Module 1:

1. Nature and development of International law

2. Theoretical basis of International Law-Natural Law Theory, Positive Law Theory ,
Grotius Theory-consent theory
3. Historical perspective of International Law- Codification of work of International
Law Commission
4. India’s contribution for the development of International Law- Ancient time to
modern times

1. Nature and development of International Law

The term international law has been defined in a variety of ways by different jurists. Some of the
definitions may be given as under:

In the view of European Scholars, modern International Law is determined by the modern
European system. According to Oppenheim, International Law is "essentially product of
Christian civilization and began gradually to grow from the second half of the Middle Ages."
This view is subject to criticism because there are several such principles and rules of
International Law as existed in their developed form in the ancient period.
Some of them are such as existed in their developed form in ancient India. The view of
Oppenheim and other Western jurists that International Law owes its birth to the modern
European system is not correct. International Law was in a developed state in the Ramayana and
Mahabharat period.
The example of International Law relating to Diplomatic Agents may be cited in this connection.
Thus the birth of International Law can be traced back to ancient times.' However, it cannot be
denied that the words International Law' were used for the first time by eminent British jurist,
Jermy Bentham in1780 .
Since then, these words have been used to denote the body of rules which regulate the relations
among the States. Though International law can be traced to ancient Greece, Rome and India, it
cannot be denied that the public International law which we know today, study and practice has
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come to us through Europe. It is determined by the modern European system. It will, therefore,
be proper to refer it as 'modern international law.'
Definition
1. ILL. Oppenhelm.— ProfeSsor Oppenheim has defined International Law in the
following words Law of Nations or International Law is the name for the body of customary a
conventional rules which are considered legally binding by civilized States in their
intercourse with each other.
Criticism.—Professor Oppenheims definition suffers from several serious defects.
It might have been good and adequate when it was given but now it has outlived its utility and
has become obsolete and inadequate.
"Indeed every important element in it can now be challenged." The definition of Oppenheim has
been subjected to following criticism -
In the first place, "it is now generally recognized that, not only "States" but public international
organisations, have rights and duties under International Law, even though they may not have all
the rights and duties that States have." In fact, "The future of International Law is one with the
future of International organisation."The use of the term 'civilized states' by Oppenheim is also
severely criticized. The criterion of distinguishing so-called 'uncivilized states' was neither long
history nor culture. Even though China had 5,000 years old culture, she was not included in the
group of civilized slates. So was the case of oriental States. In not too distant past, the Western
States regarded only the Christian States' as 'Civilized States'.
This criterion was undoubtedly wrong. At present there are as many as 193 members of the U.N.
which include Christian as well as non-Christian States. That is why, in later editors of
Oppenheim's book have deleted the term 'civilized slates'.
Thirdly, "More controversial but no longer untenable is the view that even individuals and other
private persons may have some such rights and duties."

Fourthly, "it is now widely recognised that International Law consists not only customary and
conventional rules but also of General Principles of Law.
Article 38 of the Statute of the International Court of Justice mention General Principles of Law
Recognised by Civilized States' as the third source in order under which the sources of
International Law are to be used while deciding an international dispute. That is to say, if the

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Court does not find any International Treaty or International custom on a particular point under
dispute, the Court may take the help of 'General Principles of Law Recognized by Civilized
States'. As aptly pointed out by Lord McNair, it describes, 'the inexhaustible reservoir of legal
principles from which tribunals can enrich arid develop public International Law."

2. Hall.—In the words of Hall : International Law consists of certain rules of conduct which
modern civilized states regard as binding on them in their relations with one another with
a force comparable in nature and degree to that binding the conscientious person to obey
the Jaws of his country and which they also regard as being enforceable by appropriate
means in case of infringement.'1
3. Chinese Definition and approach to International Law.— According to a Chinese
writer: "International Law like all other branches of law, is created in a definite stage of
mankind's social development. The origin of international law is directly related to the
creation of the state. International law is created as the political, economic, and the
relations among states emerge.

In his view, only the definition of international law given by Soviet scholars (for example, by
Vyshinsky given earlier), explains the question of thecontents and substance of international law.
This definition (i.e, of Vyshinsky) is adaptable to the 'international law of various historical
periods including the modern one."

