INTERNATIONAL LAW & HUMAN RIGHTS Part-2

Q. 4 (a). Discuss the sources of International Law.

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Describe the treaties as a source of International Law.

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Discuss briefly the sources of International Law and point out the position of decisions of the International Court of Justice (ICJ) as a source of International Law.

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What do you understand by the general principles of law recognized by civilized States? Do you consider these as sources of International Law? Discuss.

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Most of the International Law has been customary. Comment.

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How far do you agree with the view of Positivists that treaties and customs are the only sources of International Law?

Ans.       Sources of International Law

1. International Conventions. In the modern age when the International Law is in its developed form, the international conventions (which include all types of treaties) have attained the prime position in the category of sources of International Law. The International Court of Justice looks first to treaties to locate a law for deciding a dispute. According to Chapter II of Vienna Convention on the Law of Treaties, 1969 international treaties are such contracts by which two or more States make binding the International Law in their respective transactions. This definition is limited in its scope because it has not included in its ambit other international entities and organizations.

International treaties may be of two kinds-

(1) Law making treaties. According to Starke “the provisions of law making treaties are the direct source of International Law.” The development of law making treaties during the middle of 19th century was achieved in great speed. The main reason for this may be attributed to the unsuitability of customary laws in the ever changing circumstances of the International Law hence it was considered necessary to regulate the transactions between the States through clear-cut provisions of the international treaties to cope with the changing situations of the time. Law making treaties are also of two kinds-

(i) Those which create universal norms, rules and regulations of International Law, the best example of which may be cited as the Charter of U.N.O.

(ii) Those international treaties which create general and ordinary rules of International Law. These treaties are in greater number the contracts between the States creating ordinary and general rules. Geneva Convention, 1958 on the law of the Sea and Vienna Convention on the law of Treaties, 1969 are good examples of such type of treaties.

(2) Treaty Contracts. As against the law making treaties Treaty Contracts are entered into by two or more States and its stipulations and provisions are applicable to those states only which have entered into it, i.e. are parties to it. The stipulations are binding to the parties of the treaties. These types of treaties are also a source of the international law and through them the rules of customs are developed.

2. International Customs. For centuries, the international customary rules have been regarded as the main source of International Law. Its importance has come down in the modern times only because of multifarious development of international treaties. But even now, customs are regarded as an important source of International Law. In International Law, rules regarding customs are those customary rules which have developed with a long historical background and practices.

      Customary International Law has developed in special following circumstances which are as follows-

(i) Diplomatic relations between the States;

(ii) Practices of International Organizations and Agencies;

(iii) State law, decisions of State Courts and Military and Administrative actions of the States.

(iv) Treaties between the States.

       International customs are ordinarily binding on the States and it is immaterial whether a particular State had participated in the developing procedure of a particular international customary rules or norms.

3. General principles of law recognized by civilized States.- In the Charter of ICJ, in its Article 38, the general principles of law recognized by civilized States, as a source of International Law has been placed on the third number, the first being international conventions and treaties, while customs are on the second place in hierarchy as well as in sequence of importance. By general principles of law recognized by civilized States we mean, those rules and regulations which have been accepted and implemented ordinarily by majority of the civilized States. The principles of res judicata and estoppel etc. are the examples of such general principles of law. In this list procedural principles and principles of evidence are also included. This category of source has given a sort of death-knell to the propounders of positivist thought because according to them rules of customs and treaties are the only sources of International Law. Any principle of law itself cannot become, a source of International Law even if prevalent in States, unless it is recognized by a Court as a principe of law in its decisions.

        Thus, by recognising general principles of law recognised by civilised States, dynamism of international law and the creative function of the international court have been ensured.

4. Decisions of Judicial or Arbitral Tribunals. This source is not a direct source. The decision of the International Court of Justice does not create a binding general rule of international law. Article 59 of the Statute of the International Court of Justice makes it clear that the dicisions of the Court will have “no binding force except between the parties and in respect of that particular case.” Thus, while in principle it does not follow the doctrine of precedent, but in practice, it ordinarily follows it.

         Decisions of Courts and Tribunals may be placed in three categories-

(a) International judicial decisions;

(b) Judicial decisions of Courts of States;

(c) Decisions/Awards of International Arbitral Tribunal.

5. Juristic works. The books and commentaries written by eminent jurists and commentators cannot be regarded as an independent source of International Law. But sometimes on the basis of their books and opinion the development in International Law does occur. Article 38 of the Charter of ICJ, places the opinions and books of eminent jurists and commentators as a subsidiary means of locating and prescribing the sources of International Law.

6. Decisions or determination of the organs of International Institutions. In the modern times, the decisions and findings of the organs of different international institutions and entities also affect the development of International Law and hence can be treated as a source of International Law. The decisions of the International Court of Justice (ICJ) may also be looked into for finding the solution, though the decision of the ICJ are not used as a ‘precedent’.

Other sources of International Law

1. International comity. The mutual behaviour between the States largely depends upon courtesy and goodness, that is if one State behaves courteously, the counter-part must also behave in the same or more than that style and courtesy. According to Oppenheim, international comity has helped a lot in the development of International Law.

2. State papers. In modern times, almost every State has diplomatic relations with each other and they usually correspond on international problems and their solutions also through their diplomatic channels. Sometimes these letters are published also. In studying these letters, sometimes good principles which States follow in their international transactions are deduced and may be recommended for their utilization in future course of actions.

3. Directions and instructions given by the States to their officers. It is often seen, that some legal luminaries are engaged as consultants, advisors etc. to give their valuable advices to cope with different vexed problems usually faced by the States. These opinions and other instructions issued by the States to their officers to cope with controversial and vexed situations, sometimes become handy in solving international problems as well hence it may be said that these materials are also sometimes treated as a source of International Law.

4. Reason. In all ages, reason has occupied a special position. In modern times, as well, reason has an important place. In the international legal matters also reason plays an important role. Many a many international matters are disposed off by utilizing reason to the satisfaction of all disputant parties. Pollock has said, “The Law of Nations is founded on justice, equity, convenience and the reason of the thing and confirmed by long usage”. As such, reason is also given a subsidiary place as a source of International Law.

5. Equity and Justice. In the field of International Law equity and justice are the much sought after doctrines to solve international problems and disputes. In modern time much attention is being paid to these principles because in a changing world. where things become obsolete abruptly, these principles become very handy and full of utility.

Q. 4 (b). Define international treaties and explain various kinds of treaties.

Ans. Definition. International treaty is an agreement between two or more states under the International Law to create mutual relationships. According to Oppenheim international treaties are those agreements between the States which are of contractual nature and produce legal rights and obligations.

         Prof. Schwarzerbenger in clarifying the international treaties has said that treaties are the agreements between subjects of International Law which produce binding obligations in International Law. According to Starke, usually in all cases, the purpose of treaties is to create binding nature of obligations on the parties to the treaties.

      According to Vienna Convention on Treaties 1969, Article 2 “Treaties and contracts are documents under which two or more States under International Law establish or try to establish their relations.” As of April 2014, 114 countries had become parties to the Vienna Convention.

       Angilotti and other jurists assert that binding nature of treaties comes from the doctrine of Pacta Sunt Servanda. This doctrine emphasizes that obligations created by treaties must be obeyed by the States. On the other hand Kunj asserts that the doctrine of Pacta Sunt Servanda is very old and has become obsolete on the face of present day pressures of political nature.

       Classification of treaties. The famous jurist Me Nair has classified treaties in the following manner-

1. Treaties having the character of conveyances.

2. Treaty contracts.

3. Law making treaties-Sub-divided into:

(a) Treaties creating constitutional law just as Charter of ICJ. 1

(b) Pure law making treaties e.g., Labour Conventions negotiated by ILO.

4. Treaties akin to Charter of incorporation e.g… treaty by which International Postal Union 1874 came into existence.

       Vattel has classified treaties into four categories equal, unequal, real and personal.

         Prof. Oppenheim has classified treaties into two categories:

(i) law making treaties.

(ii) and treaties made for other purposes.

        But such a distinction rests merely on the basis of conveyance.

Q. 5 (a). How are the treaties concluded and when do they become binding?

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Discuss the formation and its various stages in relation to treaties.

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What are the various steps through which a treaty has to pass before enforcement? Explain in brief.

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What are the formalities for making a treaty?

Ans. Formation of treaties. For making a treaty of binding nature, the following conditions are to be fulfilled:

1. Accreditation of persons on behalf of contracting parties.- The intending parties of treaties should appoint persons as their representatives to negotiate on their behalf authoritatively for arriving at terms and conditions of a treaty.

