NCERT Textbook: International Context | Legal Studies for Class 12 - Humanities/Arts PDF Download

 Page 1


189
Unit - 7: International Context
A. Introduction to International Law
  1. What is international law?
  Every state has their own respective laws (domestic laws) which regulate the 
conduct of its citizens. These laws regulate the private, social, commercial and 
other activities of the individuals. These internal laws also help in regulating the 
conduct and affairs of the state machinery. But, what happens when there is a 
dispute between two or more state parties? Which body of law governs their 
conduct? Which jurisdiction is to be applied in case of disputes related to private 
parties across different jurisdictions? The answer to these situations lies in 
International Law.
 2. History and Meaning
  Many scholars have traced the history of international law back to concepts or 
systems prevalent in different periods in history such as the European 
Renaissance, or in different civilizations such as the Roman Empire or the 
ancient Middle East, International law, as we know it today, took its form in the 
mid-19th century during the expansionist and industrial eras, when concepts 
such as state sovereignty gained increasing prominence, alongside ideas such as 
exclusive domestic jurisdiction and non-intervention in affairs of other states. 
These ideas were then spread throughout the globe by the imperial European 
powers through colonization. Subsequently, international law ended up 
becoming truly 'international' in the initial decades after World War II, owing to 
the rapid decolonization that took place then, leading to the formation of 
numerous independent states which infused the European dominated ideas 
and practices of international law with their own diverse cultures and 
influences. At the same time, international organizations such as the League of 
Nations and the United Nations came into existence in the aftermath of World 
War I and World War II respectively, thus marking an era of a new form of 
international law in which organizations such as UN along with its organs 
would have a significant role.
  International law hence came to be a framework of rules and principles binding 
the relations between states and governing their conduct amongst themselves. It 
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189
Unit - 7: International Context
A. Introduction to International Law
  1. What is international law?
  Every state has their own respective laws (domestic laws) which regulate the 
conduct of its citizens. These laws regulate the private, social, commercial and 
other activities of the individuals. These internal laws also help in regulating the 
conduct and affairs of the state machinery. But, what happens when there is a 
dispute between two or more state parties? Which body of law governs their 
conduct? Which jurisdiction is to be applied in case of disputes related to private 
parties across different jurisdictions? The answer to these situations lies in 
International Law.
 2. History and Meaning
  Many scholars have traced the history of international law back to concepts or 
systems prevalent in different periods in history such as the European 
Renaissance, or in different civilizations such as the Roman Empire or the 
ancient Middle East, International law, as we know it today, took its form in the 
mid-19th century during the expansionist and industrial eras, when concepts 
such as state sovereignty gained increasing prominence, alongside ideas such as 
exclusive domestic jurisdiction and non-intervention in affairs of other states. 
These ideas were then spread throughout the globe by the imperial European 
powers through colonization. Subsequently, international law ended up 
becoming truly 'international' in the initial decades after World War II, owing to 
the rapid decolonization that took place then, leading to the formation of 
numerous independent states which infused the European dominated ideas 
and practices of international law with their own diverse cultures and 
influences. At the same time, international organizations such as the League of 
Nations and the United Nations came into existence in the aftermath of World 
War I and World War II respectively, thus marking an era of a new form of 
international law in which organizations such as UN along with its organs 
would have a significant role.
  International law hence came to be a framework of rules and principles binding 
the relations between states and governing their conduct amongst themselves. It 
190
is a form of law which relies on consent-based governance to a great extent, as 
states are not ordinarily obliged to abide by it, unless they expressly consent to a 
particular course of conduct, though certain aspects are exceptions to the 
consent requirement, such as principles of customary international law and 
peremptory norms or jus cogens.
  International Law can be further categorized into:
  Public International Law 2
  Private International Law and 2
 3. Public International Law
  Public International Law is the law that regulates relations between states. 
