Study Material - PIL - LW-3013

SCHOOL OF LAW KIIT Deemed to be University BHUBANESWAR (ODISHA) STUDY MATERIAL SUBJECT: PUBLIC INTERNATIONAL LAW SUBJECT CODE: LW-3013 1  SCHOOL OF LAW KIIT Deemed to be UNIVERSITY BHUBA...

SCHOOL OF LAW KIIT Deemed to be University BHUBANESWAR (ODISHA) STUDY MATERIAL SUBJECT: PUBLIC INTERNATIONAL LAW SUBJECT CODE: LW-3013 1  SCHOOL OF LAW KIIT Deemed to be UNIVERSITY BHUBANESWAR (ODISHA) STUDY MATERIAL COURSE: B.A.LL.B. (Hons.), B.B.A.LL.B. (Hons.), B.Sc LL.B. (Hons.), SEMESTER: 5TH SUBJECT: PUBLIC INTERNATIONAL LAW SUBJECT CODE: LW-3013 Module No Module Name Page MODULE-1 Theory, purpose, and making of Public international law 3 MODULE-2 The relationship between international law and national law 38 MODULE-3 Law of International Treaties 68 MODULE-4 Prohibition of Force and Non-Intervention 79 MODULE-5 Law of the Seas 87 2  Module 1: Theory, purpose, and making of Public international law INTRODUCING INTERNATIONAL LAW Defining PIL Definitions of International Law – Traditional Definitions of International Law International Law regulates the relations between or among states. States and only states are subjects of International Law Exponents: Oppenheim, J.L. Brierly and Hackworth Oppenheim‟s Definition: ―Law of Nations or International Law is “the name for the body of customary and treaty rules which are considered legally binding by civilized states in their inter Course with each other” Key components in this definition are (a) It is a body of rules governing the relations between states; (b) States regard these rules as binding on them in their relation with one another, and (c) those rules are derived from customs and treaties. Criticism of Oppenheim‟s definition: Not only states but also international organization is subjects of international law P.E.Corbett: ―The future of International law is one with the future of International Organizations. Individuals and other private persons have rights and duties in International Law. Not only customary and conventional International Law, but it also includes general principles of Law. Other definitions: Hall ‗International Law consists of certain rules of conduct which modern civilized states regard as binding on them in their relations with one another‘. Brierly ‗Law of Nations may be defined as body of rules & principles of action which are binding upon civilized states in their relations with one another Revised definition by Oppenheim, International law is the body of rules which are legally binding on states in their intercourse with each other. The rules are primarily those which govern the relations of states; but states are not the only subject of 3 international law. International Organizations and to some extent, also individuals may be subjects of rights conferred and duties imposed by international law. Starke‟s definition, International Law is that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe and therefore do commonly observe in their relations with each other and which includes also- (a) rules of law relating to the functioning of international institutions or organizations, their relations with each other and their relations with states and individuals, and (b) certain rules of law relating to individuals and non-state entities so far as the rights and duties of such individuals or non-state entities are the concern of international community. Fenwick ‗International law may be defined in broad terms as body of general principles and specific rules which are binding upon the members of the international community in their mutual relations‘. Whiteman ‗International law is the standard of conduct, at a given time, for states and other entities, subject thereto‘. Nature of International Law  Differentiating International Law with Municipal Law - Subjects of International Law and Municipal Law  Can states be the subjects of legal obligation?  Obligation and Sovereignty of states o Whenever the word 'sovereign' appears in jurisprudence, there is a tendency to associate with it the idea of a person above the law whose word is law for his inferiors or subjects. o A sovereign state is one not subject to certain types of control, and its sovereignty is that area of conduct in which it is autonomous.  Is International Law binding?  Is International Law merely a morality 4  o A rule may exist because it is convenient or necessary to have some clear fixed rule about the subjects with which it is concerned, but not because any moral importance is attached to the particular rule. Defining Law Analytical School: Austin „Law is the command of the sovereign‟. o Law is the command enacted by sovereign legislative authority o Command must be enforced by sovereign authority (command theory) Historical School: Henry Maine Law existed even in the primitive society. There was no sovereign then. Holland ‗International law is the vanishing point of jurisprudence‘. For Treaty Law: Principle of Pact Sunt Servanda For customary law: 'States should behave as they customarily behave'. Whether merely a positive morality: o Rule of morality if by common consent of community it applies to conscience and to conscience only o Rule of law wherein by common consent of community it is eventually enforced by external power. Nature of International Law (Theories of basis of International Law) There are two views as to the nature of International Law. The first view is that ‘International Law is not a true law.‟ The chief exponents of this view are John Austin, Hobbes, Holland, Pufendorf, and Bentham. The second view is that „International law is a true law.‟ The chief exponents of this view are from Natural school of Law. ‘International Law is not a true law.‟ Austin‟s Views - According to Austin, Law is a Command of Sovereign given by political superior to political inferiors. International law is not true law, but a code of rules of conduct of moral force 5 only. Law in strict sense is the result of edicts issuing from a determinate sovereign legislative authority this authority is politically superior if rules are not issued by a sovereign authority or if there is no sovereign authority then rules are not legal rules. Such rules are moral or ethical rules only, therefore international law is not a true law but positive international morality. International laws are opinions or sentiments current among nations generally. ‘International law is a true law.’ The chief exponents of the second view that International law is a true law are Luis Henkin and Sir, Henry Maine: According to Luis Henkin generally all the nations observe the principles of Public International Law and their obligations. According to him Objective of any law and its implementation is most important and not the means and methods. Sir Henry Maine considers that in primitive societies there was no sovereign political authority yet there were laws. Austin‘s concept of law denied customary rules of international law, the status of law. Treaty and conventions are like legislation of international law. States do not deny the existence of international law. Some states like U.K. and USA treat International Law as part of their laws. International law does not completely lack sanctions. Decisions of International Court of Justice are binding upon parties to the dispute Influence of Natural law theory on the nature of International Law It has significant influence on international Law. Several characters and binding force of Public International law is founded on the theories of law of nature Important contentions of this theory are that ideal law founded on the nature of man as a reasonable being, the body of rules which nature dictates to human reasons is law. States submitted to international law because their relations were regulated by the higher law that is law of nature. International law is a part of the law of nature. Natural law contains those principles which natural law dictates to states. It is no less binding upon them than it is upon individuals because, states are composed of men, their policies are determined by men and these men are subject to the natural law 6 Theory of Positivism on the basis of International Law International laws have same characters as Municipal law. International laws are issued from the will of the state. International law can be reduced to a system of rules depending for their validity only on the fact that states have consented to them. For positivists state is a metaphysical reality. It has a value and significance and this significance makes the state to have will of its own and this will is considered as the sovereign authority. International law consists of those rules which. Various state-wills have accepted by a voluntary self restriction. Without such manifestation of such consent, the domain of international law would not be binding on the society of states. Thus international law is a branch of state law, an external public law. Only for this reason they are binding on the state. Consent for the state may be express or implied(tacit). Views of Aanzilotti Binding force of international law can be traced back to one supreme, fundamental principle or norm i.e. „The agreements between states are to be respected.‟ this principle is known as ‗pacta sunt servanda.’ Every legal order consists of a complex of norms. They derive their obligatory character from a fundamental norm to which they relate to. Pacta sunt servanda is the supreme norm. Origin and development of international Law History of modern system of international law is only of the last four hundred years. It grew from the usages and practices of modern European states in their intercourse and communications. Writings of jurists of sixteenth century, seventeenth and eighteenth centuries had a profound impact on the modern international law. Fundamental tenets of modern international law are national and territorial sovereignty, perfect equality and independence of states. They are based on the modern European state system. This system influenced the newly emerged non-European states. History of early international law Rules of conduct to regulate relations between nations emerged from the usages in the 7 period of antiquity. Treaties and immunities of ambassadors, and are found before the dawn of Christianity in ancient Egypt and India. There were historical cases of recourse to arbitration and mediation and in ancient China and Early Islamic world. In Greek city states there were inter-municipal laws composed of customary rules which crystallised into law from long-standing usages followed by city states. They are connected with need for prior declaration of war, enslavement of prisoners of war etc. There were deep religious influences and there were no distinctions made between law, morality, justice and religion. During Rome‘s dominance, distinction was made between legal rules and religious aspects. This Roman law was later revived later in Europe Critical Analysis By Historical School: Definition by Austin does not consider custom o Laws not only observed by sanction – by habit of mind; practice of community o Law is by the common consent of community o Fails to account for customary rules of international law and common law of England True law: o Treaty law is enacted law o International community exists o May be breached- even laws of warfare are observed o International Law part of law of land (E.g, US) o UN charter based on true legality of International Law o International legislations in the form of treaties o Sanctions can be applied under UN charter Security Council can take measures to enforce decisions of ICJ Sanctions CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION Article 39 8  The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Article 40 In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures. Article 41 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Article 42 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. 1. Sanctions by States: Individually; by use of force in Self-defense (but proportionate force to be used) 2. Collective Sanctions: UN charter Chapter-VII- economic and military o Economic: South Rhodesia in 1966; South Africa in 1977; Iraq in 1990; Libya in 1992; Yugoslavia in 1992; Rwanda in 1994; Sierra Leone in 1997 9  o Military: Korean crisis in 1950; Gulf crisis in 1990-91; Somalia in 1992; Rwanda in 1994 SOURCES OF INTERNATIONAL LAW  Sources means ‗Origin‘- they are the procedure or method by which it is created  Sources of international law are those processes and instruments out of which the rules and principles of international law are developed  The internationally accepted classification of sources of international law is formulated in Article 38 of the Statute of the International Court of Justice.  Article 38(1) of the statute of ICJ provides a reflection of the sources of international law  Article 38 did not expressly mention ‗sources' but it is usually invoked as sources of international law.  Sources of international law can be characterized as ‗formal' and ‗material' sources, though the characterisation is not by hierarchy but for clarification, therefore, Article 38(1)(a-c),that is, conventions or treaties ,custom and general principles are formal sources whereas Article 38(1)(d) that is, judicial decisions and juristic teachings are „material sources'.  Formal sources confer upon rules an ‗obligatory character', while material sources comprise the ‗actual content of the rules‗  Article 38(1) of the Statute of the International Court of Justice is widely recognised as the most authoritative and complete statement as to the sources of international law.  It provides that:  The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; 10  d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. International Conventions  Article 38 (1) (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;  Conventions- two kinds: General or Particular  Treaties defined in Article 2 of the VCLT 1969; ‗A treaty is an agreement whereby two or more states, establish or seek to establish relationship between them governed by international law‘.  Two kinds of Treaties: Law making Treaties & Treaty Contracts  Sources are with reference to Law Making Treaties; which are general or particular in nature  Treaties are modern, deliberate, express agreements and in some ways superior to customs  In North Sea Continental Shelf Cases, 1969 between Holland and Denmark; held that since West Germany not a signatory; therefore it is not bound by the provisions. International Custom  Article 38 (1)(b): International custom, as evidence of a general practice accepted as law; Custom defined as: o General Practice (State Practice): Antiquity/ long duration. Universality, Generality of Practice o Accepted as Law: Opinio Juris  State Practice: o Long Duration: Repetition, from ancient times, time immemorial; but Bin Cheng that repetition not necessary (like sovereignty over air space and continental shelf) 11  o Uniformity and Consistency of Practice (Lotus case 1927- must be uniformly followed; Asylum case 1950- Diplomatic Asylum not custom) o Generality of Practice  Opinio Juris et necessitates- by French jurist Francois Geny; meaning legal obligation to act that way General Principles of Law  Article 38 (1) (c) the general principles of law recognized by civilized nations  Solves problem of non-liquet  G.P of law are relied for settlement of disputes mostly in relation to the procedures and evidences  Situations appearing in municipal systems; these are those rules which are repeated in states in that kind of situation  Reparations to be made for unlawful act, Res Judicata, Estoppel, lifting of corporate veil  In Chorzow Factory Indemnity case 1928; reparations to be made; one who violates rules is liable to pay reparation; in this case there was seizure of nitrate factory by Poland in Upper Silesia. Permanent Court of International Justice declared that ‗it is a general conception of law that every violation of an engagement involves an obligation to make reparation‘. The Court also regarded it as: a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured state have suffered as a result of the act which is contrary to international law.  In Corfu Channel case 1949, circumstantial evidence to be taken into consideration  The question of res judicata was discussed in some detail in the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) case, where the issue focused on the meaning of the 1996 decision of the Court rejecting preliminary objections to jurisdiction. The Court emphasized that the principle ‗signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties 12  as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose.  Principle of estoppel applied in Land, Island and Maritime Frontier Dispute and also in El Salvador/ Honduras case (Application by Nicaragua for permission to intervene)  In Barcelona Traction case, lifting of corporate veil was applied from domestic law to international law. The company was registered under the Canadian law in Spain, but 88% shareholders were Belgians, when the company was declared bankrupt by a Spanish court. The claim was brought by Belgium to protect the interests of its nationals who were shareholders in the company. The principle of lifting of corporate veil from domestic law was applied under international law. Judicial Decisions and Juristic Works  Article 38 (1) (d): Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.  Subsidiary means for determinations, secondary sources  Article 59: Decisions are binding between parties only; therefore no precedents. Other Works  Resolutions of International Organizations: o In Nicaragua case, the court placed great reliance on UN Resolution 2625 (XXV), the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States o In Nuclear Weapons Advisory Opinion, Court accepted Principle 21 of the Stockholm Declaration 1972 and Principle 2 of the Rio Declaration 1992 have entered the corpus of international law relating to the environment. o In Gabcikovo-Nagymaros case, court accepted the principle of sustainable development  International Comity/ State Papers 13   Equity and Justice o In Diversion of Water from the Meuse (1937), court decided on equitable use of international rivers. o Equity also applied in North Sea Continental Shelf cases Hierarchy of Sources  Jurists- Pellet, however, notes that while there is no formal hierarchy as between conventions, custom and general principles, the International Court uses them in successive order and ‗has organized a kind of complementarity between them‘. Dupuy, in his book argues that there is no hierarchy of sources. The ILC Study on Fragmentation, however, agrees with writers proclaiming that ‗treaties generally enjoy priority over custom and particular treaties over general treaties‘,  As a general rule, that which is later in time will have priority. Treaties are usually formulated to replace or codify existing custom, while treaties in turn may themselves fall out of use and be replaced by new customary rules.  There is in addition a principle to the effect that a special rule prevails over a general rule (lex specialis derogat legi generali), so that, for example, treaty rules between states as lex specialis would have priority as against general rules of treaty or customary law between the same states, although not if the general rule in question was one of jus cogens. Importance of Customs:  Customs are dynamic process of law creation and important than treaties because of their universal application  Customs are of value since they are activated by spontaneous behavior and mirrors contemporary concerns of life.  