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IC  INTERNATIONAL LAW                                                 ...

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IC INTERNATIONAL LAW Guess Paper Unit - 1 Question:- i) Discuss the nature and basis of International Law which source has contributed to the development of International Law? OR ii) Whether the International Law is law in the proper sense of the term. Give reasons for your answer. OR iii) International Law is the vanishing point of jurisprudences. Explain. iv) Discuss the weaknesses of International Law. Or International Law is a weak Law. v) International Law and Municipal Laws are same or not. Explain. Unit-II Question :-2.(i) What do you understand by recognition of a state? What are the theories of recognition? What are the legal effects of recognition and consequences of non-recognition of a state? Discuss. (ii) What is the difference between de facto and de jure recognition. (iii) Discuss the conditional recognition. (iv) What is meant by Intervention? Under what circumstances intervention by one state in the affairs of another state considered justified? Unit-III Question:-3 (i) What are the categories of diplomatic agents ? What immunities do diplomat enjoy and how the immunities are lost? (ii) Define Treaty. What do you understand by ratification of a Treaty? Explain? (iii) Define Extradition? Explain the essential conditions for extradition? For which crime extradition cannot be claimed. Discussed (iv) Define Asylum, its essentials and types of asylum. What are the differences between extra territorial asylum and territorial asylum? Unit- IV Question :-4 (i) (v) Critically examine the various amicable and force-able means of settlement of International disputes between the states. (ii) Define war. What are the legal characteristics and effects of a War? (iii) Discuss the rights and duties of neutral state and belligerent states. (iv) Define Prize Court. (v) Distinguish between Neutrality and Neutralization. (vi) Discuss Blockade and right of Angry. Write short note on the followings:1. What do you mean by ex acquo ET bonod. 2. What is ‘double veto’. 3. Write about ‘jus cogens ‘. 4. Difference between Retorsion and Reprisal. 5. What do you mean by Blockade? 6. What is meant by contraband? 7. Explain the doctrine of Pacta sunt servanda. 8. What is drago Doctrine? 9. Explain Political crime in respect of extradition. 10. Discuss Monroe Doctrine. 11. Write a short note on Hijacking.

Discuss the sources of International Law Explain them. Introduction:-The term sources refer to methods or procedure by which international law is created. A distinction is made between the formal sources and material sources of law. The formal, legal and direct sources consist of the acts or thing which gives that the content its binding character as law. The material sources provide evidence of the existence. The sources of international law may be classified into five categories:- 1.International Conventions: - In the modern period international treaties are the most important source of international law. This is because the reason that states have found in this sources. Article 2 of the Vienna Convention on the law of treaties 1969, a treaty is agreements whereby two or more states establish or seek to establish relationship between them govern by international law. Prof. Schwarzenbergr, “Treaties are agreements between subjects of international law creating a binding obligation in international law.” International treaties may be of the two types : - a) Law making treaties:- these are the direct source of international law and the development of these treaties was changing of the circumstances. Law making treaties perform the same functions in the international field as legislation does in the state field. b) Treaty contracts:-As compared to law making treaties treaty contracts are entered into by two or more States. This may happen when a similar rule is incorporated in a number of treaty contracts. 2.International Customs:-International customs have been regarded as one of the prominent sources of international law for a long time. However even today it is regarded as one of the important sources of international law. Usage is an international habit which has yet not received the force of law. STRAKE Says, “Usage represents the twilight stage of custom, custom begins where usage ends. Usage is an international habit of action that has yet not received full legal attestation.” A custom in the intendment of law is such usage as that obtained the Force of law i.e.:- It is not necessary that the usage should always precede a custom. ii) In certain cases usage gives rise to international customary law. iii) When a usage is combined with a rule of customary law exists. iv) It is an important matter to see as to how international custom will be applied in international law. Refer a case of West Rand Central Gold Mining Compy.v/s R-1905, court held that for a valid international customs it is necessary that it should be roved by satisfactory evidence that the custom is of such nature which may receive general consent of the States and no civilized state shall oppose it. Porugal v/s India-1960, ICJ pointed out that when in regard to any matter or practice, two states follow it repeatedly for a long time, it becomes a binding customary rule. Still other resolutions amount to an interpretation of the rules and principles which he charter already contains and which are in binding upon States. 3. General Principles of Law recognised by civilized States: - Art.38 of ICJ provides that the Statute of International Court of Justice lists general principles of law recognised by civilised States as the third source of international law. In the modern period it has become an important source. This source helps international law o adapt itself in accordance with the changing time and circumstances. On the basis of this view the general principle of law recognised by civilized States have emerged as a result of transformation of broad universal principles of law applicable to all the mankind. Following are some important cases relating to the general principles of law recognised by civilized States:-1.R. v/s Keyn1876, that I. Law is based on justice, equality and conscience which have been accepted by practice of States. 2. U.S v/s Schooner-held that I. Law should be based on general principles. 4. Decisions of Judicial or Arbitral Tribunals and Juristic Works:- i) International judicial Decisions:-In the modern period international court of justice is the main international judicial tribunal. It was established as a successor of the permanent court of I. justice. Art.59 of the statute of ICJ makes it clear that the decisions of the court will have no binding force except between the parties and in respect of that particular case. While in principle it does not follow the doctrine of precedent. Thus judicial decisions unlike customs and treaties are not direct sources of law; they are subsidiary and indirect sources of international law. State judicial decisions:- These decisions may become rules of international law in the following two ways:-1. State judicial decisions are treated as weighty precedents. 2. Decisions of the state courts may become the customary rule of I. Law in the same way as customs are. Decisions of International Arbitral Tribunals:- Jurists have rightly too pointed out that in most of the arbitral cases arbitrators act like mediators and diplomats rather than as judges as in Kutch Award-1968. Juristic

