COU
URSE – I

“
“PUBL
LIC IN
NTER
RNATIIONA
AL LAW &
HUUMAN
N RIG
GHTS””
(CODE : BL-6601)

Unit I: Intern
national Law – Definition, Naature and historical
h d
developmennt of
Intern
national Law,
L Sourcces, Treatisse, Relatioon betweenn Int. Law and
Muniicipal Laww, Basis of Int. Law. Subjects
S off Int. Law.

Unit II:: Statee- State Soversigrrity, State Territoories andd jurisdiction,

Recoognition, Successionn, Intervvention, Nationality
N y, Diplom
matic
Agen nts, Extradiition and Asylum.
A

Unit IIII: Lawss of war, War-Crime

W es and Criimes againnst- peace, Settlemennt of
Dispu
utes, hijackking narcootics, Treattment of Aliens,
A Eneemy Charaacter,
Contrraband, Bllockade, Sttate Jurisdiiction on Terrorism.
T

Unit IV
V: Uniteed Nationss – Constittution, Powwer, functiion of Uniited Nationns &
Humman Right00 Universsal Declarration on Human Rights, 1948,
Intern
national Covenant
C on Hum man Righhts, Humaan Rightss &
Terro
orism, International Human
H Rigght Commiission.

Unit V:: Humman Rightss in Indiaa, Protectioon of Huuman Righhts Act 1993,
Impleementationn of Human Rights through judicialj prrocess, rolle of
courtts Supremee Courts, High
H Courtts, and other Statutarry Commisssion
–Humman Righhts, Wom men’s Minnority annd Backw ward class –
Consstitution, Poowers, Funnctions andd Procedurre.

 
 

Book Recommended :

1. J.G. Strake : International Law

2. R.G. Hingorani : Modern International Law

3. S.K. Kapoor : International Law

4. M.P. Tondon : International Law

5. H.O. Agarwal : International Law and Human Rights

6. Dr. Gurmukh Sigh (Hindi): Commentary on Protection of Human

Rights Act, 1993

7. D.D. Basu : Human Rights in Constitutional Law.

8. V.R. Krishna Iyer : Human Rights and Law

9. Nagendra Singh : Human Rights & International Law

10. Lauter Pauchte : International Law & Human Rights

 
 

SOURCES OF INTERNATIONAL LAW

It is an obligation on the subjects of International Law to observe the rules of
International Law. A question arises as to from where such rules have been come into existence
in international Law? Methods by which these rules have been discovered or created are known
as the sources of International Law. But what are the methods by which rules have been
discovered or created, or to say, what are the sources of International Law are not precisely clear
in the absence of any codified rule in this regard. International Law Commission while making
survey of international Law with a view to select the topics for codification, discussed the topic
of ‘Sources of International Law’ for codification. However, it decided not to place the topic on
the list of the suitable topics for codification. It was considered by the members that from the
point of view of clarity the codification of the sources of International Law would have more
disadvantages than advantages. In the absence of any codified law on the sources of International
Law, Article 38 of the Statute of the International Court of Justice has become relevant which
directs the Court to apply:
(a) international conventions, whether general or particular establishing rules expressly
recognized by the contesting Status;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principals 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.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.
The above is the text of the highest authority. It is generally regarded as a complete
statement on the sources of International law, despite the fact that the Article does not refer
anywhere the expression ‘sources’. They are applied not only by the International Court of
Justice but also represent the practice of the tribunals. A point which is relevant to note is that the
Court is expected to apply the above sources in order in which they appear. Thus, international
conventions shall be given preference by the Court in deciding a case which the parties refer to
it. In those cases where conventions are not available, they would be decided in accordance with
international custom. General principles of law recognized by civilized nations shall find place

 
 

only where conventions and customs are not available. Judicial decisions and the teachings of the
most highly qualifies publicists of the various nations have been regarded as subsidiary means
for the determinations of rules of law and shall be taken into account only when the sources
referred to in clauses (a), (b) and (c) are not available. It is to be noted that while source (d) has
been regarded as subsidiary means for the determination of rules of law, nothing has been stated
to the sources mentioned under clauses (a), (b) and (c), Thus, the source (d) is different from the
rest of the sources.
It is submitted that the list enumerated in the above Article is not exhaustive. For
Instance, Article 38 makes no reference to resolutions of the General Assembly of the United
Nations or to diplomatic correspondence, both of them figure prominently in the Court’s
judgements’. Further, if Article 38 be simply declaratory, it clearly cannot inhibit the emergence
of new sources of law, brought into being by the development of the international community
and the progressive organization. International Law is dynamic and fast changing with the
passage of time. The growing scope of International Law has widened the needs of international
community more effectively. It may be mentioned that as and when new methods of law making
come into use, they will be the result of the application of legal rules created by operation of
sources already recognized of treaties and of custom. Thus, every new source is indirectly
envisaged in the list under Article 38 Para 1 and is simply the product of the law emanating from
the sources which are mentioned in the list.
Following are the source of international law :-
(1) CUSTOM :
Custom is the original and the oldest source of International Law and at a time it was the
most important amongst the sources. Custom is the foundation stone of the modern International
Law. It was so because a large part of International Law consisted of customary rules.
International custom may mean a kind of qualified practice, distinguished from others (for
example, from usage) by the existence of a corresponding legal obligation to act according to this
practice, hence by the existence of a corresponding rule of International Law. They evolve
through the practices of and usages of nations and their recognition by the community of nations.
As such, they are not the creatures of the sovereign or a State.
Customary rules are referred to those rules which are practiced by most of the States, if
not by all, through ages by way of habit. Westlake defines custom as the line of conduct which

 
 

the society has consented to regard as obligatory. The obligation is based upon the common
consent of nations extending over a period of time of sufficient duration. Thus, custom is not
merely a habit or usage. A usage is a general practice which does not reflect a legal obligation.
But custom is more than mere practice. Custom is referred to those habits which are regarded as
binding upon the States. Thus, when a habit or usage becomes obligatory on a State to practice, it
is known as custom. The obligation arises from the fear of enforcement before the courts.
Custom and Usage – Practice of States has two stages : usage and custom. The term
usage originating in Roman law is also very often used alternatively for practice. Usage is meant
a practice of a certain uniformity and consistency, such that it is possible to presume a duty to act
accordingly, although this duty is not of a legal character, but a moral one, or of courtesy.
Sometimes usage also simply denotes a habit of conduct in a certain way in similar
circumstances. Among typical usage may be included the maritime honours, certain privileges
granted to diplomatic envoys ex gratia, or even in form of diplomatic correspondence. Thus,
usage is a general practice which does not reflect a legal obligation. It signifies an international
habit of action or usual course of action which is frequently followed by States in their relations
with one another. A violation of a rule of international usage will be regarded by the other States
concerned as merely a discourteous or iniquitous act but not as an illegal act. The breach of a
rule of international customary law is regarded as an illegal act, giving rise to which has been
adversely affected. A violation of customary International Law will give rise to a claim for
reparation in favour of the injured States. A usage therefore becomes custom when it has
received legal recognition. In the absence of legal recognition, a habit or usual course of action is
regarded as usage and it does not acquire the status of custom. Starke has very rightly stated that
usage represents the initial stage of custom. Custom begins where usage becomes general.
Formation of a Customary Rule :
Customary International Law results from a general and consistent practice of States
which is followed by them from a sense of legal obligation. A question arises as to when general
practice or usage is regarded as to have transformed into customary rule? Since custom is not a
law-creating fact customary rules do not grow up by themselves. It is a necessary condition for
the creation of a customary rule that at least some States should initiate that a particular rule
exists. In other words, someone’s will need to be actively engaged before a customary rule can
even begin to be created. If it can be shown that the State which initiated the practice is bound by

 
 

that particular rule, the customary rule is deemed to have created. Later, if other States really
does acquiesce in that practice it will be considered that they have given their consent to that
rule. Acquiescence may take place by the conduct of the State, i.e., if the State does not protest to
the rule or if it does not take any action on it. A customary rule, therefore, emerges only when it
is proved by satisfactory evidence that the alleged rule has been accepted generally by the States
and it has been so established as to be legally binding on the other party. The International Court
of Justice in the Asylum case formulated the requirements of custom in International Law by
stating that “The party which relies on custom… must prove that this custom is established in
such a manner that it has become binding on the other party.” To do so it needs to prove that the
rule invoked by it is in accordance with a constant and uniform usage practiced by States. The
attitude of judicial caution with respect in customary rules of International Law is confirmed by
International Law Commission and international legal conferences. In the North Sea Continental
Shelf case the Court stated with respect to custom :
Not only must the acts concerned amount to a settled practice, but they must also be such
or be carried out in such a way, as to the evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it.
In order to establish the existence of an international custom, primarily three elements are
required to be present which are duration, continuity and generality.
(a) Duration - When a particular usage is practiced by the States for a long duration,
it ha
tendency to become custom. How much time usages takes to transform into custom is a question
which is difficult to answer. In the young Jacob and Johanna. Lord Stowell commented that “the
period of a hundred years which has since elapsed is simply sufficient to have enabled what
originally may have vested in custom or comity; courtesy or concessions to grow, by the general
assent of civilized nations, into a settled rule of International Law. The above proposition does
not appear to be sound. The period of time required for a practice to mature into law cannot be
dogmatically determined. It is for the noted that an ‘immemorial’ practice or to say a long
practice is not necessary at all. This view is not maintainable at present. It would exclude the
creation of new customary rules even on the basis of a completely uniform and universe practice.
A usage may become custom even in a short time. All depends on the circumstances of
the case and the nature of the rule involved. Practice relating to continental shelf, and rules

 
 

relating to air space have become custom in a short time. The concept of continental shelf was
introduced in 1945, and by 1958 it has become a customary rule of International Law. In the
North Sea Continental Shelf Case., the definition of continental shelf was considered by the
International Court of Justice to have been one of those regarded in 1958 as “reflecting, or as
crystallizing, received or at least emergent rule of customary law relative to the continental shelf.
“Similarly, the principle of sovereignty in the air space arose spontaneously at the outbreak of
the First World War. Further, it has also not taken long for States to accept the conviction that
their sovereignty does not extend into outer space. As to space law B. Change felt the need to
call by the paradoxical term of ‘instant’ custom. In some other cases, practice could not
transform even after a lapse of long passage of time. For instance diplomatic asylum as been
practiced by some States since a long time. However, it has not acquired the character of custom.
The International Court of Justice in Asylum case held that it has not acquired the character of
custom. The International Court of Justice in Asylum case held that it has not occupied the place
of custom. Thus no particular time can be taken as a yardstick for the transformation of a usage
into custom. Time depends upon the general acceptability of a particular custom by the States. In
the North Sea Continental Shelf case the court stated that an indispensable requirement would be
that within the period in question, short through it might be, State practice, including that of
States whose interests are specially affected, should have been both extensive and uniform in the
sense of the provision invoked and should moreover have occurred in such a way as to show a
general recognition that a rule of law, a legal obligation is involved.
Thus, the passage of a considerable period of time is not necessary provided there is
widespread acceptability of a rule by the States.
(b) Uniformity or Consistency – A practice is required to be followed consistently by
the
States. In the words of the Permanent Court of International Justice in the Lotus case, the
practice should be ‘constant and uniform. While complete uniformity is not required, uniformity
should be ‘substantial’. The above implies that while substantial inconsistencies of the practice
prevent the creation of a rule or customary International Law, minor inconsistencies do not.
Thus, occasional violation of a principle do not detract that principle from acquiring the legal
character. Instances of (minor) State practice inconsistent with the principle should generally be
treated as breaches of that principle. In Anglo Norwegian Fisheries case the court refused to

 
 

accept the existence of a ten-mile rule for bays because the practice was not substantially
consistent. It was also stated in this case that the degree of consistency required may vary
according to the subject-matter of the rule in dispute. In the Asylum case the International Court
of Justice held that ‘the party which relies on a custom………must prove that the rule
invoked…….is in accordance with the constant and uniform usage practiced by the States in
question…… In the North Sea Continental case the International Court of Justice remarked that
State practice had to be ‘both extensive and virtually uniform in the sense of the provision
invoked’.
(c) Generality – It is essential that a usage should be practiced by most of the States
in order to
transform into a custom. The above implies that there is no rule which prescribes that the consent
of all Stated is a necessary condition to the formation of a customary rule. In West Rand Central
Gold Mining Co. Ltd. V. R., it was held that it must be proved by satisfactory evidence that the
alleged, that it can hardly be supposed that any civilized State would repudiate it. In the Fisheries
Jurisdiction case the Court used the expression ‘generally accepted’ which may mean that a
general customary rule is required to be accepted generally by the States. It follows that if a
usage is practiced only by a limited number of Stated it will not transform into custom.
When a usage is attributed to the above elements, it acquires the status of custom. In
addition to the above, some writers have regarded the presence of another, i.e., opinion juris et
necessitates which means that recognition of a certain practice as binding upon them as law.
State practice must be accompanied by a belief that the practice is obligatory rather than merely
convenient or habitual. In the Lotus case, the Permanent Court of International Justice observed
that opinion juris is an essential element in the formation of customary law. This was reiterated
in the North Sea Continental shelf, cases and has been accepted ever since. However , some
writers have not considered it an essential element.
Article 38(1)(b) of the Statute of International Court of Justice has recognized
international custom ‘as evidence of general practice accepted as law,’ Thus, general practice
demonstrates custom and not vice versa. In order to prove the existence of a customary rule, it is
necessary to show that there exists a ‘general practice’ which conforms to the rule and which is
accepted as law. Existence or non-existence of a custom, is dependent more or less upon the
pronouncement of foreign offices, statements of the writers and publicists and decisions of

 
 

international tribunals and those of prize courts and municipal courts. It is to be noted that the
customary rules are applied by the courts only when international conventions are not available.
Kinds of Customary Rules – Customary rules of International Law may be either
general or particular.
General customary rules are those which are binding generally on all the States such as
the basic rules of the law of treaties, of diplomatic intercourse or of the law of the sea. However,
customary rules of general International Law shall not apply to a State which consistently refuse
to recognize it, and has, throughout the period of its creation, resisted its application. But such
opposition may not necessarily prevent the recognition of the rule I question as a rule of general
International Law. However, firm opposition of a number of States, especially if they constitute
an appreciable section of the international community or comprehend one or more of the great
Powers, may no doubt obstruct the formation of a general customary rule.
Particular customary rules or local customary rules are those where a practice has
developed between the two States. Thus, such rules are binding only on two States. Such
customary rule is also sometimes called ‘bilateral custom’. The nation of particular customary
rules is based on the wordings of paragraph 1(b) of Article 38 of the Statute of the international
Court of Justice which ways that international custom, as evidence of general practice accepted
as law. The above para refers ‘general practice’ and not ‘generally accepted practice as law’. In
the case concerning the Rights of Nationals of the United States of America in Morocco, the
International Court of Justice for the first time used the term ‘local custom’. Recognition of
particular or local custom was found in the Right of Passage over Indian Territory case in 1960
wherein the Court stated that :
It is difficult to see why the number of States between which a local custom may be
established as the basis of long practice between two States accepted by them as
regulating their relations should not form the basis of mutual rights and obligations
between the two States.
In addition to the above there may be a special kind of customary rules of International Law
which are binding on the whole or a regional community of States in relation to one or a few
subjects of International Law. Such rules might be called ‘exceptional customary rules of
International Law, since they amount to an exception for the benefit of one or a few States. To
such rules all sorts of historic rights belong such as for instance the right to historic bay or to a