2. Negotiations and adoption. After due negotiations, the terms and conditions of a treaty are clunched and for its adoption a decision is made by both the parties.

3. Signature. The representatives sign on each and every terms of a treaty on behalf of thier States. The treaty, however, does not become binding until it is ratified by the respective States.

4. Ratification. Ratification is a very important process. Ordinarily the terms and conditions of a treaty do not become enforceable without ratification. The President of a State or Chief of the Government ratifies the signatures of its representatives who negotiated for arriving at the agreed terms and conditions of a treaty.

5. Accession and Adhesion. The practices of the States show that, by the process of accession and adhesion, a State which is not a party to a treaty may become a party to it by signing it afterwards.

6. Enforcement of a treaty. Usually the enforcement of a treaty depends and begins according to the terms and provisions as laid down in the treaty itself. Many treaties commence after the signature is affixed by the authorized person, while those which need ratification by other States in certain number, begin after the required number of States have ratified the said treaty requiring, such ratification. The general rule of International Law is that a treaty is enforceable against the parties only which have entered and signed a treaty. A stranger to a treaty is usually not bound by its terms and conditions.

7. Registration and Publication. It is necessry, after a treaty comes into force, to get it registered and published under the provisions of Article 102 of the U.N.O. Charter. It is provided in this article that members of U.N.O. who enter into treaty obligations must get their treaties registered in the Secretariat of the U.N.O. and should also be duly published. If a treaty is not registered in the Secretariat of the U.N.O., no member can refer the treaty or its, contents in any organization of the U.N.O., meaning thereby that in case a dispute comes into existence for its settlement through the organs of the U.N.O. the treaty which is not registered, cannot be referred to for the settlement of that dispute, though if referred, the dispute could have been solved.

8. Commencement of a treaty. If the treaty is of law making nature and has been signed by a large number of States it should be enforced by all the members of the U.N.O. In case of bilateral and contract making treaties, it should be enforced by the parties of the treaty.

      Basis of the binding force of the International Treaties. There is difference of opinion amongst the jurists regarding the basis by which an international treaty gains its’ binding force. Jurists like Angilotti, assert that binding force of International treaty comes from the principles of Pacta Sunt Servanda by which States parties who enter into the treaty agreements are bound to enforce the terms and conditions of the treaty which they have assented to enter into. Prof. Oppenheim has also written that there has always been difference of opinion regarding the binding nature of a treaty. which still exists. Some jurists opine that treaties are enforceable and binding because of natural law principles, while according to others it is because of religious and moral reasons. Some jurists say that these States which are party to a treaty obey its provisions because of Auto Limitation principle while other jurists say that because of will of the State Parties of a treaty, its’ provisions become obligatory. But Oppenheim concludes that treaties are binding because of International Law and customs provide rules for the binding nature of treaties. Some jurists also assert that treaties are of binding nature because States as a matter of policy honour the treaties.

Q. 5 (b). When do the obligations arising out of treaties in International Law come to an end ? Discuss.

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Describe various modes of termination of treaties and discuss fundamental change of circumstances as a ground for terminating a treaty.

Ans. Termination of treaties. A treaty comes to an end under the following circumstances-

(i) By extinction of one of the State party. Where a bilateral treaty exists, and one of the State party become extinct, the treaty is treated as terminated.

(ii) By commencement of a war. As per old rules of International Law, by the beginning of a war, all kinds of treaties come to an end, but in the modern era, by beginning of a war, all types of treaties do not come to an end.

       The effect of a war on treaties, has been described by Starke as follows-

1. Between the belligerent State, Treaties which require good political relations or good relations between the States to carry on the said treaty, stand terminated after the beginning of war;

2. The treaties which prescribe some permanent standing such as boundary related treaties are not affected by war;

3. Treaties which provide rules of warfare are also not affected by a war, and they remain binding on the States parties. The Hague Treaty of 1899 and 1907 are good examples of such variety;

4. Law making and multilateral treaties relating to health, services, or treaties for protecting development of industries, do not get extinct by the beginning of a war but remain suspended during the war and again revive after the end of the war; provided both parties so agree;

5. In some treaties, there are clear provisions for the contingency of a war and they are regulated accordingly.

3. Violation of a treaty. When in a multilateral treaty some provisions are violated by the States the other parties get a right to terminate such a treaty.

4. It becomes impossible to implement the terms of the treaty. According to Article 61 of the Vienna Convention when it becomes impossible to implement the treaty, it comes to an end.

5. Rebus sic stantibus. According to this maxim, when the fundamental situation in which the treaty was entered into changes, then it becomes a basis for termination of such a treaty

6. Passing of time. When a treaty is meant for a certain period of time, after the effluxion of such a time, such a treaty comes to an end.

7. Successive denunciation of a treaty. When a treaty is successively denunciated or violated, then in such a situation the treaty is terminated. Provisions relating to this is contained in Article 55 of Vienna Convention of 1969.

8. When the purpose for which the treaty was concluded is obtained For example a treaty which was entered into by certain States to get the freedom of a certain State from the colonial Monarch, and that particular State gets freedom from that colonial Monarch then the purpose of the treaty stands fulfilled and achieved, hence the treaty which was entered into for the purpose, will automatically come to an end from the date, the freedom was accorded to that named State

Q. 5 (c). Write a critical note on Ratification of a Treaty. What are the consequences of non-ratification of a Treaty?

Ans. Ratification of Treaty. The meaning of ratification is approval of the processing and signature of the representatives relating to negotiating of a treaty by the head of a States or its Government. Secondly it also means approval of a definite number of States regarding the contents of a treaty. According to Article 2 of the Vienna Convention of 1969 on the Law of Treaties “Ratification is the International act……. whereby a State establishes on the International plain its consent to be bound by a treaty.” This definition shows that ratification is an International act by which a State by its consent binds itself to obey the treaty. It is also acknowledged that ratification begins from the date it is given. It is not retrospective.

         Previously it was regarded that without ratification a treaty has no effect in law. This proposition, in modern times has changed. Now it is regarded that a treaty gives its legal effects according to the will of the State parties. According to Article 14 of the Vienna Convention, a State is bound in connection with a treaty when its consent is actively expressed through its ratification or if the following situations occur-

1. When there is some provision regarding its implementation in the treaty itself.

2. When a party to a treaty through consent makes the ratification of the treaty necessary. In such a condition, the treaty transcends into law by ratification.

3. When the treaty is signed on the condition that later on it will be ratified.

4. When the intention of ratification is expressed during the negotiating stage by the parties to the treaty.

Basis of Ratification

1. By the process of ratification the States get a chance to scan vividly the terms and conditions of the treaty entered into through the negotiators.

2. Because of sovereignty every State has a right to keep itself aloof from a treaty:

3. Sometimes, it becomes necessary for a State to legislate the provisions of a treaty, this legislation becomes easy by utilizing the time between the signature on the treaty and its ratification.

4. The last reason of ratification is that in a democracy the State should honour the people’s verdict on a treaty or the Parliament’s approval on that treaty should be obtained.

         Is it a duty of a State to get ratification? In International Law. there is no such duty for a State to get a treaty duly ratified. It is also not necessary that in case it does not ratify a treaty, it has to explain its reason It depends upon the discretion of a State whether it ratifies or refuses to ratify a treaty.

       Consequences of non-ratification of a treaty. Ordinarily a State does not become bound by a treaty unless it ratifies it, hence it is very much necessary to ratify a treaty. But, to say that without ratification a treaty never becomes binding, is not always correct, on this, it depends very much on the will of the State parties In short, if the State parties intended that without ratification the treaty will not be binding upon them the ratification will be very essential. But if the ratification is not necessary then even without ratification in some special circumstances, the provisions of the treaty shall stand enforceable and binding.

Q. 5 (d). Explain the following maxims-

(i) Pacta Sunt Servanda,

(ii) Pacta Terties Nec Nocent Nec Prosunt,

(iii) Rebus Sic Stantibus.

