Sri. Abhilash
Sources of international law
— International
custom
— International
convention
— General
principles recognized by civilized nations
— Decisions
of judicial or arbitral tribunals and juristic works
— Decisions
or determinations of the organs of international institutions
— International
comity
— State
paper
— State
guidance for their officers
— Reason
— Equity
and justice
— Resolution
and declarations of General Assembly of the UN as the source of universal
international law
International custom
•
Original and Oldest source (Art 38(b) of ICJ
Statute)
•
Custom and usage
•
Usage- the early stage/twilight stage of custom.
When custom begins usage ends
•
Usage we means those habits which are often
repeated by the states. It is an international habit which has yet not received
the force of law
Material test and psychological test
•
When states in their international relation
starts behaving in a particular way in certain circumstances, it is expected
that in the similar circumstances they will behave in the same way. This is
called the usage. But when this usage receives the general acceptance of
recognition by the states in their relations with each other, there develops a
conception that such a habit or behavior has become right as well as obligation
of the states and in this way usage as that obtained the force of law
Ingredients or elements of custom
— Long
duration
— Uniformity
and consistency
— Generality
of practice (universality of practice is not necessary)
— Opinio
juris et necessitatis
◦ General
recognition among states of a certain practice ‘as law’ [general practice
accepted as law]
— Right
of passage over Indian territory case [Portugal v India]
International Conventions
— Treaties
are agreements between subjects of international law creating a binding
obligation in international law
— Law
making treaties
◦ Treaties
enunciating rules of universal international law
◦ International
treaties which lay down general principles
— Treaty
Contracts
Steps in formation of treaties
— Accrediting
of persons on behalf of contracting parties
— Negotiation
and adoption
— Signature
— Ratification
— Accession
or adhesion
◦ States
which are not parties may also accept it later on (accession). Even after the
prescribed number of parties have signed, other states may also accept/adhere
to that treaty (adhesion)
— Entry
into force
— Registration
and publication (Art 102)
— Application
and enforcement
Termination of treaties
— By
act of parties
— By
operation of law
By operation of law
— Extinction
of either party to a bilateral treaty
— Outbreak
of war
◦ Treaties
relating to completed situations such as fixation of boundaries, treaty
relating to the rules of war, multilateral treaties relating to health,
service, protection of industrial property etc do not completely end at the
outbreak of war
— A
material breach of bilateral treaty
— Impossibility
of performance
— Expiration
of fixed term
— Successive
Denunciation
— Rebus
Sic Stantibus
◦ It
means that when the fundamental circumstances under which the treaty was
entered into change then this change entitles the other party to terminate the
treaty.
— Jus
Cogens
◦ A
treaty is void, if at the time of its conclusion, it conflicts with a
peremptory norm of general international law.
◦ A
peremptory norm of general international law is a norm accepted and recognized
by the international community of states as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character.
Pacta terties nec nocent nec prosunt
— The
maxim states that only the parties to an international treaty are bound by it.
(Article 34 of VCLT of 1969)
— Exceptions
◦ Treaties
which concern the right of the third party
◦ Treaties
which declare the established customary international law
◦ Treaties
which create new rules of international law
◦ Treaties
which have universal application (UN Charter).
◦ When
a treaty imposes some obligation on a third party and third State party accepts
that obligation.
General principles of law recognized
by civilized nations
•
Art 38 (1) (C) of ICJ Statute
•
Two view are prevalent
–
General principle which are found in domestic
jurisprudence and can be applied in international legal questions.
–
Transformation of the broad universal principles
of law applied to all mankind into specific rules of ‘international’
•
Examples: res judicata, res subjudice, equal and
proper opportunity of hearing to both parties, estoppel, subrogation,
prescription etc
Decisions of Judicial or Arbitral
tribunal and Juristic work
— Article
59 of ICJ Statute: the decisions of the court will have ‘no binding force
except between the parties and in respect of the particular case’
— The
Paquete Habana and the Lola
Decisions or determinations of the
organs of International Institutions
— Development
of international institutions
— WHO,
ILO, FAO, UPU, ITU, ICAO etc
— International
Comity
— State
Paper
— State
guidance for their officers
— Reason
— Equity
and Justice [fairness, reasonableness]
— Resolution
and Declarations of General Assembly of the UN as the source of universal
international law
— Ex
aequo et bono [Art 38(2) of ICJ Statute]
— Court
can go outside the realm of law for reaching a decision, if parties are agreed
thereto
Relationship between international
law and municipal law
Monism
— The
exponent of this theory emphasise the scientific analysis of the internal
structure of law. According to them law is a unified branch of knowledge, no
matter whether it applies on person or other entities. According to monist
belief, international obligation and municipal rules are facets of same
phenomenon, the two deriving ultimately from one basic norm and belonging to
the unitary order comprised by the conception of law.
