PIL-8th Sem Q&A LN PDF

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LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: krishnaa0205@yahoo, Note: All the subject matter has been collected from the internet or other freely available sources, believed to be under the creative commons license and may be distributed freely f...

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LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

Note: All the subject matter has been collected from the internet or other freely available sources, believed to be under the creative commons license and may be distributed freely for the purpose of study but not for sale, any copyrighted material if found in these notes may please be brought to my attention and the same will be forthwith removed. Additionally, I hold no responsibility for the correctness or otherwise of the matter provided below and your results in the examinations are eventually a product of your efforts only and I take no responsibility for the same. However, any thanksgiving, & suggestions are welcome for further improvement of the legal education system in India First Semester Five Year BA, LL.B. Examination Answered Papers Max. Marks: 100 Instructions: 1. Please read the instructions in your Exam Question paper and in your answer sheet without fail. Start all answers in a different new page

2. PUBLIC INTERNATIONAL LAW

Briefly explain the origin and development of International law. Nature and Origin of Public International Law Nature: The system of public international law may be described as ‘consisting of a body of laws, rules and legal principles that are based on custom, treaties or legislation and define, control, constrain or affect the rights and duties of states in their relations with each other’. Public international law has increased in use and importance vastly over the twentieth century, due to the increase in global trade, armed conflict, environmental deterioration on a worldwide scale, awareness of human

LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

rights violations, rapid and vast increases in international transportation and a boom in global communications. Public international law has three principal sources: international treaties, custom, and general principles of law. In addition, judicial decisions and teachings may be applied as "subsidiary means for the determination of rules of law". International treaty law comprises obligations, states expressly and voluntarily accept between themselves in treaties. Attempts to codify customary international law picked up momentum after theSecond World War with the formation of the International Law Commission (ILC), under the aegis of the United Nations. Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. Public international law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. International law is concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of refugees, international crimes, nationalityproblems, and human rights generally. It further includes the important functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of theuse of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law is also used to govern issues relating to the global environment, the global commons such as global communications, andworld trade.

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LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

According to international law, all states are sovereignand theoretically equal. As a result of the notion of sovereignty, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, it is thought by many international academics that most states enter into legal commitments with other states out of enlightened selfinterest rather than adherence to a body of law that is higher than their own. Breaches of international law raise difficult questions for lawyers. Since international law has no established compulsory judicial system for the settlement of disputes or a coercive penal system, it is not as straightforward as managing breaches within a domestic legal system. However, there are means by which breaches are brought to the attention of the international community and some means for resolution. For example, there are judicial or quasi-judicial tribunals in international law in certain areas such as trade and human rights. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter through the Security Council. Origin: International law has developed historically and philosophically over many centuries, in many cultures and a rudimentary system of international law existed even in ancient societies. Persons from even the most diverse historical cultures sought to relate to one another in a peaceful, predictable, and mutually beneficial way.

LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

On this viewpoint one can refer to Neff’s ‘A short history of International Law’ in Evans (2006), which traces the development of international law in many historical traditions. Neff persuasively contends that persons from even the most diverse historical cultures sought to relate to one another in a peaceful, predictable, and mutually beneficial way. He points out that Mesopotamia, northern India and classical Greece had three areas of international law: diplomatic relations, treatymaking, and rules governing the conduct of war. As these are still three major areas of international law, it establishes the view that international law has long historical roots. During the medieval period, throughout Europe, customs began to be accepted, founded on the Rhodian sea law and which was a Byzantine work. In addition, there was a ‘continental law merchant’, which was a series of regulations and practices governing trade. The area of diplomatic relations developed in this period and the European states began to conclude bilateral treaties which spelled out reciprocal guarantees of fair treatment. The sixteenth and seventeenth centuries constituted ‘the classical age’ of public international law. The major scholar of that era was Hugo Grotius whose main work was ‘On the Law of War and Peace’, published in 1625, and in which he further developed the just-war theory and argued that the law of nations was distinct from the law of nature. The purpose of the law of nations was to regulate the external conduct of rulers. Up to the nineteenth century, international law had developed over centuries, with its flowering in the classical age. Although Grotius might be known as the chief architect of our modern international legal philosophy, the roots of his scholarship are in the ancient natural law texts and developments of mercantile law in the Middle Ages.

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LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

In the eighteenth and nineteenth centuries another philosophical tradition developed in contrast to Grotius’ natural law theory which has also influenced modern international law: positivism. It is important to note that modern international law has also been profoundly influenced by developments in the nineteenth and twentieth centuries which until the end of the Second World War was dominated by positivist thinking and the development of a plethora of bilateral and multilateral treaties, such as the treaties that constituted the results of the Hague Conferences, the establishment of the League of Nations, and, finally, the United Nations (UN). Recently in the late-twentieth and early twenty-first centuries, in addition to the staggering developments in international legal instruments (multilateral law-making conventions) and international institutions (the UN, World Trade Organization (WTO), International Criminal Court) we have seen the rise of a diverse range of international law theories, even though, there is a argument that there is a continuation of natural law and positivism. One recent example, as embodied by Martii Koskenniemi in his writings, ‘What is international law for?’ seeks to deconstruct the language used in international law and analyses the basic meaning. Juxtaposed with this philosophy, are writers on liberal internationalism, such as Teson and Slaughter and the New Haven school which examines the process of international law-making as expounded by Myers McDougall and Michael Reisman. All of these theorists examine international law through the lens of philosophical thinking that might influence the development of international law into the future. In this brief historical review, it can be seen that international law was developed over many centuries and that the classical age of Grotius and the Spanish philosophers might only be one

LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

stage in the continuing development of public international law that continues into the twenty-first century. There continue to be divergent theories of international law, which will inform future development of the subject. Examine the theories as to the relation between International Law and State Law. International Law is the law which governs the Relations of sovereign independent States inter se Municipal law or State law or national law is the law of a State or a country and in that respect is opposed to International Law which consists of rules which civilized States consider as binding upon them in their mutual relations. Kelsen observes that national law regulates the behavior of individuals International law the behavior of States or as it is put whereas national law is concerned with the international relations the so called domestic affairs of the State. International Law is concerned with the external relations of the State its foreign affairs. Legislature and court systems are different on the international and municipal levels. Where the municipal level uses a legislature to help enforce and test the laws, the international court system relies on a series of treaties without a legislature which, in essence, makes all countries equal. Enforcement is a major difference between municipal and international law. The municipal courts have a law enforcement arm which helps require those it determines to follow the rules, and if they do not they are required to attend court. The international court system has no enforcement and must rely on the cooperation of other countries for enforcement. There is a divergence of opinion on the question as to whether

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LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law. The former theory is called monistic and the latter dualistic. Monistic Theory: Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal. In most monist states, a distinction between international law in the form of treaties, and other international law, e.g. jus cogens is made. International law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules because, in some states, the latter have priority. In other states, like in Germany, treaties have the same effect as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted prior to their ratification. In its most pure form, monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution.It maintains that the subject of the two systems of law namely, International Law and Municipal Law are essentially one in as much as the former regulates the conduct of States, while the latter of individuals. According to this view law is essentially a command binding upon the subjects of the law independent of their will which is one case is the States and in the other individuals. According to it International Law and Municipal Law are two phases of one and the same thing. The

LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

former although directly addressed to the States as corporate bodies is as well applicable to individuals for States are only groups of individuals. Dualistic theory: Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law. According to the dualist view the systems of International Law and Municipal Law are separate and self contained to the extent to which rules of the one are not expressly or tacitly received into the other system. In the first place they differ as regards their sources. The sources of Municipal Law are customs grown up within the boundaries of the State concerned and statutes enacted therein while the sources of International Law are customs grown up within the Family of Nations and law making treaties concluded by its members. In the second place Municipal Laws regulates relations between the individuals under the sway of a State or between the individuals and the State while International Law regulates relations between the member States of the Family of Nations. Lastly there is a difference with regard to the substance of the law in as much as Municipal Law is a law of the sovereign over individuals while International Law is a law between sovereign State which is arrived at an agreement among them. The latter is therefore a weak law.

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LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

Besides the above two theories, Starke makes reference to two other theories namely, the Transformation Theory and Delegation Theory. Transformation Theory: According to this theory it is the transformation of the treaty into national legislation which alone validates the extension to individuals of the rules set out in international agreements. The transformation is not merely a formal but a substantial requirement. International Law according to this theory cannot find place in the national or Municipal Law unless the latter allows its machinery to be used for that purpose. This theory is fallacious in several respects. In the first place its premise that International Law and Municipal Law are two distinct systems is incorrect. In the second place the second premise that International Law binds States only whereas municipal law applies to individuals is also incorrect for International Law is the sum of the rules which have been accepted by civilized states as determining their conduct towards each other and towards each others subjects. In the third place the theory regards the transformation of treaties into national law for their enforcement. This is not true in all cases for the practice of transforming treaties into national legislation is not uniform in all the countries. And this is certainly not true in the case of law making treaties. Delegation Theory: According to this theory there is the delegation of a right to every State to decide for itself when the provisions of a treaty or convention are to come into effect and in what manner they are to be incorporated in the law of the land or municipal law. There is no need of transformation of a treaty into national law but the act is merely an extension of one

LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

single act. The delegation theory is incomplete for it does not satisfactorily meet the main argument of the transformation theory. It assumes the primacy of international legal order but fails to explain the relations existing between municipal and international laws. It is settled by the leading English and American decisions that International Law forms part of the municipal law of those countries. The United States has unambiguously applied the doctrine that International Law is part of the law of the land. All international conventions ratified by the USA and such customary International Law as has received the assent of the United States are binding upon American Courts even if they may be contrary to the statutory provisions. There is a presumption in cases of conflict that the United States Congress did not intend to overrule International Law. Position in India In India, SC has held in several cases such as Vishakha vs State of Rajasthan, Randhir vs Union of India, Unnikrishnan vs State of Karnataka, that domestic laws of India, including the constitution are not to be read as derogatory to International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any directly conflict the constitution will prevail.

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ls Internalional aw a True Law? DEFINITION Law is that element which binds the members of the

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LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

LaxmiNarasimhaa Krishnaa. A, 36, Puttanna Road, Basavanagudi, Bangalore-4 Ph: 98455 35438 E-mail: [email protected],

community together in the adherence to recognized

body of customary and treaty rules which are considered

values and standards. It is both permissive in allowing

legally binding by States in their intercourse with each

individuals to establish their own legal relations with

other.

rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulation

Public int...