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PUBLIC 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:-
- What do you mean by ex acquo ET bonod.
- What is ‘double veto’.
- Write about ‘jus cogens ‘.
- Difference between Retorsion and Reprisal.
- What do you mean by Blockade?
- What is meant by contraband?
- Explain the doctrine of Pacta sunt servanda.
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.
- 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 Keyn-1876, 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.
- 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.
- 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.
- 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.
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.
- 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.
Vattel Furfendorf, Christain, Thamasius, Vitona are the main supporters of this theory.It was viewed that natural law is uncertain and doubtful but it is accepted that Natural Law has greatly influenced the growth and has given the birth to International Law and its development. Most of its laws are framed from Natural Law.
- Positivist Theory:- This theory is based on Positivism i.e. law which is in the fact as contrasted with law which ought to be. The positivists base their views on the actual practice of the states. In their view customs and treaties are the main sources of International Law. According to German economist, Heagal, “International Law is the natural consent of states. Without the consent of states, no law can bind the states. This consent may be express or implied.” As pointed out by Starke, “ International Law can in logic be reduced to a system of rules depending for their validity only on the fact that state have consented to them.” As also pointed by Brierly, “The doctrine of positivism teaches that International Law is the sum of rules by which states have consented to be bound.” As said by Bynkeshock, “The basis of International Law is the natural consent of the states. Without the consent of states no law can bind the states.”
The critics of the above views say that consent is not always necessary for all laws. There are some laws which are binding on states irrespective of their consent e.g. Vienna Convention on the Law of Treaties. Article 36 of the Treaty says that the provisions of the Treaty may be binding on third parties even if they have not consented to it.
CONCLUSION: - Gossil Hurst says, “That International Law is in fact binding on states, because they are states.” This is very much correct because every state in the world wants peace, Law and order and that is possible only through existence of International Law. Therefore it is in natural interest of States to accept the existence of International Law.
- International Law is the vanishing point of Jurisprudence. Explain.
INTRODUCTION:- Holland has remarked that International Law is the vanishing point of jurisprudence in his view , rules of international law are followed by courtesy and hence they should not be kept in the category of law. The international Law is not enacted by a sovereign King. It has also no sanctions for its enforcement which is the essential element of municipal law. Holland further say that International Law ass the vanishing point of Jurisprudence because in his view there is no judge or arbiter to decide International disputes and that the rules of the I. Law are followed by States by courtesy.
Austin also subscribes to this view, Justice V.R.Krishna Iyer formally member of Indian Law Commission has also remarked, “It is a sad truism that international law is still the vanishing point of jurisprudence. This view is not correct. It is now generally agreed that Holland’s view that international law is the vanishing point of jurisprudence is not correct.
But now it is well settled that International Law is law. It is true that International Law is not enacted by sovereign and has no agency for its enforcement. But it is true that it is a weak law. A majority of International lawyers not subscribe to this view is based on the proposition that there are no sanctions behind international Law are much weaker than their counterparts in the municipal law, yet it cannot be successfully contended that there are no sanctions at all behind international law.
The jurists who do-not consider international law as the vanishing point of jurisprudence say that there is difference between state law and International Law. International Law cannot be enacted by the state but still there is agency for its enforcement. According to Dias, “International Law is obeyed and complied with by the states because it is in the interests of states themselves.”
For this object they give the following arguments:-
- The judgements of International court of Justice are binding on States.
- If any state does not honour the order/judgement of International court of justice, the Security Council may give its recommendation against that state for action.
- The judicial powers of International Court of justice (Voluntarily and compulsory) have been accepted by the States.
- The judgement of International court of Justice has been followed till date.
- The system of enforcement i.e. sanctions and fear, has been developed.
For example :- If there is a threat to international peace and security, under chapter VII of the U.N. Charter, the security council can take necessary action to maintain or restore international peace and security. Besides this the decisions of the International Court of Justice are final and binding upon the parties to a dispute.
The gulf war 1991 Iraq trespassed and acquired the whole territory of Quait in her possession by violation of International Law. The Security Council passed a resolution against Iraq and asked her to liberate Quait. But Iraq
- Lacks Of effective legislative machinery:- Since the International Laws are based on international treaties and conventions. Therefore these are interpreted by the states according to their self interest.
- The International court of Justice lacks compulsory jurisdiction in the true sense of the term :- The International court of Justice which is situated in Hague (Netherland) is not authorised to take cases of all states. The cases can be filed in this court with the mutual consent of concerned states.
- Due lack of effective sanctions, rules of International Law are frequently violated:- There is no sense or fear of sanction in the International Law with the results the laws are violated frequently by the States.