— In
the ultimate analysis of law, man is at the root to all laws. All laws are made
for men and men only in the ultimate analysis.
— Monism
is a sound theory. But in actual practice states do not follow this theory.
Dualism
— According
to this theory, international law and municipal law are two separate systems of
laws. Dualism is based on the complete sovereignty of States. Triepel has
pointed out the following difference between international law and municipal
law. (a) Regarding Subjects- Individual is the subject of State law, whereas
State is the subject of international law, (b) Regarding origin- Origin of
State law is the will of the State whereas origin of the international law is the
common will of States.
Specific adoption theory
— According
to this theory, international law cannot be directly enforced in the field of
State law. In order to enforce it in the field of municipal law, it is
necessary to make its specific adoption.
Transformation Theory
— The
exponents of this theory contend that for the application of international law
in the field of municipal law, the rules of international law have to undergo
transformation.
Delegation Theory
— The
proponents of this theory point out that the constitutional rule of
international law permit each State to determine as to how international
treaties will become applicable in the field of State law. Thus there is no
transformation nor is there specific adoption in every case.
British practices regarding customary
international law
— In
Britain, customary rules of international law are treated as a part of British
laws. However applicability is subjected to the following conditions. (a) rules
of international law should not be inconsistent with the British Statutes; (b)
if the highest court once determines the scope of a customary rule of
international law, then all the courts in Britain are bound by it.
Following is the influence of the
British practice in regard to the customary rules of international law.
— Rules of Construction- The
British courts interpret the parliamentary statutes in such a way that they
should not go against international law. The presumption is that parliament
never intends to violate international law. But this rule is applicable only
when the provisions of the Statutes are ambiguous.
— Rule of Evidence- In
Britain, the rules of international law need not be proved through evidence
Following are the exceptions of the
British practice in regard to customary rules of international law.
— Acts
of State do not come within the purview of the British Courts, irrespective of
the violation of international law.
— Prerogative powers of Crown-
In some matters like giving recognition to a new States, the British Courts are
bound to obey the prerogative powers of Crown.
British Practice as to treaties.
— In
regard to treaties, the British practice is based on the constitutional
principles governing the relationship between Executive or Crown and
Parliament. In Britain, it is necessary that some type of treaties should
receive the consent of parliament. Such type of treaties are (a) treaties which
affect the rights of British citizens (b) treaties which amend or modify common
law or statutes law of Britain (c) treaties which confer additional power on
Crown (d) treaties which impose additional financial burden on the government.
American Practice
— In
America, customary rules of international law are treated as a part of American
law.
— Article
VI of the American constitution provides that constitution of the United
States, all laws made in pursuance thereof and the international treaties
entered into under the authority of the United States shall be the supreme law
of the land. So if there is a conflict in between international treaty and a
State law, whichever is later in date shall prevail. If there is a conflict
between American Constitution and an international treaty, the American
Constitution will prevail.
— In
America treaties have been divided into two categories- Self executing
treaties and non self executing treaties.
— Self
executing treaties are those treaties which become applicable in America
without any Act or consent of the Congress. On the other hand non self
executing treaties are those which can become applicable in America only after
the consent of the Congress or through its adoption by a specific statute.
