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Al-Ameen College of Law Bangalore (VIII SEM 5 YEARS & IV SEM 3 YEARS) Prepared by: Kavya Hebbar Lecturer in Law Al-Ameen College of Law 1 AL – AMEEN COLLEGE OF LAW MODEL ANSWER PAPER- May 2014 IV Semester of 3 Years & VIII Semester 5 Years LL. Examination SUBJECT: Int...

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Al Al-Ameen -Ameen College of Law Bangalore

(VIII SEM 5 YEARS & IV SEM 3 YEARS)

Prepared by: Kav Kavya ya Hebbar Lecturer in Law Al-Ameen College o of f Law

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AL – AMEEN COLLEGE OF LAW MODEL ANSWER PAPER- May 2014 IV Semester of 3 Years & VIII Semester 5 Years LL.B. Examination SUBJECT: International Law Duration: 3 Hours

Max Marks: 100

Instructions: 1. Answer all 5 Questions. 2. One essay type and one short note question or problems from each unit have to be attempted.

UNIT-I 1. a. Define International law. What is the basis of International Law? Ans: Introduction: International Law is the law of nations. International Law is such laws which govern the relation between the states. The word “International Law” first time used by Jermy Bentham in 1780. Since then these words have been used to denote the body of rules and principles which regulate the relations among the members of international community. International Law is not a new issue, it developed from ancient time. According to Oppenheim it is essentially a product of Christian Civilization. India, Rome most of the countries contributed to the development of International Law. Definition: According to Oppenheim, “Law of Nations or International Law is the name for the body of customary law and conventional rules which are considered legally binding by civilized states in their intercourse with each other.” According to J.L Breirly, “ The law 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 one another.”

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J.G Starke defined International Law “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 includes also: a. The rules of law relating to the functioning of the international institutions or organizations, 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 community. The Law of Nations aims at securing justice for human beings. In modern International Law individuals are covered under the scope and also international organization.

Basis of International Law: There are two main theories which explain the basis of International Law. They are as follows: 1. Theories as to Law of Nature 2. Positivism

1. Theories as to Law of Nature: The exponents of this theory have the view that the law is a part of nature. The states follow the International Law because it is the law of nature and is the higher law. It is the Natural Law which has conferred binding force on the International Law. In the ancient period the law of nature was related with religion. It was regarded as a divine law. This concept was later in 16th and 17th century secularized by the jurists. Much credit will go to Grotius. According to him the law of nature was the ‘dictate of right reason’. International Law was considered binding it was in fact, natural law applied to special circumstances. Criticisms: The exponents of the International Law believe that the international law is binding because it is based on natural law and they use it as a metaphor. Different jurists give different meaning such as, reason, justice, utility, general interest of international community, etc… hence the meaning of law of nature is vague and uncertain. Its main defect is it is not based upon realities and actual practices. 2. Positivism: 3

Positivism is in fact as contrasted with law which ought to be. According to the positivists, law enacted by appropriate legislative authority is binding. It based upon the actual practice of State. In their view, the treaties and conventions entered by the states are main sources of International Law. According to 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. According to the followers of this theory the state are binding for the international law as they have given consent to it. The Italian jurist, Anzilotti, one of the chief exponent of the positivist school. According to him, the binding force of international law founded on a supreme principle or norm known as pacta sunt servenda.

Criticisms: 1. The concept of the will of State presented by the positivists is purely metaphorical. 2. It fails to explain the basis of customary international law where states have not given consent. 3. They failed to explain the case when the states are admitted in to family of nations. International law is applicable to them even without the consent. 4. Some principles of International law is applicable even to the non-members of the U.N. 5. The positivists failed to explain the ‘General Principles of Law recognized by civilized state’. According to Starke no specific theory is capable of explaining the true basis of International Law. Because in modern times, no state can escape from the hands of International L aw, as most of the states are interdependent on other state for one or the other reason. The International law is binding on the states. It ultimately binds the man, whether he is single or associated with others in a state, is constrained in so far as he is reasonable being, to believe that order and not chaos is the governing principle of the world in which he has to live. Some other theories: a. Theory of Consent: This theory based on the positivism. It failed to explain the basis of International Law. According to this theory States obey the International Law because they have given their consent to them. The following are the criticisms: i. As regards customary rules, it is not necessary to prove that States have given their consent. ii. In regard to customary rules, the basis of implied consent is far from correct. 4

iii. iv.

