Professional Documents
Culture Documents
COU
URSE – I
“
“PUBL
LIC IN
NTER
RNATIIONA
AL LAW &
HUUMAN
N RIG
GHTS””
(CODE : (BL6601)
Unit I: Intern
national Law – Definition, Naature and historical
h d
developmennt of
Intern
national Law,
L Sourcces, Treatisse, Relatioon betweenn Int. Law and
Muniicipal Laww, Basis of Int. Law. Subjects
S off Int. Law.
Unit IV
V: Uniteed Nationss – Constittution, Powwer, functiion of Uniited Nationns &
Humman Right00 Universsal Declarration on Human Rights, 1948,
Intern
national Covenant
C on Hum man Righhts, Humaan Rightss &
Terro
orism, International Human
H Rigght Commiission.
Unit V:: Humman Rightss in Indiaa, Protectioon of Huuman Righhts Act 1993,
Impleementationn of Human Rights through judicialj prrocess, rolle of
courtts Supremee Courts, High
H Courtts, and other Statutarry Commisssion
–Humman Righhts, Wom men’s Minnority annd Backw ward class –
Consstitution, Poowers, Funnctions andd Procedurre.
1
Book Recommended :
2
INTRODUCTION
Law is that element which binds the members of the community together in
their adherence to recognised values and standards. It is both permissive in
allowing individuals to establish their own legal relations with rights and duties, as
in the creation of contracts, and coercive, as it punishes those who infringe its
regulations. Law consists of a series of rules regulating behaviour, and reflecting,
to some extent, the ideas and preoccupations of the society within which it
functions. And so it is with what is termed international law, with the important
difference being that the principal subjects of interactional law are nation-states,
not individual citizens. However, this particular notion has changed due to the
dynamics and myriad changes in the realm of international law.
Public international law covers relations between states in all their myriad
forms, from war to satellites, and regulates the operations of the many international
institutions. It may be universal or general, in which case the stipulated rules bind
all the states (or practically all depending upon the nature of the rule), or regional,
whereby a group of states linked geographically or ideologically may recognise
special rules applying only to them, for example, the practice of diplomatic asylum
that has developed to its greatest extent in Latin America. The rules of
international law must be distinguished from what is called international comity, or
practices such as saluting the flags of foreign warships at sea, which are
implemented solely through courtesy and are not regarded as legally binding.
4
The study of law of peace entails the characteristics of the international legal
system and the historical and theoretical background necessary to a proper
appreciation of the part to be played by the law in international realm.
1) This definition takes into account the relations of 'states' only. But it is
now generally recognized that not only states but international
organisations and institutions also have rights and duties under
international law. The scope of international law has widened.
2) The use of the term 'civilized states' by Oppenheim is also severely
criticised. In not too distant past, the western states regarded only the
'Christian States' as civilized states. For e.g., although China has 5000
years old culture, she was not included in the group of civilized nations.
5
“International Law is the body of rules which are legally binding on States
in their intercourse with each other. These rules are primarily those which govern
the relations of States,' but States are not the only subjects of international law.
International organisations and to some extent, also individuals may be subject of
rights conferred and duties imposed by International law ... But this definition is
silent regarding 'general principle of law' recognized by civilized nation.
6
This definition does not stand correct for al1 times to come, as and if an entity
not enumerated under it ever comes within the scope of international law with the
passage of time, the definition would again be subjected to criticism.
7
S.S. Lotus case: In this case, international law was defined as follows,
“International law governs relations between independent states. The rules of law
binding upon states therefore emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing
independent communities or with a view of the achievement of common aims.
Restriction 'upon the independence of states cannot therefore be presumed.”
8
West Rand Central Gold Mining Ltd. Co. v. King: In this case the Court
observed, International Law may be defined as "the form of the rules accepted by
civilized States as determining their conduct towards each other and towards each
other's subjects.
9
with one another. These non11S confer rights and impose obligation upon states
and, to a lesser extent upon international organizations and individuals.
11
To sum up, there are many factors working towards the creation of
international law-technological developments, economic, political, sociological,
and stategir considerations, humanitarian impulses, interdependence of the world
and above all the interest of academicians. However there are still wide gaps in
international law but the international communities is making all possible
endeavours to fill these gaps.
