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Chapter-5 Law of the sea # Introduction (UNCLOS, 198 ! -It evolved during the time of "rotius.

During the 19th century the law of sea only dealt with the disputes related to maritime zones that included territorial sea, contiguous zone and high seas. In the 20 th century with the increase of need to capture more and more area of the sea emerged and there were conflicts among those who were the dominant states and those who were trying to save their economic interest. mergence of new !sian and !frican countries and to ma"e use of the minerals underneath the sea increased the disparity among the nations. #here was a dire need that suited the interest of all the nations, whether developing or developed. -#wo $.%. conferences were held in &eneva in 19'( and 19)0 *1+ first included convention on #erritorial sea and contiguous zone, convention on ,igh seas, -onvention of fishing and conservation of living resources and convention on continental shelf. *2+ .econd included /readth of the territorial sea /ut it failed to achieve success -#hird $.%. -onference *$%-01.-III+*1+ #his considered many aspects related to 0aw of the sea. !s a result #he -onvention on the 0aw of the sea, 19(2 came into force in 1992. India also signed the $%-01. in 19(2, however, ratified the convention on 199'. ##erritoria$ sea%waters%&ariti'e (e$t%&ariti'e )one -!lso called 3aritime /elt or #erritorial sea or 3aritime zone. It is that /elt of sea that is ad4acent to coastal state and the state e5ercises its sovereignty. It is different from internal waters as the people have a no right to innocent path to the other states and is restricted within the /oundaries of state. *1+ (readth of territoria$ sea- arlier the /readth was only up to that distance which a fired canon could shot and at that time it was 6 nautical miles. 7ith the development of science, this concept has to /e changed. -!s per !rt. 6 of -onvention the /readth of territorial sea is 12 miles from the /aseline. -!rticle ' says that the normal /aseline for measuring the /readth of territorial sea is the low water line and where the coastline is complicated, there the straight line method is used. -Case-*n+e$o Norwe+ian ,isheries Case-#he dispute was /etween %orway and $.8. which was related to the straight /aseline method adopted /y %orway /ecause of its indented coastline. #he $.8. was opposing the method adopted /y %orway and contended that the proper method that should have /een adopted /y %orway was 0ow 7ater 0ine. #he I-9 held that the use of the method depends on the geographical, historic and economic consideration of any nation. !s per the geography, the coastline of %orway is indented and cut into various part and using the straight /aseline method in which, appropriate points are selected on different island and then these points are 4oined with each other with a straight line, was a good method. If we see historically, the %orway has /een following this method for a very long time. conomically, the people of the %orway earn their livelihood from the territorial sea /y fishing. #he rule of !nglo-%orwegian :isheries in incorporated in !rticle ; of $%-01.. In India also the position is same and the territorial sea stretches to 12 nmi from the /aseline. *2+-i+hts of States #erritoria$ sea -#he state en4oys sovereign powers over the territorial sea. It also en4oys such powers over the air space that e5tends up to territorial sea and the /ed and su/-soil. 1nly the state is authorized to use the minerals and other useful products within the its territorial sea limits. ,owever, there is an e5ception to it which is of/-i+ht to Innocent 0assa+e-*rtic$e 11 of $%-01. specified that ships of all states en4oy a right of innocent passage through the territorial sea. #he term passage means as passing through the territorial sea from high seas to high seas, and proceeding to or from port. ntry upon the territorial sea for any other purpose is not <passage= -*rtic$e 18 descri/es >?assage@ -*rtic$e 19 descri/es >Innocent@ -*rtic$e 2 descri/es >!ny ship, vessel while passing through the territorial sea of some other state, shall show their flags. In case of su/marines, they should surface and show their flag. 1