Participation of all states encourages compliance Customs diminishing:  International Law has to contest with massive increase in pace and variety of state activities and come to terms with many different cultural and political traditions 14 TREATIES Treaties are known by a variety of differing names- Conventions, International Agreements, Pacts, General Acts, Charters, Statutes, Declarations and Covenants The term refers to the creation of written agreements whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves. Treaties are express agreements and are a form of substitute legislation undertaken by states. Treaties may be concluded, or made, between states and international organisations, they are primarily concerned with relations between states. An International Convention on the Law of Treaties was signed in 1969 and came into force in 1980 Convention on Treaties between States and International Organisations was signed in 1986. The 1969 Vienna Convention on the Law of Treaties partly reflects customary law and constitutes the basic framework for any discussion of the nature and characteristics of treaties. Certain provisions of the Convention may be regarded as reflective of customary international law, such as the rules on interpretation, material breach and fundamental change of circumstances. The fundamental principle of treaty law is undoubtedly the proposition that treaties are binding upon the parties and must be performed in good faith: called the Principle of Pacta Sunt Servanda An Italian jurist Anzilotti, observed that the binding force of international treaty is on account of the fundamental principle known as Pact Sunt Servanda. According to this principle, States are bound to fulfil in good faith the obligations assumed by them under treaties. The principle of Pacta Sunt Servanda was reaffirmed in Article 26 of the 1969 Convention, and underlies every international agreement for, in the absence of a certain minimum belief that states will perform their treaty 15  obligations in good faith, there is no reason for countries to enter into such obligations with each other. A treaty is defined, for the purposes of the Convention, in Article 2 of the VCLT as: ‗an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation‘. The same definition is given (substituting states and international organisations for states alone) in the 1986 Convention on Treaties between States and International Organisations. There are no specific requirements of form in international law for the existence of a treaty although it is essential that the parties intend to create legal relations as between themselves by means of their agreement. In the Fisheries Jurisdiction case (1973), the ICJ made its observations regarding validity of treaties concluded under coercion. The opinion of the court is hereby summarized: 1. Under the principles of contemporary international law, which found their expression in the charter of the UN and the VCLT, a treaty concluded under the threat or use of force is void. 2. The allegation that a given treaty is concluded under coercion is an accusation of a very serious nature, and it cannot be based on the grounds of a vague general charge, unfortified by evidence in its support. 3. By reason of the seriousness of this accusation, the question whether a given treaty is vitiated by coercion should be decided by an international body, preferably, the ICJ. United Nations The United Nations (UN) is a global organization tasked with maintaining and establishing international peace and security while fostering friendly relations among nations. It is the largest, most recognized and most powerful intergovernmental organization in the world. United Nations: The UN was formed following the devastating World War II, with the aim of preventing future global-scale conflicts. It was a successor to the 16 ineffective League of Nations. The representatives of 50 governments met in San Francisco on 25 April 1945, to draft what would become the UN Charter. The Charter was adopted on 25 June 1945 and came into effect on 24 October 1945. United Nations Functions In accordance with the Charter, the organization‘s objectives include maintaining international peace and security, protecting human rights, delivering humanitarian aid, promoting sustainable development, and upholding international law. At its founding, the UN had 51 member states; this number grew to 193 in 2011, representing the vast majority of the world‘s sovereign states. United Nations Structure The UN is structured around five principal organs: 1. General Assembly 2. United Nations Security Council (UNSC) 3. Economic and Social Council (ECOSOC) 4. International Court of Justice 5. UN Secretariat. A sixth principal organ, the Trusteeship Council, suspended operations on 1 November 1994, upon the independence of Palau, the last remaining UN trustee territory. A brief table about their primary function is given below: Principal Organs of the United Nations Name of the Primary Primary Tasks of the Organ Organ Function UN General Deliberative  May resolve non-compulsory Assembly assembly of all recommendations to states or the UN member suggestions to the Security Council states (UNSC);  Decides on the admission of new 17  members, following a proposal by the UNSC;  Adopts the budget;  Elects the non-permanent members of the UNSC; all members of ECOSOC; the UN Secretary-General (following his/her proposal by the UNSC); and the fifteen judges of the International Court of Justice (ICJ). Each country has one vote. UN Secretariat Administrative  Supports the other UN bodies organ of the UN administratively (for example, in the organization of conferences, the writing of reports and studies the preparation of the budget);  Its chairperson – the UN Secretary- General – is elected by the General Assembly for a five-year mandate and is the UN‘s foremost representative. International Universal court of  Decides disputes between states that Court of international law recognize its jurisdiction; Justice  Issues legal opinions;  Renders judgment by relative majority. Its fifteen judges are elected by the UN General Assembly for nine-year terms. UN Security Arbitrates  Responsible for the maintenance of Council international international peace and security; security issues  May adopt compulsory resolutions;  Has fifteen members: five permanent members with veto power and ten 18  elected non-permanent members (term – two years) UN Economic For global  Responsible for cooperation between and Social economic and states concerning economic and social Council social affairs matters;  Coordinates cooperation between the numerous specialized agencies of UN;  Has 54 members, elected by the General Assembly to serve staggered three-year mandates. UN For administering  Was originally designed to manage Trusteeship trust territory former colonial possessions. Council (now disbanded)  Has been inactive since 1994, when Palau, the last trust territory, attained independence. What are the Specialized Agencies of the UN? The UN Charter stipulates that each primary organ of the United Nations can establish various specialized agencies to fulfil its duties. There are 17 specialized agencies of the UN. They are mentioned in the table below: United Nations Specialized Agencies Agency Acronym Headquarters Founding Year Food and Agriculture Organization FAO Rome, Italy 1945 International Telecommunication Union ITU Geneva, 1865 Switzerland (Joined UN in 1947) 19 International Fund for Agricultural IFAD Rome, Italy 1977 Development International Labour Organization ILO Geneva, 1946 Switzerland International Maritime Organization IMO London, United 1948 Kingdom International Monetary Fund IMF Washington, 1945 United States United Nations Educational, Scientific UNESCO Paris, France 1946 and Cultural Organization World Health Organization WHO Geneva, 1948 Switzerland United Nations Industrial Development UNIDO Vienna, Austria 1966 Organization International Civil Aviation Organization ICAO Montreal, Canada 1944 World Intellectual Property Organisation WIPO Geneva, 1967 Switzerland International Fund for Agricultural IFAD Rome, Italy 1977 Development Universal Postal Union UPU Bern, Switzerland 1874 International Telecommunication Union ITU Geneva, 1865 Switzerland United Nations World Tourism UNWTO Madrid, Spain 1974 Organization World Meteorological Organisation WMO Geneva, 1950 Switzerland 20 World Bank Group WBG Washington, D.C, 1944 USA UN Agencies and Organisations There are several agencies, bodies, institutes and organisations that work under the UN system. Some of them predate the UN‘s establishment and were incorporated into the UN later on, while others were founded afterwards. They perform important functions across domains, regions and sectors. The table below mentions a few significant such organisations. Important Agencies & Programs under the UN System Agency Acronym HQ Founding Year United Nations Environment Programme UNEP Nairobi, 1972 Kenya United Nations Children‘s Fund UNICEF New York, 1946 USA United Nations Population Fund UNFPA New York, 1967 USA United Nations High Commissioner for UNHCR Geneva, 1950 Refugees Switzerland United Nations Office on Drugs and Crime UNODC Vienna, 1997 Austria United Nations Interregional Crime and UNICRI Turin, Italy 1968 Justice Research Institute United Nations Office for Disaster Risk UNDRR Geneva, 1999 Reduction Switzerland United Nations Development Programme UNDP New York, 1965 USA 21 United Nations University UNU Tokyo, Japan 1972 United Nations Conference on Trade and UNCTAD Geneva, 1964 Development Switzerland International Atomic Energy Agency IAEA Vienna, 1957 Austria United Nations Human Settlement UN- Nairobi, 1978 Programme Habitat Kenya Joint United Nations Programme on UNAIDS Geneva, 1994 HIV/AIDS Switzerland World Food Programme WFP Rome, Italy 1961 Office of the High Commissioner for Human OHCHR Geneva, 1993 Rights Switzerland UN Conventions The United Nations sets up international conventions, which may be legally binding on parties, on various issues and domains. Some of the important conventions, protocols, etc. are mentioned in the table below. You can read more about the conventions by clicking on their names. UNCLOS UNFCCC UNCBD UNCAT UNCRPD Minamata Convention Montreal Protocol Kigali Amendment UNCCD Kyoto Protocol GEF Rio Summit (UNCED) ITLOS UNCRC 22 UNTOC CEDAW India and the UN India was among the founding members of the United Nations. Even before achieving independence, India had signed the Declaration by the United Nations at Washington, D.C. in 1944, and also participated in the United Nations Conference on International Organization at San Francisco from 25 April to 26 June 1945. As one of the original members of the United Nations, India enthusiastically supports the purposes and principles of the UN and has made significant contributions in implementing the goals of the organisation. The UN field networks in India are the largest anywhere in the world through the many offices, programmes and funds currently at work in the country. Today, there are 26 UN agencies in India. Some of the milestones that the UN has made in India through its agencies are elaborated upon below: 1. Food and Agriculture Organization (FAO): 1. When FAO began its India operations in 1948, its priority was to transform India‘s food and farm sectors through technical inputs and support for policy development. 2. Over the years, FAO has made major inroads in resolving issues such as access to food, nutrition, livelihoods, rural development and sustainable agriculture. With the Sustainable Development Goals in full swing, the FAO‘s primary focus will be on improving India‘s sustainable agricultural practices. 