TOPIC 1: Nature and Development of International Law
Definition of International Law:
Oppenheim’s 1905 Definition: Initially defined as customary and conventional rules binding on “civilised states”.
Criticism and Evolution:
The definition was criticized for excluding international organizations and individuals as subjects of international law, and for using the term “civilised states”.
Later editions of Oppenheim’s book removed the term “civilised states”.
Modern International Law increasingly recognizes public international organizations and individuals as subjects with rights and duties, as confirmed by developments like the Universal Declaration of Human Rights (1948) and International Covenants on Human Rights.
International law is now understood to include “General Principles of Law” and is a dynamic, evolving concept, not static.
Ninth Edition Definition: International law is legally binding on states, and to some extent, on international organizations and individuals.
Basis of International Law – Jurisprudential Theories:
Denial of Legal Character: Jurists like Hobbes, Austin, and Pufendorf argued that international law is not “true” law because it lacks a sovereign command and coercive enforcement mechanism, viewing it as “positive morality”.
Arguments for Legal Character: Most jurists today consider international law as true law. Arguments include:
Law is not exclusively limited to sovereign commands; customary laws existed without a sovereign.
The bulk of international law now comprises binding law-making treaties.
States treat international law as binding, relying on treaties and precedents.
In states like the USA and UK, international law is considered part of their domestic law, as seen in Paquete v. Habanna.
The ICJ operates under international law, and its decisions are binding and enforceable (via the UN Security Council under Article 94 of the UN Charter).
Sanctions exist, although less effective than in municipal law.
Conclusion: International law is indeed law, though it operates in a decentralized system unlike municipal law.
Basis of International Law: Jurisprudential Theories (Continued):
Law of Nature: Views international law as derived from natural law, based on right reason and the inherent nature of humanity.
Positivism: Grounds international law in the actual practice and will of states, with treaties and customs as primary sources.
Sanctions of International Law:
While not as centralized as municipal law, international law has sanctions, including actions by the UN Security Council under Chapter VII (threats to peace, aggression), binding ICJ decisions (enforceable by Security Council), and the prohibition of force by UN members (Article 2(4) of the UN Charter).
Other sanctions include adverse public opinion, economic sanctions, diplomatic pressure, and the possibility of punishment for war crimes.
Subjects of International Law:
An entity capable of possessing international rights and duties and acting on the international plane.
Theories:
States alone: Traditionally, only states were considered subjects.
Individuals alone (Kelsen): Argued that all law ultimately applies to individuals.
States, individuals, and non-state entities: The modern and widely accepted view, recognizing that treaties and international instruments now confer rights and duties directly on individuals (e.g., human rights conventions).
TOPIC 2: Sources of International Law
Formal and Material Sources:
Formal sources provide a rule’s validity (e.g., custom).
Material sources provide the substance (e.g., state practice).
Article 38(1) of the ICJ Statute: Identifies the primary sources:
International Conventions (treaties).
International Custom (evidence of general practice accepted as law).
General Principles of Law recognized by civilized nations.
Judicial Decisions and Teachings of Publicists (subsidiary means).
International Conventions (Treaties):
The most important modern source, allowing states to deliberately create binding law.
Include Law-making treaties (e.g., UN Charter, Geneva Conventions on the Law of the Sea) and Treaty Contracts (bilateral or limited multilateral agreements).
International Custom:
The oldest source, evolving from consistent state “usage” combined with opinio juris (a belief that the practice is legally obligatory).
Case Law:
***Lotus case (France v Turkey) PCIJ (1927)***: Established that abstention from action only forms custom if based on a conscious duty to abstain.
***North Sea Continental Shelf cases (ICJ 1969)***: Reiterated that state practice must indicate a belief of legal obligation (opinio juris) and noted that treaty provisions can generate customary law.
***Right of passage over Indian territory case (Portugal v India)***: Affirmed that consistent long-term practice between two states can create binding customary rules.
General Principles of Law Recognized by Civilised States:
Principles common to almost all legal systems (e.g., pacta sunt servanda, reparation for damage, self-defense, res judicata, estoppel).
Case Law:
R. v. Keyn: International law founded on justice, equality, and conscience.
United States v. Schooner: International law should be based on general principles.
Diversion of water from Muese, Chorzow Factory (Indemnity) Case: Applied principles of res judicata and reparation.
Mavrommatis Palestine Concessions Case: Applied subrogation.
Case concerning the temple of Preah Vihear, Barcelona Traction case: Applied estoppel.
TOPIC 3: Relationship between International Law and Municipal Law
Main Theories:
Monism: Views international and municipal law as a single, unified legal system.
Dualism: Considers international and municipal law as separate and distinct legal systems, requiring transformation or specific adoption of international law into domestic law to be effective internally.
Specific Adoption Theory: International law is part of municipal law only if explicitly adopted.
Transformation Theory: International law must be “transformed” by national legislation.
Delegation Theory: State constitutions delegate power to incorporate international law.
State Practice Examples:
Great Britain: Customary international law is generally part of British law unless inconsistent with statutes. Treaties usually require an Act of Parliament to become domestic law.
United States of America: Customary international law is part of US law. Treaties are “supreme law of the land” (Article VI, Section 2 of Constitution), but some are non-self-executing and require legislative action.
India:
Constitutional Provisions: Article 51(c) promotes respect for international law, and Article 253 grants Parliament power to legislate for implementing treaties.
Case Law:
Gramophone Company of India Ltd. v. Birendra Bahadur Pandey: National law prevails in case of conflict with international law.