-*rtic$e 3 descri/es >.hips, vessels or su/marines, ta"ing nuclearAno5ious su/stance, shall carry with them, the documents and shall o/serve special precautionary measures. -*rtic$e 4 descri/es >%o state shall hamper the innocent passage of ship of any of the state through the territorial sea. --oastal states consider passage of warship as infringement of their sovereignty or a distur/ance to national security. #Conti+uous )one-It e5tends to 22 nautical miles including the territorial sea stretch of 12 nautical miles from the /aseline. In other words we can say that this zone start from where the territorial sea ends and it e5tends up to 12 nautical miles. #he state en4oys only police and revenue 4urisdiction and not a/solute sovereignty, over this zone. #he state has control over these waters and can impose and enforce laws in four specific areas viz. *1+ pollution *2+ ta5ation *6+ customs and *2+ immigration and can punish the infringement of the law. #hus, the state can impose only certain restrictions over this zone. #his concept developed die to the ina/ility of coastal states to ensure effective protection of all its interest /ecause of the limited /readth of territorial sea. B%ote-India also follows the same rule as is descri/ed in !rticle ' of 3aritime Cone !ct, 19;). Dut in contradistinction, India has included <security= amongst the purpose of contiguous zone and the authority of Indian &ovt. is much greater as it can e5ercise control and can ta"e cognizance of any offence. #Continenta$ She$f-( +ot sanctit5 in "ene.a Con.ention, 1958!- It is the natural prolongation of the land territory to the continental margin=s outer edge or 200 nautical miles from the coastal state=s /aseline, which ever is greater. It is the e5tension of the land territory /eneath sea. It is the su/merged landmass. -!rticle 2 of &eneva -onvention specifically allows only the coastal state to e5plore and e5ploit the natural resources with its continental shelf. -*rtic$e 16-85 of $%-01. lays some provisions regarding the -ontinental shelf which areE*1+ ?rovision for revenue sharing in respect of e5ploitation /eyond the 200 nautical miles limit *2+ 0imit of continental shelf is the outer edge of the continental margin or 200 nautical miles, whichever is more *6+ #he view a/out delimitation of the -ontinental .helf has /een changing and the door has /een left open for development of case law in this field. #he issue of delimitation is controversial /ecauseE*1+ &eneva -onvention used eFuidistance special circumstances rule *2+ %orth .ea -ontinental shelf case *6+ !nglo-:rench continental shelf ar/itration tc. -*rtic$e 6 of Indian 3aritime Cone confers certain rights to Indian coasts which areE*1+ Gight to e5ploration, e5ploitation, conservation and management of all resources within the limit of continental shelf *2+ Gight to construct and maintain artificial islands, off-shore terminals etc. *6+ Gight to scientific research *2+ Gight to protect marine environment and control pollution #78c$usi.e 7cono'ic )one-(is the product of UNCLOS, 198 !-!rticle '; says that is shall not e5tend /eyond 200 nautical miles from the coast /aseline from which the territorial sea is measured. It comprises of two categoriesE*1+ 7ater column *2+ .ea/ed underlying water column. -Gight mentioned under !rticle '; given to coastal states*1+ Gight to e5ploration, e5ploitation, conservation and management of all natural resourcesm whether living or non-living, of sea/ed and su/-soil and super ad4acent waters. *2+ Gight to construct, use and maintain artificial islands, installation and structures and off-shore terminals etc. *6+ Gight to scientific research *2+ Gight to protect marine environment and control pollution *'+ 1ther rights and duties provided for in the -onvention. -Gights to other states related to the C and the states shall strictly comply with thes*1+ :reedom to navigate *2+ :reedom of air space *6+ 0aying of su/marine ca/les and pipes etc. 2

-In India, -entral &overnment is empowered to declare any area of C as a designated area. In 3aritime Cones of India, regulates the fishing /y foreign vessels in the maritime zones of India and such provision is not there in $%-01..

9i+h Seas-is that part of the sea which is /eyond national 4urisdiction. !s per !rticle () $%-01., it is that part of the sea which is not the part of C. #hus #erritorial water, internal water and C are e5cluded from the limit of the ,igh seas. -*rtic$e 81 $%-01. says that high seas are open to all states whether coastal or landloc"ed and the rights to the states are as followsE*1+ Gight to navigate *2+ Gight of overflight *6+ Gight to lay su/marine ca/les and pipelines *2+ Gight to fishing *'+ Gight to scientific research *)+ Gight to construct artificial islandsAinstallation permitted under International law *1+ -i+ht of Search and sei:ure on 9i+h seas-!ll the ship should carry the flag flying of their respective state. 7arships are immune in this area and this immunity is only for ship /eing used for government noncommercial service. *2+ -i+ht to 9ot pursuit-If any ship violates the laws of any coastal state, then the coastal state is permitted to underta"e hot pursuit. #he ship should /e with #erritorial seaAcontiguous zoneA CA-ontinental shelf. #he pursuit may only /e commenced after giving the other ship a visual or auditory signal to stop. #he pursuit can only /e underta"en /y warship, military aircraft or any ship on government duty. If the hot pursuit is /ro"en, then it can=t /e resumed. !lso, if the ship which is /eing pursued enters the territorial sea of its own state or any other third state, then the pursuit can=t continue. *6+ -i+ht of ;isit- !ny ship can /e chec" if there is a suspicion that the ship is engaged in piracy, slave trade, unauthorized /roadcasting or the ship is without nationality or misrepresenting the flag or refusing to show its 6

flag. #heir papers can /e chec"ed and if not found guilty then they should /e compensated for any damage caused.