2. International Fund for Agricultural Development (IFAD): 1. IFAD and the Government of India have achieved significant results in investing in the commercialization of smallholding-agriculture and building small farmers‘ capacity to increase incomes from market opportunities. 2. IFAD-supported projects have also provided women with access to financial services, such as by linking women‘s self-help groups with commercial banks. 23  3. UNAIDS: 1. India has worked with the UN on the Joint United Nations Programme on HIV/AIDS (UNAIDS). The main aim of the programme is to help prevent new HIV infections, care for people living with HIV and mitigate the impact of the epidemic. 2. Between 2001 and 2012 the total number of cases of the disease in India fell down by 50%, one of the highest in the world at that time. So far, India has managed to continue the trend. 4. Asian and Pacific Centre for Transfer of Technology (APCTT): 1. This is a UNESCAP regional institute established in 1977. It works in the fields of technology transfer, information and innovation management. 5. International Monetary Fund: India has been working closely with the IMF. For more on this, please check the linked article on IMF in the table above. 6. UNESCO: 1. India has been closely associated with the UNESCO. India has been continuously re-elected to the Executive Board of UNESCO since 1946. 2. A UNESCO Category I Institute dedicated to education for peace and sustainable development was established in 2012 and is called the Mahatma Gandhi Institute of Education for Peace and Sustainable Development (MGIEP). It is located in New Delhi. 3. There are also several UNESCO World Heritage Sites in India. For more on this, click the linked article. 7. World Health Organisation (WHO): WHO has been working closely with the Indian government to improve health outcomes. It has played a stellar part in eradicating several diseases such as cholera, controlling others like malaria, TB, etc. For more on WHO and India, you can check the WHO linked article from the table above. Similarly, other organisations have also played a great role in India and helped in its progress towards development, health and economic improvement. For details of each 24 organisation‘s role in India, you can go through the respective articles from the table above. India‟s Contribution towards the UN India has been an active member of the UN since its inception. In 1946, India became the first country to raise the issues of racism and apartheid in South Africa in the UN forum.  India played an important part in the drafting of the Universal Declaration of Human Rights in 1948. Read more about the contribution of Hansa Mehta in this regard.  The first woman president of the UNGA was an Indian, Vijayalakshmi Pandit, in 1953.  India‘s contribution to the UNSC can be read at the UNSC article from the first table on this page.  India has contributed immensely to UN Peacekeeping Missions in various parts of the world.  India has sent her peacekeeping troops to Korea, Egypt, Congo, Haiti, Angola, Somalia, Liberia, Rwanda, Lebanon, South Sudan, etc.  India has been regularly one of the largest contributor of troops to the missions.  Mahatma Gandhi‘s ideals of non-violence resonate deeply with the UN‘s principles. In 2007, the UN declared Gandhi‘s birth anniversary of October 2 as the ‗International Day of Non-violence‘. In 2014, the UNGA declared that 21st June would be observed as International Yoga Day. UN Reforms/What are the challenges faced by the UN? The UN has had its fair share of challenges in the years of its existence. Now there is no one single factor to those challenges but rather multi-faceted factors that make the UN‘s task of fostering world peace a difficult one. Some of the challenges to the UN‘s efforts for global peace are as follows: 25  Geopolitical aggression and intransigence: Conflicts are becoming commonplace and gradually being magnified by rival global powers as they lend support to proxy groups to wage war overseas. The UNSC, being dominated by a few nations, is unable to take a neutral stand on issues, thus endangering world peace and security. Apart from issuing declarations, the UN has been unable to stop certain conflicts from taking place.  Legacies of military intervention and regime change: Framed as interventions to counter terror, save civilians or remove rogue regimes, in case after case, military intervention and regime change have failed to bring lasting stability or to defeat fundamentalist groups. This has brought an atmosphere of distrust regarding any intervention done by the UN.  Panic over forced displacement: As desperate people flee war zones, the impact of forced displacement is hitting neighbouring countries hardest and they are trying to manage as best as they can. Meanwhile, Western governments are making hasty deals to support border and security forces in transit countries to close their borders and shut the problem out. But such short-term measures will only further antagonize the nations who are overburdened by the inflow of refugees.  Struggling humanitarianism: Undoubtedly humanitarians have a tough job. The UN and others are making enormous efforts, with inadequate resources, to assist the victims of conflict. But they are not yet good enough at defending humanitarian values, working for prevention during a crisis or empowering those affected by humanitarian crises to take the initiative.  Western interventions in countries like Syria, Iraq, Afghanistan, etc. have not brought about lasting peace or stability to those regions. The UN has largely been like a mute spectator to the horrible events (humanitarian crises, woes of migrants who flee these zones) that unfolded in these conflict-ridden zones of the world. Although, it must be acknowledged that many humanitarian efforts such as by the WHO, UNICEF, WFP, etc. have helped these zones immensely at least in their respective domains. However, political resolutions to conflicts are more tricky and the UN does face enormous challenges in this regard.  UNSC Reforms: There have been great demands for reforms within the Security Council. The G4 Nations comprising India, Germany, Brazil and 26  Japan are championing each other‘s bid for permanent seats in the Security Council. You can read more on the United Nations Security Council Reforms in the linked article. Not only in the UNSC, world leaders are also demanding a change in the manner in which the UN system functions, calling for more localisation, lesser bureaucracy and more decision-making powers to those nations where most of the UN‘s humanitarian work is concentrated, like the African countries. Like all challenges, there are solutions to face them as well. Here are a few solutions on how the UN works for conflict resolution and peaceful change in an era of mistrust and division.  In an era where a consensus, political or otherwise, is hard to arrive at, it will be crucial to use the vision and the mandate of the Sustainable Development Goals (SDGs). This consensus was developed through a uniquely consultative process.  ‗Sustaining peace‘ should also be a moment to reclaim the policy space. A panic regarding policy is setting in – framing conflicts as „terror‟ threats and as a „migration‟ crisis is only enlarging the problem. Prevention and peacemaking tools are the answer to these problems.  The UN must not settle for an inert and technocratic approach focused only on building the capacity of state institutions, no matter how strong or weak the political pressure. At the heart of the SDGs is a drive for transformative change with more peaceful, just and inclusive societies helping to shape stronger and more inclusive institutions. If sustaining peace merely means reinforcing the very institutions that are at the heart of the problem – such as blood-thirsty military regimes or corrupt bureaucracies – then, such an endeavour is an exercise in futility.  Remaining true to an agenda that will transform people‟s lives requires supporting those who work for peaceful change – in and out of government, including women and youth. This requires a willingness to step out of national capitals, to talk to a wider range of people, to build up an understanding of conflicts rooted in people‘s priorities, and to work in solidarity with people to help them. 27   These reforms are of utmost importance as the world faces newer challenges in the form of climate change, environmental degradation, population growth, refugee and stateless peoples, etc. Important Cases: Case-I- CORFU CHANNEL CASE The Corfu Channel case was the first contentious case heard by the International Court of Justice, the supreme arbitration organ of the United Nations and one of the principal sources of authoritative rulings on international law. FACTS OF THE CASE: On May 15th 1946 the British warships passed through the Channel without the approval of the Albanian government and were shot at. Later, on October 22nd, 1946, a squadron of British warships (two cruisers and two destroyers), left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. Both destroyers were struck by a mine and were heavily damaged. This incident resulted also in many deaths. The two ships were mined in Albanian territorial waters in a previously swept and check-swept channel. After the explosions of October 22nd, the United Kingdom Government sent a note to the Albanian Government, in which it announced its intention to sweep the Corfu Channel shortly. The Albanian reply, which was received in London on October 31st, stated that the Albanian Government would not give its consent to this unless the operation in question took place outside Albanian territorial waters. Meanwhile, at the United Kingdom Government‘s request, the International Central Mine Clearance Board decided, in a resolution of November 1st, 1946, that there should be a further sweep of the Channel, subject to Albania‘s consent. The United Kingdom Government has informed the Albanian Government, in communication of November 10th, that the proposed sweep would take place on November 12th, the Albanian Government replied on the 11th, protesting against this 28 ‗unilateral decision of His Majesty‘s Government‘. It said it did not consider it inconvenient that the British fleet should undertake the sweeping of the channel of navigation, but added that, before sweeping was carried out, it considered it indispensable to decide what area of the sea should be deemed to constitute this channel, and proposed the establishment of a Mixed Commission for the purpose. It ended by saying that any sweeping undertaken without the