History and development of
international law
Origin
— Oppenheim:
its origin essentially a product of Christian civilization [euro centric
approach]
— Originated
as a definite branch of jurisprudence in 16th and 17th
century
— Jews,
Romans, Greeks, Arabs, Hindus, Muslims contributed to the origin and
development of international law
— Discovery
of trade routes
Development
— Treaty
of Westphalia, 1648 ended thirty year war and accepted new political order in
Europe and the emergence of modern nation- state concept
— Industrial
revolution and search for market, colonialism
— Hugo
Grotius [father of international law]
— Mare
Liberum
— De
Jure Belli ac Pacis (Law of War and Peace)
— Main
characteristics
— (i)
Grotius advocated that the States should also be subject to the same rules
which regulate the individuals
— (ii)
he formate the law of peace which subsequently become the basis of his whole
system
— (iii)
he contented that the states violating the law may be punished by other states
— (iv)
In his view, the natural law (right reason) was the basis for determining rules
for the rightful conduct of States
Development during 19th
and 20th century
•
Congress of Vienna, 1815 [European
conference where many rules such as rules relating to international rivers,
classification of diplomatic agents etc were made]
•
Declaration of Paris, 1856 [rules
relating to naval warfare]
•
Geneva Convention, 1864 [rules relating
to warfare]
•
Hague Conferences of 1899 and 1907 [settlement
of international disputes through peaceful means and the establishment of the
Permanent Court of Arbitration
•
The League of Nations, 1919 [established
under the treaty of Versailles, 1919, established the covenant of league of
nations, established Permanent Court of International Justice]
•
Treaty of Locarno 1925 [parties undertook
the obligation of not using force in the settlement of their boundary disputes]
•
Kellog-Briand or Paris Pact, 1928
[parties renounced war as an instrument of their national policy for the
settlement of international disputes]
•
Geneva Convention, 1929 [POW]
•
The United Nations Organization, 1945
Subjects of International Law
3 theories
— State
alone are the subjects of international law
— Individuals
alone are the subjects of international law
— States
are the main subjects of international law, but to a lesser extent individuals
and certain non-State entities, have certain rights and duties under
international law
— Reparation
for injuries suffered in the service of the UN
— The
Nuremburg and Tokyo Tribunals
— Geneva
Convention on the POW
— Genocide
Convention, 1948
State
— A
permanent population
— A
definite territory
— A
government
— Sovereignty
or capacity to enter into relations with other states or capacity to fulfill
international obligations
Different kinds of States and
non-State entities
— Confederation
[formed by independent states, no international personality, independence in
external and internal matters]
— Federal
State [formed by the merger of two or more independent states, have
international personality, division of power Example: USA, Switzerland]
— Vassal
State [a State under the suzerainty of another state is called vassal
state, no independence]
— Protectorate
State [independent state but under the protection of another state, free to
decide internal matters] [foreign policy, defence etc are under the authority
of another state]
— Holy
See or Vatican City
Definition of international law
— Oppenheim- 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.
New definition (9th ed)
— 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 organizations and to some extent, also individuals may be
subjects of rights conferred and duties imposed by international law.
State Responsibility
— Obligation
or responsibility of states towards other states
— The
rules of international law as to state responsibility concern the circumstances
in which and the principles whereby the injured state becomes entitled to
redress for the damage suffered
— Original
and Vicarious responsibility
— Original
responsibility is borne by a state for acts which are directly imputable to
it, such as acts of its government, or those of its officials or private
individuals performed at the government’s command or with its authorization
— Vicarious
responsibility arises out of acts of private individuals and of
officials acting without authorization
International Delinquency
— It
is any injury to another State committed by the head or government of a state
in violation of an international legal duty.
— It
ranges from ordinary violation of treaty obligation to international criminal
acts
— It
is a wrongful act committed by a state which is not a breach of a purely
contractual obligation. It is a wrongful act which is the breach of
international obligation and is independent of any contractual obligation
Notion of Imputability
— If
the organ or official of a State has committed a wrongful act, and the conduct
in breach of international law is imputed from the organ or official to the
State
— Imputability
depends upon 2 conditions
◦ (a)
conduct of a state organ or official in breach of an obligation defined in a
rule of international law
◦ (b)
that according to international law, the breach will be attributed to the
state.
— Responsibility
begins where imputability ends
— Youmans
case
— State
responsibility for injury to aliens
◦ State
responsibility for acts of private individuals
◦ State
responsibility for acts of mob-violence
— United
States Diplomatic and Consular Staff in Tehran
— Reparation
of injuries suffered in the service of the UN
◦ State
responsibility for acts of insurgents
◦ Calvo
doctrine and expropriation clause
— State
responsibility for acts of government organs
— State
responsibility for contracts with foreigners
— Breach
of treaty or contractual obligation
— Expropriation
of foreign property
Defences to state liability
— Consent
— Counter
measure in respect of an internationally wrongful act
— Force
majeure and fortuitous event
— Distress
— State
of necessity
— Self-defence
Recognition
— Prof.
Oppenheim: “In recognizing a State as member of international community, the
existing state declare that in their opinion the new state
fulfils the conditions of statehood as required under international law”
— Fenwick:
“through recognition the members of the international community formally
acknowledge that the new state has acquired international personality”
Theories of Recognition
Constitutive theory
— A
state is, and becomes, an international person, through recognition only and
exclusively. Statehood and participation in the international legal order are
attained by political group only in so far as they are recognized by
established state. Until and unless a state is recognized, it cannot acquire
rights under international law.