Public International law is different from other types of laws because it is 
concerned with interstate regulation, i.e. it deals in regulating the conduct of one 
state with another and is not concerned with the relations between private 
entities (legal and natural persons) and even the domestic laws of any country.
  The primary objective of Public International law is to provide for a framework 
of rules and regulations which help in fostering stable and organized 
international relations. 
 Some key areas where public international law is applicable:
 Peace and security Human rights  Finance Airspace
 Trade Intellectual Property Development Sea
 Weapons Bio-diversity Science and security Fisheries
 International Crimes Climate change Extradition Natural resources
  Public International Law is further classified into fields such as law of the seas, 
 international humanitarian law, the law of treaties, and so on. 
 4. Private International Law
  Private International Law, often referred to as "Conflict of Laws", is a set of rules 
and principles that govern interstate interactions and transactions of private 
parties. It is a body constituted of conventions, model laws, domestic laws of 
states and secondary legal sources. It commonly involves issues like which
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189
Unit - 7: International Context
A. Introduction to International Law
  1. What is international law?
  Every state has their own respective laws (domestic laws) which regulate the 
conduct of its citizens. These laws regulate the private, social, commercial and 
other activities of the individuals. These internal laws also help in regulating the 
conduct and affairs of the state machinery. But, what happens when there is a 
dispute between two or more state parties? Which body of law governs their 
conduct? Which jurisdiction is to be applied in case of disputes related to private 
parties across different jurisdictions? The answer to these situations lies in 
International Law.
 2. History and Meaning
  Many scholars have traced the history of international law back to concepts or 
systems prevalent in different periods in history such as the European 
Renaissance, or in different civilizations such as the Roman Empire or the 
ancient Middle East, International law, as we know it today, took its form in the 
mid-19th century during the expansionist and industrial eras, when concepts 
such as state sovereignty gained increasing prominence, alongside ideas such as 
exclusive domestic jurisdiction and non-intervention in affairs of other states. 
These ideas were then spread throughout the globe by the imperial European 
powers through colonization. Subsequently, international law ended up 
becoming truly 'international' in the initial decades after World War II, owing to 
the rapid decolonization that took place then, leading to the formation of 
numerous independent states which infused the European dominated ideas 
and practices of international law with their own diverse cultures and 
influences. At the same time, international organizations such as the League of 
Nations and the United Nations came into existence in the aftermath of World 
War I and World War II respectively, thus marking an era of a new form of 
international law in which organizations such as UN along with its organs 
would have a significant role.
  International law hence came to be a framework of rules and principles binding 
the relations between states and governing their conduct amongst themselves. It 
190
is a form of law which relies on consent-based governance to a great extent, as 
states are not ordinarily obliged to abide by it, unless they expressly consent to a 
particular course of conduct, though certain aspects are exceptions to the 
consent requirement, such as principles of customary international law and 
peremptory norms or jus cogens.
  International Law can be further categorized into:
  Public International Law 2
  Private International Law and 2
 3. Public International Law
  Public International Law is the law that regulates relations between states. 
Public International law is different from other types of laws because it is 
concerned with interstate regulation, i.e. it deals in regulating the conduct of one 
state with another and is not concerned with the relations between private 
entities (legal and natural persons) and even the domestic laws of any country.
  The primary objective of Public International law is to provide for a framework 
of rules and regulations which help in fostering stable and organized 
international relations. 
 Some key areas where public international law is applicable:
 Peace and security Human rights  Finance Airspace
 Trade Intellectual Property Development Sea
 Weapons Bio-diversity Science and security Fisheries
 International Crimes Climate change Extradition Natural resources
  Public International Law is further classified into fields such as law of the seas, 
 international humanitarian law, the law of treaties, and so on. 