 
 

special delimitation of the territorial sea, not based on conventional law. For example, Norway,
as confirmed by the International Court of Justice in the Fisheries case of 1951, is entitled to an
exceptional method of delimitation of the basic line (historic waters).
(2) TREATIES:
At present, international treaties are the most important source of International Law.
Article 38(1)(a) of the Statute of the International Court of Justice lays down that the Court while
deciding any dispute shall apply international conventions, whether general or particular,
establishing rules expressly recognized by the contesting States, in preference to other sources of
International Law. Treaties therefore have acquired a dominant importance in International Law.
Treaties are agreements between two or more States or between other subjects of
International Law by which they create or intend to create a relationship between themselves.
Such agreements are sometimes referred to convention, protocol, accord etc. The terminology
varies but the substance is the same. Treaties embody the express consent of the parties to the
rule or rules laid therein. It has, therefore, become a tendency to transform customary
International Law into conventional law because consent obtained in former is only implied. For
instance, customary law relating to diplomatic and consular relations has been transformed into
Vienna Convention on Diplomatic Relations of 1961 and the Vienna Conventions on Consular
Relations of 1963 respectively. Similarly, many other customary rules have been also
transformed into treaty rules.
General and Particular Treaties- International Court of Justice, in accordance with
Article 38 of the Statue applies ‘general’ as well as ‘particular’ treaties when a dispute is brought
before it. General treaties are those wherein most of the Statue of the World community are
parties and which are open to accession by others. They in course of time, crystalize into rules of
universal International Law, which are binding on all the member States of the World
community, be they parties to them or not. It is so because they reflect customary International
Law. General treaties may also be referred to as law making treaties which create general norms
for the obligations re basically the same for all parties. Examples of such treaties are: Hague
Conventions of 1899 and 1907, Geneva Protocol of 1925, the General Treaty for the
Renunciation of War of 1928 and the Geneva Conventions of 1949. It is to be noted that even the
law-making treaties are binding only to the parties thereof. They do not bind States which are not
parties to them. Since it is almost impossible that every State in the world is a party to one of

 
 

these treaties, the law which these treaties create are not universal. It is so because in
international community at present there is no central law-making authority which could make
law forth the international community as a whole in the way that parliaments make law by
Statute within a State. Exceptionally, however, as the International Court of Justice has
recognized, a treaty, such as the Charter of the United Nations, may create and obligations for
States not parties to the treaty.
Particular treaties are generally referred to bilateral treaties, or pluriateral treaties or
ordinary treaties wherein number of parties is two or more than two. They are also known as
contractual type of treaties or ‘treaty contracts’. Such treaties create law for two or more States,
and therefore they have been distinguished from law-making treaties which create law for most
of the States. It is to be noted that there is no clear distinction between the two. No doubt,
ordinary treaties normally do not establish rule of general law, but they are of immense
importance. Most of the rules on extradition have evolved through the conclusion of bilateral
treaties. Further, if the contesting States recognize any bilateral treaty, in a case referred to the
International Court of Justice, it shall be duly applied by the Court. It is to be noted that all the
treaties – general as well as particular, are binding on the contracting parties. However, their
role in international relations varies. Further, their actual significance is determined by the issues
to which they relate and by their actual effectiveness.
Custom and Treaties – Custom and treaties are the two methods for the creation of the
legally binding rules ever since the beginning of the international community. In both the
methods consent of the States is reflected, and therefore, they do not impose obligations on those
States which have not wished to be bound by them. However, both differ from one to another.
Firstly, while in customary rules of International Law, consent of the States is implied, in the
international conventions. States consent is express. Express consent is, of course, more accurate
and precise than to implied consent. Secondly, normally, transformation from usage to custom
takes fairly a long time. Thus, while the development of International Law through the process of
customary rules is very slow, the treaty making process is more rapid. Thirdly, it cannot be said
precisely that at what particular time the customary rule has been found. Thus, there may arise
problems as to the formation of a customary rule at a particular time but the rules formulated
through treaties come into existence on a particular day as per their provisions. Fourthly, on
many occasions one finds that the customary rules are not precise and adequate, but the rules

 
 

formulated through treaties are clear and precise. This has led to the transformation of many
customary rules into treaty rules.
It is significant to note that the customary rules of International Law cannot be regarded
as to have ceased to exist if they have been transformed into treaty rules. The Court cannot be
prevented to apply customary rules in such cases. In the case concerning Military and
Paramilitary Activities in and Against Nicaragua (jurisdiction), it was stated by the International
Court of Justice that :
Principles such as those of the non-use of force, non-intervention, respect
For the independence and territorial integrity of States, and the freedom
Of navigation, continue to be binding as part of customary International
Law, despite the operation of provisions of conventional law in which
They have been incorporated.
If the customary rules are transformed into treaty rules and the areas covered by the two
sources of law are identical and the contents of both are exactly the same, then the Court cannot
take the view that the operation of the treaty process must necessarily deprive the customary
norms. The existence of identical rules in international treaty law and customary law has been
clearly recognized by the Court in the North Sea Continental Shelf case. In the case concerning
Military and Para Military Activities in and against Nicaragua (merits), it was stated that ‘More
generally, there are no grounds for holding that when customary International Law is comprised
of rules identical to those of treaty law, the latter “supervenes” the former, so that the customary
International Law has no further existence of its own’. The Court concluded that customary law
continues to exist and to apply, separately for International treaty law, even where the two
categories of law have an identical content.
Continuation of customary rules is desirable despite their transformation into treaty rules
if its is looked from another angle. A treaty or convention is binding only to those States which
are parties to it. The Convention on the Law of Treaties of 1969 expressly lays down under
Article 34 that a treaty does not create either obligations or rights for a third State without its
consent. If a customary rule (which is supposed to be binding on all the States) is regarded as to
have ceased to exist because of its transformation into treaty rule, binding effect of the former
shall be limited only to parties to a treaty. The result will be that the scope of the customary
rules will be considerably reduced.

 
 

(3) GENERAL PRINCIPLES OF LAW RECOGNISED BY THE CIVILIZED NATIONS :

Although custom and treaties are in practice the principal sources of International Law,
they cannot be regarded as its only sources. Paragraph (1) (c) of Article 38 of the Statute of the
International Court of Justice constitutes an important landmark in the history of International
Law inasmuch as the States Parties to the Statute did expressly recognize the existence of a third
source of International Law independently of custom and treaties.
When the Statute of the Permanent Court was being framed by the Advisory Committee
of Jurists appointed by the Council of the League of Nations, one of the issues that cropped up
was that of the law to be applied by the Court. One of the proposals that was put forward by the
Committee Chairman was that the Court should apply, in addition to treaties and custom, the
rules of International Law as recognized by the legal conscience of civilized nations. The
majority of the members favoured the proposal on the ground that in case a dispute was not
governed either by a treaty or custom, the possibility of the Court declaring itself incompetent
through lack of applicable rules may be avoided. After the lengthy debate, general principles of
law recognized by civilized nations was inserted under Article 38(3) of the Statute of the
Permanent Court of International justice. The same text has been included under Article 38(1)(c)
of the Statute of the International Court of Justice. General principles of law is a source which at
present comes after treaties and custom. It may mean that the Court is directed to apply general
principles of law only when there is no treaty relevant to the dispute or when there is no
customary International law that can be applied in a particular case.
By the term general principles of law recognized by civilized nations is meant those
principles which have been recognized by civilized nations of the developed, and therefore,
could be adopted in International law. However, it is not clear whether the general principles
referred to in clause(c) must be recognized by all, and if not by all, by how many civilized
nations in order to be applicable by the Court. Further, use of the term ‘civilised’ under Article
38(1)(c) appears to be superfluous and has no meaning. Rather, it creates an impression that
there are States which are uncivilized as well. Truly speaking, no State can be called uncivilized.
Even the States belonging to Axis Powers of the Second World War are not uncivilized because
most of them, at present, have become members of the United Nations Organisation. The term
civilized nations was included perhaps to exclude primitive or underdeveloped legal systems.
Presently, the term is irrelevant and can be ignored.

 
 

It is to be noted that the rationality for the inclusion of general principles of law as one of
the sources of International Law lies in the fact that a principle which as been found to be
generally accepted by certain civilized legal systems may fairly presumed to be so reasonable as
to be necessary to the maintenance of justice under any system. Thus well recognized municipal
law principles can be employed by international judicial tribunal, i.e., the Court. It has been
included as a source in order to provide an additional basis for a decision in case the other
material should prove unhelpful. Examples of such principles which have been recognized are
good faith, reciprocity, presumption, estoppel and res judicata. It is significant to note that the
principles of law recognized by many States do not become principles of International Law
automatically. They are required to be certain considerations are taken into account. Firstly, a
rule is a general principle of law, that is, it is not limited in scope. Secondly, the rule is
recognized by the States. The word ‘recognised’ presupposes the existence of the rule in the
municipal law. Thirdly, the rule is recognized b most of the States, if not by all the States of the
World community When the above three elements are present in any principle of law, the World
Court may apply it in international disputes as well.
Although general principles of law recognized by the civilized nations was expressly
recognized for the first time as a source of International Law under the Statute of Permanent
Court of International Justice, certain such principles were adopted in a few cases earlier by the
tribunals. Later, the permanent Court applied them on many occasions. For instance, the
principle of res judicata was applied in the case of Diversion of Water from Meuse and the
Chrozow Factory (Indemnity Jurisdiction) case. In the case of Diversion of Water from Meuse,
the Court also applied the principle of estoppel. Later, the International Court of Justice also
applied certain general principles of law. For instance, the principle of estoppel was applied in
the case of Barcelona Traction case (Second Phase) and in the case concerning Temple of Preah
Vihar. Further, the principle of res judicata and the circumstantial evidence was applied by the
international Court of Justice in the Corfu Channel case (Assessment of Compensation). As to
the circumstantial evidence the Court stated that the indirect evidence is admitted in all systems
of law and its use is recognized by international decisions.
Another example of a general principle was provided by the Arbitration Tribunal I the
AMCO v. Republic of Indonesia case, where it was stated that ‘the full compensation of
prejudice, by awarding to the injured party the damnum emergens and lucrum cessans is a

 
 

principle common to the main systems of municipal law, and therefore, a general principle of
law which may be considered as a source of international law.
General principles of law recognized by civilized nations has been recognized in a mkost
authoritative international instrument as a source of International Law. This source has been
increasingly used at present by the Court especially in those cases where no law is applicable on
a particular point. It has been rightly stated that : Increasingly it is recognized that the general
principles of law constitute an inexhaustible well from which new rules or new interpretations to
fit new situations may be drawn.
A question arises as to what are the general principles which have been recognized by
civilized nations. The answer of the question is not simple. A wide research is required to be
made in this regard. It is desirable that International law Commission should make a study and
prepare a list of such principles. It would be of immense help to the International Court of Justice
in applying them. The parties in a particular case would also come to know about them. It would
be easier for the States to rely upon a particular principle in a given case.
(4) JUDICIAL DECISIONS
Judicial decisions are the subsidiary means for the determination of rules of law and they
therefore are the subsidiary and indirect source of International law. It is so because the decisions
of the courts do not create any precedent. They have no binding force except to the parties to a
particular case. However, ‘subsidiary’ does not mean secondary. In many areas of international
law judicial decisions constitute the best means of ascertainment of what the law is. Under the
head ‘judicial decisions’, contribution of the following may be considered separately :
(a) International Court of Justice – International Court of Justice at present is the main
international
Judicial tribunal. However, its decisions are binding only to the parties to a case. It does not
create a binding rule of International Law. Article 59 of the Statute of the Court has made it clear
when it says that ‘The decision of the Court has no binding force except between the parties and
in respect of that particular case. The main object of inserting Article 59 was to rule out a system
of binding judicial precedent. In Certain German Interests in Polish Upper Silesia’, the
Permanent Court of International Justice affirmed the above object of putting Article 59 of the
Statute. The Court stated that the object of Article 59 is simply to prevent legal principles
accepted by the Court in a particular case from being binding on other States or in other disputes.

 
 

It means that the decision of the Court does not create precedent. But it does not used its prior
decisions have no relevance for the future cases. The Court has used its prior decisions for
guidance as to the law, for example, for purposes of illustrating or distinguishing the application
of particular rules. Although they are not binding in subsequent cases, in practice, they carry
considerable weight and they are respected and it is difficult for the Court to deviate from its
earlier decisions. It is significant to note that the decisions of the Court have a great impact on
the existing rules of International Law and they cannot be ignored either by the Court itself or by
other tribunals.
(b) Awards of the International Tribunals – Awards of the international tribunals such as
the
Permanent Court of Arbitration created by the Hague Conferences of 1899 and 1907 and other
tribunals such as the British American Mixed Claims Tribunal and others have contributed a lot
to the development of International Law. It has been asserted that the awards of the tribunals are
not judicial but merely quasi diplomatic compromise, and they therefore cannot be regarded as
source of international Law. It may be noted that the view cannot be applied in all the cases.
Awards of a number of arbitrations are based on strictly legal considerations in form and
substance. The Permanent Court of International Justice has referred to them in their decisions
on a few occasions.
(c) Decisions of the Municipal Courts – Decisions of the municipal courts according to
Oppenheim
are not a source of law in the sense that they directly bind the State from whose courts they
emanate. It is true that decisions of the municipal courts of a State have little value in
International Law, but the uniform decisions of the courts of many States have a tendency to
create evidence of international custom especially in those fields of International Law, but the
uniform decisions of the courts of many States have a tendency to create evidence of
international custom especially in those fields of International Law which are extradition and
diplomatic immunities. Further, a number of rules expressed in the decisions of the British Prize
Courts have been acknowledged universally as authoritative declarations of law. Article
38(1)(d) of the Statute of the International Court of Justice authorises the Court to apply ‘judicial
decisions’ as subsidiary means for the determination of rules of law. This recognizes that
municipal decisions are not irrelevant ain international field. Such decisions are, very often,

 
 

considered with respect and have influence in the field of International law especially in those
cases which cannot be decided by the Court due to non-availability of the rules. In the Barcelona
Traction case, the Court very rightly stated that’ ------ whenever legal issues arise concerning the
right of States……………. As to which rights International Law has not established its own
rules, it has to refer to the relevant rules of municipal law. Decisions of municipal courts are of
considerable importance is further clear in view of its recognition by the international
periodicals. For instance, a larger number of decisions of municipal courts are reported in the
International Law Reports.
(d) Decisions of the Regional Courts – The creation of the regional international courts for
settling the
disputes in a particular area is a recent development of International Law. Instances of such
courts are the Court of justice of the European Communities, the European Court of Human
Rights and the Inter-American Court of Human Rights. They have contributed immensely to the
development of International Law in particular areas.
(5) WRITINGS OF JURISTS :
The Statute of International Court of Justice lays down that the teachings of the most
highly qualified publicists of the various nations are a subsidiary means for the determination of
rules of law. It clearly excludes the teachings as a category of acknowledged sources of
International Law. However, it postulates the evidentiary character of teachings of the ‘most
highly qualified’ publicists. The above may mean that the teachings of any publicist (a writer on
International Law) will not be taken into consideration. However, the highly qualified publicists
may be of any nation. It may be submitted that the meaning of the wordings ‘highly qualified
publicists’ is apparently not clear. Perhaps, there is no criterion on standard for distinguishing
highly qualified publicists from other publicists. Further, it is a relative term and not an absolute
one, and therefore, standard may differ from State to State. While a publicist or a writer is a
highly qualified or not will perhaps be determined by the tribunals before whom the teachings
(writings) will be placed as an evidence for the determination of rules of law.
Although juristic works are not an ‘Independent source’ of law, sometimes juristic
opinion does lead to the formation of international Law, Juristic opinion, very often, throws light
on the rules of International Law and their writings make it easier to frame a particular rule. The
value of the juristic writings carries more weight particularly in those fields of International Law

