LATEST OXFORD PUBLICATIONS Spl. Indian SasceseKatene ls WM nEnE ETE ‘nom TEXTBOOK ON CRIMINOLOGY | "55, LECTURES ON Hilaire McCoubrey & Nigel D. White TEXTBOOK ON JURISPRUDENCE 2084 H U M AN RIG H TS “Fa CASEBOOK ON CONTRACT LAW 508 Ticion Raiae AND CASEBOOK ON TORTS 205 . oe INTERNATIONAL OPEN JUSTICE (A CRITIQUE OF THE PUBLIC TRIAL} 495} LAW ill Poole TEXTBOOK ON CONTRAET LAW 96) Peter Barrie | By COMPENSATION FOR PERSONAL Prof. Dr. REGA SURYA RAO, pp INJURIES 695). Tia Kaye & tyne Towny [ _ BLACKSTONE'S BOOK OF MOOTS zoo: Tagh Braye. Wil Donean & chard Gres CLINICAL LEGAL EDUCATION 001 Formerly ~~ beier Leyland & Terry Woods Lecturer in Law TEXTBOOK ON ADMINISTRATIVE LAW (4th Edn.) 550). aad OPINION WRITING 4 Bently & Sherman am PROPERTY 995). WN Brownlie _____ PRINCIPLES OF PUBLIC INTERNATIONAL LAW 725 ASIA LAW HOUSE: Lunney & Oliphant fd > Opp: High Court, Hyd-2. Phs. 24526212, 24566212 Fa AS66007" L TORT LAW TEXT AND MATERIALS 695). [5 > Opp: 1.0.8., Bank Street, Hyderabad-95 Phs. 24742924 2408000 Fate Antonio Cassese ~ = EMail: [email protected] www.asialawhouse.com INTERNATIONAL LAW wuss | 2 - Lb OE ee — ayene rcrimapbctecas Published by S.P. GOGIA (H.U.F.) Price : Rs. 225/- only © All rights including copyrights reserved with the publishers. No part DEDICATED TO Late Sri Barrister Raja S. Bhonsale B.A, (Hons.) LLB., D.LA. (London)., M.Sc., (Eco.) London F-R.AS. of this book-may be reproduced or Copied in any form or by any rnicans (Graphic, Electronic or Mechanical), or reproduced on any information storage device, without the written permission of the I | 1 | 1 L [Note Due care has been taken while publishing this book, but the ‘Author, Publisher and Printers are not responsible in any manner for any mistake that may have inadvertently crept jn. In ease ‘of doubis the reader shall eross-check the contents ith original Government Publication or Notifications. Any mistakes noted tay be brought t0 our notice which shall be taken eare in the next edition. All Disputes subject to Hyderabad Jurisdiction only Printed at: Haritha Graphics Barrister-at-Law Senior Advocate, Supreme Court of India Former Advocate General of Maharashtra Former Judge, High Court of Mumbai and The Founder, P.D.P. Law College, Phaltan. who was instrumental for what [ am now.PREFACE ‘The present subject, "Human Rights and International Law” is one of the most important branches of the Public Law prescribed for study as compulsory paper in the LL.B/B.L/B.G.L. (Both three years and Five years Degree) course in all the Indian Universities. Previously, this subject was prescribed for study under the ttle "Public International Law", which includes the study of International Organisations and one chapter had been allocated for the study of Human Rights. This book, keeping in view, the requirements of the students from Examination point of view has been divided into three parts. Part { covers various aspects of International Law. Part II deals with Intemational Organisations and Part III deals with Human Rights. Intemational Law or Law of Nations is a dynamic law, which has been changing from time to time resulting in tremendous growth and development. One of the significant developments of the twentieth century was the emergence of International Organisations to strengthen inter-State relations and to promote International peace and security at global level. One of the major problems of the present day is the exploitation of human rights and there is an urgent need to take all appropriate steps, both National and Intemational levels to curb/cradicate the exploitation of Haman Rights. Human Rights are the basic rights, which every individual is entitled to, and are inherent in human beings itrespective of sex, caste, oreed, religion and nationality. But, the importance of the Human Rights had been realised and visualised only after the establishment of the United Nations Organisation in 1945. In view of the great importance and tremendous growth in violations of Human Rights, elaborate study in this area has been recommended by the authorities and hence a separate part (Part [Tf is devoted in this book for the study of Human Rights.a vi___ Lectures of ian Rights & futernational Law With the encouragement and inspiration of my well-wishers, I started writing law books in 1989, My two maiden ventures viz., Elements of Law of Torts and Outlines of Indian Legal and Constitutional History in 1990 and 1993 received overwhelming, response, The success of my works in a short span of time drew the attention of M/s. Asia Law House, Hyderabad, who have published so far my 13 works viz., Lectures on Contracts-I, Contracts-II, Torts and Consumer Protection Laws, Constitutional Law, Legal Language and Legal Writing, Family Law-1, Family Law-II, Criminal Law (Indian Penal Code), Environmental Law, Public Interest Lawyering, Legal Aid & Para Legal Services, ‘Criminal Procedure Code, Law of Evidence and Administrative Law. Thave dealt with the subject in as simple and lucid a way as possible and as comprehensively as necessary keeping in view, the requirements of students taking LL.B./B.L. (3 years and 5 years courses) Examinations. I welcome suggestions and advice from legal scholars and students for the improvement of this book. wish to express my profound gratitude to my eldest brother, Prof. R. Jaganmohan Rao, Retd. Professor of Law, Andhra University, Shri S, Prasada Rao, Retd. Joint Commissioner of Labour, Andhra Pradesh, Hyderabad, Shri V. Bangar Raju, Vice-Principal, Pydah College of Engineering & Technology, (Formerly Chief Manager, Hindustan Shipyard Ltd.), Visakhapatnam, Dr. P. Koteswar Rao, Retd. Prof. of Law, S.V. University, Tirupati, Dr. K. Vishnu Murty, Retd, Prof. of Law, Kakatiya University, Warangal (A.P.) Dr. N.S. Jagannadha Rao, LL.M., Ph.D., D.Lit. (Law), Retd. Prof of Law, Berhampur University (Orissa), my research guide and the first recipient of D.Lit. in Law in the States of Orissa, Andhra Pradesh and some other States, my research guide Prof, B.S. Murty, Retd. Prof, of Human Resource Management, Andhra University, Shri K. Jawaharlal, Member, Governing Body, Sir C.R.R. Institutions, Eluru, (A.P)., Smt. Vijayamala Raja Bhonsale, (Advocate, High ce Preface Court of Mumbai), Adv. Shri Rameshchandra S. Bhonsale, Chairman, Phaltan Urban Co-op. Bank Lid.) President and Secretary respectively of the Priyadarshini Dyan Prabhodhini Sanstha's Law College, who are collectively and independently instrumental for what Tam now. I owe duty to thank my wife Mrs. Balivada T. Gowri, Advocate and my sons Srinivas Uday Kiran, B.Tech, (CSE), Srinivas Arun Kiran, If, B.Tech, (Chem.) Pondicherry Engg. College, Pondicherry, but for whose encouragement and co-operation, I could not have been in a position to bring out the number of academic ventures on Law. { acknowledge my heartfelt thanks to $/Shri Sunil Gogia and Anil Gogia of Asia Law House for their encouragement and co-operation in getting this work published. [ would fail in my duty if I did not acknowledge my gratitude to the authors, whose works [have consulted and whom I have quoted in this book. “Above all it must be hidden truth that the love, affection, blessings and benedictions of my beloved parents late Shri Rega Appa Rao and Smt. Kantha Ratnam, the sole reason for my gradual academic elevation". AuthorLectures on HUMAN RIGHTS AND INTERNATIONAL LAW PARTI PUBLIC INTERNATIONAL LAW SERELINTERNATIONAL LAW Lecture-1 Lectures INTRODUCTION Page No. 1. Meaning and Definition Meaning eee Definition ILBrierly Torsten Giht Lord Coleridge, C.J Kelsen Strake en _% Public and Private International Law © Distinction between Publie International Law and Private International Lav. 3. Whether internationat law is a taw in-the true sense or Is International Law true law or Is international taw a positive morality or Whether international law is the vanishing point of jurisprudence? 6 <4. Basis of Internationat Law 1 1. Theories as to Law of Nature 8 Theory of Fundamental Rights semen 9 9 9 2. Positivism or the Doctrine of Positivism I Consent THeOty ..nnsnnnmnnmnetnsntvnn ii) Auto Limitation Theory se 9 iii) Pacta Sunt Servanda ,,Meaning and Defir Sources of International Law: International Law and Municipal Law Taternational Law and Municipal Law : Theories.. Lectures on Human Rights & foternationat Law Lecture-It Page No, SOURCES OF INTERNATIONAL LAW sunearnennnnnnnseserees HL ion Intemational Conventions or Treaties a) Law-making Treaties b) Treaty Contracts International Customs Ingredients or Essential Blement. ji) Long Duration or Ancient a i) Moral and Retisonable cnn rnernnnnn iil) Uniformity and Consistency. 7 iv) Generality of Practice... v) Opinio juris et necessitatis. Relevant Case Law North Sea Continental Shelf Cases (1LC.J. Rep. p.3) 16 Asylum Case (Columbia v. Peru, LC. Rep. (1950) at pp.276-277) sarees 7, West Rand Central Gold Mining Company Limited v. King (1905) 2 K.B. 391 General Principles of Law Recognised by Civilised Nations 8 Decisions of Judicial or Arbitral Tribunals land 18 Juristic Works.. wld Decisions or Determinations of the Organs of International Institutions or of Intemational Conferences 20 Lecture-t0 RELATION BETWEEN INTERNATIONAL LAW AND ‘MUNICIPAL LAW Meaning. ‘Monism or Monistic Theory. Contents xi Lectures Page No, ii) Dualism or Dualistic Theory. ene 24 iti) Specific Adoption Theory. 25, iv) Transformation Theory 25 ¥) Delegation Theory... 