Public international law establishes the framework and the criteria for
identifying states as the principal actors in the international legal system. As the
existence of a state presupposes central authority and jurisdiction over territory,
international law deals with the acquisition of territory, state immunity and the
legal responsibility of states in their conduct with each other. International law is
similarly concerned with the treatment of individuals within state boundaries.
There is thus, a comprehensive regime dealing with group rights, the treatment of
aliens, the rights of refugees, international crimes, rationality problems, and human
12
the United Nations, for example, created a means for the world community to
enforce international law upon members that violate its charter through the
Security Council.
Traditionally, States and the Holy Sea were the sole subjects of international
law. With the proliferation of international organizations over the last century, they
have in some cases been recognized as relevant parties as well. Recent
interpretations of international human rights law, international humanitarian law,
and international trade law have been marked by the inclusion of 'Corporations,
and even certain individuals.
14
Austin's View
John Austin is regarded as one of the foremost critic of international law.
15
16
distinguishable from rule of law. Hobbes and Pufendorf have also questioned the
true legal character of international law.
Conclusion
International law has deficiencies and limitations. Its violations are more
frequent than the violations of many domestic laws. Nevertheless, the deficiencies
of international law are not critical. Instead of saying that the cup of international
law is half empty, it must be stressed that it is half full. Despite inadequacies in its
legislative method, international law has grown, developed and changed. If
international law is difficult to make, yet it is made; if its growth is slow, yet it
grows. If there is no judiciary as effective as in some developed national systems,
there is an International Court of Justice whose judgements and opinions, while
few, are respected. The inadequacies of the international judicial system are in
some measure reduced by other bodies; international disputes are resolved and law
is developed through a network of arbitrations by continuing or ad hoc tribunals.
De jure Belli ac Pacis Libri Tres (“Three Books on the Law of War and Peace”,
1625), Grotius claimed that nations as well as persons ought to be governed by
universal principle based on morality and divine justice. Much of Grotius' content
drew from the Bible and from classical history Gust war theory of Augustine of
Hippo). Drawing also from domestic contract law, he also notes that relations
between polities were governed by jus gentium, the law of peoples, which had
been) established by the consent of the community of nations.
The central doctrine in his work was the acceptance of the ‘law of nature’ as
an Independent source of rules of the law of nations, apart from custom and
treaties. The Grotian law of nature was founded primarily on dictates of reason and
on the rational nature of men as social human beings. Grotius distinguished
between Jus Gentium (i.e., the customary law of nations which he called Jus
voluntarium) and Jus natural (i.e., law of nature concerning the international
relations of the States). .
Bynkershoek was the exponent who was of the view that the basis of International
Law is the consent of the States. The consent may be given by States either
expressly or impliedly. While express consent may be given by the conclusion of
treaties or the acknowledged concurrence of governments, consent may be implied
in the case of established usage, i.e., custom. Thus, custom and treaties by which
consent of a State is achieved are the basis of International Law. Unless and until a
State has given its consent to a particular rule of International Law it cannot be
regarded as binding on it. Martens and Anzilotti also share the above view.
The consent theory has been criticised by many writers on several grounds.
Firstly, all the rules of International Law are not derived from customs and treaties.
Some of them derive from the general principles of law recognised by civilized
nations. International Court of Justice has equivocally recognised it under Article
38(I)(c) of the Statute. Secondly, a State remains bound by certain rules of
International Law even if it has not given its consent. According to Article 36 of
the Vienna Convention on the Law of Treaties a treaty may be binding on third
States as well. Their assent shall be presumed as long as the contrary is not
indicated. Thirdly, States in some cases are bound by general International Law
even against their will. The above criticisms show that the consent theory as
propounded by positivists is not totally correct.
(d) Eclectic theory: The views taken by the naturalists and positivists are
extreme views. The jurists belonging to eclectic school have preferred to adopt a
middle course in the positivist-naturalist debate. Eclectics such as Vattel accepted
the simultaneous existence of two tiers of law-one at the natural level and another
at the positivist level. Thus, according to them International Law derive from both
natural law as well as voluntary law (laws made with the consent of the States).
