An Introduction to International Law

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Transcript An Introduction to International Law

Introduction to
International Law
Shiju M V,
Department of Policy Studies,
TERI University,
New Delhi
Background
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Pollution does not respect political
boundaries
Ecological interdependence
Objectives
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To refresh certain basic concepts about
International Law
To understand the legal instruments
that have a bearing on the environment
in general and the forestry sector in
particular
To appreciate the different forms that
these instruments take and the legal
consequences of the same.
Objectives
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To understand the obligations imposed
on India
To understand how these instruments
are implemented in India
Contents
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An Introduction to International
Law (Intended as a refresher
discussion)
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India and International
Environmental Law
Forest Related International
Instruments
An Introduction to International
Law
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Different from national/municipal law
No world legislature
No world executive
No world judiciary
An Introduction to International
Law
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International Court of Justice is not a
“world court” in the true sense of the
term.
Only States may apply to and appear
before the International Court of
Justice. International organizations,
other collectivities and private persons
are not entitled to institute proceedings
before the Court.
An Introduction to International
Law
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The Court can only deal with a dispute
when the States concerned have
recognized its jurisdiction. No State can
therefore be a party to proceedings
before the Court unless it has in some
manner or other consented thereto.
An Introduction to International
Law
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Special agreement
Compulsory jurisdiction in legal
disputes
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The Statute provides that a State may recognize
as compulsory, in relation to any other State
accepting the same obligation, the jurisdiction of
the Court in legal disputes. These cases are
brought before the Court by means of written
applications
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Indian Voluntary declaration
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18 September 1974
I have the honour to declare, on behalf of the Government
of the Republic of India, that they accept, in conformity with
paragraph 2 of Article 36 of the Statute of the Court, until
such time as notice may be given to terminate such
acceptance, as compulsory ipso facto and without special
agreement, and on the basis and condition of reciprocity,
the jurisdiction of the International Court of Justice over all
disputes other than:
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Law
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(1) disputes in regard to which the parties
to the dispute have agreed or shall agree
to have recourse to some other method or
methods of settlement;
(2) disputes with the government of any
State which is or has been a Member of
the Commonwealth of Nations;
(3) disputes in regard to matters which are
essentially within the domestic jurisdiction
of the Republic of India;
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Law
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(4) disputes relating to or connected with
facts or situations of hostilities, armed
conflicts, individual or collective actions
taken in self-defense, resistance to
aggression, fulfillment of obligations
imposed by international bodies, and other
similar or related acts, measures or
situations in which India is, has been or
may in future be involved;
An Introduction to International
Law
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(5) disputes with regard to which any other party to
a dispute has accepted the compulsory jurisdiction of
the International Court of Justice exclusively for or in
relation to the purposes of such dispute; or where
the acceptance of the Court's compulsory jurisdiction
on behalf of a party to the dispute was deposited or
ratified less than 12 months prior to the filing of the
application bringing the dispute before the Court;
(6) disputes where the jurisdiction of the Court is or
may be founded on the basis of a treaty concluded
under the auspices of the League of Nations, unless
the Government of India specially agree to
jurisdiction in each case;
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Law
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(7) disputes concerning the interpretation or
application of a multilateral treaty unless all the
parties to the treaty are also parties to the case
before the Court or Government of India specially
agree to jurisdiction;
(8) disputes with the Government of any State with
which, on the date of an application to bring a
dispute before the Court, the Government of India
has no diplomatic relations or which has not been
recognized by the Government of India;
(9) disputes with non-sovereign States or territories;
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(10) disputes with India concerning or relating to:
(a) the status of its territory or the modification or delimitation of its
frontiers or any other matter concerning boundaries;
(b) the territorial sea, the continental shelf and the margins, the
exclusive fishery zone, the exclusive economic zone, and other zones of
national maritime jurisdiction including for the regulation and control of
marine pollution and the conduct of scientific research by foreign
vessels;
(c) the condition and status of its islands, bays and gulfs and that of
the bays and gulfs that for historical reasons belong to it;
(d) the airspace superjacent to its land and maritime territory; and
(e) the determination and delimitation of its maritime boundaries.
