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A comprehensive overview of international law, exploring its fundamental principles, sources, and the concept of state succession. It delves into the role of international treaties, customary law, and general principles in shaping international legal norms. The document also examines the concept of state succession, tracing its origins and analyzing its implications for the transfer of rights and obligations between states. It further discusses the vienna convention on succession of states and the optional doctrine of state succession.
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NEW LAW COLLEGE, AHMEDNAGAR PUBLIC INTERNATIONAL LAW
LL.M. Ph.D
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4 losing Nationality- Double Nationality-nationality of Married Women and Indian position
6 Module 1:
**1. Nature and development of International law
7 come to us through Europe. It is determined by the modern European system. It will, therefore, be proper to refer it as 'modern international law.' Definition
9 a political instrument whether a country is a socialist or capitalist, it will to a certain degree utilize international law in implementing its foreign policy"
4. Charles G. Fenwick .—In the words of Fenwick"International law may be defined in broad terms as the body of general principles and specific rules which are binding upon the members of the international community in their mutual relations". Appraisal. Fens definition is better than all the above-mentioned definitions because instead of the word states he uses the words members of the international community' which include states, international institutions, individuals and non-stateentities. He also uses the term 'general principles', His definition is very short but pregnant with meaning and takes into account the changes that have taken place after the Second World War. Indeed it is an appropriate and correct definition of international law.
10 character of international law and truly reflects the present position of international law. Basis of International Law After having arrived at the conclusion that International Law is Law in the true sense of the term, it is necessary to see as to what is the true basis of international law. There are two main theories in this connection. They are: (1) Theories as to Law of Nature and (2) Positivism. (1) Theories as to Law of Nature.— The jurists who adhere to this theory, are of the view that International Law is a part of the Law of Nature. In their view, States follow International Law, because it is a part of the Law of Nature. Explaining the view point of Natural Law Theorists, Starke has written : .............States submitted to International Law because their relations were regulated by higher law, the law of nature of which International Law was but a part" 67 I n order to understand this theory, it is necessary to understand the meaning of Law of Nature. In the beginning, Law of Nature was connectod with religion. It was regarded as the divine law. The jurists of 16th and 17th centuries secularised the concept of Law of Nature. Much of the credit for this goes to the eminent jurist, Grotius. He expounded the secularised concept of the Law of Nature. According to him, natural law was the dictate of right reason. His followers applied the law of nature as an ideal law which was founded on the nature of man as a reasonable being. International law was considered binding because it was in fact, natural law applied in special circumstances. Vattel, a famous jurist of 18th century also expressed the view that natural law was the basis of International Law. Pufendorf, Christian Thomasius, etc. are other prominent exponents of Law of nature. Criticism —The exponents of natural law are of the view that it is the basis of international law and has conferred binding force on international law. It may, however, benoted that each follower of the law of nature gives its different meaning.
12 The Italian jurist, Anzilotti, one of the chief exponents of the Positivist School deserves a special mention. According to him, the binding force of international .law is founded on a supreme principle or norm known, as pacta sunt servanda. In his view the basis of each rule of international law is pacta sunt servanda in some or the other way. The positivists admit that their view fails to explain the basis of customary international law. In their view, there is an implied consent in regard to customary rules of international law. Criticism.