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

Introduction

Each state has its own set of laws, known as domestic laws, which govern the behavior of its citizens. These laws oversee various aspects of individuals' lives, including private, social, and commercial activities. Additionally, domestic laws regulate the conduct and operations of the state machinery itself.

However, challenges arise when disputes occur between two or more state parties. Questions emerge regarding which body of law should govern their conduct and which jurisdiction applies in cases involving private parties from different jurisdictions. To facilitate interstate relations and address such disputes, a framework is necessary, and this is where International Law comes into play.

Historical Development of International Law

The concept of "International Law" was introduced by the English philosopher Jeremy Bentham in 1780. The Dutch legal scholar Hugo Grotius, who lived from 1583 to 1645, is regarded as the pioneer of modern international law and has had a significant impact on its evolution.

Grotius highlighted the importance of freedom of the high seas in his work "On the Law of War and Peace" (1625). This idea was quickly embraced by northern European nations engaged in exploration and colonization.

While the roots of international law can be traced back to cooperative agreements in the ancient Middle East, its fundamental framework was established during the European Renaissance.

(i) International Law vs. Domestic Law
International law operates as a separate legal system, distinct from the legal frameworks of individual states. There are several key differences between international law and domestic (municipal) legal systems:

United Nations (UN) General Assembly:

• The UN General Assembly is made up of representatives from around 190 countries. While it may appear to function like a legislative body, it lacks the authority to create binding laws.
• Resolutions passed by the UN General Assembly are generally non-binding recommendations, with a few exceptions such as determining the UN budget, admitting new members, and electing judges to the International Court of Justice (ICJ) and the Security Council.

International Court System:

• The international court system does not possess absolute jurisdiction in matters of international law. In contentious cases, the ICJ's jurisdiction depends on the consent of the involved states.

Enforcement Mechanisms:

• There is no international police force or overarching system of law enforcement, nor is there a supreme executive authority in international law.
• The UN Security Council can authorize the use of force in specific situations to enforce its decisions, but this is contingent on prior acts or threats of aggression. Any such enforcement action can be vetoed by one of the five permanent members of the Security Council (China, France, Russia, the United Kingdom, and the United States).
• The forces involved in enforcement actions must be assembled from member states on an ad hoc basis, as there is no standing UN military.

Nature of International Law:

• International law is considered weaker than municipal law in terms of enforcement. However, it operates in a decentralized manner, with all states viewing themselves as independent and sovereign. The rules governing international conduct are based on long-standing customs, international agreements, and treaties, with the common consent of the international community for enforcement.

Perspectives on International Law:

• Oppenheim views international law as a genuine system of law, while Austin argues that it is not true law because it is not enacted by a superior authority.

(ii) International Law and International Relations

• International law is an integral aspect of international relations. States typically adhere to the relevant rules and principles of international law when responding to international situations, as they are aware of the importance of maintaining a positive image in the global community.
• The principles of international law are grounded in reciprocity and self-interest. When a state violates international rules, it risks damaging its credibility, which can have repercussions for its future relations with other states. For example, if a state breaches a treaty for its own benefit, it may encourage other states to violate treaties in the future, ultimately harming the original violator.
• Compliance with international rules and principles fosters a sense of certainty, predictability, and shared purpose in international affairs.
• The globalization phenomenon in the 1980s led to an increase in the number and influence of international and regional organizations, resulting in the expansion of international law to encompass the rights and obligations of these organizations. New international law is often created through processes that require near-universal consensus.
• For instance, in environmental matters, bilateral negotiations have been increasingly replaced by multilateral ones, transforming the process of individual state consent into community acceptance. This consensus-building approach has led to various environmental agreements and the Law of the Sea treaty (1982).
• The Kyoto Protocol, adopted in 1997 and implemented in 2005, exemplifies this trend by calling for participating countries to reduce greenhouse gas emissions to combat global warming.
• International law, while theoretically based on the equality of states, is complex in practice, as some states hold more power in shaping and upholding international law than others.

Understanding International Law

In International Law, every country is referred to as a ‘state.’