 
 

where treaty or customary rules do not exist. Justice Gray of the united States Supreme Court
had observed in Paquete Habana case that :
Where there is no treaty and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages of civilized nations, and, as evidence of
these, to the works and commentators, who by years of labour, research and experience have
made themselves peculiarly well acquainted with the subjects of which made themselves
peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by
judicial tribunals, not for the speculations of their author concerning what the law ought to be,
but for trustworthy evidence of what the law really is.
It is to be noted that the writings of qualified jurists are very often cited in the decisions
of the courts. For instance, Grotius, Vattel and Bynkershock are amongst those whose writings
have been quoted by the International Court of Justice and other international tribunals. Such
cases, for example, are Diversion of Water from the Meuse case (1937); South West Africa case
(1950); Interpretation of Peace Treaties case (1950), Asylum case (1950); Reservations to the
Genocide Convention (1951) and Aerial Incident case (1959). Moreover, many rules have been
framed on the basis of the writings of the jurists. Calvo Clause and Drago Doctrine are the
instances of such rules in International Law.
It is to be noted that writings of the most highly qualified publicists have been included
under Article 38(1) (d) of the Statute of the International Court of Justice next in importance to
the judicial decisions as the subsidiary means for determining the rules of International law.
Thus, this source may be resorted to as final resort, i.e., only when all the other sources listed in
that Article have failed to resolve the dispute before the Court. Although it is difficult to lay
down precisely the reasons for referring teachings of the most highly qualified publicists as the
subsidiary means for the determination of rules law, and that too next in importance to judicial
decisions, perhaps it would not be incorrect to mention that it is no mainly because writings are
frequently politically inspired and also because they display a great deal of national bias. Judge
Huber in the Spanish Zone of Morocco case stated that writers are frequently politically inspired
and caution must be exercised when the country of the author has a special interest in a particular
matter.
In addition to the writings of jurists and publicists, collective work done by the
International Law Commission, reports and Secretariat memoranda prepared by the Commission,

 
 

Harvard Research drafts, the bases of discussion of the Hague Codification Conference of 1930
and the resolutions of the Institute of International Law and other similar bodies are also of
considerable value.
(6) EQUITY :
The term equity, as a source of International Law, is used in the sense of considerations
of fairness, reasonableness and policy often necessary for the sensible application of the more
settled rules of law. It is to be noted that equity has not been mentioned by the Statute of the
international Court of Justice even as a law determining agency, perhaps, because its inclusion
would have given too much discretion to the Court. Strictly speaking, it cannot be applied by the
Court in a dispute which is brought before it and thus equity cannot be a source of International
Law. However, it is of great importance in those fields where rules are not readily available. The
Court in such cases cannot refrain itself from rendering judgement on the ground that law is
silent. In the absence of a specific legal rule it must proceed to decide in the context of general
notions of justice and equity and to deduce a new rule on their basis in the context of surrounding
rules, because these principles have a capacity to produce equitable result.
The concept of equity is different from the Roman Law concept of ex acquo et bono. The
latter involves compromise, conciliation and legislation in a friendly settlement. Under Article
38(2) of the Statute, the International Court of Justice has the power to decide a case ex acquo et
bono if the parties agree thereto. An authorization to decide a case ex acquo et bono is an
authorisation to decide a case out reference to the rules of law, i.e., the Court may proceed to
settle a dispute without strict regard for the rules of International Law, but in the light of the
justice and merits of the case. Although, the principle of equity has never been applied by the
Court, it has been increasingly referring to equity in some of its judgements in recent in recent
years. In the Gulf of Marine Boundary (United States V. Canada) case, it stated that the concepts
of acquiescence and estoppel in International Law ‘’followed from the fundamental principles of
good faith and equity.’’
The role equity was discussed by Judge Anzilotti and judge Hudson in their dissenting
opinions in the Diversion of Water from the Meuse case in 1937 regarding a dispute between
Holland and Belgium. The former was of the opinion that the principle is ‘so just, so equitable,
so universally recognised, that it must be applied in international relations. In any case, it is one
of those general principles of law recognized by the civilized nations which the Court applied in

 
 

virtue of Article 38 of the Statute. Judge Hudson urged the same view by stating that the
principles of equity have often been applied by international tribunals under Article 38 of the
Statute, if not independently of that Article, the Court has some freedom to consider principles of
equity as part of the International Law which it must apply. In the North Sea Continental case
and Barcelona Traction case (second phase) the International Court of Justice also gave due
regard to the principles of equity.
Rules of equity do not form part of International Law and they are not a source of law,
but many rules which formerly were the rules of equity, have transformed into customary rules
with the passage of time.
The concept of equity has been referred to in several cases. For instance in the Rann of
Kutch Arbitration between India and Pakistan in 1968, the Tribunal agreed that equity formed
part of International law and that accordingly the parties could rely on such principles in the
presentation of their cases. Equitable principles have been relied upon by the Court more
recently in the Gulf of Maine Boundary (United States v.Canada) case, the Continental Shelf
(Libya v.Malta) case and Frontier Dispute Burkina Faso v. Republic of Mali) case. In the case
concerning the Continental Shelf (Tunisia v.Libya) the Court stated that :
Equity as a legal concept is a direct emanation of the idea of justice. The Court
whose task is by definition to administer justice is bound to apply it…… It was
often contrasted with the rigid rules of positive law, the severity of which had to
be mitigated in order to do justice. In general, this contrast has no parallel in the
development of International Law, the legal concept of equity is a general
principle directly applicable as law….. The task of the Court in the present case is
quite different : it is bound to apply equitable principles as part of International
Law, and to balance up the various considerations which it regards as relevant in
order to produce in equitable result.
(7) RESOLUTIONS OF THE GENERAL ASSEMBLY :
Resolutions of the General Assembly of the United Nations do not possess legal character
and as such are not binding on the States. They do not create any legal obligations on its
members irrespective of the fact that they have been adopted unanimously or by overwhelming
votes or even if their contents are a matter of common interest to all the States. However, if a
resolution is adopted unanimously or by two-third majority of the members, and if the same

 
 

resolution finds reflections in many other subsequent resolutions, it must not be lightly weighted.
The International Court of Justice in the advisory opinion given in the Legality of the Threat or
use of Nuclear Weapons stated that ‘the Court notes that General Assembly resolutions, even if
they are not binding, may sometimes have normative value. They can, in certain circumstances,
provide evidence important for establishing the existence of a rule or the emergence of an opinio
juris. Rosalyn Higgins has rightly stated that resolutions with similar contents repeated through
time, voted for overwhelming majority giving rise to a general opinion juris, have created the
norm in question. They may contribute to the formation of customary rule or be evidence that it
is already formed.
At present there is a difference of opinion between the Western States and Third World
countries regarding the competence of the competence of the resolutions of the General
Assembly in creating customary rules of International Law. While the Western States are of the
opinion that resolutions may at most be taken into considerations as elements in the formation of
a customary rule on condition that they are confirmed by corresponding practice on the part of
States, the Third World countries are of the view that these resolutions constitute the expression
of the will of the international community, and therefore they themselves have a capacity to form
custom and the declaration of general principle of law. It is submitted that resolutions of the
General Assembly have a tendency to acquire the character of the customary rule of International
Law in the sense that they fulfill the essential elements of custom, i.e. generality and continuity.
Through its egalitarian character, its majority basis and its democratic origin it is submitted that
the resolutions adopted therein present sufficient guarantee as a method for the elaboration of
International Law responding to the present day need. They provide basis for the progressive
development of law. Instances of some of the principles that have acquired the status of
customary rules of International Law through the adoption of the resolutions by the General
Assembly are prohibiting the use or threat of force in international relations non-intervention,
right of self-defence, self-determination and to prohibit or organize, assist, foment, finance,
incite or tolerate subversive, terrorist or armed activities in another State. Examples of important
law making resolutions are the Universal Declaration of Human Rights of 1948, the Declaration
on the Prohibition on the Use of Nuclear Weapons for War Purposes of 1961, the Declaration on
the granting of Independence to Colonial Countries and Peoples of 1960, the Declaration on
Permanent Sovereignty over Natural Resources of 1962 and the Declaration of Legal Principles

 
 

Governing activities of States in Exploration and use of Outer Space of 1963. Friendly Relations
Declaration 1970 and the resolution Defining Aggression in 1974.
It is important to note that the General Assembly performs the functions of law=making
in two ways. Firstly, it makes international agreements and commend them, for signature and
ratification through the normal treaty making practices of States. The Genocide Convention,
1949 the International covenants on Human Rights 1966, the International Convention on the
Rights of the Child 1989 and a number of disarmament treaties are the examples of such method.
Secondly, the Assembly makes treaty through its subsidiary law-making bodies such as the
International Law Commission (ILC) and the U.N. Commission on International Trade Law
(UNCITRAL). These treaty drafting bodies are given topics by the General Assembly for
making laws and they report to the Assembly yearly. The laws made by the Assembly through
the above two ways are of immense importance and they have been well recognized by the
States. They are the rule which international community must take into consideration at the time
of the determination of law.

RELATIONSHIP OF INTERNATIONAL LAW AND MUNICIPAL LAW

While International Law is applied in the relations of the States and to other subjects of
International Law, national or State law which is called municipal law is applied within a State to
the individuals and corporate entitles which are the bearers of rights and duties thereunder.
Apparently, it might be looking that there is hardly any relationship between the two systems as
they constitute two different legal systems each of which is designed to operate in its own sphere
and they are applied distinctly to their subjects by different courts, but it not so.
The problem of relationship between the rules of International Law and municipal law is
one of the most controversial questions of legal theory. Originally, the relationship between the
two laws was a matter of theoretical universal legal order or they form two distinct systems of
law. But at present the question has acquired practical significance as well. When there exists a
conflict the difficulty of arriving at a decision. Befre an international tribunal, the question is one
of primacy-whether international law takes primary over municipal law, or vice versa. If the
conflict arises before a municipal Court, the answer depends on how far the constitutional law of
the State allows International Law to be applied directly by the courts. Almost every case, in a
municipal court, in which a rule of International Law is asserted to govern, the decision raises the

 
 

problems. For instance, diplomatic immunities granted by International law world become
meaningless unless they are recognized by municipal law. Further, customary rules of extradition
are interpreted and applied by municipal courts only. It is also be noted that International Law
gives an individual certain rights or obligations which can be enforced directly in national courts
as was alleged in the Pinochet case. Generally, the manner in which International Law is
employed in the national courts of any particular country is largely determined by the national
law of that country. In fact, International law cannot work without the co-operation and support
of the national legal systems. The question of relationship of the two systems has acquired
importance in modern International Law also because a very large part of it is directly concerned
with the activities of individuals who come under the jurisdiction of municipal courts. Thus, it is
to the municipal courts an increasing part of International Law is enforced.
The above has necessitated to ascertain the relationship of the two systems of law, and
the primacy of the two laws, when they contradict to each other. The views of the jurists on the
question of relationship of International law and municipal law are divergent which have led to
the emergence of different theories, Prominent among them are as follows :
(1) DUALISTIC THEORY :
According to dualistic theory. International Law and municipal laws of the several States
are two
distinct, separate and self-contained legal systems. Being separate systems. International Law
would not as such form part of the internal law of a State: to the extent that in particular instance
rules of International law may apply within a State they do so by virtue of their adoption by the
internal law of the State and apply as part of that international law and not as International Law.
Such a view avoids any question of the supremacy of the one system of law over the other since
they share no common field of application : each is supreme in its own sphere.
Dualist view was developed by a prominent German scholar Triepel in 1899. For him,
International Law and domestic or municipal law existed on separate planes, the former
governing international relations, the latter relations between individuals and between the
individual and the State. The theory was later on followed by Italian jurist Anzilotti. Starke says
that the theory represents two entirely distinct legal systems. International Law having an
intrinsically different character from that of State law. The above authors are of the view that the
two systems of law differ from each other on the following grounds :

 
 

(a) Regarding Sources – According to dualists, while the sources of municipal laws are
custom grown
up within the boundaries of the State concerned and the statutes enacted by the sovereign, the
sources of International Law are custom grown up among the States and law-making treaties
concluded by them.
(b) Regarding Subjects – Dualists are of the view that the subjects of international and
municipal law
are different from each other. While municipal law regulates the relations between the
individuals and corporate entities and also the relations between the State and the individuals.
International Law regulates primarily the relations between States.
(c) Regarding Substance of Law – Substance of the laws of the two systems are also
different. While
municipal law is a law of a sovereign over individuals International law is a law not above, but
between sovereign States. Its norms are created by its subjects themselves i.e., by the States
through agreements where essence is a concordance of the will of States or by other subjects of
International Law. Thus, municipal law addresses itself to the subjects of the sovereigns,
International Law to the sovereigns themselves.
(d) Regarding Principals – Amzilotti is of the view that while municipal laws in a State are
obeyed
because they are the principles of State legislatures, International Law is obeyed because of the
principle of pacta sunt scrvanda. Thus, while in municipal law here is a legal sanctity,
International Law is followed because States are morally bound to observe them.
(e) Regarding Dynamism of the Subject – Matter – Subject-matter of the two systems are
also different. While the subject matter of International Law has always remained dynamic, the
subject-matter of the municipal law is limited. Starke has observed that since 1945 International
law has expanded to so great an extent into many different areas, while domestic laws have
continued to be concerned with a more limited range of subject-matters.
These are the points of differences between the two systems, and therefore they are
applied distinctly in different areas. Anzilotti states that the two systems are so distinct that no
conflicts between them are possible. However, it does not mean that rules of International law
can never be applied by the municipal courts. Municipal courts would certainly apply them as

 
 

and when rules of International law are considered to be part of the law of the land. It can occur
when the rule of International law is incorporated in national law simply because it is rule of
International Law. The automatic adoption is said to operate unless there is some clear provision
of national law, such as a statute of judicial decision, which precludes the use of International
Law rule by the national court, Consequently, once it is established that an International law rule
exists and would be relevant to the case in the hand, under the doctrine of incorporation, then
international rule will automatically apply before national courts. Municipal courts shall also
apply rules of International law when latter are transformed in the national law i.e., when they
have been expressly adopted by the States. Therefore, a national court cannot apply a particular
rule of International law until that particular rule has been deliberately transformed into national
law in the appropriate manner, as by legislation.
Transformation of International Law into municipal law may take place according to the
constitutional provisions of the States, and therefore the procedure may be different from State to
State The difference between incorporation and transformation is that the former adopts
International law into municipal law just because it is International Law, whereas the latter
requires a deliberate act on the part of the State concerned. Further, incorporation implies that
rules of International law are part of national law unless excluded, transformation implies that
rules of International Law are part of municipal law only if deliberately included.
It is to be noted that incorporation and transformation are therefore “theories concerning
the application of the International Law within the municipal sphere,”. They are, in no way be
called the theories of relationship of the two systems. Contacts between the two legal systems are
possible but they require express or tacit implementation of the rules of International Law by the
State and vice versa.
According to dualists, municipal courts shall apply municipal law in case of a conflict
between International Law and municipal law. Thus, municipal law shall have primacy over
international Law according to his view. Further, when a case comes before the international
court or tribunal, it applies International law rather than to municipal law in case of a conflict
between them. In the Greco-Bulgarian Communities case, the Permanent Court of International
justice stated that it is a generally accepted principle of International Law that in relation
between Powers who are Contracting parties to a treaty, the provisions of municipal law cannot
prevail over those of the treaty. The International Court of Justice in the Advisory Opinion of