Ans. Pacta Sunt Servanda. According to Jurist Italian Angilotti. the binding effect of a treaty depends upon this maxim. The meaning of this principle is that to fulfil the obligations created by a treaty, the State parties are bound to honour the treaty. Kunj and other jurists are also of the same view and according to them this principle is very old. Before deciding the question as to what is the basis of binding nature of a treaty, it should be ascertained as to what are the different views of the different jurists on this point? As has already been submitted in the beginning that Angilotti had expressed that the basis of binding nature of treaties is the principle of Pacta Sunt Servanda. But Oppenheim does not seem agrecable to this view. Some jurists, assert natural justice and auto limitation principles as the basis of binding nature of treaties. According to Oppenheim, treaties are legally binding and International customs also support this. It may also be said thar binding nature of treaties is as such because treaties are regarded as binding It is assumed as such also, and the principle is very much famous as “Pacta Sunt Servanda”. Hence in conclusion, finally, it can be said without any controversy that the basis of binding nature of treaties comes from “Pacte Sunt Servanda this very idea was supported by Kunj who expressed the view that the principle of “Pacta Sunt Servanda” is very ancient and has been honoured since long. Since this principle is based on morality, the State community give to it effective recognition.

       Pacta Sunt Servanda was also accepted as an effective principle under Article 26 of Vienna Convention on the law of Treaties, 1969 and by explaining its meaning it was said that treaties are enforceable against the parties to it and the parties should fulfil their obligations bona fide.

       The above description shows that “Pacta Sunt Servanda” principle is the effective binding force for enforceability of treaties and it has International recognition on this.

Pacta terties Nec Nocent Nec Prosunt

          In the law of contract, a very important principle is that the contract is applicable only to the parties who make the contract. Likewise in International Law, the International treaties are applicable to the parties who enter into it. This principle is expressed in Latin as Pacta terties Nec Nocent Nec Prosunt. This principle has been accepted by the Vienna Convention on the Law of Treaties, 1969 in its Article 34. This principle has certain exceptions contained in Articles 34 to 38 which are as follows-

(i) In treaties where by the consent of parties, a third party is admitted to the benefits of the treaty. For this provision is available in Article 36 of Vienna Convention of 1969 and by this the third party obtains certain rights in the treaty.

(ii) In those multi-lateral treaties which declare established customs of International Law, a third party may become bound by its terms.

(iii) In treaties which create new International Law principle a third party may be forced to accept them. For example, Article 2(6) of the United Nations Charter provides that non-Member shall act in accordance with the purposes of the U.N. Charter.

(iv) Certain multilateral treaties create universal obligations. In such treaties it may be provided that it shall be applicable to non-party States also.

(v) If a treaty prescribes certain obligation on a State and if that State accepts that obligation even though such a State was not a party to that treaty, that State become bound to obey such a treaty.

Rebus Sic Stantibus

      The meaning of Rebus Sic Stantibus principle is that obligation of a teaty remains active so long as the essential situations in which the treaty was entered into, do not change. It is ordinarily accepted that if fundamental changes occur in the situations in which the treaty was entered into. then this change may become a basis for the termination or change of the treaty. This principle is based on the concept that every treaty has an implie implied clause whereby the treaty remains binding till the necessary situations in which the treaty was entered into do not change.

        Some writers and States have asserted that this principle is the basis for termination of obligations created by a treaty, Prof. Oliver Lissitzyn has expressed the view that such situations may arise whereby continuous application of treaty may prove against the aspirations of the State parties and its obligations become intolerable and cumbersome.

         Some jurists have criticized vehemently the principle of Rebus Sic Stantibus. According to Starke-This principle is like a quiz of International Law. Its whole jurisdiction and in the matter of its application there is uncertainty and controversy in the behaviour of States and ICJ shirks in making a basis of it in its judgments. Kaplan and Katzenbach have written that “usually changes in situations are political often one of the party becomes more powerful in contract making” Professor Oppenheim has opined that this principle is essentially a limited principle because the function of law is to enforce a treaty or a contract even though it is burdensome to the parties.

Q. 5 (e). What is an invalid treaty? Describe briefly.

Ans. Usually a treaty becomes infructuous/invalid if the time upto which it was to remain in active posture has expired/effluxed or the purpose for which it was entered into has been achieved and there is express provision that it will not cover any cognate matters described in the treaty.

        Over and above the time factor and the purpose factor a treaty may become invalid because of following reasons-

(1) Defect/Defficiency in the procedure of the formation of a particular treaty leads to its invalidity. For example, if there is a provision in the treaty that the signing States shall ratify the treaty in their legislative forums as a separate enactment or by passing the resolution of ratification/approval of contents of such treaty and the legislatures of such signing States have rejected the treaty or failed to carry out the resolution or enactment within the prescribed time stipulated for the same.

(2) The signing of the treaty has been performed by a non-eligible person/unauthorized person, then even with the signature of such an unauthorized person, the treaty becomes invalid and at the stage of enforcement may create problem because in the eye of law such treaty is treated as non-est.

        It is better to have a fresh treaty instead of trying to ratify or validate such defective treaty.

(3) Where there is difference in the content of the treaty in context to the subject-matter discussed and agreed upon by the consenting States. It may be intentional or unintentional but this difference will create difficulties in the long run and at the stage of enforcement.

        It is better to have a fresh treaty and get it abolished pointedly or by efflux of time if it is for a fixed period.

(4) After the Vienna Convention of 1969 a treaty made orally between two sovereign States is treated as invalid and non-enforceable.

(5) The treaties are governed by the International Law and are operated with in the sphere of international law but some times treaties are contracted in other systems of law such as in Private International Law or where under the general principles of law of some accord has been made then, in strict sense of treaty law. These contracts/accords shall not be treated as a treaty contract/accord though they may be very much effective in solving some problems. In other words, treaty contracts made in other system of law (not in the system and procedure of International law) are treated as invalid treaty in the eye of present prevalent International law.

(6) Under the Vienna Convention of 1969 under its Articles 46 to 53. the various grounds have been mentioned, because of them the treaties become invalid. The grounds are as under-

(a) Where the signing representative to make the treaty has this authority with some condition or restriction and that condition or restriction is not followed or omitted, then the treaty so concluded becomes invalid provided such restriction or condition was notified to the other negotiating States.

       It may be noted that a treaty becomes invalid because of lack of proper authority in the representative where the treaty becomes final after signature of the representative so authorized. In case where the finality to the treaty comes after the process of ratification, the lack of authority is cured by the ratification or if non-authority of representatives is incurable then such treaty is left invalid by non-ratification.

(b) If in the treaty there is a factual error on the basis of which consent of the other party was obtained, then such treaty is treated as invalid on the basis of error.

         But if the error has been manipulated or caused by the party which shall get advantage of it then the party which has caused such error for its advantage is not allowed to reap bonus on its bad design of causing error by other party as per Temple of Preah Vihear case (ICJ Reports 1962 P. 26) and such treaty is not treated as invalid.

     The International Court of Justice has observed in the case of Temple of Preah Vihear case (supra.) that “It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent, if the party advancing it contributed by its own conduct to the error or could have avoided it, or if the circumstances were such as to put that party on notice of possible error”.

        It may be noted that an error relating only to the wording of the text of a treaty does not affect its validity.

(c) Treaties caused by fraud-As per Article 49 of the Vienna Convention 1969, if the consent of a contracting party to a treaty has been caused by the fraud of the other party, then such treaty becomes invalid. In International Law good faith plays an important role and fraud annihilates good faith among the parties.

(d) Corruption of a party in obtaining consent-Corruption of a party in obtaining the consent of the other party for concluding the treaty also leads to its invalidity as per Article 50 of the Vienna Convention of 1969. Corruption includes unjustified influencing of other party for getting consent by adopting such means which are normally treated as unjustified and abnormal. Some small courtesy or favour which are usual in international behaviour of States are not treated as corrupt practices.

(e) Coercion-Coercion caused to representatives for concluding a treaty also leads to its invalidity as per Article 51 of the Vienna Convention, 1969. Coercion may be in the shape of acts or threats to the representative directly or indirectly for getting his/her consent for concluding the treaty.

(f) Threat or use of force-The coercion also may be extended to the prospective treaty-maker State/Nation/Country for concluding the treaty and as per Article 52 of the Vienna Convention, this leads to invalidity of such a treaty. The shape of coercion to a State may be in the shape of threat or use of force in violation of the norms of International Law embodied in the Charter of UNO. It is submitted that economic and political coercion will not be treated as factum of coercion. It is so because operation of political and economic pressure upon the States by another State is treated as part of the normal working of the relations between the States. The other difficulty is that it is very difficult to distinguish whether a pressure so exercised is legitimate or illegitimate for securing the consent of a particular State as such only that treaty shall become invalid where the consent of a State for the conclusion of a treaty has been obtained by using illegal and unwanted pressure of any kind as a coercion in the shape of threats or use of force.

