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Public International Law is composed of the laws, rules, and principles of general application
that deal with the conduct of nation states and international organizations among themselves
as well as the relationships between nation states and international organizations with
persons, whether natural or juridical. Public International Law is sometimes called the "law
of nations" or just simply International Law. Public international law governs relationships
between and among entities with international legal personality: sovereign states and other
international actors, such as inter-governmental organisations and individual natural persons.
The legal personality attributed to these entities means that they have rights, protections,
responsibilities and liabilities under international law. It should not be confused with Private
International Law, which is primarily concerned with the resolution of conflict of laws in the
international setting, determining the law of which country is applicable to specific situations.
In researching this field of law the researcher must also be aware of Comparative Law, the
study of differences and similarities between the laws of different countries.1

Generally speaking, the representatives of nation states are the primary players in the
creation of public international law. These representatives of the nation states include not
only the heads of state, such as Presidents, Prime Ministers or Kings but also the bureaucratic
bodies involved in foreign policy e.g.: State Departments, Foreign Ministries, or the
military. Inter-Governmental Organizations (IGOs), such as the United Nations or
the European Union, have also developed as primary fora for the creation of public
international law through the codification of customary law by way of international treaties. 2

States are the main subjects of international law. At first, international law only
regulated relations between independent states and mainly within diplomatic relations and
war. Nowadays, there are more subjects of international law and its content has expanded as
well. Problems of international concern need collective state action and modern technology
has led to closer and more frequent contact between states and their peoples. As a result, the
contact needed to be regulated by new rules. Another expansion is that international law also
deals with matter which traditionally was regarded as being within a states domestic


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jurisdiction, like use of territory or treatment of inhabitants. This means individuals have
international personality to some extent, because they have certain rights.

International law has limited the sovereignty of states in favor of more recognition of human

International law has some characteristics. Its principal participants are equally
sovereign states. International law is not forced on states, there is no legislature, and it is not
obligatory, but sanctions can be used to influence an offending state. These sanctions can be
economic and diplomatic, but the public opinion is important as well. States also act
according to international law because of the role of reciprocity; it is for its own good.
International law is decentralized and is founded on the consent of states to accept obligations
that limit their behavior.3


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In the view of European Scholars, modern International Law is determined by the

modern European system. According to Oppenheim, International law is essentially a
product of Christian civilization, and began gradually to grow from the second half of the
Middle Ages.4 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 in 1780. 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 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.5

L. Oppenheim, International Law, Vol. 1, Eighth Edition (1970 reprint), p. 6.
S.K. Kapoor, International Law and Human Rights, Twenthieth Edition, p. 29.

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Professor Oppenheim has defined International Law in the following words:

Law of Nations or International Law is the name for the body of customary and
conventional rules which are considered legally binding by civilized States in their
intercourse with each other.

This definition was given by Oppenheim in 1905. Oppenheim is one of the most celebrated
authors of Public International Law. A critical discussion of Oppenheims definition is made
below with a view to show and highlight the changes that have taken place in the concept and
definition of Public International Law during the last to ten decades. It is interesting that right
after the definition he goes on to distinguish among universal, general and particular
International Law, in which case the first is binding upon all civilised States without
exception, the second is binding upon a considerable number of States including the leading
powers and the last one refers only to a small number of States. Moreover, he accepts the
existing distinction between private and public International Law, highlighting that only the
latter represents the Law of Nations, which is to be observed by States only and not

He then goes on to draw a distinction between morality and law, claiming that the former
refers only to ones conscience, whereas the latter, through referring to ones conscience, will
in the end have to be enforced by an external power. Another remark consists of the dismissal
of the need of the existence of a law-giving authority to ascertain the law, since, as in the
primitive societies it was the community who endorsed or rejected a rule of law without
laying down guidelines, in contemporary times law can also be of unwritten and customary


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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:

i. 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.7
ii. 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 states. 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.
iii. Thirdly, more controversial but no longer untenable is the view that even individuals
and other private persons may have some such rights and duties. Of all the changes
that have taken place in the International Law since the Second World War, the most
important change has been the addition of new subjects. The main change that has
taken place is that from the formal structure of relation of States it is moving towards
the interest and welfare of citizens of member States.8 Because of the widening of
aspects of International Law even the individuals and other private persons may have
rights and duties. International law in current scenario is putting emphasis on well
being and protection of just rights of the citizens of member states.9
As Jenks has rightly remarked : contemporary International Law can no longer
be reasonably presented within the framework of the classical exposition of
International Law as the law governing the relations between states but must be

Percy E. Corbett, Law and Society in the Relation of States, p. 12.
C.W. Jenks, The common Law of Mankind (1958), p. 27.