It fails to explain in case of recognition of states It fails to explain the true basis of law even if we distort facts & fit them in the theory.

b. Auto limitation Theory: According to this theory, International Law is binding upon the states because they have restricted their power through the process of auto limitation and have agreed to abide by international law. The basis of this theory is this that each state has a will which is completely independent and free from external influences. But through the process of limitation, State can restrict its powers and thereby limit its will. In short, the states are not bound to follow the International law as they are sovereign, but by imposing limitations on their power they themselves bound by such rules.

Criticisms: i. It is based upon the presumption that there exist the will of the state. But the will of the state is nothing but the will of the people who are living in such state. ii. The auto limitation theory will imply that the States can free itself from self-imposed restriction at its will. In practice, this is not possible. iii. It fails to explain the case of a state acquiring territory or undergoing some changes, which bring with it, for the first time, the incidence of the obligation under rules which previously it had no opportunity either to observe or break, and to which it had no occasion to give or withhold consent.

c. Pacta Sunt Servanda: According to Anzillotti, the binding force of International law is founded on the fundamental principle known as pacta Sunt Servanda, which means that the agreements entered into by the states must be followed by them in good faith. Criticisms: It fails to explain the customary International law which is not based on the agreements between the states. d. Theory of Fundamental Rights: This theory is based on the view of naturalistic theory. According to this view, prior to the existence of state, man used to live in natural state and even in that state he possessed some fundamental rights, such as, independence, equality, right

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to self-preservation. Like man, state also possessed these fundamental rights because so far there is, no world institution over and above the states

Criticisms: 1. According to this theory when a new state is admitted to the family of nations, it brings with it certain fundamental rights which are inherent. Such rights are meaningless unless and until there is a legal system which confers validity on them. 2. This theory is in favour of giving more freedom to the states and lays less emphasis on the social relations and co-operation among the states. Into the international field the problem is not of enhancing the freedom of states, but of restricting it so as to create social solidarity and co-operation among the states. 3. This theory regards certain fundamental rights, such as right to independence, equality, etc.., as natural rights. But as a matter of fact, these fundamental rights are as a result of historical development. The influence of natural law: The early and original law of Romans was called ‘Jus Civile’. Later on, they developed another legal system called ‘Jus Gentium’, so called because it was thought to be the law of universal application. In the Republican era of Rome, the ‘Jus Gentium’ was reinforced as ‘Jus Naturale’ which means, sum of those principles which ought to control human conduct, because it founded in the very nature of man as a rational and social being. Thus, natural law was based on the rational and reasonable needs of man’s nature. Most of the jurists admit that natural law greatly influenced the international law and gave it, binding force. In other words, States followed international law because it was a higher law applied in special circumstances.

Conclusion: International law is a law where it regulates the relationship between the states. There is an influence of natural law theory in the development of International law. There are many theories which explain the basis of International law. But no theory in itself is sufficient to explain the basis of International Law. The contribution of all these theory can be said as basis of law.

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Or Examine the theories as to the relation between International law and State Law Ans: Introduction: The international law deals with the relation between the states and the municipal law deals with the relation between the individuals. Is the international law and the municipal law related to each other if so how they are related? There is divergence of opinion on the question as to whether international law and municipal law can be said to form a unity being manifestation of single conception of law or whether international law constitutes an independent system of law essentially different from the Municipal Law. There are main five theories which speak about the relation between the International Law and the municipal law. They are Monism, Dualism, Specific Adoption Theory, Transformation Theory, and Delegation Theory. 1. Monistic Theory: The exponents of this theory emphasize the scientific analysis of the internal structure of law. According to this theory, law is a unified field of knowledge, no matter whether it applies on individuals, States 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. According to Kelsen and other monistic writers to deny that the two systems constitute part of that unity corresponding to the unity of legal science. Thus any construction other than monism and in particular dualism is bound to amount to denial of the true legal character of international law. According to the exponents of Monism International Law and municipal law are intimately connected with each other. International law and municipal law are the two branches of knowledge of law which is applicable to the human community in some or the other way. Criticisms: The theory of monism seems to be correct in one way as in some or the other way it applies to the mankind or the man is the root of all law. But in actual practice states do not follow this theory. Some exponents contended that the Municipal law and the international law are the two different systems of law. Further they explain that all the states are sovereign states and they are not bound by the international law. They are obliging the international because they have given consent for such law and so they are bound by the same. 7

2. Dualistic Theory According to the exponents of this theory the municipal law and international law are two different separate laws. Triepel and Anzilloti are the chief exponents of this theory. According to Triepel, international law and state law are different because their subject and origin are different. In his view, individuals are the subjects of state law and the states are the subjects of the international law. Besides this, origin of the state law is the will of the state, but origin of the international law is common will of the States.

