art. 51 (c): Mandates the state to "foster respect for international law and
treaty obligations in the dealings of organized peoples with one another.”
✓ Art. 253 and 246: Parliament has exclusive power to make laws to implement
international treaties and conventions.
✓ In A.D.M. Jabalpur VS Shukla (1954), Justice H.R. Khanna in his dissenting
held likewise by stating that if there is a conflict between municipal laws
International Law (customary International Law), and the Courts shall give
municipal law.
✓ Jolley George Verghese v. Bank of Cochin (1980): Landmark case in view of
application of IL in India. It specifically lays down that in order for treaty
obligations to arise, there needs to be transformation or adoption of such
treaties.
Here, S. 51 of the CPC and Art. 11 of the ICCPR were in conflict with
regard to contractual obligations and whether to put in jail for non-
performance of contractual obligations.
J Krishna Iyer interpreted State law and IL harmoniously and stated the
following:
➢ IL cannot be applied unless transformed into State law
➢ Remedy for breach of IL cannot be found in ML unless made part of
the law of land
➢ IL per se does not have application in the Indian legal system.
➢ Treaties and conventions even after being ratified can only be applied
if there is legislation through constitutional principles made in this
regard.
✓ Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984):
The Supreme Court held that customary international law is automatically part
of domestic law unless it conflicts with an existing statute.
✓ Vellore Citizens Forum v Union of India:
➢ The Indian judiciary has invoked international environmental
principles like the precautionary principle, polluter pays principle, and
the principle of intergenerational equity.
➢ The Supreme Court referred to the Rio Declaration and other
international environmental law principles to address industrial
pollution.
➢ [Once] ‘principles are accepted as a part of the Customary
International Law there would be no difficulty in accepting them as
part of the domestic law. It is almost an accepted proposition of law
that the rules of Customary International Law which are not contrary to
the municipal law shall be deemed to have been incorporated in the
domestic law and shall be followed by the Courts of Law.’
✓ State of West Bengal v Kesoram Industries Ltd.:
➢ SC declared that just signing a treaty does not guarantee that the law
will be enforced in India unless it is ratified by the Indian parliament.
➢ When the legislature has not declared anything to the contrary and the
legislation is silent, the SC has relied on principles of IL to render its
decisions.
✓ Vishakha v State of Rajasthan:
➢ The Supreme Court referred to international conventions, such as the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), to formulate guidelines against sexual harassment
in the workplace.
➢ ‘Any International Convention not inconsistent with the fundamental
rights and in harmony with its spirit must be read into these provisions
to enlarge the meaning and content thereof, to promote the object of
the constitutional guarantee ...The international conventions and
norms are to be read into [fundamental rights] in the absence of
enacted domestic law occupying the field when there is no
inconsistency between them.’
✓ At the same time, the Indian Judiciary still holds the constitution as the
Supreme law of the land and in case of any direct conflict the constitution will
prevail. There are instances where international laws and decisions of Privy
Council had been binding on Indian cases.
✓ However, in the Behram Khurshid v. State of Bombay case, it was stated that
the Privy Council decisions are not absolutely binding on Indian courts and
would need the Court's intervention and competence. As a result, we can infer
that the Indian legal system would accept international laws as long as they
did not supersede municipal laws and respected and adhered to the rules
established by international laws and norms. This viewpoint was congruent
with English law, and the courts would proceed under the broad assumption
that domestic laws would not directly offend international norms and
principles.
✓ It is clear that no international treaties would be binding on domestic courts if
such treaties were not adopted by legislation. Therefore, only those treaties
would be binding on the municipal courts were enacted and enforced by the
legislation of India, treaties of international laws would not be binding as long
as the legislative had expressly mentioned that such treaties formulate a law of
the land. International law has evolved over the years and emerges as a
proactive source of multiple sources.
✓ Granting transgenders as a third category of genders in the case of National
Legal Services Authority v. Union of India, the court specifically stated that
in the absence of any laws passed by parliament, the court can apply
international law to determine acceptable principles on the subject matter and
render a holistic decision using international law. This is critical since India is
a developing country that, at times, requires guidance from
✓ National Human Rights Commission v State of Arunachal Pradesh (1996):
 ➢ The Supreme Court upheld the rights of Chakma refugees, citing
India's international obligations under the UDHR and ICCPR.
✓ Narmada Bachao Andolan v Union of India (2000):
➢ The court referenced international norms on substantial development to
uphold the construction of dam.
✓ In addition, many indian laws are based on international laws and models,
such as the Arbitration and Conciliation Act of 1996, which is based on the
UNCITRAL model, and many intellectual property rules are based on the
TRIPS agreement and WIPO policies, among others. As a result, any treaty
that india signs or ratifies is usually done so through a dualistic process.
Unless municipal legislation says otherwise, the Supreme Court normally
gives international law principles a lot of weight.
✓ Thus, it can be safely stated that Indian laws are generally in accordance with
India's international obligations, and if there is no express ratification, the
Supreme Court analyses and implements those laws to uphold the principle of
pacta sunt servanda. As a result, there is a close relationship between
municipal and international law in India, and it is being implemented to the
fullest extent possible in India.
• Limitation and Challenges:
✓ Legislative incorporation: The requirement for legislative action delays the
domestic implementation of treaties
✓ Judicial overreach: Critics argue that courts sometimes overstep by applying
international law without explicit legislative backing.
✓ Conflict with Domestic Law: Cases where international obligations conflict
with constitutional provisions or domestic laws poses interpretative
challenges.