- The positivist theory is based mostly on the actual practices of States. But this view has been subjected to a lot of criticism. It can be criticised on the following Grounds : (1) The concept of the will of State presented by the positivists is purely metaphorical. (2) The view of the positivists that the whole of international law is based on the consent of the State is far from truth. As pointed out by an eminent author, 'custom i:; said to be evicencc of a general practice accepted by law'. It is not required that there should be any express recognition by States in order that this practice or international custom shall be binding upon them. The extreme positivist view which seeks to base all international law on th e 'consent of states' has tried to establish that the rules of international custom are based on "tacit agreements' between' states. But in reality it is not possible to" prove that these rules come into existence in such a way. This is shown by among other things, the fact that a new State entering the community of nations at once becomes bound by the international customary rules and it is never suggested that any of these rules would not be binding on it. It never happens that the State consent is sought or that it enters into any agreement on the matter with the already existing States. On the other hand, the new State is not bound by any international convention already in force unless it expressly adheres to it. International custom constitutes genre of States. From this it
13 follows that the dictum pacta sunt servanda cannot be the 'basic norm' of international law, it is itself a rule of international custom. (3) In practice, it is not always necessary to show that in regard to a particular rule of general international law, the State had given their consent. (4) There are some principles of international law which are applicable on States although States did not give their consent for them. The principle propounded under Article 2(6) provides that the organisation shall ensure that States which are not members of the U.N. act in accordance with the principles (contained in Article 2 of the Charter) so far as may be necessary, for the maintenance of international peace and security. (5) The norm 'pacta sunt servanda, "has been abandoned by most theorists, since it seems incompatible with the fact that not all obligations under international law arise from 'pacta ', however widely that term is construed, so it has been replaced by something less familiar ; the so-called rule that States shoula behave as they customarily have." (6) "Even apart from its lack of accord with reality the theory that international law rests on agreements is problematic in another respect. Declarations of will are, of course, in themselves pure facts which have legal effects only because some rule of law gives them such effects ." (7) According to the positivist view, treaties and customs are the only sources of international law. Grotius theory of law: Grotius made distinction between the Jus Gentiurn, the customary Lawof Nations (which he called Jus Voluntarium or Voluntary Law) and Jus naturrae or natural Law of Nations. He concentrated more on the natural Law and regarded voluntary law of less importance. The Grotians were somewhat between the Naturalists and the positivists. They maintained the distinction between natural and Voluntary Law of Nations but they considered positive or voluntary laws of equal importance to the natural laws. Thus, according to the Grotians, international law has originated not only from customs and treaties but also from natural law. This view, obviously, is not in conformity with thepositivist view. The positivist view that treaties and customs are
15 intemational law. (iv) Theory of consent fails to explain the case of recognition of new State. The granting of recognition is the act of other States and hence it would be wrong to say by getting recognition, the recognised State has given its consent in respect of international law. (v) According to Brierly the theory of consent cannot explain the true basis of International law even if we distort facts and try to fit them in the theory. Thus we see theory of consent cannot explain the true basis of international law and can be severely criticised. As pointed out earlier, States follow international law for the simple reason that they are States. As an ordinary person has to obey municipal law, evenagainst his will, similarly, States are bound to follow international law. To quote Sir CecilHurst again, "International law is, in fact, binding on States because they are States. Thus, "consent can never be the ultimate force of legal obligation". 92 However, as noted earlier 'common consent can be said to be the basis of international law as a legal system in the sense that we "see the basis of international law in the existence of an international community the common consent of whose members is that there shall be a body of rules of law—international law—to govern their conduct as members of that community."
3. Historical Development of International Law: Development of International Law by International Organizations A brief reference may also be made here to the development of international law by the organs of the international organisations. The organs of international organizations contribute to the clarification and development of international law. They help to create opinio juris but "state practice becomes evidence of law only when the vast majority of states believe themselves to be legally bound. These organs often invoke legal principle in order to reach normative decisions. As pointed out by Rosalyn Higgins. 'The collective processes in a United Nations organ help to focus attention upon the need for mutual observance of the rules. Indeed, in some cases reference to a widely accepted rule of law can serve a bridge between differing ideologies.