He points out that international law possesses the following characteristics of law in general :

(i) it expresses the will of the ruling class;

(ii) it is the aggregate of norms adjusting definite social relations; and
(iii) it is guaranteed by enforcement measures. In his view, therefore, international law is a
kind of law possessing legal validity; it is not what are called self-executing norms of
morality.
The words of a Chinese author, 'International law, in addition to being a body' of
principles and norms which must be observed by every country, is also, just as any
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 a political instrument whether a country is a socialist or capitalist, it will to a certain
degree utilize international law in implementing its foreign policy"
4. Charles G. Fenwick.—In the words of Fenwick"International law may be defined
in broad terms as the body of general principles and specific rules which are binding
upon the members of the international community in their mutual relations".
Appraisal. Fens definition is better than all the above-mentioned definitions because
instead of the word states he uses the words members of the international community'
which include states, international institutions, individuals and non-stateentities. He
also uses the term 'general principles',
His definition is very short but pregnant with meaning and takes into account the
changes that have taken place after the Second World War. Indeed it is an appropriate
and correct definition of international law.
5. Whitemafl: defines International Law in the following words"International law is the
standard of conduct, at a given time, for states and other entities subject thereto."
Evaluation.—This is a very brief but adequate definition. The words "other entities
subject thereto" may include international organisations, individuals and non-State
entities. The words used in the definition are apparently very simple but they are
pregnant with meaning and very vast in their scope.
6. J.G. Starke.—In the words of Starke "International Law may be defined as that
body of law which is composed for its 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
(a) the rules of law relating to the functioning of international institutions or
organisations, their relations with each other, and their relations with States and
individuals and
(b) certain rules of law relating to individuals and non-States entities so far as the
rights or duties of such individuals and non-state entities are the concern of the
international community."
The definition of Starke is appropriate because it takes into account the changing

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character of international law and truly reflects the present position of international
law.
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Basis of International Law

After having arrived at the conclusion that International Law is Law in the true sense
of the term, it is necessary to see as to what is the true basis of international law.
There are two main theories in this connection.
They are:
(1) Theories as to Law of Nature and
(2) Positivism.
(1) Theories as to Law of Nature.—The jurists who adhere to this theory, are of the
view that International Law is a part of the Law of Nature. In their view, States follow
International Law, because it is a part of the Law of Nature. Explaining the view
point of Natural Law Theorists, Starke has written : .............States submitted to
International Law because their relations were regulated by higher law, the law of
nature of which International Law was but a part" 67 I n order to understand this
theory, it is necessary to understand the meaning of Law of Nature. In the beginning,
Law of Nature was connectod with religion. It was regarded as the divine law. The
jurists of 16th and 17th centuries secularised the concept of Law of Nature. Much of
the credit for this goes to the eminent jurist, Grotius.
He expounded the secularised concept of the Law of Nature. According to
him, natural law was the dictate of right reason. His followers applied the law of
nature as an ideal law which was founded on the nature of man as a reasonable being.
International
law was considered binding because it was in fact, natural law applied in special
circumstances. Vattel, a famous jurist of 18th century also expressed the view that
natural law was the basis of International Law. Pufendorf, Christian Thomasius, etc.
are other prominent exponents of Law of nature.
Criticism—The exponents of natural law are of the view that it is the basis of
international law and has conferred binding force on international law. It may,
however, benoted that each follower of the law of nature gives its different meaning.

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They use it as a metaphor. Different jurists give its different meaning such as, reason,
justice, utility,
general interest of international community, etc. Hence the meaning of law of nature
is very vague and uncertain. Moreover, the main defect of this theory is that it is not
based on realities and actual practices of the States.
Influence—Despite the above criticism, the Law of Nature has greatly, influenced
the growth of International Law. 'Traces of 'Natural Law' theories survive today,
albeit in a much less dogmatic form." bb The ideal nature of the Natural Law has also
greatly influenced the growth of international law.
(2) Positivism—Positivism is based on law positivum i.e. law which is in fact as
contrasted with law which ought to be.
According to the positivists, law enacted by
appropriate legislative authority is binding. The positivists base their views on the
actual practice of the States. In their view, treaties and customs are the main sources
of International Law. The positivist's view was in vogue in the 18th century. Bynker-
Shoek, one of the chief exponents of the Positivist School, wrote several books to
popularise his views. In the view of the positivists, in the ultimate analysis, will of the
States is the main source of International law.
1. Starke:
As pointed out by Starke. "... .International law can in logic be reduced to a system
of_rules depending for their validity only on the fact that States have consented to
them. ""
2. Brierly :As pointed out by Brierly, The doctrine of positivisms is the basis of
international law. teaches that international law is the sum 01 rules by which
States have consented to be bound, and that nothing can be law to which they
have not consented to be bound."·'"
The concept of the will of State was first propounded by the German Philosopher 3.
3. Hegel.
According to the positivists, international law is a body of rules which has been
consented to by the States and accepted as binding by way of voluntary restriction or
'auto limitation.'

