Public International Law PDF

Preview

Summary

Public International LawLaw is a body of principles (legislature) recognized (courts) and applied (executive) by the state in the administration of justice.International law has not been defined comprehensively. Many of writers do not consider it as law. Greek scholar Aristotle says, ―Man is a socia...

Description

Public International Law Law is a body of principles (legislature) recognized (courts) and applied (executive) by the state in the administration of justice. International law has not been defined comprehensively. Many of writers do not consider it as law. Greek scholar Aristotle says, ―Man is a social animal‖. He said rightly because human being needs co-operation, which is most essential and imperative part of life. He needs assistance of others. Man cannot survive alone in society. In pre-historic era, people were living jointly. With the passage of time, society changed different shapes and developed different groups. They thought the importance of coordination. They adopted the principle of ―give & take‖. Survival (existence) became impossible without it. They thought the need of international relations. As the man cannot survive alone, state also cannot survive alone. Now, world has become global village. It became possible with the international relations. International Law or the law of nations is the system of law, which governs relations between states. At one time states were the only bodies which had rights and duties under International Law, but nowa-days international organizations, companies, and individuals also sometimes have rights and duties under International Law, however, it is still true to say that International Law is primarily concerned with sates. Importance: In the present developed era, its importance cannot be denied. International law plays an important role in social welfare of society. If the international law is not followed then jungle law will come into operation and life will become miserable (unhappy or uneasy). As municipal law plays an important role in the development of social wellbeing, however International Law plays an important role in the establishment of peace among states. Regardless the size of states, they are treated with the same and equal status. They have same importance as the big state may have. It is at the option of the states as to how they act upon. Basis of International Law: These are the principles upon which International Law relies:

1.

Doctrine of Fundamental Rights: Theory of Fundamental Rights is based upon the thoughts of pre-historic era. However state being a separate entity has some Fundamental Rights which include integrity, equality, liberty, respect, and mutual co-operation. Theory of Fundamental Rights has played an important role in the development of International Law. Relationship of states is based upon the alliance and mutual co-operation. If states do not observe the Fundamental Rights then peace of world cannot come into force.

2.

Consent theory: Oppenheim propounded (introduced, proposed, presented) this consent theory. According to him International Law is collection of rules which states feel to observe them and recognize them with mutual consent. If they do not agree upon certain law, then no law can be developed. It exists either in customary law or conventional law, in both cases it is consent. Customary laws are developed with mutual consents of states. They are bound to observe them in different ways and act upon. With the passage of time its roots got strengthen and applied on different states. It was recognized compulsorily. Now the consent of state became unimportant whether it will be applied on it. The customary rules of International Law have grown up by common consent of the states, i.e., the different states have acted in such a manner as to imply their implied consent to these rules. The intercourse of states with each other necessitated some rules of international conduct. Now states, which come into existence and are admitted into the Family of Nations through express or implied recognition thereby, consented to the body of rules for international conduct in force at the time of their admittance. It is therefore not necessary to prove for every single rule of International Law that every single member of the international community has consented on it. Some other sages favor the consent theory. Consents are either directly or indirectly. If any rule is recognized which has binding force or Page 1 of 34

show the consents of parties in treaties or in different matters, then it shall be regarded as consent. Customs and usages are treated artificial consent. Some writers have propounded theory against it that solely this theory does not contribute in International Law. It cannot be understood in circumstances that as to why the rule is followed. States do not respect law before its recognition. Also the principles which are set by the society are called law. International Law is a body of principles prevailing between states. States solely and collectively are subject of International Law. It deals states and its own. International Law may be defined 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 which includes also: a)

b)

rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with states and individuals; and 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.

Professor Charles Cheney Hyde defines International Law as that law concerned with the conduct of states and of international organizations, and with their relations inter se, as well as some of their relations with persons, whether natural or personal. It is also defined as law of Nations or International Law is the name for the body of customs and treaties, which are considered legally binding by States in their intercourse with each other. Such part of these rules as is binding upon all States without exception, as, for instance, the law connected with the right of legation and treaties, is called universal International Law, in contradistinction to particular International Law which is binding on two or a few States only. According to Brownlie there are two types of sources of law, i.e., formal sources and the material sources of law. Legal procedures and

methods for the creation of rules of general application, which are legally binding on the addressees, are the formal sources of law. Formal sources refer our mind toward state law making machinery such as parliament rules of which are binding to its people. Decisions of the International Courts, unanimous resolutions of General Assembly are lacking the quality to bind states generally in the same way that Acts of Parliament bind its people. The material sources provide evidence of the existence of rules which, when proved, have the statuses of legally binding rules of general application. Material sources of International Law: Following are the material sources 1.