19
This view appears to be appropriate than those taken by the jurists of naturalist and
positivist Schools, and therefore it may be concluded that International Law is
based solely neither on the law of nature nor on the consent of the States.
International Law is a Weak Law
International law is said to be weak law. Its rules are not as effective as rules
of municipal law. Thus the weakness of international law become evident when we
compare it with Municipal law. Following are some of the weaknesses of
international law:-
(2) There is no court in the true sense which could decide the legal disputes
of all the States. Although, International Court of Justice which is commonly
known by the name of ‘World Court’ exists, it does not have jurisdiction to decide
the disputes of all the States since the Court acts with the consent of the States
only.
(3) Enforcement measures which are available under the system are not
effective and when used, have been used despairingly.
20
Although the Charter of the United nations has reduced the area of self-help,
International Law is far behind from being quite effective.
(8) As compared to rules of State law, the rules of International Law suffer
from greater uncertainly.
(9) International Law has, in many cases, failed to maintain order and peace
in the world.
The General Assembly shall institute studies and make recommendations for
the purpose of encouraging the progressive development of international 'law and
its condification, sometimes, known as the committee of Seventeen’. On 21st
22
Rules of legal system are binding upon the subjects to whom it is addressed.
If rules are violated or obligations contained therein are not observed by the
subjects, enacted specific penalty which is imposed in order to enforce obedience
to a law is called sanction. Penalty imposed under international legal system is
referred to international sanction. International Law has been regarded as a legal
system in the true sense. The governments of the different States are of the opinion
that its rules are legally binding on them. A question arises as to ~hat junctions
International Law provides to those States which violate the rules.
Sanctions in the modem International Law are quite different from those
which existed in the classical International Law. The latter provided the sanction
generally in the form of war and reprisals. War waged by its own armed forces was
the supreme sanction of international Law. However, at present, war as well as
reprisals in most of the cases have become unlawful. Sanctions applied by the
23
aggrieved' State are required to be lawful and they must conform to the provisions
of the U.N. Charter. Sanctions which are provided in International Law at present
may be applied by the States individually or collectively by international
organisations.
Holland holds this view, as in his view, these rules are followed by courtesy
and hence they should not be kept under category of law, they lack sanction which
is a must in municipal law. This option is not followed since, all recognise the
presence of certain sanctions although they may be weak e.g. under Article 59
decisions of ICJ are binding on the parties to the dispute. At the same time, public
opinion is the ultimate sanction behind international law and for that matter any
law. Thus it is wrong to say that there are no sanction behind international law.
R. W.M. Dias remarked, “the principal reasons why states obey international
law appears to be fear and self interest”. It cannot be denied that absence of
effective implementation machinery is greatest shortcoming of international law.
This is because the truism which holds good for the individuals cannot be same for
states.
Holland regards it an end part since there is no judge or arbiter to decide
international disputes and that the rules of international law are followed by states
by courtesy. But this view is far from truth. Earlier there was a Permanent Court of
Justice and now the International Court of Justice has helped in propounding the
international law even though the dispensation of justice is not to the level of
municipal courts but yet it possesses a binding character. 47 states have conferred
themselves to the compulsory jurisdiction of the International Court of Justice.
24
In North Sea Continental Shelf case, the court observed "whatever the
legal reasonings of a court of justice, its decisions must by definitions be just and
therefore in that sense equitable".
relation of States. But since the international law now regulates the relations of
international community which include individuals as well, the old definition
becomes obsolete.
As per Pitt Cobbet “Private International Law decides law applicable in the
issue in dispute involving more than one nations and determine the court which
will have jurisdiction to decide the issue. It is now popularly called as conflict of
laws.”
Differences
1. Public International Law for its major part deals with states and to a
lesser extent with the individuals but private international law deals
with individuals.
2. Private International Law is a part of municipal law but so is not
always the case with Public International Law. Only customary rules
of international law are considered to be part of the domestic law of a
state.
3. Public International Law is same for all states where as Private
International Law may be different in different states.