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(11) disputes prior to the date of this declaration,
including any dispute the foundations, reasons,
facts, causes, origins, definitions, allegations or
bases of which existed prior to this date, even if
they are submitted or brought to the knowledge of
the Court hereafter.
(12) This declaration revokes and replaces the
previous declaration made by the Government of
India on 14th September 1959.
New Delhi, 15 September 1974.
(Signed) Swaran SINGH,
Minister of External Affairs.
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Nature of International Law
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International law is the body of rules which
are legally binding on states in their
intercourse with each other.
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Oppenheim
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Basis of International Law
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Common consent
It cannot mean that all states must at all
times expressly consent to every part of
the body of rules constituting international
law, for such common consent could never
in practice be established.
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Sources of International Law
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
b. international custom, as evidence of a general practice
accepted as law;
c. the general principles of law recognized by civilized
nations;
d. subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the
determination of rules of law.
 Article 38 Statute of the International Court of Justice.
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The decision of the Court has no binding
force except between the parties and in
respect of that particular case.
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Article 59.
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International Conventions
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Law of Treaties
An international agreement concluded
between States in written form and governed
by international law, whether embodied in a
single instrument or in two or more related
instruments and whatever its particular
designation
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Art. 2 (1) (a) Vienna Convention on the Law of
Treaties, 1969.
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Multilateral Treaty
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Bilateral Treaty
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Existence of more than two parties
Between two parties
Regional Treaty
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Between parties in the same region
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Variety of Designations
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Treaties, Agreements, Acts, Conventions,
Declarations, Protocols.
The designation alone does not affect the binding
force of the instruments or its characterization as
a treaty.
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Convention on Biological Diversity
Cartagena Protocol on Biosafety
United Nations Framework Convention on Climate
Change
Kyoto Protocol
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Adoption of a treaty
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The states draw up a text
The expression of agreement with the text is
known as adoption of a treaty.
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1.The adoption of the text of a treaty takes place by the
consent of all the States participating in its drawing up
except as provided in paragraph 2.
2.The adoption of the text of a treaty at an international
conference takes place by the vote of two thirds of the
States present and voting, unless by the same majority
they shall decide to apply a different rule (Art. 9 Vienna
Convention)
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Signature
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Expresses the consent of the state to be
bound by the treaty.
It may be subject to ratification
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Ratification
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“ratification”, “acceptance”, “approval” and
“accession” mean in each case the
international act so named whereby a
State establishes on the international plane
its consent to be bound by a treaty
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Reasons for ratification
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States need time before they feel able to
commit themselves to it.
The constitutions may provide for a
mechanism for undertaking international
obligations
Needs time to enact the enabling
legislations.
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Refusal of ratification
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The ultimate right to refuse to ratify is not
impaired
A sate cannot sign a treaty and
subsequently conduct itself as if it had no
connection with it or as if its signature
were a mere act of authentication.
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A State is obliged to refrain from acts which would
defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged
instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall
have made its intention clear not to become a
party to the treaty; or
 (b) it has expressed its consent to be bound by
the treaty, pending the entry into force of the
treaty and provided that such entry into force is
not unduly delayed.
Art. 18 Vienna Convention.
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International Custom
One of the primary sources of
international law
Two elements
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State practice
Acceptance of the practice as obligatory
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Opinio juris
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State Practice
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Common and consistent
Uniform practice is not necessary
Sufficient degree of participation
No substantial dissent
Persistent objector
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Opinio juris
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Feeling of obligation
Legality of the use of nuclear weapons
(1996)
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Implementation at the Domestic Level
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Article 51 DPSP
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Promotion of International Peace and Security
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Article 253
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Power of the Parliament to enact a
legislation on a matter listed in the State
list
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For implementing an international convention
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The Environmental Protection Act, 1986
The Biological Diversity Act, 2002.
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Thank You