Declaratory theory
— According
to this theory, statehood or the authority of the new government exists as such
prior to and independently of recognition. Recognition is merely a formal
acknowledgment through which established facts are accepted. The act of
recognition is merely declaratory of an existing fact that a particular state
or government possesses the essential attributes as required under
international law
— “Recognition
is declaratory of an existing fact but constitutive in nature”
Modes of recognition
— De facto recognition
◦
Provisional or first stage of recognition
— De jure recognition
◦
It is final and once given cannot be withdrawn
◦
Generally 3 conditions to grant de
jure recognition
–
(i) a reasonable assurance of stability and
permanence
–
(ii) the government should command the general
support of the population
–
(iii) it should be able and willing to fulfill
its international obligation
— Luther
v Sagor [there is no distinction between de facto and de jure
recognition for the purpose of giving effect to the internal acts of the
recognized authority].
— Bank
of Ethopia v National Bank of Egypt and Liquori
— The
Arantzazu Mendi
Legal effects of recognition
— The
recognized state becomes entitled to sue in the courts of the recognizing state
— The
courts of the recognizing state given effect to the past as well as present
legislation and executive acts of the recognized state
— In case of de jure recognition, diplomatic
relations are established and the rules of international law relating to
privileges and immunities apply
— A
recognized state is entitled to sovereign immunity for itself as well as its
property in the courts of the recognizing state
— The
recognized state is also entitled to the succession and possession of the
property situated in the territory of the recognizing state
— Bank
of China v Wells Fargo Bank & Union Trust Co. (1952)
— Implied
recognition
— Collective
recognition
— Recognition
subject to a condition
— Retroactive
effects of recognition
— Civil
Air Transport Incorporated Co v Central Air Transport Corporation
— Estrada doctrine
— In
this doctrine Estrada declared that regarding the establishment of diplomatic
relations with other states, Mexico government considers itself free to
determine it in accordance with the facts and circumstances of each case.
— Stimpson doctrine
— If a
state grants recognition to another state in violation of international treaty,
such a recognition would not be valid.
— Hallestein doctrine
State Succession
• State
succession occurs when a state ceases to exist or a new state is formed within
the territory of an existing state or territory is transferred from one state
to another state.
• According
to Prof. Oppenheim, “A succession of international person occurs when one or
more international persons take place of another international person, in
consequence of certain changes in the latter’s condition.
Kinds of Succession
— Universal
Succession
— Partial
Succession
Universal Succession
— (a)
when one State is completely absorbed in another State either through
subjugation or voluntary merger
— (b)
when a State breaks into several parts and each part becomes a separate
international person or are annexed by surrounding international persons
Partial Succession
•
(a) when a part of the State revolts and after
achieving freedom becomes a separate international person.
•
(b) when a part of a State is ceded to another
State
•
(c) when a sovereign State loses a part of its
independence by joining the federal State or when a State accepts the
suzerainty or becomes a protectorate of another State.
Theories of State Succession
— Theory of Continuity
◦
The theory of universal succession
◦
The theory of popular continuity
◦
The theory of organic substitution
◦
The theory of self abnegation
— Negative
Theories
— Theories
importing international law
— Communist
theory of state succession
Rights and duties arising out of
state succession
•
Political rights and duties
•
Local rights and duties
•
Fiscal property debts
•
Contracts
–
West Rand Central Gold Mining Co. Ltd v King
•
Concessionary contracts
–
Premchibar v Union of India
•
Civil laws
•
Unliquidated damages for torts
–
Robert E. Brown’s claim case
•
Nationality
•
Succession to property situated in foreign state
•
Succession of states in respect of treaties
•
Clean state rule
–
A newly independent state is unencumbered by the
obligations and commitments of the predecessor state
•
Moving treaty frontiers rule
–
This rule is based on the association of a
territory with an already established state and on the basis of the prior legal
nexus a newly independent state is entitled to claim its succession to
multilateral treaties
Intervention
•
Defined as dictatorial interference by a state
in the affairs of another state for the purpose of maintaining or altering the
actual condition of things
•
Article 2(4) of UN Charter: “All members shall
refrain in their international relations from the threat or use of force,
against the territorial integrity or political independence of any state or in
any other manner inconsistent with the purpose of United Nations”
–
Only Exception: individual and collective self
defence (Article 51)
•
Article 2(7) refrain UN from interfering in
States
•
Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among States in Accordance with
the Charter of the UN, 1970
•
Declaration on the Enhancement of the
Effectiveness of the principle of refraining from the Threat or use of Force in
International Relations, 1987
Grounds of intervention
Self defence
— Mr.
Webster (US Secretary of States) defined self defence in the case The
Caroline (1841). He declared that the necessity of self defence should be
instant, overwhelming and leaving no choice of means and no moment for
deliberation
— The Corfu
Channel Case (1949)
Other grounds (not legal now)
• 1.