consent of the Albanian Government outside the channel thus constituted, i.e., inside Albanian territorial waters where foreign warships have no reason to sail, could only be considered as a deliberate violation of Albanian territory and sovereignty. After this exchange of notes, ‗Operation Retail‘ took place on November 12th and 13th. One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu. ISSUES: The British government claimed the minefield which caused the explosions was laid between May 15th, 1946, and October 22nd, 1946, by or with the approval or knowledge of the Albanian Government. Thus Albania was responsible for the explosions and loss of life and had to compensate the UK government. In addition to the passage of the United Kingdom warships on October 22nd, 1946, the second question in the Special Agreement relates to the acts of the Royal Navy in Albanian waters on November 12th and 13th, 1946 when the British government carried out a minesweeping operation called ‗Operation Retail‘ without the consent of Albania. The UK held the opinion the passage on October 22nd, 1946 was innocent and that according to rules of international law it had the right to innocent passage through the North Corfu Channel as it is considered part of international highways and does not need a previous approval of the territorial state. The Albanian Government does not dispute that the North Corfu Channel is a strait in the geographical sense; but it denies that this Channel belongs to the class of international highways through which a right of passage exists, on the grounds that it is only of secondary importance and not even a necessary route between two parts of the high seas, and that it is used almost 29 exclusively for local traffic to and from the ports of Corfu. Thus a previous approval of the territorial state is necessary. 1) Should the North Corfu Channel as it is considered part of international highways? 2) Is Albania responsible under international law for the explosions which occurred on the 22nd October 1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation? ANALYSIS: The court analyzed the geographical situation of the channel connecting two parts of the high seas and was in fact frequently being used for international navigation. Taking into account these various considerations, the Court concluded that the North Corfu Channel should be considered as belonging to the class of international highways through which an innocent passage does not need special approval and cannot be prohibited by a coastal State in time of peace. The UK government claimed that on October 22nd, 1946, Albania neither notified the existence of the minefield nor warned the British warships of the danger they were approaching. According to the principle of state responsibility, they should have done all necessary steps immediately to warn ships near the danger zone, more especially those that were approaching that zone. In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania. But Albania‘s obligation to notify shipping of the existence of mines in her waters depends on her having obtained knowledge of that fact in sufficient time before October 22nd; and the duty of the Albanian coastal authorities to warn the British ships depends on the time that elapsed between the moment that these ships were reported and the moment of the first explosion. CONCLUSION OF THE COURT: The Court, therefore, reached the conclusion that Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon Albania to pay compensation to the United Kingdom. 30 In the second part of the Special Agreement, the following question is submitted to the Court: Has the United Kingdom under international law violated the sovereignty of the Albanian People‘s Republic by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the 12th and 13th November 1946 and is there any duty to give satisfaction? Albania was in fact in war with Greece which means that the coastal state was not in time of peace. The UK had not an innocent passage due to the way it was carried out. The court assessed the manner of UK warships after they had been shot on May 15th. Having thus examined the various contentions of the Albanian Government in so far as they appear to be relevant, the Court has arrived at the conclusion that the United Kingdom did not violate the sovereignty of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946. The United Kingdom Government does not dispute that ‗Operation Retail‘ was carried out against the clearly expressed wish of the Albanian Government. It recognizes that the operation had not the consent of the international mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly that, in principle, international law does not allow a State to assemble a large number of warships in the territorial waters of another State and to carry out minesweeping in those waters. The United Kingdom Government states that the operation was one of extreme urgency and that it considered itself entitled to carry it out without anybody‘s consent. The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rising to most serious abuses and such as cannot, whatever be the present defects in international organization, The United Kingdom Agent, in his speech in reply, has further classified ‗Operation Retail‘ among methods of self-protection or self- help. The Court cannot accept this defense either find a place in international law. The final conclusion of the court: 1) On the first question put by the Special Agreement of March 25th, 1948, 31 The court gives judgment that the People‘s Republic of Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life that resulted there from; and Reserves for further consideration the assessment of the amount of compensation and regulates the procedure on this subject. 2) On the second question put by the Special Agreement on the violation of state sovereignty, The court gives judgment that the United Kingdom did not violate the sovereignty of the People‘s Republic of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946; and unanimously, gave judgment that by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November 12th and 13th, 1946, the United Kingdom violated the sovereignty of the People‘s Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction. Case 2: Asylum Case: The case concerned Haya de la Torre, a Peruvian, who was sought by his government after an unsuccessful revolt. He was granted asylum by Colombia in its embassy in Lima, but Peru refused to issue a safe conduct to permit Torre to leave the country. Colombia brought the matter before the International Court of Justice and requested a decision recognizing that it (Colombia) was competent to define Torre‘s offence, as to whether it was criminal as Peru maintained, or political, in which case asylum and a safe conduct could be allowed. The Court, in characterising the nature of a customary rule, held that it had to constitute the expression of a right appertaining to one state (Colombia) and a duty incumbent upon another (Peru). However, the Court felt that in the Asylum litigation, state practices had been so uncertain and contradictory as not to amount to a „constant and uniform usage‟ regarding the unilateral qualification of the offence in question. Case 3: Anglo-Norwegian Fisheries Case: The ICJ emphasised its view that some degree of uniformity amongst state practices was essential before a custom could come into existence. The United 32 Kingdom, in its arguments against the Norwegian method of measuring the breadth of the territorial sea, referred to an alleged rule of custom whereby a straight line may be drawn across bays of less than ten miles from one projection to the other, which could then be regarded as the baseline for the measurement of the territorial sea. The Court dismissed this by pointing out that the actual practice of states did not justify the creation of any such custom. In other words, there had been insufficient uniformity of behavior. Case 4: ADVISORY OPINION OF THE ICJ ON THE LEGALITY OF NUCLEAR WEAPONS Background  The General Assembly of the United Nations asked the Court to provide its advisory opinion on the following question  ―Is the threat or use of nuclear weapons in any circumstances permitted under international law?‖  In 1993, two years previously, the World Health Organization had asked the Court a similar question on the legality of the use nuclear weapons under international law. The Court declined to answer because the Court held that the World Health Organization did not have the competence to ask the Court that particular question. Questions before the Court The Court discussed two procedural questions: (1) Did the Court have the competence to give an advisory opinion based on a request of the General Assembly? In other words, did the General Assembly have the competence to ask the Court for an advisory opinion on the above question? (2) If yes, were there any reasons that would compel the Court to decline to exercise it‘s jurisdiction? 33 The Court also discussed four substantive questions: (1) Did treaty or customary law authorize the use of nuclear weapons? (2) Did treaty or customary law contain a ―comprehensive and universal‖ prohibition on the threat and use of nuclear weapons? (3) Should the threat or use of nuclear weapons be compatible with international humanitarian law and other undertakings of the law? (4) Will the threat or use of nuclear weapons be lawful in self defense in situations where the very survival of the State is at stake? Court’s Decision o Did the Court have the jurisdiction to give a reply to the request of the General Assembly? The Court concludes that it had the jurisdiction to respond to the question for the following reasons:  Firstly, the Court says that it has the competence under Article 65 (1) of the Statute of the ICJ to provide an advisory opinion, when it is requested by a ―competent organ of the United Nations‖.  Secondly, the General Assembly is a ―competent organ‖ because it is authorized by Article 96 (1) of the United Nations Charter to request an advisory opinion from the Court.  Thirdly, together with Articles 10, 11, and 13, Article 96(1) of the UN Charter gives the General Assembly the competence to request an advisory opinion on ―any legal question‖. The Court concludes that there are no ―compelling reasons‖ to refuse to provide a response to the advisory opinion.  