 4. Private International Law
  Private International Law, often referred to as "Conflict of Laws", is a set of rules 
and principles that govern interstate interactions and transactions of private 
parties. It is a body constituted of conventions, model laws, domestic laws of 
states and secondary legal sources. It commonly involves issues like which
191
  Jurisdiction should be permitted to hear the case, and 2
  Jurisdiction's law should be applied. 2
  It is different from Public International Law, as the latter is a set of rules which 
governs the intercourse between nations through determining the rights and 
obligations of the governments of the nations, while the former comprises of 
certain rules and regulations which are established or agreed upon by private 
citizens from different nations who enter into transactions and that would 
govern them if a dispute were to arise.
  There are certain international bodies which have been working towards 
harmonizing private laws of different countries and bringing uniformity in 
their application. The bodies include organizations such as the Hague 
Conference on Private International Law, the International Centre on the 
Settlement of Investment Disputes (ICSID), the International Institute for 
Unification of Private Law (UNIDROIT), the United Nations Commission for 
International Trade Law (UNCITRAL), and so on. The Hague Conference, 
convened by the government of Netherlands, originates back in 1893, and 
focuses on developing conventions on a wide array of aspects of private law. 
The UNCITRAL works towards developing model laws and guides, related to 
international trade and commercial laws, including the UNCITRAL Arbitration 
Rules.
  Some of the international conventions/model laws in the sphere of private 
international law which have gained more traction in recent times are, the 
United Nations Convention on Contracts for the Sale of International Goods 
(CISG), the UNCITRAL Model Law on International Commercial Arbitration, 
the Geneva Convention on the execution of foreign arbitral awards, and so on. 
  The CISG, also referred to as the Vienna Convention on sale of goods, is a 
multilateral treaty which provides options for avoiding choice of law issues by 
providing a framework of accepted substantive rules with respect to contract 
disputes. It is considered one of the most influential documents in private 
international law, and nowadays is deemed to be incorporated into any 
otherwise applicable domestic laws, unless expressly excluded. 
  The UNCITRAL Model Law has provided a framework for domestic laws on 
international arbitration and is being adopted by an increasing number of 
countries, with India joining the list in 1996.
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189
Unit - 7: International Context
A. Introduction to International Law
  1. What is international law?
  Every state has their own respective laws (domestic laws) which regulate the 
conduct of its citizens. These laws regulate the private, social, commercial and 
other activities of the individuals. These internal laws also help in regulating the 
conduct and affairs of the state machinery. But, what happens when there is a 
dispute between two or more state parties? Which body of law governs their 
conduct? Which jurisdiction is to be applied in case of disputes related to private 
parties across different jurisdictions? The answer to these situations lies in 
International Law.
 2. History and Meaning
  Many scholars have traced the history of international law back to concepts or 
systems prevalent in different periods in history such as the European 
Renaissance, or in different civilizations such as the Roman Empire or the 
ancient Middle East, International law, as we know it today, took its form in the 
mid-19th century during the expansionist and industrial eras, when concepts 
such as state sovereignty gained increasing prominence, alongside ideas such as 
exclusive domestic jurisdiction and non-intervention in affairs of other states. 
These ideas were then spread throughout the globe by the imperial European 
powers through colonization. Subsequently, international law ended up 
becoming truly 'international' in the initial decades after World War II, owing to 
the rapid decolonization that took place then, leading to the formation of 
numerous independent states which infused the European dominated ideas 
and practices of international law with their own diverse cultures and 
influences. At the same time, international organizations such as the League of 
Nations and the United Nations came into existence in the aftermath of World 
War I and World War II respectively, thus marking an era of a new form of 
international law in which organizations such as UN along with its organs 
would have a significant role.
  International law hence came to be a framework of rules and principles binding 
the relations between states and governing their conduct amongst themselves. It 
190
is a form of law which relies on consent-based governance to a great extent, as 
states are not ordinarily obliged to abide by it, unless they expressly consent to a 
particular course of conduct, though certain aspects are exceptions to the 
consent requirement, such as principles of customary international law and 
peremptory norms or jus cogens.
  International Law can be further categorized into:
  Public International Law 2
  Private International Law and 2
 3. Public International Law
  Public International Law is the law that regulates relations between states. 