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The Italian jurist, Anzilotti, one of the chief exponents of the Positivist School
deserves a special mention. According to him, the binding force of international .law
is founded on a supreme principle or norm known, as pacta sunt servanda. In his view
the basis of each rule of international law is pacta sunt servanda in some or the other
way.
The positivists admit that their view fails to explain the basis of customary
international law. In their view, there is an implied consent in regard to customary
rules of international law .
Criticism.-The positivist theory is based mostly on the actual practices of States.
But this view has been subjected to a lot of criticism. It can be criticised on the
following
Grounds :
(1) The concept of the will of State presented by the positivists is purely
metaphorical.

(2) The view of the positivists that the whole of international law is based on the
consent of the State is far from truth. As pointed out by an eminent author, 'custom i:;
said to be evicencc of a general practice accepted by law'. It is not required that there
should be any express recognition by States in order that this practice or international
custom shall be binding upon them.
The extreme positivist view which seeks to base all international law on th e 'consent
of states' has tried to establish that the rules of international custom are based on
"tacit agreements' between' states . But in reality it is not possible to" prove that these
rules come into existence in such a way. This is shown by among other things, the
fact that a new State entering the community of nations at once becomes bound by the
international customary rules and it is never suggested that any of these rules would
not be binding on it. It never happens that the State consent is sought or that it enters
into any agreement on the matter with the already existing States. On the other hand,
the new State is not bound by any international convention already in force unless it
expressly adheres to it. International custom constitutes genre of States. From this it

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 follows that the dictum pacta sunt servanda cannot be the 'basic norm' of international
law, it is itself a rule of international custom.
(3) In practice, it is not always necessary to show that in regard to a particular rule
of general international law, the State had given their consent.
(4) There are some principles of international law which are applicable on States
although States did not give their consent for them. The principle propounded under
Article 2(6) provides that the organisation shall ensure that States which are not
members of the U.N. act in accordance with the principles (contained in Article 2 of
the Charter) so far as may be necessary, for the maintenance of international peace
and security.
(5) The norm 'pacta sunt servanda, "has been abandoned by most theorists, since
it seems incompatible with the fact that not all obligations under international law
arise from 'pacta ', however widely that term is construed, so it has been replaced by
something less familiar ; the so-called rule that States shoula behave as they
customarily have."
(6) "Even apart from its lack of accord with reality the theory that international law
rests on agreements is problematic in another respect. Declarations of will are, of
course, in themselves pure facts which have legal effects only because some rule of
law gives them such effects ."
(7) According to the positivist view, treaties and customs are the only sources of
international law.
Grotius theory of law:
Grotius made distinction between the Jus Gentiurn, the customary Lawof Nations (which he
called Jus Voluntarium or Voluntary Law) and Jus naturrae or natural Law of Nations. He
concentrated more on the natural Law and regarded voluntary law of less importance. The
Grotians were somewhat between the Naturalists and the positivists. They maintained the
distinction between natural and Voluntary Law of Nations but they considered positive or
voluntary laws of equal importance to the natural laws.
Thus, according to the Grotians, international law has originated not only from
customs and treaties but also from natural law. This view, obviously, is not in
conformity with thepositivist view. The positivist view that treaties and customs are

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 only sources of international law is also not in conformity with Article 38 of the
Statute of International Court of Justice according to which General Principles of Law
Recognised by Civilized Nations" are also the sources of International Law. As
pointed out Manley Hudson, the provision relating to "the general principles of law
recognised by civilized nation"serves a useful purpose in that it emphasizes the
creative role to be played by the court.
It confers such a wide freedom of choice that no fixed and definite content can be
assigned to the term employed. It has widely hailed as a refutation of the extreme
positive conception of international laws.
(1) Theory of Consent.—In the view of the supporters of this theory, consent of
States is the basis of international law. States observe rules of international law
because they have given their consent for it. Positivists have given much support to
this view. The chief exponents of this theory are Anzilotti, Triepel, Oppenhetm. etc.
This theory fails to explain the basis of customary international law. In the view of
the supporters of this theory, States are bound to observe customary rules of
international law, because they have given their implied consent for their acceptance.
This theory has been subjected to severe criticism by many jurists, such as, Starke,
Brierly, Kelsen, Fenwick, etc. Following are some of the points of criticism levelled
against the theory :-
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(i) As pointed out by Starke, in practice it is not necessary to prove that the other
State or States have given their consent n regard to a specific rule of international law
According to Prof. Smith, all States are bound by international law, no matter whether theyhave
given their consent or not.
(ii) In regard to customary rules of international law, the basis of implied consent is
far from correct. "The States are bound by general international law even against their
will."
Professor Kelsen has cited the example of new States, which get rights and duties
under international law immediately after becoming the subject of International law.
(iii) In the view of Fenwick, the theory of consent is not correct because it is against
the principles and things which the States have been accepting since the beginning of