The Court agrees that even if it has the competence to give an opinion, it can still refuse to respond to an advisory opinion based on the discretion it has under Article 65 (1) of the Statute.  Some States argued that Court should use its discretion to refuse to give an opinion. This is because, they argued, for example, that the question posed by the General Assembly was abstract, any response would undermine progress already made in disarmament, and that in answering the question posed the Court would be taking upon itself a law-making capacity. 34   The Court confirms that it had previously never exercised its discretion under Article 65 (1) to refuse to answer a question. The Court says that only ―compelling reasons‖ could lead to such a refusal and in this situation, there are no ―compelling reasons‖ which would lead Court to refuse. o Did customary or treaty law authorize the use of nuclear weapons? o The Court concludes that neither customary law, nor treaty law, explicitly authorizes the use of nuclear weapons. o Yet, it highlights that explicit authorization is not required because the illegality on the threat or use of nuclear weapons does not stem from the lack of specific authorization, but on a specifically formulated prohibition o Did treaty or customary law prohibit the threat and use of nuclear weapons? o Court concludes that there is no comprehensive and universal prohibition on the threat or use of nuclear weapons either in treat or customary law. o In terms of treaty law, some States argued that the use of nuclear weapons would violate the right to life and other treaty-based human rights, prohibition on genocide, and rules relating to the protection of the environment. The Court says that none of these treaties provide a ―universal and comprehensive‖ prohibition on the use of nuclear weapons. o Then, the Court says that the ―most directly relevant applicable law‖ is the UN Charter provisions relating to the use of force and those laws that govern armed conflict. However, it finds that both of these legal regimes also do not expressly prohibit, nor permit, the use of nuclear weapons. o In terms of customary law, the Court finds that the opinio juris on the prohibition of the use of nuclear weapons differs amongst States, as reflected in the content and voting patterns of General Assembly resolutions, their views on deterrence and the non use of nuclear weapons in the recent past. o The Court concludes that there is no comprehensive and universal prohibitions on the threat or use of nuclear weapons under treaty law or customary law. o If international law does not explicitly prohibit the threat or use of nuclear weapons, is their use regulated under international law? 35 o Thus far, the Court has concluded that there are no provisions in international law that authorizes or prohibits the threat or use of nuclear weapons by States. The Court now goes a step further to examine if the threat or use of these weapons is regulated under international law. o The Court finds as follows: o UN Charter: Court had established that the UN Charter did not permit or prohibit the use any type of weapons. However, it finds that for the a threat or use of force in self defense to be lawful under Article 51 of the UN Charter, the use of nuclear weapons must be necessary and proportionate to the armed attack against which self-defense is exercised. The Court says that the use of nuclear weapons may be proportionate in certain circumstances o International humanitarian law: The Court goes on to hold that even if the threat or use of nuclear weapons is lawful under the UN Charter (in other words, when it is necessary and proportionate), it must still meet the requirements of laws regulating armed conflicts, including international humanitarian law and principles relating to neutrality. o The Court finds that it cannot conclude that the recourse of nuclear weapons ―would be illegal in any circumstances or if the use of nuclear weapons was inherently and totally incompatible with international humanitarian law. o The Court also finds that it could not reach a conclusion on the legality or illegality of the use of nuclear weapons in ―an extreme case of self defense‖. The Court also highlights the “fundamental right of every State to survival” o The Court didn‘t elaborate on what would constitute an extreme case of self-defense nor address whether a State having nuclear weapons (a nuclear State) can use it in the defense of another non-nuclear State when that second State‘s very existence is threatened. o The Court finds that: 1. Articles 2(4), 42, and 51 of the UN Charter that relates to the legality on the use of force, is silent on the specific weapons that can be used when using force. 36  2. International humanitarian law treaties (part of those laws governing armed conflict), including the Hague Convention IV of 1907 and the Geneva Protocol of 1925 have been understood in State practice, as not covering nuclear weapons. Similarly, other humanitarian law treaties governing weapons of mass destruction, like the Biological and Chemical Weapons Conventions, also do not contain prohibitions on the use of nuclear weapons. 3. The Court also points out that those treaties that specifically relate to nuclear weapons only limit its use, but does not support a general prohibition. o The Court finds that the members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes the expression of opinio juris. o Under these circumstances the Court does not consider itself able to find that there is such an opinio juris… The emergence of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence to the practice of deterrence on the other. Module 2: The relationship between international law and national law Theories of relationship between international law and municipal law Theories as to Relationship between International Law and Municipal Law can be broadly classified in to two kinds known as Dualistic Theory and Monist theory Dualism & Monism: Dualists see International Law and Municipal Law as distinct and separate – arising from different sources, governing different areas and relationships, and different in substance. According to Dualists, international law is inferior to and weaker than, domestic law. If international law ever becomes part of domestic law, that can only be because domestic law, has chosen to incorporate it. Monists on the other hand contend that there is only one system of law, of which international and domestic laws are no more than two aspects. 37 They justify this by claiming that both of them govern sets of individuals (States being seen for this as collection of individuals) both are binding, and both are manifestations of a single concept of law. Hence international law is superior and stronger, as it represents the system‘s highest rules – jurisdiction on a domestic level being only delegated to states, which cannot avoid being bound to apply international law at the domestic level. So, if domestic law anywhere conflicts with international law that is the State‘s fault, and will not excuse the State‘s obligations. Viewed on the international plane, the dispute between these two schools of thought is indeed academic. ―Formally international and domestic law as systems can never come into conflict. What may occur is something strictly different, namely a conflict of obligations or an inability for a state on the domestic plane to act in the manner required by international law‖. It is well settled that international law will apply to a state regardless of its domestic law and that a state cannot in the international forum plead its own domestic law, or even its domestic constitution, as an excuse for breaches of its international obligations. Viewed on the domestic plane, however, the dispute is not merely an academic one, for the two schools of thought lead to very different results. Whether international law forms part of domestic law is a question, which in practice, is decided either by the Constitution or a Statute or by the domestic Courts of each State. Monists say that it will always form such a part; dualists, that it will form part only if the domestic law has expressly as impliedly incorporated it. In fact, many States expressly accept international law as part of their domestic law, leaving academicians to debate whether the acceptance was necessary or superfluous. But others do not. Where international law becomes incorporated in a State‘s domestic law without the need for specific legislation, those parts of it, which are sufficiently explicit to be enforceable by the domestic courts, are known as ‗self executing. Some States provide by their Constitutions that certain provisions of international law shall be self-executing. For example, the Constitution of the U.S.A., provides that international treaties are part of the law of the land. Other countries have gone even further by not only making international law self executing, but assigning to it a rank in the domestic hierarchy superior to all prior and subsequent legislation. Examples of 38 this are France and Germany. But there are other States that do not accept any international law as self-executing, or so accept it in part. For example United Kingdom (U.K.). Where International Law and Domestic Law coincide, there is of course no problem. But if they differ – either because International law imposes an obligation on a State which is not reflected in its domestic law, or because obligations imposed by international law and domestic law respectively conflict with each other in a particular case – a domestic court will generally have to apply the following rules. (1) Where the domestic legal system is founded on a dualists view, and the obligation under international law has not become self-executing under a standing provision of the domestic law or been expressly re-enacted in that law, the court must follow the domestic law and ignore the international law. (In U.K. where the legal system is entirely dualist and there are no provision for self-execution), U. K. courts are not entitled to take into account provision of international treaties if the legislature has not expressly enabled them as part of domestic law though U.K. is bound by treaty provision. (2) In any other case, the court must have regard both to international law and to domestic law. If there proves to be a conflict between them, the court must follow any rules of domestic law that prescribe which of them is to prevail. (3) If there are no such rules, it will probably be because the domestic legal system is founded on the