Chapter-3 -e$ationship <%w Internationa$ Law and &unicipa$ Law &unicipa$ Law-is a law of a particular nation which operates within its 4urisdiction upon all persons, things, acts and actions *intra state+. -0egislature is supreme -the court can compel any person, department or government to appear /efore it -law is made /y the legislature #here are #wo theories +i.en on the re$ationship <etween &unicipa$ Law and Internationa$ Law(1! &onictic- It was given /y 8elson etc which says*a+ Doth the systems regulate the conduct of individuals while municipal law does immediately and international law does it mediately. */+ In /oth, the su/stance of the law is same i.e. they /oth give command /inding on the su/4ects irrespective of their will *c+ Doth systems have their origin from a single norm, which is the foundation head of all laws. =e$e+ation #heor5-stated that each state is delegated with constitutional rules of International 0aw as to how the international treaties will /ecome applica/le in the state law. Dy this they wanted to say that there is no transformation of the international law and there is no new creation of any law. #his theory was criticized on the grounds that delegated these constitutional laws to the statesH Decause the states are sovereign and eFual and does not recognize any authority over it and a/ove it. ( ! =ua$istic-It was given /y 1ppenhiem etc.. #heir views are 4ust opposite to the monism vizE*a+ #he su/4ects of 3unicipal law are individuals and the su/4ects of international law are states */+ 3unicipal law is a command of a sovereign while international law is more in the nature of promises *c+ .ource of 3unicipal 0aw is the will of the state while source of international law is the common will of the states Specific *doption%#ransfor'ation theor5-#hey contended that the international law is not automatically applica/le in the municipal sphere. #hey are only applica/le if the municipal law transforms such international law into municipal or state legislature. #hus, international law cannot /e directly enforced. #his theory was criticized as there are many principles of International law which are applied in the field of municipal law with specific adoption viz. customary rules. :urther, the law ma"ing treaties /ecome applica/le to the states without any transformation. 9ar'onisation theor5-It says the municipal law and international law are eFual. Doth are made for humans. If any contradiction appears, it should /e harmonized in the following two ways*1+ Dy the 4udges /y their 4uristic reasoning *2+ Dy enacting international law into the municipal law that it doesn=t contradict in any way and if it does, it should /e amended to avoid contradiction. Internationa$ $aw-is a law that operates mainly on sovereign states -all states are sovereign and eFual -no state can /e compelled to appear in any court -law is made /y treaties etc.


-ustomary rights

$8 $.! #hey treat them as a part of .ame as ngland. their own land /ut only if they are consistent with their own law. In case of inconsistency, the municipal law will prevail


India !rticle 1' *c+ of -onstitution says that the state shall endeavour to foster respect for international law and treaty o/ligations in the dealing of organized people with one another. It is o/served that Indian court in -han" :ishery case and !D3 9a/alpur case gave completely opposite views related to international law. Dut now, International customary are enforcea/le law as far as they don=t conflict with the statute law. Gule of ,armonious construction is also followed here. (Gramaphone Company of India case). %o Incorporation is reFuired. It is necessary that some ,ere every this is #reaty ma"ing is an e5ecutive act. treaties should receive the dependent upon consent of the ?arliament. constitution. #he !ll treaties do not constitution says >!ll automatically come into treaties are the law of force and they do not land@. Dut in $.! if /ecome the law itself. .ome there is a conflict reFuire legislative wor". If /etween the still there is some conflict, International law and the ?arliament law will state law then, prevail whichever is later in date shall prevail and if the conflict is /Aw $. constitution and International law, the constitution will prevail. *

-onclusion- $8, $.! and India attri/ute primacy to municipal law if it is clear and am/iguous. If it is, then in Indian scenario, they follow the harmonious construction to avoid conflict. -onclusion .tate practices-neither monistic nor dualistic view holds good in all situations. ,owever, dualistic theory is closer to the truth, as international law is not always enforcea/le in the municipal courts of $8, $.! and India. 3unicipal courts give effect to international law only if it is clear and not conflicting.

ChapterSources of Internationa$ Law Oppenhiu' says->.ource of law@ is the name for a historical fact out of which rules of conduct come into e5istence@ Star>e->-ustom@ is such a usage as has the force of law. *rtic$e 38 Statute of IC? defines the sources of $aw asE1. International conventions 2. International customs 6. &eneral principles of law recognized /y civilized nations 2. .u/4ect to provisions of !rticle '9, 4udicial decisions and teachings of most highly Fualified pu/licists *1+ Internationa$ Con.entions-(#reaties!-;ienna Con.ention, 1969@ -&eanin+ of #reat5-Oppenhei'-#reaties are agreement of contractual character /etween states or organization of states creating legal rules and duties. -pacta sund servanda-which means states to treaties are /ound to fulfill the o/ligations on them. %o economic relations can e5its without this /etween states and foreign corporations. %one of the parties to treaties can frustrate the o/4ectives or the treaties. #his proves that treaties are li"e international legislation. -rebus sic stantibus-Article 62 Vienna Convention- means the treaty is intended to /e /inding on parties only as long as there is no significant change in the circumstances which o/tained at the time when the treaty was concluded. 7hich means if there is any significant change in the circumstances then the treaty is not /ound on the states as it may hamper the growth, self preservation and vital interest of the nation. *I-9 :isheries 9urisdiction case, $8+ -7ssentia$s*a+ #here must /e a change in the circumstances that were at the time when the treaty was concluded */+ #he change is fundamental *c+ #he change was not foreseea/le /y the party *d+ #he original circumstances were essential to the consent of the parties *e+ $nder the present circumstances, it would /e difficult to perform the o/ligations delegated under the said treaty -#5pes of #reaties as $aid <5 Star>e*1+ 0aw ma"ing treaties-0arge num/er of states are there in it. #hey discuss a particular su/4ect and the laws a/out it. #hey lay general rules for future conduct. *2+ #reaty contracts-#his "ind of treaty is /etween 2 or only few states dealing with a special matter concerning these states only. -;ienna Con.ention of Law of #reaties, 1969- codified the law of treaties. It came into force on 2;th 9anuary, 19(0 It includes Doctrine of jus co ens and rebus sic stantibus! -7ssentia$s*1+?arties competent to ma"e a treaty- very state whether sovereign or non-sovereign possesses capacity to conclude treaties. !lso, international organizations also possess the capacity to ma"e treaties. *2+ :ree consent of the parties-If consent is ta"en /y fraud, coercion, misrepresentation, threat, then the treaty is void. If the consent /y a state is given erroneously or /y mista"e, then the state is not /ound /y the treaty, even if the consent was a free consent. *6+ 3odes of consent-.ignature, e5change of instruments constituting treaty, ratification, acceptance, approval, accession, or /y other means --atification of a treat5-means the head of the state or its government approves or ratifies the signatures of its authorized representatives. arlier the view was that unless the state ratified the signature, the treaty was not /ound on them. #here are still certain condition when the state may /ecome /ound even without ratification which areE;

