PIL

TOPIC 1: Nature and Development of International Law

• Definition of International Law:
  • Oppenheim’s Early Definition (1905): Initially, Professor Oppenheim defined International Law as the body of customary and conventional rules which are considered legally binding by “civilised states” in their interactions. This foundational definition reflected the understanding of international relations at the turn of the 20th century.
  • Criticism and Evolution of the Definition: Oppenheim’s original definition faced significant criticism and has largely been superseded due to its limitations.
    • It was criticized for excluding international organizations (such as the United Nations or the World Health Organization) as subjects of international law, despite their growing importance in global affairs.
    • The use of the term “civilised states” was deemed discriminatory and culturally biased, leading to its removal in subsequent editions of Oppenheim’s influential work.
    • The original definition did not explicitly acknowledge individuals as subjects of international law with distinct rights and duties. However, with the advent of international human rights instruments like the Universal Declaration of Human Rights (1948) and subsequent covenants, individuals are now widely recognized as having specific rights and remedies under international law.
    • The definition was considered too narrow, as it only accounted for “customary and conventional rules,” omitting “General Principles of Law” which are also recognized as a significant source of international law under Article 38 of the ICJ Statute.
    • Furthermore, describing international law as a “static body of rules” failed to capture its dynamic and evolving nature, where continuous interpretation and re-shaping are essential to adapt to changing global realities.
  • Modern Definition (Ninth Edition of Oppenheim’s Book): Reflecting these developments, the contemporary understanding of International Law is that it is a body of rules legally binding not only on states but also, to varying degrees, on international organizations and individuals.
• Basis of International Law – Jurisprudential Theories:
  • Arguments Denying Legal Character (The “Positive Morality” View): Some early jurists, including Austin, Hobbes, and Pufendorf, argued that International Law was not “true” law. Their arguments were largely based on the premise that law requires a determinate sovereign authority that issues commands and has the power to enforce them through a superior political authority, which they believed was absent in the international sphere. They categorized International Law as merely “positive morality,” a set of ethical principles rather than enforceable legal obligations.
  • Arguments Affirming Legal Character (The “True Law” View): The prevailing view today is that International Law is indeed genuine law. Proponents offer several counter-arguments:
    • The definition of “law” is not exclusively confined to rules enacted by a sovereign, as evidenced by the existence of customary laws in early societies without a formal sovereign.
    • The Austinian concept fails to explain the binding nature of customary international law, which arises from state practice and acceptance.
    • A substantial portion of modern international law is derived from “law-making treaties” and conventions, which are deliberately created by states to establish binding norms.
    • In resolving international disputes, states consistently invoke and rely upon treaties, precedents, and the opinions of legal specialists, rather than simply moral arguments.
    • States typically seek to justify their conduct by interpreting international law, rather than by denying its very existence.
    • In several states, such as the USA and the UK, international law is recognized as an integral part of their domestic legal systems.
      • Case Law: In Paquete v. Habanna, the US Supreme Court affirmed that customary international law is part of US law.
    • The International Court of Justice (ICJ) resolves disputes based explicitly on international law, and its decisions are are considered legally binding on the parties involved.
    • International conferences and the United Nations consistently treat international law as true, enforceable law.
    • While imperfect, international law does possess sanctions. Violations are seen as a failure of enforcement rather than an indication that the rules are not legal. ICJ decisions, for example, are binding and can be enforced through measures by the UN Security Council under Article 94 of the UN Charter.
  • Conclusion: International law functions within a decentralized political system and differs from municipal law in its enforcement mechanisms, yet it possesses the essential characteristics of a legal system and is recognized as such by states and international bodies.
• Is International Law a Mere Positive Morality?:
  • The distinction lies in enforceability. Rules of morality primarily appeal to conscience, whereas legal rules can be enforced by external power. As discussed, International Law, despite its unique enforcement challenges, incorporates elements of enforceability and is universally treated as binding, moving it beyond the realm of mere morality.
• Basis of International Law: Jurisprudential Theories (Continued):
  • Theories as to Law of Nature: This perspective views international law as an inherent component of natural law, founded upon principles of right reason and derived from the fundamental nature of humanity and justice.
