International Law: Principles, Sources, and Relationship with Municipal Law, Study notes of International Law

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PUBLIC

INTERNATIONAL

LAW

M. S. RAMA RAO B.Sc., M.A., M.L.

Class-room live lectures edited, enlarged

and updated

Msrlawbooks

Page

PUBLIC INTERNATIONAL LAW

[PEACE ]

Oppenheim

Starke

Fen-wick

Green

Freidman

Brierly

Schwarzenberger

Nussbaum

Lauterpacht

Harris.

Texual & Reference Books

International Law Vo.I Peace

Introduction to International Law

International Law

International Law through Cases

The Changing Structure of international Law

Law of Nations

Manual of International Law

A Concise history of the Law of Nations

Annual Digest & Report of Public

International Law Cases

Cases and Materials on International Law

msrlawbooks PUB INT LAW …………

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PUBLIC INTERNATIONAL LAW

1. International law as law (legal basis.)
2. Sources.

3.. Relationship between International Law & Municipal Law.

4. Codification,

4. History & development of the Law of Nations-Schools of Law- Positivists,

Naturalists & Grotians.. Contributions of Grotius, Gentili & others.

6. Recognition-Theories-Practice-De facto-De jure-Monroe doctrine-'

Stimson's doctrine of non - recognition.

6. States-Personality-Vassal States, Neutralised State-Succession-Equality

of States.

7. Self-Preservation- \Intervention: dictatorial and pure & simple.
8. State Responsibility for International delinquency.
9. Territory: (i) Modes of acquiring Territory (ii) Servitudes iii) Rivers (iv)

Canals (v) Aerial Navigation.

1 i. Open Sea-Freedom of the open sea-Jurisdiction-Fisheries, Maritime Belt,

Contiguous zone. Economic zone, Continental Shelf- Piracy jure gentium,

12. Individuals-Nationality- Double Nationality-Statelessness-Asylum-Aliens-

Extradition & Non-Extradition of political criminals-Human Rights-

12. Legation-Head of State-Right of legation, Appointment, powers privileges

and immunities of Ambassadors-Consuls-their appointment & functions-

12. Treaties-Parties-Objects-Ratification-Reservation-Termination of Treaties-

Rebus sic stantibus-Interpretation of treaties.

msrlawbooks PUB INT LAW ……………

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QUESTIONS BANK

"International Law is no Law at all' Discuss, Or "International Law is at the

vanishing point of Jurisprudence" Discuss.

2. Discuss the various sources of law with particular reference to their primacy

under the Statute of the I.C.J .Ref to leading cases.

3. "International Law' is part of the law of the land' - Discuss. Refer to the

leading cases & to the British & U.S .practice.

4. State the importance of codification and the steps taken to codify International

Law. Assess the contributions of the International Law Commission.

5. "States only are the subjects of International Law' Discuss.
6. (1) What is Recognition? What are the theories?

What are the consequences of Recognition?

(2) Distinguish between De facto & De Jure Recognition.

7. (1) Distinguish Dictatorial intervention from Intervention Pure and

simple.

When is a State empowered to Intervene in the affairs of another State.

** '

(2) Define Self Preservation. Is it allowed under the U.N. Charter? Explain

with illustrations how on grounds of necessity a State may resort to self-

defence measures.

8. 'The Grotians stand midway between the Positivists and the

Naturalists'.

Explain with reference to the Schools of International Law.

9. (!) Write an essay on the Freedom of the Open Sea.

(2) Discuss the concept of 'Continental Shelf with reference to recent

developments.

10. How are Ambassadors classified? What are their functions? Explain the

privileges & Immunities of the Ambassadors.

11. What is the rationale for ratification of treaties? What is the effect of

reservation to treaties? Refer to the LCI's Advisory opinion on Reservation

to Genocide Convention 1951.

