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Notes onPUBLICINTERNATIONAL LAW INDEX Introduction & Definition .......................................................................... Sources of International Law .............................................................. Relationship between International Law & Municipal Law.........

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PUBLIC INTERNATIONAL LAW

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 INDEX 1. Introduction & Definition ……………………………………………………………….. 2. Sources of International Law …………………………………………………….. 3. Relationship between International Law & Municipal Law……………….. 4. Subjects of International Law ……………………………………………………… 5. States as Subjects …………………………………………………………………………… 6. State Recognition …………………………………………………………………………… 7. State Responsibility …………………………………………………………………………… 8. State Succession …………………………………………………………………………… 9. Intervention ……………………………………………………………………………………… 10. State Territory …………………………………………………………………………… 11. State Jurisdiction …………………………………………………………………………… 12. Law of Sea ……………………………………………………………………………………… 13. State & Individuals …………………………………………………………………………… 14. Extradition ………………………………………………………………………………………… 15. Asylum ……………………………………………………………………………………….. 16. Diplomatic Envoys ……………………………………………………………………………… 17. United Nations …………………………………………………………………………….. 18. General Assembly …………………………………………………………………………….. 19. Security Council ………………………………………………………………………..……. 20. Economic & Social Council …………………………………………………………………… 21. Trusteeship Council ………………………………………………………………………………… 22. Secretariat …………………………………………………………………………………………… 23. International Court of Justice …………………………………………………………… 24. International Labour Organization ………………………………………………… 25. World Trade Organization ……………………………………………………………………… 26. Treaty ………………………………………………………………………………………………………

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 INTRODUCTION& DEFINITION - The expression „international law‟ was coined for the first time by Bentham in 1780. - The term „international law‟ is synonymous with the term law of nations. - This is a body of rules and principles, which regulate the conduct and relations of members of International Community. Its aim is to: 1. Achieve international peace and security; and 2. To promote friendly relations among the member states DEFINITION Prof. L. Oppenheim: International Law is the name for the body of customary and treaty rules, which are considered legally binding by civilized states in their intercourse with each other. CRITICISM: 1. Not only states, but also public international organizations have rights and duties under international law. Such rights and duties are not covered under this definition. 1. Even individuals and private persons may have rights under international law. This is not a part of the above definition 2. Certain activities of multinational corporations are also regulated by this branch of law. But they are not covered in this definition. 3. As per definition international law is derived from customary rules and treaty/ conventional rules. But a number of rules are derived from „General Principles of Law recognized by civilized nation‟ 4. the term „body of rules‟ shows as static and unchanged. But law is dynamic &changes with the change of time and circumstances. REVISED DEFINITION: “International law is a body of rules, which are legally binding on states in their intercourse with each other. These rules are primarily those, which govern the relation of states, but states are not the only subjects of international law. International organizations and to some extend individuals also may be subjects of rights conferred and duties imposed by international law”. # WEST RAND CENTRAL GOLD MINING Co. Ltd. V. King (1905): In this case, the court observed, international law may be defined as “the form of rules accepted by civilized States as determining their conduct towards each other and towards each other‟s subject”. NATURE OF INTERNATIONAL LAW There are different views whether „International law‟ is a true law or not. One view is that international law is not a true law but is a code of conduct of moral force only. The other view is that it is a true law and is to be regarded as same way as other ordinary laws of states which are binding up on individuals. AUSTIN’S VIEW: Law is a command of sovereign followed by sanctions in case of violation. In his view, International Law cannot be called as true law because: 1. It is not a command of sovereign; it consists the opinion or sentiments among nations generally 2. There is no enforcement agency to enforce these laws CRITICISM: 1. He completely ignored customary or unwritten laws. 2. It is incorrect to say that laws are obeyed because of the fear of sanctions. It can be obeyed because of habit of mind and practices of communities. M.G. GOKUL