Customs.

2.

Treaties.

3.

Decision of judicial or arbitrate tribunals,

4.

Juristic work.

5.

Decision or determinations of the organs of international institutions.

Material sources of International Law may be defined the actual materials from which an international lawyer determines the rule applicable to a given situation. Final question is that whether what is the order of sources of international law, which is recommended under Article 38, paragraph 1 of the statute of the International Court of Justice. It is as follows: 1.

International treaties and conventions.

2.

International customs as evidence of a general practice accepted as law.

3.

The general principles of law recognized by civilized nations.

4.

Judicial decisions, juristic opinion, and teachings of the most lushly qualified publicists of the various countries as subsidiary means for the determination of rules of law.

Following is the some detail of material sources of International Law:

Page 2 of 34

1.

Custom: Most part of International Law consists of customary rules. Article 38 refers to ―international custom, as evidence of general practice accepted as law‖ and briefly remarks that ―what is sought for is a general recognition among states of a certain practice as obligatory.‖ The international community evolves it after long historical process achieved recognition. A custom in the intendment of law is such a usage, as hath obtained the force of law. Customary rules are extracted from usages or practices which have evolved in three sets of circumstances:

(c)

2.

State laws, decisions of state courts, and state military or administrative practices: A British vessel Scotia was collided in mid-ocean with the American vessel Berkshire, which was not carrying the lights required by the new law. As a result, the Berkshire sank. It was questioned that whether the old law of Britain or new customary rules should decide this matter or International Law evolved through the wide spread adoption of the British regulations. It was held that new law would govern the dispute.

Treaties: This is another important source of International Law. Its importance is constantly increasing. There are two types‘ treaties: (a) „Law making‟ treaties, which lay down rules of universal or general application. These are also may be categorized in two types, i.e.

Enunciating rules of universal International Law, e.g., the United Nations Charter.

b)

Laying down general or fairly general rule.

(B) „treaty contracts‟ for example a treaty between two or few states dealing with special matter concerning with these states exclusively. Common examples of law making treaties include General Agreement of Trade & Tariff (GATT), un-ratified conventions states have subscribed, limited participation of restricted countries, regional or community rules, Final Acts, International Regulations etc.

(a) Diplomatic regulations between states: There are the acts or declarations by statesmen, opinions of legal advisors to state government, bilateral treaties, and now press releases or official statements by government spokesmen may all constitute evidence of usage followed by states. (b) Practice of international organs: Conduct or declaration of international organs such as ILO who has power to regulate internationally the conditions of labor of persons employed in an international disputes and UNO are the good example of practice of international organs.

a)

Treaty contracts are CETO, CENTO, WARSA PACT, SAARC etc. 3.

Decisions of Judicial or Arbitral Tribunals: Decisions of courts and tribunals are a subsidiary and indirect source of International Law. Article 38 of the Statute of International Court of Justice provides that, subject to certain limitations, the Court shall apply judicial decisions as a subsidiary means for the determination of rules of law. They are not strictly speaking a formal source, but in the some instances at least they are regarded as authoritative evidence of the state of the law and the practical significance of the label ―subsidiary means‖ in Article 38(1) (d) is not to be exaggerated (overstated or distorted). Under Article 59 of its Statute the courts decisions were to have ―no binding force except between the parties and in respect of that particular case.‖

4.

Juristic work: The Statute of the International Court of Justice includes among ―the teachings of the most highly qualified publicists of the various nations.‖ These opinions are used widely. It is indicative of the present potentialities of that particular source that the Court has so far found no occasion to rely on it. No doubt that juristic work played very important role in the development of International Law, but juristic works are not an Page 3 of 34

independent ―source‖ of law, although sometimes juristic opinion does lead to the formation of International Law. According to experts, juristic opinion is only important as a mean of throwing light on the rules of International Law and rendering their formation easier. 5.

Decisions or determinations of the organs of international institutions: Decisions and determinations of the organs of international institutions or international conferences, may lead to the formation of rules of International Law in a number of different way. They may represent intermediate or final steps in the evolution of customary rules. Declaration of Charter of General Assembly and Elimination of All Forms of Racial Discriminations are the examples of decisions of international organs. Resolution of the organs may formulate principles or regulations for the internal working of the institutions may have full legal effect and binding on members. Some organs are empowered to give general decisions or directives of quasi-legislative effect, binding on all whom they are addressed.