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Chapters

1. Legal Basis of

International

law

2. Sources
3. International Law V.

Mun.Law 13

4. Codification 16
5. States as Subjects
6. Recongnition
   1. Recognition
   2. De facto, De Jure

7. Intervention

1. Intervention
2. Self-Preservation
3. Open Sea
4. Freedom
5. Territorial Waters
6. Contiguous Zone

4. EEZ

.5. Continental Shelf

Piracy

9. Ambassadors
   1. Institution
   2. Privileges, Immunities

CONTENTS

(International Law)

Pages Chapters

10. Treaties

Steps

7 Reservation

9 .Termination

11. Equality

12 Schools 46

13. Nationality 48

15 Nationality 50

Double

Statelessness

15. Human Rights 52
16. Territory 54
17. Additional

Topics 57

1. Hijacking

2. Hugo Grotius

3. Monroe'Doctr

4. Neutralised'St

Pages

45

xt 1

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CHAPTER 1

Legal Basis of International Law

i) Definition : International Law is defined as a body of

principles & rules commonly observed by States in their mutual

relationship with each other. It

; includes the law relating to States

& International organisations and also International Organisations

inter se. It also includes the rules of law relating to international

institutions and individuals, and non-State entities and individuals.

ii) Though there are theories on the legal basis. of

International Law, the Austinian theory has received wide

attention. Austin opined that International Law was not law at ail

and called it a 'Positive International Morality' and hence it had

only moral force. He called it

a set of opinions or sentiments current among nations generally and

"laws improperly so called". Hobbes, Pufendrof, Bentham and

Holland were of the same view. Holland said that it was at the

vanishing point of jurisprudence.

Austin defined law as a 'body of rules, set and enforced by

a sovereign political authority. Hence when the rules do pot come

from the sovereign, they would not be legal, but moral. Basing on

this positive law concept Austin declared International Law as a

code of morality..

iii) Reply to Austin by Oppenheim : This definition is

inadequate and incorrect because there is no reference to unwritten

law (custom) as courts understand and apply them. Customary rules

or rules of morality are founded on conscience. Hence, law must be

defined to include the unwritten law. Neither the law making

sovereign authority nor the court is essential for a law to exist. In

the primitive community that was the position. In the modern State,

the common consent of the people is expressed through the

legislature (Parliament). But, there are unwritten laws as well.

iv) Wider Definition : Law may therefore, - be defined 'as a

body of

rules in a community framed by common consent, and enforced by

an external power'. This definition answers the State-made law and

the customary law. Hence, in a State, the Parliament (representatives

of the Community) is the law making body and that law is

enforced by the

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Enforcement : States resort to : 1; Self-help.

2. Intervention-pure & simple.

3. Pacific Settlement under the U.N. Charter-; Also to

Collective

Security Measures of the Security Council.

4. Punishment of Offenders: e.g. : War Criminals. There are

also

rules of 'International. Community' based on goodwill,

courtesy & reciprocity & Austin is correct when his 'code of

international morality'

. * "' •

refers to them. But, those are different from International

legislation noted above.

5. Political questions may be resolved through the General

Assembly

or the Security Council. Judicial questions may be decided by the

International Court of Justice. There is a frequent resort to

Arbitration

as well. ,

Hence, for enforcement there is the sanction (or force) of the

International Community.

Conclusion: As all the three elements are present,

International! law is evidently law. Of course, the frequent violations

of International Law, show the weakness of the sanction of

International Law. But, as Oppenheim, rightly concludes,

'Compared to Municipal Law, it is a weak law, but a weak law is

still a law.'

CHAPTER 2

SOURCES Sources of

International Law.

i) Meaning : 'Source', according to Oppenheim, means the

ultimate origin from which the law originates. When we see a river

and desire to know its source, we must go up the river until we

reach a particular point where the water is oozing out naturally

from the soil. That is the source of the river. Similarly, in order to

find out the source of the principles of International Law we must

track back to a particular point. That is the source.

ii) The Statute of the I.C.J. in Art. 38, has enumerated the

following sources of International Law on the basic of primacy

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before the court:

a) International Conventions or treaties.

b) International Customary Law. '..

c) General Principles of law recognised by' Civilised Nations.

d) Judicial Precedents.

e) Juristic Writings.

f) Ex aequo et bono. (Equity & good conscience)

These are to be applied in the same order by the I.C.J.

a) International Treaties :

There is primacy for this source at the International Court of

Justice. Treaties are of two kinds :

(i) Law-making and (ii) Treaty-contract.

