1.History, definition & Nature of IL\WXPERTSMV Paper 1 | International Law @ It is impossible to fix a precise date or period in history to mark the beginning of International Law as it predates recorded history. Critically examine the history, nature, scope and relevance of International Law in Contemporary International Society. [2015 UPSC 5(A)] WHY ? THIS TOPIC HAS TO BE WRITTEN IN 10 MARKS!PERTSMV Paper 1 | International Law @ UPSC 2022 : Keeping in view the growth of International Law in the contemporary era, do you think the classical definition of International Law has become redundant ? (10m) Earlier- ¢ 2018 UPSC = Distinction Traditional V. Modern ¢ 2010 UPSC = Traditional Definition cannot stand last 6 Decades development.Structure of the Answer LAWxPERTSMV REDUNDANT 1) 1905-> 1992 2) ICU - Reparation case (1949) 3) IHL @ IHRL, 4) UN + WHO + IMF + WB 5) Ar.71 UN Charter, NGOs, Terrorist Groups etc. MODERN 1) Oppeheim (R. Jennings + Arthur Watts) 2) Starke SCOPE CLASSICAL INCREASING! CONCLUSION Oppenheim 1) True | Classical is 2) Briely Mindivicuey redundant 3) Hackworth eee 2) Time -is reason ee 3) Non-state entities 5) $$ Lotus CasePaper 1 | Se DA _LAWXPERTSMV BieCelienme rae ar CuntPaper 1 | International Law SM MODERN DE! [NITION OF IL 1) International Institutions/Organs er 2) Individuals 3) Non-state entities. —=~ DEFINITION OF INTERNATIONAL LAW LAWXPERTSMV OPPENHEIM [1905] Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by the civilized states in their intercourse with each other. PRESENTED BY LAWXPERTSMV TEAMx DEFINITION OF INTERNATIONAL LAW LAWXPERTSMV The Law of Nations or International Law may be BRIERLY. defined as the body of rules and principles of action which are binding upon civilized States in their relations with one another “International Law or the Law of Nations is the name of a body of rules, which. according to the usual definition—regulate the conduct of the States in their intercourse with one another." KELSEN PRESENTED BY LAWXPERTSMV TEAM* DEFINITION OF IL LAWXPERTSMV HACKWORTH International Law consists of a body of rules governing the relations between States. It is a system of jurisprudence which, for the most part, has evolved out of the experiences and the necessities of situations that have arisen from time to time." PRESENTED BY LAWXPERTSMV TEAMTRADITIONAL VIEW LAWXPERTSMV 1) IL - relations bt. states ONLY. 2) States are ONLY subjects. 3) States - ONLY - have R8s + Obligations. 4) Supported by Oppeheim (1902), Hall, Brierly, Hackworth, Hall, Westlake etc. 5) SS Lotus Case PCY - IL - governs rel. bt independent states. Rules - emanate from their own FREE WILL as expressed in conventions/usages. PRESENTED BY LAWXPERTSMV TEAMRACING TO MODERN VIEW LAWXPERTSMV 1) LON - 1920 2) Nuremberg War Crimes Tribunal - 1946 3) UDHR - 1948 opinion on matters ari resentative in Jerusalem - stated: ... [the United Nations Organisation] is a Subject of international law and capable of possessing international and... has capacity to maintain its rights by bringing international claims.It was becoming clear that it was no longer adequate to discuss international law in terms of a system of rules governing exclusively the relations between states. PRESENTED BY LAWXPERTSMV TEAM=~ DEFINITION OF INTERNATIONAL LAW LAWXPERTSMV OPPENHEIM (ROBERT JENNIGS + ARTHUR WATTS) [1992] 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 relation of States, but States are not the only subjects of International Law_International organisations, and to some extent, also individuals may be subjects of rights conferred and duties imposed by international law." Further, “not only individuals but also certain territorial or political units other than States to a limited extent, be directly the subject of rights and duties under International Law.” PRESENTED BY LAWXPERTSMV TEAM* DEFINITION