  • Positivism: This school of thought posits that law is exclusively derived from what is actually enacted or practiced by appropriate legislative authority. Positivists emphasize the actual practice of states, identifying treaties and customs as the main sources of international law, with the ultimate source being the express or implied will of the states themselves.
• Sanctions of International Law:
  • Kelsen’s View: Hans Kelsen considered law as a “coercive order,” implying that sanctions are integral to its definition. In the international sphere, Kelsen identified war and reprisal as forms of sanctions.
  • Starke’s Categorization of Sanctions:
    • UN Security Council Actions: Under Chapter VII of the UN Charter, the Security Council can take measures, including force, to maintain or restore international peace and security in response to breaches of international law.
    • Binding ICJ Decisions: Decisions of the ICJ are legally binding on the parties to a dispute, and non-compliance can lead to further measures by the Security Council (Article 94 of the UN Charter).
    • Prohibition of Force: Article 2(4) of the UN Charter prohibits the use of force by member states, with the exception of individual or collective self-defense (Article 51).
  • Other Forms of Sanction: These include adverse world public opinion, which can exert significant political pressure; economic sanctions, such as trade embargoes; the suspension or breaking of diplomatic relations; referral of disputes to various UN bodies; expulsion from international organizations; the punishment of individuals for international crimes (e.g., war crimes); and the obligation to pay reparations for wrongful acts. Public opinion is often considered the ultimate and most pervasive sanction.
• Subjects of International Law:
  • Definition: A “subject” of international law is an entity capable of possessing international rights and duties and acting on the international plane. Such an entity is considered an “international legal person.”
  • Traditional View: Historically, only states were considered the primary and exclusive subjects of international law.
  • Modern View: The contemporary understanding recognizes that International Law also applies to individuals and certain non-state entities, broadening the scope of international legal personality.
  • Theories on Subjects:
    • States alone are subjects: This traditional view holds that international law exclusively regulates the conduct of states.
    • Individuals alone are subjects (Kelsen): This theory, notably advanced by Hans Kelsen, argues that states are merely technical legal concepts and that the duties of states ultimately translate into duties of individuals. Thus, both international law and state law ultimately apply to individuals.
    • States, individuals, and certain non-state entities are subjects: This is the most widely accepted and practical view today. It acknowledges that while states remain the primary subjects, international treaties and norms now confer rights and duties directly upon individuals (e.g., in human rights law) and recognize the legal personality of certain international organizations and other non-state actors in specific contexts (e.g., the International Committee of the Red Cross). For instance, the 1965 Convention on the Settlement of Investment Disputes provides a mechanism for individuals or corporations to bring claims against states.

TOPIC 2: Sources of International Law

• Formal and Material Sources:
  • Formal Sources: These are the processes or methods through which a rule of international law acquires its legal force and validity. For example, custom provides the legally binding force for a rule.
  • Material Sources: These are the actual substance or content of the legal rules, providing evidence of what the law is. For instance, consistent state practice serves as the material source for identifying a rule of customary international law.
• Article 38(1) of the ICJ Statute: This article of the Statute of the International Court of Justice is universally considered the most authoritative statement on the sources of international law that the Court is to apply in deciding disputes. These sources, listed hierarchically but often interdependent, include:
  • International Conventions (Treaties): These are agreements between states, explicitly recognizing rules.
  • International Custom: Evidence of a general practice accepted as law.
  • General Principles of Law: Recognized by civilized nations.
  • Judicial Decisions and Teachings of Publicists: These are considered subsidiary means for the determination of rules of law.
• International Conventions (Treaties):
  • Treaties are the most prominent and arguably the most important source of international law in modern times. States deliberately use treaties to create legally binding international law through explicit agreement.
  • Types of Treaties:
    • Law-making treaties: These aim to lay down universal or general rules of international law. Examples include the UN Charter, which establishes fundamental principles for international relations, and major conventions such as the 1958 Geneva Conventions on the Law of the Sea or the 1969 Vienna Convention on the Law of Treaties, which codify and develop general principles applicable to many states.
    • Treaty Contracts: These are typically bilateral or limited multilateral agreements entered into by two or a few states, dealing with specific matters (e.g., a trade agreement or a border treaty). While binding on the parties, they generally do not create universal law.