 
 

April 27, 1988, on Applicability of the Obligations to Arbitrate under the U.N. Headquarters
Agreement of 1947 observed that International Law prevails over domestic law is a ‘fundamental
principle of International Law”.
Dualist theory is subjected to many criticisms. Firstly, the view that International law and
municipal law differ from each other implies that International law cannot be a part of municipal
law and can never operate as the law of the land unless they are specifically adopted or
transformed through municipal custom or statutory enactment. It is not correct because there are
certain fundamental principles of International law which are binding upon a State, even against
its own will. Secondly, it is not correct to say that International law regulates the relations of
States only. At present ,it regulates certain activities of individuals as well. If individuals commit
certain wrongs they can be given punishment in accordance with the rules of International law.
Thirdly, no doubt, Pacta sunt servanda is an important principle of International Law, but it
cannot be said that it is the only principle on which international law rests. There are certain rules
which are legally binding on a State.
(2) MONISTIC THEORY :
Monistic theory was pronounced in the Eighteenth century. It was put forward by two
German
scholars Moser (1701-85) and Martens *1756-1821). However, it was not until the nineteenth
century that their concepts were elaborated into a full fledged doctrine. According to this
doctrine there exists only one set of legal system i.e. the domestic legal order. It has been denied
by the exponents of this theory that International Law is distinct and autonomous body of law. It
followed that there was obviously no need for international rules to the incorporated into
municipal legislation ; since they have been made by the States themselves. The monistic
doctrine was later developed in the early twentieth century by the Austrian jurist Kelsen.
According to monistic theory, municipal law as well as International Law are parts of one
universal legal system serving the needs of the human community in one way or the other. In the
opinion of its theorists, the two together form a single legal order. International Law is therefore
indistinguishable from the internal law of States and is of significance only as part of the
universal legal order. Various writers interpret the universal order in different ways. These
differences stem from the general theoretical concept of International Law as a universal legal
system. They both are therefore species of one genus-law. Law is seen as a single entity of which

 
 

the national and international versions are merely particular manifestations. Monism maintains
that all laws are made for individuals only. While municipal law is binding on them directly,
International Law is binding on them through States. Since both the laws are meant to solve the
problems of human beings in different areas; they both are related to each other. They believe
that the whole legal system is one unified branch in which international Law operates as a part.
Neither municipal law nor International Law is therefore above the system nor is separate from
the system. The result is that international rules can be applied as such by municipal courts
without any need for transformation.
Exponents of monistic theory rejected the alleged differences between the two systems
regarding sources, substance and subjects as laid down by dualists. According to them, subjects
of both the systems of law are ultimately individuals. If one argues to the exponents of monistic
theory that International law regulates the relations of States and not that of individuals, they ask,
what is a State? According to them since a State consists of individuals, rules of International
law are ultimately binding on them only the municipal law, which concerns with the conduct and
welfare of individuals. Secondly, in both the spheres, the law is essentially a command binding
upon the subjects of law independently of their will. Thirdly, monistic theory maintains that
International Law and municipal law, far from being essentially different, must be regarded as
manifestations of a single conception of law. Monists lay down that International Law is
superior even within the municipal sphere.
The above two theories regarding the relationship of International Law and municipal law
have been prevalent since a long time. A question arises as to which of the above theories is
correct? It may be said that no theory alone is complete and perfect. The practice of States shows
that sometimes there has been the primacy of International law over municipal law, especially
when the case is being considered by the international courts and tribunals. For instance, the
Permanent Court of International Justice in Greco-Bulgarian Communities case, stated that it is
generally accepted principle of International Law that in relations between powers who are
contracting parties to a treaty, the provisions of the municipal law cannot prevail over the treaty.
However, in a number of occasions when the matter is being considered by the municipal court
and the municipal law conflicts with the rules of International law.
It is submitted that both International Law and municipal law, have been made to solve
the problems of human beings, and therefore if contradictions arise between the two, they are

 
 

required to be harmonized. International Law and municipal law though autonomous in the sense
that they are directed to a specific, and, to some etent, an exclusive area of human conduct, are
harmonious in their totality because they aim to a basic human good. Both the systems should
therefore be harmonious and should not allow to exist contradictory rules. However, if
contradictory rules in fact exist, it does not follow that one of them must be void. It is one of the
principal functions of juristic reasoning to eliminate contradiction by harmonizing the points of
collision, not by pretending that they do not exist, nor by crushing the one with other. Hence,
judges of all the courts-municipal as well as international court, should aim at harmonizing the
systems rather than to treat one system superior than to other. The two systems ‘are not like a
gear, but like two wheels revolving upon the same axil’. The theory of harmonization assumes
that International Law, as a rule of human behavior, forms part of municipal law, and therefore,
is available to a municipal judge. However, in the rare instance of conflict between the two
systems, the view acknowledges that the judge is obliged by his jurisdictional rules. Thus,
neither municipal law nor International Law has supremacy to each other.
It may be said that Dualistic and Monistic theories are traditional and most popular but no
theory alone can be said to be appropriate. It is required that International Law and municipal
law should be harmonized because it has been regarded that both have been made for human
beings, and so, primarily there should not be any contradiction in them, and if contradictory rules
appear, they should not be any contradiction in them, and if contradictory rules appear, they
should be harmonized. Harmonisation of both the laws are necessary also because many
provisions of international law have certain impact on municipal laws and many international
norms have gradually and steadily entered into the national laws especially in the economic field.
Although sometimes it may be difficult to harmonise the rules of international law and
municipal law it is possible to do so in two ways. Firstly, it is the duty of the judges to eliminate
contradiction by their juristic reasoning, and secondly, enactments in the municipal legal system
of a State should not be made in such a way so that it is contradictory to the existing rules of
International law and if contradiction exists, amendment should be made so as to avoid
contradiction.
TREATIES
Definition:

 
 

The term treaty means a written agreement by which two or more States or international
organizations create or intend to create a relation between themselves operating within the sphere
of International Law. The above definition contains four important elements. Firstly, treaties
should be in writing. Although classical International Law did not prescribe that treaties should
always be in writing, it is rare to find an oral agreement between the States. The Vienna
Convention on the Law of the Treaties of 1969 lays down that treaties should be concluded in
written form only. Oral agreements are neither precise nor permanent, and therefore at present, it
has become essential that treaties should be concluded in writing. Secondly, parties to a treaty
may be either States, or a State and international organization, or international organizations.
Thirdly, the purpose of a treaty is to create a relationship between the parties. The relationship
may be legal relations or political or moral relations. It implies that treaties or provisions of
treaties may impose no binding obligations, or be intended not to create legal relations between
the parties. For instance, certain treaties of friendship between States do not create any legal
relationship between the contracting parties. Fourthly, a treaty should operate within the sphere
of International Law. It is submitted that International law is not the only legal system within
which the States can contract. Some contracts may be governed by general principles of law
including private International Law. Such contracts may be helpful in resolving difficult but they
do not come within the scope of the term treaty in which it is used in International Law.
Different Names of Treaties:
The term treaty denotes a genus and it includes many different names which may be
attributed to it by the parties. A treaty may be called a treaty, but at the same time, a variety of
other names may be attributed to the term such as convention, agreement, protocol, declaration,
arrangements, accord, additional articles, aide memorie, code, communiqué, compact, contract,
instrument and optional clause. The above may indicate a difference in procedure or degree of
formality, but in generic sense all of them are described as treaties.
In the South West Africa case (Preliminary Objections) the International Court of Justice
said : ‘Terminology is not a detrimental factor as to the character of an international agreement
or undertaking. In the practice of States and of international organisations and in the
jurisprudence of international courts, there exists a great variety of usage; there are many
different types of acts to which the character of treaty stipulation has been attached. Apart from

 
 

the more obvious type of such acts, even an unsigned and uninstalled document such as a press
communiqué may constitute an international agreement.
The Vienna Convention on Law of Treaties :
Treaties acquire a prominent place in international relations since long before
International Law in the modern sense of the term was in existence. The customary rules of
International law relating to treaties gradually acquire considerable certainty and precision.
Nevertheless, the very great importance of treaties in international relations and the uncertainty
or unsatisfactionness of some aspects of customary International Law led the International Law
Commission in as early as in 1949 to include the topic of treaties in the list of the topics selected
for the codification.
The codification of the topic of law of treaties was one of those which was selected by
the International Law Commission as early as in 1949. When work was completed in 1966, the
General Assembly called for in 1968 the united Nations Conference on the Law of Treaties to
consider draft articles prepared by the international Law Commission. The Vienna Convention
on the Law of Treaties (hereinafter referred to Vienna Convention) was adopted by the
Conference on May 23, 1969. The Convention consists of a Preamble and 85 articles, and is
divided into eight parts. The Convention came into force on January 27, 1980 when it was
ratified or acceded to by thirty-five States. As of April 2011 there were 111 States parties to the
Convention.
Application of the Convention:
It is important to note that the Convention applies to those treaties which are concluded
by States, after the entry into force of the present Convention with regard to such States. It
implies that treaties made before that date are still governed by the ‘old’ law. Thus, at present
treaties concluded by States are governed by the ‘old’ law as well as ‘new’ law, i.e. the laws
made by the Vienna Convention of 1969. Further, the Vienna Convention regulates the legal
relation of those States that are parties to it. In other words, the law of treaties as spelt out in the
Vienna Convention applies only to the legal relations between States under a treaty where those
States are also parties to the Convention. As for other States, their position is governed by old
law, i.e., rules of customary International Law.
The Convention does not apply to agreements concluded between States and other
subjects of international law, or between such other subjects of International law. The Vienna

 
 

Convention under Article 2(1)(a) clearly provides that ‘treaty is 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’. Thus, agreements concluded between States and international organisations, or
between international organisations do not come within the scope of the Convention. It was
perhaps done to make the rules of treaties concluded by States more precisely. The agreements
concluded between States and international organisations, or between international organisations
may have different procedure and form, and may have special rules, and had they been included
within the scope of the Convention, its provisions might have become complex and complicated.
The Convention also excluded the oral agreement.
The Conference on the law of Treaties recommended to the General Assembly that a
separate Convention should be adopted in respect of treaties concluded between States and
international organisations or between international organisations. Accordingly, the Conference
adopted a separate Convention on the Law of Treaties to which International Organisations are
Parties on March 20, 1986. The Convention consists of eighty six Articles, and shall come into
force when it shall be ratified or acceded to by 35 States. As on August 8, 2009, the Convention
had 29 States parties.
Kinds of Treaties :
Treaties may be classified into three categories on the basis of the parties becoming
members to treaties. They are as follows :-
(1) Bilateral Treaties – Bilateral treaties are described as those treaties in which
participation and
rights and obligations arising from the treaty is limited only to two parties. They are sometimes
also called ‘bipartite’ treaties, although the word is not apt. Many bilateral treaties bear the
closest analogy to the private law contract, and therefore, they are sometimes referred to as
treaty-contract.
(2) Plurilateral Treaties -Those treaties where the participation is open to a restricted number
of States
are described as plurilateral treaties. The minimum number of parties in such treaties should be
more than two. Although the maximum member may differ from one to another, it should not be
open to all or most of the members of the international community as in the case of multilateral

 
 

treaties. The purpose of the conclusion of plurilateral treaties varies from treaty to treaty. For
example, it may be either to maintain peace and security within a specific region or to promote
and develop the commerce amongst the participating members or to create similar other rights
and obligations, the participating members or to create similar other rights and obligations, the
burdens and benefits of which are created in favour of only a group of States. The regional
arrangements as envisaged under Article 52 of the Charter of the united Nations are included
under this category. The European Coal and Steel Community, Organisation of the Petroleum
Exporting Countries (OPEC), North Atlantic Treaty Organisation (NATO), League of Arab
States are some of the examples of plurilateral treaties.
(3) Multilateral Treaties – Multilateral treaties are those which are open to participation for
all the
States without restriction or to a considerable number of parties. Some multilateral treaties set-up
an international organization for a parties. Some multilateral treaties set-up an international
organization for a parties. Some multilateral treaties set-up an international organization for a
specific purpose or a variety of purposes. They may, therefore, be referred to as constituent
agreements. The United Nations Charter is both a multilateral treaty and the constituent
instrument of the united Nations.
Multilateral treaties lay down general norms of International Law, or to deal in a general
manner with matters of general concern to other States as well as to the parties to the treaties.
Since the creation of the United Nations more than five hundred multilateral treaties have been
concluded which, taken together, form a comprehensive legal framework for the international
community. These treaties cover the spectrum of human activity and reflect the desire of States
to establish rights and obligations among themselves in effect to further enhance the international
rule of law. Multilateral treaties are said to perform the functions of international legislation. It is
to be noted that they might have semblance of international legislation, yet it would be improper
to describe them so because the expression international legislation is more a metaphor than a
reality. Oppenheim has very rightly observed that ‘there is as yet no international legislature
proper in the international sphere. However, in the absence of an international legislation,
multilateral treaties are among the most promising methods for the development of International
law.