• International law, as defined by Bentham, is a set of rules that govern the relationships between states. However, this definition does not include two important aspects of modern international law: individuals and international organizations.
• International law, also known as the law of nations, is a framework of rules and principles that bind the relations between states. It governs their conduct towards each other, as well as towards other legally recognized international entities and the citizens of other nations. Essentially, it is a system of treaties and agreements that regulates how nations interact with one another, their citizens, and businesses from other countries.
• This form of law largely relies on consent, as states are not usually obligated to follow it unless they explicitly agree to a specific course of action. However, there are exceptions to this consent requirement, such as principles of customary international law or Jus cogens.
• ‘Jus cogens’ is a Latin term meaning ‘compelling law.’ It refers to norms that cannot be violated by specific agreements. These are norms of customary international law that are so crucial that they cannot be altered through treaties. Types of International Law

International Law is primarily categorized into:

• Public International Law
• Private International Law

Public International Law

Public International Law regulates the relationships between states. Unlike other types of law, it focuses on the conduct of one state in relation to another and does not involve private entities (individuals or organizations) or the domestic laws of any country.

The main goal of Public International Law is to establish a framework of rules and regulations that promote stable and organized international relations.

Some key areas covered by Public International Law include:

• Peace and Security
• Human Rights
• Finance
• Airspace
• Trade
• Intellectual Property
• Development
• Weapons
• Biodiversity
• Science and Security
• Fisheries
• International Crimes
• Climate Change
• Extradition
• Natural Resources

Over time, the range of subjects addressed by international law has expanded significantly.

The World Trade Organization (WTO):

• The World Trade Organization (WTO) is a global international organization that facilitates trade between nations. Established in 1995 and headquartered in Geneva, Switzerland, the WTO has 164 members representing 98 percent of world trade.
• The WTO is the only organization dedicated to regulating trade rules between nations. It operates based on agreements negotiated and signed by the majority of the world’s trading nations and ratified by their parliaments. The primary goal of the WTO is to assist producers, exporters, and importers in conducting their business.

The WTO can be viewed in several ways:

• As an organization that promotes trade opening.
• As a forum for governments to negotiate trade agreements.
• As a platform for resolving trade disputes.
• As an operator of a system of trade rules.

Essentially, the WTO serves as a venue for member governments to address and resolve trade issues they encounter with one another.

Private International Law

Private International Law, also known as ‘Conflict of Laws,’ comprises rules and principles governing interactions and transactions involving private parties across different jurisdictions. This body of law includes conventions, model laws, domestic laws of various states, and secondary legal sources.

Key concerns of Private International Law include:

• Determining which jurisdiction is competent to hear a case, and
• Deciding which jurisdiction’s law should apply to the issues at hand.

For instance, in cases involving marriage laws between couples from different jurisdictions, questions arise regarding which legal system and norms should govern the marriage-related issues. These questions fall within the scope of Private International Law.

International law is essentially a set of guidelines that regulate the relationships between countries by outlining their rights and responsibilities. 
It can be divided into two main categories: Public International Law and Private International Law.

• Public International Law includes rules and agreements that govern how countries interact with each other, such as treaties on trade, environmental protection, and human rights. For example, the United Nations plays a crucial role in facilitating international cooperation on various global issues, including peace and security, humanitarian assistance, and sustainable development.
• Private International Law, on the other hand, deals with legal matters involving private individuals or entities from different countries. This area of law is concerned with issues such as jurisdiction, choice of law, and the recognition and enforcement of foreign judgments. For instance, when a contract is signed between parties from different countries, private international law helps determine which country's laws apply in case of a dispute.

To ensure consistency and harmonization in private international law, several international bodies work towards developing and promoting uniform legal standards. These include the Hague Conference on Private International Law, the International Centre for the Settlement of Investment Disputes (ICSID), the International Institute for the Unification of Private Law (UNIDROIT), and the United Nations Commission on International Trade Law (UNCITRAL).

Over the years, various international conventions and model laws have gained prominence in the field of private international law. One such example is the United Nations Convention on Contracts for the Sale of International Goods (CISG), which provides a framework for resolving contract disputes arising from international sales. Similarly, the UNCITRAL Model Law on International Commercial Arbitration has been adopted by many countries to regulate international arbitration proceedings.

In conclusion, international law plays a vital role in maintaining order and stability in the global arena by regulating the interactions between nations and providing a framework for resolving disputes. Whether it is through public international law addressing issues of global significance or private international law ensuring fair and consistent legal standards for cross-border transactions, the importance of international law cannot be overstated.