4. Private International Law determine as to which law will apply in a
case having a foreign element. There is no such element in the field of
Public International Law. Public International Law is confronted with
different type of problems whenever there is a dispute between its
internal law of the state, the problem arises as to which law shall
prevail.
5. Private International Law also determine the court which will have
jurisdiction to decide the questions in issue which is not so in Public
International Law.
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6. Rights arising out of Public International Law are absolute and their
breach constitutes a causes belli (whatever involves or justifies was)
but Private International Law doesn't confer absolute rights.
7. Public International Law comprises mainly of rules recognised by
states in their relation with each other and mostly arises out of
international custom and treaties. On the other hand rules of Private
International Law are framed by the legislature of a state and
recognised and developed by state courts.
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The term 'subjects of international law' refers to entities endowed with legal
personality, capable of exercising certain rights and duties on- their own account
under the international legal system.
Percy E. Corbett in his book, "The Growth of World Law" has made the
remark that, "The triumph of positivism in the late eighteenth century made the
individual an object, not a subject of international law. This law more and more
emphasised the separateness of states, making their sovereignty, indeed its basic
principles."
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Criticism
This theory has been subjected to severe criticism by jurists. It does not tell
about the certain laws bestowed upon individual and certain international offences
for which individual may be punished. Right conferred upon slaves and
punishment to pirates arc good examples where individual is directly a subject of
international law.
Prof. Oppenheim in the eighth edition of his book “International Law, Vol.
I” pointed out that “Since the law of nations is primarily a law between states,
states arc to the extent, the only subject of international law”.
But in the ninth edition of his book editors changed this view. According to
the new opinion.
“States are primarily, but not exclusively, the subject of international law.
To the extent that bodies other than states directly possess some rights, power and
duties in international law they can be regarded as subjects of international law,
possessing international personality”. Further, international law is no longer if ever
was, concerned solely with states. Many of its rules are directly concerned with
regulating the position and activities of individuals, and many more indirectly
effect them.
In Reparation for Injuries Suffered in the Services of the UN, the ICJ
held "that the United Nations has the capacity to bring an international claim
against the state for obtaining reparation when an agent of the U.N. suffers injury
in the performance of his duties in circumstances involving the responsibility of
states". The "court by implication rejected the proposition that only states are
subject of international law".
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(2) Only Individuals are the Subjects of International Law3 Contrary to the
above theory, some jurists have asserted that the ultimate analysis of international
law will show that only individuals are the subjects of international law.
Prof. Kelsen, the chief exponent of this theory analysed the concept of State
and held the view that it is a technical legal concept which includes the rules of law
applicable on the persons living in a definite territory. The difference between
international law and state law dissolves, both laws apply on the individuals and
they are for the individuals. While the former is binding on them directly, the latter
is binding indirectly, that is, through states.
Prof. Westlake also remarked that, "The duties and rights of the States are
only the duties and rights of men who compose them."
There are cases where international law 4 binds individuals immediately and
not merely mediately in Kelsen's sense. It is a distortion of facts to say that slaves
and pirates jure gentium are not subjects, but objects of international law. For
instance, the rule of international law by which states are authorised to attack,
seize, and punish pirates jure gentium, is a rule 'imposing a legal duty directly upon
individuals and establishing individual responsibility'.
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In practice, international law for its major part still deals with the rights and
duties of States. The correct position therefore is that besides states, individuals,
public international organisations and some non-state entities are also the subjects
of international law.
These and other developments of recent years appear to show that the theory
that states are the excl usive subjects of international law cannot be accepted today
as accurate in all respect, although it may be a good working generalization for
international lawyers. The use of the State as a medium and screen for the
application of international law cannot now do justice to all the far reaching aims
of modern sys-:
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detained on 30 December 1986 pending his extradition to the United States to face
murder charges in Virginia.
Soering challenged the warrant before the European Commission and later
before the European Court of Human Rights alleging that his extradition to United
States would be in breach of British obligation under Article 3 of the European
Convention on Human Rights: "No one shall be subjected to torture or to inhuman
or degrading treatment or punishment". Virginia law provided death for murder
and the average time taken between trial and execution was six to eight years.