25 Question of Primacy or Conflict between International Law And Municipal Law State Practice as to application of Internatio: Law in Municipal Sphere i) British Practice. ii) American Practice.... iii) Indian Practice Lecture-IV 7 THE SUBJECTS OF INTERNATIONAL LAW ‘Subjects of International Law Meaning : States alone are the Subjects of International Law Individuals alone are the Subjects of International Law ..32 States, Individuals and certain non-state entities are the Subjects of International Law .. Place of In al in International Law. LECTURE-V RECOGNITION Meaning and Definition .. © Meaning © Definition .. ‘Theories of Recognition .. i) Constitutive Theory ii) Declaratory Theory Methods of Recognition Kinds of Recognition a) Express or Implied Recognition b) Conditional Recognition eeaii__Lectures on Human Rights & International Law Lectures Page No. ©) Collective Recognition 4) De facto and De jure Recognition 5. Consequences or Legal Effects of Recognition + Legal Bffects/Consequences of Non-tecognition OR Disabilities of Unrecognized States... : 44 Recognition and the U.N. vassnsuneneuennn 44 6. _ Recognition of State and Recognition of Government 44 7. “Recognition of © Recognition of Insurgency ne 45 © Recognition of Belligereney o 46 Lecture-VI STATE SUCCESSION 1. Meaning and Definition .. 2. Kinds of State Succession .... A) Universal Succession B) Partial Succession 3. Principle/Doctrine of Continuity of State: 4. Theories of State Succession i) Theories of Continuity 51 a) The Theory of universal suecession.... 31 ) The theory of popular continuity st ©) The theory of organic substitution 3t d) The theory of self abnegation «1. eae. ii) Negative Theories : 52 ii) ‘Theories Importing International Law. reves 52 iv) Communist Theory 2 Consequences or Rights and Duties arising out of State Succession .n. 1) Political Rights and Duties or Treaty Rights and Obligation : : ae sa ii) Local rights and duties. ae 53 iii) Fiscal property debts and Public debts. 53 Contents xiii ———_____fomtents att Lectures on ix) Contracts, 7 ai v) Concessionary Contracts.. vi) Laws vii) Torts viii) Nationatity . : ix) Succession to property in Foreign State x) Succession of States in respect of Treaties xi) Succession to U.N.Membership Lecture-VIT ACQUISITION AND Loss OF STATE TERRITORY State Territory Modes of Acquiring State Territory. a) Occupation i b) Accretion ee ©) Prescription 4) Cession. ©) Annexation or Conquest... Plebiscite 8) Lease hy) Pledge. Modes of Loss of Territory a) Cession : b) Operation of Nature ©) Subjugation d) Prescription ©) Revolt eet . © Declaration ata 61 8) Granting of Independenec to a colony by the Imperialist State International Waters... © The Farakka Issue osxiv Lectures on Human Rights & International Law Lectures Lecture-VIUL Page No. INTERVENTION ‘Meaning and Definition 63 © Meaning a 63 © Definition a 63 ‘© Provisions of the U.N Character 68 Kinds of Intervention 64 i) Punitive Intervention. sennneee 64 fi) fntemal Intervention... 6a ii) External Intervention. peers vente 6S Grounds of Intervention sn. 6s i) Self-defence : 65 ii) Humanitarian Grounds... 66 fil) To enforce treaty Tights nnn oT, iv) To prevent illegal intervention ....rureanennsnimernn OF v) Balance of Power. o vi) To protect persons and their properties .....n.nnnnees 68 vii) Collective intervention 68 Vili) Intervention in civit wars... 68 Monroe Doctrine 9 Drago Doctrine 69 Lecture-IX J EXTRADITION Meaning and Definition ersns: Meaning so i + Need and Basis of the Principle of Extradition n © Definition R State Practice or Procedure or Whether there is a Duty on States to Extradite enn. Essential Conditions of granting Extra Restrictions on Surrender i) Offences of Potitical Character... iz 74 i) Military OffenC€S wrennrnnn nnn me) iif) Religions Crimes Geers 79) Contents xv Lectures iv) Rule of Speciality v) Double Criminality . vi) Reasonable Prima facie evidence vii) Treaty Formalities.. 4. Position in India i) Political Crime... ii) Prosecution for offence being barred by time... iil) ‘Treaty obligation or Provision by Law iv) Extradition sought for the offence other than the offence accused Of... 7 ¥) Aer expiration of 15 days alter being committed t0 prison 3 Lecture-X — ASYLUM 1. Meaning and Definition © Meaning © Definition 2. Kinds of Asylum. : i) Tervitorial or Internal Asylum 80 ii) Extra Territoria/Diplomatic Asylum 281 4) Asylum in Foreign Legations. Litt e2 b) Asylum in Consular Premises 82 c) Asylum in the Premises of Intemational Institutions 82 4) Asylum in War ships .... 83 €) Asylum in Merchant Vessels aaa. ‘Distinction between Territoria/Intemal Asylum and Extra-territorial/Diplomatic Asylum, 83 Lecture-XI DIPLOMATIC AG N 1. Introduction... © Right of Legislation 2. Classification of Diplomatic Representatives. i) Ambassadors and Legates ii) Ministers Plenipotentiary or Envoys Extraordinary ...... 86 sens 84xvi__Lectures on Human Rights & International Law Lectures Page No, iii) Ministers Resident : 86 iv) Charge d? Affairs cia 86 3. Qualification and Appointment . Functions of Diplomatic Agents 5. Rights, Privileges and Immunities of Diplomatic Envoys 88 i) Theory of Extra-teritory eed ii) Functional TRe0FY wocrssaue eee ‘+ Rights, Privileges and mmunitis.. : |. Inviolability of the premises of Mission.. 90 2. Inviolablity of personnel of Mission or Personal safety 3. Immunity from Criminal Jurisdiction/Liability. 4. Exemption from Civil Jurisdiction/Liability. 5. Immunity from being presented as a witness. 6. Immunity of Official Residence ..crsennennn 92 7. Immunities of a Minister's Retinue and Relatives 92 8. Exemption from Taxes... 93 9. Exemption from seizure of goods oa... 93 10.Right to worship 293 IL Freetlom of communication 93 12. Immunity from social security provisions and local and military obligations 93 6. Duties of Diplomatic Agents 7. ‘Termination of Diplomatic Mission Recall of Envoy by Appointing/Sending State... 95 2. Demand/Request of Recall by Accredited Receiving State on 95 3. Persona non grata... : 95 4 Fulfilment of Object es 5. Expiration of letiers of credence wasincnennn nn 9S 6. Return of the regular Minister to his post 95 2, Change in the rank of the diplomatie agent «96 8. Revolutionary change of Government in either State .. 96 9. War between the sending and receiving States wu... 96 10. Death or the Abdication of the Head of either State... 96 Contents Lectures UL Request for a passport. 12. Dismissal of the Deiplomatic Agent s..s.vurureans 96 ‘© Formalities at Termination of Mission Lecture-XIT — TREATIES 1. Introduction .. © Definition . 2. Pacta Sunt Servanda..... 3. Vienna Convention on the Law of Treatles, 1969. 4. Classification of Treaties 5S. Parties competent to make treaties or Capacity or power to enter into Treaties ... "Formation or Conclusion of Treaties.. 1. Accrediting of Persons/Representatives ec... LOL 2. Negotiation senses 101 3. Authentication and signature, “102 4. Ratification : 102 5. Accession of Adh€SiOM ...rnnnnnnnnnn 102 6. Entry into Force... 103 7. Registration and Publication 103 8. Application and Enforcement 103 7. Ratification of Treaty ¢ Effect or Consequences of non-ratification 8. Termination of Treaties i) By Operation of Law ee 10s a) Expiry of Time : 10s b) Fulfilment of object, seven 105 ©) Material Breach... sonenes 106 d) Extinction of either party to a treaty. 106 €}) Outbreak of war 106 ) impossibility of performance 107 g) Rebus sic stantibus...... 107 h) Jus Cogens....Lectures Lectures on Human Rights & International Law Page No. fi) By act or acts of State parties... 107 a) Consent of Patties wn 107 b) Notice of termination or by act of denunciation... 107 Lecture-XIIT NATIONALITY "109 Disliction between Nationality and Domicile. Distinction between Nationality and Citizenship Modes of Acquisition of Nationality Eeeiao. S Importance of Nationality i) By Birth ii) By Descent... q Eeceiantateaeeeet gO) id) By Naturalisation .. . ener MO iv) By Resumption 7 : 12 v) By subjugation .. 112 vi) By Cession. ss o 112 vii) By option .. se : 112 «Loss of Nationality... 112 i) ByRelease se sevens UB ii). By Deprivation 2nssmmnenesen 113 i) Long Residence Abroad 13 iv) By Renunciation seen a 13 v) Substitution. seonrnnsesee UB = Double Nationality... eee 1B © Nationality of Married Woman sone WA ¢ Measures or Steps to reduce Statclessness 6 © Convention on the Reduction of Statelessness 16 ¢ Provisions . 16 Lecture-XIV 7 THE LAW OF THE SEA Introduction... ‘The First and Second U.N. Conferences on the Law of the Sex. 118 19 Contents xix Lectures 3. The Third U.N.Conference on Law of the Sea 1982 (UNCLOS -IID..... 120 © The U.N.Convention on Law of the Sea, 1982 120 4. Agreement relating to the implementation of Part XI of U.N.Convention on Law of the Sea (1994) 1. Maritimebelt or Territorial Sea... a) Breadth of Territorial Sea... 1b) Rights of States over Territorial Sea 125 Page No. 4) Rights of Coastal States 125 fi), Rights of other States ..... i eeeeeltaS: ©) Innocent Passage nnn 126 4) Indian Position... 127 2. Contiguous Zone... aus eneee ADT Indian Position atest ae: 3. Continental Shelf. 128 ') Definition under Geneva Convention on Law of the Sea, 1958... oe 129 ii) Definition of Continental Shelf under the Convention on Law of the Sea (UNCLOS III)... 129 ‘* Outer limits of the continental shelf, 129 «Payments or Contributions for exploiting ‘beyond 200 nautical mites 130 4, Exclusive Economic Zone (BEZ) or Patrimonial Sea .... 