International Law and Municipal Law Relationship Theories - Prof. Aravind, Study notes of International Public Law

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PUBLIC

INTERNATIONAL LAW

3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW

UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By

ANIL KUMAR K T

Mob: 958441644 6

Karnataka State law university 3 & 5 year LLB

ANIL KUMAR K T LLB COACH

Public International Law

Most important previous year questions

1. Explain the sources of International law.
2. Explain the operation of international law in British Municipal.
3. What is recognition? Explain Dejura & Defacto recognition?
4. What is continental shelf? Explain the rights available to coastal state in continental shelf?
5. Explain the rights and privileges of diplomatic envys.
6. Explain the composition and jurisdiction of international court of justice?
7. Write a note on theories relating to recognition.
8. Write a note on International labor organization.
9. Examine the theories relating to nature and basis of international law. 10.Individuals are the only subjects of international law evaluate the relevancy of the statement? 11.Explain the different theories relating to relationship between international law and municipal law. 12.What is state succession? Explain the rights and duties arising out of succession state? 13.Explain the modes of acquisition and loss of state territory. 14.Examine the practices of states in relation to formation of termination of treaty. 15.Write a note on customs. 16.Define international law and trace the development of international law. 17.Discuss the theories as to application of international law in municipal law. 18.What is intervention? Discuss the different types of intervention? 19.Explain state jurisdiction according to personal and protective principles. 20.What is high seas? State the freedoms available to a state on high seas? 21.Write a note on defacto recognition and extradition. 22.Write a note on microstates and condominium. 23.Explain the difference between municipal law and international law.

1.Explain the sources of international Law Introduction: Major sources which form the conventional source of International law includes the International Convention and Treaties. Sources of International Law can be bifurcated into primary and secondary sources which are explained below. Primary Sources Primary Sources of International Law are considered formal in nature. They come from official bodies which include Treaties, Customs and principle of Law. Article 38(1)(a-c) of the ICJ statute is widely recognized as the backbone of the formal source of International Law. It is generally regarded as an authoritative statement of the sources of international law. Article 38 of the Statute of the International Court of Justice in The Hague has been treated as a convenient catalogue of international legal sources. Article 38 of the ICJ statute: Article 38(1)(a-c) of the ICJ was adopted by the same provision of the statute of the Permanent Court of International Justice which operated under the auspices/support of Legal of Nations in 1920. The article refers to the primary sources of international law which are enumerated below: Custom as a Source of International Law The original and the oldest sources Law is known as Custom. The rules of customary International Law involved a long historical process which gained recognition by the entire community. The presence of customary rules can be deduced from state practice and behaviour because it is not a written source of law Convention as a source of International Law Treaties and conventions are one of the most important sources of International Law. These conventions can be multilateral or bilateral. Multilateral conventions

relate to the treaties which formulate the universal or general application of the law. On the other hand, bilateral conventions are those which is formed exclusively by two states to deal with a particular matter concerning these states. General Principle of International Law Most modern jurists accept general principles of law as common to all national legal systems, in so far as they are applicable to the relations of States. There are fewer decided cases in international law than in a municipal system and no method of legislating to provide rules to govern new situations. It is for such a reason that the provision of ‘the general principles of law recognized by civilized nations’ and was inserted into article 38 as a source of law. Secondary source (Evidence of International law) Article 38(1)(d) forms part of the material source of International Law also known as the secondary source. It states that judicial decisions and the teachings of the most highly qualified publicists of the various nations also help in guiding the formation of international law, however they are not binding but merely advisory in nature. Judicial Decision Under this, the court is authorised to apply previous decisions of the court which are also known as an evidence of international law, however, it is subject to the exception stated under Article 59 of the statute which states that the previous decision of the court can only guide the court, it is not binding on the court. This article provides the court with a rule that it is not to be bounded by precedents but recourse can still be made by the court to its past decision’s res judicata and advisory opinion to substantiate current case as authoritative evidence of legal position. Juristic writings and teachings Other major parts of this source also include the ‘teachings of the highly qualified writers such as Gentili, Grotius, and Vattel who were considered as the supreme authorities of the international law in the 16th to 18th Centuries.