(g) Violation of jus cogens-A treaty also becomes invalid if it is in violation of the principle of jus cogens.

      The principle of jus cogens implies that certain basic principles of International Law are such which each and every State has to follow compulsorily for remaining in the International Community and to reap the benefit of International Law for solution of their problems. These principles cannot be altered by or through a treaty among the States. These basic rule are called jus cogens just as basic structure of Indian Constitution which can not be changed, amended, deleted, abrogated or nullified.

       As such if a treaty is in violation of the principles of jus cogens in becomes invalid as for Article 53 of the Vienna Convention, 1969.

       The norms of jus cogens can be modified only by a subsequent norm of general International Law having the same basic character as was possessed by the previous one. For this Article 64 of the Vienna Convention, 1969 postulates that if a new peremptory norm of general International Law emerges and is being recognised as such, the existing treaties which are in conflict of that norm would become void and would terminate.

        It is submitted that treaties which contain some blemish for invalidation, do not become void automatically, they are simply voidable and may continue through express or implied acquirement. It is only in the case of coercion or violation of the principles of jus cogens that treaties become invalid automatically.

(h) A treaty also becomes invalid if it has been concluded through a representative having “full powers” unless ratified if the procedure so provided.

Q. 6 (a). Discuss the contributions of various civilizations in the development of International Law.

Ans. Contribution of various civilizations in the development of International Law.-International Law as we find it today is the product of the experience of the civilised countries of the world and the continuous growth of many centuries. So far the commencement and development of International Law is concerned, approximately all the civilized States have contributed in its development. In this connection the contribution of Jew Roman, Greek, Hindu and Muslim civilizations may specially be mentioned-

1. Jews. By the study of ancient History, it may be gathered that Jews had relations with other countries. These relations were regulated by certain rules. Jews had a general slogan that “Love the strangers for you were also a stranger in the land of Egypt. This slogan clarifies that Jews believed in internationalism. But since they believed in Solo Godism according to their religion, they could not extend recognition to other States on the basis of equality, which believed in plurality on Gods. Jews obeyed their treaties lawfully and provided immunities and privileges to Ambassadors. As such Jews in ancient times made their contribution to the development of International Law.

2. Greeks. After the careful study of history, it becomes evident that in the world when majority of nations were at preliminary cultural stage of development, the Greeks were culturaly at zenith. Socratese, Plato and Aristotle guided the world through their philosophical and other thoughts.

Greeks lived in small towns. These town States were independent and self administered.

       Greeks developed many rules regarding war and peace. Oppenheim has expressed a very suitable opinion regarding Greeks that they showed the world that how sovereign states could exist as a community through co- operation. So Greeks contributed a lot in the development of International Law during its preliminary stage of development.

3. Romans. In comparison to Greeks, Romans had greater intelligence and diligence for the development of International Law. Though the beginning of modern International Law is treated ordinarily from 16th and 17th Century, yet it cannot be disputed that Roman law influenced very much in the development of International Law Romans developed the law of war to a great extent. According to Romans wars were of two kinds-Just and unjust. For a just war there were four reasons-

(i) Attack on Roman regions.

(ii) Violation of privileges of Ambassadors

(iii) Violation of treaties.

(iv) Helping of enemy State by a friendly State.

       Likewise according to Romans war could be terminated by the means of-

(i) Peace treaty

(ii) Annexation of the loosing State by the winning State. Likewise Romans developed very much the law of treaties.

4. Hindus. As has already been explained, in the field of International Law, India in ancient time, had a very developed law. After studying Ramayan, Mahabharat, Manusmriti and Arthshastra of Kautilya etc. the truth of the above becomes evident. A student of International Law by studying Ramayan of Balmiki may understand clearly that in the era of Ramayan even the rulers of a sovereign State regulated their behaviour through certain norms and principles i.e., they were not whimsical and autocrate. If the accepted norms which regulated the behaviour of rulers were violated by any of them others condemned them. In Bhagwat Geeta, which is regarded as one of the pious books of Hindus religiously it is well described the just and the unjust wars not only through its categorization but also making them crystal clear. By reading Bhagwat Geeta it becomes clear that at that time before commencement of a war, it should have been declared, this was an accepted principle.

         In the Arthshastra of Kautilya it has been described as to what should be the duties of a State in foreign matters and administrative matters. According to Kautilya, in the war rightful means and all other resources should be used. In ancient India, there were certain rules regarding treatment of prisoners of war in India even in ancient times, there were developed rules of International Law and International Law was in highly developed stage.

5. Muslims. The Muslim rulers of India had relations with other States of the world also. They accepted Ambassadors of other States in theu regime. They propounded certain rules and principle for making relations wah Muslim States. It will not be justified if it is said that Muslim rulers did not contribute in the development of International Law.

Q. 6 (b). Trace the history of development of International Law since the 16th century.

Ans. Development of International Law-1. Development of International Law during the 16th and 17th century. The modem International Law has been very much influenced by the system of modern State craft of modern European Countries. For the development of modern International Law it was necessary that Central Government of the States should have been strong. In the centralization of State administration there were two hurdles in the medieval times (1) feudalism and (ii) the influence of Church/Christian religion. The efforts to override these hurdles were in progress. In this context, the treaty of Westphalia of 1648 was a great event. By this treaty, the religious war continuing for the last 30 years came to an end and a new political system in Europe came into existence. By the treaty a new system of governance came in which different States living independently were connected with each other through the rule of law. By accepting this fact, the development of modern International Law took place. So in medieval times the concept of united existence was re- established but with a new political system. Every sovereign State was treated as one of the units of International Law and the principles which regulated the relations and behaviour of these units were to be called as International Law.

2. Development of International Law during the 17th and 18th centuries- During the 17th century Natural law theories and positivists theories were accepted and Grotius with his disciples did a lot of work for and on International Law and assimilated natural law, customs and treaties and tried to evolve and develop International Law. Grotius expounded the secularised concept of the law of nature. The system of Grotius supplied a legal basis to most of those international relations which were at the time considered as lacking such a basis. The book De Jure Belli ac Pacis (fe, on the Law of War and Peace) authored by him obtained such a world-wide influence that he is correctly called the “Father of the Law of Nations.

        17th and 18th centuries are conspicuous for giving birth to three different schools of International Law, namely, the Naturalists, the Positivists and the Grotians.

3. Development of International Law during the 19th and 20th century. During these centuries, the development of International Law was supported by many elements and reasons which are as follows-

1. Congress of Vienna, 1815. In context to the development of International Law, the Congress of Vienna was an important event. Primarily it was an European International meet, in which many principles of International Law were propounded e.g., the international policies were framed and Ambassadors were categorized.

2. Declaration of Paris 1856. The declaration of Paris was a law making treaty in which many rules for seawarfare were formulated. It was propounded that in sea war the reserved category persons shall not be attacked. Armed ships can be drowned during a war, but an effort should be made to save humans of a drowning ship.

3. Geneva Convention 1864. In this Convention many rules were framed for injured or sick armymen during a war. A rule was also framed by which killing an injured armyman was prohibited and some provisions were also made by which they could get certain privileges.

4. Hague Conference of 1899 and 1907.-The Hague Conference contributed a lot in the development of International Law. It was also stressed that International disputes should be solved through peaceful means. Many other rules regarding land war and sea war were also framed in these conferences. As a result of these conferences, the permanent Court of Arbitration was established which was a great event in the context of development of International Law. This Court has contributed a lot in solving peacefully many International disputes.

5. League of Nations. After the First World War, the States of the world felt vehemently the need of such an International forum which may regulate not only the mutual relations between them but could also prevent the possibility of a war. The League of Nations was established on December 10, 1920 after the treaty of Versaillies, 1919 which was entered into after the First World War. 1914-1918. The first effort of the League of Nations was how to restrain States from waging wars. Besides this, the League of Nations established permanent Court of International Justice to solve International disputes through judiciary it was also a very important action of the LON. The PCIJ decided many International cases and as such it contributed to the development of International Law.

6. Treaty of Locarno of 1925. This treaty was entered into by many States like France, Great Britain, Germany, Italy etc., formulating therein that in Border disputes arms power/military powers shall not be used. By this treaty. State expressed their belief to settle their disputes through peaceful means. But in 1936, Germany refused to abide by this treaty

7. Kellogg Briand Pact or Paris Pact, 1928. By this treaty, the participant States formulated as a matter of policy to renounce war as a means of deciding their International disputes. This was a very important treaty which provided legal control of wars.