16 The constituent instruments of international organisations represent an advanced stage of the development of international law. They have "introduced a quasi-legislative element in the law making processes at the expense of contractual element, facilitating a quicker response to the problems of international social order What is true of the organs of the U.N. is also, even more, true of the organs of the specialized agencies of the U.N. For example, both the World Health Organisation (WHO)and the International Civil Aviation Organization (ICAO) carry out a wide range of activities which contribute to the development of International Law. This has become possible due to the provisions of the constitutions of these specialized agencies. Under Article 21 ofthe Constitution of WHO, each Member has undertaken the obligation to take action relative to the acceptance of the Conventions (adopted by a two-thirds votes of theHealth Assembly) or agreement within a period of 18 months after its adoption by the Health Assembly. In case a Member does not accept the convention or agreement within the said time, it is required to furnish the Director-General with a statement of the reasons for non-acceptance. Article 37 of the I.C.A.O. convention authorises the l.C.A.O. to adopt regulations 99 with a wide variety of technical matters essential to the safe and swift operation of international civil aviation. According to Article 90, an annex may be adopted by a two-thirds majority vote of the members of the Council. A regulation thus adopted comes into force three months after its submission to the member- States or within the time specified by the Council. unless the majority of contracting States register their disapproval with the Council." Under Article 38 of the I.C.A.O. convention, it a member finds it difficult or impracticable to comply with any of the international standards or procedures adopted by the Council, it is under the obligation to notify LC.A.O. immediately of the differences between its own practices and the practice established by the Annex. If the member concerned fails to notify or remains silent, it will amount to approval. Under the Constitution of the ILO, members have undertaken an obligation to submit conventions and recommendations adopted by the conference by a two-thirds majority for the consideration of the national authorities competent to give effect to their provisions. Once accepted, these conventions become binding upon members. The legislative procedure of the ILO, when introduced in 1919, was a radical innovation in following three respects :
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4. India’s contribution in development of international law: A brief reference may also be made here of India's position in regard to the rules and principles of international law. Like other new states, India has also sought to reject or modify some of the rules and principles of the traditional international law. India has neither accepted the whole nor has rejected the entire fabric of the traditional international law. "India, like many other new nations, has expressed dissatisfaction with some of the rules of international law as developed in the West. This, however, does not mean that India's challenge of some of the rules of international law is motivated by any desire to subvert the international legal order. Nor is India's opposition of the same kind as that of the Soviet Challenge." Further, 'In fact, India's argument would seem to indicate that it is far more influenced by the Western rather than Soviet concepts of international law. This should not be surprising. However, It must not be supposed that India would agree to all the rules and principles that are identified as international law in the West. Rather, it does not challenge the doctrine of international law in the same way as the Soviets challenge it." Since her emergence as new state after the attainment of independence, India Constitution of India and International Law: The ties of India’s Constitution with international law date back to the pre- independence days. India was the separate member of the League of Nations. It is also the founding-member of the United Nations. In this section, we will see the general scheme of the Constitution with reference to international law and further proceed to analyse other provisions and aspects. Article 51 is considered the concrete provision dealing with the relation of Indian Constitution and international law. But before we go into detailed analysis of it, we should look at the Preamble, Part III and Part IV of the Constitution. The Preamble enumerated certain basic values that India guarantees to its citizens and strives to achieve. These values are accepted as universal and basic by most nations throughout the world. The fundamental rights in Part III and the positive mandates
19 to the State in form of Directive Principles can be compared with the Universal Declaration of Human Rights and commonalities can be traced. Shri Subhash C Kashyap has prepared a detailed chart on the common principles in these two parts as well as certain other laws of India General Principles of International Law: India’s position and contribution on the general principles and major issues of contemporary international law such as recognition, self-determination, principles of non-use of force and non- intervention, state responsibility, prohibition of use of nuclear weapons, terrorism, legislative role of the UN Security Council, judicial review of the decisions of the UN organs, terrorism, legislative role of the UN Security Council, judicial review of the decisions of the UN organs, terrorism, jus cogens and erga omnes obligations, the jurisdiction of the International Criminal Court, emerging system of multilateral order and the United Nations and peaceful settlement of disputes, illustrates the importance and consistency of the role India has been playing in the pre-colonial era and in the post-independent phase in promoting rule of law in international relations. World Trade Organisation: With regards to the trade in services, it is clear that services are subject to a number of non-tariff barriers, which mostly remain invisible. This, most of the time, makes it difficult to quantify the exchange of concessions. There is a need to have total transparency, along with a legally binding international code on restrictive business practices. It is pertinent that developing countries should have a proper legislative framework on restrictive practices. India has already adopted the Competition Act, 2002 (partly in force), which, though not service specific legislation, will address the anti-competitive practices of the enterprises.