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 intemational law.
(iv) Theory of consent fails to explain the case of recognition of new State. The
granting of recognition is the act of other States and hence it would be wrong to say
by getting recognition, the recognised State has given its consent in respect of
international law.
(v) According to Brierly the theory of consent cannot explain the true basis of
International law even if we distort facts and try to fit them in the theory.
Thus we see theory of consent cannot explain the true basis of international law and
can be severely criticised. As pointed out earlier, States follow international law for
the simple reason that they are States. As an ordinary person has to obey municipal
law, evenagainst his will, similarly, States are bound to follow international law. To
quote Sir CecilHurst again, "International law is, in fact, binding on States because
they are States.
Thus, "consent can never be the ultimate force of legal obligation" . 92 However, as
noted earlier 'common consent can be said to be the basis of international law as a
legal system in the sense that we "see the basis of international law in the existence of
an international community the common consent of whose members is that there shall
be a body of rules of law—international law—to govern their conduct as members of
that community."
3. Historical Development of International Law: Development of International
Law by International Organizations

A brief reference may also be made here to the development of international law by the
organs of the international organisations. The organs of international organizations contribute to
the clarification and development of international law. They help to create opinio juris but "state
practice becomes evidence of law only when the vast majority of states believe themselves to be
legally bound.

These organs often invoke legal principle in order to reach normative decisions. As pointed out
by Rosalyn Higgins. 'The collective processes in a United Nations organ help to focus attention
upon the need for mutual observance of the rules. Indeed, in some cases reference to a widely
accepted rule of law can serve a bridge between differing ideologies.

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The constituent instruments of international organisations represent an advanced stage of the
development of international law. They have "introduced a quasi-legislative element in the law
making processes at the expense of contractual element, facilitating a quicker response to the
problems of international social order What is true of the organs of the U.N. is also, even more,
true of the organs of the specialized agencies of the U.N. For example, both the World Health
Organisation (WHO)and the International Civil Aviation Organization (ICAO) carry out a wide
range of activities which contribute to the development of International Law.

This has become possible due to the provisions of the constitutions of these specialized agencies.
Under Article 21 ofthe Constitution of WHO, each Member has undertaken the obligation to take
action relative to the acceptance of the Conventions (adopted by a two-thirds votes of theHealth
Assembly) or agreement within a period of 18 months after its adoption by the Health Assembly.
In case a Member does not accept the convention or agreement within the said time, it is required
to furnish the Director-General with a statement of the reasons for non-acceptance. Article 37 of
the I.C.A.O. convention authorises the l.C.A.O. to adopt regulations 99 with a wide variety of
technical matters essential to the safe and swift operation of international civil aviation.
According to Article 90, an annex may be adopted by a two-thirds majority vote of the members
of the Council.

A regulation thus adopted comes into force three months after its submission to the member-
States or within the time specified by the Council. unless the majority of contracting States
register their disapproval with the Council." Under Article 38 of the I.C.A.O. convention, it a
member finds it difficult or impracticable to comply with any of the international standards or
procedures adopted by the Council, it is under the obligation to notify LC.A.O. immediately of
the differences between its own practices and the practice established by the Annex. If the
member concerned fails to notify or remains silent, it will amount to approval.