*1+ 7hen there is a provision in the treaty itself *2+ 7hen state owe the necessary intention *%orth sea continental shelf case+ -#reaties and third states-#reaties never impose o/ligations or confers rights on third states. Dut there are some e5ception to it also which areE*1+ if the third party state itself accept the o/ligation in writing /ut not in that condition where the other states are aggressor in nature. *2+ It the third party has /een following the rule of the treaty as International custom -?us Co+ens-are the /asic and fundamental rules and principles which all the states must o/serve and their non-o/servance may affect the very foundation of the legal system to which they /elong.

( ! Internationa$ custo's*rtic$e 38 (1!(<! Statute of IC? defines courts should apply >International customs, as evidence of general practices accepted as law@ -is the oldest and most original source of International law. -$sage means those actions which are often repeated --ustom is when clear and continuous ha/it of doing certain actions grows up and which is done considering is at right -the feeling on the part of the states that /y following the custom they are fulfilling legal o/ligation. #his is called opinion juris sive necessitatis! -7ssentia$ in+redient*1+ 0ong duration *2+ &eneral practice *6+ Delief that such practice if o/ligatory-opinio 4uris *2+ $niformity and consistency -Cases *1+ S@S@ Lotus case-:rench and #ur"ish ship collided *2+ North sea continenta$ she$f case-Denmar", netherland and %orway continental shelf dispute *6+ *s5$u' case-asylum given to a re/el ?eru leader /y -olum/ia *2+ -i+ht of passa+e case-India denied right to passage to ?ortugese. -Ah5 there is a dec$ine in the i'portance of Internationa$ custo's*1+ Development of more field in law- intellectual property, nuclear issues, ozone hole etc. #hese su/4ects reFuire precise agreements and customs /y its nature is general *2+ -ases of .... 0otus, %orth .ea -ontinental shelf and !sylum case proves that it is very difficult to prove opinio 4uris *6+ #he process of development of a custom is very slow -=ifficu$ties in app$ication of Internationa$ custo's*1+ -ustom must /e proved *2+ -ontinuous practice has to /e proved *6+ 1pinio 4uris has to /e proved *2+ If customs are in conflict with some treaty, the treaty will supercede *'+ #he onus on that state who is trying to prove the custom *6+ "enera$ 0rincip$es -!rticle 6( *1+*c+ of .tatue of I-9 defines >&eneral principles of law recognized /y civilized nations is one of the sources of law@. (

Sorenson says-#hey are called so as they are so general that they are generally found in all systems of law that have attained a compara/le state of development. &eneral principles of law *1+ %atural 9ustice*a+ to act in good faith and without /ias */+ to give each party opportunity to state his case *c+ no man must /e 4udge to his own cause *d+ no party can ta"e advantage of his own wrong-Chorzow Factory Indemnity case *2+ ?rinciple of su/rogation *stepping into shoes of another+-Mavrommatis Palestine Concession case *6+ ?rinciple of ?rescription *a claim to a right founded upon continuous en4oyment of it-Island of Palmas case *2+ ?rinciple of res 4udicata *conclusiveness of final 4udgement+-UN. Administrative Tribunal case *'+ ?rinciple of estoppels-Tem le of Preah !ihear case *)+ ?rinciple of eFuity, 4ustice and good faith-North "ea continental shelf case# An$lo Norwe$ean Fisheries case *;+ ?rinciple of territoriality of criminal law- ".". %otus case *(+ ?rinciple of o/ligation to repair a wrong *9+ lementary considerations of humanity etc.-Corfu Channel case .oviet writer li"e #un"in etc do not envisage them as separate source of International law as they regarded as >&eneral principles of International law@ and not of any particular legal system. #heir views are lost /ecause of /rea" up of .oviet $nion. #hey were criticized /y #ana"a etc. who hold that these principles are /ased upon reason and that these principles are found in one form or the other in all human societies. (4! ?udicia$ =ecisions-and Aritin+s of ?urists

