INTERNATIONAL LAW

The term ‘International law’, also referred to as Laws of

Nations was first coined by Jeramy Bentham in 1780. Every
country is referred to as ‘state’ in International
Law.International laws are a set of rules, agreements and
treaties that are binding between countries. Countries come
together to make binding rules that they believe will benefit
the citizens. It is an independent system of law existing
outside the legal framework of a particular state.

aim of International law

1. promotion of friendly relations among the member

states (members of the International community, for
example, United Nations),
2. providing for basic humanitarian rights,
3. to solve International problems through international
cooperation, 
4. to refrain the state from using threat or force over the
territory of any other state to provide for the right to
self-determination to people, and
5. to use peaceful methods to settle international disputes
are few of its functions.

Types

Private International Law

It is also referred to as, ‘Conflict of laws’ and the phrase was
first used by Ulrich Huber in his book- ”De Conflictu Legum
Diversarum in Diversis Imperiis” in 1689.

Private International Law establishes and deals with the

relationship between citizens/private entities of different
countries. People from different parts of the world are often
interacting with each other forming legal relations. 

For example, an American man and an Indian woman were

married in India and now live in Los Angeles. In case they
ever want a divorce, the rules of private international law will
determine where they will be required to go, either to the US
or to an Indian court to get divorced.The same is applicable to
business as well as. Globalization has led to business activities
between various countries. For example, if you are defrauded
by a foreign country’s personal/private entity or organisation,
then the rules of private international law will apply if you
want to sue.

Important cases of international law

1. Portugal vs. India, 1954
2. Republic of Nicaragua v United States of America -
he case is known for an attack on sovereignty, American
dominance and expands the concept of the jurisdiction of
the International Court of Justice.
3. Kulbhushan Jadhav case – case on espionage
4. Asylum Case (Colombia v. Peru), [1950] - commonly
known as the Asylum case is a landmark in Public
International law for several reasons, inter alia, its
expansion of laws on extradition and political asylum,
development of customary international law
Role of the Individual in International Law
The individual has been considered as an entity in
international law after many decades. The individual has the
least participation in international law during the inception
stage. The term individual has a wide legal connotation, it is
not something limited to a person, it may be an entity, an
enterprise or big business conglomerate. The term individual
may be a legal person whose job is to secure the rights of
people across the globe. The individual is the basis on which
the entire international law works because the objective of
international law is to protect the interest of the individuals.
All the treaties, regulations and customs have benefitted the
individual in many capacities. The objective of the
International Law is to achieve global justice and resolve the
dispute amicably, that ultimately helps individuals. 

The development of many areas in the International Law such

as International Human Rights Law with the objective to
protect the interest of the individual. The end of World War II
led to the establishment of the  United Nations Organisation,
after which the concept of International Law flourished and
went on to cover many areas. The International Law under the
head of International Refugee Laws, seeks to achieve the
freedom and rights of the refugees from all countries. The
United Nations had signed various conventions for the
protection of the environment and sustainable development
goals. The individuals also play an important role in
international law in various capacities.
Custom as a Source of International Law
The original and the oldest sources Law is known as Custom.
The rules of customary International Law involved a long
historical process which gained recognition by the entire
community. The presence of customary rules can be deduced
from state practice and behaviour because it is not a written
source of law. A rule of customary law is said to have two
elements:

First, there must be widespread and consistent State practice.

Secondly, there has to be “opinio Juris”, a Latin term which

means a legal obligation to believe in the existence of such
law.

Features of Customary Law

Uniform and general

State practice to give rise to binding rules of customary
International Law, that practice must be uniform, consistent
and general and must be coupled with a belief that the practice
is obligatory rather than habitual. In the Asylum Case, the
court declared that a customary rule must be used constantly
and uniformly throughout history which can be traced through
state practice.

Duration
Continuous and regular use of particular conduct is considered
as a rule of customary law. In the North Sea Continental Shelf
cases, the ICJ stated that there is no precise length of time
during which the practice must exist. It is simply that it must
be followed long enough to show that other requirements of
custom are satisfactory.