Sources of International Law

Determining a source of law within a domestic legal system is relatively straightforward. One can refer to various legislations or statutes provided by the legislature, and in the absence of a statute, decisions of domestic courts may be considered. However, identifying sources of international law is more complex.

The most authoritative source of international law is Article 38(1) of the Statute of the International Court of Justice (ICJ). This article outlines the sources that the ICJ applies when adjudicating disputes related to international law:

1. International conventions (treaties), whether general or specific, that establish rules expressly recognized by the disputing states.
2. International custom, demonstrated by general practices accepted as law.
3. General principles of law recognized by civilized nations.
4. Judicial decisions and teachings of highly qualified publicists as subsidiary means for determining legal rules, subject to Article 59.

Article 38(1) categorizes sources of international law into primary and secondary sources. The primary sources include treaties, customs, and general legal principles recognized by civilized nations. Secondary sources comprise judicial decisions and scholarly writings, which serve as evidence of international law.

General principles of law are often employed to fill gaps when treaties or customary international law do not provide clear rules. These principles may encompass justice, natural law, analogies from private law, comparative law principles, or broad concepts of international law. Such principles are also documented in textbooks, surveys, manuals, treatises, and encyclopedias.

Scholars suggest that as new treaties and customary laws evolve to address previously unregulated international issues, the importance of general principles will diminish.

Although Article 38(1) is specifically applicable to the ICJ, it is widely accepted as representing the general standard for sources of international law. Since all United Nations members are automatically members of the ICJ, this provision is recognized as a general norm.

The term 'ipso facto,' meaning 'by the fact itself,' indicates that a specific phenomenon is a direct consequence of an action. While the ICJ Statute does not prescribe a hierarchy among sources, they are typically applied in the following order during disputes: treaties, customs, general principles of law, judicial decisions, and scholarly writings.

1. Treaties

• Treaties are written agreements between states that are governed by international law. They can be bilateral (between two states) or multilateral (involving multiple states). Treaties can cover a wide range of issues, such as trade, environmental protection, and human rights.
• The Vienna Convention on the Law of Treaties, 1969, provides guidelines for the negotiation, adoption, and implementation of treaties. It also outlines the rules for the interpretation and enforcement of treaties.
• Treaties can create binding legal obligations for the parties involved, and they can also establish mechanisms for dispute resolution.

2. International Customary Law

• International customary law is based on the consistent and widespread practice of states, accompanied by a belief that such practice is legally obligatory. It reflects the general acceptance of certain norms and principles by the international community.
• The North Sea Continental Shelf Cases clarified that the duration of practice is not the sole factor in establishing customary international law. Other elements, such as the nature and uniformity of the practice, are also important.
• International customary law is often identified through various sources, including unsigned treaties and United Nations declarations. These documents may reflect the emerging norms and practices in the international arena.
• However, the determination of when a state practice becomes legally binding or the identification of a rule of international custom can be contentious issues. There is ongoing debate about the criteria and evidence required to establish customary international law.

3. Decisions of the International Court of Justice (ICJ)

• Article 59 of the Statute of the ICJ specifies that the decisions of the Court are binding only on the parties involved in the dispute and in respect of that particular case. This means that past decisions of the ICJ do not have binding authority over future cases.
• However, the ICJ often refers to its previous decisions when deciding new cases. The Court reviews its past opinions, determines which cases are relevant, and rarely departs from established case law.
• The ICJ may also have jurisdiction to decide cases if the parties agree to submit their dispute to the Court and accept its decision. Additionally, the Court can provide advisory opinions to countries under Articles 65-68 of its Statute. These advisory opinions are not binding but serve as guidance on legal questions.
• Article 38 of the Statute of the ICJ recognizes judicial decisions as a subsidiary means for determining rules of law. This acknowledges the role of court decisions in shaping and interpreting legal principles, even though they are not binding precedent.

International Human Rights

The realm of International Human Rights raises various questions within the framework of international law, particularly concerning issues of enforcement and sanctions related to human rights.

The aftermath of the Second World War significantly influenced the evolution of human rights law, highlighting the need for a system to safeguard human rights. This necessity sparked a surge of activism and scholarly work in the field.

