LAW5205 Public International Law-I — Unit 1: Introduction — Definition, Nature and Scope of International Law; Origin and Development; Basis of International Law; Relation between International Law and Municipal Law

Unit 1: Introduction — Definition, Nature and Scope of International Law; Origin and Development; Basis of International Law; Relation between International Law and Municipal Law

1. Definition, Nature and Scope of International Law

Classic definitions:

• 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 the era’s vocabulary).
• Modern definition (the course’s working text): 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, space, treaties, responsibility and human rights.
• The World Court’s statutory frame: Article 38(1) of the ICJ Statute (Unit 2) supplies the functional definition — the law the Court applies: treaties, custom, general principles, and the subsidiary sources.

Nature of international law (the true/false debate to structure answers):

1. Law or morality? John Austin dismissed it as “positive international morality” — rules of conduct set by general opinion, not commands of a sovereign backed by sanction. The answer (Oppenheim’s, Starke’s and the century’s verdict): international law is law because its subjects obey it as law (opinio juris), because its breach attracts sanction (countermeasures, responsibility, Chapter VII enforcement, reputational costs), and because courts and tribunals apply it daily — the weakness of centralized enforcement (no world police) differs in degree, not kind, from weak municipal systems.
2. Law of coordination, not subordination (the structural point): municipal law is vertical (sovereign over subjects); international law is horizontal (equals among equals — par in parem non habet imperium, an equal has no authority over an equal) — hence its consensual techniques (treaty, custom) and its enforcement’s decentralization.
3. Consensual and dynamic: made largely by its subjects (states consent via treaties and persistent custom), and perpetually adapting — to decolonization, technology (sea-bed, space, cyber), and the human-rights revolution.
4. Weaknesses honestly stated: no compulsory general jurisdiction (the ICJ needs consent), enforcement politicized (the veto), and a compliance culture that bends at great-power interests — the realist critique (IR Unit 2) against the legalist faith.

Scope (the subject-map of this course and its sequel): sources and personality (Units 2–3); recognition and succession (Unit 4); nationality, statelessness, refugees (Unit 5); asylum and extradition (Unit 6); state responsibility and treatment of aliens (Unit 7); jurisdiction — territory, persons, sea, air, space (Unit 8); immunities (Unit 9); with Public International Law-II (later semester) covering the law of treaties, the UN system, human rights law, the law of the sea in depth, dispute settlement, international criminal law, and the law of armed conflict.

2. Origin and Development of International Law

1. Antiquity’s fragments: treaty practice and diplomatic immunity in the ancient Near East, Greece (ius fetiale, amphyctionic councils) and India (Kautilya’s inter-state rules) — rules of inter-polity conduct, but no system of interstate law among sovereign equals.
2. The natural-law era — Grotius (1583–1645): 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 and the jus gentium, binding even in war (jus in bello). Precursors: Vitoria (the rights of the Indians), Gentilis (the secular lawyer’s law), 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) codifying diplomacy’s ranks and the slave-trade’s suppression beginnings; the Hague Conferences (1899, 1907 — peaceful settlement, the laws of war, the Permanent Court of Arbitration); positivism’s method — law as state consent, not natural reason.
5. The 20th century — institutionalization and universalization: the League of Nations (1919) and the PCIJ; the United Nations (1945) — the Charter’s force-prohibition and collective security; the ICJ; the Nuremberg/Tokyo tribunals (individual criminal responsibility); the decolonization wave universalizing the law (the “family of nations” becomes global — Nepal’s UN admission, 1955, a chapter of this story); the law’s explosion — sea, space, environment, trade, human rights (UDHR 1948; ICCPR/ICESCR 1966), international criminal justice (the ad hoc tribunals; the ICC, 1998/2002 — Nepal the first South Asian state party, joining in 2006–07).
6. Contemporary phase: globalization’s legalization (WTO’s binding dispute settlement, 1995); the fragmentation debates (self-contained regimes, lex specialis); non-state actors (terrorist networks, MNCs); cyber and AI’s new frontiers; and the return of great-power strain on the Charter order (Unit 1 of IR) — international law’s permanent condition: tested, adapted, still standing.