If the embassy is on fire, can a host State allow to her army to enter in an embassy? However half of the population may affect from the incidence, army cannot cross the doors of an embassy, without permission. International Law says let the population burns out but army is not allowed to enter in.

after some other states adopted these sorts of preventive measures. In 1871, a British vessel Scotia collided with an American vessel Berkshire. In result of collision, American vessel Berkshire sank. It was thought at that time that how this case to be decided. Whether old customary law of Britain would govern the decision made before 1863 or later law, which had been adopted by many nations, should be the yardstick. American Court held that in the scenario of widely adoption of the navigation rules about the carrying out of light, the legislation made after 1863 would decide the case rather than the customs relating before the 1863. Is International Law a true law: There is one theory that International Law does not qualify as true law but it is just a moral force? Austin‟s view: Austin and Thomas Hobbes insist that law is the command of a determinate superior and that constantly no law can exist where there is no supreme lawgiver and no coercive enforcement. If there is no sovereign authority then the rules could not be legal rules but rules of moral or ethical validity. Positive morality: Austin and his subscribers say that it is not true law but positive international morality or rules of conduct of moral force only, for there is not supreme lawgiver and no coercive enforcement in it. In that time Austin was rigid. International Law is not a true law but in this time International Law is part of our law, and must be administrated by the courts of justice of appropriate jurisdiction.

What are the materials sources of law which different writers‘ elaborated and International Court of Justice have described in its statutes? It is just difference of preferences; however they are more or less similar. Custom is very important source of law but it is less emphasized by International Court of Justice that‘s why emphasized shifted from custom to treaty.

Reply to Austin‟s view: The reply to Austin‘s view is as follows: 1.

Choice to a penal statute: As Hert points out that the Austin‘s theory of law approximates closer to a penal statute enacted by the legislature of a modern state than to any other variety of law.

In 1863, British Government had enacted a law regarding the navigation that every ship navigating in high seas would be duty bound to carry on lights while invisibility by such as fog, darkness, or other reasons. This domestic legislation was enacted for safety of navigation. Later on right after one year, in 1864, America adopted this legislation. And soon

2.

System of law, without a formal legislature: Modern historical jurisprudence has discounted the force of his general theory of law. It has been shown that in many communities, system of law as in force and being observed, without a formal legislative authority. Such law Page 4 of 34

did not differ in its binding force from the law of any state with a true legislative authority. 3.

Questions of International Law: Questions of International Law are always treated as legal questions by those who conduct international business and are regularly stated in legal terms and interpreted by legal methods.

Almost from the early stages of the development of the science of the Law of Nations the question whether International Law is law in true sense has been a subject of much speculation. Has it binding force opinion sharply been divided on this vexed (disturbed) question? A constantly evolving body of norms: International Law is a constantly evolving body of norms that are commonly observed by the members of international community in their relations with each other for providing an orderly management of international relations.

International Court of Justice is a forum where states bring their disputes for settlement but states are no more bound to accept them and may refuse. It all depends upon them. There is no forum for its explanation or interpretation. There is no concept of legislature in International Law for the enactment and enforcement. In the opinion of different writers International Law is not real law. According to Austin it has status of positive international morality. It is a collection of emotions of people and common opinions. Merits of International Law: Presently an International Law is very important for every state. In past there were some problems between states but at present it is very important and all states feel that it should remain there. 1.

Protection of states‟ interests: It is doubtless that International Law has protected the interests of the states. It helps those states, which have no such power to protect their interests. It also protects states from suffering of loss. It provides them rules and regulations for which states are bound to follow. It relates with the boundaries, society, morality, ethics, and religious matters. Kuwait was protected by International Law.

2.

Welfare of human being: In fact International Law plays an important role in the welfare of human being. Submission of these rules brings prosperity for humankind. It has different institution, which perform its functions.

3.

Equality: International Law gives importance to equality. It gives the same status of equality to small state as the big state. In international relations all are equal. One state has no superiority over other one. In international matters, every state plays its role.

4.

Individuality: International Law also gives individual importance to each state. All the other states also recognize it. International Law has covered almost all the world and formed a society and promoted brotherhood. Individuality has importance in it.

Whether International Law qualifies as law or not – choice of the definition of law: Whether or not one wishes to attribute a legal character to the norms of International Law depends largely upon the definition of law he chooses to accept. This question has been matter of discussion since long whether it is law? Some writers object the use of word ―law‖. They say that states are free from external pressure. If they consent to follow the principles of International Law, it does not mean they are debarred from their sovereign powers. It does not affect their sovereign powers. In the opinion of some writers law is the name of rule which every superior issues for inferior. This rule binds the people to prepare its structure. Its compliance would be compulsory and its violation will result in punishment. There is no such compulsion in International Law. In International Law there is not soverei...