Introduction to International Law

Introduction to International Law

Shiju M V,Department of Policy

Studies,TERI University,

New Delhi

Background

Pollution does not respect political boundaries

Ecological interdependence

Objectives 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

To understand the obligations imposed on India

To understand how these instruments are implemented in India

Contents

An Introduction to International Law (Intended as a refresher discussion)

India and International Environmental Law

Forest Related International Instruments

An Introduction to International Law

Different from national/municipal law

No world legislature No world executive No world judiciary


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.


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.


Special agreement

Compulsory jurisdiction in legal disputes 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

An Introduction to International Law Indian Voluntary declaration

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:


(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;


(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 (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;

An Introduction to International Law (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;

An Introduction to International Law (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.


(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.


Nature of International Law International law is the body of rules

which are legally binding on states in their intercourse with each other.

Oppenheim


Basis of International Law 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.

An Introduction to International Law 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.


The decision of the Court has no binding force except between the parties and in respect of that particular case.

Article 59.


International Conventions 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 Art. 2 (1) (a) Vienna Convention on the Law of

Treaties, 1969.


Multilateral Treaty Existence of more than two parties

Bilateral Treaty Between two parties

Regional Treaty Between parties in the same region


Variety of Designations Treaties, Agreements, Acts, Conventions,

Declarations, Protocols. The designation alone does not affect the

binding force of the instruments or its characterization as a treaty.

Convention on Biological Diversity Cartagena Protocol on Biosafety United Nations Framework Convention on Climate

Change Kyoto Protocol


Adoption of a treaty The states draw up a text The expression of agreement with the text is

known as adoption of a treaty. 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)


Signature Expresses the consent of the state to

be bound by the treaty. It may be subject to ratification


Ratification “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


Reasons for ratification 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.


Refusal of ratification 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.


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.


International Custom One of the primary sources of

international law

Two elements State practice Acceptance of the practice as obligatory

Opinio juris


State Practice Common and consistent Uniform practice is not necessary Sufficient degree of participation No substantial dissent Persistent objector


Opinio juris Feeling of obligation Legality of the use of nuclear

weapons (1996)


Implementation at the Domestic Level Article 51 DPSP

Promotion of International Peace and Security


Article 253 Power of the Parliament to enact a

legislation on a matter listed in the State list

For implementing an international convention

The Environmental Protection Act, 1986 The Biological Diversity Act, 2002.

Thank You

Introduction to International Law

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