monistic view, and so international law will prevail. Unfortunately, however, existing legal theories concerning such application of international rights tend to belittle both the judicial agency and the desirability of judicial participation in implementing even relatively uncontroversial international rights at domestic levels. The existing pattern of marginalization of domestic enforcement of International Human Rights Law is deeply rooted in a naive exploration of the theory of relationship between domestic law and international law. The monist‘s theory rightly contemplates International Law and Domestic Law as just two manifestations of one singular concept, ―Law‖. As such the judiciary in a monist country is ideally in a position to directly apply international human rights norms. By contrast, unincorporated international human rights treaties are considered as only having ‗persuasive‘ and not ‗binding‘ authority for judiciaries of dualist tradition, 39 although as regards customary international law most dualist court follow, if more theoretically than practically, a notionally monist tradition of recognizing customary international human rights as directly applicable part of national laws. The traditional divide between ‗binding‘ and ‗persuasive authority‘ of international human rights norms simply holds the possibility that a judge may if he/she so wishes, draw on those norms to inform his/her decisional reasoning. The approach does not focus on the obligations that a state assumes by becoming a party to an international convention, or under higher, general international principle; nor does it articulate to refer, at the minimum, to those international legal sources of state obligations. In short the existing dualist model, tends to weaken both the normative and ethical regime of international human rights law as a whole. Thus, the dualist model seems to put limits of legal positivism. But, if one concedes to the view that, apart from state obligations, there are also values and ethical force in international human rights, one would be able to pursue a more effective approach to the dualism. Mayo Moran aptly questioned the dominance of the ―world of legal judgment‖ by the traditional ―binding sources‖ model of international rules. While supporting the persuasive stance regarding non-binding international law, they critique that the courts current approach does not properly distinguish between ‗binding‘ and ‗persuasive‘ authorities of international rights law and urge for judicial obligations to interpret binding international law (e.g. customary) more actively. Moran describes the approach of courts in this regard (treating International Law as persuasive) as one of ‗Judicial quasi-obligation‘. It appears that dualist model courts treat International Human Rights Law as not ‗rights generating‘ but only helps in articulating rights based on domestic regime of law. Such an approach is suicidal one considering the legal foundation upon which International Human Rights Law exists. 40 Theories as to Application of International Law within Municipal Sphere For conceptual clarity on relations ship between municipal law and international law, it is pertinent to discuss the theories as to Application of International Law within the Municipal sphere. Specific Adoption, Specific Incorporation or Transformation Theory: The Dualist considers that the rules of International Law cannot directly be applied within the municipal sphere by State Courts. In order to be so applied such rules must undergo a process of specific adoption or specific incorporation into municipal law. According to Dualist Theory, International Law and Municipal Law cannot impinge upon state law unless Municipal Law allows its constitutional machinery to be used for that purpose as they are two separate and structurally different systems. Dualists argue that, in the case of treaty rules, there must be transformation of the treaty into state law. They further claim that such transformation of treaty into state law should not merely a formal but a substantive requirement, and that alone validates the extension to individuals of the rules laid down in treaties. These theories rest on the supposed consensual character of International Law as contrasted with the non-consensual nature of state law. According to this theory, there is a difference between Treaties which are of the nature of promises, and Municipal statutes which are of the nature of commands and that the transformation of International Treaties to the Municipal sphere is formally and substantively indispensable. However, this argument is criticized by saying that the distinction between promise and command is relevant to form and procedure but not to the true legal character of these instruments. Delegation Theory: The ‗Delegation Theory‘ which is put forward by the critics of the transformation theory maintain that the Constitution Rules of International Law delegated to each state Constitution, the right to determine when the provisions of a treaty or a convention is to come into force and the manner in which they are to be embodied in State law. Further, the supporters of Delegation theory contend that the procedure and 41 methods to be adopted for this purpose by the state are a continuation of the process begun with the conclusion of the treaty or convention. They argue that, there is no transformation, no fresh creation of rules of municipal law, but merely a prolongation of one single act of creation and the constitutional requirements of state law are thus merely part of a unitary mechanism for the creation of law While the monist/dualist debate continues to shape academic discourse and judicial decisions, it is unsatisfactory in many respects. State Practice on the Domestic Application of International Law: Domestic use of international human rights treaties has been a subject of debate in almost all countries. This is mainly because of the effect of common law that had great bearing on the jurisprudence of several countries since they were once colonies of British Empire and even after liberation, common law still continue to influence the jurisprudence of these countries. However, in recent years there is a sharp departure from dualist approach and most national courts are tending towards monist view on the subject. A brief overview of domestic application of international human rights law in states other than India will offer comparative analysis of domestic use of international human rights treaties. Further it will also help understand the prevailing trend and interpretative techniques that are adopted to incorporate international human rights laws in to the domestic jurisprudence. Practice of United States of America Application of International Treaty Rules in U.S.A: Unlike India, the treaty making power and the status of international law in U.S. is clearly provided under the U.S. Constitution. Article II Section 2 of the Constitution of U.S.A. provides that; ―the President shall have power, by and with the advise and consent of the Senate, to make treaties, provided two-thirds of senators present concur….‖ The President initiates and conducts negotiations of the treaties and after signing them, places them before Senate for its ―Advice and Consent‖ 42 A distinction is made in the U.S.A. between treaties and agreements. Treaties are required by the Constitution to be submitted before the Senate for approval/ratification. Whereas the agreements (known as executive agreements), are entered into and signed by the President in exercise of his executive power. The types of agreements so contemplated are those relating to foreign relations and military matters that do not affect the rights and obligations of the citizens. However, in the case of trade agreements, such agreements are subject to ratification by both Houses but only by a simple majority. England: Practice The domestic application of international law in England draws a distinction between i) customary rules of international law; ii) treaty rules. Customary Rules of International Law: According to the 18th Century ―Blackstonian‖ Doctrine, generally known as incorporation doctrine, customary international law was deemed automatically to be part of the common law. Treaty Rules: The application of treaty rules in England is primarily conditioned by the constitutional principles governing the relations between the executive (crown) and Parliament. The negotiation, signature and ratification of treaties are matters belonging to the prerogative powers of the crown. Current Practice: The modern practice in England is of submitting treaties to Parliament for ratification. This is because of a statement made on 1st April 1924 by Mr. Ponson, the Under Secretary of State for Foreign affairs in Parliament of the intention of the new Government to lay on the table of both House of Parliament every treaty, when signed, for a period of twenty one days, after which the treaty will be ratified and published and circulated in the Treaty Series. The object of this practice is to secure publicity for treaties and to afford opportunity for their discussion in Parliament if desired. It apparently does not apply to those 43 kinds of treaties, usually of minor or technical importance, which do not require ratification. It appears that practice only applies to treaties that are made subject to ratification. Thus, domestic application of international human rights law in England reflects dualist approach in the sense that international human rights treaties do not form part of the corpus juris of England unless Parliament enacts a law incorporating the treaty provisions in to the English law. That means all Multilateral Treaties including human rights are non-self executing treaties and in that context English practice of domestic application of international treaties is completely different from U.S. where treaties are regarded as supreme law of the land. However customary international law is regarded as part and parcel of the law of land in both England and U.S. Subjects of International Law Introduction Some questions that are relevant to the study of international law include who can create international law? Who has rights, duties, and powers under international law? (or international legal personality); and who is regulated (governed), directly or indirectly, by international law? Dixon – “A subject of international law is a body or entity recognized or accepted as being capable, or as in fact being