130 1) Breadth of BZ. rey ii) Rights of Coastal States in EEZ Bt iid) Rights of the States over EEZ 131 © EBZ and Customary international Law of the Sea a 132 © Indian Position . ree iv) BEZ and Continental Shelf distinguished. . 132 © EEZ and Continental Shelf 433 5. High Seas or Open Sea . 133 ‘¢ High Seas : Meaning... ae 133 + The Doctrine of Hot Pursuit 135xx__ Lectures on Human Rights & International Law Lectures Page No. ‘* The Intemational Sea-bed Area... 136 ‘System of Exploration and Exploitation in the Area 137, ‘* Intemational Sea-bed Authority. Seer era 138 T Assembly een eee 2, Couneil.. 139 3. Secretariat 139 4. Enterprise 140 + Intemational Tribunal for the Law of the Sea... 140 Lecture-XV "ATR LAW 141 141 1. Aerial Navigation Convention of Paris, 1919 ..rccrcees 142 2. Havana Convention, 1928 j.scsuununernernerennes 143) 3. Warsaw Convention, 1929 sin oe 143 4, Chicago Convention, 1944 i 143 + International Civil Aviation Organisation vou. 144 2. Aireraft Hijacking a we 145 < Meaning 145 ‘* Intemational Convention on Air-craft Hijacking 14s 1. The Tokyo Convention, 1963 .... 2 145 2. The Hague Convention, 1970 vee 146 * Main Provisions 146 Montreal Convention, 1971 ~ es 147 © Outer Space 1st ¢ Law on Outer Space ren 7 1 152 1. The Outer Space Treaty, 1967 153 2. The agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1967 vnnnnnn won 154 3. The Convention om fnternational Liability for Damage caused by Space Objects, 1971... 155 Lectures Contents xxi Page No. 4, ‘The Convention on Registration of Objects Launched into Outer Space, 1974. 5. Tho Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 1979 .. 6. Vienna Conference on the Exploration and Peaceful Uses of Outer Space (or UNISPACE-82).. 7, Intemational Space Year (ISY) 1992 . 155 156 156 157 Zs Lecture ~ XVI ~~ INTERNATIONAL ENVIRONMENTAL LAW Introduction en 158 ‘* Relevance of General International Law to Environment 159 ‘* Principles laid down and observations cence OL ‘The Stockholm Conference of 1972 on the Human Environment... 161 ‘The Stockholm Declaration, 1972 162 L. The Declaration on the Human Environment 1.1: 163 2, The Action Plan for the Human Environment 164 3. The Resolution on International and Financial Arrangements... 164 4. Resolution on Designation of World Fnvironment Day. 164 5. Reduction on Nuclear Weapons Tests 164 6. Resolution on the convening of Second Conference on Environment 164 7. Decision to refer to Government's recommendations for action at the national level 165 ‘The United Nations Environment Programme (UNEP) ~. 165 Rio Summit, 1992 (Rio Declaration on Environment and Development). World Conference on Natural Disaster Reduction, 1994.. +165 snes 167 am —— romexxii__Lectures on Human Rights & International Law Lectures PART-IE Page No. INTERNATIONAL ORGANISATIONS Lecture-XVII INTERNATIONAL ORGANISATIONS © Meaning, Definition and Essentials... 169 + Essentials 170 Functions of Intemational Organisations sermons 170 ¢ Evaluation of International Organisations. AM © The Concert of Europe 172 © The Hague System .. 172 ‘© Public Intemational Unions 173 ‘* Privileges and Immunities of International Organisations .... 174 Leeture-XVIIT ‘THE LEAGUE OF NATIONS ¢ Historical Background. 175 © Members 175 + Functions and Objects 176 ‘Constitution of Principal Organs... 116 1. Assembly 176 2. Council 177 3, The Secretariat. 17 Position of the League. oe seve VTT + Functions of the League. : 178 @ The Role of the League of Nations in the maintenance of the World Peace... nnn LTB © Defects and the circumstances leading to the dissolution of the League of Nations 180 Lecture-XIX ‘THE PERMANENT COURT OF ARBITRATION © Origin and Nature nts 1B © Composition... so 182 1. The Administrative Council 182 Contents wait Lectures Page No. 2.” The Intemational Bureau. eeea| 3. ‘The Panel of Experts ea * Finances ae ae © The Role/Importance of the Pemianent Court of Arbitration. 183 © Cases decided by the Céurt 184 1. The Pious Fund of the Californians (1902) C808 ne 184 2. The Japanese House Tax Case (1904-5) 184 3. North Atfantic Fisheries Case [(1910) Martens, N.R.G. 3rd Set. 4 p. 89 sennrnnnnn 184 4, Savarkar's Case [(1911) Martens, NRG. 3rd Ser. 4, pat 79] nnnennnnmnerees 18S 5. The Charthage (1912) Martens, NIRG. 34d. Ser8, p1TA] oeosnnenmsennees 185 Lecture-XX _-__ THE PERMANENT COURT OF INTERNATIONAL JUSTICE * Composition 187 Diplomatic Privileges... 188 Improvement over the Permanent Court of International Justice. 138 Jurisdiction of the Permanent Court of international Justice . 188 Relation of the Court with the League 189 © Cases decided by the Court 190 1. The Wimbledon Case ((1923), PCU Ser. A, No.1]... 190 2. German Settlers’ Case [(1923) PC.LJ. Sec B.No.6] ... 190 3. Upper Silesia Case {(1925), PCL Ser.A No.6] 190 4. The Lotus Case [(1927) PC.LI Series A No.10] 190 * Dissolution of the Court 191xxiv__Lectures on Human Rights & International Law Contents aay Lectures Be Lecture-XX1 Page No, ‘THE UNITED NATIONS. ‘* Circumstances/Events leading to the establishment of United Nations ‘ 192 1. The Declaration of St James Palace (12 June 1941) ... 193 2. The Atlantic Charter (14 August 1941)... 193 3. The United Nations Declaration (I January 1942)........ 193 4, Moscow Declaration (30 October 1943) 193, 5. The Teheran Conference/Declaration (1 December 1943), . 194 6. Dumbarton Oaks Conference, 1944 .cconrns,, 194 7. Yalta Conference (11 February 1945)... 194 8. The San Francisco Conference (25 June 1945) 194 ‘* The Preamble of the United Nations Charter (The objects of United Nations). 2195 * Purpose of United Nations... ee 196 1. Maintenance of International Peace and Security... sennnnnenssnee 196 2. Promotion of friendly relations among nations/states.... se seen IT ‘* The principle of Self-Determination 197 3. Te achieve International Co-operation 198 4. To make the United Nations an Intemational Forum for Harmonisation sees 198, * Principles of the United Nations... 198 1. The principle of Sovereign Equality... 199 ‘The Principle of the Fulfillment of Obligation ... 199. 3. The Principle of Peaceful Settlement of International Disputes... pees 199 4, ‘The Principle of non-intervention 200 5. The Prineiple of Assistance to the United Nations o sees 200 6. The Principle for the Non-member states .......200 7. Principle of Non-intervention in domestic matters of a State 200 Lectures Page No. Membership of the United Nations... 201 © Expulsion of Membership wn 201 * Suspension of Membership 202 # Legal Status/Charter of United Nations oven 202 * The Role of United Nations for maintenance of International Peace. he . Composition/Organisation of the United Nations .. + Achievements of the United Nations .... . Avoidance of Third World War . Protection and promotion of Human Rights 1 2. 3. Devolonisation ncn 4. Universalisation eee 5. Conclusion of Conventions & Treaties . 206 6. Promotion of Economie, Social and Cultural Development .onrrniietnenninnrnesneansnssennnese 206 7. Codification and Settlement of Disputes 1. 207 i) The Iranian Case = 207 207 207 ii) Indonesian Dispute eos ‘The Corfu Channel Compensation... © Right of Self Defence sennes cad © Comparison between League of Nations and United Nations eee 210 * The Organs of United Nations... mesetnsrnensesesecenne BAZ 1, Principal Organs etic a2 212 2. Subsidiary Organs... << Leeture-XXIL ‘THE GENERAL ASSEMBLY Composition Voting Procedure -..sunmnnninnnnn * Powers and Funetions a) Deliberative Functions .... b) Supervisory Funetions...... ©) Financial Funetionsxavi__Lectures on Human Rights & International Law Lectures Page No, 4) Elective Functions on 216 ©) Constitutive Functions... 217 Effects ofthe Resolutions of the General Assembly.....217 Lecture-XXI1 © THE SECURITY COUNCIL © Composition 218 + Voting Procedure 219 = Yeo 219 «Double Veto... 1-220 # Criticism of Veto Power. senses 220 © Functions and Powers ofthe Security Council 221 1, Maintenance of international Peace and Security ..221 A) By Peaceful Means... eed aat 4) To call upon the parties to the dispute to settle the dispute peacefully (A133, Para 1). 22 b) ft may investigate the dispute (AGT, Pat 1) rnccnnnnnnnnnnn 222 ¢) {t may recommend the parties to the dispute to “Appropriate Procedures’ or ‘methods of adjustment (Art.36, Para 1) ....222 4) It may recommend the terms of settlement (Article 37) see 223 D) By taking Enforcement Action 223 a) Pacific Settlement... 223 b) Military Staff Committee 224 6) Liberation of Kuwait 224 4) Military Operation in Somalia 225 2. Elective Funetions 225 3. Supervisory Functions : 1226 4 Constituent Functions 226 Contents xxvii Lectures Lecture-XX1V Page No. © THE INTERNATIONAL COURT OF JUSTICE © Composition .. : 227 © Jurisdiction of the Court deiuianiagabna 7) 1. Contentious Furisdiction seams 229 a) Voluntary Jurisdiction eee a0. b) Adhoc Jurisdiction 230 ¢) Optional or Compulsory Jurisdiction 230 2. Advisory Jurisdiction a seers B31 # Nature of Advisory Opinion on 232 © Procedure of the Court in exercise of Advisory Jurisdiction .onnnoe 232 ‘* Immunities of the Judges 233 © Remuneration of JudgeS-.eon 233 ‘* The Law applied by the Court 233 ‘+ The Role of ICJ (The Intemational Court of Justice) in the Development of international Law... 234 Lecture-XXV THE ECONOMIC AND SOCIAL COUNCIL Composition... 