An opinion of Law

To assume the status of customary international law the rule

in question must be regarded by the state as binding in Law
i.e. the states must regard themselves as being under a legal
obligation to follow the practice. In the Lotus case, opinio
Juris was seen as an essential element of customary
international law and this was affirmed in North Sea
Continental Shelf Cases as well.

Relationship between International Law and Municipal Law

Law is the element of the society which helps to develop a

framework within which rights and duties can be established.
World order today requires a method whereby interstate
relations could be conducted, and International law fills this
gap.

The United Nations developed this body of International law

for the purpose of promoting international peace and security.
Countries come together to make binding rules that they
believe benefit their citizens. International laws promote
peace, justice, common interests and trade. States work
together to strengthen International law because it plays an
important role in society.

It is directly and strongly influenced, although not made, by

the writings of jurists and publicists, instructions to diplomatic
agents, by important conventions even when they are not
ratified, and by arbitral awards.
SOURCES OF INTERNATIONAL LAW

TREATY

Treaty in common parlance may be defined as written

agreements between parties, which may or may not be stated,
to identify and follow a set of rules. They may also be referred
to as pacts, agreements, charters, etc. Declarations and
political statements are excluded from the scope of the
definition of a treaty.

Treaties have been classified on the basis of many principles.

On the basis of the object, they have been classified as
political treaties (including alliances and disarmament
treaties), constitutional and administrative treaties (e.g.
WHO’s constitution, which is responsible for setting up the
international body and to regulate it affairs), commercial
treaties (trade and fishery agreements), criminal treaties
(which define certain international crimes and may require the
offender to be extradited), treaties codifying international law,
and treaties for ensuring civil justice.

Customs: – Customs are those habits and practices which the

nation’s states commonly observe and the violation of which
is considered as against the courtesy of International behavior.
There are certain practices which the world community
observes without any express provisions but because of
practice they honor the same. So if there is no treaty between
the parties to a dispute then the statute binds the Court to
decide the case in the light of such international customs.

Judicial Decisions: – Usually the Judicial decisions of the

International Court of Justice are not binding and they have no
value in the sense that they are related and binding only to that
certain case for which they have given. And they cannot be
cited as strict reference in any other case. But despite the fact
the Statute reveals that in case of default of all the above
sources the court shall resort to the prior judicial decisions.

Other Sources: – Beside the above sources there are also

some other sources which court can resort for the decision of
a case. As for example “Equity” and the resolution by the UN
organization. Nowhere in the statute these sources have been
declared for the Court to derive law but by practice the
common and universal principles of equity have been
observed by the courts while deciding cases. And also the UN
organization when passes a resolution on specific subject the
Court feels its moral duty to decide the case in the light of
such resolution if there is no express provisions for deciding a
case.

Settlement of Disputes in International Law

Treaties play an important role as the source of international

law and occupy a colossal pedestal in this field. There are
binding as well as non-binding procedures available within
the international order for the peaceful resolution of disputes
and conflicts. Basically the techniques of conflict
management fall into two categories- diplomatic procedures
and adjudication. This article also talks about the landmark
case of Kulbhushan Jadav, the peaceful settlement of the
Farakka Barrage gunfire issue, the role of International court
of Justice and the Naulilaa case. These cases along with other
examples have been added for a better understanding of the
topic.
OTHER DISPUTE MECHANISM

NEGOTIATION

This is regarded as the oldest and the simplest form of settling

disputes. When the disputant parties settle the dispute
themselves by discussion or by adjusting the disagreement,
the process is called a negotiation. The dictionary meaning of
negotiation defines it as a discussion aimed at reaching an
agreement. Hence in a case of disagreement, the method of
negotiation can be used to reach a state of peaceful agreement.
This process of negotiation may be carried out by the Heads
of the State, or by their representatives or by diplomatic
agents. But the success of this method depends largely upon
the degree of acceptability of claims of one party by the other.

