International Context Chapter Notes | Legal Studies for Class 12 - Humanities/Arts PDF Download

Introduction to International Law

International Law governs disputes between two or more state parties and regulates their conduct.

• It also applies in cases of disputes between private parties across different jurisdictions. 
• It is used to resolve conflicts that arise from differences in domestic laws.

2. History and Meaning

• International law has its roots in various historical periods and civilizations, but took its current form in the mid-19th century during the expansionist and industrial era with the rise of concepts like state sovereignty and non-intervention. 
• European powers spread these ideas globally through colonization, but international law became truly international after World War II due to rapid decolonization and the formation of independent states with diverse cultural influences. 
• The formation of international organizations like the League of Nations and the United Nations marked a new era of international law, where such organizations played a significant role. 
• International law is a framework of rules and principles governing the relationships and conduct of states and relies on consent-based governance, although certain aspects do not require consent.

International Law can be further categorized into: 

3. Public International Law 

• Public International Law is a type of law that regulates the relationships between states and deals with interstate regulation. 
• It is different from other laws as it focuses on state-to-state relations and is not concerned with relations between private entities or domestic laws. 
• The goal of Public International Law is to provide a framework of rules and regulations that promote stable and organized international relations. 
• It is divided into various fields, including law of the seas, international humanitarian law, and the law of treaties.

4. Private International Law 

• Private International Law, also known as Conflict of Laws, is a set of rules and principles governing the interactions and transactions of private parties between states. 
• It is made up of conventions, model laws, domestic laws, and secondary legal sources and deals with issues such as jurisdiction and applicable law in case of disputes. 
• Unlike Public International Law, which governs the rights and obligations of governments between nations, Private International Law governs transactions between private citizens from different nations.

International bodies like the Hague Conference on Private International Law, the International Centre on the Settlement of Investment Disputes (ICSID), and the United Nations Commission for International Trade Law (UNCITRAL) work to harmonize private laws of different countries and bring uniformity in their application.
The Hague Conference focuses on developing conventions on private law, while the UNCITRAL works on developing model laws and guides related to international trade and commercial laws.
International conventions in private international law like the CISG and the UNCITRAL Model Law on International Commercial Arbitration have gained traction in recent times, with the CISG providing a framework for avoiding choice of law issues in contract disputes and the Model Law providing a framework for domestic laws on international arbitration.
These conventions are being adopted by an increasing number of countries.

Sources of International Law

• Determining the source of law within a domestic legal system is relatively straightforward. 
• It can be done by examining the laws enacted by the legislative body and, if there is a gap in those laws, relying on the decisions made by domestic courts.
• But, it is not so easy to pinpoint the sources of International law. 
• Yet, the most authoritative source of international law is Article 38(1) of the Statute of the International Court of Justice, which provides that when a court which deals with disputes relating to international law, it shall apply: "International conventions, whether general or particular, establishing rules expressly recognized by the contesting states,
  a) International custom, as evidence of general practice accepted by law
  b) The general principles of law recognized by civilized nations
  c) Subject to provisions of Article 59, judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of international law”

Article 38(1) of the International Court of Justice (ICJ) Statute is considered to be the general norm on sources of international law. It is widely accepted despite being technically limited to ICJ. The ICJ's role is to decide disputes in accordance with international law, and all United Nations members are automatically members of the ICJ. The provisions of the ICJ Statute do not have a specific hierarchy, but are generally applied in a certain order in case of disputes.

Treaties 

• A state may express its agreement to be bound by a treaty through signature, exchange of instruments, or ratification. 
• Consent by signature involves the representatives being authorized to take decisions on behalf of the state. 
• Consent by exchange of instruments is recorded by exchanging documents containing agreed terms. 
• Ratification is the act by which a state agrees to be bound by a treaty, which usually requires the assent of the President or a majority vote in the legislature. 
• Ratification is a preferred method in multilateral treaties involving multiple countries, and is considered the most accepted form of agreement as it is in written form and explicitly assented to by the parties involved.

Customs 

• Custom in international law is a fluid source that is derived from the law of nature or mutual consent of states. 
• It is established through examination of state practice and opinion juris and can be demonstrated by various sources such as unsigned treaties and United Nations declarations.

International Court of Justice (ICJ) decisions 

• Article 59 of the Statute of the ICJ states that the decisions of the ICJ are only binding on the parties involved in a dispute and the ICJ tends to follow its previous decisions and rarely departs from relevant case law. 
• Despite some feeling a change is necessary, these are currently the prevalent sources for international law.

International Institutions

• In the 19th century, the growth of sovereign nations and increasing international relations led to the development of international cooperation. 
• This resulted in the formation of non-governmental organizations such as the International Law Association (1873) and the International Committee of the Red Cross (1863), which laid the foundation for the League of Nations in 1919 and eventually the United Nations in 1945.

International Labour Organization (ILO) 

The International Labor Organization (ILO) was established in 1919 after the First World War to promote social justice through regulations and agreements to improve labor conditions and achieve humane treatment of workers worldwide.

United Nations Educational, Scientific and Cultural Organization (UNESCO) 

UNESCO was established in 1945 to promote coordination between member states by promoting culture, preserving heritage, sharing knowledge, and fostering cooperation between nations to aid sustainable development.

World Bank and the International Monetary Fund (IMF) 

• The World Bank was established in 1944 as the International Bank for Reconstruction and Development (IBRD), along with the International Monetary Fund, to help rebuild and support the economies of countries that suffered during World War II. 
• It provides loans to member states for development and raises its funds through the world's financial markets.

World Health Organization (WHO) 

• The World Health Organization (WHO) was established in 1948 to support member states in addressing health concerns by setting norms and standards, coordinating disease containment efforts, monitoring global health trends and promoting knowledge and awareness of health issues. 
• The WHO, along with organizations like the World Bank and UNESCO, aim to promote international cooperation on issues related to human rights, redevelopment, and health. 
• These organizations have grown since the end of World War II and have facilitated coordination between various departments of government and non-government organizations.

International Human Rights

• International Human Rights raise questions in the framework of international law and face challenges with enforcement and sanctions. 
• The need for a system to protect human rights was emphasized after the Second World War and led to an increase in activism and literature on the subject. 

• The International Covenant on Civil and Political Rights (ICCPR) recognizes certain non-derogable rights such as the right to life and freedom of thought, and there are also human rights that have become customary international law like the prohibition of torture, genocide, and slavery and the principle of non-discrimination. 
• These rights have become inalienable and don't require specific treaties for enforcement.
• One of the most influential documents in this regard is the Universal Declaration of Human Rights which deals with various provisions, a few of them being:
  liberty of a person (Article 3)
  equality before law (Article 7)
  prohibitions on torture (Article 5)
  socio-economic rights such as right to work and equal pay (Article 23)
  right to social security (Article 25) 
• International human rights law seeks to protect the rights of individuals through a variety of international conventions, treaties, and agreements. 
• The International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights are two such important documents that establish non-derogable rights and principles of non-discrimination. 
• The UN High Commissioner for Human Rights and the Human Rights Council are responsible for promoting human rights and coordinating with UN bodies on human rights issues. 
• While human rights violations are typically dealt with by the state in which they occur, some human rights violations are considered so grave that any state may take action against them. 
• International human rights law empowers the international community to protect the rights of citizens in other countries. 
• Overall, international human rights law is considered highly important in the field of international law, and is protected and enforced through various international and domestic bodies.

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.