236 Powers and Functions... eee: Functions Relating to Specialised Agencies ...e.enrnennne 237 The Role of ECOSOC in promotion of International Economic and Social Co-operation 238 Lecture-XXVI ‘THE TRUSTEESHIP COUNCIL Composition 241 Voting Sys at Functions and powers Lecture-XXVIL ‘THE SECRETARIAT Constitution ie 243 Powers and Functions of the Secretary Generalectures on Hui Rights & Internat Lecture-XXVIII SPECIALISED AGENCIES International Labour Organisation (ILO) © Object Composition ieee eters 240) 1 General Conference... 249, 2. Governing Body 3. Secretariat. © Functions . World Health Organisation’ '* Historical Background © Object © Composition/Constitution - 2 i) Assembly : : se 252 ii) Executive Board sone 952 ii) Secretariat + Functions... : : 252 International Bank for Reconstruction and Development (World Bank)... 252 Composition. : 253 ) Boad of Governors : 253 ii) Executive Directors 253 ily President 254 + Functions. 254 International Monetary Fund (IMF)... ns 254 © Object ett eat asad. © Voting System 255 © Constitution 255 1) The Board of Governors soon 255; ii) The Executive Directors 256 iid) The Managing Director 236 © Working of IMP... 256 © Par value system. 256 #) Special Drawing Rights System scene 257 Contents xxi Lectures 5. 6. 10. 2. United Nations Educational, Scientific and Cultu Organisation (UNESCO) © Objectives . * Composition. i i) General Conference... ii) Executive Board fil) Secretariat nnn © Functions Food and Agricultural Organisation (FAO) © Objective = Composition i) Conference ii) Council... ii) Director General © Functions or Working of FAO International Civil Aviation Organisation (ICAO) © Object 261 © Composition Universal Postal Union| (UPU) cn © Object ae © Composition International Telecommantcation Union (ITU). © Objects © Composition é World Meteorological Organisation (WMO) . © Objectives © Composition International Ma © Composition nnn International Fund for Ag Development (IFAD) © Object * Composition and Function’...pinnae PARTAIL HUMAN RIGHTS Lecture-XXIX HUMAN RIGHTS MEANING, NATURE AND DEVELOPMENT 1, Meaning and Definition wrsnvmnun ee * Definition © Origin and Development 3. Kinds of Human Rights 1. Civil and Political Rights 2. Beonomie, Social and Cultural Rights 215 Lecture-XXX ‘THE UNITED NATIONS AND HUMAN RIGHTS 1. The United Nations and Human Rights ..... 276 A) Provisions relating to Human Rights under the UN Charter. sone 277 Weaknesses of the Provisions of the UN Charter 278 ‘The Role of UN in Promotion and Protection of Human Rights. oe evntnnnnnnee BIB a) Through Principal Organs... : 279 . Through General Assembly snnnnnn 279 2. Security Council... : 280 3. Economie and Social Counell en 280 4, Trusteeship Council... 281 xax___Lectures on Human Rights & International Law Contents xxi Lectures Page No. Lectures Page No. 13. World Intellectual Property Oganisation (WIOP) wine 266 5. The Intemational Court of Justice soe 281 14, International Finance Corporation (IFC) weno 267 6. The Secretariat 281 15. International Development Association (IDA)... 267 b) UN Charter based Institutions 282 16, The united nations industrial development 1. Commissions on Human Rights see 282 Organisation (UNDO) sen 268 2. Sub-Commission on Prevention of © Objective... 268 Discrimination and Protection of Minorities... 282 3. Commission on the Status of Women 283 4. Office ofthe United Nations High Commissioner For REFUGEES wesrnnnnnmennrnn renee BBB 5. Treaty-Monitoring Bodies = cessive 283 i) Committee on the Elimination of Racial Discrimination 284 ii} Human Rights Committee. taeesceee 284 ii) Commitee on the Elimination of Discrimination against Women 285 iv) Committee against Torture 285 ¥) Commictee on Economic, Social and Cultural Rights ssa 285 vi) Group of three 285 vii) Committee on the Rights ofthe Childs... 286 © Conse for Human Rights 286 c) UN Specialised Agencies.. - tea 2. Human Rights and Domestic Jurisdiction .. 3. UN Commission on Human Rights 4. Universal Declaration of Human Rights 287 288 289 Leetare-XXXt UNIVERSAL DECLARATION OF HUMAN RIGHTS . rigin and Preparation of International Bill of Human Rights. 291 Qirertont Biter an he 2 2 Provisions he Unverol Decltion of Human Right 298 5. Generarxxxti__Lectures on Human Rights & Intern: Lectures 4. Civil and Political Rights... i) Right to life (An3).. ii) Abolition of slavery (Art)... i) Abolition of torture, ete. (Art) iv) Right to recognition (Art.6) ) Equality before the law (Art.7) vi) Right to remedy (Art.8) vil) No arbitrary arrest (Art9) uu viii) Right to fair hearing (Art.10) : ix) Presumption of innocence (Art. 11)... x) (AID : xi) Right to privacy (Art12) aeatcees xii) Right to freedom of movement (Art 13) senses 296 xii) Right to asylum (Art14) conn 296 xiv) Right to nationality (Art.15).. 296 xv) Right to marriage (Art.16) : . 296 xvi) Right to own property (Art.17) 296 xvii) Right to freedom of thought, conscience and religion (Art. 18) : i 296 it) Right 10 ffeedom of opinion and expression (AFL 19) 296 xix) Right to assembly and association (ATt20) cscs 297 xx) Right to take part in the Government (Art.21) 297 Economic, Social and Cultural Rights i) Right to social security (Art.22) ii) Right to work (Art.23) iil) Right to rest and leisure (Art.24) iv) Right to a standard of living (Art.25) .. v) Right to education (Art.26) vi) Right to participate in cultural life (Art.27) .. 7 vii) Right to a social and international order (Art.28) 298 ‘Concluding Provisions (Art.29 & 30) i) Limitations (Art.29).... 8) Interpretation (A130)... Contents xxx Lectures Page No. so 299 300 Effect of the Universal Declaration of Human Rights # Influence of the Universal Declaration Indian and the Universal Declaration of Human Rights ....... ieee .. 300 eee Se ear conan rc ere (ICCPR) vascsenonen save 302 1 ica Ca 2. International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) * International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) 308 © Part to Part-V ate 309-311 © Kinds of Economic, Social and Cultural Rights ..oo 312 Lecture-XXXU1 INTERNATIONAL CONVENTIONS ON INHUMAN ACTS and International Convention on the Prevention and Punishment of Genocide, 1948 © Genocide: Meaning ‘Punishment for the Crime of Genocide 2. Apartheid and International Convention on the Suppression and Punishment of Crime of Apartheid, 1973 . * Apartheid : Meaning . : 3. Torture and Convention Against Torture and other Cruel, Inhuman.or Degrading Treatment or Punishment, 1984 ..All Forms of Racial Discrimination, 1966 (NCERD) .....324 © Articles 1 to 7 : vo 324-327 Lecture-XXXIV_ HUMAN RIGHTS AND VULNERABLE GROUPS Women and The Convention on the Elimination of All Forms of Discrimination against Women, 1979 we 328 © Articles 1 t0 30 328-336 Chitd and The United Nations Convention on the Rights of the Child, 1989 oe 37 © Rights of the Child 7 338 '* Procedure for the implementation of the Convention ....339 © The Committee on the Right of the Child 339 = Case Law 340 Lecture ~ XXXV REGIONAL CONVENTION ON HUMAN RIGHTS 1, The European Convention on Human Rights, 1950 .. © The European Convention on Human Rights and ‘The European Social Charter. 343 © The European Convention on Human Rights 343 Rights and Freedoms 34a © Enforcement/Implementation Machinery a 345 1, Buropean Commission on Human Rights 346 © Constitution 346 © Functions..... 346 SE xxxly Lectures on Human Rights & International Law i Contents may Lectures Page No. i Lectures Page No. © Torture : Meaning... a7 | The European Court of Human Rights 346 Convention against Torture and other crue, } © COMSEHUTION ses 347 inhuman or degrading eaten o punishment, 1984 318 4 ib punee land: Puneet 347 4. ac Diserimiaton and inireatina Convention om he American Convention om Han igh 1969. 347 Elimination of All Forms of Racial rimination, 1966 (NCERD) snesnnnennsnnnarne 323 Se ree tae teaeoee cate cae Racial Discrimination: Meaning... : 33 ii) The Inter American Court of Human Rights 349, Intemational Convention on the Elimination of a © Constitution/Composition ..... 7 cs we 349 « Jutisdition of the Court 349 350 351 3. The African Charter on Human and Peoples’ Rights © Rights and Duties... ‘* Promotion and Protection of Human and Peoples’ Rights ie Hae i) The African Commission on Human. ‘and Peoples’ Rights... 353 © Constintion vo iin © Bletion of Memb o-vor ove nomen 393 © Functions 353 ii) Afviean Court on Human and Peoples’ Rights 354 Composition 354 © lection of judges 355 Lecture-XXXVI INDIA AND HUMAN RIGHTS: 1. Salient Features of The Protection of Human Rights Act, 1993 356 © Object 337 ‘The National Human Rights Commission (NHRC) 387 © Constitution (Chapter-II, Section 3) 337 © Appointment of Chairperson and other members (Se6.4) wenn ne 358 + Removal of Members (Sec.$) 358 ‘+ Term of Office of Members (Sec.6) 359 «Powers and Functions 359xxxvi__Lectures on Human Rights & International Law Lectures Page No. © Matters not subject to jurisdiction of the © Commission: See.36 ee 362 ‘+ Investigation Eee eee 3: Statement made by persons to the Commission «mn. 363 # Persons likely to be prejudicially affected to be heard ...363 3. The State Human Rights Commission (SHRCs) . © Constitution... ene © Powers and Functions 4, Human Rights Courts © Special Public Prosecutor (Sec.31) 366 APPENDICES INTERNATIONAL INSTRUMENTS, 1. India Exceeding to the Covenants of 1966 © Declaration by the Government of India... 367 2. Charter of the United Nations (1945) Chapter T PURPOSES AND PRINCIPLES, Asticles [-25 370 Chapter VIE ACTION WITH RESPECT TO THREATS TO ‘THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION Articles 39-51 a 372 Chapter IX INTERNATIONAL ECONOMIC AND SOCIAL CO-OPERATION Articles 55-60 ... . 