 
 

Multilateral treaties are sometimes, described as law- making treaties. It may be noted
that sujch a description would be inappropriate if it is used to suggest the laying down of a
general rule for future conduct or for creating some international institution. In fact, a treaty is an
agreement between the contracting parties. Non-signatories are not bound by it unless it creates a
customary rule of International Law. Therefore, in a limited sense, all treaties are law-making in
as much as they lay down rules of conduct which the parties are bound to observe. However,
multilateral treaties could have been more aptly described as law-making treaties had the term
been used to denote those treaties which create a regime of law, either on a multilateral scale, or
for all States such as General Treaty for Renunciation of War of August 27, 1928. But each and
every multilateral treaty cannot be regarded as a law-maing treaty because they lack this
particular character.
The Vienna Convention has classified all the treaties into bilateral treaties and
multilateral treaties. Plurilateral treaties do not find place in the above Convention. They have
been included in the category of multilateral treaty. A question arises : Can a multilateral treaty,
to which only a few States are the parties, create a general norm of International law? Tunkin is
of he opinion that a multilateral treaty concluded between, say, five States, though it concerned
general norms of International Law or deal with matters of general interest to States as a whole,
could not be considered a general multilateral treaty. It is to be noted that a multilateral treaty
accepted and enforced by a limited number of States cannot create a general norm of
International Law. The codification process of International Law admits of a widespread
agreement upon norms and if this requirement is not fulfilled, it is difficult to call that a
particular multilateral treaty has created a general norm of International Law. Jennings has
clearly pointed out that : It would be contrary to all principles to hold that a regime established
by an essential contractual instrument could be opposable as such against representative and
specially interested States which had elected not to accept the treaty. The very existence of
ratification and acceptance clauses in multilateral treaties negatives the notion that such a treaty
could of itself and without the evidences of custom become legislative for concerned States
which do not ratify or accept. The above statement makes it clear that the number of States
parties to a treaty i.e., the quantitative point is one of the essential elements which a multilateral
treaty should possess, for creating a general norm of International Law.
Who Can be Parties to a Treaty :

 
 

The Vienna Convention under Article 6 lays down that ‘every State possesses capacity to
conclude treaties’. However, the word ‘State’ has neither been defined by the Convention, nor it
lays down the elements which go t determine statehood. It may, therefore, be interpreted that all
the States including those which are not fully-sovereign have a capacity to conclude treaties.
Thus, a colony, trust territory, a protectorate or a vassal State may also be a party to a treaty. In
the case concerning the rights of nationals of the United States of America in Morocco, the
International Court of Justice stated that Morocco had America in Morocco, the International
Court of Justice stated that Morocco had “made an arrangement of a contractual character
whereby France undertook to exercise certain sovereign powers in the name and on behalf of
morocco, and, in principle, all of the International relations of Morocco”, but that Morocco had
nevertheless “remained a sovereign State” and had “retained its personality as a State under
International law”, Tunisia was another example of the same kind. In the above cases, the
protected State retained a measure of treaty-making capacity, even although its exercise may be
subject to the consent of the protecting Power. Thus, all States have been put on equal footing for
the purpose of the conclusion of Treaties despite obvious inequalities. However, if there is a
limitation in the capacity of a State to enter into any category or all categories of treaties by
reason of its qualified status or by existing treaty obligations, that State may not enter into
treaties. Thus, the Free City of Danzing, though held to be a State by the permanent Court of
International justice, was subjected to certain limitations affecting both the extent and manner in
exercise of its treaty making power. Likewise, a neutralized State is presumably incapable of
concluding a treaty of offensive alliance.
Apart from the States, international organisations also possess capacity to make a treaty.
Thus, the United Nations and its specialized agencies can make treaties in order to exercise their
functions. The united Nations has concluded many agreements with States which are members
and with non-member States. However, treaties concluded by international organisations do not
come within the scope of the Vienna Convention. Such treaties are governed in accordance with
a separate Convention which has been adopted in 1986.l

 
 

NATURE AND DEVELOPMENT OF INTERNATIONAL LAW

INTRODUCTION

Every society, whether it be large or small, powerful or weak, has created

for itself framework of principles within which to develop. What can be done, what
cannot be done, permissible acts, forbidden acts, have all been spelt out within the
consciousness of that community.

Law is that element which binds the members of the community together in
their adherence to recognised values and standards. It is both permissive in
allowing individuals to establish their own legal relations with rights and duties, as
in the creation of contracts, and coercive, as it punishes those who infringe its
regulations. Law consists of a series of rules regulating behaviour, and reflecting,
to some extent, the ideas and preoccupations of the society within which it
functions. And so it is with what is termed international law, with the important
difference being that the principal subjects of interactional law are nation-states,
not individual citizens. However, this particular notion has changed due to the
dynamics and myriad changes in the realm of international law.

International law denotes norms to regulate relations, transactions and

actions which transcend national boundaries. In the contemporary state of world
affairs this branch of law has assumed immense practical importance. The
lightning means of transport and almost instant communication have bridged the
gaps of time and space; bringing, thus, the peoples of this planet closest ever to
each other. Constraints of development and consequent industrialization have led
to the increasing interdependence of nation-states. The ever growing contacts have

 
 

opened unprecedented avenues of cooperation as well as of conflict. The demands

of "steady and smooth intercourse between states as well as individuals have added
to the significance-nay indispensability-of rules, which we know of today, as
international law.

International law itself is divided into conflict of laws (or private

international law as it is sometimes called) and public international law (usually
just termed international law). The former deals with those cases, within particular
legal systems, in which foreign elements obtrude, raising questions as to the
application of foreign law or the role of foreign courts. By contrast, public
international law is not limply an adjunct of a legal order, but a separate system
altogether, and it is this field that we are concerned with in our endeavour to
understand the changing geo-political scenario world over.

Public international law covers relations between states in all their myriad
forms, from war to satellites, and regulates the operations of the many international
institutions. It may be universal or general, in which case the stipulated rules bind
all the states (or practically all depending upon the nature of the rule), or regional,
whereby a group of states linked geographically or ideologically may recognise
special rules applying only to them, for example, the practice of diplomatic asylum
that has developed to its greatest extent in Latin America. The rules of
international law must be distinguished from what is called international comity, or
practices such as saluting the flags of foreign warships at sea, which are
implemented solely through courtesy and are not regarded as legally binding.

 
 

The study of law of peace entails the characteristics of the international legal
system and the historical and theoretical background necessary to a proper
appreciation of the part to be played by the law in international realm.

Definition of International Law

British jurist, Jeremy Bentham used the words 'international law' for the first
time, in 1780. Since then, these words have been used to denote the body of rules
which regulate the relations among states.
Modern European system has prominent contribution in determining
international law, though it can be traced to ancient Greece, Rome and India as
well.
Oppenheim's Definition: In 1905, Prof. Oppenheim defined interna-tional
law as follows,
“Law of nations or international law is the name for the body of customary
and conventional rules which are considered legally binding by civilized states in
their intercourse with each other.
This definition by Oppenheim has become obsolete and inadequate. It has
been subject to the following criticisms-

1) This definition takes into account the relations of 'states' only. But it is
now generally recognized that not only states but international
organisations and institutions also have rights and duties under
international law. The scope of international law has widened.
2) The use of the term 'civilized states' by Oppenheim is also severely
criticised. In not too distant past, the western states regarded only the
'Christian States' as civilized states. For e.g., although China has 5000
years old culture, she was not included in the group of civilized nations.

 
 

At present there are as many as 185 members of the UN which include

Christian as well as non-Christian states. The term 'civilized states' was
thus deleted in the later editions of Oppenheim's book.
3) It is no longer possible to regard international law as governing relations
solely between states. At present it also governs relations between states
and international organisations, between international organizations and
private persons, between states and private persons.
4) The definition lays down that the rules of international law derive only
from customs and treaties, but the Article 38 of the Statute of
International Court of Justice mentions ‘General Principle of Law
recognised by the civilized nations' as third source of international law to
be used while deciding on international dispute.
5) International law is a dynamic and living law as against Oppenheim's
'body of rules' which denotes international law as static or fixed.
6) Oppenheim's definition is a qualified one. For e.g., the words ‘legally
binding’ connote positive character which is diffused and diluted by the
subsequent words 'by civilized states'. Oppenheim does not say that these
rules are ‘legally binding’, but that they are considered so.
In the ninth edition of Oppenheim's book (1992) the term' International Law'
has been defined differently after taking into account the new developments.

“International Law is the body of rules which are legally binding on States
in their intercourse with each other. These rules are primarily those which govern
the relations of States,' but States are not the only subjects of international law.
International organisations and to some extent, also individuals may be subject of
rights conferred and duties imposed by International law ... But this definition is
silent regarding 'general principle of law' recognized by civilized nation.

 
 

Brierly's definition: “The law of nations or international law may be defined

as the body of rules and principles of action which are binding upon civilized states
in their relations with one another.”

Gray's definition: “International law or the law of nations is the name of a

body of rules which according to the usual definitions regulate the conduct of
states in their intercourse with each other.”

Starke's definition: “International law may be defined as that body of law

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/organisations, their relations with each other, and their relations
with States and individuals; and
b) certain rules of law relating to individuals and non-state entities so far as the
rights or duties of such individuals and non-state entities are the concern of
the international community.”

This definition does not stand correct for al1 times to come, as and if an entity
not enumerated under it ever comes within the scope of international law with the
passage of time, the definition would again be subjected to criticism.

Dr. Schwarzenberger's definition: “International law is the body of legal rules

which apply between sovereign states and such other entities as have been granted
international personality.”

 
 

This definition of international law, among others appears to be fairly

satisfactory in that, besides that of Brierly, it lays emphasis on the growth and
evolution of entities, such as the UNO, which have been declared to be possessed
of legal personality.

Philip C. Jessup's definition: “International law or the law of nations must

be defined as law applicable to States in their mutual relation with other states”. He
further adds, “International law may also.., be applicable to certain
inter-relationships of individuals themselves, where such inter-relationships
involve matter of international concern.”

S.S. Lotus case: In this case, international law was defined as follows,
“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 of the achievement of common aims.
Restriction 'upon the independence of states cannot therefore be presumed.”

Torsten Gill: Professor Torsten Gill defines International Law in the

following words: “The term ‘International Law’ means the body of rules of law
which apply within the International Community or Society of States.” This
definition presupposes that States constitute a society and that this society has a
legal system, International Law or the Law of Nations. This is another way of
saying that International Law exists, that there is a body of rules, having the
character of rules of law, which regulate the relations of States inter se.

 
 

Hackworth: In the words of Hackworth: "International Law consists of a

body of rules governing the relations between States. It is a system of
jurisprudence which, for the most part, has evolved out of the experiences and the
necessities of situations that have arisen from time to time.
Queen v. Keyn: In the Queen v. Keyn, Lord Coleridge, C.J., defined International
Law in the following words: “The law of nations is that collection of usages which
civilized States have agreed to observe in their dealings with one another:”

West Rand Central Gold Mining Ltd. Co. v. King: In this case the Court
observed, International Law may be defined as "the form of the rules accepted by
civilized States as determining their conduct towards each other and towards each
other's subjects.

Hall: In the words of Hall: International Law consists of certain rules of

conduct which modem civilized states regard as binding on them in their relations
with one another with a force comparable in nature and degree to that binding the
conscientious person to obey the laws of his country and which they also regard as
being enforceable by appropriate means in case of infringement.”
Kelsen: According to Kelsen: “International Law or the Law of Nations is the
name of a body of rules which-according to the usual definition-regulate the
conduct of the States in their intercourse with one another.”

Charles G. Fenwick: In the words of Fenwick: “International law may be

defined in broad terms as the body of general principles and specific rules which
are binding upon the members of the international community in their mutual
relations”.

 
 

Fenwick's definition is better than all the above-mentioned definitions

because instead of the word ‘states’ he uses the words 'members of the
international community' which include states, international institutions,
individuals and non-state entities. He also uses the term 'general principles', His
definition is very short but pregnant with meaning and takes into account the
changes that have taken place after the Second World War. Indeed it is an
appropriate and correct definition of international law.

Whiteman: Whiteman defines International Law in the following words:

“International law is the standard of conduct, at a given time, for states and other
entities subject thereto.”
This is a very briefbut adequate definition. The words “other entities subject
thereto" may include international organisations, individuals and non-State entities.
The words used in the definition are apparently very simple but they are pregnant
with meaning and very vast in their scope. Moreover, Whiteman has also
emphasised the dynamic aspect of international law. She writes, "International law
is, more or less, in a continual state of change and development. In certain of its
aspects the evolution is gradual in others it is avulsive.”

Conclusion: On the basis of the above definitions it may be concluded that

international law is a body of rules and principles which regulate the conduct and
relations of the members of international commmunity. The contention that states
alone are subjects of international law is not only inconsistent with the changing
character of international law but has became completely obsolete and inadequate.

Thus, international law is constantly evolving body of norms that are

commonly observed by the members of international community in their relation

 
 

with one another. These non11S confer rights and impose obligation upon states
and, to a lesser extent upon international organizations and individuals.

Development of International Law

The present day International law may be said to be four hundred years old.
However, the roots of international law are found in the rules and usages which
were observed by different nations before the dawn of Christianity. The direct
contribution of Greeks and Romans to the development of international law is
relatively meagre. The conditions favourable to the growth of modem law of
nations in real sense started after 15th century when in Europe there began to
evolve a number of independent civilized States. The growth of independent States
led to the initiation of the process of formation of customary rules of international
law.
The science of modem international law owes its birth to Hugo Grotius,
whose work, De Jure Belli ac Pacis (The Law of War and Peace) appeared in 1625.
Grotius' work lent legal basis to many areas of international relations and therefore
he is popularly known as father of the law of nations. Grotius started from the law
of nature, since his intention was to find such rules of law of nations which were
eternal, unchangeable and independent of special consent of the single States.

Naturalists opined that there is no positive law of nations and maintained

that law of nations is only a part of law of nature. The positivists stated that
positive law of nations is the outcome of custom or international treaties.
The new international law is based on social interdependence and aims at
bringing what may be called international social justice.

 
 

The attempts to codify international law have been made by private

individuals, learned societies and Governments. However, development of
International law through codification was not possible without the favourable
action of foreign offices and national legislatures.

The growing interdependence of the States, scientific and technological

revolution, growing concern for human rights and humanitarian principles have
given new dimensions to international law and have considerably widened its
horizons.

To sum up, there are many factors working towards the creation of
international law-technological developments, economic, political, sociological,
and stategir considerations, humanitarian impulses, interdependence of the world
and above all the interest of academicians. However there are still wide gaps in
international law but the international communities is making all possible
endeavours to fill these gaps.

Scope of International Law

Public international law establishes the framework and the criteria for
identifying states as the principal actors in the international legal system. As the
existence of a state presupposes central authority and jurisdiction over territory,
international law deals with the acquisition of territory, state immunity and the
legal responsibility of states in their conduct with each other. International law is
similarly concerned with the treatment of individuals within state boundaries.
There is thus, a comprehensive regime dealing with group rights, the treatment of
aliens, the rights of refugees, international crimes, rationality problems, and human

 
 

rights generally. It further includes the important functions of the maintenance of

international peace and security, arms control, the pacific settlement of disputes
and the regulation of the use of force in international relations. Even when the law
is not able to stop the outbreak of war, it has developed principles to govern the
conduct of hostilities and the treatment of prisoners. International law is also used
to govern issues relating to the global environment, the global commons such as
international waters and outer space, global communications, and world trade.

Whilst municipal law is hierarchical or vertical in its structure (meaning that

a legislature enacts binding legislation), international law is horizontal in nature.
This means that all states are sovereign and theoretically equal. As a result of the
notion of sovereignty, the value and authority of international law is dependent
upon the voluntary participation of states in its formulation, observance, and
enforcement. Although there may be exceptions, it is thought by many
international academics that most states enter into legal commitments with other
states out of enlightened self-interest rather than adherence to a body of law that is
higher than their own. As D.W. Greig notes, “international law cannot exist in
isolation from the political factors operating in the sphere of international
relations.”

Breaches of international law raise difficult questions for lawyers. Since

international law has no established compulsory judicial system for the settlement
of disputes or a coercive penal system, it is not as straightforward as managing
breaches within a domestic legal system. However, there are means by which
breaches are brought to the attention of the international community and some
means for resolution. For example, there are judicial or quasi-judicial tribunals in
international law in certain areas such as trade and human rights. The formation of

 
 

the United Nations, for example, created a means for the world community to
enforce international law upon members that violate its charter through the
Security Council.

Traditionally, States and the Holy Sea were the sole subjects of international
law. With the proliferation of international organizations over the last century, they
have in some cases been recognized as relevant parties as well. Recent
interpretations of international human rights law, international humanitarian law,
and international trade law have been marked by the inclusion of 'Corporations,
and even certain individuals.