Under the Constitution of the ILO, members have undertaken an obligation to submit
conventions and recommendations adopted by the conference by a two-thirds majority for the
consideration of the national authorities competent to give effect to their provisions. Once
accepted, these conventions become binding upon members. The legislative procedure of the
ILO, when introduced in 1919, was a radical innovation in following three respects :

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"The whole conception of a convention being adopted by an international conference by a
two-thirds majority and authenticated by the President and the Secretary-General of the
conference instead of being signed by plenipotentiaries was then new." (2) "An even more
radical innovation than the substitution of adoption for signature was the participation in the
act of adoption of non-government delegates voting independently. This has remained a
unique feature of ILO procedure. "No less radical and unprecedented an innovation was the
obligation to submit conventions adopted by the International Labour Conference by a two-
thirds majority for parliamentary consideration irrespective of the attitude towards the
convention of the representatives of the Government concerned.
A brief reference may also be made to a similar provision in the Constitution of the
Universal Postal Union (UPU) which provides that those postal administrations which do
not respond to a proposal put to them by the International Bureau within a period of three
months, will be considered to be in agreement with the proposal.
As written by Codding, Jr., "The experiences of WHO and ICAO have a high potential
value. Other international agencies could possibly adopt them profitably to their own use,
particularly those agencies
whose activities are of a technical nature. A combination of all the specialprocedures of
ILO, WHO. ITU and UPU in one international organization provides
speculation. In any case, it is becoming increasingly obvious that some major changes
are needed in the international legislative process if the international community is to be
able to keep up with the amount of work that is being delegated by States to international
organizations. The WHO and ICAO have, at least, made a start."
Now the world is witnessing the third phase of the post-war development of
international organisations.
The first phase started immediately after 1945 when U.N.
system including the International Monetary Fund (IMF) and the World Bank was
established. The second phase started near about 1960 when common market,
organisation of European Co-operation and Regional Development Bank etc. were
established. The third phase started near about 1973 and is still continuing. In the third
phase, U.N. Environment Programme World Food Council, International Energy Agency
(lEA) etc. have been established.

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4. India’s contribution in development of international law:

A brief reference may also be made here of India's position in regard to the rules and
principles of international law. Like other new states, India has also sought to reject
or modify some of the rules and principles of the traditional international law. India
has neither accepted the whole nor has rejected the entire fabric of the traditional
international law. "India, like many other new nations, has expressed dissatisfaction
with some of the rules of international law as developed in the West. This, however,
does not mean that India's challenge of some of the rules of international law is
motivated by any desire to subvert the international legal order. Nor is India's
opposition of the same kind as that of the Soviet Challenge."
Further, 'In fact, India's argument would seem to indicate that it is far more
influenced by the Western rather than Soviet concepts of international law.
This should not be surprising. However, It must not be supposed that India would
agree to all the rules and principles that are identified as international law in the
West. Rather, it does not challenge the doctrine of international law in the same way
as the Soviets challenge it." Since her emergence as new state after the attainment of
independence,
India Constitution of India and International Law:
The ties of India’s Constitution with international law date back to the pre-
independence days. India was the separate member of the League of Nations. It is
also the founding-member of the United Nations. In this section, we will see the
general scheme of the Constitution with reference to international law and further
proceed to analyse other provisions and aspects.
Article 51 is considered the concrete provision dealing with the relation of Indian
Constitution and international law. But before we go into detailed analysis of it, we
should look at the Preamble, Part III and Part IV of the Constitution. The Preamble
enumerated certain basic values that India guarantees to its citizens and strives to
achieve. These values are accepted as universal and basic by most nations
throughout the world. The fundamental rights in Part III and the positive mandates

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 to the State in form of Directive Principles can be compared with the Universal
Declaration of Human Rights and commonalities can be traced. Shri Subhash C
Kashyap has prepared a detailed chart on the common principles in these two parts
as well as certain other laws of India
General Principles of International Law: India’s position and contribution on
the general principles and major issues of contemporary international law such as
recognition, self-determination, principles of non-use of force and non-
intervention, state responsibility, prohibition of use of nuclear weapons, terrorism,
legislative role of the UN Security Council, judicial review of the decisions of the
UN organs, terrorism, legislative role of the UN Security Council, judicial review
of the decisions of the UN organs, terrorism, jus cogens and erga omnes
obligations, the jurisdiction of the International Criminal Court, emerging system
of multilateral order and the United Nations and peaceful settlement of disputes,
illustrates the importance and consistency of the role India has been playing in the
pre-colonial era and in the post-independent phase in promoting rule of law in
international relations.

World Trade Organisation: With regards to the trade in services, it is clear that
services are subject to a number of non-tariff barriers, which mostly remain invisible. This, most
of the time, makes it difficult to quantify the exchange of concessions. There is a need to have
total transparency, along with a legally binding international code on restrictive business
practices. It is pertinent that developing countries should have a proper legislative framework on
restrictive practices. India has already adopted the Competition Act, 2002 (partly in force),
which, though not service specific legislation, will address the anti-competitive practices of the
enterprises.

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