373 (Chapter XI DECLARATION REGARDING NON-SELF-GOVERNING ‘TERRITORIES Axticles 73, 74 esonne 374 Contents xxvii Lectures Chapter XIL Page No. INTERNATIONAL TRUSTEESHIP SYSTEM Articles 75-85 ... : 375 3. Universal Declaration of Human Rights (1948) Preamble voce 379 Articles 1-7 380 Articles 8-14 ... 381 Atticles 15-19 . 382 Artictes 20.23 .. 383 Articles 24-27 . i a 384 Articles 28-30... eras : 385 4, International Covenant on Civil and Political Rights, 1966 PARTI Article 1 386 PART IL AMticles 2-5 vss a 387 PART IIL Article 6-27 eee ata 388, PARTIV Articles 28-45... ‘ ‘ _ 307 PARTV Abticle 46, 47 scm i 405 PART Vi Atticles 48-53 orcs 406 Optional Protocol to the International Covenant on Civil and Political Rights Atticles 1-14 cece eit sone 408 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (1989) Articles 1-11 eect 412 5. International Covenant on Economic, Social and Cultural Rights (1966) Preamble... 416xxxvili_Lectures on Human Rights & International Law Lectures PARTI Page No, Article f pean 416 PARTI Articles 2-5 ee ‘ 418 PARTI Articles 6-15... i ais, PARTIV Aiticles 16-25 .... se 423 Articles 26-31 a 426 6. Statute of the International Court of Justice Article 1 . semen 429 CHAPTER ORGANIZATION OF THE COURT Articles 2-33, ‘ 2429 Articles 34-38 is 37 CHAPTER IIL PROCEDURE Articles 39-64 ... 439 CHAPTERIV ADVISORY OPINIONS Articles 65-68 CHAPTER V AMENDMENT Articles 69-70 .. 7. The Protection of Human Rights Act, 1993 © Statement of Objects and Reasons .. CHAPTERT ee Preliminary 1. Short ttle, extent and commencement 2. Definitions case Sections 10. 1 12. 13. 14 Is 16. 7 18, 19, 20 21 2 23. Contents wax CHAPTER I Page No. ‘The National Human Rights Commission Constitution of a National Human Rights Commission... 449 Appointment of Chairperson and other Members ~. 450 Removal of @ Member of the Commission 450 Term of office of Members 451 Member to act as Chairperson or to discharge his functions in certain circumstances... 451 Terms and conditions of service of Members .....452 Vacancies, etc., not to invalidate the proceedings of the Commission... se 492 Procedure to be regutated by the Commission......452 Officers and other staff of the Commission... 452 CHAPTER 11 Functions and Powers of the Commission Functions of the Commi a 453 Powers relating to inquiries 454 Investigation nee ASS Statement made by persons to the Commission..... 456 Persons likely to be prejudicially affected to be heard 456 CHAPTER IV Procedure Inquiry into complaints on 457 Steps after inquiry 457 Procedure with respect to armed forces sve 458 Annual and special reports of the Commission ..... 458 CHAPTER V State Human Rights Commissions Constitution of State Human Rights Commission ... 459 Appointment of Chairperson and other Members of State Commission .. 460 Removal of a Member of the State Commission... 460 meme seers Heese Leesan eLEea Ee LeeSeR eee LeeLee Eee egg EELSM_Lectures on Human Rights & International Law Sections Page No, 24. Term of office of Members of the State Commission me 461 25. Member to act as Chairperson or to discharge hhis functions in certain circumstances wscoce 461 26. Terms and conditions of service of Members Of the State Commission .. 462 27. Officers and other staff of the State Commission 462 28. Annual and special reports of State Commission... 462 29. Application of certain provisions relating to National Human Rights Commission to State Commission nosnnsnnn sre 463 CHAPTER VI Human Rights Courts 30. Human Rights Courts 463 31. Special Public Prosecutor 43 CHAPTER vit Finanee, Accounts and Audit Grants by the Central Government secon snmneu 464 Grants by the State Government... 464 Accounts and adit... 464 Accounts and audit of State Commission... 465 CHAPTER VitT Miscellaneous 36, Matters not subject to jurisdiction of the Commission ..... snes 466 37. Constitution of special investigation teams 466 38. Protection of action taken in good faith... 466 39. Members and officers to be public servants... 4¢6 40. Power of Central Government to make rules. 466 404. Power to make rules retrostiectively «a6 41. Power of State Government to make rules. 468 42. Power to remove difficulties oa 468 43. Repeal and savings 1-468 University Question Papers . 469-480 cnr eee Lectures on HUMAN RIGHTS AND INTERNATIONAL LAW The present subject, as the title itself indicates, comprises of bwo parts — Part-I Public International Law Part— International Organisations and Part Ul Human Rights, PART-L PUBLIC INTERNATIONAL LAW AL LAW Lecture-r INTRODUCTION Among the branches of Public Law, International Law or Law of Nations is of great importance. This lecture covers — Meaning and Definition of International Law. Public and Private Intemational Law, Whether International Law is a Law in the true sense or 's International Law true Law or is International Law a Positive Morality or Whether Internatio~al Law is the Vanishing Point of Jurisprudence? 4. Basis of International Law, 1. Meaning and Definition Meaning: The expression “Intemational Law" was coined forthe first time by Jeremy Bentham in 1780. The term International [aw is synonymous with the term law of nations. It is a body of rules and principles, which regulate the conduct and relations of the members of the International community. It aims to achieve Rat 1 1tliat 2 Lectures on Human Rights & International Law ') International peace and security and ii) To promote friendly relations among the member states (the members of International Community i.e. the United Nations). Definition: It is very difficult to define the term “International Law", There ate many definitions given by the scholars, subject ‘experts and international jurists. Prominent among them are given below: Oppenheim: Professor L.Oppenheim, one of the most celebrated authors of Public International Law defined ~ “Law of Nations or International Law is the name for the body of customary and treaty rules, which are considered legally binding by civilized states in their intercourse with each other”. This definition was not adequate/satisfactory and subjected to criticism on the following grounds 1, Not only states, but also public international organisations have rights and duties under Intemational Law, though they may not have all the rights and duties that states have.” 2. ‘The term “civilized states” used in the definition was criticised. Neither long history nor culture is a criterion for distinguishing between civilised and uncivilized states. For instance, China had 5000 years old culture. But, it was not included in the group of civilised states. Even individuals and private persons may have such rights and duties. 4. tis widely recognised that International Law consists of not only customary and conventional rules but also. of “General Principles of Law” 5. The term “body of rules” used in the definition stands changed as static and inadequate. Law changes with the change of time and circumstances, Introduction In view of the changing character of International law, the above definition is revised in Oppenheim’s International Law (Ninth Bdition 1992, Vol.1, P.4) as “International law is the body of rules, which are legally binding on states in their intercourse with cach other. These rules are primarily those, which govern the relation of states, but States are not the only subjects of International Law. International Organisations and, to some extent individuals also may be subject of rights conferred and duties imposed by international law.” This definition is almost similar/identical to the definitions given by Starke and Fenwick given below : Charles G.Fenwick: Charles G. Fenwick in his International Law (Third Indian Reprint 1971, p-31) defines — “International Law is the body of general principles and specific rules which are binding upon the members of international community in their mutual relations.” J.L.Brierly: The Law of Nations or International Law may be defined as the body of rules and principles of action, which are binding upon civilised states in their relations with one another.” This definition is not adequate and is subject to criticism on the ground of constant development of International Law. In addition to civilised states, intemational law also regulates the relations of international organisations, individuals and non-state entities Torsten Gili: The term “international Law means the body of rules of law, which apply within the International Community or Society of States” Lord Coleridge, C.J: In Queen ¥. Keyn (2 Ex.D.63, 253, 254 (1876)], defined Intemational Law as, “The law of nations as that collection of usages, which civilised states have agreed to ‘observe in their dealings with one another.” West Rand Central Gold Mining Led.Co. x. King (1903) 2 K.B. 91: International Law may be defined as “the form of the rules accepted by civilised states as determining their conduct towards each other and towards each other's subjects.”4 Lectures on Human Rights & S.S.Lotus Case (1927) P.C.LJ. Series A. No.10): The Permanent Court of International Justice, in $.S.Lotus case between France and Turkey defined International Law in the following words — Law “International Law governs relations between independent States. The rules of law binding upon States therefore emanate From their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co- existing