• International Custom:
  • Custom is the oldest and original source of international law, arising from the consistent practice of states accompanied by a sense of legal obligation.
  • Usage vs. Custom:
    • Usage: Refers to an international habit or practice that has not yet acquired legal binding force. It represents an early stage in the formation of custom.
    • Custom: Develops when usage is combined with opinio juris sive necessitates—the belief that the practice is legally obligatory, not merely habitual or politically expedient.
  • Case Law Illustrating Custom:
    • ***Lotus case (France v Turkey) PCIJ (1927)***: The Permanent Court of International Justice (PCIJ) ruled that for abstention from action to constitute a custom, it must be based on a conscious duty to abstain, demonstrating the requirement of opinio juris.
    • ***North Sea Continental Shelf cases (ICJ Repo. 1969)***: The ICJ emphasized that for a state practice to become a binding customary rule, it must be “settled” and carried out in such a way as to demonstrate a belief that it is obligatory by law (opinio juris). The Court also noted that provisions of a treaty could, in certain circumstances, generate customary law of a “norm-creating character.”
    • ***Right of passage over Indian territory case (Portugal v India)***: The ICJ confirmed that a consistent and long-standing practice between even two states could give rise to a binding customary rule applicable to their specific relationship.
• General Principles of Law Recognized by Civilised Nations:
  • These are fundamental legal principles that are common to the major legal systems of the world, either due to their shared historical origins (e.g., Roman law principles) or as necessary responses to basic human needs and fairness. They are applied when no specific treaty or customary rule exists.
  • Examples: Pacta sunt servanda (agreements must be kept), the principle of reparation for damage caused by an unlawful act, the inherent right of self-defense, no man may be a judge in his own cause, res judicata (a matter already judged), and estoppel (a legal principle preventing a party from asserting something contrary to what has been implied by a previous action or statement).
  • Case Law Illustrating General Principles:
    • R. v. Keyn: This case highlighted that international law should be based on principles of justice, equality, and conscience, accepted through state practice.
    • United States v. Schooner: Justice Storey articulated that international law should be based on general principles of law recognized by civilized states, particularly in the context of the abolition of slavery.
    • Diversion of water from Muese case and Chorzow Factory (Indemnity) Case: The PCIJ applied the principle of res judicata and the general principle of reparation for the violation of a rule.
    • Mavrommatis Palestine Concessions Case: The Court applied the general principle of subrogation.
    • Case concerning the temple of Preah Vihear and Barcelona Traction case, preliminary Obligation: The ICJ applied the principle of estoppel, where one party is precluded from denying certain facts due to its past conduct.

TOPIC 3: Relationship between International Law and Municipal Law

• Theories on the Relationship: This area explores how international law interacts with and is applied within the domestic legal systems of states.
  • Monism: This theory views international law and municipal (domestic) law as parts of a single, unified legal system. Exponents like Hans Kelsen and Léon Duguit argue that all law ultimately derives from a common normative source, with man being at the root of all legal systems. In a monist system, international law is generally considered supreme and automatically applicable within the domestic sphere.
  • Dualism: In contrast, Dualism (championed by jurists like Triepel and Anzilloti) posits that international law and municipal law are two entirely separate and distinct legal systems, operating in different spheres (international versus national) and regulating different subjects (states versus individuals). For international law to be binding and enforceable within a national legal system, dualist theory requires a specific act of “transformation” or “adoption” by the domestic legislature.
    • Criticism of Dualism: Critics argue that dualism struggles to explain how general international law, particularly customary law, can bind states even without explicit consent or transformation, or why states are bound by principles against their immediate will.
  • Specific Adoption Theory: This view suggests that international law becomes part of municipal law only if it is expressly and deliberately adopted by the relevant municipal legal process (e.g., a parliamentary act).
  • Transformation Theory: This theory, often associated with dualism, holds that rules of international law do not automatically enter the domestic legal system but must be “transformed” into municipal law through national legislation.
  • Delegation Theory: This theory proposes that the constitution of a state “delegates” to its legislative, executive, or judicial organs the authority and power to incorporate or implement international law into the national legal framework.
