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“Law Master’s” Publication “Public International Law”
Prof. S.D. Bhosale
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Public International Law(Introduction)
QUESTION BANK
1. Discuss the meaning, nature and sources of International Law.
2. What do you mean by International Law? Explain various theories governing the
relationship between International Law and Municipal law.
3 Explain in detail the various sources of International Law.
4. Explain various theories as to the relationship between International Law and Municipal
law. Discuss the Indian practice with the help of case law.
5. Explain the meaning and nature of International Law. Discuss the sources of
International Law.
6. Critically examine the nature and need of International Law.
7. What do you mean by International Law? What are various sources of International
Law?
Short Notes
1. Basis of International Law.
2. Sources of International Law.
3. Nature of International Law.
4. Individuals as the subject of International Law.
5. Custom as a source of International Law.
SYNOPSIS
I. Introduction-
II. Definition of International Law-
1. According to Oppenheim-
2. According to Brierly-
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“Law Master’s” Publication “Public International Law”
Prof. S.D. Bhosale
3. According to Starke-
III. Subjects of International Law-
1. State-
a) Definite territory-
b) Permanent Population-
c) Government-
d) A capacity to enter into relations with other states-
2. Individuals-
3. International Organization-
4. Non-State entities-
a) Members of composed states or federal states-
b) Insurgents and Belligerents-
c) National liberation movements-
IV. Nature of International Law-
1. International Law is not the law in the true sense-
2. No existence of superior political authority-
3. Not-fully sovereign State-
(a) Protectorate States-
(b) Vassal State-
(c) Federal States-
(d) Trust-Territories-
4. Not-Typical States-
(a) Holy See-
(b) Neutralized States-
(C) Free Cities-
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 of the State or individuals
within the State. It applies within the State (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.
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“Law Master’s” Publication “Public International Law”
Prof. S.D. Bhosale
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
and conventional rules 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’.
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-
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 recognized 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 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,
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“Law Master’s” Publication “Public International Law”
Prof. S.D. Bhosale
discuss the subjects of International Law as follows-
1. State-
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-
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-
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.
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-
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-
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“Law Master’s” Publication “Public International Law”
Prof. S.D. Bhosale
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-
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-
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 and Belligerents-
‘Insurgents’ are individuals who participate in an insurrection against their
government. ‘Belligerents’ are a body of insurgents who, by their temporary organised
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“Law Master’s” Publication “Public International Law”
Prof. S.D. Bhosale
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-
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-
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, 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-
‘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.
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“Law Master’s” Publication “Public International Law”
Prof. S.D. Bhosale
(b) Vassal State 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-
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-
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-
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 neutral state in the present day. Belgium and Luxembourg were neutralised
states. However, they ceased to be so after the First World War.
(C) Free Cities-
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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