Chapter-1 Nature, =efinition and Scope of Internationa$ Law -=efinition of Internationa$ Law #he words >International 0aw@ was first used /y (entha' in 1182. International law is what that regulates the relations among the states. >?u/lic International 0aw@ has come to us from urope. -Oppenhei'->International law or 0aw of %ations is the name of for the /ody of customary and conventional rules which are considered legally /inding /y civilized states in their intercourse with each other.@ #his definition /ecame o/solete and it was criticized on the following groundsE*1+ #he definition ta"es into accounts the states only. Dut today international organizations and institutions are also regarded as su/4ects of international law. *2+ International law also provides certain rights and duties to individuals. *6+ ,e tal"ed a/out only the >civilized states@ which is also criticized. #he 7estern used to call the -hristian states as civilized states. It is to /e noted that at present there are 1(' mem/ers of $% which are -hristian and no--hristians states. *2+ #he words >Dody of rules@ states that International law is fi5ed. Dut it is not so /ecause the International law is changing with the passage of time, circumstances and necessities of situations. *'+ ,e said that International 0aw is derived from customs and treaties which is also not correct /ecause as per I-9, the &eneral ?rinciples of law recognized /y civilized nations are also the source of law while deciding the International dispute. -Oppenhei'-gave a newer definition of International 0aw >International law is the /ody of rules which are legally /inding on states in their intercourse with each other@. #hese rules govern the states. ,e stated that not only states /ut individuals and international organizations may /e the su/4ects of rights conferred and duties imposed /y Internantional law. -Star>e->International law may /e defined as that /ody of law which is composed for its greater part of the principles and rules of conduct which states feel themselves /ound to o/serve. !nd, therefore, do commonly o/serve in their relations with each other. #he definition of sta"e reveals the changing character of International law and reflects the present position. -onclusion- 1n the /asis of a/ove definitions we may conclude that >International law is constantly evolving /ody of norms that are commonly o/served /y the mem/ers of International community in their relation with one another. #hese norms confer rights and impose o/ligations upon states and, to a lesser e5tent, upon international organizations and individuals. !/ove views reflect /oth old and new version of International law. 1ld e5plain it as a system regulating the rights and duties of states and that is why it is called the >0aw of %ations@. #he %ew or modern e5plains that International law is a changing and e5panding code. -=e.e$op'ent of Internationa$ $aw -International has /een into a change since its inception. .ometimes it does not "eep up pace with the changing circumstances and sometimes it warns people from the forthcoming danger. g.- $% ? warned the people of the increase in earth=s temperature and came up with the >&lo/al 7arming@ concept. -#he view of 1ld International law was that it is >0aw governing the relations of sovereign states with each other. Dut with the change in time the new International law deals with social interdependence@. -!t present there is hardly any state which in the interest of the international community has not accepted restriction on its li/erty of action. - 5panding horizons of science, technology, trade, commerce etc has made the states to wor" in cooperation. #he ,actors that $ar+e$5 contri<ute to the de.e$op'ent of Internationa$ $aw areB- (Su<Cects of internationa$ $aw! *1+ Internationa$ Or+ani:ations-#he setup of various organizations viz. $%1, I-9, I01 contri/ute to the development of International law. #hey deal with social, economic, political, cultural pro/lems of the states. g-7,1 has contri/uted to the International .anitary Gegulations, I-9 *International -ourt of 9ustice+ related to 4ustice. 10

*2+ Indi.idua$s-are now regarded as the su/4ects of International law. #he individuals can file petitions in violation of their rights /efore some international forums. *6+ Codification of Internationa$ $aw- arlier the rules and regulations were not codified and were uncertain and am/iguous. %ow the rules and regulations have /een codified and applied uniformly. *2+ &u$ti$atera$ #reaties-$nli"e earlier times, now a days the conclusion of the treaties are considered as rules of International law. ven the space, moon and deep sea are governed in accordance with the rules framed through multilateral treaties. -Crisis in Internationa$ Law *1+ International law has to "eep pace with the changing times and circumstances which is very difficult. *2+ !ccording to Drierly, it focuses more on sta/ilizing rather than growth of international society. It maintain present values rather than to create new ones. *6+ !ppearance of new states with different cultural /ac"grounds, level of development is also a pro/lem. *2+ !gendas li"e %uclear weapons, !ID., environmental control and various su/4ects are emerging and International law has to deal with it. *'+ #reaties concluded ma"es new rules /ut it is a cum/ersome process as it depends upon the consent of the states with different ideologies, cultures, religions that create pro/lem for international law in the law ma"ing. India=s position- India has helped in many spheres for the progressive development of International law. ,er contri/ution has /een significant in the codification of International law, environmental protection, nonalignment etc. -Nature of Internationa$ Law D-Is International 0aw true lawH *nswer-.ome say that International law is a law as it is regarded as a law 4ust li"e ordinary law of a state which are /inding on the individuals and other are contrary who hold the view that it is not a true law as it is a code of rules of conduct of moral force only. *ustin says no. ,e said that International law is not a true law. !ccording to him law is the command of the sovereign. It is a command which if not o/eyed will attract sanction. #he violation of the command is punisha/le. ,e says it is a rule of morality. ,e says there is no sovereign over the International law to enforce the rules of International law. ,e also says that even there is no e5ecutive to enforce the decision given /y the International law. !s per his view, the superior is the real sovereign. #his view of his was criticized /y 1ppenheim and .tar"e. Oppenhei'-says that International law is a true. ,e says that different states of the world do together constitute a /ody /ound together through common interest. #hey interact with eachother while they have different culture, language, legal systems etc. ,e said International law is a true law /ecause of the following reasons*a+ the rules of International law are recognized /y as law /y the different government of different states and they a/ide /y it /ecause they feel they are legally /ound to follow it */+ If any state /rea" the rule, the state never deny that they have not done it /ut rather they defend themselves and 4ustify their act. Star>e-said that if there is no legislative authority that doesn=t mean there is no law. 0aw ma"ing is new now and it is in the form of law ma"ing treaties, conventions etc.. #he authoritative agencies doesn=t regard it as a moral code and $% is /ased on legality of international law. *s per the ar+u'ents we can su' up as fo$$owsE*1+ Gules laid down /y treaties are /inding and formulating international rules is well settled /y means of treaties etc. *2+ 7hen any Fuestion arises, the states do not loo" upon moral arguments /ut they ta"e reference from treaties, precedents and opinions of specialists which proves that states do not deny the e5istence of international laws *6+ International conferences and conventions also treat international law as a true law. #he decisions given /y the I-9 is /inding upon the parties and under certain conditions these can also /e enforces. 11