Eg.: Pact of Paris 1956; Hague conventions of 1899 & 1907,

Peace Treaty 1919, Treaty for the Renunciation of War, 1929,

Geneva Convention relating to Prisoners of War 1929.

Conventions of the Law of the Sea Conference 1958 are examples.

(ii) Treaty-contracts - are non-law making in nature.

-. : - ...:'.•.

International Custom:

This is the original source of International law. It manifests in (i)

Diplomatic Correspondence of States, (ii) Practice of International

Organisations (iii) State Court's decisions, (iv) State Practice &

Administrative actions etc.

Origin : Custom has its-origin in a usage.,If the usage is

continuous, uniform and followed for a number of years it becomes

a custom. Usage is the twilight zone of custom. But. two

conditions must be satisfied :

(i) Corpus test : A material fact of the actual observance of a

line of conduct by the States. This mus. be shown as a fact.

(ii) Animus test : There must be an intention to follow the

custom. It reaches a stage of approval 'opinio juris sive

necessitatis' (Jurists' opinion as of necessity). Then, the principle

(usage) becomes an International Custom. This is the process of the

consummation of an usage into an International custom.

In the Lotus Case, the Court (P.C.I.J.) held that the opinio

juris must be drawn from all the circumstances, & not merely from

the facts on hand. In the Right of Passage case (Portugal Vs.

India), the I.C.J. held that a particular practice between two States

only may give rise to binding customary law. It held that Portugal

had a right of passage for civilians but not for military officials.

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Govt.

(iii) In the Temple of Preah Vihear Case the I.C.J. held that

Thailand was precluded by her conduct from questioning

Cambodia's sovereignty over the Temple.

(iv) In the Mavrommatis Palestine Concessions Case the

P.C.I.J. applied the doctrine of Subrogation.

Comments : It is stated that the recognition of 'General

Principles' as a source of law would sound the deathknell of

positivism. This statement is overdrawn, Positivits believe in the

common consent of the States as the basis of International Law.

Naturalists believe in the superiority of natural law only. Hence,

these two are opposite schools. The; above comment is a reference to

this and believes that the recognition of 'General Principles' based on

Natural law ended the positivists theory. But, this is not so. The

I.C.J. applies Treaties & Customs and only in their absence, resorts

to the 'General Principles of Law recognised by Civilised Nations/

Hence, priority is given to positive law.

d) judicial Precedents:

The decisions of the I.C.J., the P.C.I.J., the International

Arbitration Tribunals and the National Supreme Courts form the

fourth source of International Law. This is followed by the Courts

not only as a source, but also as the best evidence available to show

the existence of rules of International Law referred to in those

decisions, e.g.. ( i ) I.C.J.. decisions. The Fisheries Case (drawing of

straight base- line to determine the territorial waters), the

Reparations case declaring the U.N. as successor to the League of

Nations & that U,N. is an International Person have laid down

new principles of International law.

ii) P.C.I.J. : Palmas Island Case

iii) International court of Arbitration : Savarkar's case, Pious

Fund case, North Atlantic Coast Fisheries case etc.

iv) State Courts : Franconia case, Scotia case, Paqueta Habana

case etc.

e) Juristic Writings :

This is the source, next to the precedents. The I.C.J. may

refer to the teachings of the most highly qualified; publicists of the

various nations. In the 16th & 17th Centuries, writers on

International law held a pre-eminent position as this system of

law was in its slow ebb of

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development. Even today in areas where the law is uncertain the

classics of the jurists are referred to by the State's before the I.C.J. and

Arbitration Tribunals in support of their arguments. The judges pay

regard to the juristic writings as they are persuasive in nature.

The classical works of Gentili, Hugo Grotius, Zouche, Pufendorf,

Bynkershoek, Moser, Van Martens, Vattel, etc., are relied upon.

