LAW303 Public International Law — Unit 1: Introduction

Unit 1: Introduction

Syllabus coverage in this unit
1.1 Definition · 1.2 Origin and Importance · 1.3 Nature and Basis of International Law · 1.4 General Principles and Rules of Public International Law · 1.5 The Relation between International Law and Municipal Law, appraised at the backdrop of the Nepal Treaty Act

1.1 Definition

Classic definition — Oppenheim: international law is “the body of rules which are legally binding on civilised states in their intercourse with each other” — the positivist, states-only definition (and its era’s vocabulary).

The modern working definition: international law is the body of legal rules and principles that governs the relations among states and between states and other subjects of international law — international organizations, individuals (in defined roles), and special entities — across war and peace, territory, sea, air, space, treaties, responsibility and human rights.

The World Court’s functional frame: Article 38(1) of the ICJ Statute supplies the definition-by-application — the law the Court applies: treaties, custom, general principles of law, and the subsidiary sources (Unit 2’s subject).

1.2 Origin and Importance

The development ladder (five dates minimum):

1. Antiquity’s fragments: treaty practice and diplomatic immunity in the ancient Near East, Greece (ius fetiale, amphictyonic councils) and India (Kautilya’s inter-state rules) — rules of inter-polity conduct, but no system among sovereign equals.
2. Grotius (1583–1645) and the natural-law era: the Thirty Years’ War’s wreckage produced Hugo Grotius, De Jure Belli ac Pacis (1625) — the “father of international law”: law between states grounded in natural reason, binding even in war. Precursors: Vitoria, Gentilis, Suárez.
3. Westphalia (1648): the sovereignty settlement — a Europe of territorially sovereign, legally equal states — international law’s political matrix.
4. The positivist 18th–19th centuries: Vattel (The Law of Nations, 1758 — sovereign equality’s classic); the Congress of Vienna (1815); the Hague Conferences (1899, 1907 — peaceful settlement, laws of war, the Permanent Court of Arbitration).
5. The 20th century — institutionalization and universalization: the League of Nations (1919); the United Nations (1945) with its force-prohibition; the ICJ; Nuremberg/Tokyo (individual criminal responsibility); decolonization universalizing the law (Nepal’s UN admission, 1955, a chapter of this story); the rights and trade revolutions (UDHR 1948; ICCPR/ICESCR 1966; WTO 1995); international criminal justice (the ad hoc tribunals; the ICC 1998/2002 — Nepal the first South Asian state party, 2006). The contemporary phase: globalization’s legalization, fragmentation debates, non-state actors, cyber and AI frontiers, and great-power strain on the Charter order.

Importance (why a law student must master it): international law now reaches into every municipal courtroom — treaty obligations (trade, human rights, environment), extradition and mutual legal assistance, the law of armed conflict, and the interpretive rule that statutes are read in conformity with treaties. For Nepal: a small state’s primary shield and stage — the Charter’s territorial-integrity guarantee, boundary diplomacy, the WTO, and the human-rights treaties are all international law at work.

1.3 Nature and Basis of International Law

Nature — four points (structure every answer):

1. Is it true law? (Austin’s challenge): John Austin dismissed it as “positive international morality” — not commands of a sovereign backed by sanction. The century’s answer: international law is law because its subjects obey it as law (opinio juris); because breach attracts sanction (countermeasures, state responsibility, Chapter VII enforcement, reputational cost); and because courts apply it daily. The weakness of centralized enforcement differs in degree, not kind, from weak municipal systems.
2. Law of coordination, not subordination: municipal law is vertical (sovereign over subjects); international law is horizontal — equals among equals (par in parem non habet imperium) — hence its consensual techniques and decentralized enforcement.
3. Consensual and dynamic: made largely by its subjects (consent through treaties and custom), perpetually adapting.
4. Weaknesses honestly stated: no compulsory general jurisdiction (the ICJ needs consent), enforcement politicized (the veto), compliance bending at great-power interest.