independent communities or with a view to the achievement of common aims. Restriction upon the independence of States cannot therefore be presumed”. Kelsen: Hans Kelsen, in his Principles of International Law (p-3) defines “International Law or Law of Nations is the name of. @ body of rules which — according to the usual definition — regulate the conduct of the States in their intercourse with one another”. This definition was not adequate and subject to criticism. The above definitions do not represent appropriately, International Law as it exists today. Strake: J.G.Strake, in his ‘Introduction to fntemational Law (Eleventh Edition pp.3 & 4, 1994) — “International Law may be defined as that body of laws which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and, therefore, do commonly observe in their relations with each other, and which includes also: a) the rules of law relating to the functioning of international institutions or organisations, relations with States and individuals; and b) certain rules of law relating to individuals and non-State entities so faras the rights or duties of such individuals and non-state entities are the concern of the international community.” Introduction ‘This definition may be regarded as an appropriate one since it takes into account, the changing character of International law and truly reflects the present position of inteational law. 2. Public and Private International Law Public International Law is commonly known as International Law or Law of Nations. As discussed earlier, it regulates the relations among the members of international community, which includes individuals also, Private International Law on the other hand is that branch of Intemational Law, which determines/decides law applicable to the disputes/issues involving more than one nation and determines the court having jurisdiction to decide the issue. Private International Law is essentially a part of municipal law. Dicey calls it as ‘Conflict of Laws’ since it deals with rules regulating eases in which municipal laws of different States/Nations come into conflict. Such conflicts may arise with regard to domicile, marriage, divorce, wills, contracts ete. Hence, it is also called as inter-municipal law. According to Pit Cobbet, “Private Intemational Law is the body of rules for determining questions as to selection of appropriate law, in civil cases which present themselves for decision before the courts of one state or country, but which involve a foreign element, i., which affect foreign persons or foreign things or transactions that had been entered into wholly or partly in a foreign country, ot with reference to some foreign system of law." Distinction between Public International Law and Private International Law: ') Public International Law mainly deals with States and also to some extent deals with Individuals whereas Private International Law is concemed/deals with the Individuals, ii) Public International Law is commonly applicable to all states whereas Private International Law may be different in different States, ii) According to Robert Phillimore, rights arising out of Public International Law are absolute while the rights conferred under Private International Law are not absolutepl diessnicmonn Lectures on Hu Rights & International Law iv) International Law comprises mainly of the rules recognised by States in their relation with each other and mostly arises out of International customs and treaties. On the other hand, Rules of Private Intemational Law are framed by the legislature ofa State and recognised and developed by State Courts. 3. Whether international law is a law in the true sense or Is international law true law or Is international law a positive morality or Whether international law is the vanishing point of jurisprudence? ‘There had been a great controversy as to the question, whether intemational law is a law or not. Some answered the question in affirmative, while the others in negative. John Austin, a leading English writer on Jurisprudence who answered the question in negative. According to him, International Law is not true law, but a Code of rules and conduct of moral force only. He holds that Intemational Law is no law as it does not emanate from a law giving authority and has no sanction behind it. He opined that law obtaining between notions is not a positive law but only a law set by general opinion and the duties imposed under it are enforced by moral sanction. Austin described International Law as. “positive international morality consisting of opinion or sentiments current among nations generally.” Hobbes and Pufendorff, who preceded Austin also answered the question in the negative by saying that there is no positive law of nations properly invested with a true and legal force and binding as the command of a superior. Holland, Jeremy Benthan and Jethro Brown are the other prominent jurists, who deny the legal character of Intemational Law. Holland maintained that International Law differed from ordinary law and not supported’ by the authority of a State, According to him, the Law of Nations is bur private law ‘writ large’. tn this view of the matter, he called “International Law as the vanishing point of the jurisprudence”. According, to him, rules of Intemational Law cannot be kept into the category lav since they lack sanction, which is an essential element of municipal law. Introduction 2 According to Lord.Salisbury, International Law cannot be enforced by any tribunal and therefore, to apply to it the phrase ‘law’ to some extent was misleading, Hall and Lawrence on the other hand answered the question in affirmative. According to them, Intetnational Law is habitually treated and enforced as law, like certain kind of positive law, it is derived from custom, and precedent forms a source of International law. Pitt Cobbett observed that International Law must rank with law and not with morality. It is no more reduced to a nullity by being sometimes broken, than are the laws of the land, because the habitual criminal disregards them with impunity. Sir Frederick Pollock writes ~ the only essential conditions for the existence of law are the existence of political community and the recognition by its members of settled rules binding upon them in that capacity. International law seems on the whole to satisfy these conditions. “Thus, it is clear from the above that the solution for the above ‘question depends upon the definitions of law, which one may choose to adopt Basis of International Law Traditionally, there are two theories, which explain the basis of International Law namely, 1. Theories as to Law of Nature and 2. Positivism or the Doctrine of Positivism. In addition, the other theories that form the basis of International Law are, theory of Fundamental Rights, Consent Theory, Auto Limitation Theory and the Doctrine of Pacta Sunt Servanda. The first theory ice, the Theory of Fundamental Rights is derived from the theories as to Law of Nature, while the remaining three theories are emerged from Positivism or the Doctrine of Positivism,8 Lectures on Human Rights & International Law 1. Theories as to Law of Nature According to this theory International Law is a part of the Law of Nature, and hs conferred binding force on international Law. The Law of Nature was connected with religion and was regarded as the divine law. Hugo Grotious, the father of Intemational Law expounded/propounded and secularized the concept of the Law of Nature. This theory was supported by Vattel, Pufendorf, Christian Thomasius ete. = This theory is subject to criticism on the ground that the meaning. of law of nature is very vague and the jurists gave its meaning in different ways. Despite the criticism, this theory has great impact ‘on the growth of international law. As stated above, the theory of Fundamental Rights is derived from the theories as to Law of Nature and hence, it is detailed below. Theory of Fundamental Rights: According to this theory, when a State is admitted to the family of nations, it is endowed with certain fundamental or inherent or natural rights. Prior to the existence of State, man used to live in natural state and possessed some fundamental rights viz. Independence, equality, right to self- preservation ete. Sisnilarly, State also possessed such fundamental rights because so far, thete is no world institetion over-and above the States, J.L-Brierly (in his the Law of Nations, Sixth Edition 1963, pp.50- $1) criticised this theory on the following grounds: i) According to this theory, every state by virtue of statehood is endowed with certain fundamental rights. Such rights are meaningless unless there is a legal system conferring, validity on them. i) This theory cannot be commended because, it is in favour of giving more freedom to the States and lays less ‘emphasis on social relations and co-operation among the States. Introduction 9 2. Positivism or the Doctrine of Positivism ‘The theory of positivism denotes the part of the law, which consists of rules and regulations concerning international relations imposed by sovereigns on themselves. According to positivists, law ‘enacted by appropriate legislative authority is binding. In their view, treaties and customs are the main sources of International Law. Bynker-Shoeland Anzilotti are the chief exponents of this theory. As stated earlier, the three theories derived/emerged from positivism