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OPPENHEIM’S VIEW: The essentials for a law are of 3 folds. They are: 1. There must be a community 2. There must be a body of rules for the human conduct within that community. 3. There must be a common consent of that community that these rules shall be enforced by external forces. With all these essential conditions are applicable in International Law, it is termed as law in true sense. CONCLUSION: On the basis of the above arguments it may be concluded that International Law is in fact law. International Law operates in a decentralized system. According to Strake, international law is a `weak law‟. International Law can be said to be `weak‟ only when it is compared with municipal law. Municipal law operates in a centralized system whereas International Law operates in a decentralized system. BASIS OF INTERNATIONAL LAW There are 3 theories which explains the basis of international law. They are: 1. Naturalist Theory 2. Positivists Theory 3. Grotians Theory The other theories derived from the above major theories are as below: 4. Theory of Fundamental Rights 5. Theory of Consent 6. Auto Limitation Theory 7. The Doctrine of Pacta Sunt Servanda Naturalist Theory: Lawsare derived from God, divine law. All laws, including international law are based on this natural law. Criticism: It does not consider the legislations and judicial precedents as source of law. Positivists Theory: Basis of international law is consent of states. Such consent can be given expressly or impliedly. Criticism: 1. States bound by some international laws even if they don‟t give their consent. 2. States in some cases are bound by International Law even against their will. Grotians Theory: According to the views taken by naturalists and positivists are extreme views. International law is based on law of nature as well as voluntary law. Theory of Fundamental Rights: Based on naturalistic viewpoint. Before the existence of States, man used to live in natural state and possessed some fundamental rights such as right of independence, equality etc. Like the same, States also possesses these types of fundamental rights, because so far there is no world authority over and above the States. Theory of Consent: States observe the rules of international law because they have given their consent for the same. Auto Limitation Theory: It is based on the presumption that State has a will. It says States can restrict its powers and thereby limit its will. The Doctrine of Pacta Sunt Servanda: According to this theory, the States to a treaty are bound to observe its terms in good faith. M.G. GOKUL

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FUNCTIONS OF INTERNATIONAL LAW In the international legal system, there are no sovereign political authority above the States. There is neither legal, political or judicial authority at international level. Hence performance of functions is largely depending on will of the State. 1. To maintain international peace and security 2. To develop friendly relations among nations 3. To settle international disputes peacefully 4. To achieve international co-operation in solving problems of economic, social, cultural and humanitarian character. 5. To refrain States from using force or threat against the territorial sovereignty and political independence of other states. 6. To provide people fundamental freedom and human rights. Is International law a mere positive morality? - A rule of morality applies to conscience and is, therefore, not binding. On the other hand, a rule of law is binding and can be enforced by an external power. - Most of the jurists agree that International Law has binding nature Is International Law the vanishing point of jurisprudence? According to Holland, International Law is the vanishing point of jurisprudence. In this view: - International Law is followed by courtesy and, therefore, it cannot be kept in the category of law. - There is no judge or arbitrator to decide international disputes. This statement cannot be accepted because the International Court of Justice is the judicial organ of the United Nations and its decisions are binding upon the parties to a dispute. Example: Gulf War (1991) against Iraq, Lockerbie Case against Libya. International Law is, in fact, law and it is wrong to say, that it is the vanishing point of jurisprudence. WEAKNESSES OF THE INTERNATIONAL LAW 1. It lacks effective authority to enforce its rules. 2. It lacks effective legislative machinery. 3. The International Court of Justice has no compulsory jurisdiction in the true sense. 4. The sanctions behind international law are very weak. 5. It cannot intervene in the matters which are within the domestic jurisdiction of States. 6. Many rules of international law are uncertain and vague. 7. International Law has failed to maintain order and peace in the world.