Nature of International Law

Regarding the nature of international law there are two views. The
traditional view holds that international law is composed solely of rules governing
the relations between States only. Thus, the traditional view restricts the domain of
international law to the regulation of the conduct of States inter se. Those who hold
traditional view are Oppenheim, Brierly, Hall, T. Gill, Hackworth et.al. However
the modern view holds that international law is dynamic in nature. As to the
modern view, Fenwick’s definition of international law succinctly sums lip the
contemporary viewpoint. Others who have propounded similar views are Starke,
Korowicz, Whiteman et. al. Jessup and Kelsen's view lies between the traditional
and contemporary viewpoints. The dynamism of international law have expanded
the horizons of it and acquired for it completely new dimensions. There are various
factors which have lent dynamism to international law:
1. The movement of the international protection and promotion of human
rights

 
 

2. The emergence of international institutions having international legal

personality
3. Several international Conventions.

International law can, therefore, no longer be adequately or reasonably defined

or described as the law governing the mutual relations of the States. International
law is the law of an organised world community, constituted on the basis of States
but discharging its community functions increasingly through a complex of
international and regional institutions, guaranteeing rights to, and placing
obligations upon, the individual citizen, and confronted with a wide range of
economic, social and technological problems calling for uniform regulations on an
international basis which represent a growing proportion of the subject matters of
the law. In short, international law is the standard of conduct, at a given time, for
States and other entities subject thereto.

International Law as ‘Law’

Is international law true law? This controversy is the most debatable

question regarding international law. The popular belief is that international law is
not really law. Critics have argued that there can be no international law since there
is no international legislature to make it, no international executive to enforce it
and no effective international judiciary to resolve disputes about it.

Austin's View
John Austin is regarded as one of the foremost critic of international law.

 
 

According to Austin law is a command of sovereign, enforced by a superior

political authority, violation of which attracts sanctions. Thus there are three
essential elements in the Austin's definition of law namely command (of the
sovereign) duty (of inferiors) and sanction (in case inferiors commit breach of the
command). Austin's views about international law are coloured by his theory of
law in general. Referring to international law Austin points out that there is no
sovereign political authority having legislative powers as in his time the rules of
international law were almost exclusively customary. Accordingly he holds that
duties which international law imposes are enforced by moral sanctions; by fear on
the part of nations or by fear on the part of sovereigns. Austin therefore concludes
that international law is not true law but 'positive international morality' only,
analogous to the rules binding a club or society. This view can be summarised as
follows:
a) In International law there does not exist any determination by a superior
political authority, which is there in municipal law.
b) International law lacks an effective legislative machinery.
c) International law lacks sanction which according to the writers of this
persuasion is an essential element of law.
d) There is no such executive power in international law as may enforce the
decisions of the International Court of Justice and ensure the observance of
the provisions of the treaties.
e) International law lacks a potent judiciary.
f) Some writers call international law a quasi-law.

Bentham also looks at international law as international morality or ethics,

international courtesy or convention in the social sense of the word, comity as

 
 

distinguishable from rule of law. Hobbes and Pufendorf have also questioned the
true legal character of international law.

Conclusion
International law has deficiencies and limitations. Its violations are more
frequent than the violations of many domestic laws. Nevertheless, the deficiencies
of international law are not critical. Instead of saying that the cup of international
law is half empty, it must be stressed that it is half full. Despite inadequacies in its
legislative method, international law has grown, developed and changed. If
international law is difficult to make, yet it is made; if its growth is slow, yet it
grows. If there is no judiciary as effective as in some developed national systems,
there is an International Court of Justice whose judgements and opinions, while
few, are respected. The inadequacies of the international judicial system are in
some measure reduced by other bodies; international disputes are resolved and law
is developed through a network of arbitrations by continuing or ad hoc tribunals.

Basis of International Law-Theories

The intellectual seeds of modern international law germinated in the 16th
and 17th centuries, when the influence of the Roman Catholic Church in
international affairs gradually weakened. Many early international legal theorists
were concerned with axiomatic truths thought to be reposed in natural law. Among
the early natural law writer, Francisco de Vitorio, Dominican professor of theology
at the University of Salamanca, examined the question of just war and Spanish
authority in the Americas. He did so while Spain was at the height of its power,
after the violent Spanish conquest of Peru in 1536.
(a) Grotius Theory: Central in the development of modem international law
was Hugo Grotius a Dutch theologian, humanist and jurist. In his principal work

 
 

De jure Belli ac Pacis Libri Tres (“Three Books on the Law of War and Peace”,
1625), Grotius claimed that nations as well as persons ought to be governed by
universal principle based on morality and divine justice. Much of Grotius' content
drew from the Bible and from classical history Gust war theory of Augustine of
Hippo). Drawing also from domestic contract law, he also notes that relations
between polities were governed by jus gentium, the law of peoples, which had
been) established by the consent of the community of nations.

The central doctrine in his work was the acceptance of the ‘law of nature’ as
an Independent source of rules of the law of nations, apart from custom and
treaties. The Grotian law of nature was founded primarily on dictates of reason and
on the rational nature of men as social human beings. Grotius distinguished
between Jus Gentium (i.e., the customary law of nations which he called Jus
voluntarium) and Jus natural (i.e., law of nature concerning the international
relations of the States). .

(b) Naturalistic theory: Most of the jurists of sixteenth and seventeenth

century were of the view that International Law is based on the law of nature.
According to them there exists a system of law which emanates from God or
reason or morals. International Law, according to them, is based on this very
system. Prominent writers of this view are Grotius, Pufendorf and Vattel.
The view has been greatly criticised by the writers of the nineteenth century
on the ground that it is too vague.

(c) Positive theory: According to them only those principles may be

deemed as law which have been adopted with the consent of the States. The rules
of law are binding upon States therefore emanate from their own free will.

 
 

Bynkershoek was the exponent who was of the view that the basis of International
Law is the consent of the States. The consent may be given by States either
expressly or impliedly. While express consent may be given by the conclusion of
treaties or the acknowledged concurrence of governments, consent may be implied
in the case of established usage, i.e., custom. Thus, custom and treaties by which
consent of a State is achieved are the basis of International Law. Unless and until a
State has given its consent to a particular rule of International Law it cannot be
regarded as binding on it. Martens and Anzilotti also share the above view.

The consent theory has been criticised by many writers on several grounds.
Firstly, all the rules of International Law are not derived from customs and treaties.
Some of them derive from the general principles of law recognised by civilized
nations. International Court of Justice has equivocally recognised it under Article
38(I)(c) of the Statute. Secondly, a State remains bound by certain rules of
International Law even if it has not given its consent. According to Article 36 of
the Vienna Convention on the Law of Treaties a treaty may be binding on third
States as well. Their assent shall be presumed as long as the contrary is not
indicated. Thirdly, States in some cases are bound by general International Law
even against their will. The above criticisms show that the consent theory as
propounded by positivists is not totally correct.

(d) Eclectic theory: The views taken by the naturalists and positivists are
extreme views. The jurists belonging to eclectic school have preferred to adopt a
middle course in the positivist-naturalist debate. Eclectics such as Vattel accepted
the simultaneous existence of two tiers of law-one at the natural level and another
at the positivist level. Thus, according to them International Law derive from both
natural law as well as voluntary law (laws made with the consent of the States).

 
 

This view appears to be appropriate than those taken by the jurists of naturalist and
positivist Schools, and therefore it may be concluded that International Law is
based solely neither on the law of nature nor on the consent of the States.
International Law is a Weak Law

International law is said to be weak law. Its rules are not as effective as rules
of municipal law. Thus the weakness of international law become evident when we
compare it with Municipal law. Following are some of the weaknesses of
international law:-

(1) Rules of International Law which exist as a result of international treaties

and customs are not comparable in efficacy to State legislative machinery. Rules
expressed in treaties as well as customs are sometimes formulated in such a way so
as to give wide options to the States parties.

(2) There is no court in the true sense which could decide the legal disputes
of all the States. Although, International Court of Justice which is commonly
known by the name of ‘World Court’ exists, it does not have jurisdiction to decide
the disputes of all the States since the Court acts with the consent of the States
only.

(3) Enforcement measures which are available under the system are not
effective and when used, have been used despairingly.

(4) Rules of International Law are frequently violated by States, especially

during war and the claimant of the rights takes the law into his own hands.

 
 

Although the Charter of the United nations has reduced the area of self-help,
International Law is far behind from being quite effective.

(5) The greatest shortcoming of international law is that it lacks an effective

executive authority to enforce its rules.

(6) It lacks an effective legislative machinery.

(7) A great limitation of international law is that it cannot intervene in the

matters which are within the domestic jurisdiction of States.

(8) As compared to rules of State law, the rules of International Law suffer
from greater uncertainly.

(9) International Law has, in many cases, failed to maintain order and peace
in the world.

Codification of International Law

The codification of international law involves three basic processes: firstly,

the grouping together of the rules dealing with a given subject of law in an orderly
and logical manner; secondly, an attempt to correct defects in those rules, that is,
the filling of omissions, the elimination of archaisms, and, in general, the
modification of the rules to take into account changes in conditions and policies;
and thirdly the enactment of new set of rules into binding law by some agency
having the power to do this act. It is true, however, that 'codification' is sometimes
used in a more limited sense to refer thereby to the systematization of rules, or the

 
 

systematization and modification of rules, without regard to the essential element

of their being put into effect.

In the last quarter of eighteenth century, Jeremy Bentham proposed a

codification of the whole of international law, though in a Utopian spirit.
Bentham's proposal, although an ideal one was not based on logical considerations
inasmuch as codification of international law depended upon the consent of the
States which was difficult to obtain in an environment vitiated by political
tensions, strains, stresses and strife.

The attempts to codify international law have been made by private

individuals, learned societies and Governments. Although Governments can
directly constitute a body of written international law, private codification
institutions and individual writers, have also had a considerable effect on the
development of international law. Particularly noteworthy are the various draft
codes and proposals prepared by the InstitutE de Droit International, the
International Law Association (both founded in 1873) and the Harvard Research in
International Law (established in 1927). The United Nations wasn't conferred
legislative power to enact binding rules of international law. However, certain
concessions were granted to General Assembly. By virtue of Article 13 of UN
Charter, the General Assembly was granted certain limited powers of study and
recommendation Artic1e 13(J) reads as follows:

The General Assembly shall institute studies and make recommendations for
the purpose of encouraging the progressive development of international 'law and
its condification, sometimes, known as the committee of Seventeen’. On 21st

 
 

November1947, The General Assembly established the International Law

Commission.

The object of the International Law Commission is the promotion of the

progressive development of international law and its codification. The
International Law Commission has initiated studies and prepared draft codes on
diverse fields of international law which have led to the adoption of multilateral
law-making treaties between the States. The International Law Commission is
currently conducting studies and preparing draft codes in many areas of
international law.

Sanction. In International Law

Rules of legal system are binding upon the subjects to whom it is addressed.
If rules are violated or obligations contained therein are not observed by the
subjects, enacted specific penalty which is imposed in order to enforce obedience
to a law is called sanction. Penalty imposed under international legal system is
referred to international sanction. International Law has been regarded as a legal
system in the true sense. The governments of the different States are of the opinion
that its rules are legally binding on them. A question arises as to ~hat junctions
International Law provides to those States which violate the rules.

Sanctions in the modem International Law are quite different from those
which existed in the classical International Law. The latter provided the sanction
generally in the form of war and reprisals. War waged by its own armed forces was
the supreme sanction of international Law. However, at present, war as well as
reprisals in most of the cases have become unlawful. Sanctions applied by the

 
 

aggrieved' State are required to be lawful and they must conform to the provisions
of the U.N. Charter. Sanctions which are provided in International Law at present
may be applied by the States individually or collectively by international
organisations.

Whether international law is the vanishing point of jurisprudence?

Holland holds this view, as in his view, these rules are followed by courtesy
and hence they should not be kept under category of law, they lack sanction which
is a must in municipal law. This option is not followed since, all recognise the
presence of certain sanctions although they may be weak e.g. under Article 59
decisions of ICJ are binding on the parties to the dispute. At the same time, public
opinion is the ultimate sanction behind international law and for that matter any
law. Thus it is wrong to say that there are no sanction behind international law.

R. W.M. Dias remarked, “the principal reasons why states obey international
law appears to be fear and self interest”. It cannot be denied that absence of
effective implementation machinery is greatest shortcoming of international law.
This is because the truism which holds good for the individuals cannot be same for
states.
Holland regards it an end part since there is no judge or arbiter to decide
international disputes and that the rules of international law are followed by states
by courtesy. But this view is far from truth. Earlier there was a Permanent Court of
Justice and now the International Court of Justice has helped in propounding the
international law even though the dispensation of justice is not to the level of
municipal courts but yet it possesses a binding character. 47 states have conferred
themselves to the compulsory jurisdiction of the International Court of Justice.

 
 

Thus, it is incorrect to say that international law is a vanishing point of

jurisprudence.

Is International Law a mere Positive Morality

As per Oppenheim, “A rule is a rule of morality if by common consent of
the community it applies to conscience and to conscience only, where as, on the
other hand, a rule is a rule of law if by the common consent of the community, it'll
be eventually enforced by external power”.

Thus a rule of morality applies merely on conscience and can't be enforced

by external power while a rule of law can be enforced by external power.
International morality or ethics has been defined "as standards of right behaviour
that are based on personal judgment”. They may not be observed till accepted by
authoritative decision-makers as Constituting international law.

The International Court of Justice in South-West Africa, cases made it clear

that the court “can take account of moral principles only in so far as these are
Kiven in a sufficient expression in legal form”.

In North Sea Continental Shelf case, the court observed "whatever the
legal reasonings of a court of justice, its decisions must by definitions be just and
therefore in that sense equitable".

Distinction between Public International Law and Private International Law

The main recognised distinction being that private international law

regulates relation of individuals whereas public international law regulates the

 
 

relation of States. But since the international law now regulates the relations of
international community which include individuals as well, the old definition
becomes obsolete.
As per Pitt Cobbet “Private International Law decides law applicable in the
issue in dispute involving more than one nations and determine the court which
will have jurisdiction to decide the issue. It is now popularly called as conflict of
laws.”

Differences
1. Public International Law for its major part deals with states and to a
lesser extent with the individuals but private international law deals
with individuals.
2. Private International Law is a part of municipal law but so is not
always the case with Public International Law. Only customary rules
of international law are considered to be part of the domestic law of a
state.
3. Public International Law is same for all states where as Private
International Law may be different in different states.
4. Private International Law determine as to which law will apply in a
case having a foreign element. There is no such element in the field of
Public International Law. Public International Law is confronted with
different type of problems whenever there is a dispute between its
internal law of the state, the problem arises as to which law shall
prevail.
5. Private International Law also determine the court which will have
jurisdiction to decide the questions in issue which is not so in Public
International Law.

 
 

6. Rights arising out of Public International Law are absolute and their
breach constitutes a causes belli (whatever involves or justifies was)
but Private International Law doesn't confer absolute rights.
7. Public International Law comprises mainly of rules recognised by
states in their relation with each other and mostly arises out of
international custom and treaties. On the other hand rules of Private
International Law are framed by the legislature of a state and
recognised and developed by state courts.

In certain exceptional cases rules of Private International Law may become

rules of Public International Law if they are incorporated in the treaties.

Subjects of International Law

It is the function of the Taw to apportion rights and duties to certain entities
as it sees fit. Legal personality is very important as without it individuals,
institutions and groups cannot operate, as they need to be able to maintain &
enforce claims. Personality in international law necessitates the consideration of
the interrelationship between rights and duties afforded under the international
system and capacity to enforce claims. A personality is a relative phenomenon
varying with the circumstances, a varied range of factors need to be carefully
examined before it can be determined whether an entity has international
personality. Contemporary international law has a wide range of participants,
which includes states, international organisations, regional organisations, non-
government organisations, public companies, private companies and individual.
But which entities will constitute legal persons would be determined by various
factors.