are explained below — i) Consent Theory ii) Auto Limitation Theory and iil) The Doctrine of Pacta Sunt Servandal 4) Consent Theory: The chief exponents of this theory are Anzilotti, Triepel etc. This theory says that consent of States is the basis of International Law. States observe the rules of international law since they have given consent for it. The consent may be given expressly, as in treaty or may be implied as acquiescence of a State ina customary rule. This theory is subjected to criticism on the ground that it fails (o explain the basis of customary international law. According to Strake, it is not necessary to prove that State or States have given consent to a particular/specific rule of intemational law. ProfSmith opined that States are bound by international law, it is immaterial whether they have given their consent or not. Further, this theory fails to explain the case of recognition of new State. It is wrong to say that the recognized State has given its consent. Brietly criticizes on the ground that, the theory of consent cannot explain the true basis ‘on Intemational Law. fi) Auto Limitation Theory: The auto limitation theory is also known as ‘Self-limitation theory. It is propounded by Jellinck and is based on the main postulates of positivism. According to this theory, States are independent entities and free from external influences10 __Lectures on Human Rights & International Law ‘This theory lays great stress on independence and sovereignty of the States. In other words, State can restrict its powers and thereby limit its will ‘This theory is subject to criticism on the ground that this theory is based upon the presumption that, there exists a State will. In fact, the will of the State is nothing but a will of the people, who compose it. iii) Pacta Sunt Servanda: It is a doctrine borrowed from the Roman Law and has been adopted as a principle governing treaties in International Law. According to this doctrine, the parties to treaty are bound to observe ‘its terms in good faith. Anzilotti, an Italian writer formulated this theory. He regards the doctrine of Pacta Sunt Servanda as the basis or source of International Law. ‘This theory is subject to criticism on the ground that the principle of pacta sunt servanda is far from truth since it fails to explain the binding force of customary rules/principles of international law, which are not based upon agreements between States. Lecture-II SOURCES OF INTERNATIONAL LAW ‘This Lecture covers — 1. Meaning and Definition 2. Sources of International Law '), Intemational Conventions or Treaties ii) International Customs ii) General Principles of Law recognised by Civilised States iv) Decisions of Judicial or Arbitral Tribunals and Juristic Works v) Decisions or Determinations of the Organs of International Institutions or of International Conferences. 1. Meaning and Definition ‘Source means “basis from which law is evolved”, Source of Law is a basis, which enables the courts to interpret law. Keeton defines ‘Source’ as “the material out of which law is eventually fashioned through the activity of judges.” In International Law, as pointed out by Fenwick, the term ‘Source’ has been used by writers in a number of senses. According to Edward Collins (in his “{oternational Law in a Changing World, 1969, p-16), the term ‘Source’ reférs to “methods or procedure by which international law is created". ‘The sources may be classified into formal (direct or proximate) sources and material (indirect or ultimate) sources. The formal sources may be described as the ‘Origins’ of law, while the ‘material sources represent the stuff out of which the law is made. According to J.G.Starke (in his “Introduction to International Law’, Eleventh Edn., September 1994, p-28), “the material sources of international law may be defined as the actual materials from hich an international lawyer determines the rule applicable to a given, situation”tures on Human Rights & International Law 2 2, Sources of International Law ‘The sources of International Law may be classified into five categories, namely: i. International Conventions or Treaties. ii, Intemational Customs iii, General Principles of Law recognized by Civilised Nations. iv. Decisions of Judicial or Arbitral Tribunals and Juristic Works, and v. Decisions or Determinations of the Organs of Intemational Institutions or of International Conferences, Article 38(2) of the Statute of the International Court of Justice (established by the Charter of the United Nations) defines the sources of International Law as under: a) International conventions, whether general or particular, establishing rules expressly recognised by contesting States. (They conform to international treaties proper) b) International custom, as evidence of a general practice accepted as law. (The evidence of international custom is to be sought primarily in State practice). c) ‘The general principles of law recognised by civilized rations, d) Subject to the provisions of Article 59 judicial decision and the teachings ofthe most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of taw Besides the above, the other sources of International Law which may be mentioned for the guidance of their own officers and tribunals, resolutions of intemational conferences, municipal Acts of Parliaments and the decisions of municipal courts and opinions of juris-consults or text-book writers. Lastly, the decisions and determinations of the various organs of the United Nations and other international bodies form an important source of International Law. Sourees of International Law i) International Conventions or Treaties Conventions or Treaties form the most important part of international law. The term ‘convention’ literally means “the act of convening @ conference, as assembly, representatives or delegates assembled for a common cause”. Whereas the term “treaty” is an agreement, subject to certain rights and duties entered into between ‘two of more States, Diplomatic envoys or heads of the States”. In other words, Convention or Treaty is an agreement in general or in Particular. If an agreement is signed and adopted by all or majority of States, itis called ‘Convention’. Eg. United Nations Convention on Law of the Sea, 1982; Vienna Convention on Law of the Treaties, 1969 etc. A treaty or Particular Convention or an agreement in particular means, "a treaty between two or more States". According to Article 2 of the Vienna Convention on Law of the Treaties, 1969, “a treaty is an agreement whereby twa or more States establish or seek to establish a relationship between them governed by international law.” International Treaties may be classified into two categories, namely a) Law-making treaties; and b) Treaty contracts. a. Law-making Treaties: A law making treaty involves two operations viz., a) legislative operation ic. laying down of rules; and ) undertaking of the contracting parties to conform to the rules. ‘The Congress of Vienna, 1815, the Declaration of Paris, 1856 ate the best examples for law making treaties. The law making treaties may again be divided into wo types, namely, 1) Treaties enunciating the rules of universal international law. Eg. The United National Charter, and I) {nternational Treaties, which lay down general principles Eg. Geneva Convention on Law of the Sea, 1958; Vienna Convention the Law of Treaties, 1969. b. Treaty Contracts: Treaty contracts deal with a special matter between the contracting states only. They are entered into bby two or more states and are binding on the patties to the treaty.14___Lectures on Human Rights & International Law ‘The treaty contracts entered into by a few states may be subsequently accepted by several states as they enter into similar treaties. Thus, the treaty contracts help the formation of international law. li) International Customs ‘The term ‘Custom’ means “Achara or Usage” a traditionally followed long practice by the members of a society. It is a bonafide practice, being observed for a long time, having the force of law. Among the sources of international law, custom is the oldest and the prominent one. It plays significant role in interpretation of law in the administration of justice. Article 38(1)(b) of the State of International Court of Justice recognizes ‘custom’ as a source of international law. Custom in its legal sense involves something more than habit or usage — a usage left by those who follow it to be an ‘obligatory one”. In interpretation of treaties, reference is frequently made to customs in case of doubt. Ingredients or Essential Elements: A custom to be valid, the following ingredients are to be satisfied: }) Long Duration or Ancient i) Moral and Reasonable. ii) Uniformity and Consistency, iv) Generality of Practice v) Opinio juris et necessitatis i) Long Duration or Ancient: In Municipal law, it is necessary that custom must be of long duration i.e, ancient and immemorial. But, in International Law it is not necessary. Article 38 of the Statute of the International Court of Justice directs the world court to apply international custom as evidence of general Practice accepted as law. ii) Moral and Reasonable: A custom to be valid, it must be moral and reasonable. It must not be contrary to justice, equality and good conscience and laws of the land, It must not be opposed to public policy. Sources of Internation 15 iii) Uniformity and Consistency: A custom to be applied in international