References are made to Oppenheim's treatises, and Lauterpacht's

writings, and to the texts of the International Law Commission.

f) Ex aequo et bono

This is the final source. This means equity & good

conscience. This saves the situation of helplessness of the Court.

One of the fundamentals of the judiciary is to solve the .dispute

on hand and not plead its helplessness or non- availability of any

definite law. In such a case, as a last resort, the court relies on its

own concept of equity and good conscience & decides the case on

hand, if the parties agree e.g., The P.C.I.J in the Diversion of

water from the River Meuse case said 'He who seeks equity must

do equity'. Hence, one party by non-performance, cannot take

advantage of a similar non-performance by the other party.

In the Rann of Kutch Arbitration (India V. Pakistan), both

parties relied on equity as part of International law, in deciding the

boundary dispute between the two parties the Tribunal found the

two deep inlets of Nagar Parkar as part of Pakistan, on grounds

of equity.

In the Continental Shelf Cases and in the Barcelona Traction

Case, the I.C.J has applied equitable principles to solve the

disputes.

CHAPTER 3

International Law Vs. Municipal Law

i) Introduction :

Two aspects are to be noted in the relationship between

Municipal Law & International Law. One is the theoretical

question whether both laws are part of a Universal legal order, or,

are two different systems. The other is the conflict between them in

the Municipal courts as to the primacy of Municipal Law over

International Law, or vice versa.

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Leading cases : 1.. R.V. Keyn ( Franconia Case) 1876

Franconia, a German ship, collided with a British vessel within

the British Maritime Belt. The British Vessel sank and one

person - died. The British Court convicted the master of the

German ship for manslaughter. Question arose about the

jurisdiction of the Court as the incident had happened within the

British territorial waters. The House of Lords, held that the English

Court wa, bound by Municipal Law and Municipal Law had not

provided for the Jurisdiction hence no jurisdiction.

This was neutralized by the Parliament which passed the

Territorial Jurisdiction Act 1878 by extending the jurisdiction.

2. West Rand Gold Mining Co .V. King 1905.

This was a Company working a gold mine in South Africa.

The Govt. officials seized gold belonging to the Company &

according to law s they were to pay compensation or return the same.

South Africa was defeated by the British, and, the gold was

brought to England. Thereupon, the Company sued the English

Govt. for return of the gold or for compensation.

The Crown made a Declaration which stated that the British

Govt. as a successor would not respect the commitments of the

South African Govt.

The Court held that the Company was not entitled to the

gold or for compensation, as the Crown Declaration was Municipal

Law. binding on Municipal Courts

Hence, municipal Law prevailed.

3. Chung Chi Cheung V. King (Privy Council).

C was a cabin boy on board a Chinese vessel. 'When the

Vessel was in Hongkong Territorial Waters, he shot & killed the

Captain. & another person. C was duly committed. But. the

question was whether the Court of Hongkong (a British ' Colony

then) had jurisdiction to try the case. The Privy Council held that

the Court had jurisdiction. The conviction was affirmed.

Rules of Interpretation. The rules emerge from British practice. *

A rule of construction that the Parliament did not intend-to deviate

from international law. This is a presumption.

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ii) A rule of evidence according to which courts take

notice of International law.

b) Treaties : Negotiation, signature ratification are matters,

belonging to the prerogatives of the Crown. But legislation is

necessary, if treaties

4

are :-

1. Affecting the rights of subjects (citizens).

2. Modifying a statute. *

3. Vesting additional powers on the Crown.

4. Imposing financial burden.

Legislation is also necessary, if there is a provision for

cession of the territory.

Hence in case of treaties, incorporation is necessary,

otherwise, Muncipal law will prevail.

Practice of States : In U.S.A.

i) International Custom : The procedure is the same as in

U.K.

ii) International Treaties : The practice Is different- a s the U.S.

Constitution in Art. 6(2) provides that treaties are The Supreme –

Law of the land'. There is a clear distinction between self executing

and non-self executing treaties. Self executing treaties operate

without legislation. In case of non- self- executing treaties. they will

he operative only after legislation,

INDIA : Art. 51, of Directive Principles of State policy, provides

tor respect for International Law'. This provision is a reference to

the State Policy only. Broadly speaking the practice of U.K. is

followed in India, (Beruberi Union Case).