Public International law is different from other types of laws because it is 
concerned with interstate regulation, i.e. it deals in regulating the conduct of one 
state with another and is not concerned with the relations between private 
entities (legal and natural persons) and even the domestic laws of any country.
  The primary objective of Public International law is to provide for a framework 
of rules and regulations which help in fostering stable and organized 
international relations. 
 Some key areas where public international law is applicable:
 Peace and security Human rights  Finance Airspace
 Trade Intellectual Property Development Sea
 Weapons Bio-diversity Science and security Fisheries
 International Crimes Climate change Extradition Natural resources
  Public International Law is further classified into fields such as law of the seas, 
 international humanitarian law, the law of treaties, and so on. 
 4. Private International Law
  Private International Law, often referred to as "Conflict of Laws", is a set of rules 
and principles that govern interstate interactions and transactions of private 
parties. It is a body constituted of conventions, model laws, domestic laws of 
states and secondary legal sources. It commonly involves issues like which
191
  Jurisdiction should be permitted to hear the case, and 2
  Jurisdiction's law should be applied. 2
  It is different from Public International Law, as the latter is a set of rules which 
governs the intercourse between nations through determining the rights and 
obligations of the governments of the nations, while the former comprises of 
certain rules and regulations which are established or agreed upon by private 
citizens from different nations who enter into transactions and that would 
govern them if a dispute were to arise.
  There are certain international bodies which have been working towards 
harmonizing private laws of different countries and bringing uniformity in 
their application. The bodies include organizations such as the Hague 
Conference on Private International Law, the International Centre on the 
Settlement of Investment Disputes (ICSID), the International Institute for 
Unification of Private Law (UNIDROIT), the United Nations Commission for 
International Trade Law (UNCITRAL), and so on. The Hague Conference, 
convened by the government of Netherlands, originates back in 1893, and 
focuses on developing conventions on a wide array of aspects of private law. 
The UNCITRAL works towards developing model laws and guides, related to 
international trade and commercial laws, including the UNCITRAL Arbitration 
Rules.
  Some of the international conventions/model laws in the sphere of private 
international law which have gained more traction in recent times are, the 
United Nations Convention on Contracts for the Sale of International Goods 
(CISG), the UNCITRAL Model Law on International Commercial Arbitration, 
the Geneva Convention on the execution of foreign arbitral awards, and so on. 
  The CISG, also referred to as the Vienna Convention on sale of goods, is a 
multilateral treaty which provides options for avoiding choice of law issues by 
providing a framework of accepted substantive rules with respect to contract 
disputes. It is considered one of the most influential documents in private 
international law, and nowadays is deemed to be incorporated into any 
otherwise applicable domestic laws, unless expressly excluded. 
  The UNCITRAL Model Law has provided a framework for domestic laws on 
international arbitration and is being adopted by an increasing number of 
countries, with India joining the list in 1996.
192
B. Sources of International Law
 A source of law within a domestic legal system is easier to determine. Within the 
domestic system it is considered as something which is not too difficult a process,  
where one may look at the various legislations or statutes provided for by the 
legislature and if there is a lacunae in the statute then decisions of the 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”
 Though Article 38(1) is technically limited in application to the International Court of 
Justice ("ICJ"), since the function of the court is to decide disputes submitted to it in 
accordance with international law and all members of the United Nations are ipso 
facto members, it is widely accepted that this is considered as enumerating the 
general norm on sources of international law. Although the provisions of the Statute 
of the ICJ do not suggest any hierarchy, they are generally applied in the following 
order in case of disputes.
 Treaties
 A Treaty/International Convention/Charters refers to legally binding, written, 
agreements in which states agree to act in a particular manner as specified in the 
agreement. Treaties are often complex documents, particularly with regards to those 
involving more than two parties as they are binding upon them and are to be entered 
in to in good faith. Agreements which are between different nations but without the 
intention of creating binding obligations are not considered treaties, however they 
may have political effects. A treaty need not be one consolidated document but may 
consist of more than one related documents.