Works. Juristic Works:- Art.38 of ICJ, the work of high qualified jurists are subsidiary means for the determination of the rules of I. Law. In Paquete Habana and Lola fishing vessels with Spanish flags on them in 1898 during war between America & Spain, held that they could not be seized or apprehended during the state of blockade. 5. Decisions or determinations of the organs of international institutions :-Art.38 of ICJ incorporated these sources and also introduced one new source namely general principles of law. In view of the strong reasons the decisions and determination of organs are now recognised as an important source of I. Law. The resolutions of the organs may be binding on the members in regard to the internal matters. Organs of international institution can decide the limits of their competence. 6. Some other sources of International Law:- Besides the above sources of I. Law, following are some of the other sources of international law: - 1. International Comity: mean mutual relations of nations. 2. State Paper:-In modern period diplomats send letters to each others for good relations are also the sources of I. Law. 3. State guidance for their officers: Numbers of matters are resolved on the advice of their legal advises. 4. Reasons: has a special position in all the ages.5. Equity & Justice: I t may play a dramatic role in supplementing the law or appear unobtrusively as a part of judicial reasoning. What do you mean by subjects of International Law? Can an Individual be a subject of International Law? If so in what circumstances. INTRODUCTION:-A subject of rules is a being upon which the rules confer rights, capacity and imposes duties and responsibility. Generally it is the State who enters into treaties with each other and is thus bound by its provisions. This does not however mean that other entities or individuals ar outside the scope of international law. International law applies upon individuals and certain non-state entities in addition to states. In the modern era the international law has expanded a lot. Now this law is applied besides States and individuals also. THEORIS REGARDING SUBJECTS OF INTERNATIONAL LAW:- Following are the three main theories prevalent in regard to the subjects of international law:-1. Only States are the subject-matters of I. Law:- Certain jurists have expressed the view that only International law regulates the behaviour of states hence states are its subject matters. Percy E.Corbett says, “The triumph of positivism in the late eighteenth century made the individual an object not a subject of international law. CRITCISM: - The jurists have bitterly criticised as this theory fails to explain the case of slaves and pirates. The pirates are regarded enemy of humanity and they can be punished by the State for piracy. In international arena by some ordinary treaties community of states have granted certain rights. But those jurists who say that states are the only subject-matter of international law but are object of it. To say that individuals are not the subject but object of the International law seems to be incorrect. Prof. Schwarzenberger, has aptly remarked that this view is controversial. He asserts that he individual who is the base of the society is only an object of the I. Law is not justified. 2. Only individual are the subjects of International law: - Just contrary to the above theory there are certain jurists who have expressed the view that in the ultimate analysis of international law it will be evident that only individuals are the subject of International Law. The main supporter of this theory is Professor Kelson. Before keelson this view was expressed by Westlae, who opined, the duties and rights of the States are only the duties and rights of men who compose them. Kelson has analysed the concept of State and according to him it is a legal concept which as a mixture of legal rules applicable to all the people living in certain area hence the obligations of a State in international law in the last resort are the duties of individuals of which state consists. In fact there is no difference between international law and state law. In his view both laws apply on the individuals and they are for the individuals. However he admits that the difference is only this that the state law applies on individuals intermediately whereas international law applies upon the individuals mediately. Criticism:-So far as logic is concerned the view of Kelson seems to be correct. An example is the Convention on the settlement of invest Disputes between States and Nationals of the other states, 1965. By this treaty provision is made to settle the disputes which arise by investment of capital by nationals of