Intervention on humanitarian ground
• 2.
To enforce treaty rights
• 3.
intervention to prevent illegal intervention
• 4.
balance of power
• 5.
for protection of persons and property
• 6.
collective intervention or collective measures
• 7.
intervention to maintain international law
• 8.
intervention in Civil War
• Monroe doctrine (1823)
•
It contains three points
•
The states of American continent would no more
be made subject of colonisation in future
•
America would not interfere in the mutual wars
of European States
•
If European States interfered in the affairs of
American Continent, America would consider it unfriendly act, and would take
necessary action in this connection
• Drago doctrine
•
According to this doctrine European States could
not intervene in the affairs of States of American Continent on the ground of
claiming public debts
State Jurisdiction
— Territorial Sovereignty
◦
Subjective territorial Principle
◦
Objective territorial Principle
— Extra
territorial Sovereignty
— Chung
chi Cheung v The King
— Criminal Jurisdiction
◦
Passive nationality principle
◦
Active nationality principle
— S
S Lotus case
Exceptions of the exercise of
jurisdiction
— Diplomatic
agents
— Foreign
embassies
— Foreign
sovereigns
◦
Mighell v Sultan of Johore
◦
The Parliament Belge
— Public
property of foreign sovereign state
— International
organisations
— Foreign
troops
— Warship
and their crew
State Territory
— Portion
of globe which is subjected to the sovereignty of a state.
— Modes
of acquiring territory
— Occupation
◦ It
is the act of appropriation by a state by which it intentionally acquires
sovereignty over such territory as it is at the time not under the sovereignty
of another state
◦ possession
and administration
— Island
of Palmas case
— Prescription
◦ If
a state exercises control and establishes occupation over a particular
territory for a long time and thus exercises defacto sovereignty over it, then
the territory concerned becomes a part of that state
— Accretion
◦ Territory
is added mainly through natural causes
— Cession
— Annexation
— Lease
— Pledge
— Plebiscite
— Newly
emerged states
Mode of loss of territory
— Cession
— Subjugation
— Prescription
— Revolt
— Dereliction
◦
By renunciation of a territory
— Granting
independence to colony state
Extradition
— Extradition
is the delivery of an accused or a convicted individual to the state on whose
territory he is alleged to have committed or to have been convicted of a crime,
by the state on whose territory the alleged criminal happens to be for the time
being
— There
is no general duty upon states to extradite.
It mainly guided by extradition treaty
— The
Extradition Act, 1962
Conditions of extradition
— Political criminals
◦
Re Castioni
◦
Re Meunier
— The Belgian Attentat Clause
◦ It
provided that murder of the Head of a foreign government or of a member of his
family, should not be considered a political crime
— Military
criminals
— Religious
crimes
— The
rule of speciality
◦ An
accused is extradited for a particular crime, and the country which gets back
the criminal is entitled to prosecute that person only for the crime for which
he was extradited.
◦
U S v Rauscher
— Double
Criminality
— A
prima facie case should be there
— States
generally do not extradite its own citizens
— Savarkar’s
case
Asylum
— Active
protection extended to a political refugee from state by a state which admits
him on his request
— Art
14 of UDHR states that every one has a right to seek and enjoy in other
countries asylum from prosecution
— Territorial
and extra territorial asylum
Diplomatic Agents
— The
functions of a diplomatic mission consist (a) representing the sending state in
the receiving state (b) protecting in the receiving state the intersts of the
sending state and of its nationals (c) negotiating with the government of the
receiving state (d) ascertainment by all lawful means conditions and
developments in the receiving state and reporting thereon to the government of
the sending state (e) promoting friendly relations between the sending state
and the receiving state and developing their economic, cultural and scientific
relations
Immunities and privileges
— Inviolability
— Immunity
from criminal jurisdiction
— Immunity
from civil jurisdiction
— Immunity
regarding residence
— Immunity
from being presented as witness
— Immunity
from tax dues etc
— Immunity
from police rules
— Right
to worship
— Right
to exercise control and jurisdiction over their officers and families
— Right
to travel freely in territory of the receiving state
— Freedom
of communication for official purpose
— Immunity
from local and military obligations
— Immunity
from inspection of personal baggage
— Immunity
from social security provisions
Duties of diplomatic agents
— Duty
to respect laws and regulations of the receiving state
— Duty
not to interfere in the internal affairs of the state
— Official
business should be conducted through the ministry of foreign affairs
— Premises
of mission not to be used in any manner incompatible with the function of the
mission
— Not
to practice for personal profit any professional or commercial activities
Termination of diplomatic mission
— Recall
of envoy
— Notification
in regard to the end of envoys functions
— On
request of the receiving state
— By
delivery of passport
— Persona
non gratia (undesirable person)
— End
of the object of mission
— Expiration
of letter of credence (end of a fixed term).