Page 5


189
Unit - 7: International Context
A. Introduction to International Law
  1. What is international law?
  Every state has their own respective laws (domestic laws) which regulate the 
conduct of its citizens. These laws regulate the private, social, commercial and 
other activities of the individuals. These internal laws also help in regulating the 
conduct and affairs of the state machinery. But, what happens when there is a 
dispute between two or more state parties? Which body of law governs their 
conduct? Which jurisdiction is to be applied in case of disputes related to private 
parties across different jurisdictions? The answer to these situations lies in 
International Law.
 2. History and Meaning
  Many scholars have traced the history of international law back to concepts or 
systems prevalent in different periods in history such as the European 
Renaissance, or in different civilizations such as the Roman Empire or the 
ancient Middle East, International law, as we know it today, took its form in the 
mid-19th century during the expansionist and industrial eras, when concepts 
such as state sovereignty gained increasing prominence, alongside ideas such as 
exclusive domestic jurisdiction and non-intervention in affairs of other states. 
These ideas were then spread throughout the globe by the imperial European 
powers through colonization. Subsequently, international law ended up 
becoming truly 'international' in the initial decades after World War II, owing to 
the rapid decolonization that took place then, leading to the formation of 
numerous independent states which infused the European dominated ideas 
and practices of international law with their own diverse cultures and 
influences. At the same time, international organizations such as the League of 
Nations and the United Nations came into existence in the aftermath of World 
War I and World War II respectively, thus marking an era of a new form of 
international law in which organizations such as UN along with its organs 
would have a significant role.
  International law hence came to be a framework of rules and principles binding 
the relations between states and governing their conduct amongst themselves. It 
190
is a form of law which relies on consent-based governance to a great extent, as 
states are not ordinarily obliged to abide by it, unless they expressly consent to a 
particular course of conduct, though certain aspects are exceptions to the 
consent requirement, such as principles of customary international law and 
peremptory norms or jus cogens.
  International Law can be further categorized into:
  Public International Law 2
  Private International Law and 2
 3. Public International Law
  Public International Law is the law that regulates relations between states. 
Public International law is different from other types of laws because it is 
concerned with interstate regulation, i.e. it deals in regulating the conduct of one 
state with another and is not concerned with the relations between private 
entities (legal and natural persons) and even the domestic laws of any country.
  The primary objective of Public International law is to provide for a framework 
of rules and regulations which help in fostering stable and organized 
international relations. 
 Some key areas where public international law is applicable:
 Peace and security Human rights  Finance Airspace
 Trade Intellectual Property Development Sea
 Weapons Bio-diversity Science and security Fisheries
 International Crimes Climate change Extradition Natural resources
  Public International Law is further classified into fields such as law of the seas, 
 international humanitarian law, the law of treaties, and so on. 
 4. Private International Law
  Private International Law, often referred to as "Conflict of Laws", is a set of rules 
and principles that govern interstate interactions and transactions of private 
parties. It is a body constituted of conventions, model laws, domestic laws of 
states and secondary legal sources. It commonly involves issues like which
191
  Jurisdiction should be permitted to hear the case, and 2
  Jurisdiction's law should be applied. 2
  It is different from Public International Law, as the latter is a set of rules which 
governs the intercourse between nations through determining the rights and 
obligations of the governments of the nations, while the former comprises of 
certain rules and regulations which are established or agreed upon by private 
citizens from different nations who enter into transactions and that would 
govern them if a dispute were to arise.
  There are certain international bodies which have been working towards 
harmonizing private laws of different countries and bringing uniformity in 
their application. The bodies include organizations such as the Hague 
Conference on Private International Law, the International Centre on the 
Settlement of Investment Disputes (ICSID), the International Institute for 
Unification of Private Law (UNIDROIT), the United Nations Commission for 
International Trade Law (UNCITRAL), and so on. The Hague Conference, 
convened by the government of Netherlands, originates back in 1893, and 
focuses on developing conventions on a wide array of aspects of private law. 
