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PUBLIC INTERNATIONAL LAW &HUMAN RIGHTS[LAW OF PEACE][LEADING CASES, MATERIALS & Q.]Dr. ASHOK K. JAINLL; Ph (Delhi)ASCENT PUBLICATIONS21/29, Shakti Nagar, Delhi - 110 007First Edition 1998 Reprint 2000/2002/2004/2006/ Second Edition 2008 (Enlarged) Third Edition 2010 Reprint 2 0 1 1 / 2 0 1 2...

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PUBLIC INTERNATIONAL LAW & HUMAN RIGHTS [LAW OF PEACE] [LEADING CASES, MATERIALS & Q.A.]

Dr. ASHOK K. JAIN LL.M; Ph.D (Delhi)

ASCENT PUBLICATIONS 21/29, Shakti Nagar, Delhi - 110 007

First Edition 1998 Reprint 2000/2002/2004/2006/2007 Second Edition 2008 (Enlarged) Third Edition 2010 Reprint 20 11 /2 01 2

© ALL RIGHTS RESERVED. No part of this book may be reproduced in any form including translation by any means without prior permission of the author.

Published By : ASCENT P UBLICATIONS 21/29, Shakti Nagar, Delhi - 110 007

Printed at: G.S. Offset, Delhi.

CONTENTS 1. NATURE, DEFINITION AND SCOPE OF INTERNATIONAL LAW

1

2. SUBJECTS OF INTERNATIONAL LAW

20

3. SOURCES OF INTERNATIONAL LAW 4. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND

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MUNICIPAL LAW

74

5. RECOGNITION

88

6. LAW OF THE SEA 7. STATE RESPONSIBILITY 8.

PUBLIC INTERNATIONAL LAW-ADGENDA

1 140 (i-xxxi 141

9. HUMAN RIGHTS

159

10. INTERNATIONAL ORGANIZATIONS (UNO/ICJ/ICC)

186

TABLE OF CASES Adams v Adams ................................................ 94

Libyan-Malta Continental Shelf case .................................................... 125, 138

Anglo-French Continental Shelf

Luther v Sagor....................................... 100, 106

Arbitration ..................................... ............... 124

Macleod v United States .....................................80

Anglo-Iranian Oil Co. Case .................. ........... 52

Maganbhai v UOI...............................................83

Anglo-Norwegian Fisheries Case..................... 116 Egypt & Ligouri .............................................. 101

Mavrommatis Palestine Concession case ......................................... .............. 48, 66 Military and Paramilitary Activities in and against Nicaragua ....................... 34, 36, 62

Barcelona Traction case .............................. 56, 70

Namibia case ......................................................53

Berubari Union cases ........................................ 84

Nanka v Govt, of Rajasthan. ...............................84

Birma v State .................................................... 84

Nationality Decrees case .....................................58

Black Bum v Attorney General.......................... 79

Nicaragua case ...................................................37

A.D.M. Jabalpur v Shukla .................................82

Bank of Ethiopia v National Bank of

Blom v Sweden ................................................. 27 Chank Fishery cases (Annakumaru Pillai v Muthupayal; A.M.S.S.V.M. & Co. v State of Madras) ....................................... 82 Civil Air Transport Inc. v Central Air Transport Corpn .............................................. 106 Civil Rights Vigilance Committee, Bangalore v UOI ............................................... 84 Condition of Admission of a State to the United Nations.................................. 67, 96 Corfu Channel case .................................67, 119 Danzing Railways Official case ......................... 25 De Becker .........................................................25 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v USA) ............................................................ 124 Diversion of Water from the Meuse case ............................................................ ..... 67 Eastern Greenland case......................................65 Ex parte Quirin..................................................26 Fisheries Jurisdiction cases .......................... 58, 60 Free Zones case ................................................. 53 German Interests in Polish Upper Silesia (Chorzow Factory case) ............... .. ....... 48, 65 Gramophone Co. of India Ltd. v B.B. Pandey .............................................................. 83 Great Britain -Costa Rica Arbitration (Tinoco Concessions case) .............................. 110

North Atlantic Fisheries case ..............................42 North Sea Continental Shelf Cases......................... ............................... 32, 48, 56, 86, 122, 124 Os time v Australian Mutual Provident Society ...............................................................80 Pacquete Habana ease ................................ 35, 71 Queen v Keyn ......................................................4 Reservation to the Genocide Convention case ................... ...................... 42, 49, 56, 73 S.S. Lotus Case .............................................. .. 38 S. S. Wimbledon case .........................................63 Serbian and Brazilian Loan case .........................66 Shiv Kumar Sharma v UOI.................................83 South West Africa case ................................. 68, 73 Tag v Rogers ......................................................80 Temple of Preah Vihear......................................66 The Arantzanu Mendi....................................... 101 The Asylum Case ...............................................35 The Lawless Case ...............................................24 The Right of Passage Case ..................................39 Trendtex Trading Corpn. v Central Bank of Nigeria ..................................................79 U.N. Administrative Tribunal Case .....................64 United States v P.L.0 ..........................................80