8. Geneva Convention, 1929.-47 States of the world signed this treaty. In this treaty many rules relating to the treatment of war prisoners were formulated and accepted. It was prohibited through this treaty to use force in controlling them, general harsh behaviour with them or enforcing community punishment against the prisoners of war. Many other rules were also framed through which prisoners of war were extended health care services and other benefits as well.

9. UNO.- The Charter of U.N.O. began enforceable legally from 24th October, 1945 and as such U.N.O. was established. In the beginning, there were only 51 member signatories of this institution, now the number of member States stands to 193. The U.N.O. Charter is an international treaty which regulates the behaviour of its State parties. Under the auspices of U.N.O., the development of International Law took spectacular heights. Under the General Assembly a Law Commission was established which was to ascertain and study different problems of International Law in different fields and to suggest solutions therefor. In the U.N.O. many law making treaties have been entered into because of encouragement given by the Commission. These law making treaties have reduced to some extent the lack of legislative forum in the International Law. After the establishment of U.N.O., the major development of International Law has been through the law making treaties.

Q. 6 (c). Discuss the contribution of Grotius to the International Law. Can he be considered the father of International Law?

Ans. Contribution of Grotius to the International Law as the father of modern International Law. Hugo Grotius was born in 1583 at Holland. He was awarded the degree of Doctor of Law by London University at the age of only 15 years. His first book ‘De Jure Praedae’ came in 1604. In 1909 ‘the Mare Liberum’ was published. In this book, Grotius asserted that open sea can be appropriated by any State. He lived at Paris for 10 years in connection with his studies and in consequence, the world famous book Law of Peace and War’-‘De Jure Belli ac Pacis’ came in 1625 Oppenheim is of the opinion that the credit of establishment of modern International Law with its whole procedure as a science of law goes wholly to the Grotius through his book ‘ De Jure Belli ac Pacis.

       To cvaluate the contribution of Grotius, firstly it is very essential to look into the contemporary situations of that time when his world famous book was published. There were many independent States in the Europe.

       These independent States had their objectives and interests of such a nature that some of them were common for the community of States and because of that the States existed as a community. Under those circumstances a need was felt to have a system of law acceptable to all, which was called as International Law. Grotius presented such a legal basis and frame which was absolutely absent previously and for its presence a need existed. The book of Grotius De Jure Belli ac Pacis obtained such a world-wide influence that the writer of this book was even called the father of the modern International Law. But to regard Grotius as the founder of International Law is equal to ignoring the contemporary and the predecessor, jurists of Grotius. which is not fair because they must have had influenced the thinking of Grotius. Holland has declared that modern International Law was established not by Grotius but this credit goes to Gentilis. Gentilis had been the basis, to a great extent, to the fame of Grotius. Yet Grotius was a great jurist.

     Under the extant curcumstances, a conclusion may be drawn, that Hugo Grotius was a great philosophical jurist, but he all alone was not the father of International Law. Many other jurists also share this view.

Q. 6 (d). Write an essay on codification of International Law.

Ans. Codification of International Law. In the beginning, the International relations among the States were regulated by Customary International Law which was honoured in maintaining the relations of States practically in all spheres. But it was unwritten and slow in location and usually created sometimes difficulties in its enforcement because it was scattered with different shapes and interpretations. For obtaining universality in application and uniformity in shape and in written form, the codification of International Law has been preferred by the International Community.

           Meaning of codification. By codification we mean a process by which the present legal rules and regulations are presented in a Code form. If generally connotes a systematic arrangement of the rules of law which are already in existence. In codification, the change in law to meet the challenges of time and situation, i.e., amendment is also included. In reality, condification is one of the means of regular development of law.

        Broadly speaking when laws are arranged systematically in a written form, it is called codification. It gives compactness, easy availability and facilitates the application of laws. Codification brings scattered laws at one place with subject-wise classification ready for application having its present position with amendments, deletion, addition with changes if any etc. One can find at one place the authentic version of a particular law with assumption that all the scattered laws on the subject have been collected together and thus have been codified at one place and since they are found in written form the codified law carries more weight in authenticity, correctness and enforceable. The International Law Commission has defined codification “as the more precise formulation and systematization of International Law infields where there already has been extensive State practice, precedent and doctrine”.

Merits of Codification

1. The main merit is its certainty and clarity.

2. The short-comings of law are removed.

3. Uniformity in legal system comes.

4. Competency of law increases and its binding nature becomes more forceful.

5. It is easier and convenient to amend the codified International Law so as to keep it at pace with the tide of time.

6. Codification enhances the efficacy of International Law by increasing its binding force.

Defects of Codification

1. It is dangerous for the natural development and expansion of International Law.

2. Its roots lie in unchangeable elements. It makes the system of law rigid and unadaptable to new situations.

3. Sometimes it originates new controversies.

4. International Law is primarily based on International customs, hence codification of customs is not correct.

Codification under the auspices of UNO

         In the codification of International Law, the contribution of U.N.O. is great. The General Assembly of U.N.O. had constituted a committee for condification of International Law. In this connection, the committee has suggested its views on different subject matters and suggestions have been acted upon also.

Q. 6 (e). How codification of International Law is carried out? Discuss briefly.

Ans. History of Codification of International Law. Codification of International Law was initiated and attempted firstly on a private basis by Benthem in 1789 in the shape of a treaties named “Principles of Morals and Legislation”. In 1792 under the French Convention a declaration of Rights of Nations was resolved and in 1795 it was drafted but ultimately it was dropped by the Corvention. Private efforts continued but got no significant success. In 1873 the Institute of International Law was established in Belgium where jurists of many nations gathered periodically and produced various drafts concerning various parts of International Laws. In 1873, the Association for the Reform and Codification of the law of Nations was also formed which met periodically for the purpose and presently is known as International Law Association.

       The first Hague Peace Conference, 1899 and second one of 1907, also took initiative for codification in the shape of Conventions covering important topics of that time. The first conference produced three important Conventions while the second Conference of 1907 produced 13 Conventions. The London Naval Conference of 1908-1909 also undertook the codification of more difficult task of codification of the “generally recognised principles of International Law” covering the maritime war but due to conflict of interests in actual war, only the Humanitarian provisions of Hague Convention could survive but ultimately due to explosion of new technique and instruments of war fare they also succumbed to the strain so caused.

       After the World War 1, the League of Nations was established. During 1920 to 1945, the laws and rules of International Law were given written shape in the form of Conventions and may be called the codification of International Law during the aegis of League of Nations. The following are the main forms of codification during the League of Nations regime-

1. In the field of law of peace through the covenant of the League of Nations.

2. The statute of the permanent court of International Court of Justice.

3. The General Act for the pacific settlement of International Disputes of 1928.

4. General Treaty for the renunciation of war.

      The Council of the League in 1924, appointed a Committee of sixteen jurists to report on those questions which were necessary for codification and how their codification may materialized.

     Committee reported in 1927 for the codification of following topics-

1. Nationality.

2. Territorial waters,

3. Responsibility of States for damages caused to foreigner’s property in its territory,

4. Diplomatic privileges and their immunities,

5. Procedure for convening International Conferences and How International treaties could be concluded and drafted,

6. Piracy.

7. Exploitation of Sea-products.

     The Hague Conference of 1930 was organized to thrash out above agenda of codification where because of difference of opinion only a few matters could be forwarded for codification in which the issue of Nationality was prime and on this the following topics were chosen-

(1) Conflict of Nationality Laws.

(2) A Protocol relating to Military obligation in cases of Double Nationality.

(3) A Protocol on Statelessness.

       In the Hague Conference of 1930, the topics of territorial waters and responsibility of States on the damage of property and person of foreigners in its territory could not be formulated for codification because of vested interests of States and the Conference ended with very marginal success and hence the League of Nations regime deterred from codifying attempt any further after 1930 upto 1945.

       Under the auspices of UNO from 1945 and onwards codifying efforts of International Law has been continuous not by it alone but by its differen agencies. The following are its efforts-

(A) International Law Commission-International Law Commission (ILC) was established in 1947 by the resolution of General Assembly with 15 members, which at present consists of 34 members. The Commission meets once in a year at Geneva and its records and discussions and recommendations and other documents are reported to General Assembly and are published in the year-book of International Law Commisssion.

       The Commission began functioning from 1949. Some important Conventions because of ILC efforts are as follows-

1. Geneva Convention on the Law of Sea (1958).

2. The Vienna Convention on Diplomatic Relations (1961).

3. The Convention on Consullar Relations (1963).

4. The Convention on Special Mission (1969).

5. The Convention on Law of Treaties (1969).

6. Convention on prevention and punishment of crimes agains internationally protected persons including Diplomatic Agent (1973).