*2+ International law does not lac" in sanction *'+ International law is not freFuently violated. #housand of treaties have /een concluded, /ut the instances of their violation are very few. Conc$usion- International law is a true law. !s compared to municipal law it is a wea" law /ut, it is a law. -(asis of Internationa$ $aw- #heories - #he concept of International law was first used /y &rotius. In his theory, there are three /asis of international law-0aw of reason, customs and treaties. :rom these /asis the following theories came up*1+ %aturalist theory-#hey say International law is a natural law. It is part of nature and &od made. #he Internantional law is a law related to peace and security and are necessary for human "ind, thus all the laws are parts of law of nature. #his theory was criticized. *2+ ?ositivist theory-#his theory says that only those principles are considered as laws which have /een adopted with the consent of the state. 0aw is that which e5ist in fact. It is the law which is enacted and followed the states and hence it is /inding upon them. -ustoms and treaties came into e5istence with the consent of the states. #he consent could /e tacit or e5press. #his theory is criticized as not all the laws come from treaties and customs. :urther, a treaty may /e /inding on a third state also /ecause at times they are /ound against their will /ecause of general international law. *6+ clectic theory- says /oth naturalist and positivists views are e5treme views. #here should /e a theory that gives eFual importance to /oth, would /e a correct theory. -Internationa$ $aw as a wea> $aw *1+ %o effective e5ecutive authority to enforce the rules of international law *2+ %o complete 4urisdiction and is not in a position to decide all "ind of disputes *6+ #he court acts with the consent of states *2+ -onflict /etween the municipal law and international law *'+ #reaties concluded /y the states could /e so formulates so as to favour the states involved *)+ 0ac" of .anction /ecause of which the rules are freFuently violated *;+ International law has failed many a times to maintain order and peace in the world. *(+ It is a decentralized system -Su++estions for i' internationa$ $aw*1+ ffective e5ecutive agency to enforce rules of international law *2+ ffective .anctions is some state violates it *6+ Independent 9udiciary *2+ It should change with the pace of circumstances and situations *'+ 9udicial precedents should /e applied -Sanctions in internationa$ $aw-.anction is a penalty imposed in order to enforce o/edience to a rule of law. .anctions are there in international law so as to ma"e the states to a/ide and perform their legal o/ligations. arlier times, the sanctions were in the form of war and reprisals. Dut not now these measures are unlawful. %ow, the sanction must /e lawful and they must conform to the provisions of $% -harter. .anctions may /e applied as followsE*1+ Sanctions <5 State-#he state may apply sanction with self help and in accordance with $% -harter which includes not to use force against the errant state. *2+ Co$$ecti.e sanction-1rganizations esta/lished /y states have /een empowered to ta"e collective sanctions against the erring state. *6+ 0u<$ic opinion-made the force of $8 and :rance to pull out from the .uez -anal 19'). ?u/lic opinion is the -7ffecti.eness of Sanction-#hus, international law is not without sanctions although these sanctions are not generally for the enforcement of international law. #hese are to maintain or restore peace and security which is the only part of international law.


-Ahether internationa$ $aw is the .anishin+ point of CurisprudenceE ,olland says that International law is not a law as there is neither any sovereign authority not there e5ists sanctions if its rules are violated. #here is no 4udge or ar/iter to decide the international disputes and the rules of international law are followed /y the state=s courtesy. #his view was correct at his time. Dut international law is changing, and now there are sanctions also. #he disputes are decided /y the International -ourt of 9ustice which is the 4udiciary. It can /e enforced /y the e5ternal power. #reaties are there to which states it selves get them /ind and they follow it as a rule. #hus it is incorrect to say the international law is the vanishing point of 4urisprudence. -=ifference <etween 0u<$ic and 0ri.ate Internationa$ $aw 0u<$ic Internationa$ Law 1+ ?u/lic International law is International law 2+ It deals with many states and to some e5tent with the individuals 6+ #his deals to maintain order and peace and security in the world 2+ #hese are not the rules of internal law of any state 0ri.ate Internationa$ Law 1+ It is the law of .tate 2+ It deals with the individuals of two states

