Chapter 1 (General Introduction) Notes of Public International Law

 Notes on PIL
Chapter 1

a. Definition, Nature, and Importance

1. Definition of Public International Law

Public International Law refers to the set of rules, principles, and norms that regulate the relationship between sovereign states, international organizations, and, to some extent, individuals.

  • The term "International Law" was first coined by Jeremy Bentham in 1789, in his book Introduction to the Principles of Morals and Legislation.
  • Previously, it was known as the Law of Nations or Jus Gentium (Roman Concept).

Definitions by Jurists:

  • Oppenheim: "The body of rules which are legally binding on states in their intercourse with each other, including relations between international organizations and individuals."
  • J.G. Starke: "International law is composed of rules which states feel themselves bound to observe in their relations with each other, including rules related to international institutions and individuals."

2. Nature of Public International Law

Due to its lack of enforcement mechanisms, there is a long-standing debate about whether international law is true law or merely a set of moral rules.

Myths about Nature:

THEORY DESCRIPTION SCHOLAR / SOURCE
Orphan Theory International law is weak and lacks enforcement power. Various Scholars
Harlot Theory International law is vague and incomplete. Holland
Jailer Theory No enforcement mechanism, hence not a law. John Austin
Never-Never Theory Until international law is universally enforceable, it remains ineffective. Critics / Skeptics

Reality of International Law:

  • International law is binding because states consent to it through treaties and customs.
  • Most states obey international law to maintain diplomatic relations, trade agreements, and reputation.
  • It is enforced through institutions like the UN Security Council, the ICJ, and economic sanctions.

3. Importance of Public International Law

Public International Law plays a crucial role in:

  • Maintaining Peace and Order (e.g., UN Peacekeeping Missions)
  • Protection of Human Rights (e.g., Universal Declaration of Human Rights)
  • Environmental Protection (e.g., Paris Agreement)
  • Regulating International Trade (e.g., WTO Agreements)
  • Solving Transnational Problems (e.g., Climate Change, Terrorism)

4. Functions of Public International Law

  • Regulates State Conduct
  • Establishes Rights and Obligations of International Actors
  • Facilitates Peaceful Settlement of Disputes
  • Protects Human Rights and Humanitarian Law
  • Regulates Diplomatic Relations and Treaties

5. Why Do States Obey International Law?

REASON EXPLANATION
Self-Interest States follow international law to maintain trade and political relations.
Obligation Legal and moral obligation to respect sovereignty and treaties.
Consent States voluntarily ratify treaties and agree to follow them.
Reciprocity States obey rules, expecting other states to do the same.
Reputation States maintain a good reputation to avoid sanctions and isolation.

Conclusion

Public International Law is a vital tool in regulating relations between states and addressing global issues. Despite criticisms regarding its enforceability, the consistent obedience of states and the role of institutions like the UN, ICJ, and WTO prove that international law is an effective framework for global cooperation.

b .  Historical Development of International Law

Historical Development of Public International Law (Detailed Notes with Figures)

1. Introduction

The historical development of Public International Law (PIL) traces how rules regulating relations between states evolved across different civilizations and eras. It shows how international norms shifted from mere customs to binding legal principles regulating war, peace, diplomacy, and human rights.