• State Practice (Examples):
  • Great Britain:
    • Customary International Law: Generally considered part of British law, provided it is not inconsistent with existing statutes and has been definitively established by the highest courts.
    • Rules of Construction: British courts employ a rule of construction whereby statutes are interpreted, whenever possible, to avoid conflict with international law, unless the statutory provisions are unambiguously clear in their intent to override international obligations.
    • Rules of Evidence: Customary international law, once established, does not typically need to be proven as a matter of fact in British courts; it is treated as law.
    • Treaty Law: Treaties in the UK generally require an Act of Parliament to be incorporated into the law of the land, particularly if they alter existing domestic law or necessitate new financial expenditures.
  • United States of America:
    • Customary International Law: Considered part of US law and applied by courts where no conflicting treaty or legislative act exists.
    • Treaties: Under Article VI, Section 2 of the US Constitution, treaties are deemed “supreme law of the land,” alongside the Constitution and federal laws.
      • Self-executing vs. Non-self-executing treaties: Self-executing treaties automatically become domestic law upon ratification without requiring further legislative action. Non-self-executing treaties, however, necessitate additional legislative implementation to have domestic legal effect.
  • India:
    • Constitutional Provisions:
      • Article 51(c): This directive principle of state policy encourages the Indian state to foster respect for international law and treaty obligations.
      • Article 253: This article empowers the Parliament of India to enact legislation for the purpose of implementing any treaty, agreement, or international decision, giving effect to India’s international commitments.
    • Case Law: Indian courts have increasingly referred to international law in interpreting domestic statutes and fundamental rights:
      • Gramophone Company of India Ltd. v. Birendra Bahadur Pandey: The Supreme Court held that in a situation of conflict between national law and international law, national law would generally prevail.
      • Vishaka v State of Rajasthan: In a landmark judgment addressing sexual harassment at the workplace, the Supreme Court ruled that in the absence of specific domestic legislation, international conventions and norms (such as those concerning gender equality and human dignity) could be used as significant guidelines for interpreting fundamental rights under Articles 14, 15, 19(1)(g), and 21 of the Indian Constitution. International conventions not inconsistent with fundamental rights could be read into these provisions.
      • Vellore Citizens Welfare Forum v. Union of India: The Supreme Court held that international customs, specifically the “precautionary principle” and the “polluter pays principle” (both relevant to environmental law), were part of Indian law as they did not conflict with existing Indian legal provisions.
      • Jolly George Varghese v. Bank of Cochin: The Supreme Court referred to Article 11 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits imprisonment merely on the ground of inability to fulfill a contractual obligation, while interpreting Section 51 of the Code of Civil Procedure, demonstrating judicial incorporation of international human rights norms.

TOPIC 4: State Responsibility

• Introduction: This area of international law governs the circumstances under which a state is held liable for breaching its international obligations. It is a fundamental principle that states must bear the consequences of their internationally wrongful acts.
• Elements of an Internationally Wrongful Act: For a state to be held responsible, two key elements must be present:
  • The conduct (act or omission) must be attributable to the state under international law. This includes actions by state organs, individuals acting on behalf of the state, or private persons whose conduct the state adopts as its own.
  • The conduct must constitute a breach of an international obligation of that state. This means the state’s action (or inaction) must violate a rule of customary international law or a treaty to which it is a party.
• Circumstances Precluding Wrongfulness: There are certain situations that can excuse a state from responsibility for an act that would otherwise be internationally wrongful. These include:
  • Consent: If the wronged state consented to the act.
  • Self-defense: Legitimate self-defense in accordance with the UN Charter.
  • Countermeasures: An otherwise wrongful act taken by an injured state in response to an internationally wrongful act of another state, aimed at inducing compliance.
  • Force Majeure: The occurrence of an irresistible force or an unforeseen event beyond the control of the state, making it materially impossible to perform the obligation.
  • Distress: When the author of the act has no other reasonable way, in a situation of extreme distress, of saving his or her life or the lives of persons entrusted to his or her care.
  • Necessity: When an act is the only way for a state to safeguard an essential interest against a grave and imminent peril, and the act does not seriously impair an essential interest of the state or states towards which the obligation exists.