 
 

The term 'subjects of international law' refers to entities endowed with legal
personality, capable of exercising certain rights and duties on- their own account
under the international legal system.

Various Theories regarding subjects of International Law

The difference of opinion among jurists as to what entities are deemed to be
the subjects of international law has led to the emergence of three popular theories.
These are:
1. States alone are subjects of international law.
2. Individuals alone are subjects of international law.
3. States, Individuals and certain non-state entities are subjects of
international law.

(1) States alone are subjects of International Law

According to the orthodox positivist doctrine, States only are subjects of
international law. This theory asserts that States alone are the bearers of rights and
obligations under international law; individuals lack juridical personality because
they possess neither rights nor duties under international law. International law
regulates the conduct of States and it is the State which performs all types of
international obligations under treaties and conventions.

Percy E. Corbett in his book, "The Growth of World Law" has made the
remark that, "The triumph of positivism in the late eighteenth century made the
individual an object, not a subject of international law. This law more and more
emphasised the separateness of states, making their sovereignty, indeed its basic
principles."

 
 

Criticism
This theory has been subjected to severe criticism by jurists. It does not tell
about the certain laws bestowed upon individual and certain international offences
for which individual may be punished. Right conferred upon slaves and
punishment to pirates arc good examples where individual is directly a subject of
international law.

Prof. Oppenheim in the eighth edition of his book “International Law, Vol.
I” pointed out that “Since the law of nations is primarily a law between states,
states arc to the extent, the only subject of international law”.
But in the ninth edition of his book editors changed this view. According to
the new opinion.

“States are primarily, but not exclusively, the subject of international law.
To the extent that bodies other than states directly possess some rights, power and
duties in international law they can be regarded as subjects of international law,
possessing international personality”. Further, international law is no longer if ever
was, concerned solely with states. Many of its rules are directly concerned with
regulating the position and activities of individuals, and many more indirectly
effect them.

In Reparation for Injuries Suffered in the Services of the UN, the ICJ
held "that the United Nations has the capacity to bring an international claim
against the state for obtaining reparation when an agent of the U.N. suffers injury
in the performance of his duties in circumstances involving the responsibility of
states". The "court by implication rejected the proposition that only states are
subject of international law".

 
 

Prof. Schwazenberger pointed out that "it is contradiction in terms to say

that individuals are not the subject of international law because how it can be
expected that individuals who are the basis of the society may only be the object of
international law. Thus as a matter of fact, individuals are also the subject of
international law."

(2) Only Individuals are the Subjects of International Law3 Contrary to the
above theory, some jurists have asserted that the ultimate analysis of international
law will show that only individuals are the subjects of international law.

Prof. Kelsen, the chief exponent of this theory analysed the concept of State
and held the view that it is a technical legal concept which includes the rules of law
applicable on the persons living in a definite territory. The difference between
international law and state law dissolves, both laws apply on the individuals and
they are for the individuals. While the former is binding on them directly, the latter
is binding indirectly, that is, through states.

Prof. Westlake also remarked that, "The duties and rights of the States are
only the duties and rights of men who compose them."

There are cases where international law 4 binds individuals immediately and
not merely mediately in Kelsen's sense. It is a distortion of facts to say that slaves
and pirates jure gentium are not subjects, but objects of international law. For
instance, the rule of international law by which states are authorised to attack,
seize, and punish pirates jure gentium, is a rule 'imposing a legal duty directly upon
individuals and establishing individual responsibility'.

 
 

Thus, according to the supporters of this theory, welfare of individuals is the

ultimate goal of international law and therefore individual in the only subject of it.

In practice, international law for its major part still deals with the rights and
duties of States. The correct position therefore is that besides states, individuals,
public international organisations and some non-state entities are also the subjects
of international law.

These and other developments of recent years appear to show that the theory
that states are the excl usive subjects of international law cannot be accepted today
as accurate in all respect, although it may be a good working generalization for
international lawyers. The use of the State as a medium and screen for the
application of international law cannot now do justice to all the far reaching aims
of modern sys-:

8. Human Rights and Fundamental Freedoms: The dream of Grotius of

recognization of human rights and fundamental freedoms of individuals at
interna-tional law was ultimately realized when the Charter of the United Nations
incor-porated as one of its purpose 'to achieve international cooperation ...in
promoting and encouraging respect for human right and fundamental freedoms for
all with-out distinction as to race, sex, language or religion'. Since its establishment
the United Nations has kept the issues of fundamental human rights consistently in
focus of world public opinion. Following the adoption of Universal Declaration of
Human Rights by the General Assembly in 1948, the two covenants on Eco-nomic
Social and Cultural Rights and on Civil and Political Rights along with optional
protocol were adopted in 1966. Although the covenants envisaged in them in not
directed towards effective protection or enforcement of human rights.

 
 

On the other hand, the European Convention on Human Rights and

Fundamental Freedoms and the American Convention project a comparatively
better implementation mechanism in the form of a commission and a court of
human rights. Western European arrangement on protection of human rights have
now been functioning for over three decades. The first ever case before the
European Court of Human right was:

The Lawless Case [56 AJIL (1960) 187]

Mr. Lawless an Irishman was detained without trial in a military camp on
the charge that he was’a suspected member of illegal Irish Republican Army. After
his petition for habeas corpus was rejected by the High Court and Supreme Court
of Ireland, he approached the Commission of Human Rights alleging violation of
European Convention of Human Rights, 1950. Although he was released on an
undertaking not to engage in illegal activities, the Commission remained seized of
the matter and gave its finding that the Convention was violated. Ireland
challenged Commission's conclusion in the European Court which also held that
the arrest and detention of Mr. Lawless was incompatible with Article 5 of the
Convention.

A case decided by the European Court of Human Rights is:

The Soering Case (1989) Jens Soering, an eighteen year old German
national, allegedly murdered the parents of his girlfriend in March 1985 and
disappeared from Virginia (U.S.) in October 1985. He was arrested in England in
April 1986 for a cheque fraud. On 11 August 1986 the U.S. Government requested
his extradition. After serving his prison sentence for cheque fraud, Soering was

 
 

detained on 30 December 1986 pending his extradition to the United States to face
murder charges in Virginia.

On II February 1987 Bonn Court issued a warrant of Soering's arrest in

connection with the alleged murders. A month later West German Government
also requested for his extradition. After dismissal of his petition for habeas corpus
by House of Lords on 3 August 1988, the British Secretary of State signed a
warrant ordering his surrender to the U.S. authorities.

Soering challenged the warrant before the European Commission and later
before the European Court of Human Rights alleging that his extradition to United
States would be in breach of British obligation under Article 3 of the European
Convention on Human Rights: "No one shall be subjected to torture or to inhuman
or degrading treatment or punishment". Virginia law provided death for murder
and the average time taken between trial and execution was six to eight years.
Pending execution the treatment meted out in jail was sub-human-lodged in small
cell, chained around waist etc. In contrast German law provided for life
imprisonment for murder. Soering submitted a declaration to the European Court
conveying no objection on deportation to Germany; should the United Kingdom
decide on his extradition.

The eighteen-member full court unanimously held that United Kingdom is

under an obligation not to extradite Soering to United States if he faces a real risk
of treatment or punishment prohibited by Article 3 of the Convention. Sending
Soering to his own country for trial would prevent a fugitive criminal from going
unpunished and at the same time prevent the risk of intense and protracted
suffering by him on death row.

 
 

Court held that British Government's decision to extradite Soering to the

United States, if implemented, would constitute breach of Article 3 of the
Convention.

The net effect of these efforts at the United Nations and regional levels in
the area of human rights is that certain fundamental rights of the individual human
being have come to be recognised at international law and the states are under a
corresponding duty to ensure enjoyment of these rights to one and all within their
respective jurisdictions. True, the individual has not yet the procedural capacity to
vindicate his rights in international tribunals, the fact that in Western Europe the
Commission does it on his behalf find an analogy in municipal jurisdictions where
infants can sue only through a next friend, and it does not militate against their
statute subjects of municipal law.

Place of Individuals in International Law

As pointed out earlier, individuals iife'a1so treated to be the subjects of
international law although they enjoy lesser rights than states under international
law. Thus, "It is no longer possible, as a matter of positive law, to regard states as
the only subjects of international law, and there is an increasing disposition to treat
individuals, within a limited sphere, as subjects of international law". In the
beginning they were accepted as subjects of international law as an exception of :

1) Pirates: Under international law pirates are treated as enemies of mankind.

Hence every state is entitled to apprehend them and punish them. Thus,
under international law it is the obligation of the parties not to commit
piracy.

 
 

2) Harmful acts of individuals: For the amicable and cordial relation of the
states it is necessary that the individuals should not be involved in such act
as may prove detrimental for the good relations among states. Therefore,
under international law there are several such provisions which provide that
the persons who commit such crimes may be punished.

3) Foreigners: To some extent international law also regulates the conduct of

the foreigners. According to international law, it is the duty of each state to
give to them those rights which it confers upon its own citizens.

4) War criminals: War criminals can be punished under international law.

This conception is based on the principle that rules relating to war crime are
not only for the states, but individuals are also bound by them.

5) Espionage: Espionage is a crime under international law. Hence, when the

spies are apprehended, they may be punished.

6) Under some treaties individuals have been conferred upon some rights
whereby they can claim compensation or damages against the states.

7) The United Nations Charter has also given a place of importance to the
rights of individuals.

8) Besides the above-mentioned examples, some very important steps are being
taken in respect of the rights of individuals under international law.
International law now confers upon the individuals certain rights not only

 
 

'mediately' but 'immediately:. An example of this is Convention on the

Settlement of Investment Disputes between states and the nationals of other
states. As is clear from its very name, the persons who invest their money in
foreign countries have been conferred upon certain rights against the state
concerned.

9) The International Covenant on Civil and Political Rights, 1996.

Conclusion
In view of the above developments it would be presumptuous to say that
States arc the exclusive subjects of international law. It also does not connote that
States can lay the claim to their being the exclusive subjects of international law, as
articulated by Lautherpacht:

'It is true that international law is made for states and not states for
international law, but it is true only in the sense that the state is made for human
beings and not human beings for state'.

It can, however, not be denied that still a major portion of international law
deals with rights and duties of states. As far as an individual as subject of
international law is concerned, while a lot of progress has lately been made in this
direction as compared to the position in traditional international law, there is much
truth in what Prof. Green has to say:

 
 

'Despite all the idealism in the Charter of the United Nations, there appears
to be little doubt that the individual has still a long furrow to plough before he
receives recognition of his status under international law'.

QUESTIONS WITH ANSWERS

Q. 1. Is International Law 'law' in the proper sense?

Ans. Almost from the early stages of the development of the science of the
Law of Nations the question whether International Law is law in the true sense, has
been a subject of much speculation. Has it any binding force? Opinion has sharply
been divided on this vexed question. The leading English writer on Jurisprudence
John Austin has maintained that International Law is not true law, but a code of
rules of conduct of moral force only. He defines law as a rule of conduct imposed
and enforced by the sovereign. Hobbes and Pufendorf, who preceded Austin, also
answered the question in the negative by observing that there is no positive law of
nations properly invested with a true and legal force, and binding as the command
of a superior. Hobbes defined law as the commands of him or them that have
coercive power. According to Vattel, the Law of Nations, in its origin, is nothing
but the law of nature applied to nations. Holland maintained that International Law
differed from ordinary law in being unsupported by authority of a State. According
to him, the Law of Nations is but private law "writ large". In this view of the
matter he called International Law as the vanishing point of jurisprudence.
Bentham also criticized International Law as the law proper. On the other hand,
eminent authorities like Hall and Lawrence maintain that International Law not
only operates as law but is distinct from international morality by a radical
difference, both in the nature of its rules and sanction. The former observes that

 
 

International Law is habitually treated as law and that certain part of what is at
present acknowledged to be law is indistinguishable in character from

It: the latter emphasizes that International Law is generally observed by

States, though here and there like other law some of its commands are disregarded.

Austin holds that International Law is no law as it did not emanate from a
law lt1ving authority and had no sanction behind it. He observes that the law
obtaining between nations is not a positive law for every positive law is set by a
given overeign to a person or persons in a state of subjection to its author. The law
obtaining between nations is, according to him, only law set by general opinion
und the duties which it imposes are enforced by moral sanction. There is no
compelling sanction derived from superior authority inasmuch as there is no
Sovereign power over and above the disputant States. He described International
Iaw as "positive international morality" consisting of "opinions or sentiments
current among nations generally".

Holland, as stated above, subscribes to the view taken by Austin. According

to him, "such rules as are voluntarily, though habitually, observed by every State in
its dealings with the rest can be called law only by courtesy." It is not supported by
the authority of a State. It is the vanishing point of jurisprudence, since it lacks any
arbiter of disputed questions save public opinion, beyond and above the disputant
parties themselves, and since in proportion as it tends to become assimilated to true
law by the aggregation of States into a large society, it ceases to be itself, and is
trasmuted into the public law of a federal government. .

 
 

No doubt, International Law is less imperative and less explicit than the
State law but nevertheless it is law inasmuch as it is enforced partly by the
conviction that it is good and partly by those subtle influences which make it
difficult for a man or body of men to act in defiance of strongly held views of those
with whom they associate. Compulsion alone is not the sanction behind law. It b
enforced by the consideration of justice as much as of force. The element of fear is
also not absent. Nations are afraid that a gross violation of international rules of
conduct might make the nemesis fall on them. Like ordinary law International Law
is also sometimes evaded but that does not mean that the. law does not exist. As
Mr. Roosevelt said in his last Annual Message to Congress; "It would be
preposterous to think that international relations are governed exclusively by force,
and that statesmen are not moved by considerations of right and law and justice."
In the words of Brierly, it is not the existence of a police force that makes a system
of law strong and respected, but that strength of the law that makes it possible for a
police force to be organised.

Sir Henry Maine while criticising the Austinian conception of law observes
that men do sometimes obey rules for fear of punishment, but compared with the
mass of men in each community this class is but small, probably it is confirm to
what are called the criminal classes. The largest number of rules which men obey
are obeyed unconsciously from a mere habit of mind.

As said above, the Austinian view regards law as the command of a

sovereign enforced by a sovereign political authority, and as such Austin classified
International Law as positive morality. This view has rightly been commented

 
 

ASSIGNMENT

INTERNATIONAL LAW (K-107)

Unit – I

Q.1. What do you mean by International Law? Is International Law is true law? (or
law in proper sense)

Q.2. Explain the nature and development of International law.

Q.3. Enumerate the various sources of International law and assess their comparative
importance.

Q.4. What is relation between international law and municipal law?

Q.5. Explain the subjects of international law.

Q.6. What are the Basis of International Law?