Pending execution the treatment meted out in jail was sub-human-lodged in small
cell, chained around waist etc. In contrast German law provided for life
imprisonment for murder. Soering submitted a declaration to the European Court
conveying no objection on deportation to Germany; should the United Kingdom
decide on his extradition.
The net effect of these efforts at the United Nations and regional levels in
the area of human rights is that certain fundamental rights of the individual human
being have come to be recognised at international law and the states are under a
corresponding duty to ensure enjoyment of these rights to one and all within their
respective jurisdictions. True, the individual has not yet the procedural capacity to
vindicate his rights in international tribunals, the fact that in Western Europe the
Commission does it on his behalf find an analogy in municipal jurisdictions where
infants can sue only through a next friend, and it does not militate against their
statute subjects of municipal law.
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2) Harmful acts of individuals: For the amicable and cordial relation of the
states it is necessary that the individuals should not be involved in such act
as may prove detrimental for the good relations among states. Therefore,
under international law there are several such provisions which provide that
the persons who commit such crimes may be punished.
6) Under some treaties individuals have been conferred upon some rights
whereby they can claim compensation or damages against the states.
7) The United Nations Charter has also given a place of importance to the
rights of individuals.
8) Besides the above-mentioned examples, some very important steps are being
taken in respect of the rights of individuals under international law.
International law now confers upon the individuals certain rights not only
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Conclusion
In view of the above developments it would be presumptuous to say that
States arc the exclusive subjects of international law. It also does not connote that
States can lay the claim to their being the exclusive subjects of international law, as
articulated by Lautherpacht:
'It is true that international law is made for states and not states for
international law, but it is true only in the sense that the state is made for human
beings and not human beings for state'.
It can, however, not be denied that still a major portion of international law
deals with rights and duties of states. As far as an individual as subject of
international law is concerned, while a lot of progress has lately been made in this
direction as compared to the position in traditional international law, there is much
truth in what Prof. Green has to say:
36
'Despite all the idealism in the Charter of the United Nations, there appears
to be little doubt that the individual has still a long furrow to plough before he
receives recognition of his status under international law'.
37
International Law is habitually treated as law and that certain part of what is at
present acknowledged to be law is indistinguishable in character from
Austin holds that International Law is no law as it did not emanate from a
law lt1ving authority and had no sanction behind it. He observes that the law
obtaining between nations is not a positive law for every positive law is set by a
given overeign to a person or persons in a state of subjection to its author. The law
obtaining between nations is, according to him, only law set by general opinion
und the duties which it imposes are enforced by moral sanction. There is no
compelling sanction derived from superior authority inasmuch as there is no
Sovereign power over and above the disputant States. He described International
Iaw as "positive international morality" consisting of "opinions or sentiments
current among nations generally".
38
No doubt, International Law is less imperative and less explicit than the
State law but nevertheless it is law inasmuch as it is enforced partly by the
conviction that it is good and partly by those subtle influences which make it
difficult for a man or body of men to act in defiance of strongly held views of those
with whom they associate. Compulsion alone is not the sanction behind law. It b
enforced by the consideration of justice as much as of force. The element of fear is
also not absent. Nations are afraid that a gross violation of international rules of
conduct might make the nemesis fall on them. Like ordinary law International Law
is also sometimes evaded but that does not mean that the. law does not exist. As
Mr. Roosevelt said in his last Annual Message to Congress; "It would be
preposterous to think that international relations are governed exclusively by force,
and that statesmen are not moved by considerations of right and law and justice."
In the words of Brierly, it is not the existence of a police force that makes a system
of law strong and respected, but that strength of the law that makes it possible for a
police force to be organised.
Sir Henry Maine while criticising the Austinian conception of law observes
that men do sometimes obey rules for fear of punishment, but compared with the
mass of men in each community this class is but small, probably it is confirm to
what are called the criminal classes. The largest number of rules which men obey
are obeyed unconsciously from a mere habit of mind.
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Unit – I
Q.1. What do you mean by International Law? Is International Law is true law? (or
law in proper sense)
Q.3. Enumerate the various sources of International law and assess their comparative
importance.
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