PUBLIC INTERNATIONAL LAW
Difference between Private
International Law and Public International Law
|
Private international law
|
Public international law
|
|
Deals with individuals
|
Mainly deals with States and to lesser extent individuals
|
|
It is a part of Municipal law
|
Not always the case of public international law (to certain extent
customary rules of international law)
|
|
Different in different states
|
Same for all the states
|
|
It deals with the case having a foreign element
|
No such problem
|
|
Determines the court having the jurisdiction
|
No such problem
|
|
Made by legislature of the states
|
Mainly rules recognized by States in their relation with each other
|
Is international law a positive
morality?
Whether international law is a law or
not?
Whether international law is the
vanishing point of jurisprudence?
•
The term law cannot be limited to rules of
conduct enacted by a sovereign authority. Historical school of jurisprudence is
an example. In primitive society there was no sovereign authority yet there
were laws
•
Austinian concept of law fails to account
customary rules of international law. Common law of England is an example
•
Customary rules of international law are being
replaced by treaties. Law making treaties like Geneva and Hague conventions
have binding effect although they do not emanate from a sovereign political
authority
•
When international questions arise, states do
not rely upon moral arguments but rely upon treaties, precedents etc
•
States do not deny the existence of international
law. On the contrary, they interpret international law so as to justify their conduct
•
Some states like USA and UK are treating international
law as part of their own law.
•
ICJ is deciding dispute as per international law
•
ICJ decisions are binding upon parties
• UN
is based on the true legality of international law
• International
law has sanctions
•
International law may be frequently violated,
but it does not mean that international law is not law
Basis of international law
•
Theories as to Law of Nature
–
International law is a part of law of nature.
Secularized by Hugo Grotius. Natural law was the dictate of right reason
–
It is vague and uncertain. Different versions
exists. Not based on the reality and actual practices of state
Positivism
• Law
which is in fact as contrasted with law which ought to be
• Law
enacted by appropriate legislative authority is binding
• The
will of the state is the main source
• State
should consented to be bound by international law
• Custom
• General
international law
• Some
principles are binding
• Theory of consent
• Consent
is the basis of int law
• Auto limitation theory
• Int
law is binding upon states because they have restricted their powers through
the process of auto limitation and agreed to abide by int law
• Pacta Sunt Servanda (Art 26 of VCLT)
• Means
that agreement entered into by states will be respected and followed by them in
good faith
• Theory of fundamental rights
• States
also possess certain fundamental rights like equality, independence etc
UNITED NATIONS ORGANISATIONS
Functions of UN
•
To maintain international peace and security,
and to that end: to take effective collective measures
•
To develop friendly relations among nations
based on respect for the principle of equal rights and self-determination of
peoples
•
To achieve international co-operation in solving
international problems of an economic, social, cultural, or humanitarian
character, and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or
religion
•
To be a centre for harmonizing the actions of
nations in the attainment of these common ends
Principles
•
principle of the sovereign equality of all its
Members
•
fulfill in good faith the obligations assumed by
them in accordance with the present Charter
•
settle their international disputes by peaceful
means
•
All Members shall refrain in their international
relations from the threat or use of force against the territorial integrity or
political independence of any state (principle of non intervention)
•
All members shall give the UN every assistance
in common action
•
States which are not members of the UN act in
accordance with these principles
•
Non-intervention in the domestic matters of
States
General Assembly
•
the General Assembly occupies a central position
as the chief deliberative, policymaking and representative organ of the United
Nations.
•
It also plays a significant role in the process
of standard-setting and the codification of international law.
According to the Charter of the
United Nations, the General Assembly may:
•
Consider and approve the United Nations budget
and establish the financial assessments of Member States
•
Elect the non-permanent members of the Security
Council and the members of other United Nations councils and organs and, on the
recommendation of the Security Council, appoint the Secretary-General
•
Consider and make recommendations on the general
principles of cooperation for maintaining international peace and security,
including disarmament
•
Discuss any question relating to international
peace and security and, except where a dispute or situation is currently being
discussed by the Security Council, make recommendations on it
•
Discuss, with the same exception, and make
recommendations on any questions within the scope of the Charter or affecting
the powers and functions of any organ of the United Nations
•
initiate studies and make recommendations to
promote international political cooperation, the development and codification
of international law, the realization of human rights and fundamental freedoms,
and international collaboration in the economic, social, humanitarian,
cultural, educational and health fields
•
Make recommendations for the peaceful settlement
of any situation that might impair friendly relations among nations
•
Consider reports from the Security Council and
other United Nations organs
•
The Assembly may also take action in cases of a
threat to the peace, breach of peace or act of aggression, when the Security
Council has failed to act owing to the negative vote of a permanent member. In
such instances, according to its “Uniting for Peace” resolution of November
1950 (resolution 377 (V)) the Assembly may consider the matter immediately and recommend
to its Members collective measures to maintain or restore international peace
and security;
•
The Assembly has initiated actions — political,
economic, humanitarian, social and legal — which have affected the lives of
millions of people throughout the world.