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regarded as the common law of mankind in an early stage of its development. It is no
longer possible to regard International Law as governing relations solely between
States. At present, it also governs relations between States and International
Organizations, between States and private persons, and between International
Organizations and private persons.
iv. Fourthly, it is now widely recognised that International Law consists not only
customary and conventional rules but also of General Principles of Law.10 Article 38
of the Statute of the International Court of Justice mentions 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 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 Recognised by Civilized States.
v. Fifthly, the very conception that International Law as a body of rules now stands
changed as static and inadequate. Further, like any other law International Law does
not stand still but is continuously reinterpreted and reshaped in the very process of its
application by authoritative decision makers, national and international.11
International Law or any law for that matter is a dynamic concept. Law changes with
the change of time and circumstances.12

Lissitzyn, Supra note 6, p. 39.
Lissitzyn, Supra note 6, p. 39.
S.K. Kapoor, International Law and Human Rights, Twenthieth Edition, p. 31,32.

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In the words of 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 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-state entities so far as the rights
or duties of such individuals and non-state entities are the concern of the international

The definition of Starke is appropriate because it takes into account the changing character of
International law and truly reflects the present position of International Law.

CRITICISM: This definition has its own limitations as to it enumerates the subjects of
International Law and in case there is an entity whose rights and duties are not enumerated,
starke definition will fail.13


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The editors of the ninth edition of Oppenheims book, Sir Robert Jennings and Sir Arther
Watts have revised Oppenheims definition of International Law. In their words:

International Law is the body of rules which are legally binding on States in their
intercourse with each other. These rules are primarily those which govern the relation of
States, but States are not the only subjects of International Law. International Organisations
and, to some extent, also individuals may be subjects of rights conferred and duties imposed
by International Law,

Further, States are the principle subjects of International Law....... States are primarily, but
not exclusively, the subjects of International Law. To the extent that bodies other than states
directly posses some rights, powers and duties in International Law they can be regarded as
subjects of International Law, possessing International personality.

Moreover, not only individuals but also certain territorial or political units other than States,
to a limited extent, are directly the subjects of rights and duties under International Law.

Thus the above concept and definition of International Law given in ninth edition of
Oppenheims International Law is nearly similar to that given by Starke and Fenwick.
However, it is still deficient in one respect because it is still conspicuous for its silence
regarding general principles of Law recognised by civilized nations.

In view of foregoing discussions mad taking into consideration the present State of
International Law, International Law may be defined as the body of general principles and
specific rules which are binding upon the members of International community in their
mutual relations. The term International Community is very appropriate for it includes
States, International Institutions, Individuals and other non-State entities.14

S.K. Kapoor, International Law and Human Rights, Twenthieth Edition, p. 32,33

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The official Soviet definition is as follows: International law can be defined as the aggregate
of rules governing relations between States in the process of their conflict and co-operation,
designed to safeguard their peaceful coexistence, expressing the will of the ruling classes of
these States and defended in case of need by coercion applied by States individually or
collectively. This statement has phrases of high ideological content ("peaceful coexistence"
and "ruling classes"), yet it points out some of the distinguishing features of international law.
First, international law is a relatively loose "aggregate of rules, 11 not a formal system of law
as can be found in a national government. There is no central authority defining the law and
enforcing it. Some students of international relations assert that international law does not
really qualify as law at all, and that it has little relevance in regulating the actions of states.
This view is as biased as one which sees international law as the key to a utopian world in the

A second element, following from the first, is the consensual nature of law in the
international system. Of course, all systems of law must be based on a substantial degree of
agreement--law cannot be enforced if the members of the system are not willing to accept it.
This is all the more true of international law because of the decentralized nature of the
system. A nation makes international agreements that are in that nation's interests and will
abide by those agreements unless it is to that nation's advantage to violate them despite the
costs of such violations. In other words, much of law is based on self-interest, keeping in
mind that self-interest includes the necessity of accepting some restrictions on one's freedom
of action.

The third point to consider is that international law is "defended in case of' need by coercion
applied by States individually or collectively." Once again, the cause is the lack of a central
government. There is no International body with the power to force submission of disputes
for settlement. The necessity of self-help on the part of nation-states creates the possibility of
violence resulting from attempts to punish violations of International law.