- Lack in right to intervene in Internal Affairs :- As per article 2(7) of UNO Charter, UNO is not competent to interfere in the domestic matters of states. International law cannot interfere in the domestic matters. Keeping in view these facts in several cases International Law proves to be ineffective and weak.
- UNCERTAINTY:- There is one more reason behind the weakness of International Law is its uncertainty. It is not certain as the laws of states as well as Municipal law. In addition to this it has not been able to maintain international peace and order.
It is now very much clear from the above facts that International Law is weak. Paton says that , “ from institutional point of view International Law is a weak. It has no legislative support though there is international court of justice but that functions or takes case on the basis of mutual consent of states. It has no power to get the decisions implemented.”
According to Karbet, “The main course of weakness of International Law is the lack of social solidarity among highly civilised states.
A case of Queen v/s Ken – 1876 :- There is no such institution or body which can enact laws for sovereign states and there is no court also which can enforce its decision and to bind the states.”
SUGGESTIONS FOR IMPROVING INTERNATIONAL LAW
Despite the above mentioned weaknesses, it has to be noted that International Law is constantly developing and its scope is expanding. It is a dynamic concept for it always endeavours to adopt itself to the needs of the day. As compared to Municipal Law the International Law is works in a decentralised system. This is because of the facts that the International policies, Inter-dependence of states and the continuous growth of the concept of
International or world community. However the weaknesses of the International Law may be improved in following ways:-
l. The International Court of Justice should be given compulsory jurisdiction, in the true sense of term overall international disputes.
2.An International Criminal Court should be established to adjudicate cases relating to international crimes.
- International Laws should be properly codified.
- The machinery to enforce the decisions of the International Court of Justice should be strengthened.
- An International Police system should be established to check international crimes and to enforce the rules & principles of International Law.
- An international Bureau of Investigation and prosecution should be established for investigation of matters relating to International crimes and the prosecution of International criminals.
- The U.N.O. should be authorised to intervene in the internal matters of states.
- For settlement of international disputes the use of judicial precedents must be encouraged.
- There must be constant review of International Law.
- Last but not the least there must be basic recognition of the interest which the whole international society has in the observance of its laws.
CONCLUSION: - It is pertinent to mentioned here that the General Assembly of UNO should made fruitful efforts in this direction. The above suggestions will make International Law equivalent to a Municipal Law to some extent. With the growth of Internationalism and the feeling of universal brotherhood international aw will also become effective and powerful.
According to Strake, “The main foundation of the proponents of dualistic theory is that state Municipal Law and International Law are two different legal systems because the nature of International law is fundamentally different from State Municipal Law.”
Angilotti has also recognised both the systems as two different legal systems. According to him the fundamental principle of State Municipal Law in compliance of law enacted by state legislature while principle of International Law is Pacta Sunt Servanda i.e. to honour the agreements executed between the states.”
The main basis of separation of these two systems is as follows:-
· The main source of International Law is customs and treaties while in case of Municipal Law are an enactment by sovereign power.
· International Law controls the relations between state while state law controls the relations between state and individuals.
· The main cause of compliance of state law is fear of sanction while the basis of compliance of International Law is the moral liability and vested interests of states.
- THEORY OF SPECIFIC ADOPTION: - International Law cannot be directly enforced in the field of State Law. In order to enforce it in the field of Municipal Law it is necessary to make its specific adoption. The theory of adoption is based on Hague convention-1970, Vienna Convention-1972 and Tokyo Convention-1975. In case of Jolly George v/s Bank of Cochin-1980: The court held that any agreement does not become part of Indian constitution automatically, but the positive commitment of state parties inspires their legislative action.”
The use of International Law in different countries like India, Britain, America and Russia. The rules of International Law and treads have been based in a different ways e.g.
· INDIAN ADOPTION :- The International Law has been given important place and mention the customary rules of International Law in Article 51(6) of the Indian constitution with the following strive :
i) To increase international peace and security.
ii) To maintain just and good relations among states.
iii) To increase faith and honour for use of International Law treaty, obligations in natural relations and conduct of organised people.
iv) To act as mediator to encourage for settlement of international dispute.
Some of the cases in this regard are : i) Shri Krishna Sharma v/s State of west Bengal-1964 : It was decided that whenever the court interprets the domestic Municipal Law, it should be taken into consideration that it does not go against International Law.
ii) Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court accepted the implementation of Kutch Agreement between India and Pakistan on the basis of correspondence between them. Similarly there are two other case viz: Vishakha v/s State of Rajasthan-1997. And Apparel Export Promotion Council v/s A.K.Chopra-1999: In both of the cases the court held that the right of sex equality of women has assumed the important rule of International Law and its convention, court said that in cases of violation of human right the court should always consider international documents and conventions and should make them binding.