7. Vienna Convention on Succession of States in respect of State Property, Archives and Debts (1983).

8. Convention on Law of treaties where International Organisations are parties (1986).

9. Draft statute of Criminal Court, 1998.

10. Prevention of Transboundary damage from injurious activities (2002) etc.

          The Commission in its 56th Session held in 2004 has discussed the topic of Diplomatic Protection, Responsibility of International Organisation, sharing of National Resources, International liability for injurious consequences arising out of Acts not prohibited by International Law, Unilateral Acts, Reservation on Treaties and Fragmentation of International Law.

Two new Topics-

(1) Expulsions of Aliens, and

(2) Effect of Armed Conflicts on treaties.

have been included for codification in the 56th Session of 2004 0 International Law Commission.

(B) Codification under the auspecies of United Nations Commission for International Trade Law (UNCTRAL)-The General Assembly realising the shortage of time for codification of topics of Private International Law by the International Law Commission, sought a remedy for the same by adopting a resolution in 1966 for the establishment of UNCTRAL. To harmonise the conflict of laws because of prevalent of different laws in different States Nations creating obstacle in Smooth International Trade operations, the Assembly gave to this Commission a general mandate to further the progressive harmonization and unification of the Law of International Trade.

     The Commission consisted of 36 Governmental experts in the field of Internatior al Trade Law within the purview of United Nations. Recently the membership of the UNCTRAL has been expanded to 60 members States. The Commission has produced some important Conventions which may be treated as codification as follows-

1. Convention on the Limitation Period in the International Sale of Goods (1974)

2. Convention on the carriage of Goods by sea, also called Hamburg Rules (1978)

3. United Nations Convention on Contracts for the Sale of Goods (1980)

4. United Nations Convention on the Liability of Operators or Transport Terminals in International Trade.

5. United Nations Covention on International Bills-of-Exchange and International Promissory Notes (1988)

6. United Nations Convention on Independent Guarantees and Stand-by. by Letters of Credit (1995)

7. United Nations Conventions on the Assignment of Receivable in International Trade (2001).

      The UNCTRAL has also adopted Model Law on different topics such as :

(1) Model Law on International Commercial Arbitration (1985)

(2) Model Law on procurement of Goods, Construction and Services (1994) and

(3) Model Law on International Commercial Conciliation (2001)

      For the progressive development and codification of International Trade Law, a United Nations Commission has been established.

(C) Codification by the General Assembly-The General Assembly has also entrusted the task of codification to its different bodies which formulate drafts and on the basis and recommendations of those bodies, the General Assembly adopts resolutions and Conventions are formulated. The examples are International Covenant on Civil and Political Rights (1966), The International Covenant on Economic, Social and Cultural Rights (1966) and two Protocols on the International Convenant on Civil and Political Rights.

      In 1989, a Protocol was adopted to abolish the death penalty and another Convention in 1989 was also adopted declaring the rights of the child which paved a new era.

         In the field of outer space and to contain the Terror of Terrorism, norms were codified by the General Assembly through Conventions. In a single Convention the entire law of the sea has been codified by the Convention on the Law of the Sea (1982). In 1984, the Assembly also adopted a Convention against torture and other cruel inhuman or degrading treatment or punishment to prisoners.

(D) Codification of International Law by other Specialised Agencies of UNO-There are many instances where codification of International Law has been performed by specialized agencies of UNO-as for illustration-

(a) By International Civil Aviation Organisation (ICAO)

(b) World Health Organisation (WHO)

(c) International Labour Organisation (ILO)

(d) International Postal Union.

        These agencies have been formulating many Conventions through which International Law has been codified and continue to be codified.

      It may be submitted that besides the many agencies of International body of UNO, the International Law Commission is the prime Institution for codification of International Law and it has been doing a very commendable job on this count of Codification.

        But still there are many new tasks which require consensus of nations for a precise meaning and definition of the subject matter, such as terrorism, Equitable Right of exploitation of Natural Resources of the regions are still untouched such as deep sea, upper glaciers, deep north and south global region etc. where still ‘might is right’ policy is tried to be adopted by rich and strong nations ignoring the claim of natives of these regions.

Q. 7. Discuss the relation and difference between the International Law and Municipal Law.

OR

Discuss the relation between International Law and Municipal Law. Refer to leading cases.

Ans. Relation between International Law and Municipal Law.- The following theories are referred to in deciding the relationship between International Law and Municipal Law.

1. Monistic theory. According to exponents of this theory, the subject-matter of International Law and Municipal Law is one and the same. The modern jurists who know this concept, usually stress on the analysis of the internal making of a legal system. According to them the whole law is like a unit in which rules exist for its binding nature whether they are applicable to a State individual or any other entity. Wright. Kelson, Duguit etc. are some of the prominent exponents of this theory.

2. Dualism. According to jurists who support this principle, the International Law and State Law are two separate laws. For a long time jurists believed on the principle of Monoism, because monoism was specially influenced by the Natural law concepts. But the jurists of 19th century began to emphasize on the sovereignty of the State will. The concept of State will was accepted and developed from the propositions of Hegel. This view is primarily based on the whole development of modern legislatures having full sovereignty of a modern State. The main exponents of this concept are Triepel and Angilotti.

3. Specific Adoption theory. According to positivists the International Law cannot be applied directly in the realm of State Law. To apply it in the field of Municipal Law it is necessary that it should be specially accepted by the realm of State laws. In short, the State laws through special procedures may adopt International Law for its acceptance in the jurisdiction of State laws. In this connection, the decision of the Supreme Court of India in the case of Jolly George v. The Bank of Cochin, AIR 1980 SC 470, may be specially mentioned. In this case, the Supreme Court decided that any International treaty can be effective in India only after the Parliamant enacts a law to accept that treaty or legislates on the subject matter of that treaty.

4. Transformation theory. According to this view, the International Law and specially the rules of International treaties for enforcing them in State laws, it is necessary to get them transformed into State laws that is to say that rules of International treaties may become enforceable in the realm of States only after they are adopted by the State laws through transformation. Till the validity of such rules is granted by the States, they cannot become enforceable in the realm of State laws.

5. Delegation theory. The transformation theory has vehemently been criticized by many jurists. In contrast to transformation of laws into State laws these jurists propounded a new concept known as Delegation theory. As per these critics, through the constitutional rules of International Law every State was accorded a right through its constitutional provisions to determine how according to International Law, the International treaties will be applicable in the realm of State laws, hence there is no place for transformation neither any new rules are created. In reality, the rules of International Law are enforced through many modalities in the realm of State laws and jurists differ on different means.

Question of Primacy

       If International Law and Municipal Law come into clash for supremacy, the question arises as to which one should get primacy. Some of the Monists are of the view that there is primacy of international law. According to some other Monists such as Kelsen, the primacy can be conferred to either of the streams of International Law of State laws in accordance with the facts and circumstances. If the highest norm comes from the International Law the primacy shall be accorded to International Law and in case the highest norm has its fundamental roots to State laws, the primacy shall be conferred on State laws.

      The rule that in case of dispute, the International Law in face of State laws shall get preference, does not seem just. Because, if we agree to tha then it will create such a situation which will be nothing less than chaos and lawlessness under such circumstances. It seems quite right to say that while deciding primacy in case of dispute or confrontation the facts of the case, circumstances and references of the case should be weighed. To say that primacy shall be accorded definitely to International Law or to State lawy does not seem just and correct.

Position in India

        In reference to International and State laws the system prevalent in England, has been adopted by India, Calcutta High Court in Sri Krishna v State of West Bengal, AIR 1954 Cal 598 case has propounded the law that when the Courts will interpret the State laws in enforcing them, then it will always be tried that the State laws should be so interpreted and enforced that it does not go against or violates the International Law. This rule is applicable when there exists any ambiguity when the provision is clear, the interpretation is done according to its meaning even if it is against the provisions of International Law. This view was taken in the case of Gramophone Co. of India Lid. v. Virendra Bahadur Pandey, AIR 1984 SC 667 by the Supreme Court of India.