2. Stages of Development

Era Key Events Contribution
Ancient Period Greek City States (4th Century BC) Bilateral treaties for alliances and trade; use of arbitration.
Roman Law (Jus Gentium, Jus Civile) Jus Gentium influenced universal norms; distinguished from citizen-specific laws.
Kautilya’s Arthashastra (India) Discussed diplomacy, treaties, and Just War (Dharma Yuddha).
Confucianism (China) Promoted pact-keeping and peaceful coexistence; diplomacy foundations.
Islamic Law (7th Century) Charter of Medina; concepts of Jihad and Hudna (truce).
Medieval Period (12th–15th Century) Papal Influence, Mongol Empire Church-mediated Just Wars; Mongols protected ambassadors.
Renaissance Period Decline of Church control Rise of nationalism and state sovereignty.
Modern Period (16th–17th Century) Hugo Grotius – De Jure Belli ac Pacis (1625) Natural law, sovereignty during war, and Freedom of the Seas (Mare Liberum).
Peace of Westphalia (1648) Sovereign equality of states; modern state system begins.
18th–19th Century Vienna Congress (1815) Regulated diplomatic ranks and territorial disputes post-Napoleon.
Hague Conferences (1899, 1907) Encouraged peaceful dispute settlements; created Permanent Court of Arbitration.
20th Century (League of Nations Era) Treaty of Versailles (1919) Created League of Nations to maintain global peace.
Permanent Court of Arbitration Early institution to peacefully settle international disputes.
Post-WWII (UN Era) United Nations Charter (1945) Founded UN to ensure peace and international cooperation.
Geneva Conventions Set humanitarian rules in armed conflict.
International Court of Justice (ICJ) UN’s judicial body for state disputes and advisory opinions.
Contemporary Period International Criminal Court (ICC) Prosecutes individuals for genocide, war crimes, crimes against humanity.
Climate Change Agreements Global treaties like Kyoto (1997) and Paris Agreement (2015) for climate action.

3. Important Contributors

Jurist Contribution
Hugo Grotius Father of Modern International Law; developed the principles of Freedom of the Seas and Just War Theory.
Francisco de Vitoria Advocated for the rights of indigenous peoples under Spanish colonial rule.
Emer de Vattel Defined sovereignty and diplomatic immunity in his book The Law of Nations.
Jeremy Bentham Coined the term "International Law" and emphasized the need for global legal norms.

4. Role of International Organizations

Organization Year Contribution
League of Nations 1920 First attempt to maintain global peace through collective security.
United Nations 1945 Promotes peace, human rights, and development through various organs like the General Assembly, Security Council, and ICJ.
International Court of Justice 1946 Settles legal disputes between states and gives advisory opinions on international law.
World Trade Organization 1995 Regulates international trade disputes.

5. Key Treaties and Conventions

Treaty Year Contribution
Treaty of Westphalia 1648 Established sovereignty and non-intervention.
Geneva Conventions 1949 Set rules for humanitarian treatment during conflicts.
UN Charter 1945 Outlined the principles of international peace and cooperation.
Paris Climate Agreement 2015 Global effort to combat climate change.

6. Conclusion

The historical development of Public International Law reflects the gradual evolution of legal norms from customary practices to codified rules aimed at promoting global peace, justice, and cooperation. While challenges persist, the system has significantly contributed to fostering peaceful coexistence among states.

c.  International Law and Municipal Law

   International Law and Municipal Law

1. Relationship Between International and National Law

  • International Law: Governs relations between states and international entities.
  • Municipal (National) Law: Governs internal affairs within a state, including the rights and duties of individuals.

Theories Explaining the Relationship

1.      Monism (Monistic Doctrine)

    • Views international law and national law as part of a single legal system.
    • International law automatically applies within a state upon ratification.
    • If there is a conflict, international law prevails.
    • Common in civil law countries (e.g., France, Germany).
    • Example: In Nepal, the Treaty Act 1990, Section 9(1) states that treaty provisions override inconsistent domestic laws.

2.      Dualism (Dualist Doctrine)

    • Views international and national laws as separate legal systems.
    • International law is not automatically applicable; it requires incorporation into national law via legislation.
    • If there is a conflict, national law prevails unless explicitly stated otherwise.
    • Common in common law countries (e.g., UK, USA).
    • Example: UK treaties do not become law until Parliament enacts them.

3.      Fitzmaurice Compromise (Alternative Theory)

    • International and national laws operate in separate spheres, preventing direct conflicts.
    • Instead of legal superiority, conflicts arise due to state obligations under international law.
    • Example: A country may be legally bound by a treaty internationally but unable to enforce it domestically due to constitutional limitations.