British Adoption: In Britain International customs are treated as part of domestic law. British courts apply international customs subject to the conditions (i) International customary rules are not inconsistent with British Laws (ii) they are accepted by lower courts when the limit of these customary rules are fixed by High Court. For use of treaties, the case of International Tin Council v/s Dep’t., of Trade and Industry-1900: the Lord Council decided that in England treaties are not binding automatically. It is binding only when the Parliament makes it a part of English Law and incorporates in Law by enactment of law in this regard.
Adoption in America: In America the courts interpret the state law in such a way that it does not go against International Law. The rules of customary International Law are treated as part of State Law. It has been done in the case of Paqueta Habana Case- 1900: It was held that International Law is part of our state Law and when any question or case relating International Law is filed before courts of proper powers then the rights based on these questions should be determined and enforced.
- THEORY OF TRANSFORMATION:- The exponents of this theory contented that for the application of International Law in the field of Municipal Law, the rules of international law have to undergo transformation. Without transformation they cannot be applied in the field of Municipal Law.
According to Strake:- “That the rules of International Law can be applied when they are transformed in to domestic law, is not necessary in every case.”
- What do you understand by recognition? What are the various kinds of it? Also differentiate between de facto and de jure recognition. Explain those situations when de facto become de jure recognition. What are the disabilities of an unrecognised state?
INTRODUCTION: - It can be said that through recognition, the recognising state acknowledges that the recognised state possesses the essential conditions of Statehood, a Government and Sovereignty, a definite territory and has a complete control over his territory. The community is independent. So recognition has an important place in International Law. By recognition only the state is accepted as a member of International community.
DEFINITION:- Many of the Jurists has define ‘Recognition’ in different ways. Some of them have opined as under:
Prof.L.Oppenheim :- “In recognising a State as member of International community, the existing states declare that in their opinion the new state fulfils the conditions of statehood as required by International Law.”
Fenwick: - “That through recognition the members of the International community formally acknowledge that the new state has acquired international personality.”
In the words of Phillip C Jessup: - By recognition is such a function of a state by which she accepts that any political unit contains the essential elements of nationality.”
According to Prof. Schwarzenberger:- “ Recognition can be absorbed easily by a procedure developing International aw by which the state have accepted the negative sovereignty of each other and willing to develop their legal relations on the basis of their natural relations.”
According to Kelson: “A community to be recognised as an International person must fulfil the following conditions:-
i) The community must be politically organised.
ii) It should have control over a definite territory.
iii) This definite control should tend towards performance.
iv) The community thus constituted must be independent.
Thus the conditions of statehood are, People, a territory, a government and sovereignty.”
TYPES OF RECOGNITION
Recognition is of two types, De facto and de jure recognition. The practice of States shows that in first stage the State generally give de facto recognition. Later on when they are satisfied that the recognised state is capable of fulfilling International obligations, they confer de jure recognition on it, that is why sometimes it is said that de facto recognition of state is a step towards de jure recognition. The detail of de facto and de jure recognition is as under:-
DE FACTO RECOGNITION: - According to Prof.G.Schwarzenberger:- “When a state wants to delay the de jure recognition of any state, it may, in first stage grant de facto recognition.”
The reason for granting de facto recognition is that it is doubted that the state recognized may be stable or it may be able and willing to fulfil its obligations under International Law. Besides this it is also possible that the State recognised may refuse to solve its main problems.
De facto recognition means that the state recognized possesses the essentials elements of statehood and is fit to be a subject of International Law.
According to Prof.L.Oppenheim :- “The de facto recognition of a State or government takes place when the said State is free state and enjoys control over a certain fixed land but she is not enjoying the stability at a deserved level and lacking the competence to bear the responsibility of International Law.”
For example :- De jure recognition had not been given to Russia by America and other countries for a long time because Russia was not having competence and willingness to bear responsibility of International Law. The same position was with China.
In view of the Judge Phillips C Jessup, “De facto recognition is a term which has been used without precision when properly used to mean the recognition of the de facto character of a government; it is objectionable and indeed could be identical with the practice suggested of extended recognition without resuming diplomatic relations.”
The de facto recognition is conditional and provisional. If the state to which De Facto recognition is being given is not able to fulfil all conditions of recognition then that recognition is withdrawn.
DE JURE RECOGNITION