        The legal position in India is that it is the obligation of the Courts not to ignore and to apply the provisions of International Conventions and Instruments of Human Rights in general and International Covenants in particular to interpret the constitutional provision relating to human rights If there is conflict between provisions of an international treaty and a provision of domestic law, the provisions of the domestic law shall prevail But if two constructions of the provision of domestic law are possible, the court should give harmonious’ constructions so as to be in accord with international treaty. If no domestic law is occupying the field or there is void in domestic law, and the constitutional provisions (fundamental rights) are of sufficient or wide amptitude to encompass the provision of international treaty, the provisions of international treaty can be read into the constitutional provisions. It may be noted here that what is true of human rights is also true of international law is general.

Q. 8 (a). What do you understand by subject of International

Law? What are the subject-matter of International Law and why?

OR

What do you know about the subject of International Law?

Ans. Subject of International Law. Ordinarily, the International law concerns with the rights, obligations and interests of the States. By treaties also usually State is made obliged to enforce it. But it does not mean that other entities or individuals do not come under the purview of International Law In the modern era, the International Law has expanded a lot. Now this law is applied besides States to individuals also.

Theories of subject of International Law

1. Only States are the subject-matter of International Law.- According to certain jurists only States are the subject-matter of International Law. According to them, International Law regulates the behaviour of States hence States are its subject-matter. Prof. Oppenheim is supporter of this view. He asserted that since International Law is primarily the law between the States, its subject-matter is only the States. In the 9th edition of Oppenheim’s book on International Law certain changes have been made and editors of this edition have accepted that besides States other entities are also the subject-matter of International Law.

Criticism. The jurists have bitterly criticized the above view. This theory has failed to clarify the position of slaves and Pirates in the International Law. In International arena by some ordinary treaties, the community of States have granted certain rights. The pirates are regarded as enemies of humanity and they can be punished by the States for piracy. But those jurists who say that States are the only subject-matter of International Law, regard the above two cited examples as exceptions of their view. According to them Slaves and Pirates are not the subject-matter of International Law but are as an object of it. To say that individuals are not the subject but object of International Law seems incorrect. Prof. G. Schwarzenberger has aptly remarked that this view is controversial. He asserts that to say that the individual who is the base of the society is only an object of the International Law, is not justified.

2. Only individuals are the subject-matter of International Law. Leaving aside the abovementioned view whereby only States are the subject-matter of International Law, if we analyse, then at the last, the conclusion will be that only individuals are the subject-matter of International Law. The main supporter of this view is Kelsen. Before Kelsen, this view was expressed by Westlake, who opined, “The duties and rights of the States are only the duties and rights of men who compose them. “Kelsen has analysed the concept of State and according to him it is a technical legal concept which as a mixture of legal rules applicable to the all people living in a certain area hence the obligations of a State in International Law in the last resort are the duties of individuals of which a State consists.

Criticism. So far as logic is concerned, the view of Kelsen seems correct, but so far as practices of States are concerned, it is seen the primary concern of International Law confines to the rights and duties of a State. It is true that at different times treaties are entered into by which individuals are granted certain rights. A good example is the Convention on the Settlemem of Investment Disputes between States and Nationals of other States. 1965 By this treaty, provision is made to settle the disputes which arise by investment of capital by nationals of one State in other States. By this example it is clear, that the view of Kelsen that International Law is made applicable through the medium of a State seems unjustified.

3. States are the main subject-matter of International Law but in modern times not only State but other entities, International Institutions and individual may also be subject-matter of International Law. This view seems justified as against the above two views. In support of this, the following reasons may be advanced-

(i) In modern times many a treaties grant rights and duties to individuals;

(ii) In Danzing Railway Official case PCIJ, 1928, Series B. No. 15, the Permanent Court of International Justice had decided that in case, the State parties of a treaty intended to grant rights to individuals then International Law would recognize such rights and the International Court will enforce them.

(iii) Geneva Convention on Prisoners of War, 1949, has also accorded certain rights to prisoners of war.

(iv) Nuremberg and Tokyo Tribunals had propounded that in International Law individuals can have obligations directly. According to Nuremberg Tribunal, since crimes against International Law are committed by individuals not by abstract entities, hence by punishing the individuals who commit those crimes the provisions of International Law can be enforced.

(v) Genocide Convention, 1948.-In this convention also individuals have been assigned directly certain duties. By Article 4 of this Convention, those individuals who commit International crime of genocide, should be punished whether they are head of the State, high officials or ordinary person.

      By above description it is clear that only States are not the subject- matter of International Law, but in modern times individuals, International Institutions, non-State entities minorities are also the subject-matter of International Law.

Q. 8 (b). Examine the position of individuals and International organizations as subject of International Law.

Ans. Position of Individuals. Before we arrive at any conclusion in deciding the above questior, it is very essential to study the views of such jurists who regard only States as the subject-matter of International Law or only individuals as the subject-matter of International Law. Besides this, the third view which covers individuals International Institutions and non-States entities also as the subject-matter of International Law has also to be considered.

       Prof Oppenheim is the supporter of first view according to which State is the subject of International Law but this view is not correct. As per Schwarzenberger, the object of International Law is to protect the rights including human rights of the citizens of States. Hence in International Human rights cases, an individual can file a case against a State. Because of this it is said that individuals are the subject-matter of International Law.

     According to the second view where individual is the subject of International Law because groups of people make a State and a State without people cannot become subject of International Law hence the object is individual for whose interest the International Law has been established. The supporters of this thought, among others, include Kelsen and Westlake.

        According to them, impliedly International Law is meant for individuals while State law is expressly meant for individuals hence in these situations, individuals are really the subject matter of International Law. International treaties are also viewed as containing provisions for the individuals. This general thinking has certain exceptions and to say that International Law cannot be enforced effectively without the help of State laws, is not justified as a result it can be said that only individuals are the subject of International Law is not correct.

      Individuals non-State entities and International Organizations in International Law. There are opinions that non-State entities. individuals and International institutions are also the subject-matter of International Law. When States can be regarded as the main subject of International Law then, individuals non-State entities and International Organizations can also be subject of International Law. This view seems quite balanced. A potent example in support of this can be mentioned as the international treaties whereby individuals are granted different rights. Other examples may be cited as Denzing Railway Official case, PCIJ, 1928, Series B. No. 15; Geneva Convention of Prisoners of War, 1949; Genocide Convention, 1948, European Convention on Human Right, 1950; and decision of Neuremberg trial are apt in the context through which individuals and International Institutions were granted in International Law, the status of its subject. In 1949, the International Court, in the matter of Reparation for injuries, suffered in the service of U.N.O. by its advisory opinion had clarified that U.N.O., in context to International Law, is an International person and is the subject-matter of International Law. The perusal of these decisions points out the fact that in context to International Law, individuals States and International Organizations are also its subject-matter and International Law is applicable over them.

      States are not the only subjects of International Law. No doubt they are still the main subjects but in view view of the developing and changing character of international law, international organisations, some non-State entities, individuals are also the subjects of International Law.

Q. 9 (a). Discuss the concept of sovereignty in International Law.

Ans. Definition of Sovereignty. According to jurists only sovereign States are entitled to become a member of the community of States. In the case of Island of Palmas Arbitration Max Huber has given the definition of sovereignty. According to him “Sovereignty in the relation between State signifies independence. Independence in regard to a portion of the globe is the right to exercise therein to the exclusion of any other State the functions of a State.”

       According to Jean Bodin, the necessary element of sovereignty is the power to make laws by a sovereign State. Since the ruler himself makes the law hence he himself is not bound by that law but the ruler also is bound by the Divine law. Besides this, a ruler becomes bound by a law when he assent for that. But, by the passage of time, the sovereignty began to mean dictatorship.

       According to Hobbes. The meaning of sovereignty denotes an absolute independent power which is not subordinate to anyone.

   According to Austin, sovereignty is essentially an indivisible and unlimited centre of power. According to him, “If a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is soverign in that society, and the society (including political superior) is a society political and independent. So, according to Austin sovereignty has two elements-Positive and Negative. The positive element denotes that majority of people in the given society obey that determinate human superior and negative element is that the higher assumed determinate human superior habitually does not obey any other human superior.

Concept of Sovereignty in International Law

     In International Law, an example of sovereignty is the doctrine of auto limitation. By this auto limitation principle the States obey International Law because of their consent. They have reduced their power to that extent. This principle is based on the sovereignty of States. The exponents of this doctrine are Angilotti and Tripel. As is evident, the doctrine of auto limitation seems unjustified and jurists have vehemently criticized it. In modern era, in regard to sovereignty, there have been revolutionary changes. Now-a-days it is not regarded as correct to say that sovereignty and unlimited. is indivisible.