Vishaka v State of Rajasthan: International conventions and norms can be used to interpret constitutional rights when domestic law is absent and there’s no conflict.
Vellore Citizens Welfare Forum v. Union of India: International customs like the precautionary and polluter pays principles can become part of Indian law if not in conflict.
Jolly George Varghese v. Bank of Cochin: The Supreme Court referred to an international covenant for interpreting domestic law.
TOPIC 4: State Responsibility
Introduction: States are liable for breaches of international obligations.
Elements of Wrongful Act: Attributable to the state and constitutes a breach of international obligation.
Forms of Reparation: Restitution (re-establishing prior situation) , compensation (monetary payment) , satisfaction (for non-material injury, e.g., apologies) , and guarantee against repetition.
Exhaustion of Local Remedies: Injured parties must exhaust domestic legal remedies before international claims.
Case Law:
***Corfu Channel Case (UK v Albania) ICJ (1949)***: Albania held responsible for mine damages due to its knowledge and failure to warn.
***Case concerning US Diplomatic and Consular Staff in Tehran (US v Iran) ICJ (1980)***: Iran held responsible for actions of militants who became state agents and for failing to protect diplomatic premises.
Nicaragua Case: Nicaragua v USA, ICJ Report 1986: US found responsible for the use of force against Nicaragua through a mercenary army.
TOPIC 5: Law of the Sea
Functions of Seas: Communication and a source of resources.
Fundamental Principle: “The land dominates the sea”.
Historical Context: Shift from national claims to the doctrine of “open seas” (res communis), emphasizing accessibility to all nations.
Key Maritime Zones:
Internal Waters: Waters landward of the baseline (lakes, rivers).
Territorial Sea: Up to 12 nautical miles from the baseline, where the coastal state has full sovereignty (subject to innocent passage).
Contiguous Zone: Up to 24 nautical miles, allowing coastal states to prevent infringement of specific laws (customs, fiscal, immigration, sanitary).
Exclusive Economic Zone (EEZ): Up to 200 nautical miles, granting sovereign rights for natural resources and jurisdiction over marine scientific research and environmental protection.
Continental Shelf: Natural seaward extension of the land, rich in resources, with rights extending up to 200 nautical miles or further along the continental margin under UNCLOS.
Case Law:
***North Sea Continental Shelf Cases (1969)***: Concerned principles for delimiting maritime boundaries.
Enrica Lexie case: Discussed India’s entitlement to claim sovereignty and prosecute within the contiguous zone.
Common Heritage of Mankind (CHM): Certain global commons (e.g., deep seabed) should be exploited for the benefit of all humanity, not unilaterally.
Right of Hot Pursuit: A state’s right to pursue and arrest a vessel that committed an offense in its waters and is escaping to the high seas.
TOPIC 6: State Jurisdiction
Introduction: A state’s power under international law to regulate people, property, and circumstances.
Types: Prescriptive jurisdiction (power to make laws) and enforcement jurisdiction (power to ensure compliance). Enforcement is primarily territorial.
Principles of Jurisdiction:
Territorial Principle: Jurisdiction over all within its territory. Includes subjective (offense initiated in territory) and objective (offense completed in territory) aspects.
Case Law: Lotus Case (France v Turkey): A state can exercise jurisdiction over crimes committed abroad if a constituent element occurs in its territory.
Nationality Principle: Jurisdiction over its nationals anywhere.
Case Law: Nottebohm case (Liechtenstein v Guatemala) ICJ Rep. 1955: Nationality must have a genuine connection.
Protective Principle: Jurisdiction over aliens for acts committed abroad harmful to state security (e.g., espionage).
Universality Principle: Any state can prosecute for certain heinous crimes (e.g., piracy, war crimes, genocide).
Passive Personality Principle: Jurisdiction over crimes committed abroad if the victim is its national (controversial).
State Immunity: Doctrine preventing a state from being sued in another state’s courts without its consent.
Case Law: Schooner Exchange v. McFaddon (US Supreme Court): Established that a state’s territorial jurisdiction does not extend to foreign sovereigns.
Extradition: Surrender of an alleged offender to another state for prosecution.
Case Law: The Savarkar case (France/Britain 1911): Ruled that international law did not compel Britain to return Savarkar, despite irregular handover by French police.
Asylum: Protection granted by a state on its territory (territorial asylum) or within its foreign missions (diplomatic asylum). It is the opposite of extradition.
Case Law: Asylum case (Colombia and Peru) ICJ Report 1950: Distinguished between territorial and diplomatic asylum.
TOPIC 7: International Human Rights Law
Introduction: Human rights are fundamental, inalienable rights inherent to every human being.
Universal Declaration of Human Rights (UDHR), 1948: Non-binding declaration by the UN General Assembly, considered an authoritative interpretation of human rights.
International Covenants on Human Rights (1966):
International Covenant on Economic, Social and Cultural Rights (ICESCR): Covers rights like work, fair wages, social security, and education. Implementation relies on state reports and is influenced by state development.
International Covenant on Civil and Political Rights (ICCPR): Covers rights like life, liberty, fair trial, freedom of expression, and political participation. Implemented through the Human Rights Committee via reporting, inter-state communications, and individual petitions (under the Optional Protocol).
Vienna Convention on Consular Relations, 1963: Defines the functions of consuls (e.g., protecting nationals, issuing passports) and grants them special privileges and inviolability of official premises, though not full diplomatic immunity.
Case Law:
Kulbhushan Jadhav Case: The ICJ found Pakistan in breach of the Vienna Convention on Consular Relations for denying India consular access to Mr. Jadhav.