capable, of possessing and exercising international law rights and duties” The terms ―subjects of international law‖ refers to entities endowed with legal personality, capable of exercising certain rights and duties on their own account under the international legal system. According to Starke, the term ―Subject of international law‖ means; an incumbent of rights and duties under international law; The holder of procedural privileges of prosecuting a claim before an international tribunal; and The possessor of interests for which provision is made by international law Oppenheim says that an international person is one who possesses legal personality in 44 international law meaning one who is subject of international law so as to enjoy rights, duties or powers established in international law. It also gives the capacity to act on the international plane either directly or indirectly through the state. Theories regarding subjects of International Law 1. Realist Theory (States alone are subjects of International Law) According to the orthodox positivist doctrine, states are the only subjects of International law. According to Prof. Oppenheim, ―the law of nations is primarily a law of international conduct of states and not of their citizens‖. If individuals have any right then it can be claimed only through the states. The Jurists of this school believes that the states are the subjects of international law, while individuals are the objects of international law. Criticism of Realist Theory It is silent on the rights of the individuals and the international offences for which individuals may be punished. In Reparation for injuries suffered in the services of the UN case, the ICJ held ―that the UN has the capacity to bring an international claim against the State for obtaining reparation when an agent of UN suffers injury.‖ 2. Fictional Theory (Individuals alone are subjects of International Law) In this theory, Jurists believe that Individuals are the only subjects of international law as states do not have soul or capacity to form an autonomous will. Prof. Kelson opined that the laws ultimately apply to the individuals and are for the individuals alone. As per this theory, the welfare of an individual is the ultimate goal of international law. Criticism of Fictional Theory The primary concern of International law is the rights and duties of the states. Individuals possess many rights under international law but their capacity to enforce these rights is limited. In most of the cases, a state files the claims for the rights of the citizens. In Mavrommatis Palestine Concession case (1934), the PCIJ observed that ―It is an elementary principle of international law that a state is entitled to protect its subjects‖. 45 3. Functional Theory (States, Individuals and some non-state entities are subjects of International law) The jurists with a moderate view criticize both of the above theories. These Jurists believe that States, Individuals and certain non-state entities are subjects of international law. Now, Individuals have got right even against the states. An example of this is the European Convention on Human Rights in 1950. Under International Covenants on Human rights 1966, it is held that individuals can claim rights directly under international law. In some cases, Non-state actors like Colonies and Protectorate states are treated as subjects of international law. MODULE 3: Law of International Treaties States transact a vast amount of work by using the device of the treaty, in circumstances which underline the paucity of international law procedures when compared with the many ways in which a person within a state‘s internal order may set up binding rights and obligations. For instance, wars will be terminated, disputes settled, territory acquired, special interests determined, alliances established and international organizations created, all by means of treaties. No simpler method of reflecting the agreed objectives of states really exists and the international convention has to suffice both for straightforward bilateral agreements and complicated multilateral expressions of opinions. Thus, the concept of the treaty and how it operates becomes of paramount importance to the evolution of international law. The fundamental principle of treaty law is undoubtedly the proposition that treaties are binding upon the parties to them and must be performed in good faith, this rule is termed pacta sunt servanda and is arguably the oldest principle of international law. It was reaffirmed in article 26 of the 1969 Convention,8 and underlies every international agreement for, in the absence of a certain minimum belief that states will perform their treaty obligations in good faith, there is no reason for countries to enter into such obligations with each other. The term ‗treaty‘ itself is the one most used in the context of international agreements but there are a variety of names which can be, and sometimes are, used to express the 46 same concept, such as protocol, act, charter, covenant, pact and concordat. They each refer to the same basic activity and the use of one term rather than another often signifies little more than a desire for variety of expression. The making of treaties: Formalities- Treaties may be made or concluded by the parties in virtually any manner they wish. There is no prescribed form or procedure, and how a treaty is formulated and by whom it is actually signed will depend upon the intention and agreement of the states concerned. Treaties may be drafted as between states, or governments, or heads of states, or governmental departments, whichever appears the most expedient. For instance, many of the most important treaties are concluded as between heads of state, and many of the more mundane agreements are expressed to be as between government departments, such as minor trading arrangements. Consent- Once a treaty has been drafted and agreed by authorized representatives, a number of stages are then necessary before it becomes a binding legal obligation upon the parties involved. The text of the agreement drawn up by the negotiators of the parties has to be adopted and article 9 provides that adoption in international conferences takes place by the vote of two-thirds of the states present and voting, unless by the same majority it is decided to apply a different rule. Reservations to treaties- A reservation is defined in article 2 of the Convention as: A unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state. Stages of formation of treaties- There is no specific form for the conclusion of treaties. An oral agreement between the representatives of the States charged with the task of conducting negotiations and empowered to bind their respective countries is sufficient to have a binding effect if it 47 is the intention of the representative to conclude a legally binding transaction. The enormous importance of the issue involved in such agreements however necessities the compliance of formal requirements and reducing the agreements into a document. Various Stages of formation of the treaties: According to Starke the various Stages of formation of the treaties are as follows – 1) Accrediting of Representatives- Each of the State Conducting negotiation appoints a representative or plenipotentiary for this purpose. He is provided with an instrument given by the Minister for Foreign Affairs showing his authority to conduct such negotiations, which is known as the full power. 2) Negotiation- It is a bilateral process, sometimes multilateral. There are proposals as to negotiation. In our commercial transaction, there is a bargain there are proposals and counter proposals. Ultimately leading towards the concluded Contract. In respect of two or more States, so as to have the discussion with Pleni Potentials. These negotiations are depended upon the terms of credentials and powers of the representatives. In practices, before signing the text after negotiation the delegates obtain fresh instruction to sign the treaties with or without Reservation. If the proposal is accepted, then it is said to be a draft treaty. In draft treaties, the Conclusion of discussions is put together in the precise statement and reduced into writing the commonly agreed terms in various proposals. It is a premature stage of the final draft. 3) Signature- When the final draft of a treaty is drawn up, the instrument is ready for signature. The signature is affixed at a formal closing session. A treaty generally comes into force on signature by plenipotentiaries of the Contracting States unless the States desire to subject it to ratification. Treaties and conventions are generally always sealed. 4) Ratification- It is an act of adopting an international treaty by the parties thereto. In other words, ratification implies the confirmation of the treaty entered into by the representatives of the different states. States may be bound by the treaties only when they have given their consent. There are number of ways in which a State may express its consent to a treaty. It may be given either by signature, exchange of instruments, ratification or accession. When there are no full powers, conferred on the representatives when the 48 parties are representatives in absence of Pleni Potentials then such treaties are negotiated by the representatives by their signature subject to ratification. When they have limited power then treaty can be reserved for ratification by the state Pleni Potentials. It is the basic term stipulated in the credentials itself. 1. The Gabcíkovo-Nagymaros Project, (Hungary/Slovakia), Judgment of 25 September 1997 Synopsis of Rule of Law: Watercourse states shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Facts: In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of dams and other projects along the Danube River that bordered both nations. Czechoslovakia (D) began work on damming the river in its territory when Hungary (P) stopped working on the project and negotiation could not resolve the matter which led Hungary (P) to terminate the Treaty. Hungary (P) based its action on the fact that the damming of the river had been agreed to only on the ground of a joint operation and sharing of benefits associated with the project, to which Czechoslovakia (D) had unlawfully unilaterally assumed control of a shared resource. Issue: Shall watercourse states participate in the use, development and protection of an international watercourse in an equitable and reasonable manner? Held: Yes.