CHAPTER 4

• CODIFICATION

Codification

To provide definite laws to the International Courts. National

Courts. and Tribunals and to stimulate the willingness of States to

submit International disputes, codification gained momentum.

The idea of

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Progressive development means the preparation of draft convention on

subjects which are not yet regulated or developed- Much work is done by the

International Law Commission, e.g. Geneva conventions on the-Law of the Sea

1958. Vienna Convention on Diplomatic Relations 1961, Vienna Convention on

the law of Treaties 1969 etc.,

The modern trend is, towards the speedier method of international law

making process: i.e. Treaties bi and multilateral This is called international

legislation. The role of these law making treaties is considerable. The

contributions of International court of Arbitration, P.Q.I.J. & I.C.J. are of great

significance Apart from these, the part played by

International.Law.Commission.. in formulating treaty-drafts, in respect of

volume & area covered, are phenomenal. The processes in codification & progressive

development of International law are confirming .on and have become part of

law making in the field' of. International law.

CHAPTER 5

STATES AS SUBJECTS

Ch 5. Subjects of International Law.

Primarily, International Law is concerned with the rights duties and interests

of States. As'International law 'is between or among the States, some jurists hold

the view. that 'only the State are the subjects of International*

law'.

Subjects of International Law meajis : .1. Incumbent of International rights

and duties :

2. Possessor of procedural privileges of suing in International Courts

and Tribunals :

'~* - i*

3. Possessor of interests under International law. 4. Capacity to enter into treaties & International obligations.

EXCEPTIONS :

i) Though it. is the conduct of the state that is regulated by international

law, in the ultimate analysis it is the conduct of the individuals that is regulated.

As Westlake opines 'The rights & duties of the States are ultimately the rights and

duties of-men. that compose them. Hence, though the States are normal subjects,

they may endow the individuals with the International rights & duties and to that

extent make them subjects of International law.

ii) Pirates who commit Piracy Jure Gentium on the high seas are liable to

punishment under International law. To that extent they are the subjects of

International law,, but some jurists call them as objects.

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iii) Slaves : International convention has provides for the abolition of

slavery. The convention also provides for the rights of the,slaves. They enjoy

these rights as subjects of International law.

iv) Belligerents : are subject to International rights and duties in respect of

war. Hence, they are subjects of International law. e.g. Geneva Conventions on the

Prisoners of war apply to them..

v) Individuals : May be allowed to appear before the International tribunals,

like ICJ. In Danzsig officials case, the ICJ. has opined that individuals may be

conferred with certain rights by States.

vi) War Criminals : The Nirenberg and Tokyo trials after II World War

showed that individuals could be tried for International crimes like crimes against

peace, crimes against humanity and crimes under the law of War.

Eichmann’s Trial fortifies the above position. The Nuremberg- Trial rightly

stated that crimes against International law are committed by men not by abstract

entities (States) and only by punishing individuals who commit crimes, can the

provisions of International, law be enforced.

vii) Genocide Convention : This provides for punishment of those who

commit genocide, the punishment may be awarded by National or International

courts.

viii) European Commission for Human Rights has been empowered to

investigate and to report on violation of' human rights by the Member States. The

Lawless case decided by the European Court of Human Rights is an example.

ix) United Nations : The I. C. J. in the Reparations case held that the

United Nations is an International person. It is also 'declared as the subject of

International law, capable of International rights and obligations.

x) The Specialised Agencies like I.L.O., U.P.U., are International persons and

hence the subjects of International law as per their Constitutions.

xi) Regional Arrangements : Like the NATO., SEATO., etc. are also

endowed with International personality. Hence they are also subjects of

International law in a limited w iv.

These factors evidently prove that apart from Sovereign States, there are others

which are also the subjects though '.in a limited sense. It is no doubt true that

States are mainly the subjects, as the capacity to follow International

obligations, is on them primarily.

CHAPTER 6

RECOGNITION Ch. 6-1 Recognition.