Fenwick defines recognition as a formal acknowledgment by the existing measures of an international community of the international personality of a state of political group not hither to maintaining official relations with it Types of recognition

1. Express implied recognition
2. Recognition subject to an condition
3. Individual and collative recognition
4. Recognition of a state or new government
5. Recognition of government in excel
6. Premature recognition
7. Defect or defacto recognition
8. Recognition of insurgency and belligerency Dejura and Defacto Recognition Defacto recognition It is an non committal recognition. when an entity complies with the requirements of state hood and independence initially, defacto recognition is given to see the prospects of stability and ability to fulfill the international obligations. Defacto recognition is usually given to secure certain economic advantages to the recognizing state and enabling it to protect the internets of its citizens, living in the territory of the state Dejure Recognition: Dejure recognition generally succeed defacto recognition it is given after being satisfied that the now government is stable and can rule the people legitimately. It is permanent and irrevocable

Distinction between defacto and dejure recognition

• Only degree state or government has the right to receive the property situated in the territory of the recognizing state
• Any dejure recognized state is entitled for state succession
• Defacto recognition can be withdrawn on several grounds than those of the normal grounds of with drawl of dejure recognition
• As per British practice, the diplomatic representation of the defacto state are not entitled to full immunities and privileges 4) What is continental shelf? Explain the rights available to coastal state in continental shelf? Introduction: Continental shelf is sub marine land which is contiguous to the continent and which is covered by no more than 100 fathoms ( 600 first ) of water Since the continental shelf is the submarine Extension to the coastal state, if has reasonable right to have jurisdiction on it. Continental shelf means the submerged belt of the sea. It is contiguous to continental land mass. It is formed in such a manner as to be considered at the extension of the land area. It extends to a distance till the bottom reaches 6000 feet Article 56 deals with the rights of a coach state in the exclusive economic zone There is sovereign rights for exploiting consuming and managing the natural reopens and for the economic exploitation and exploration of the zone.

• The diplomatic agents have the right to exercise control and jurisdiction over their officers and families
• The representative is exempted from all direct and person’s taxes like income tax etc.
• He has the privileges of worship of the god of his choice and private worship.
• The representative cannot be compelled to appear as a witness in civil, criminal or administrative courts.
• The residence of the diplomatic representative is immense from local jurisdiction. Asylum can be given in his residence
• Diplomatic agents are also exempt from local and military obligations 6.Explain the composition and Jurisdiction of International court of justice? International court of justice is situated at the Hague( Nether lands) and it came into existence on 24th^ October 1945. It is based on permanent court of International justice statute with some modifications Composition: Members of International court of justice are only individuals and not states. It has 15 judges each with 9 years form 1/3 of members retire at every 3 years. Equal states to all judges is granted and no two judges can be from the same nation. The term for the President and Vice President is for 3 years Qualification of judge 1)High moral character

2. Eligibility for appointment to highest judicial office of the country
3. Knowledge of main Legal systems
4. Knowledge of main form of civilization

Privileges : Every facilities for leaving country at any fine he likes and for all diplomatic immensities and privileges in the country of residence and in the country travel are available. Jurisdiction

• International agreements 38 (1) (a)
• International custom 33 (1) (6)
• General principles of law recognized by civilized nation 38(1) (c)
• Judicial decision and juristic works 38 (i) (d)
• Ex acquest bono - it means compromise conciliation and legislation in a friendly settlement International court of justice exercise three types of jurisdictions
• Contentious jurisdiction
• Advisory Jurisdiction
• Revisory Jurisdiction 2.Write a note on theories relating to recognition Fenwick defines recognition as a formal acknowledgment by existing members of an international community of the International personality of a state of political group not hit herto maintaining official relations with it. There are two distinct theories regarding the principles of recognition 1) Constitutive theory or cognitive theory Hegel is the founder of the theory. According to him a state comes into existence only after recognition. According to Anzilolti, state comes into existence by first agreement as expressed by treaty of recognition

According to article 3 of the declaration the following are its main objectives

1. Child welfare
2. Social security
3. Minimum living age
4. Proper health of worker
5. Equal and full opportunity in education and employment
6. Rise in living standards
7. Rights of collective bargaining
8. Housing entertainment etc 9.Examine the theories relating to nature and basis of international law Modern international law is a body of legal rules and principles which regulate the relation between subjects of international law i.e entitle which possess international personality such as sovereign states and international organization

• International Law is not a law The leaders of this school an Sri John Austin, Thomas Hobbs Samuel Pufer drof and others. According to them international law at best resembles rules of law. It comprises of only rules of positive morality. Even during the time of Hego Grotious International law was termed as “No reality out side on empty name.
• International Law A Law The leaders of this school are strake, Oppenniem, Hall, Lawrance, Polis and Sir Hennrymaine According to this school international law is a true law but a different kind. It should not be declared untrue by compelling it with municipal law which is far advanced and well developed

• International Law - A weak Law The theoretical views by Eminent jurists the state practice by different nations and the judicial decisions affirm the legal character of international law.
• International law – A Varnishing point of Jurisprudence: Holland’s remark that international law is the vanishing point of jurisprudence is not valid The vanishing point of jurisprudence means that the international law lacks any arbiter to decide disputed questions at international level 10.Individuals are the only subjects of International law evaluate the relevancy of the statement Fiction Theory. According to prof Kelsen, Leon Dequest and others individual is the basis unit of national and international activities states have been created for the welfare of individuals and they are only the agents of individually, state is an obstruct entity and without the existence of individuals state cannot exists
• Majority of international agreements are concluded for the welfare and benefit of individuals
• Under several treaties individuals are granted the right to be a party before the proceedings of the international judicial bodies
• The treaty of Versailles: The duties of individuals provided under international law show that individuals are also subjects of international law under this treaty and the polish German convention of 1922, individual claimants had occurs to mixed arbitration tribunals.