Basis — why do sovereign states feel bound? (the guaranteed theory question):

1.4 General Principles and Rules of Public International Law

The system’s constitutional grammar — the principles every rule presupposes:

1. Sovereign equality — states are legally equal regardless of power, population or wealth (Charter Art. 2(1));
2. Non-use of force — the threat or use of force against territorial integrity or political independence is prohibited (Charter Art. 2(4)) — the century’s greatest normative achievement (Unit 11);
3. Non-intervention — no state may intervene in matters within another’s domestic jurisdiction (Charter Art. 2(7); the Friendly Relations Declaration, 1970);
4. Pacta sunt servanda — treaties bind in good faith (VCLT Art. 26);
5. Good faith — the system’s master principle (estoppel, acquiescence, abuse of rights all flow from it);
6. Peaceful settlement of disputes (Charter Art. 2(3), Art. 33 — Unit 10);
7. Self-determination of peoples — from the Charter’s principle to the decolonization era’s engine;
8. Sovereignty over natural resources — permanent sovereignty as the new states’ economic constitution;
9. State responsibility — every breach engages responsibility (Unit 5);
10. Jus cogens — peremptory norms (prohibition of aggression, genocide, slavery, torture) overriding consent (Unit 9).

Plus the working rules every practitioner uses: pacta tertiis nec nocent nec prosunt (treaties neither harm nor benefit third parties without consent); ex injuria jus non oritur (no right from wrongdoing); par in parem (equality and immunity); nullum crimen sine lege (legality in international criminal law); and the Lotus presumption — restrictions on sovereignty are not to be presumed.

1.5 International Law and Municipal Law — with the Nepal Treaty Act

The two theories (the doctrinal pair):

1. Dualism (Triepel, Anzilotti; the British tradition): international and municipal law are distinct orders — different subjects, sources, substance; a treaty takes domestic effect only by transformation (implementing legislation). Unimplemented, a treaty is domestically a promise, not a rule.
2. Monism (Kelsen; varying continental practice): one unified order — treaties apply domestically automatically upon ratification (direct effect / self-execution). Radical monism: municipal validity itself flows from international law.

The spectrum in practice: the UK — dualist for treaties (implementing legislation required), but customary international law is part of the common law; the USA — treaties “supreme law of the land” but only self-executing ones apply of their own force; France/the Netherlands — treaty-superiority over statutes.

Nepal’s position — the two-layer answer:

1. The constitutional layer (ratification — dualist in form): the Constitution of Nepal (2015), Article 279, requires parliamentary ratification for the defined treaty classes — peace and friendship, security and strategic alliance, the boundaries of Nepal, and natural resources and their distribution (two-thirds of both houses); ordinary treaties by simple majority of the House of Representatives; unratified agreements cannot be implemented.
2. The statutory layer (application — monist in effect): the Nepal Treaty Act, 2047 B.S. (1990/91) — the syllabus’s named backdrop. Its celebrated Section 9(1): where the provisions of a treaty to which Nepal is party (upon parliamentary ratification, accession, acceptance or approval) conflict with prevailing laws, the latter are invalid to the extent of the conflict, and the treaty provisions apply as Nepali law — ratified treaties thus prevail over inconsistent ordinary statutes, a monist-leaning rule rare in dualist systems. Section 9(2): where an unratified treaty imposes obligations requiring legal arrangements, the Government must initiate legislation for its enforcement.
3. The judicial layer: the courts construe statutes in conformity with treaty obligations and apply ratified human-rights treaties as interpretive standards — a soft-monist judicial culture inside a dualist constitutional frame. The doctrinal question Kathmandu debates: whether the 2015 Constitution should have given ratified treaties express superiority (the Treaty Act’s Section 9 rule versus the new constitution’s supremacy — the hierarchy the drafters left to practice).

The reverse rule (the exam’s second axis): municipal law before international tribunals — Article 27 of the Vienna Convention on the Law of Treaties: a party may not invoke its internal law to justify failure to perform a treaty. Municipal irregularity is no international defence (state responsibility — Unit 5).

Model Questions

Long-answer questions

1. Define international law. Is it true law? Answer Austin’s objection with reasons. (10)
2. Trace the origin and development of international law from Grotius to the United Nations. (15)
3. Critically examine the theories regarding the basis of the binding force of international law. (15)
4. Explain the theories of the relationship between international law and municipal law, and appraise Nepal’s position with reference to Article 279 and the Nepal Treaty Act. (15)

Short-answer questions

1. Write short notes: (a) Par in parem non habet imperium; (b) Pacta sunt servanda; (c) Transformation theory; (d) Jus cogens.
2. State any five general principles of public international law.
3. What does Section 9(1) of the Nepal Treaty Act provide?
4. “A state cannot plead its internal law as a defence for breaching a treaty.” Explain.

📚 Get the complete notes: Download the full Public International Law PDF (all units) — Law Info Nepal Original Notes Series (LL.B., 3-Year New Course, 2076/077 B.S.).