Peace Palace Library

• Located in The Hague, Netherlands, the Peace Palace Library is one of the oldest libraries dedicated to international law, having collected publications in this field since 1913.
• The library aims to serve the institutions based in the Peace Palace, such as the International Court of Justice, the Permanent Court of Arbitration, and The Hague Academy of International Law.
• It is open to all scholars and students interested in international law.

Key Conventions and Treaties

Non-Derogable Rights:

• Article 4 of the International Covenant on Civil and Political Rights (ICCPR) identifies certain rights as non-derogable, placing them at a higher level in the hierarchy of rights. These include:
• the right to life
• freedom of thought
• prohibition of slavery

Customary International Law:

• Some rights have become part of customary international law, such as:
• prohibition of torture
• prohibition of genocide
• prohibition of slavery
• principles of non-discrimination

These rights are inalienable and do not require a specific treaty for enforcement.

Universal Declaration of Human Rights (UDHR):

• The UDHR is a pivotal document in promoting human rights, despite not being legally binding. It includes provisions such as:
• liberty of a person (Article 3)
• equality before the law (Article 7)
• prohibition of torture (Article 5)
• socio-economic rights like the right to work and equal pay (Article 23)
• right to social security (Article 25)

The UDHR has been referenced in cases by the International Court of Justice, underscoring its importance in international human rights law.

Vienna Declaration and Programme of Action (1993):

• This declaration reinforced the universality, indivisibility, interdependence, and interrelation of all human rights.
• It led to the establishment of the position of the UN High Commissioner for Human Rights, responsible for coordinating UN human rights activities and making recommendations to other UN bodies.

Other Key Legislations and Arrangements:

• Convention on the Prevention and Punishment of the Crime of Genocide
• International Convention on the Elimination of All Forms of Racial Discrimination

These conventions, along with the UDHR, create a framework of enforceable rights in both treaty and customary international law.

Human Rights Bodies:

• Commission on Human Rights. Now known as the Human Rights Council, it addresses human rights issues and continues the work of the former Commission with a broader mandate.
• The Human Rights Council has faced criticism for political selectivity and perceived bias in its reviews of certain countries.

Erga Omnes Obligations:

• Erga omens obligations refer to human rights violations that are so severe that any state can take action against them, regardless of where they occurred.
• These obligations reflect a shared interest among states in eliminating grave violations, transcending national borders.
• This aspect of international human rights law empowers the global community to intervene and protect the rights of individuals in other countries, reinforcing the universality of human rights.

International Law and Municipal Law

The relationship between international law and municipal (domestic) law is intricate and has been a subject of debate among legal scholars. Some argue that these two branches of law operate independently and do not impact each other, while others believe that in practice, they do intersect and influence one another.

Principles Regarding the Conflict Between International Law and Domestic Law:

• Breach of International Law: Municipal law cannot be used as a defense for violating international law. For example, a country cannot justify breaking an international treaty by citing its domestic laws.
• Treaty Consent: change in municipal law cannot invalidate a country's consent to an international treaty.
• Domestic Legislation: The lack of domestic legislation cannot be used as a defense if a country has an international obligation to perform a certain action.
• Prevalence of International Law: International law often takes precedence over domestic law. However, this does not mean that domestic laws are without authority.
• Requirement for Domestic Legislation: Some international treaties necessitate countries to adopt domestic legislation that aligns with their international commitments, blurring the lines between international and municipal law.

Application of International Law by Countries:

• Each country has its own approach to applying international law within its jurisdiction.
• International law provisions are often used to complement domestic law when both are in agreement.
• In cases of conflict between international and domestic law, the supremacy of either depends on the forum where the dispute is being resolved.
• International forums typically favor treaty law and international sources, while domestic forums prioritize local statutes.

Doctrine of Transformation in the United Kingdom:

• In the UK, the doctrine of transformation requires that international agreements be transformed into municipal law before they can be applied domestically.
• This involves passing domestic legislation that mirrors the international obligations outlined in the treaty.

Practice in the United States of America:

• In the US, customary international law is considered federal law and is binding on state courts if determined by federal courts.
• However, no legislative act can be invalidated solely based on a violation of customary international law.
• The US Supreme Court gives respectful consideration to the interpretation of international treaties but prioritizes domestic rules over conflicting treaty provisions.