MEDIATION

the third-party involved is known as the mediator. The

mediator is always expected to be just and impartial. In the
process of mediation, the mediator participates in the
discussion, gives his views and suggestions in resolving the
dispute. The mediator is usually known to settle the disputes
as he may even help in signing the treaty embodying the
settlement that is reached. 

A famous example of mediation is when the Soviet Premier

Kosygin settled the dispute between India and Pakistan by
signing the Tashkent Agreement in 1966. 

Mediation and Good offices come into picture when parties

are not willing to go for the negotiation method or they fail to
reach a state of settlement through a healthy negotiation. A
third person assists them in resolving their legal matters. Such
a third person may either be appointed by the parties
themselves or by the Security Council. There have been many
instances where the appointment has been made by the
Security Council. McNaughton in 1949, in 1950 Dixon, in
1951 Graham, in 1957 Jarring were a few.

CONCILIATION

The process where a Commission or a Committee is

appointed and the dispute is referred to them and it is required
by them to find out about the facts and then to write a report
for the settlement of the dispute, is called conciliation. Here
an effort is made for a peaceful compromise, to sign an
agreement but important to note that the proposals made by
the commission are never binding on the parties to the
dispute. This method is unique in its own way and completely
differs from mediation, inquiry or arbitration.

Among the various treaties that have been signed through the
Conciliation Commission the most important ones are:

 Pacific Settlement (1948)

 Pact of Bogota (1948)
 The Vienna Convention on Protection of the Ozone
layer. 

ARBITRATION
Arbitration is the process of using the help, advice and
recommendation of a third party called arbitrator to settle
disputes. The International Law Commission defines it as ‘a
procedure for the settlement of disputes between states by a
binding award on the basis of law and as a result of a
voluntarily accepted undertaking’

International Court of Justice

The headquarters of the International Court of Justice is
situated in Hague, Netherlands. It was founded on 26th June,
1945.
here are three ways by which the International Court of
Justice resolves the cases are that brought before it-

1. Parties can settle their dispute by themselves and cases

can be withdrawn by the state or the court can give the
verdict.
2. International Court of Justice uses International Laws
are it’s guiding light.
3. Writing by experts is also referred to. 
ICJ’s primary function is known to be resolving disputes
between sovereign states. Only States can be parties to the
dispute that is brought before it. The International Court of
Justice has recently decided the Kulbhushan Jadav case. India
and Pakistan were the parties to the dispute in this case.
Jadhav was a retired Indian Navy Officer and was sentenced
to death by the Pakistani Military Court. The charges that
were pressed against him were of terrorism and espionage. In
a major win for India, after a 4year long battle from being
arrested on 3rd March,2016, he finally sought relief after the
suspension orders of his hanging were delivered by ICJ in
2019.

INTERNATIONAL CRIMINAL COURT

The Court's founding treaty, called the Rome Statute, grants
the ICC jurisdiction over four main crimes.

First, the crime of genocide is characterised by the specific

intent to destroy in whole or in part a national, ethnic, racial or
religious group by killing its members or by other means:
causing serious bodily or mental harm to members of the
group; deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or
in part; imposing measures intended to prevent births within
the group; or forcibly transferring children of the group to
another group.
Second, the ICC can prosecute crimes against humanity,
which are serious violations committed as part of a large-scale
attack against any civilian population. The 15 forms of crimes
against humanity listed in the Rome Statute include offences
such as murder, rape, imprisonment, enforced disappearances,
enslavement – particularly of women and children, sexual
slavery, torture, apartheid and deportation.
Third, war crimes which are grave breaches of the Geneva
conventions in the context of armed conflict and include, for
instance, the use of child soldiers; the killing or torture of
persons such as civilians or prisoners of war; intentionally
directing attacks against hospitals, historic monuments, or
buildings dedicated to religion, education, art, science or
charitable purposes.
Finally, the fourth crime falling within the ICC's jurisdiction
is the crime of aggression. It is the use of armed force by a
State against the sovereignty, integrity or independence of
another State. The definition of this crime was adopted
through amending the Rome Statute at the first Review
Conference of the Statute in Kampala, Uganda, in 2010