Customary International, Municipal, International Law & Dispute Resolution Chapter Notes | Legal Studies for Class 12 - Humanities/Arts PDF Download

Customary International Law

• International customary law is a source of public international law and is described in Article 38 of the International Court of Justice's Statute as "evidence of a general practice accepted as law." 
• It refers to State practices that are accepted by the States themselves as legally required. 
• However, the exact formulation of international custom is disputed and unclear, such as when a State practice becomes legally binding, and how to identify or prove its existence.

International Law & Municipal Law  

• The relationship between international law and domestic (municipal) law is complex and can vary between countries. 
• Generally, international law prevails over domestic law and cannot be used as a defense for violating it. 
• Some countries require domestic legislation to align with international obligations. 
• In the UK, treaties must be transformed into municipal law and in the US, customary international law is considered federal law. 
• The approach to the application of international law depends on the forum, with international forums giving preference to international sources and domestic forums giving preference to domestic statutes.

International Law & India 

• In India, the constitution gives the Union of India and the Parliament the power to implement international treaties through Article 253. 
• The courts must interpret the constitution in light of the Charter of the United Nations. 
• International treaties that restrict the rights of citizens or modify state laws require a legislative measure, while those that do not restrict rights do not require a legislative measure but cannot override domestic law. 
• There have been cases where the Indian courts have used international treaties to create legally binding obligations, such as in the case of Vishaka v State of Rajasthan, which used the Convention on Elimination of all forms of Discrimination against Women to create obligations regarding sexual harassment. 
• The interplay of international law in India is dealt with as needed, with restrictions on rights requiring legislative amendments, while enhancing or broadening rights is allowed as long as there is nothing contrary in domestic law.

Dispute Resolution

• In domestic law, disputes can be resolved through various methods such as going to court, mediation, conciliation, or arbitration. 
• In international law, disputes can arise regarding treaties or basic covenants and can be resolved through established institutions and mechanisms.

International Court of Justice 

• The International Court of Justice is the main judicial branch of the United Nations and located in The Hague, Netherlands. 
• All members of the UN are party to its statute by default and non-members can become parties. 
• The ICJ has jurisdiction to decide cases if the parties agree to appear before the court and be bound by its decision. 
• It can also be used as a forum if provided for in a treaty between parties and in certain cases it is compulsory to refer disputes to the ICJ. 
• The ICJ also gives non-binding advisory opinions on points of law to countries under Articles 65-68 of its statute.

International Criminal Court 

• The International Criminal Court (ICC) is a tribunal set up through the Rome Statute in 2002 with the purpose of prosecuting criminals for 4 major crimes: Crimes against Humanity 2 Genocide War Crimes 2 Crime of Aggression 
• The International Criminal Court (ICC) has jurisdiction over individuals who commit certain crimes, such as genocide or war crimes, in countries that accept the jurisdiction of the ICC. 
• The ICC can take up cases referred by a country or the ICC Prosecutor, and has limited jurisdiction in criminal matters listed under the Rome Statute. 
• However, the ICC's jurisdiction is more restricted than ordinary criminal courts.

Other Dispute Resolution Mechanism

• International disputes can be resolved through various mechanisms, such as mediation, arbitration, or dispute resolution panels specified in treaties. 
• The United Nations has created forums such as the International Court of Justice and the World Bank for resolving specific types of disputes. 
• The procedures for dispute resolution vary and depend on the agreements between parties and the provisions of the treaties.