Scenario in America:
• Charming Betsy Doctrine: (Murray v. Charming Betsy (The Danish Ship))
➢ The case involved an American seizure of a Danish ship, and the court held
that U.S. laws shouldn’t conflict with neutral rights under international law
unless absolutely necessary.
➢ The U.S. Supreme Court ruled that domestic laws should be interpreted to
avoid violating international law whenever possible.
➢ This doctrine supports a form of monism, where international law is respected
within national legal systems, but it also acknowledges that municipal law
takes priority if there is a direct conflict.
• Last in the line rule: (Chinese Exclusion case: Chae Ping v. US)
➢ If a treaty directly applies as law and deals with a subject that Congress has
authority over, it is treated like a regular law. Congress can change or cancel it
whenever it wants. In any case, the most recent decision made by the
government (whether a new law or a modified treaty) will take priority.
• Pacquete Habana Case (based on monism)
➢ International law is part of domestic law and must be applied by courts when
relevant. If there is no treaty, law, or precedent, courts rely on the customs of
civilized nations and the writings of legal experts as evidence of what the law
 is, not what it should be. Therefore, to this extent CIL is considered tobe
encompassed within the domestic laws of the country.
• With regards to international law emanating from treaties, the approach is monist in
spirit because a treaty is considered to be part of the law of the land once it
is ratified by the President with the consent of the Senate, provided that it is in
consonance with the US constitution; there is no requirement of an internal
legislation.
• As has been held in the case of United States v. Belmont, under Article VI of the
Constitution, for all international negotiations and agreements, state lines disappear.
That being said, the approach has developed to be more nuanced in so far as
distinction has been carved out specifying the approach if the treaty is self-executing
or non-self-executing whereby the former is incorporated into municipal law
automatically whereas for the latter, an enabling legislation is necessary.
• Medellin v Texas
➢ This Court has long recognized the distinction between treaties that
automatically have effect as domestic law, and those that—while they
constitute international law commitments—do not by themselves function as
binding federal law.

Scenario in France:
• In France, like in many other civil law countries, international laws are automatically
part of the national legal system without needing separate approval. Although the
current 1958 Constitution does not directly mention this, it refers to the 1946
Constitution, which stated that France follows international law.
• With regards to treaties, Article 55 of the French constitution unequivocally
stipulates that treaties or agreements which have been duly ratified or approved upon
publication will take precedence over Acts of Parliament. To that extent, treaties are at
a position which is superior to ordinary legislation but inferior to the
Constitution itself. However, treaties are still below the Constitution in terms of legal
authority.

Scenario in Australia:
• MIEA v. Teoh
➢ If a treaty (an international agreement) has not been made a part of a country's
local laws, it cannot directly create legal rights or obligations for individuals
within that country. However, if a law or rule within the country is unclear or
can be interpreted in multiple ways, courts should prefer an interpretation that
aligns with the country's obligations under international treaties—especially if
the law was created after or with the intention of following that treaty.
• Mabo v Queensland
➢ The common law does not necessarily conform with international law, but
international law is a legitimate and important influence on the development
of the common law, especially when international law declares the existence
of universal human rights.
• Nulyarimma v. Thompson
 ➢ With respect to customary international law, the Court has not specifically
adopted either of the two approaches (transformation or incorporation). This
is because case laws side with both approaches.
➢ In the present case, the court conducts a survey of overall position and
provides a recommendation in terms of the approach courts should
undertake.

Germany and UK are already covered in monism Portion!!

Theories Related to International law