Gulf of Maine Boundary case ............................ 67

United States v Pink ...........................................80

Island of Palmas case .................................. 53, 66

UOI v Sukumar Sen Gupta ....... ........................84

Jolly Verghese v Bank of Cochin.......................83 Libya - Tunisia Continental Shelf case............. 124

Upper Silesian Mixed Tribunal case ...................27 West Rand Central Gold Mining Co. Ltd. v R ..............................................................37

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NATURE, DEFINITION AND SCOPE OF INTERNATIONAL LAW The term ‘International Law’ or ‘Law of Nations’ has been used in contradistinction to the ‘National Law’ or ‘Municipal Law’ which means the law of country. International Law is, generally, above and outside, the national laws of the various States and to some extent operates on the territories of all the States. The question whether it can be called a superior law remains in doubt in spite of the growing acceptance and respect for international law among the member-States. International Law deals with States as legal and political entities and it applies to all the States equally without any regard to their size and power. However, the powerful States have a peculiar tendency to interpret the principles of international law in such a manner as to suit their interest and convenience. Recent geometrical advances in science, technology and industry have brought to the fore one stark fact - that no nation, howsoever, big or small, can afford to lead an isolated life. There is more and more collaboration between the nationals of one country with the nationals of other countries. Multi-national companies have sprung up which have their offices in many countries. Today the scope of international law has extended from the preservation of peace to regulate the various activities of international life, like space expeditions, ocean floor explorations, protection of human rights and global environment, management of international financial system, etc. All these factors and developments emphasise the need for an international law in the modem scenario. A law, howsoever important and crucial, is not of much use if it is not properly defined and codified. There is no single universally accepted definition of international law, though some good attempts have been made in that direction. Definition of International Law The words ‘international law’ were used for the first time by eminent British jurist, Jermy Bentham in 1780. Since then, these words have been used to denote the body of rules which regulate the relations among States.

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PUBLIC INTERNATION LAW

Though international law can be traced to ancient Greece, Rome and India, i cannot be denied that the public international law which we know today, has come to us through Europe. It is determined by the modern European system. Oppenheim’s definition1 Professor Oppenheim has defined international law in the following words “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 the intercourse with each other”. The above definition given by Oppenheim in 1905 has become obsolete and inadequate. The definition has been subject to the following criticism : (i) The definition takes into account of the relations of ‘States’ only. But, presently, international organisations and institutions are also regarded a subjects of international law. They have been given rights and duties unde international law, even though they may not have all the rights and dutie that States have. Certain activities of multinational corporations are also regulated by this branch of law. (ii) International Law also provides certain rights and duties to individuals. It has been so, particularly, after the establishment of the United Nations Organisation. Universal Declaration of Human Rights and Internationa Covenants of Human Rights further confirm that the individuals have become not only the subjects of international law but can also directly claim rights and remedies provided under international law. Above all, the Charter of the U.N. begins with the words “we the people of the United Nations”. Thus, the present international law cannot be regarded as the law governing the relations between States.

1. “Law of nations or international law is the name for the body of customary or treaty rules which are considered legally binding by civilized States in their intercourse with each other”. Critically analyse this definition in the light of developments after second world war. How does the modern definition differ from this definition ? I.A.S.—95] Define International Law.

[C.L.C.-96\ [L.C.II-93/94/95]

Oppenheim and others have defined International Law as rules and principles of inter -State relations, which are considered as binding on States. State your views on the true nature of international law keeping in view the above definition. [L.C.II-96]

NATURE, DEFINITION & SCOPE OF INTERNATIONAL LAW

3

but must be regarded “as the common law of mankind in an early stage of its development” (Jenks). At present, it also governs relations between States and international organisations, between States and private persons and between international organisations and private persons (Judge Jessup has therefore suggested an alternative name “Trans-national law” to include all law which regulates actions or events that transcend nationa frontiers). (iii) The use of the term ‘civilized States’ by Oppenheim is also severely criticised. In not too distant past, the Western States regarded only the ‘Christian States’ as ‘civilized States’. At present there are as many as 185 members of the U.N. which include Christian as well as nonChristian States. The term ‘civilized States’ was thus deleted in the later editions of Oppenheim’s book. (iv) The words ‘legally binding’ (in the Oppenheim’s definition) connote positive character which is diffused and diluted by the subsequent words ‘by civilized States’. Oppenheim does not say that these rules are ‘legally binding’, but that they ‘are considered’ so. His definition, though broad, is a qualified one. (v) The definition lays down that the rules of international law derive only from customs and treaties, but it is not correct. Article 38 of the Statute of International Court of Justice mentions ‘General Principles of Law recognised by the civilized nations’ as third source of international law to be used while deciding an international dispute. (vi) The expression ‘body of rules’ denotes that international law is static or fixed. Its rules cannot be changed. However, international law is a dynamic and living law. Its rules have been changing with the passage of time out of experiences and necessities of situations (It may be noted that it has become customary to define law as ‘body of rules’, therefore, it is not proper to criticise Oppenheim on this account). In the ninth edition of Oppenheim’s book (1992) the term ‘international law’ has been defined differently after taking into account of the new developments “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 th relations 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”. )