OF INTERNATIONAL LAW LAWXPERTSMV JG STARKE “International Law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and includes also (a) The rules of law relating to the functioning of international institutions or orgal ns, their relations with each other, and their relations with States and individuals; and (b) Certain rules of law relating to individuals and non-State entities so far as the rights or duties of such individuals are the concern of the international community.” PRESENTED BY LAWXPERTSMV TEAM* SCOPE OF INTERNATIONAL LAW LAWXPERTSMV * Scope of IL is ever-expanding. * MALCOLM SHAH: The scope of international law today is immense. From the regulation of space expeditions to the question of the division of the ocean floor, and from the protection of human rights to the management of the international financial system, its involvement has spread out from the primary concern with the preservation of peace, to embrace all the interests of contemporary international life. PRESENTED BY LAWXPERTSMV TEAM=~ SCOPE OF INTERNATIONAL LAW LAWXPERTSMV STATE: International law is primarily concerned with the rights, duties and interests of States. (a) permanent population; (b) defined territory; (c) a government; and (d) capacity to enter into relations with other States. -International Law is concerned with nationality, extradition, buman rights, use of sea, protection of the environment, outer-space, and the security of nations. & for the conduct of international trade. PRESENTED BY LAWXPERTSMV TEAM=~ SCOPE OF INTERNATIONAL LAW LAWXPERTSMV Discuss the position of INDIVIDUAL. viscust posi ; TRADITIONAL - NO! “individual” in international MODERN - YES. : law. UPSC 2003. Treaties concluded after the First World War, Treaty of Versailles, 1919 (Art. 297 and 304) and the Polish- German Convention of 1922 relating to Upper Silesin, the individual claimants were allowed access to various Mixed Arbitral Tribunals. Extreme - > Kelsen consider the “individuals alone as subjects of international law”. PRESENTED BY LAWXPERTSMV TEAM* SCOPE OF INTERNATIONAL LAW LAWXPERTSMV The Nuremberg and Tokyo Tribunals setup by the victorious Allies after the close of the Second World War were a vital in making Individual as a part of International law. NT HELD : Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes the provisions of international law be enforced”. PRESENTED BY LAWXPERTSMV TEAM& = SCOPE OF INTERNATIONAL LAW LAWXPERTSMV * 1948 Genocide Convention provided for the punishment of offenders . * Universal Declaration of Human Rights - 1948 - RR for individuals. © ECHR - ‘Individuals may appear before certain international tribunals. 3: International organisations have now been accepted as possessing rights and duties of their own and a distinctive legal personality. PRESENTED BY LAWXPERTSMV TEAM& = SCOPE OF INTERNATIONAL LAW LAWXPERTSMV * 1948 Genocide Convention provided for the punishment of offenders . * Universal Declaration of Human Rights - 1948 - HR for individuals. © ECHR - ‘Individuals may appear before certain international tribunals. PRESENTED BY LAWXPERTSMV TEAMNATURE OF IL LAWXPERTSMV. Discuss the nature and basis of International Law. UPSC 2016. Question 5(a) “International law has progressed by leaps and bounds; yet the theoretical controversy about the nature of international law is far, from over.” Comment. UPSC 2001. Question 5(a) PRESENTED BY LAWXPERTSMV TEAM=~ NATURE OF INTERNATIONAL LAW LAWXPERTSMV TWO APPROACHES 1= ILis NOT true law - consist of rules of conduct - MORAL FORCE ONLY. 2 = ILis true law - consist of rules of conduct -LEGAL/BINDING FORCE. PRESENTED BY LAWXPERTSMV TEAM=~ ANALYTICAL VIEW LAWxPERTSMV 1) Nature of IL - Moral/legal - depends of on your view of 'LAW' [Edward Collins/Lawrence] 2) Law is violated - ¢ Executive branch - Enforces it - ¢ Judicial branch - adjudicates -[If there is proper law passed by Legislature] 8) IL - No such thing. 