• Forms of Reparation: When a state is found responsible for an internationally wrongful act, it is obliged to make full reparation for the injury caused. Reparation can take several forms:
  • Restitution: The primary form of reparation, aiming to re-establish the situation that existed before the internationally wrongful act was committed, as if the act had not occurred.
  • Compensation: Monetary payment for any damage, including material and moral injury, that cannot be made good by restitution. This covers quantifiable financial losses.
  • Satisfaction: Provided for non-material injury (e.g., moral damage, insult to state dignity). This can include an official acknowledgement of the breach, expressions of regret, a formal apology, or even disciplinary action against or punishment of guilty officials.
  • Guarantee against Repetition: The responsible state may be obligated to provide assurances and guarantees that the wrongful act will cease and will not be repeated.
• Rule of Exhaustion of Local Remedies: This is a well-established procedural rule in international law, particularly in cases involving injury to aliens (foreign nationals). It requires that an injured alien must first exhaust all available domestic legal remedies within the state allegedly responsible for the injury before an international claim can be formally made on their behalf by their national state.
• Case Law Illustrating State Responsibility:
  • ***Corfu Channel Case (UK v Albania) ICJ (1949)***: The ICJ held Albania responsible for the damages caused to British warships by mines in its territorial waters. Albania was found responsible not for laying the mines, but for its knowledge of the minefield’s existence and its subsequent failure to warn the British vessels, thereby breaching its international obligations.
  • ***Case concerning US Diplomatic and Consular Staff in Tehran (US v Iran) ICJ (1980)***: Iran was initially not held responsible for the seizure of the US Embassy and the taking of diplomatic hostages by private militants. However, Iran later became responsible for continuing the occupation and detention when its authorities endorsed the militants’ actions and failed to take steps to protect the diplomatic premises and staff, effectively transforming the militants’ actions into those of the state.
  • Nicaragua Case: Nicaragua v USA, ICJ Report 1986: The ICJ found the United States responsible for engaging in the unlawful use of force against Nicaragua, primarily through its support and direction of a mercenary army (the Contras), and for other interventions such as the laying of mines in Nicaraguan ports, violating Nicaragua’s sovereignty and territorial integrity.

TOPIC 5: Law of the Sea

• Functions of Seas: The seas serve two primary functions: as a vital medium for international communication and trade, and as an immense reservoir of natural resources (both living and non-living).
• Fundamental Principle: The overarching principle guiding the Law of the Sea is “The land dominates the sea,” meaning that coastal states derive their maritime rights from their land territory.
• Historical Development: Historically, there were conflicting claims over maritime sovereignty, with some nations (like Portugal) asserting exclusive control over vast ocean areas. This evolved towards Hugo Grotius’s influential doctrine of “open seas” (mare liberum), which posited that the high seas were res communis (common to all) and thus incapable of appropriation by any single state, ensuring freedom of navigation.
• Important Terms and Maritime Zones (as codified in UNCLOS): The United Nations Convention on the Law of the Sea (UNCLOS) is the comprehensive legal framework for ocean activities.
  • Internal Waters: All waters landward of the baseline (the low-water line along the coast), including rivers, lakes, and port waters. Within these waters, the coastal state exercises full and undisputed sovereignty, equivalent to its land territory.
  • Territorial Sea: A belt of sea adjacent to the coast, extending up to a maximum of 12 nautical miles (approximately 22.2 km) from the baseline. The coastal state exercises full sovereignty over its territorial sea, including the airspace above and the seabed below, subject only to the right of “innocent passage” for foreign vessels.
  • Contiguous Zone: An area beyond the territorial sea, extending up to 24 nautical miles from the baseline (i.e., 12 nautical miles beyond the territorial sea). In this zone, the coastal state can exercise control to prevent or punish infringement of its customs, fiscal, immigration, or sanitary laws committed within its territory or territorial sea.
  • Exclusive Economic Zone (EEZ): An area beyond and adjacent to the territorial sea, extending up to 200 nautical miles (approximately 370.4 km) from the baseline. Within the EEZ, the coastal state has sovereign rights for the purpose of exploring, exploiting, conserving, and managing the natural resources (both living, like fisheries, and non-living, like oil and gas) of the waters superjacent to the seabed, of the seabed, and its subsoil. It also has jurisdiction regarding marine scientific research and the protection and preservation of the marine environment.