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PUBLIC INTERNATION LAW

This new definition of international law is nearly similar to that given by Stark and Fenwick (see below). However, it is still deficient in one respect viz. its silenc regarding 'general principles of law’ recognized by civilized nations. Other Classic definitions Brierly : “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 relations wit one another”. Torsten Gihi : “The term ‘international law’ means the body of rules of law which apply within the international community or society of States”. Hackworth similarly defines : International Law consists of a body of rules governing the relations between States”. Queen v Keyn : In this case [2 Ex. D. 63 (1876)], Lord Coleridge, C.J. defined international law as : “The law of nations is the collection of usages which civilized States have agreed to observe in their dealings with one another”. Gray : “International Law or the law of nations is the name of a body of rules which according to the usual definitions regulate the conduct of States in their intercours with each other”. Kelsen has also given a similar definition. Cobbett : “International Law may be described as the sum of the rules accepted by civilized States as determining their conduct towards each other, and towards each other’s subjects”. The above definitions can also be criticised in the same way as Oppenheim’s definition has been criticised. The definitions are inadequate to represent modem international law. Modern definitions Fenwick : “International law may be defined in broad terms as the body of general principles and specific rules which are binding u pon th e members of the internationa community in their mutual relations”. The definition takes into account the changes that have taken place after th Second World War. The words ‘members of the international community’ include States, international institutions, individuals and non- State entities. The term ‘genera principles is also incorporated in the definition. Whiteman : “International law is the standard of conduct, at a given time, ""for States and other entities subject thereto”.

NATURE, DEFINITION & SCOPE OF INTERNATIONAL LAW

5

A brief but adequate definition; the words ‘other entities subject thereto’ may include international organisations, individuals and non-State entities. Whiteman ha also emphasised dynamic aspect of international law : “International Law is, more or less, in a continual state of change and development”. Starke : “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 themselve bound to observe, and, therefore, do commonly observe in their relations with eac other, and which includes also : (a) the rules of law relating to the functioning of internationa institutions/organisations, their relations with each other, and thei relations with State and individuals; and (b) certain rules of law relating to individuals and non-State entities so far as the rights and duties of such individuals and non-State entities are th concern of the international community”. The definition of Starke takes into account the changing character o international law and truly reflects the present position of international law However, if an entity not enumerated by Starke ever comes within the scope o international law with the passage of time, the definition would again be subjected t criticism. Thus, the definition does not stand correct for all times to come. Schwarzenberger : “International law is the body of legal rules which apply between sovereign States and such other entities as have been granted internationa personality”. Thus, unlike Starke, Schwarzenberger very rightly preferred not to name th entities whose rights and duties are regulated by international law. According t him, international law. if and when grants international personality to any entity, o when international law would be capable of regulating rights and duties of any entity, its rules shall apply to them. It is immaterial if only certain rules regulatin the rights and duties are framed for them. Conclusion On the basis of the above definitions one may conclude that “International law is constantly evolving body of norms that are commonly observed by the members of international community in their relation with one another. These norms confe rights and impose obligations upon States and, to a lesser extent, upon internationa organizations and individuals”. The above view takes into account both the new and classic definitions o international law. The classic view is supported by the fact that international law i primarily a system regulating the rights and

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PUBLIC INTERNATION LAW

duties of States and that is why it is also termed as the ‘law of nations’. The modern view is supported by the fact that international law is a living and expanding code. DEVELOPMENT OF INTERNATIONAL LAW (Scope of International Law)2 International law is a dynamic law. It has been changing since its inception. I is constantly developing, sometimes it does not keep up with developments, othe times it anticipates them and gives an early warning of tendencies in th development of international relations. It is a developing philosophy of values. Fo example, in June 1989, the United Nations Environment Programme (UNEP) with view to warn the people of the increase in earth’s temperature due to “green-house effect”, gave the slogan of ‘Global warming : Global warning’. Similarly, the Rio Conference in 1992 highlighted the need to protect and preserve earth fro environmental pollution. At crucial or important turns of history, there ar qualitative changes in international law. The recent breaking of the Soviet Union is glaring example of this. New International Law The term ‘new international law’ indicates the norms and values that have been evolved since the second world war. The traditional, juridical and individualisti character of international law (i.e. law governing the relations of sovereign State with each other) is being replaced by the law of social interdependence (i.e interdependence of the nations or international community). At the present tim there is hardly a State which in the interests of the international community has n accepted restrictions on its liberty of action. The shift has been “from the more or less formal regulation of diplomatic relations between States to an international law of welfare” (Friedmann)2a Interdependence among...