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A state, however must take this risk into consideration when it considers violating
International law. Often the risk is strong enough to result in the exercise of self-restraint by
the state.

Every state derives some benefits from international law," says Louis Henkin. The Soviet
Union is, of course, no exception. Some critics of the Soviet Union say that the Russians have
misused their "benefits" and have tried to deny those benefits to others. The Soviet Union
generally has frankly used and continues to use international law as an instrument of foreign
policy. This will be shown throughout the paper. It is pointless to condemn the Soviet Union
for this since, to a large extent, every nation does the same, although less openly.15


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According to a Chinese writer: International Law like all other branches of law is created in
a definite stage of mankinds social development. The origin of International law is directly
related to the creation of state. International law is created as the political, economic, and the
relations among states emerge.16

Professor He Zhipeng provides an analysis of Chinas approach to international law in his

article, The Chinese Notion of International Law. He considers Chinas approach to
enacting and developing international laws as demonstrative of Chinas overall foreign
policy. Drawing upon theories of international relations, he refutes liberalism, a theory which
dismisses the power politics of international relations by emphasizing mutually beneficial
state cooperation, devaluing the role of government, and affirming the influence of
international NGOs.

Instead, he promotes realism as the most beneficial philosophy to guide Chinas involvement
in the international lawmaking process. In particular, he sees this policy as effectively
complementing the current condition of the international community, which largely exists as
an anarchy state. Under the policy of realism, nations should continuously play a zero-sum
game to maximize their own state interests.

He bemoans the fragmentary nature of international jurisprudencethat is, he argues that (a)
there exists no clear system of law under which a constitution is deemed absolute, and (b)
complementary laws fail to form an accountable and efficient legal system. Furthermore, he
finds the inefficiency of certain international institutions, which must constantly negotiate
greater powers political considerations, another lamentable reality that renders international
law incompetent and the global community anarchistic.

Thus, while lauding the achievements accomplished thus far within the field of international
law, he simultaneously warns against a blind belief in its efficacy. He reminds readers of the
realities of power politics and the significance of state sovereignty.

S.K. Kapoor, International Law and Human Rights, Twenthieth Edition, p. 35.

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He suggests that China should, as it has often done in the past, follow the tenets of realism,
under which sovereignty is valued and states pursue their own interests as often as possible.
Thus, when applying international laws or participating in the lawmaking process, he argues
that the furtherance of national interests is the ultimate purpose for which China should
strive. He additionally contends that international laws generally fail to function as consistent
rules according to which states must adjust their behavior or accept punishment for
transgressions. He asserts that international law has instead become the constantly evolving
product of state interactions. Essentially, international law has a rather dynamic nature that
constantly alters as states practices change.17


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J.L. Briefly The laws of nations or international law may be defined as the body of
rules and principles of action which are binding upon civilized states in their relation with
other states.18

Hackworth - In the words of Hackworth: International Law consists of a body of rules

governing the relation between States. It is a system of jurisprudence which, for the most
part, has evolved out of the experiences and the necessities of situations that have arisen from
time to time.19

By Alf Ross Alf Rose defines the term international law as under: International law is
the body of legal rules binding upon states in their relations with one another.20

By Lawrence According to him, International law is the rules which determine the
conduct of the general body of civilized state in their mutual dealings.21

Modern Definition International law has always been in a continuous state of change.
In modern period the term International law may rightly be defined as under; That body of
legal rules which regulates the relationship of the Nation States with each other, as well as,
their relationship with other International actors. 22

S.K. Kapoor, International Law and Human Rights, Twenthieth Edition, p. 33.
S.K. Kapoor, International Law and Human Rights, Twenthieth Edition, p. 33.

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On the basis of above definitions we can conclude that International Law is a body of rules
and principles which regulates the conduct and relations of the members of International
community. The contention that states alone are subjects of International Law is not only
inconsistent with the changing characters of International Law but has become completely
obsolete and inadequate. Individualistic characters of International Law are being replaced by
the law of social inter-dependence. In view of the changing character and expanding scope of
International Law today, International Institutions, some non-state entities and individuals
have also become the legitimate subjects of International Law. Nevertheless, it cannot be
denied that even today, as pointed out by Starke, It is composed for its greater part of the
principles and rules of conduct which states feel themselves bound to observe, and there for
to commonly observe, in their relations with each other..... Thus International Law is
constantly evolving body of norms that are commonly observed by the members of
International Community in their relations with one another.

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Kapoor S.K., International Law and Human Rights, Published by Central Law
Agency, Twenthieth Edition











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