International Law and Its Relation to India

Article 51 of the Indian Constitution emphasizes the importance of international law and treaty obligations in the interactions between organized peoples. It reflects India's commitment to fostering respect for these legal frameworks in its dealings with other nations.

Article 253 of the Constitution empowers the Parliament and the Union of India to implement international treaties, even if it means overriding the powers of state governments. This article ensures that India can fulfill its international obligations effectively.

Application of International Law in India:

• India generally follows the principle that ratifying a treaty by the executive's assent is sufficient, unless the treaty explicitly requires legislative ratification.
• In the landmark case of Kesavananda Bharti v. State of Kerala, the Supreme Court emphasized the need to interpret the Constitution in light of the United Nations Charter, highlighting the importance of international law in constitutional interpretation.

Evolution of International Treaties' Role in India:

• There has been an evolution in the philosophy regarding the role of international treaties in relation to the Indian Constitution. India has adapted its approach to the interplay of international law based on contemporary needs.
• While restricting rights requires legislative amendment, broadening the scope of rights is permissible unless contradicted by domestic law.
• In the case of Magan Bhai Patel v. Union of India, the court ruled that treaties restricting citizen rights or modifying state laws need legislative measures for implementation.
• For example, if India is party to a treaty prohibiting the killing of a specific turtle species, it would require domestic legislation to enforce such a restriction.
• Treaties cannot override domestic law on their own. If a treaty contradicts existing domestic law, it will not have the same legal force unless enabled by the legislature.
• However, in cases like Sheela Barse v. Secretary, Children’s Aid Society, where treaties supplement existing laws without contradiction, they can be applied directly to Indian law.
• The landmark case of Vishaka v. State of Rajasthan demonstrated the use of international conventions, like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to establish legal obligations regarding sexual harassment in India.

Dispute Resolution in International Law:

• Disputes in domestic scenarios can be resolved through various methods such as court applications, mediation, conciliation, or arbitration.
• In international law, disputes may arise concerning treaties or fundamental covenants of international law. Mediation, arbitration, and other dispute resolution mechanisms are often employed to reach agreeable decisions.
• The International Court of Justice (ICJ), also known as the World Court, is the principal judicial organ of the United Nations. It settles legal disputes between states in accordance with international law and provides advisory opinions on international legal issues at the request of UN bodies and agencies.
• Established in 1946 under the Statute of the ICJ enacted by the UN General Assembly, the Court is located in The Hague, Netherlands. All UN members are parties to the ICJ statute by default, and non-members can also become parties.
• ICJ judgments are final, binding on the parties involved, and subject to no appeal. While the ICJ lacks enforcement powers, non-compliance may lead to actions by the UN Security Council, responsible for maintaining international peace and security.

Jurisdiction of the ICJ:

• The ICJ serves as a key mechanism for resolving international disputes when parties mutually agree to settle them.

International Criminal Court:

• Established by the Rome Statute in 2002, the International Criminal Court (ICC) has the authority to prosecute individuals for the most serious international crimes. Its jurisdiction is complementary to national legal systems.

The ICC focuses on four major crimes:

• Crimes against Humanity
• War Crimes
• Crime of Aggression
• Genocide. This refers to the intentional killing of a large number of people from a specific nation or ethnic group with the aim of destroying that group.

The ICC can prosecute individuals for crimes committed in countries that accept its jurisdiction. Cases may be brought to the ICC if countries agree to submit to its authority, either for crimes committed by their nationals or within their territories.

Countries can refer cases directly to the ICC or through the ICC Prosecutor, who is responsible for bringing cases on behalf of the court.

The ICC's jurisdiction is more limited than that of national criminal courts, similar to the distinction between civil and criminal courts in domestic law.

Other Dispute Resolution Mechanisms:

• Dispute resolution mechanisms vary and can be outlined in treaties agreed upon by states. For example, the General Agreement on Trade and Tariffs includes provisions for its own dispute resolution panel.
• The United Nations, in collaboration with the World Bank, has established forums to address investment disputes.
• Numerous other dispute resolution forums can be created based on agreements between parties and treaty provisions. The ICJ's framework is flexible enough to handle a wide range of disputes between member states.