The exponents of this theory are Moses Martens Kelson, Scelle Lauterpacht and others. According to this theory, municipal law and International law are one and the same. These are the only branches of one system of law. The following reasons are given in support of this.

• Municipal law and International law are parts of one universal legal system and the two together form a single legal order. They both are species of one genus law.
• Both international law and Municipal Law finally regulate the conduct of individuals & relation among individuals only.
• The source of municipal law and International law are the same
• The two legal system are essentially and fundamentally identical
• Individuals lie at the root of these two legal system
• Neither Municipal law nor international law has Supremacy over each other 2 ) Dualism or Dualistis Theory: The exponents of this they are Anziloti, Trieple, Garner and others. According to this theory municipality and international law are entirely different. They are two District separate and self contained legal system, each one operating within its own sphere at activity.
• Both international law and municipal law differ in their sources Law encrusted by Legislature is the source of State Law where as treaties and customary rules of practices are the sources of international law.
• Municipal law has got strong sanctions. International law on the other hand has only weak sanctions.

• State law depends on the will of the State. But international law depends on the common will of the states. State law is a law of subordination in the sense that it is the command of the sovereign issue to his subjects, where as international law is a law of coordination because it is a law created by sovereign states to bring out cooperation among them. 12. What is State Succession? Explain the rights and duties arising out of succession State? State succession means when one or more states take the place of other state or states, right and liabilities pass on to such state or states. State succession is analogical to a legal heir becoming the legal successor of the deceased person and inheriting the Latter’s rights and obligation through inheritance Oppenheim says a succession of international persons occur when one or more international persons take the place of another international person in consequence of certain changes in the latter’s condition Classification
• Universal succession (theory )
• Partial Succession ( theory)
• Rights and duties arising out of succession state
• Succession to treaty rights and obligation The case of the free zones of upper savoy and Gex This is the leading case in State succession and doctrine of rebus sic standi bus ( Treaties)

The acquisition of territory by state can be more correctly referred to as acquisition of territorial sovereignty by an existing, state and member of the international community over another state. The Five (V) modes of acquiring territory have traditionally been distinguished into cession, occupation, accretion, subjugation and prescription. Before looking into these modes of acquisition.

1. Cession : Cession of the state territory is the transfer of sovereignty over the territory by the owner state to another state. Its basis lies in the intention of the concerned parties to transfer sovereignty over the territory in question, and it resets on the principles that the right of transferring its territory is a fundamental attribute of the sovereignty of a state. The cession may comprise a portion of the territory of the ending state or totality of its territory.
2. Occupation : Occupation is a state’s intentional claim of sovereignty over territory treated by the international community as terna nullis or territory that does not belong to any another state. Article 42 of the Hague Regulations of 1907 defines occupation as Follows : Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. Accretion: Accretion refers to the physical expansion of an Existing Territory through the geographical process. It is the name of the increase of land due to some new formations such information may be a modification of the existing state territory for example, When an island rises within a river ( not

increasing the territory, only the land) or when an island ensures in the maritime belt. Subjugation: Subjugation is the acquisition of territory by conquest followed by annexation. This direct mode of acquisition is often called by consequent. In those days war was not illegal and so making of war was recognized as a sovereign right. There is a very fine distinction between cession and Subjugation. Prescription: Prescription can be defined as the acquisition sovereignty over a territory through a continuous and undisturbed exercise of sovereignty over it during such a period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with the international order: Loss of State Territory : These are cession, dereliction, operation of nature. Subjugation, prescription and there is a sixth mode is that is revolt, loss of territory by subjugation, cession and prescription is pretty straight forward and requires no further explanation. Its simply by the corresponding loss of territory due to the gain of that territory by another state. Revolt on the other hand has been accepted as a mode of losing territory to which there is no corresponding mode of acquisition. There is no hard and fast rule regarding the time when state which has broken off from another can be established permanently as another state. Arevolt however seems to be more of a political issue than a legal mode of losses of territorial sovereignty

• Dereliction as a mode of losing territory correspondent occupation. Dereliction frees a territory form the sovereignty of the present state possessor.