6+ It is there to resolve the rules that conflict /etween municipal laws and international laws 2+ Gules of private law are part of internal law of the state '+ It is applied uniformly to all the states '+ ?rivate law differs from state to state )+ Gules are enacted /y treaties, customs and )+ Gules are enacted through legislation consent of the states


-hapter ,uman Gights ,uman Gights Day-10th Dec. *192(+ ,uman rights are those fundamental rights which every individual living in any part of the world should /e entitled to merely /y the virtue of having /een /orn a human /eing. #hey are the /asic and natural rights and they can=t /e ta"en away /y any act of governmentAlegislature. #here are essential for the development of the person. #hey are shared /y all men and women. In -=efinition -0rotection of 9u'an -i+hts under the UN (1!UN Charter- ,uman rights occupy a significant place in $% charter. #he pream/le reaffirms faith in fundamental human rights and the dignity and worth of human persons and in eFual rights of men and women. ?rotection of human rights is one of the purposes of $% *!rt 1*6+ of -harter+. !rticle 16 says it is the duty of &eneral !ssem/ly for the realization of the human rights. It is to /e noted that if any right is violated, then such violation will not /e considered essentially a matter of domestic 4urisdiction. #he &eneral assem/ly can logically discuss and consider the /reaches of human rights. If /reaches are of a grave nature so as to endanger the international peace and security, it may /e forwarded to the .ecurity -ouncil. ,owever, the $% -harter has failed to discuss the various human rights and fundamental freedoms /ut the same have /een enumerated in the su/seFuent $% instruments. ( ! Uni.ersa$ dec$aration of 9u'an -i+hts, 1948 -!dopted on 10 Dec, 192( at &eneva /y &eneral !ssem/ly. It defined certain human rights and fundamental freedoms which need to /e protected. !rticle 1-!ll human /eings are /orn free and eFual in dignity and rights. #hey should show the spirit of /rotherhood !rticle 2-%o Discrimination on the /asis of caste, creed, colour, se5, religion, language, International status of the country, political 4urisdiction !rticle 60-is Divided into -ivil and ?olitical rights and conomic, .ocial and cultural rights-ivil and ?olitical Gight to life and li/erty Gight to Fuality /efore law Gight to :reedom of movement Gight to :reedom of thought Gight to own property Gight to peaceful assem/ly conomic, .ocial and cultural Gight to social security Gight to wor", employment Gight to ducation etc. (3! Internationa$ co.enant on Ci.i$ and 0o$itica$ ri+hts, 1966-!dopted on 1) Dec, 19)) and came into force on 26 3ar, 19;). ?resently there are 120 state as parties. It specifies only civil and political rights which areEGight to life Gight to 0i/erty and security ?rohi/ition of torture or punishment ?rohi/ition of slavery Gight to freedom of thought Gight to religion Gight to peaceful assem/ly Gight to eFuality /efore law Gight to freedom of movement


(4! Internationa$ co.enant on 7cono'ic, Socia$ and Cu$tura$ -i+hts, 1966- !dopted on 6 9an, 19;). #here are 61 !rticles. #he rights mentioned in it areE- *this is the second generation which came after the advent of socialism after 20th century+ Gight to wor" freely chosen Gight to en4oyment of 4ust and favoura/le condition of wor" Gight to form and 4oin trade unions Gight to adeFuate standard of living Gight to education Gight to ta"e part in cultural life Gight to social security In 19;0, third generation rights emerged which areGight to development Gight to healthy human environment Gight to peace Gight of self determination *etc.+ -7nforce'ent of 9u'an -i+hts (UN &achiner5 and Other Con.entions! (1! UN Co''ission on 9u'an -i+hts- sta/lished /y -1.1- in :e/, 192). #here are 26 mem/ers elected for 6 years. It implements the ,uman Gights. #he main tas" is to promote, setting the standard and enforcement of the ,uman Gights. ,G- prepared drafts for $niversal Declaration of ,uman Gights and two international covenants. #he role of the commission of paramount importance. -#hey receive the complaintsApetitions for violation of human rights from any individual of any mem/er state of $%. -omplaints can /e forwarded /y the %&1s --ommission considers the petition and call for the comments of the state government concerned and ma"e recommendations. #hey also investigate the matter. -#he complaint is e5amined in private -#he commission su/mits the report to -1.1#hey collect evidences in respect of human right violations in all states. #hese reports are discussed /y the commission at pu/lic meetings in which states are reFuired to defend themselves. #here is also a commission on the status of women to promote rights of women. ( ! 0rocedure under the Co.enant *a+ the primary method for implementation of right under International covenant of -ivil and ?olitical right is >Geporting procedure@. #o chec" the implementation a committee is there >,uman Gights committee@ consisting of 1( persons some of them from the field of human rights. #he state parties su/mit periodic reports to the said committee and measure ta"en /y them to implement the ,uman rights. #he committee considers the report and discuss it in a pu/lic meeting where the states are to defend themselves. $nder this covenant, a state party may complaint against other state for the noncompliance with the covenant. #he complaint is loo"ed into the if the commission fails to give any remedy within 12 months then an adhoc committee is formed. !n amica/le settlement is tried for. #he commission=s report is not /inding. #hese are only for those who are individuals from the state parties. ---------(3! 0rocedure under the other "enera$ Con.entions on 9u'an -i+hts&enocide convention -onvention on .tatus of Gefugees -onvention on Gight of the -hild -onvention on ?olitical rights of women -onvention on eliminating all forms of discrimination against women (4! 0rocedure under Con.entions re$atin+ to Ao'en- #he convention on the liminating of all forms of discrimination against women entrusts the implementation of the right to a committee. #he state parties send a report every four years. #he commission e5amines the report and ma"e suggestions and recommendations as a report and the same is sent to -ommission on the .tatus of 7omen. #here is no provision of individual or inter-state petitions. #here is not follow up procedure on the report or any sanction if the state fails to su/mit 1'