  • Continental Shelf: This is the natural seaward prolongation of a state’s land territory, extending beyond its territorial sea to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines where the continental margin does not extend so far. Coastal states have sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources (e.g., minerals, oil, gas) without affecting the legal status of the superjacent waters or the airspace above. For states with a continental margin extending beyond 200 nautical miles, UNCLOS allows for claims up to 350 nautical miles or 100 nautical miles from the 2,500-meter isobath, based on scientific criteria.
• Case Law on Continental Shelf:
  • ***North Sea Continental Shelf Cases (1969) (Germany v Denmark & Netherlands)***: These landmark cases concerned the principles governing the delimitation of the continental shelf between adjacent or opposite states. The ICJ held that the equidistance principle was not a pre-existing rule of customary international law for delimitation and that delimitation must be achieved by agreement in accordance with equitable principles, taking into account relevant circumstances.
• Case Law on Law of the Sea:
  • Enrica Lexie case: This complex incident involved the killing of two Indian fishermen by Italian marines aboard an Italian oil tanker in India’s contiguous zone. The Supreme Court of India discussed India’s sovereignty and jurisdiction within the contiguous zone, ultimately holding that India could prosecute the Italian marines under its criminal justice system, subject to international law considerations and Article 100 of UNCLOS (which deals with piracy and the suppression of illicit traffic).
• Common Heritage of Mankind (CHM): This is a significant concept in the Law of the Sea, particularly applicable to the deep seabed and its resources beyond national jurisdiction (the “Area”). It denotes that certain global commons should not be subject to unilateral exploitation by any state but should be managed for the benefit of all humanity, with particular consideration for developing countries, ensuring equitable sharing of benefits.
• Right of Hot Pursuit: This is the right of a state to pursue and arrest a foreign vessel that has committed an offense against its laws within its internal waters, territorial sea, or contiguous zone, and which is attempting to escape to the high seas. The pursuit must commence when the foreign vessel is within the coastal state’s jurisdiction, be continuous, and be conducted by authorized warships or military aircraft. It ceases when the pursued vessel enters the territorial sea of another state.

TOPIC 6: State Jurisdiction

• Introduction: State jurisdiction refers to a state’s power, under international law, to regulate (through its laws, executive actions, and court decisions) persons, property, and circumstances. It is a fundamental attribute of state sovereignty and reflects the principle of non-interference in the internal affairs of other states.
• Types of Jurisdiction:
  • Prescriptive Jurisdiction (Jurisdiction to Prescribe): This is the state’s capacity to make its law applicable to persons, conduct, or property, whether they are within or outside its territory. This encompasses legislative, executive (e.g., regulatory), and judicial (e.g., defining crimes) actions.
  • Enforcement Jurisdiction (Jurisdiction to Enforce): This is the state’s capacity to ensure compliance with its laws through coercive measures, such as arrest, search, seizure, or the execution of judgments. Enforcement jurisdiction is primarily territorial, meaning a state can only physically enforce its laws within its own territory.
  • Distinction: While prescriptive jurisdiction can be quite broad (e.g., based on nationality), enforcement jurisdiction is almost always limited to a state’s own territory. A state cannot, for example, unilaterally send police forces into another state to make an arrest without the latter’s consent.
• Principles of Jurisdiction: International law recognizes several principles upon which states can claim jurisdiction:
  • Territorial Principle: This is the most fundamental and widely accepted principle. A state has jurisdiction over all persons, property, and acts that occur or have an effect within its physical territory.
    • Subjective Territorial Principle: A state has jurisdiction if the offense is initiated or commenced within its territory, even if completed abroad.
    • Objective Territorial Principle: A state has jurisdiction if the offense is completed within its territory, even if initiated abroad. This is particularly relevant for cross-border crimes.
    • Case Law: ***Lotus Case (France v Turkey) PCIJ (1927)***: The PCIJ ruled that a state could exercise jurisdiction over crimes committed abroad if an essential constituent element of the crime took place on its territory, thereby endorsing the objective territorial principle.
  • Nationality Principle: A state has jurisdiction over its nationals, regardless of where they are in the world or where the crime was committed. This is based on the idea that a state has a continuing link with its citizens.