Security Council
•
to maintain international peace and security in
accordance with the principles and purposes of the United Nations;
•
to investigate any dispute or situation which
might lead to international friction;
•
to recommend methods of adjusting such disputes
or the terms of settlement;
•
to formulate plans for the establishment of a
system to regulate armaments;
•
to determine the existence of a threat to the
peace or act of aggression and to recommend what action should be taken;
•
to call on Members to apply economic sanctions
and other measures not involving the use of force to prevent or stop
aggression;
•
to take military action against an aggressor;
•
to recommend the admission of new Members;
•
to exercise the trusteeship functions of the
United Nations in "strategic areas";
•
to recommend to the General Assembly the
appointment of the Secretary-General and, together with the Assembly, to elect
the Judges of the International Court of Justice.
•
Veto and double veto
Economic and Social Council
•
The Ecosoc may make or initiate studies and
reports with respect to international economic, social, cultural, educational,
health, and related matters and may make recommendations
•
make recommendations for the purpose of
promoting respect for, and observance of, human rights and fundamental freedoms
for all
•
may prepare draft conventions for submission to
the General Assembly
•
It may co-ordinate the activities of the
specialized agencies
International Court of Justice
•
The International Court of Justice (ICJ) is the
principal judicial organ of the United Nations (UN). It was established in
June 1945 by the Charter of the United Nations and began work in April 1946.
The seat of the Court is at the Peace Palace in The Hague (Netherlands).
•
The Court’s role is to settle, in accordance
with international law, legal disputes submitted to it by States and to give
advisory opinions on legal questions referred to it by authorized United
Nations organs and specialized agencies.
•
The Court is composed of 15 judges, who are
elected for terms of office of nine years by the United Nations General
Assembly and the Security Council. It is assisted by a Registry, its
administrative organ. Its official languages are English and French.
Jurisdiction
•
Contentious Jurisdiction
•
Advisory Jurisdiction
The Law of Sea
•
UN conferences of Sea 1958, 1960 and 1982
–
Convention on the Territorial Sea and Contiguous
Zone
–
Convention on the High Sea
–
Convention on Fishing and Conservation of Living
Resources
–
Convention on the Continental Shelf
•
Territorial Waters, Continental Shelf, Exculsive
Economic one and other Maritime Zones Act, 1976
Maritime belt or Territorial Water
•
It is that belt of the sea which is adjacent to
the coastal state and over which the coastal State exercises the sovereignty.
It includes sea bed and subsoil and air space over the territorial sea.
•
Canon shot rule
•
12 nautical mile from the base line (Art 3 of
UNCLOS 1982)
•
Equidistance special circumstances rule
Contiguous Zone
•
In a zone contiguous to its territory sea, the
coastal state may exercise the control necessary to (a) prevent infringement of
its customs, fiscal, immigration or sanitary regulations with its territory or
territory sea (b) punish, infringement of the above regulations committed
within its territory or territory sea.
•
24 nautical miles from the base line.
Continental shelf
•
It is (a) the sea bed and subsoil of the
submarine areas adjacent to the coast, but outside the area of the territorial
sea to a depth of 200 meters or beyond that limit to where the depth of
superjacent waters admits of the exploitation of the natural resources of the
said areas (b) to the sea bed and sub soil of similar submarine areas adjacent
to the coast of island
Exclusive Economic Zone (200 N M)
•
In the EEZ, the coastal state has
–
(a) Sovereign rights for the purpose of
exploring and exploiting, conserving and managing the natural resources,
whether living or non living, of the seabed and subsoil and the superjacent
waters, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water currents
and winds
–
(b) jurisdiction for (i) the establishment and
use of artificial islands, installation and structures (ii) marine scientific
research (iii) the protection and preservation of the marine environment
High Seas
•
The freedoms of high seas are (1) freedom for
navigation (ii) over flight (iii) freedom to lay submarine cables and pipelines
(iv) freedom to construct artificial islands and other installations permitted
under international law (v) freedom of fishing (vi) freedom of scientific
research
Hot pursuit
•
The hot pursuit of a foreign ship may be
undertaken when the competent authorities of the state have good reason to
believe that the ship has violated the laws and regulations of that state. Such pursuit must be commenced when the
foreign ship or one of its boats is within the internal waters, the territorial
sea or the contiguous zone of the pursing state and may only be continued
outside the territorial sea or the contiguous zone if the pursuit has not been
interrupted. Hot pursuit ceases as soon as it enters the territorial sea of its
own state or of a third state
International sea bed Area
•
The Area has been defined as the sea bed and
ocean floor and sub soil thereof beyond the limits of national jurisdiction.