4) IL - binding force - based on consent of the states [Express/Implied force] PRESENTED BY LAWXPERTSMV TEAM=~ ANALYTICAL VIEW LAWxPERTSMV 5) Raison d’étre of IL is that relations between States should be governed by common principles and rules. ¢ Immunity of diplomats ¢ Freedom of High Seas PRESENTED BY LAWXPERTSMV TEAM=~ 1 APPROACH LAWXPERTSMV 1) Hobbes, Pufendorf and Austin - law ‘properly so called' is a command of the sovereign, as there is no sovereign in International level, they deny legal character of International Law. 2) EXPONENTS : Holland, Jermy, Bentham, Hethro Brown, Lord Salisbury. 3) Municipal law - Austin & ors - determinate superior political authority - > compel observance of law. Failure --> Sanction PRESENTED BY LAWXPERTSMV TEAM1 APPROACH LAWXPERTSMV 4) Sanction element - absent in IL. 5) ML - Effective - 3 Branches - No such thing in IL. 6) AUSTIN: ¢ “International Law is not true law, but a Code of rules of conduct of moral force only” « 2 Elements of Law - (1) Command of sovereign legis. auth, (2) Enforcement by sov. auth. © Therefore - IL is no TRUE law - JUST a POSITIVE MORALITY. PRESENTED BY LAWXPERTSMV TEAM=m ~*~ 1 APPROACH LAWXPERTSMV Do you agree with the view that International law is merely a positive morality ? Discuss the nature and scope of International law. Asked in UPSC 2020. Question 6(c) / UPSC 2006. PRESENTED BY LAWXPERTSMV TEAMm ~*~ 1 APPROACH LAWXPERTSMV. ¢ Law v. Morality © Binding/Not-binding (ethical) + enforcing authority + > heteronomous v. autonomous ° Application is determined by sovereign v. self. PRESENTED BY LAWXPERTSMV TEAM1 APPROACH LAWXPERTSMV "International Law is the vanishing point of Jurisprudence." Explain. Asked in UPSC 2019. Question 5(a) [Compulsory] “International Law is defined as ‘Vanishing point of Jurisprudence’.” (Holland). Examine this viewpoint with reference to the nature of International Law. Asked in UPSC 2007. Question 5(a) [Compulsory] PRESENTED BY LAWXPERTSMV TEAM=~ 1 APPROACH LAWXPERTSMV HOLLAND International Law is the vanishing point of jurisprudence, since it lacks any arbiter of disputed questions, save public opinion, beyond and above the disputed parties themselves, and since, in proportion as it tends to become assimilated to true law by the aggregation of States into a larger society, it ceases to be itself, and is transmitted into the public law of a federal Government PRESENTED BY LAWXPERTSMV TEAM1 APPROACH LAWXPERTSMV 1) IL lacks sovereign/powerful arbiter [above the parties] | Without arbiter or authority --> it just becomes MORAL code of nations --> vanishing point of Jurisprudence 2) Holland - IL - law as courtesy. 38) True test of law = it must be obeyed; if not obeyed, there is sanction (punishment). ¢ This is absent in IL. PRESENTED BY LAWXPERTSMV TEAM1 APPROACH LAWXPERTSMV CRITICISM. ¢ Reality is not morality- states conduct indicates - formulation of claims, demands, and the acknowledgment of rights and obligation. ¢ Rules of IL - exist - in moral plane - rather because of convenience or necessity. ¢ Offender of IL rules--> Sanctions/Retaliation/Compensation/ UNSC Collective self-defences, ICC, ICJ etc.. PRESENTED BY LAWXPERTSMV TEAM1 APPROACH LAWXPERTSMV * No arbiter - superior - to subjects. © but IntLlegal system had court system - = PCy = International Military Tribunal 1945 - Nuremberg. 