    • Case Law: Nottebohm case (Liechtenstein v Guatemala) ICJ Rep. 1955: While concerning diplomatic protection, the ICJ emphasized that nationality, to be opposable internationally, must represent a “genuine connection” between the individual and the state.
  • Protective Principle: A state has jurisdiction over aliens (non-nationals) for acts committed abroad that are deemed harmful to its national security, integrity, or vital interests. This principle is applied sparingly and typically covers serious offenses like espionage, counterfeiting currency, or large-scale economic sabotage directed against the state.
  • Universality Principle: This principle allows any state to prosecute individuals for certain egregious crimes that are considered offenses against all humanity, regardless of the nationality of the offender or victim, or the place where the crime was committed. These “universal crimes” include piracy, war crimes, crimes against humanity, genocide, torture, and some acts of terrorism. The underlying rationale is that such crimes are so heinous that they offend the conscience of all nations, and thus any state can act to bring the perpetrator to justice.
  • Passive Personality Principle: This principle grants a state jurisdiction over crimes committed abroad if the victim of the crime is its national. This is a more controversial principle and is less widely accepted than the other principles, often only invoked for serious crimes (e.g., terrorism) and sometimes in conjunction with other principles.
• State Immunity:
  • Doctrine of Sovereign Immunity: This fundamental doctrine of customary international law dictates that a state cannot be sued in the courts of another state without its express consent. It is based on the principle of sovereign equality (“par in parem non habet imperium” – an equal has no authority over an equal).
  • Case Law: ***Schooner Exchange v. McFaddon (US Supreme Court, 1812)***: Chief Justice Marshall famously declared that while a state’s jurisdiction within its own territory is exclusive and absolute, it did not extend to foreign sovereigns or their property (like warships), establishing a foundational precedent for sovereign immunity.
• Extradition:
  • Extradition is the formal process by which one state (the requested state) surrenders an alleged offender located within its territory to another state (the requesting state) where the individual is accused of a crime or has been convicted of a crime and is sought for prosecution or punishment. Extradition is almost always governed by bilateral treaties.
  • Case Law: ***The Savarkar case (France/Britain 1911)***: This case, decided by the Permanent Court of Arbitration, involved the controversial re-capture of an Indian nationalist, Savarkar, who escaped from a British ship in French territory. The Court ruled that while his initial capture by French police and handover to British authorities without formal extradition proceedings was irregular, international law did not impose an obligation on Britain to return Savarkar to France once he was back in British custody. This case highlights the strict requirements for extradition procedures.
• Asylum:
  • Asylum refers to the protection or refuge granted by a state to a person who is seeking protection from persecution in their home country. It is essentially the opposite of extradition.
  • Types:
    • Territorial Asylum: Granted by a state to individuals on its own territory.
    • Extra-territorial (or Diplomatic) Asylum: Granted within a state’s embassy or legation abroad, typically a much rarer and more controversial practice.
  • Under international law, an alleged offender does not have an inherent “right” to asylum, but Article 14 of the Universal Declaration of Human Rights recognizes the right of individuals to “seek and to enjoy asylum.”
  • Case Law: Asylum case (Colombia and Peru) ICJ Report 1950: The ICJ distinguished between territorial and diplomatic asylum and established strict conditions under which diplomatic asylum could be lawfully granted, requiring a clear basis in treaty or customary law.

TOPIC 7: International Human Rights Law

• Introduction: International Human Rights Law (IHRL) is a body of international rules designed to promote and protect fundamental human rights at the international, regional, and domestic levels. Human rights are considered inherent, inalienable, and universal rights essential for a dignified human life, possessed by every human being regardless of their nationality, race, religion, sex, or any other status.
• Universal Declaration of Human Rights (UDHR), 1948:
  • Adopted by the UN General Assembly in 1948, the UDHR is a landmark document that outlines fundamental human rights. Although it was initially adopted as a resolution and is not, in itself, a legally binding treaty, it has gained immense moral and political authority. It is widely accepted as an authoritative interpretation of the human rights provisions of the UN Charter and has inspired over 200 international treaties, conventions, and national constitutions.