Criticisms: According to this theory they say that the subject of international law only the states are the subject. But it includes not only states but in modern times applicable to states, individuals & certain other non-state entities. According to this theory state law origin by the state will. But this conception of state will is not correct; it is the will of the people who compose it. The sources of IL not only the common will of the states but there are some fundamental principles binding upon states against their will.

3. Specific Adoption Theory According positivists, this theory of international law can be enforced in the field of State law only after it has been specifically adopted by State law. It cannot be directly enforced; there must be specific adoption by the law of that state. International law can be applied in the municipal law only when municipal law either permits it or adopts it specifically. This view is generally followed by States in respect of the International Treaties. It is argued that unless there is specific adoption of the international treaties or there is some sort of transformation it cannot be enforced in municipal law. For example: Tokyo Convention Act 1975 and Vienna Convention of Diplomatic Relations Act 1972 enacted by Indian Parliament. Case: Jolly George Vs. The Bank of Cochin In this case the Supreme Court of India, while considering the International Covenants held that, “The positive commitment of the State parties’ ignites legislative action at home but does not automatically make the covenant enforceable part of the “Corpus Juris of India”. As regards specific adoption of International treaties by Indian parliament, the Anti-Apartheid (United Nations Convention) Act, 1981, the Anti Hijacking Act 1982, takes the special mention here.

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Criticisms: This theory is also subjected to criticisms because there are several principles of International Law which are applied in the field of municipal or the state law without specific adoption. For example, there are customary laws which are not specifically adopted even then those rules are followed. 4. Transformation Theory: According to this theory, the rule of International Law to be applied in the field of Municipal Law then it has to undergo transformation . This theory is based on the consent of the state. Criticisms: This theory is criticized as there are several treaties and principles of International law which becomes applicable in the field of municipal law without undergoing the process of transformation. The headquarters Agreement between the United States of America and the United nations is a glaring example. 5. Delegation Theory The critics of the transformation theory put forward a new theory called delegation theory. According to this theory the constitutional rules of international law permit each state to determine as to how international treaties will become applicable in the field of State Law. The constitution of each state contains provision in this connection. Thus no transformation takes place. Criticisms: This theory also severely criticized by the jurists. One may ask when and how International rules have delegated power to state constitutions, and what are the constitutional rules of International Law? State is sovereign it does not recognize any authority over and above it. Then how the concept o delegation arises?

Conclusion: There are different theories which discussed above, which explains the relationship between the municipal law and the international law. But no theory in itself correctly explains the relationship between the international law and the municipal law. Sometimes the monistic theory seems to be correct as the root of all laws is man. But when it comes to the subject of two different laws under International law, States, international organizations, non-state entities are considered as subjects. The subjects of Municipal law are individuals. So the dualistic theory consider good. In some cases there is need of adopting or transforming the international law is needed as to enforce it in municipal law. So no theory is perfect in itself. There are loopholes in each theory as it discussed earlier. 9

b. Write short notes on: Is International Law is a true law? Ans: There are two main theories which are controversial to each other. One theory says the international law is a true law. Another theory says that International law is not a true law in its sense. This controversy is depending upon the definition of the word ‘Law’. If we rely on the definition given by Hobbes, Austin and Pufendrof, that law is a command of sovereign enforced by superior political authority to political inferior and which is backed by sanction. Then we cannot say that the international law is a law. Under international law, law is not the command of sovereign. There is no superior political authority or inferior. It is the agreement between the states so as to maintain the good relation between the states. As to sanction there is no prescribed sanctions under international law. Then international law cannot be included in the category of law. According to Hobbes man is by nature nasty, brutish and violent and fear or sanction which is inherent in law is necessary to maintain order in society. Further, men need for their security “a common power to keep them in awe and to direct their action to common benefit.” Holland, Bentham, Jethro Brown, etc are other jurists who deny the legal character of international law. According to these jurists, International law lacks effective legislative machinery, an executive machinery and potent judiciary above all the sanction which is necessary for enforcement of law. But this view is not seems to be correct. According to Oppenheim, the existence of law presupposes the existence of three pre-requisites: i. ii. iii.

A community The body of rules and Common consent of the community that if necessary these rules shall be enforced by an external power.

According to this definition the International Law can be said as law. There is a community of states which is bound by laws and rules. The states together have given consent to this rules and laws. Most of the jurists subscribes to the view that international law is a law. It has been noted that sanction is not an essential element of law. Even if it is regarded as an essential element it is wrong to say there is no sanction behind international law. But the sanctions are weaker as compared to State Law. International law operates in a decentralized system. Each state is sovereign and equal in the eye of law. Art. 59 of the statue of International Court of Justice provide that the decisions of the International Court of Justice shall not be binding except upon a party to a dispute and only in respect of the p...