Present Position

        In modern times many a provisions have been accepted by the International treaties and International Organizations by which the States have agreed to limit their sovereignty, for example, members of U.N.O. and I.L.O. in many cases have accepted such obligations because in International arena their unlimited power stands reduced. Starke has justly expressed the view that the sovereignty of a State means the residuum of power which it possesses within the confines laid down by international law. In modern age keeping in view the interests of community of States, the States have secepted restrictions on their powers in many faculties.

Indian Position

      According to the definition of legal dictionary sovereignty denotes the highest power than independent political society. It is essential, indivisible and unlimited. But now this view is not treated as correct. Justice Sabyasachi Mukherjee CJ of Supreme Court of India had expressed the view that now it is accepted that sovereignty is divisible and limited both. [Union of India v. Sukumar Sen Gupta, AIR 1990 SC 1962). In his decision, the judge said, that in sovereignty their is attribute of power. It is the bunch of rights. It depends upon the facts and circumstances of each case. In the modern era, every State has to accept the restrictions through laws on its sovereignty to such an extent that relations with other States and its own independence may exisť. Under the general International Law, the doctrine of mutual interdependence of States has been accepted. Hence, the ancient and past notions of ‘sovereignty’ and ‘Independence’ in context to 21st century has to be amended necessarily.

Q. 9 (b). “The Jurisdiction of a State is not always coincident with its territory”-Discuss.

OR

What is territorial sovereignty? When it goes out of its geographical limits ?

Ans. What is territorial sovereignty? One of the main elements of a State consists in territorial sovereignty. The territorial sovereignty denotes sovereignty of a State over a certain territory over which it can enforce its laws of binding nature, According to some jurists, the territorial sovereignty is indivisible but this seems incorrect. The example of division of territorial sovereignty may be cited as leasing of provinces of China to Russia, Germany and Great Britain, Besides this, on one territory there may be control of several sovereigns. According to Starke, International Law does not propound any such principle by which sovereignty may be imposed in a special fashion on a given territory or it may be withdrawn. To give on lease three bigha to Bangladesh by India is also one of the examples in the context.

       The territorial sovereignty extends to all regions which constitute a territory and so not only land but also water including beneath the land, rivers, maritime belts, atmospheric air, land and sky etc. are included in it.

      Sovereignty of a State when goes outside its geographical limits. The following details show the examples of sovereignty crossing its geographical limits-

(i) Diplomatic agents are immune from the powers and rights of the State where they go. Because of this immunity, they are regarded as outside the jurisdiction of civil and criminal Courts of the receiving State.

(ii) Foreign Embassies are also regarded outside the jurisdiction of the receiving State sovereignty. Notionally, the Embassies are regarded as a parn of that State which they represent.

(iii) The Foreign Sovereign ruler. Foreign Sovereigns are accorded many privileges and they are also kept outside the jurisdiction of a particular State.

(iv) General Civil Ships of Foreign States. The civil ships of foreign States are also usually regarded as outside the jurisdiction of a State when not at coastal sea. In the case of Chung Chỉ Cheung v. King, 1839 AC 160, the Privy Council agreed that civil ordinary ships are granted certain immunities from the State jurisdiction. In this case the Privy Council rejected the theory of external sovereignty.

(v) International Institutions and their branches are also immune from the territorial jurisdiction of a State, example is U.N.O.

(vi) Extradition Treaties. According to extradition treaties a criminal who after committing a crime has fled away to a foreign country, is to be extradited to the requesting country for the disposal of that criminal legally. So, there exists a jurisdiction over such persons also who are beyond the territorial jurisdiction of a State.

Q. 9 (c). Define State. Discuss the essentials of a State.

Ans. Definition of State. State is the main subject of International Law. To define the word ‘State’ appropriately is very difficult, but many jurists have tried to define State. According to Salmond State is a community of people which is established for certain objectives such as to maintain internal and external security.

      According to Lawrence State is such a social group of persons which is organized politically and member of which because of being subordinate to some central authority are linked with each other and majority of them abide rules habitually.

       According to Oppenheim, the existence of a State is possible only when the people of any society in a country, in subordination to the highest ruler have decided to reside therein and habitually obey that highest ruler.

      According to Starke, it is not possible to define State appropriately, but in modern era it has become certain as to what are the essential elements of a State.

     Essential elements of the State. According to Montvadeo Convention of 1933, Article 1, the essential elements of a State are as follows-

(i) A certain permanent population, (ii) A defined territory. (iii) A government, (iv) A capacity to make relations with other States. Prof. Oppenheim has also described the four elements of a State, viz. (i) Population. (ii) A defined territory or country, (iii) A Government, and (iv) capacity to enter into relation with other States.

        Holland has given besides the above four elements, a fifth element which is civilized culture and because of this, the State may become a member of the International community of States.

          Acts of the State. As regards the acts of the State, in the modern times, there have been revolutionary changes. Previously the concept of the State, was like a Police State ie the compulsory function of the State was to maintain law and order within its boundary and be capable to protect it from the foreign invasions. No doubt, even today, these are the main functions of a State. But in modern era there have been same changes in the concept of a State. The hypothesis of a State, now has come to be a welfare State instead of a Police State, meaning thereby that for public interest State has to do many social, economic and cultural activities. But these activities cannot be put in the category of compulsory functions of a State.

Q. 10. What is State responsibility? Explain.

OR

‘State responsibility concerning International duties is, therefore a legal responsibility’. Explain this statement.

OR

What do you know about State responsibility? What are the State responsibilities in relations to foreigners?

Ans. Meaning of State responsibility. Usually it is said that a sovereign State has no legal obligations. This statement may be appropriate in relation to ruled people. A State can promulgate a new law by changing its State laws and through this it can change its obligations as well. But obligations of a State in relation to other States are different and obligations stand like that of an international person. In context to international duties, States have legal obligations.

     According to Starke, “The rules of International Law as to State responsibility concern the circumstances in which and the principles whereby, the injured State becomes entitled to redress for the damages suffered”. In context to State responsibility, the law is developing and possibly it may achieve that stage wherein for the international crimes and violation of International Law, a State may be held responsible. The International Court of Crimes has been established in the beginning of 21st century. The Institutions of Interpol and Redcorner notice etc. create State obligations in searching and arresting the criminals.

State responsibility in different areas

1. International Delinquency.-According to Oppenheim, every violation of international legal obligations is an international delinquency. The victim State can bind the delinquent State to obey international duties Its exceptions are obligations regarding damages, violent reprisals or war.

2. The National obligations for foreigners. Under the international law it is accepted that rights granted to the citizens of a State should be ordinarily extended to the foreigners also residing therein. It is the duty of a State to protect the rights of foreigners in the same spirit as done in protecting the rights of its citizens.

      The obligations to the foreigners may be as follows-

(i) National obligation concerning the foreign individuals. If any foreigner residing in a State gets hurt by the citizens of that State, then that foreigner has a right to claim damages according to the law prevalent in that State. In such a situation, the State Courts protect the rights of the foreigners.

(ii) State responsibility for Genocide. Ordinarily the State is held responsible for Genocide when it has not exerted enough labour or effort to restrain or eradicate it. But this measuring standard is ambiguous and uncertain, because the efforts and labour to curtail the Genocide, depend upon circumstances.

(iii) State responsibility for act of Insurgents. In this context, the general rule is that it is the obligation of States to restrain the violent acts of revolutionaries, vigorously, with full efforts.

3. State responsibility for acts done by administrative wings.- For the acts of administrative wings, the general rule is that States admit the obligations for act of its representatives and highest officers against the foreigners. But the limit of this State responsibility is that the officer concerned must have acted within its limit of rights or jurisdiction. Likewise the State is responsible for the activities of its judicial wing.

4. State responsibility in connection to contractual obligations of foreigners. On this subject the general rule is that if the State establishes contractual relations with a foreigner, then if it is violated, there is no State liability in International Law. A foreigner can get remedy under the State law for violation of a contractual obligation. But if the problem is not solved by these remedies the foreigner can try through his State by diplomatic channels for relief.

5. State responsibility in respect of expropriation of foreign property- After the end of Second World War, the law on this topic is continuously growing. The Charter of Economic Rights and Duties was passed on 13th December, 1974 by the General Assembly. The developing nations welcomed this Charter as an Economic Magna Carta. In this charter it is provided that every State has a right to establish its sovereignty over its natural resources, wealtlı and minerals etc. The States should award damages weighing the circumstances aid its legal status as found in its prevalent laws. In case of any dispute, it has to be decided according to the State laws.