  • The UDHR encompasses a broad range of civil and political rights (e.g., right to life, liberty, freedom of expression, fair trial) as well as economic, social, and cultural rights (e.g., right to work, education, social security).
• International Covenants on Human Rights (1966): To transform the principles of the UDHR into legally binding obligations, the UN General Assembly adopted two principal international covenants in 1966:
  • International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966: This Covenant deals with rights such as the right to self-determination, the right to work, just and favorable conditions of work, fair wages, social security, an adequate standard of living (including food, clothing, and housing), physical and mental health, education, and participation in cultural life. Its implementation is primarily through a reporting system where states submit reports to the Committee on their implementation of the Covenant. The obligations under ICESCR are often framed as “progressive realization,” meaning states undertake to take steps to the maximum of their available resources, reflecting the resource-dependent nature of these rights.
  • International Covenant on Civil and Political Rights (ICCPR), 1966: This Covenant addresses a range of fundamental civil and political liberties, including the right to self-determination, the right to life, liberty and security of person, freedom from torture and and slavery, the right to a fair trial, freedom of movement, thought, conscience, religion, and expression, the rights to peaceful assembly and association, political participation, equality before the law, and non-discrimination. Its implementation is overseen by the Human Rights Committee (an 18-member expert body) through several mechanisms:
    • Reporting procedure: States parties submit regular reports to the Committee on their implementation of the Covenant.
    • Inter-State Communication System: Allows one state party to bring a complaint against another state party for alleged non-compliance with the Covenant (though this mechanism is rarely used).
    • Conciliation Procedure: Implied by the inter-state communication system, aiming to find an amicable solution.
    • Individual’s Communication System (First Optional Protocol to the ICCPR): This crucial mechanism allows individuals who believe their rights under the ICCPR have been violated and who have exhausted all domestic remedies to submit petitions or complaints directly to the Human Rights Committee for consideration.
• Vienna Convention on Consular Relations, 1963 (VCCR):
  • This is a multilateral treaty that codifies and defines the functions, privileges, and immunities of consular officers and consular posts. Consuls are distinct from diplomatic envoys; they primarily deal with the administrative and commercial affairs of their sending state and provide assistance to their nationals in the receiving state.
  • Key Provisions:
    • Consuls do not enjoy the same extent of full diplomatic immunity as diplomatic envoys, but they do have specific privileges and immunities necessary for the performance of their official duties (e.g., exemption from local jurisdiction for acts performed in the exercise of consular functions, inviolability of official papers and archives, freedom of communication with their nationals).
    • Consular premises are generally inviolable, meaning authorities of the receiving state may not enter them without the consent of the head of the consular post, except in cases of fire or other grave disasters requiring immediate protective action.
    • A crucial provision (Article 36) ensures the right of consular access to nationals of the sending state who are arrested or detained in the receiving state. This includes the right for consular officers to communicate with, visit, and arrange for the legal representation of their nationals.
• Case Law Illustrating Human Rights and Consular Relations:
  • ***Kulbhushan Jadhav Case (India v Pakistan) ICJ (2019)***: India instituted proceedings against Pakistan before the International Court of Justice (ICJ), alleging “egregious violations” of the Vienna Convention on Consular Relations (VCCR). The dispute concerned the treatment of an Indian national, Mr. Kulbhushan Sudhir Jadhav, who was detained, tried by a military court, and sentenced to death in Pakistan, reportedly without adequate consular access. The ICJ delivered a significant judgment, holding that Pakistan had indeed breached its obligations under Article 36(1)(a) and (c) of the VCCR by denying India the right to communicate with and have access to Mr. Jadhav, to visit him in detention, and to arrange for his legal representation. The Court ordered Pakistan to review and reconsider Mr. Jadhav’s conviction and sentence, emphasizing the importance of effective review and reconsideration.
  • ***Schooner Exchange v. McFaddon (US Supreme Court)***: While primarily a case on state immunity, it also indirectly touches upon the principles of international relations and sovereignty that underpin human rights. Chief Justice Marshall’s declaration regarding the exclusive nature of a state’s jurisdiction within its own territory, but its non-extension over foreign sovereigns, lays groundwork for understanding how states interact while respecting each other’s sovereignty, a prerequisite for the development of international human rights norms that apply across borders.