2. Domestication of International Law

  • The process by which international norms become binding within a country's legal system.
  • Methods of Domestication:
    1. Direct incorporation (Monism) – International treaties become law without additional legislation.
    2. Transformation (Dualism) – Treaties require specific legislation to be domesticated.
    3. Judicial Interpretation – Courts interpret domestic laws in light of international obligations.

Domestication in Nepal

  • Mixed Approach (Elements of both Monism and Dualism).
  • Constitution of Nepal (2015):
    • Article 51(b)(3): Nepal must implement international treaties it has ratified (monist tendency).
    • Article 1(1): The Constitution is the supreme law, meaning inconsistent laws are void (dualist tendency).
  • Treaty Act 1990:
    • Section 9(1): Treaties ratified by Nepal override conflicting national laws (Monist).
    • Section 9(2): If a treaty imposes obligations requiring additional domestic measures, Parliament must pass laws for implementation (Dualist).

3. International Law in Domestic and International Courts

National Law’s Role in International Tribunals

  • Generally Irrelevant: A state cannot use its domestic law to evade international obligations.
  • Key Cases:
    1. Alabama Claims Arbitration (1872):
      • UK argued domestic law did not prevent shipbuilding for Confederacy.
      • Tribunal ruled UK responsible under international law.
    2. Factory at Chorzów Case (1927, PCIJ):
      • Poland couldn’t use domestic law to justify expropriation of German property.
    3. Gabčíkovo-Nagymaros Case (1997, ICJ):
      • Hungary couldn’t terminate a treaty due to domestic environmental laws.

Instances Where National Law is Considered

  • Anglo-Norwegian Fisheries Case (1951, ICJ):
    • Norway’s municipal law (1935 decree on maritime boundaries) was upheld as consistent with customary international law.

4. Legal Frameworks Governing Compliance

Vienna Convention on the Law of Treaties (VCLT, 1969)

  • Article 26 (Pacta Sunt Servanda): Treaties must be honored in good faith.
  • Article 27: A state cannot use domestic law as an excuse for failing to implement a treaty.
  • Article 46: A treaty is invalid only if its adoption clearly violates a fundamental internal law.

Declaration on the Rights and Duties of States (1949)

  • Article 13: States must fulfill international obligations and cannot use domestic law as an excuse for non-compliance.

5. State Practices Regarding International Law

United Kingdom

  • Customary International Law (CIL): Automatically part of national law unless it conflicts with parliamentary laws (Monism).
  • Treaties: Not automatically applicable; require an Act of Parliament (Dualism).

United States

  • CIL: Part of domestic law unless overridden by Congress.
  • Treaties:
    • Self-executing treaties: Automatically apply.
    • Non-self-executing treaties: Require Congressional approval.

India

  • Follows a Dualist Approach:
    • Article 51(c) of the Indian Constitution: The state shall respect international law but does not automatically incorporate it.

6. Judicial Approaches in Nepal

·         Monist Tendency Cases:

    1. Reena Bajracharya v. Royal Nepal Airlines (2000):
      • SC enforced CEDAW principles against employment discrimination.
    2. Gyan Raj Rai v. Cabinet Secretariat (2002):
      • SC ruled that treaty obligations under the Treaty Act apply as Nepalese law.

·         Dualist Tendency Cases:

    1. Meera Dhungana v. Office of the Prime Minister (2006):
      • SC directed Parliament to pass a law to implement CEDAW rather than directly enforce it.

7. Key Takeaways

  • Monism: International law applies automatically and prevails over national law.
  • Dualism: International law requires domestication, and national law prevails in case of conflict.
  • Nepal follows a Mixed Approach: Some international laws are directly applicable, while others require legislation.
  • Courts worldwide prioritize international obligations, but exceptions exist where municipal laws align with international standards.

Comments

  1. AnonymousMay 14, 2025 at 10:57 PM

    Thank you, for the notes!
    Genuinely helpful.

    ReplyDelete

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