the report. #he commission lac" any power to ta"e action in regards to complaints concerning the human right or the status of women. (5! -ecent &easures for 7nforce'ent of 9u'an -i+hts UN ,und for hu'an ri+hts UN Co''issioner for hu'an ri+hts -;ienna Aor$d Conference on 9u'an -i+hts- the conference held from 12-2' 9une, 1996 to access the progress achieved under the 192( $niversal Declaration of ,uman Gights. It was the >.econd $niversal Declaration on ,uman Gights@. It too" into consideration the $%=s concern to ma"e ,uman Gights a priority in its action worldwide. 3easures to strengthen, and monitoring the International rights were there. .ome ma4or points of Iienna Declaration are*1+ Gight to development *2+ Gight of minorities *6+ Gight of self determination *2+ &ender /ased violence and all forms of se5ual harassment and e5ploitation to /e eliminated -0rotection of 9u'an -i+hts in India (a! 9u'an -i+hts and Indian Constitution%?udiciar5-India had /ecome the party to the international covenants on ,uman Gights /y Gatifying them on 3arch 2;, 19;9 /ut it has not ratified the 1ptional ?rotocol I to the covenant on -ivil and ?olitical Gight, which allowed the individuals to petition against the state to the ,G-. .ome of the ,uman Gights have /een specifically enumerated in the Indian constitution such as Gight to life and li/erty Gight to Fuality /efore law Gight to freedom to choose and practice religion Gight to wor" Gight to eFual pay for eFual wor" *etc.+ .ome rights which are not mentioned in the Indian -onstitution /ut are recognized /y the 9udiciary areEGight to privacy Gight to shelter Gight to legal aid Gight to speedy trial If there is a conflict /etween the provision of an International convention and Indian constitution, the Indian -onstitution will prevail. (<! Le+is$ation re$atin+ to 9u'an -i+hts in India- #here are several legislations laid down /y the -onstitution which areE?rotection of civil rights -hild la/our Donded la/our 9uvenile 9ustice !ct %-3!, 1992 3-7!, 1990 Dowry ?rohi/ition !ct *etc.+ --ases*1+ ?$-0 v. $1I- ! writ petition was filed under !rticle 62 of constitution for issues relating to "illing of two persons in a fa"e encounter /y ?olice and awarding of the compensation to the family of the deceased. #he defense pleaded >.overeign immunity@. It was held that >.overeign immunity@ did not apply here. It was further held that the provisions of International covenant on -ivil and ?olitical rights e5plaining the fundamental rights are applica/le here. *2+-hairman, Gailway Doard v. -handrima Das- ! woman, foreign national was raped /y the employees of railway in Gailway yatri niwas. #he railway was held lia/le under the vicarious lia/ility and was as"ed to compensate the woman. It was also held that the >Gight to life@ is availa/le to all, including foreigners.


(c! 0rotection of 9u'an -i+hts *ct, 1993%Nationa$ 9u'an -i+hts Co''ission- #he commission if /ased on the guidelines laid down /y the $% -ommission, to chec" the independence and effectiveness of %,GI. %,G- consists of 1 -hairperson *-hief 4ustice of .-+, 1ne 9udge *.-+, 1ne *-hief 9ustice of ,-+ and 2 mem/ers having "nowledge of or practical e5perience in matters relating to ,uman Gights. #he functions of the commission areE-#o inFuire into the petition of the victim or the petition filed on the /ehalf of the victim -#o intervene any proceeding involving allegation of violation of human rights pending /2 the court with its permission -#o visit any 4ailAinstitution to study living condition of the inmates and ma"e recommendations -3a"ing recommendation to improve the safeguard of ,uman rights -.tudy treaties and other international instruments on human Gights and ma"e recommendations for effective implementation - ncourage the efforts of %&1s -Gesearch in the field of ,uman Gights 3ain tas" of %,G- is to ma"e reports to the government on human rights violations in a particular situation. #he commission is reFuired to su/mit its report annually to the central and state government. #he complaints can /e files to the %,G- /y the individual himself. #he -ommission does not en4oy the power /eyond ma"ing the reports after investigation of the case situation. It can ta"e no action. It can only recommend and the government may or may not accept its recommendations. #here is no special remedy provided /y the commission other than what has already /een provided under the constitution /y way of fundamental rights. #he only /enefit the victim gets is that if it is proved that his rights have /een violated, the commission can recommend the case to the court for initiating the proceedings. -Conc$udin+ re'ar>s on 9u'an -i+hts