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 SOURCES OF INTERNATIONAL LAW - Sources means „the basis from which international law is evolved‟. 1. International Treaties / conventions 1. International customs 2. General Principles of Law recognised by the civilised nations 3. Decisions of judicial or arbitral tribunals 4. Writings of jurists 5. Decisions of organs of international institutions or conferences. 6. Equity INTERNATIONAL TREATIES / CONVENTIONS - As per Article 2 of Vienna Convention on the Law of Treaties in 1969, “a treaty is an arrangement whereby two or more states establish or seek to establish relationship between them governed by international law”. - According to Article 38 of Statute of International Court of justice, it is the first source of international law. International treaties may be of 2 types: 1. General Treaties / Law making treaties: These are those treaties which are entered in to by a large number of States. These are direct sources of international law. Ex: Hague Conventions of 1907, Geneva Protocol of 1925, Geneva Convention of 1949. 2. Particular Treaties / Treaty Contracts: These are those treaties which are entered in to by two or more states. The provisions of such treaties are binding only on the parties to the treaty. INTERNATIONAL CUSTOMS - Custom is a habit which has been repeated for long time. - Article 38of the State of International Court of Justice - Customary rules of international law have been developed as a result of: 1. Diplomatic relations between the states 2. Practice of international organs 3. State laws 4. Treaties between the States. - Customary rules can be of 2 types. They are as below: 1. General Customary Rule 2. Particular Customary Rule - General customary rules are those which are binding generally on all the States. - Particular customary rules or local customary rules are those where a practice has developed between the 2 States, and hence binding only on those States. It is also known as bilateral customs. # West Rand Central Gold Mining Co. Pvt Ltd V. R.:In this case, the court observed, International Law may be defined as “the form of rules accepted by civilized States as determining their conduct towards each other and towards each other’s subject”.

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Ingredients for a Valid Custom: 1. Duration 2. Moral and reasonable 3. Uniformity and consistency 4. Generality of practice 5. Opinio Juris Ncessitatis 1. Duration: Long duration is an essential element of a custom in municipal law. But this is not necessaryfor an international custom. In international law, customs have emerged in short duration as well. It is all depending on the circumstances and the nature of the rule evolved. # North Sea Continental Shelf Case:This concept of continental shelf was introduced in 1945. By 1958 it had become a customary rule in international law. 2. Moral and reasonable: A custom to be valid, it must be moral and reasonable. It must not contrary to justice, equity and good conscience and also to law of the land. It must not oppose to the public policy. 3. Uniformity and consistency: The custom should be uniform and consistent. Though complete uniformity is not necessary, there must be a substantial uniformity. # SS Lotus Case: The PCIJ observed that a practice must be constant and uniform to consider as a valid custom. # Norwegian Fisheries Case:The court refused to accept the existence of 10miles rule for bays as the practice was not substantially consistent. 4. Generality of practice:It is essential that a usage should be practiced by most of the states in order to transform in to a custom. Though universality of practice is not necessary, the practice should have been generally observed or repeated by numerous States. 5. Opinio Juris Ncessitatis:This means that the recognition of a certain practices as obligatory by the State. The State must recognise the custom as binding up on law. # North Sea Continental Shelf Cases: the ICJ pointed out that, a customary practice, even when it is general and consistent, is not a customary law unless the opinion juris ncessitatis is present. GENERAL PRINCIPLES OF LAW RECOGNISED BY THE CIVILIZEDNATIONS - Article 38of the statues of the International Court of Justice expressly recognizes General Principles of law recognized by civilized nations as a source of International Law. It means those principles which have been recognised by civilized nations of the world community in their domestic law. - General Principles of Law is a source which comes after treaties and customs. It means that the court is directed to apply general principles of law only when there is no treaty or customary law relevant to the dispute available.