3. Basis of International Law

The question: why do sovereign states, with no sovereign above them, feel legally bound? The theories (a guaranteed theory question):

1. Naturalist theory (Grotius, Pufendorf): international law binds because it derives from nature/reason — a law higher than state will. Critique: whose reason? unverifiable, unenforceable.
2. Positivist theory (Austin, Anzilotti): law = the will/consent of states (treaties express; custom implied consent). Critique: consent cannot explain why new states are bound by old custom, nor the binding force of jus cogens (which overrides consent).
3. Auto-limitation theory (Jellinek): the state binds itself by its own will’s self-restriction. Critique: what a state limits, it can un-limit — obligation collapses into discretion.
4. Normative/pure theory (Kelsen): international law as a hierarchy of norms grounded in the Grundnorm (the presupposed basic norm — “states ought to behave as they have customarily behaved”), municipal systems deriving validity from it (primacy-of-international-law theory).
5. Sociological/necessity theory: law reflects the needs of interdependence — states obey because cooperation is indispensable (the functional account behind modern regime theory).
6. Pacta sunt servandum as basis — good faith in agreements kept (the Vienna Convention on the Law of Treaties, Article 26, its charter): the doctrine most practical lawyers give as the true foundation — obligations are honoured because the system’s members accept that they must be.

4. Relation between International Law and Municipal Law

The two theories (the doctrinal pair):

1. Dualism (Triepel, Anzilotti, and in practice the British tradition): international and municipal law are distinct legal orders — different subjects (states vs. persons), sources (consent vs. sovereign will), and substance; international law becomes effective domestically only by transformation (an act of the municipal legislature — ratification-plus-implementing-statute). International law cannot pierce the domestic order without its permission; a treaty unimplemented is (domestically) a promise, not a rule.
2. Monism (Kelsen; the continental-and-Latin-American practice in varying degree): one unified legal order — international law above (or within) municipal law; treaties apply domestically automatically upon ratification (direct effect / self-execution), no transformation required. Radical monism (Kelsen): municipal validity itself flows from international law.

The practice — where systems sit on the spectrum:

• The UK (dualist): treaties need implementing legislation (Parliamentary treaty-implementation rule; the classic Mortensen treatment), but customary international law is part of the common law directly;
• The USA: the Constitution makes treaties “supreme law of the land” (Art. VI) — but only “self-executing” treaties apply of their own force (Medellín v. Texas restricting the practice); custom likewise federal common law;
• France, the Netherlands: treaty-superiority monism (treaties above statutes, though below the constitution).

Nepal’s position (the paragraph every Nepali answer needs): a moderate dualism: the Constitution of Nepal (2015), Article 279, requires parliamentary ratification for defined treaty categories — peace and friendship, security and strategic alliance, the boundaries of Nepal, and natural resources and the distribution of their uses (by two-thirds of both houses; ordinary treaties by simple majority) — and makes unratified agreements unimplementable; implementing legislation then domesticates obligations (e.g., the statutes passed under the human-rights treaties). The courts’ practice completes the picture: statutes are construed in conformity with Nepal’s treaty obligations (the interpretive presumption), and treaty norms — especially human-rights guarantees — are applied and cited in judgments as interpretive standards, giving Nepal a soft-monist judicial culture inside a dualist constitutional frame. The continuing doctrinal question in Kathmandu: whether ratified treaties should enjoy express constitutional superiority over ordinary statutes (the debate the constitution-drafters visited but the 2015 text left to practice).

The two systems’ interactions (the exam’s second axis): international law before municipal courts (incorporation, direct effect, consistency presumptions); and municipal law before international tribunals — whose settled rule: Article 27 of the Vienna Convention — a party may not invoke provisions of its internal law to justify failure to perform a treaty; municipal irregularity is no international defence (state responsibility — Unit 7).

Model Questions

1. Define international law. Is it true law? Answer Austin’s objection with reasons. (10)
2. Trace the historical 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. Where does Nepal stand? (15)
5. “A state cannot plead its internal law as a defence for breaching a treaty.” Discuss Article 27 of the Vienna Convention. (10)
6. Short notes: (a) Par in parem non habet imperium; (b) Pacta sunt servanda; (c) Transformation theory; (d) Westphalia. (4×5)