The UNCITRAL works towards developing model laws and guides, related to 
international trade and commercial laws, including the UNCITRAL Arbitration 
Rules.
  Some of the international conventions/model laws in the sphere of private 
international law which have gained more traction in recent times are, the 
United Nations Convention on Contracts for the Sale of International Goods 
(CISG), the UNCITRAL Model Law on International Commercial Arbitration, 
the Geneva Convention on the execution of foreign arbitral awards, and so on. 
  The CISG, also referred to as the Vienna Convention on sale of goods, is a 
multilateral treaty which provides options for avoiding choice of law issues by 
providing a framework of accepted substantive rules with respect to contract 
disputes. It is considered one of the most influential documents in private 
international law, and nowadays is deemed to be incorporated into any 
otherwise applicable domestic laws, unless expressly excluded. 
  The UNCITRAL Model Law has provided a framework for domestic laws on 
international arbitration and is being adopted by an increasing number of 
countries, with India joining the list in 1996.
192
B. Sources of International Law
 A source of law within a domestic legal system is easier to determine. Within the 
domestic system it is considered as something which is not too difficult a process,  
where one may look at the various legislations or statutes provided for by the 
legislature and if there is a lacunae in the statute then decisions of the 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”
 Though Article 38(1) is technically limited in application to the International Court of 
Justice ("ICJ"), since the function of the court is to decide disputes submitted to it in 
accordance with international law and all members of the United Nations are ipso 
facto members, it is widely accepted that this is considered as enumerating the 
general norm on sources of international law. Although the provisions of the Statute 
of the ICJ do not suggest any hierarchy, they are generally applied in the following 
order in case of disputes.
 Treaties
 A Treaty/International Convention/Charters refers to legally binding, written, 
agreements in which states agree to act in a particular manner as specified in the 
agreement. Treaties are often complex documents, particularly with regards to those 
involving more than two parties as they are binding upon them and are to be entered 
in to in good faith. Agreements which are between different nations but without the 
intention of creating binding obligations are not considered treaties, however they 
may have political effects. A treaty need not be one consolidated document but may 
consist of more than one related documents.
193
 Treaties may be drafted between states by their leaders or government departments 
depending on the circumstances. However there are a number of stages that are 
involved in order to convert a final draft into a binding treaty. The final text has to be 
'adopted' in an international conference by way of two-thirds majority. A state may 
express its consent to be bound by a particular treaty in certain cases, the most 
common of which are:
 Consent by signature
 In certain cases, treaties may be given force by way of signatures of representatives 
who have been given the full powers, i.e. authorization in writing from their state to 
be able to take decisions on its behalf.
 Consent by exchange of Instruments
 In some scenarios, consent may be recorded by way of exchanging certain 
instruments, i.e. documents which contain the terms agreed to by both sides, when 
these instruments provide that on such exchange they will be in effect.
 Consent by Ratification
 Ratification is simply understood to be the act by which a State establishes its consent 
to be bound by a treaty on the international plane. This was initiated as a measure to 
ensure that the representative who signed a treaty had due authority, by seeing 
whether the state agrees to 'ratify' the same. Ratification differs from country to 
country but usually requires a sign that the state consents to follow the provisions of 
the treaty i.e. could be assent by the President of the State or require a vote of a 
majority in the legislature. In multilateral treaties, involving a number of countries, 
ratification is usually the most preferred method of expressing assent where one 
party collects the ratification of the others.
 They are generally considered to be the most accepted as they are in a written form 
and have been explicitly assented to by the states party to the dispute.
 Customs
 An observed custom could be derived from the law of nature or mutual consent and is 
extremely fluid. Custom is usually derived by sifting through many layers and 
evidences of state practice and opinion juris. Many other sources such as unsigned 
treaties and United Nations declarations have been included to identify and cover 
more and more customs and practices in the international domain.