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Ex: Res Judicata, Estoppal, Good Faith, Responsibility, party to dispute cannot be arbitrator etc. # United States V. Schooner: This case was related to the abolition of system of slavery. The court observed that international law must be based on general principles of law recognised by civilized States. # Case concerning the Temple of Preah Vihea,r 1962: in this case the International Court of Justice recognised and applied the principle of estoppel. DECISIONS OF JUDICIAL OR ARBITRAL TRIBUNALS - Judicial decisions are subsidiary means for the determination of rules of the law and therefore are subsidiary and indirect sources of international law as per Article 38 of the International Court of Justice. - Since the doctrine of precedent does not apply in the field of international law, judicial decisions are not generally binding. The arbitral decisions have less value because the arbitrators work more like a mediator that judges. # North Atlantic Fisheries Case 1910: Dispute between America and Britain over the validity of the treaty allowing some fisheries right to American citizens in North Atlantic Coast and other places. This dispute was referred to Permanent Court of Arbitration. # The Island of Palamas Case 1928: In this case there was a dispute between America and Netherlands over the Island of Palamas. America claimed to have acquired it under a treaty of 1898 with Spain. This Island was discovered by the Spaniards. On the other hand, Netherlands claimed to have occupied it since 1700. This case was decided by Permanent Court of Arbitration # Savarkar’s Case: Savarkar, an Indian and a British subject, was being transported to India for the purpose of his trial on a charge of high treason and abetment of murder. He escaped to the shore. He was, however, seized by a French policeman, who in mistaken of his duty, handed him over to the Britain without any extradition proceedings. France demanded that Great Britain should give him up and ask his extradition in a formal way in conformity with International Law. Great Britain did not comply with this demand. By consent the matter was referred to the Permanent Court of Arbitration at The Hague. The award while admitting that an irregularity had been committed by the handing over of Savarkar to the British Authorities, decided in favour of Great Britain. WRITINGS OF JURISTS - They are also subsidiary means for the determination of the rules of international law. - While deciding the case, if the court does not find any treaty or judicial decision or legislative act or any established custom, the court may take the help of opinion of jurists as subsidiary means for the determination of rules of international law. DECISIONS OF ORGANS OF INTERNATIONAL INSTITUTIONS OR CONFERENCES - The decisions of the international institutions are treated as source of International Law - The International Court of Justice has recognized it in a number of cases M.G. GOKUL

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# South West African Cases (1996) # Military and Para Military Activities in and against Nicaragua, (1986). EQUITY -

The term equity, as a source of international law, is used in sense of consideration of fairness, reasonableness for the sensible application of laws. Since this term is very wide, this is not listed as a source in Statute of international Court of Justice.

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 RELATIONSHIP BETWEEN MUNICIPAL LAW & INTERNATIONAL LAW International Law is applied in relations of States and to other subjects of International Law.  Internal law or state law which is known as Municipal law is applied within the State to the individuals.  -There are five theories regarding the relationship between International Law and State Law: 1. Monism; 2. Dualism; 3. Specific, Adoption Theory; 4. Transformation theory; and 5. Delegation Theory. The two main theories are Monism and Dualism and other theories have been derived from these two theories. 

MONISM - International law & State law are the two branches of unified knowledge of law. - Individual is at the root of all laws, all laws are made for individuals. - Theoretically and logically this appears to be the correct theory Criticism: This theory is not based on the actual practice of the State. DUALISM - International law and municipal law are two separate laws. -They are different because their subject and origin are different. - The primary subjects of municipal law are the individuals where in case of international law, they are states. Criticism: It is not correct to say International Law regulates the relations of States only. Certain individuals and corporates come under it. SPECIFIC ADOPTION THEORY - This theory is based on the theory of positivists. According to this theory, international law can be enforced in the field of State law only after it has been specifically adopted by State law. Criticism: There are several principles of international law which are applied in the field of municipal or the State law without specific adoption. Ex: 1. The Anti-Hijacking Act, 1982, 2. The Suppression of Unlawful Acts against the Safety of Civil Aviation Act, 1982 enacted by Indian Parliament TRANSFORMATION THEORY - The rules of international law to be applied in the field of municipal law must undergo transformation. Criticism: It is not necessary for all treaties to undergo change/transformation for their application in the field of Municipal law. Ex: Headquarters‟ Agreement between the United States of America and the United Nations Criticism: DELEGATION 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. M.G. GOKUL

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- The Constitution of each State contains provisions in this connection. Thus , no transformation takes place. Criticism: This theory is based on presumption and has been severely criticized. INDIAN PRACTICE - A. 51(c) of Indian Constitution provides that States shall endeavour to ensure the respect of international law and obligations arising out of international treaties. Examples: # Shri Krishna Sharma V. State of West Bengal, AIR 1954 Calcutta: The Calcutta High Court stated that the Indian Courts would a...