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one state in other states. So it is clear that the view of Kelsen that international law is made applicable through the medium of a State seems justified. 3. States individuals and certain non-state Entities are Subjects: - This view seems to be justified as against the above views. In support of this, the following reasons may be advanced: - i) in modern times many treaties grants rights and duties to individuals. ii) In case Danzing Railway PCIJ-1928, in case the State Parties of a treaty intended to grant rights to individuals then International Law would recognise such rights and International Court will enforce them. iii). Geneva Convention of Prisoners of War-1949 has also accorded certain rights o prisoners of war. iv) According to Nuremberg Court since crimes against International Law are committed by individuals the provisions of International Law can be enforced. vi) Genocide convention- 1948:- In the convention also individuals have been assigned directly certain duties. By article 4 of this convention those individuals who commit international crime of genocide should be punished whether they are public servants or ordinary person. By the above description it is clear that only states are not subject matter of Internationals Law but in modern times individuals international Institutions, Non -state entities minorities are also the subjectmatter of International Law. PLACE OF INDIVIDUALS IN INTERNATIONAL LAW: - As pointed out earlier individuals are also treated to the subjects of international law although they enjoy lesser rights than states under international law. In the beginning they were accepted as subjects of international law as an exception of the general rule and number of jurists treated them as objects rather than the subject. In the recent times several treaties concluded wherein rights have been conferred and duties have been imposed upon the individuals. Some of the provisions are as under:Pirates: Under I. Law pirates are treated as enemies of mankind. Hence every state is entitled to punish them. Harmful acts of individuals : - For the amicable and cordial relation of the state it is necessary that the individuals should not be involved in such acts as may prove detrimental for the good relations among states. A leading case ex parte Petroff-1971, wherein two persons who were found guilty of throwing explosive substances on the Soviet Chancery were convicted. Foreigners: to some extent international law also regulates the conduct of the foreigners. According to international law it is the duty of each state to give to them that right which it confers upon its own citizens.4.War criminals: can be punished under international law. 5. Under some treaties individuals have been conferred upon some rights whereby they can claim compensation or damages. 3. Discuss the basis and nature of International Law. Or Whether the International Law is law in the proper sense of the term? Give reasons for your answer. INTRODUCTION: - Austin in his definition of law has given more importance to sanction and fear in compliance of law. In case of International law there is neither sanction nor fear for its compliance hence it is not law in proper sense of the term. But now the concept has changed and International Law is considered as law. There is no consideration of fear or sanction as essential part of law. If fear and sanction are considered necessary then there are sufficient provisions in UNO charter for compliance of the International Law as Law :According to Bentham’s classic definition international law is a collection of rules governing relations between states. Two of the most dynamic and vital elements of modern international law. In its broadest sense, International law provides normative guidelines as well as methods, mechanisms, and a common conceptual language to international actors i.e. primarily sovereign states but also increasingly international organizations and some individuals. Although international law is a legal order and not an ethical one it has been influenced significantly by ethical principles and concerns, particularly in the sphere of human rights. International is distinct from international comity, which comprises legally nonbinding practices adopted by states for reasons of courtesy. e.g. the saluting of the flags of foreign warships at sea.) INTERNATIONAL LAW AS REALLY LAW According to Oppenheim, International Law is law in proper sense because:-

In practice International Law is considered as law, therefore the states are bound to follow them not only from moral point of view but from legal point of view also.  When states violate international law then they do deny the existence of international law but they interpret them in such a way so that they can prove their conduct is as per international law.  Starke while accepting International Law as Law has said, “that in various communities law is in existence without any sanction and legal force or fear and such law has got the same acceptance as the law framed and enacted by state Legislative Assemblies.  With the result of international treaties and conventions International Law is in existence.  U.N.O. is based on the legality of International Law. According to Prof.Briely, “To deny the existence and legal character of International Law is not only inconvenient in practice but it is also against legal thoughts and principles.”  The states who are maintaining the international relations not only accept International Law as code of conduct but has also accepted its legal sanction and force. Prof. Hart, “There are many rules in practice which are honoured by states and they are also bund by them, now the State Government accept the existence of International Law.” According to Jus Cojens, “ International Law may now properly be regarded as a complete system.” It is pertinent to mention here that from the above noted contents it is clear that the following grounds are supportive for accepting the International Law as law: Now so many disputes are settled not on the basis of moral arguments but on the basis of International Treaties, precedents, opinions of specialists and conventions.  States do not deny the existence of International Law. On the contrary they interpret International Law so to justify their conduct.  In some states like USA and UK international Law is treated as part of their own law. A leading case on the point is the, Paqueta v/s Habanna-1900. Justice Gray observed that the international law is a part of our law and must be administered by courts of justice.”  As per statutes of the International Court of Justice, the international court of Justice has to decide disputes as are submitted to it in accordance with International Law.  International conventions and conferences also treat international Law as Law in its true sense.  The United Nations is based on the true legality of International Law.  That according to article 94 of UNO charter , the decisions of the International Court of Justice are binding on all Parties (States).  Customary rules of International Law are now being replaced by law making treaties and conventions. The bulk of International Law comprises of rules laid down by various law-making treaties such as, Geneva and Hague conventions. On the basis of above mentioned facts and arguments, the International Law is law in true sense of the term. United States and U.K., treat International Law as part of their law. In a case of West Rand Central Gold Mining Company Ltd., v/s Kind- 1905, the court held the International Law has considered it as a part of their law. From the above analysis it is revealed that the International Law is law. The International Law is law but the question arises as to what are the basis of International Law. There are two theories which support it as real law:1. Naturalist Theory:- The Jurists who adhere to this theory are of the view that International Law is a part of the Law of the Nature. Starke has written, “States submitted to International Law because their relations were regulated by higher law, the law of Nature of which International La...