21 War criminals of germany. “IC. * Non-Existence of Police force = make a law - as moral code. ¢ Element of fear is always there in IL. [Nuclear weapons] PRESENTED BY LAWXPERTSMV TEAM2 APPROACH LAWXPERTSMV. Exponents : ¢ Oppenheim, Lawrence, Starke, Salmond, Hall Savigny, Maine. ¢ OPPENHEIM: ILis True law = Recognized. as law in practice/ Govt. of diff. states. = Breaking of IL - does not mean - denial of its existence - rather it is an way to interpretation - by justifying their conduct within IL. [Compare with ML] PRESENTED BY LAWXPERTSMV TEAM2 APPROACH LAWXPERTSMV. > Starke - ° In history - many communities had - a system of law - binding in nature- used to exist - regardless of formal legis. auth. Bulk of international conventions - indicate - availability of rules, which are binding - thou' not from sovereign pol. auth. Legal questions/disputes in international law - not replied with MORAL arguments - rather with Treaties, conventions, customs etc..& History of IL 0 * 200 BC MESOPOTAMIA - LAGASH & UMMA - Boundary T « RAMESES II OF EGYPT & KING OF 4 HITTITIES - Peace T. aS * KADESH (DAMASCUS) - Defence Alliance 8 Termination of aggression © ANCIENT ISRAEL - Agreement with enemy - performed, rules of warfare, fair law etc. * HINDU RULES - Morality ——S CHINESE RULES - HarmonyHistory of IL zu rome | ANPERTSY 6th Cen. BC - EMERGENCE OF CITY-STATES he = P y Tritt! 4 oe Jus Civile - Roman Citizen } Jus gentium - Universally applied. fl —_—— * JG-Marked-- beginning of element of universality which is 1) Treaties of Commercial & Pol. Assn. core to the modern 2) Granted Rights to Citizens of other states. Internatiotiat sa : 3) Diplomatic Protection * Corpus Juris Civilis - Legal 4) Practices - b4 - Declaration of war. Materials compilation - AD 534.History of IL 3 LawxpeRTsMV MIDDLE AGES & RENAISSANCE a & Law panei NATION-STATES MERCHANT England, France, Spain.History of IL MIDDLE AGES & RENAISSANCE 2 4 THE PRINCE - MACHIAVELLI JEAN BODIN 1513 1576 Alliances, betrayals, manipulations of state institutions and the drive for power structure of authority within the moder state THOMAS AQUINAS Contribution ‘on Natural law LAWXPERTSMV HS MAINE Modern international law was the grandest function of the law of natureVITORIA 1480-1546 War - Justified on Grounds of Just cause. History of IL 3 LAWXPERTSMV MIDDLE AGES & RENAISSANCE wy SUAREZ HUGO A.GENTILI Gaorile Obligatory character__De Jure Belli- Father. of ILis due to Comprehensive + De Jure Belli ac pacis -1623. Natural law. Discussion on + Just & Unjust war - based on Law of War & aggression, self-defence Treaties. + Freedom of Seas.History of IL LAWXPERTSMV 1600-1700 - POSITIVISM & NATURALISM AéO 4 RICHARD BYNKERSHOEK ae Ce ZOUCHE with law of Doctrine of the equality of Favored Freedom nature Law of Peace is of Seas States into international above Law of War aa Peace of Westphalia in 1648- Known for developing concept of nation-state, state sovereignty, mediation between nations, and diplomacyannie History of IL — 19TH CENTURY LAWXPERTSM\ * CONGRESS OF VIENNA - >Ended Napoleonic wars --> European balance of Power French Revolution - Democracy + nationalism Unification of Germany & Italy - Self-determination. 1815 -Final Act of the Congress of Vienna - the principle of freedom of navigation with regard to international waterways. 1856 - Danube river commission -> Marked --> Similar water-sharing arrangements bt. countries. po! 1865 the International Telegraphic Union was established and in 1874 the Universal Postal Unionay History of IL 19TH CENTURY LAWXPERTSM\ ¢ The International Committee of the Red Cross, founded in 1863 = --> Geneva Conventions beginning in 1864 dealing with the ‘humanisation’ of conflict, and the Hague Conferences of 1899 and 1907 established the Permanent Court of Arbitration. * Hegel - doctrine of the will of the state. Individual is subord. to State- it had higher wills (as given)- —! and that state is supreme/sovereign. * Triepel - spoke on IL & ML - relationship.—— History of IL i 20th Century LAWXPERTSMV * 1919- LON * 1919- ILO © 1921- PCI} ° 1946- UNO ¢ Professor Tunkin - [Communist approach to IL] =, (A) principles of equality and self-determination (B) principles of peaceful co-existence —! * Economics - GATT, WTO, WB, IMF.