•
International Tribunal for the Law of Sea and
the Sea-Bed Chamber
Settlement of international disputes
•
Hague conferences 1899 and 1907
•
Dispute between states
•
Arbitration
–
Permanent Court of Arbitration
•
Judicial settlements
•
Negotiations
•
Good offices
•
Mediation
•
Conciliation
•
Enquiry
•
Settlement of international disputes under the
auspices of UN
•
Retorsion (retaliation)
•
Reprisal (coercive method)
•
Embargo
•
Pacific Blockade
•
Intervention
•
Settlement under UN
Air and Space Law
•
Paris convention of Aerial Navigation 1919
•
Warsaw Convention 1929
•
Chicago Convention 1944
–
Recognizes the complete sovereignty over the air
space above its territory
–
Authorization by agreement or otherwise needed for
innocent passage over the air space
–
Aircraft have the nationality of the state in
which they are registered
Five freedoms of Air
•
Freedom to fly across foreign territory without
landing
•
Freedom to land for non traffic purpose
•
Freedom to disembark in foreign territory
traffic originating in the state of the origin of the craft
•
Freedom to pick up in any foreign country
traffic destined for the state of origin of aircraft
•
Freedom to carry traffic between two foreign
countries
Outer Space
•
The Outer Space Treaty 1967
–
Outer space shall be free for exploitation
without discrimination
–
It is not subject to national appropriation
–
Parties shall not place in orbit any weapons
–
Celestial bodies shall be used exclusively for
peaceful purposes
–
Astronauts are considered as envoy of mankind
and shall render to them all possible assistance
–
Parties shall bear international
responsibilities
–
Internationally liable for damages
–
Parties retain jurisdiction over objects and
personnels
•
The agreement on the Rescue of Astronauts, the
Return of Astronauts and the Return of Objects Launched into Outer Space, 1967
•
The Convention on international Liability for
Damages caused by Space Objects, 1971
•
The Convention on Registration of Objects
Launched into Outer Space, 1974
•
The agreement Governing the Activities of States
on the Moon and other Celestial Bodies, 1979
•
Vienna Conference on the Exploration and
Peaceful Uses of Outer Space (UNISPACE - 82)
Antarctica Treaty 1961
•
The area is to be used for peaceful purposes
only; military activity, such as weapons testing, is prohibited but military
personnel and equipment may be used for scientific research or any other
peaceful purpose;
•
Freedom of scientific investigations and
cooperation shall continue;
•
Free exchange of information and personnel in
cooperation with the United Nations and other international agencies
•
The treaty does not recognize, dispute, nor
establish territorial sovereignty claims; no new claims shall be asserted while
the treaty is in force;
•
The treaty prohibits nuclear explosions or
disposal of radioactive wastes;
•
Includes under the treaty all land and ice
shelves but not the surrounding waters south of 60 degrees 00 minutes south;
•
Treaty-state observers have free access,
including aerial observation, to any area and may inspect all stations,
installations, and equipment; advance notice of all activities and of the
introduction of military personnel must be given;
•
Allows for good jurisdiction over observers and
scientists by their own states;
•
Frequent consultative meetings take place among
member nations;
•
All treaty states will discourage activities by
any country in Antarctica that are contrary to the treaty;
•
All disputes to be settled peacefully by the
parties concerned or, ultimately, by the International Court of Justice
•
Agreed Measures for the Conservation of
Antarctic Fauna and Flora (1964) (entered into force in 1982)
•
The Convention for the Conservation of Antarctic
Seals (1972)
•
The Convention for the Conservation of Antarctic
Marine Living Resources (1982)
•
The Convention on the Regulation of Antarctic
Mineral Resource Activities (1988) (signed in 1988, not in force)
•
The Protocol on Environmental Protection to the
Antarctic Treaty was signed October 4, 1991
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