law, it must be uniform ie. it must not vary/differ from State to State, Further, it must be consistent with the practice of the States in question The International Court of Justice in: Asylum Case (LC.J. Rep. (1950) at pp.276, 277) observed that, the rule invoked (custom) should be in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial state (Asylum means “providing shelter and protection to a political refugee of another state). Further, Section 38 of the Statute of the Intemational Court of Justice refers to International custom “as evidence of a general practice accepted as law”. iv) Generality of Practice: A custom to be valid, it should be generally observed or repealed by numerous States. It is not necessary that it is universally practised. ¥) Opinio juris et necessitatis: It was envisaged by the International Court of Justice in North Sea Continental Shelf Cases (L.C.J. Rep. (1969) p.3 at p.43), customary practice though it is general and consistent, is not acceptable unless opinio juris is present. In other words, it is not binding unless the practice is recognised by international law, Customary rules of intemational law have developed as a result of a) Diplomatic relations between the States, 6) Practice of international organs, ) State laws, decisions of State courts and State military or administrative practices, and d) Treaties between the States. Relevant Case Law: 1. North Sea ontinental Shelf Cases. 2. Asylum Case, and 3. West Rand Central Gold Mining Co.Ltd., Case.1, North Sea Continental Shelf Cases (C.J. Rep. p.3): Facts of the Case: In this case, two special agreements with regard to delimitation of Continental Shelf in the North Sea were entered into between: 1. The Kingdom of Denmark and the Federal Republic of Germany, and 2. Federal Republic of Germany and the Kingdom of Netherlands (Constitutional Shelf The land territory of a Coastal State does ‘ot come to an end with seashore, but extends into sea to a considerable distance, In other words, the seabed and sub-soil of the sub-marine areas is called ‘Constiuutional Shelf”. It extends beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nautical miles from the baselines ftom which the breadth of territorial sea is measured, where the outer edge of the continental margin does not extend upto that distance-) The parties approached the International Court of Justice with regard to the disputes/differences pertaining to the delimitation of continental shelf The waters of the North Sea are shallow and the sea-bed consisting of Continental Shelf is less than 200 meters. But the Nawegian belt was 200-650 meters deep. It was contended on the art of Denmark and Netherlands that the delimitation of Continental Shelf shall be made according to the principle of ‘Equi-distance special circumstances rule’, An equidistance line is a Tine every point of which is the same distance away from whether point is nearest to it on the coast of the countries concerned. While Germany contended that the delimitation should be made according to the principle of “just and equitable share” of the available Continental Shelf. Article 38(1) of the State of LC.J. lays down that the court shall follow the international conventions, customs ete. However, Article 38(2) provides for an exception to it. It is the principle of ex aequo et bono, which means “the court may travel beyond the Principles laid down in Article 38(1) and can travel beyond the iaw if the parties agree to it. Sources of International Law 7 Judgment: ‘The international court of Justice following the principle of equidistance special circumstances, held in favour of the kingdoms of Denmark and Netherlands. 2. Asylum Case (Columbia v. Peru, 1 PD.276-277): In this Case, the International Court of Justice laid down that, “A custom must be uniform, if itis to be adopted as an international law. It should be in accordance with 2 constant and uniform usage Practised by the States in question, and that this usage is the ‘expression of a right appertaining to the State in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of Court which refers to international custom as evidence of a general practice accepted as. Taw”. Rep. (1950) at Facts of the Case: A rebellion took place in Peru in 1948, Haya dela Torre was a Peruvian subject and a political leader. He was charged with rebellion on January 3, 1949. Columbia granted him asylum in her embassy in Peru and requested the Peruvian Government to provide facility to take him outside Peru for Columbia, This request was made by Columbia on the basis of Bolivian Agreement, 1911 and Pan American Havana Convention on Asyluin, 1928. Columbia justified its act contending that it was a political crime. Peru refused to let him from the country and arranged army around the Embassy of Columbia to prevent him (Haya de la Torre) from escaping. This matter was referred to the International Court of Justice. Judgment: The Court held that Columbia is not competent to decide the crime as political or ordinary. Peru failed to prove it as ordinary crime. The court held the asylum granted in this case as irregular on the ground that 3 months elapsed after the suspension of the military rebellion (which was a condition precedent under the convention). ‘Therefore, the court held that Columbia was not bound to surrender Haya de la Torre though the asylum granted was irregular since he was a political offender/refiagee. wR 2penance chime 18 ectures on Human Rights & Internation: West Rand Central Gold Mining Company Limited v. King (1905) 2 K.B. 391: In this case, a test regarding the general recognition of custom was laid down by the Intemational Court of Justice. ‘The Court ruled that, it should be proved satisfactory evidence that the custom is of such nature that it has received general consent of the States and no civilised state shall oppose it. Facts of the Case: The plaintiff company, registered in England, was engaged in digging gold mines in Transval, situated in South African Republic. On 1-10-1899, two parcels containing gold were scized by the authorities of the South African Republic ‘According to law prevailing at that time, the South African Republican Government had to return the Gold or pay the equivalent value (to the Plaintiff Company). On 11-10-1899 war broke out and South Africa was annexed to the United KingdonvBritain. The ‘company filed a suit against the British Government for return of the Gold or pay its equivalent value on the ground that the obligation/ responsibility of the conquered State, the South African Republic would pass to the conquering State, the Britain. Judgment: The King Bench held that, international law would Hot impose any obligations on the conquering state to fulfil the obligations of the conquered State. Tt was held that the conquering State (Britain) need not return the gold of pay its equivalent value to the Plaintiff Company. General Principles of Law Recognised by Civilised Nations ‘The phrase “the General Principles of law recognised by civilised nations’ also embraces the principles of private law ‘administered in national courts and as applicable to international Law. ‘According to Professor Gutteridge, the object of the invocation of the ‘general principles’ is to provide the judge on the one hand, with ‘a guide to the exercise of his ‘choice of a new principle” and on the Sources of Internationat Law 19 other hand, to prevent him from ‘blindly following the teaching’ of the jurists with which, he is most familiar without first carefully weighing the merits and considering whether a principle of private law does in fact satisfy the demands of justice “By general principles of law we mean ‘those rules or standards which we find repeated in much the same form in the developed systems of law, either because they have a common origin, as in Roman law, or because they express a necessary response to certain basic needs of human association. Justice Storey of United States of America, while delivering his judgement on abolition of the system of slavery in United States », Schooner ruled that international law should be based on the general principles of law recognised by civilised states. Article 38 {1} (c} of Statue of the Intemational court of Justice recognizes the ‘General Principles of law recognized States as the third source of International law. Res Judicata Estopped ete.are the best examples in this regard, iv) Decisions of Judicial or arbitral Tribunats fand Juristic Works Article 38(1)(d) of the Statute of International Court of Justice provides tor the decisions of Judicial or Arbitral Tribunals and Juristic works as a source of International Law. Such decisions are the decisions of Permanent Court of International Court of Justice {PCA}; International Court of Justice (LCN); Municipal Courts; Prize Courts and the Intemational Arbitral Tribunals. In the absence of treaty or Judicial decision or legislative act, the court may refer the matter to Jurists for opinions of jurists Juristic works are regarded as a source of International law. Further, the decisions of International Arbittal Tribunals such as the permanent court of arbitration, the British-American Mixed claims Tribunal and others have contributed to the development of international law hence, they are regarded as a source of International law. The Alabama Claims Arbitration (1872), the Behring Sea Fisheries Arbitration (1893), Pious Fund Case