 
 

PUBLIC INTERNATIONAL LAW

Human rights are also rooted in ancient thought and in the philosophical
concepts of 'natural law' and 'natural rights'. A few Greek and Roman philosophers
recognized the idea of natural rights. Plato (427-348 B.C.) was one of the earliest
writers to advocate a universal standard of ethical conduct. According to Roman
jurist Ulpian natural law was that which nature and the State assured to all human
beings. He stated that according to law of nature, all men are equal, and by the
same law all are born free. This meant that foreigners were required to be dealt in
the same way as one deals with one's compatriots. It also implied conducting of
wars in a civilized fashion and the idea of universal truth that all must be
recognised. People were to work for the common good. Aristotle (384-322 B.C.)
wrote in politics that justice, virtue, and rights change in accordance with different
kinds of constitutions and circumstances. Cicero (106-43 B.C.), a Roman
statesman laid down the foundations of natural law and human rights in his work.
He believed that there should be universal human rights laws that would transcend
customary and civil laws. Sophocles (495-406 B.C.) was one of the first to
promote the idea of freedom of expression against the State. Stoics employed the
ethical concept of natural law to refer to a higher order of law that corresponded to
nature and which was to serve as a standard for the laws of civil society and
government. Later, Christianity, especially St. Thomas Aquinas (1225-1274)
rooted this 'natural law' in a divine law which was revealed to man in part
discoverable by man through his God-given right reason. The city-State of Greece
gave equal freedom of speech, equality before law, right to vote, right to be elected
to public office, right to trade and the right of access to justice to their citizens.
Similar rights were secured to the Romans by the jus civile of the Roman law.
Thus, the origins of the concept of human rights are usually agreed to be found in

 
 

the Greco-Roman natural law doctrines of Stoicism (the school of philosophy

founded by Zeno and Citium) which held that a universal force pervades all
creation and that human conduct should therefore be judged according to the law
of nature.

Basis of Human Rights

Views of the jurists on the question as to basis of human rights are divergent
which have led to the emergence of different theories. Prominent amongst them are
.IefJt thinkers and philosophers were of the principle of eternal law as revealed in
natural law which is also something called Divine law or Law of reason, unwritten
law, Universal or Common law eternal law or moral law. The Greeks regarded
natural law as being closely related both to justice and ethics. It was therefore
conceived by the Greeks as a body of imperative rules imposed upon mankind by
nature, the personified universe.
Natural law theory was practised by Romans in the formation of body of
legal rules for the administration of justice. The Roman view was 1bat natural law
is the immutable and universal part of civil law. Roman classical writers used the
Stoic theory as an ornament for their texts. Thus, the origins of the concept of
human rights are usually agreed to be found in the Greco-Roman natural law
doctrines of Stoicism.
The theory of natural rights clearly derives from natural law. Natural right is
an interest recognised and protected by a rule of natural justice. It was a body of
principles superior to positive law. They arose from the very nature of man. The
concept of natural rights found place in many documents of human rights such as
the Bill of Rights (England) of 1689, Declaration of Rights (Virginia) of 1779 and
the Declaration of Independence (U.S.A.) of 1776.

 
 

Natural law as the basis of human right has been criticized on a number of
grounds. Firstly, all rights are legal rights and are the creations of law and since
natural rights are the creations of natural law; they are a metaphor. Secondly,
natural law theory regards that what is natural is innate, universal or immutable.
However, it has to be admitted that the law of nature has greatly influenced the
growth of human rights law. There cannot be any doubt if it is said that human
rights law has developed in the initial stage on the basis that its rules derive from
the law of nature)

(2) Social Utility Theory: Another theory which has been advocated as to
the basis of human rights is the social utility. The theory maintains that what
conforms to the utility (or the interests) of an individual represents the total sum of
his happiness and that what conforms to the utility (or the interests) of a
community represents the total sum of happiness of the individuals composing that
community. Under the social utility theory of human rights, those rights are
considered genuine human rights which tend to increase the total happiness of
human beings. Thus, human rights are those which constitute permanent and
general conditions of human happiness.
The above theory does not appear to be sound as it generates the belief that
the happiness of the individuals composing a community is necessarily the interest
of that community, but it is not true. It is a delusion to think that there is a
necessary identity between the individual happiness and the happiness of the
community. Moreover, social utility may even be an outright conflict, at times,
with human rights.
It is to be noted that the basis of human rights lies in the fact that an
individual is a human being. Well being and freedom in all aspects are important
aspects of the individual's existence because he is a rational being. These aspects

 
 

are essential to an individual to live his life in a dignified manner and also because
they bring happiness to him. Consequently, happiness and freedom constitute the
foundation for human rights.

Classification of Human Rights

French Jursit Karel Vasak inspired by the three normative themes of the
French Revolution classified the rights into three categories. The first generation of
civil and political rights (liberte), the second generation of economic, social and
cultural rights (egalit) and the third generation of newly called solidarity rights
(fraternite) which includes right to' development. The third generation rights are
sometimes called collective rights rather than individual.

1. Human Rights of First Generation: Human Rights had found their

origin and development as far back in the period of Greeks, French and Romans.
They were generated mostly in Greak City state in ancient times. They were
concretized in the farm of Magna Carta in United Kingdom in the Middle Age of
their history, thereafter in the American Declaration of Independence and the
French Declaration of the Rights of Man and of the Citizen. In the modem times
they have been incorporated in the Constitutions of many States; in the
International Covenant an Civil and Political Rights, in the European Conventions
an Human Rights and in American and African Instruments.
They represent an overwhelming consensus of international community
giving rise to the rules of international customary law of general application. The
provisions of the Covenant on Civil and Political Rights are so wide spread that
now they can be taken to be as part of the law of mankind.

 
 

2. Human Rights of Second Generation: The Civil and Political Rights

originated in the American and French Revolution and Social Rights had their
origin in the Russian Revolution of 1917 and in the Paris Peace Conference of
1919. The International Labour Organisation developed many internatianallabaur
standards in the form of conventions and recommendations coupled with effective
system of supervision and investigation of complaints.
President Roosevelt of U.S.A. on January 6, 1941, in his message to the
Congress referred to four essential freedoms-freedom of speech and expression, of
worship in one's own way, from want, and from fear. Freedom from want formed
the basis of the concept of economic and social rights. In 1944, in another message
to the congress he made the concept of freedom from· want mare clear, the
importance of which he stressed in the words that "true individual freedom cannot
exist without economic security and independence.... people who are hungry and
out of job are the stuff of which dictatorships are made." The economic truths are
accepted as self-evident. He advocated for drastic economic and social reforms.
"True individual freedom cannot exist without economic society and
independence" was his most valued opinion.

3. Human Rights of Third Generation: These are collective rights.

Individuals are essentially members of "family, religions; community, social
club, trade union, professional association, racial group:, people, nation and State.
Hence International Law recognises not only the individual rights but also certain
collective rights exercised jointly by individuals who' are grouped into' larger
communities, the people and the nations. The third generation of human -rights
refer to fraternity of brotherhood, In India this has been the First Generation of the
vedic period. Collective rights are based an the concept that there are rights which

 
 

must be protected if man is to survive on the planet. These are the rights which
belong to all people so that members of all groups may be benefited. These are the
rights which do not vest in, nor is exercised by an individual alone, like tradi-tional
rights. Collective rights are exercised jointly rather than severally, but individuals
are the beneficiary. States are therefore required to create national and international
conditions favourable to the realization of collective rights for the well being of the
entire population. States are also required to cooperate with each other for
eliminating obstacles for the realization of collective rights.
Collective rights differ from traditional rights in the sense that traditional
rights vests in each and every individual of a group, collective rights do not vest in
them. They may be enjoyed by each and every individual of the society
collectively, as and when, they are made available by the Government or State.
However, there is an interdependent relationship between traditional and
collec-tive rights. There are certain traditional rights which cannot be exercised
outside of the collective context and certain individual rights can only be fully
realized through the protection of collective rights. It is to be noted that collective
rights evolve from traditional human rights especially those which are enunciated
in the Universal Declaration of Human Rights and the two international covenants.
Thus, it will not be incorrect to state that collective rights have their roots in the
Universal Declaration.
Collective rights are also called third generation rights or newly called
solidarity rights or new rights. They are called new rights because they cannot be
enforced by existing international machinery. Such rights include right to
devel-opment, right to peace, right to common heritage, right to self-determination
and right to safe environment. It is to be noted that collective rights have remained
mostly demanded rather than endorsed. None of the above collective rights except
right to self-determination, which has found place in the two international

 
 

cov-enants exists precisely in global treaty form. These rights therefore may (or
may not) evolve into accepted legal principles and specific legal rules.
Consequently, they do not communicate very much to States about obligatory
policies and certainly nothing very much about individuals. Some of c911ective
rights have been discussed in detail which as follows:

1. Right to Development: Right to development as a right is a particular

development process which enables all fundamental freedoms and rights to be
realized and expands the basic capacities and abilities of individuals to enjoy their
rights. The right to development includes full sovereignty over natural resources,
self-determination, popular participation in development, equality of opportunity
and the creation of favourable conditions for the enjoyment of other civil political,
economic, social and cultural rights.
2. Right of Self-Determination: Right of self-determination is a collective
human rights which is beneficial to all the groups and to all the individuals of the
territory. It is a collective right in the sense that this right does not vest and cannot
be exercised by an individual alone and realization of the right requires
international cooperation.

3. Right to Safe Environment: The right of pure, safe and decent

environ-ment is a collective right. Polluted environment affect physical as well as
mental health of human beings. Safe and adequate environment is therefore, one of
the means by which human rights can be protected and promoted.

Kinds of Human Rights

Human rights are indivisible and interdependently and therefore precisely
there cannot be different kinds of human rights. All human rights are equal in

 
 

importance and are inherent in ail human beings. The Universal Declaration of
Human Rights therefore did not categorize the different kinds of human rights. It
simply enumerated them in different articles. However, the subsequent
developments made in the human rights field under the United Nations system
make it clear that human rights are of two kinds, viz.; (1) Civil and Political
Rights, and (2) Economic, Social and Cultural Rights.

Civil and Political Rights.

Civil rights or liberties are referred to those rights which are related to the
protection of the right to life and personal liberty. They are essential for a person
so that he may live a dignified life. Such rights include right to life, liberty and
security of persons, right to privacy, home and correspondence, right to own
property, freedom from torture, inhuman and degrading treatment, freedom of
thought, conscience and religion and freedom of movement.
Political rights may be referred to those rights which allow a person to
participate in the Government of a State. Thus, right to vote, right to be elected at
genuine periodic elections, right to take part in the conduct of public affairs,
directly or through chosen representatives are instances of political rights.
The nature of civil and political rights may be different but they are
inter-related and interwoven, and therefore, it does not appear logical to
differentiate them. This reason alone led to the formulation of one covenant
covering both-civil and political rights into ore Covenant, i.e., International
Covenant on Civil and Political Rights.
These rights are the rights of the first generation which derive primarily
from the seventeenth and eighteenth century reformist theories which are
associated with the English, American and French revolutions. Civil and political
rights (also sometimes called freedom from) are the rights which may be termed as

 
 

negative rights in the sense that a government is required to abstain from doing
those activities that would violate them. Specifically, these rights protect citizens
from acts of murder, torture, cruel and unusual punishment, ex post facto
legislation, the denial of habeas corpus and imprisonment without due legal
process. Notable point in these rights is that they are capable of immediate and full
realization without significant costs being incurred.

Economic, Social and Cultural Rights

Economic, social and cultural rights (also called 'freedom to') are related to
the guarantee of minimum necessities of the life to human beings. In the absence of
these rights the existence of human beings is likely to be endangered. Right to
adequate food, clothing, housing and adequate standard of living and freedom from
hunger, right to work, right to social security, right to physical and mental health
and right to education are included in this category of rights These rights are
included in the International Covenant on Economic Social and Cultural Rights.
These rights sometimes called positive rights require active intervention, not
abstentions on the part of States. These rights are therefore counterpoint to the first
generation of civil and political rights, with human rights conceived more in
positive (right to) than negative (freedom from) terms. The enjoyment of these
rights requires a major commitment of resources and therefore their, realization
cannot be immediate as in the case of civil and political rights.
Economic, social and cultural rights are based fundamentally on the concept
of social equality. Realization of these rights, which is generally called the rights of
second generation has been somewhat slow in coming. They are clear only as

 
 

general principles and not as specific rules. However they have begun to come of
age.
Although the United Nations has recognised the above two sets of rights in
two separate Covenants, there is a close relationship between them. It has been
rightly realised especially by the developing countries that civil and political rights
can have no meaning unless they are accompanied by social, economic and cultural
rights. Thus, both the categories of rights are equally important and where civil and
political rights do not exist, there cannot be full realisation of economic, social and
cultural rights and vice versa. The relationship of the two categories of rights was
recognised by the International Human Rights Conference held in 1968 which
declared in the final proclamation that-
"since human rights and fundamental freedoms are indivisible, the full
realization of civil and political rights without the enjoyment of economic, social
and cultural rights is impossible."
The General Assembly in 1977 reiterated that all human rights and
fundamental freedoms are indivisible and interdependent and equal attention and
urgent consideration should be given to the implementation, promotion and
protection of both-civil and political rights and economic, social and cultural
rights.
The 2005 World Summit Outcome also stated that:-
'We affirm that all human rights are universal, indivisible, interrelated,
interdependent and mutually reinforcing and that all human rights must be treated
in a fair and equal manner, on the same footing and with the same emphasis. '

Protection of Human Rights under the United Nations

 
 

The signing of the UN Charter marked the formal realization that human
rights is a matter of international concern. It was signed in San Francisco on 26
June, 1945 and came into effect from 24 October, 1945.

(i) The Charter of United Nations

Article 1 lays down the purposes and principles of the United Nations,
which includes maintaining international peace and security; to take collective
measures to maintain peace; follow the principles of justice, international law,
equal rights and self-determination of peoples. One of its purpose is to 'achieve
international co-operation in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to race, sex, lan-guage,
or religion.
Article 13 1 (b) while stating the functions and powers of the General
Assembly mentions that it shall initiate studies and make recommendations for the
purpose of realization of human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion.
Articles 55 and 56 charge the United Nations and member states with
achieving inter-alia, universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language or
religion.
Article 62 while laying down the functions and powers of the Economic and
Social Council, states that it may make recommendations for the pmpose of
promoting respect for and observance of, human rights and fundamental freedoms
for all.
Article 68 says that the Economic and Social Council shall set up
commissions in economic and social fields and for the promotion of human rights.

 
 

Article 76 speaks on the basic objectives of the Trusteeship system and it

shall include encourage respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language, or religion, and to encourage
recognition of the interdependence of the peoples of the world.
The language of the Charter is vague and although the members pledge
themselves to the realistion of human rights they were not required to do so within
a particular time frame, The UN Charter acknowledges certain benefits which
individuals should enjoy. It does not confer rights upon them. (Fuji v. California
1952, International Law Reports 1952).
The UN Charter, however, has provided the requisite impetus for the further
protection and improvement of human rights. There ~ 88 international instruments
(declaration, resolution and conventions) adopted by the UN. So far to protect
these rights. Though, the Charter failed to define the fundamental freedoms and
human rights, nor did it provide any machinery to secure their' observance. The
subsequent UN instruments fulfilled this task.

(ii) Universal Declaration of Human Rights, 1948

It was adopted by the General Assembly on December 10, 1948 (at Geneva),
which elucidated the UN Charter provisions and defined expressly certain human
rights and fundamental freedoms which need to be protected. It may be noted that
'Human Rights Day' is also celebrated all over the world on December 10 the date
of the adoption of Declaration.

Public International Law

Article 1 of the Declaration provides that, "All human beings are born free
and equal in dignity and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood."

 
 

Article 2 says that everyone is entitled to all the rights and freedoms set
forth in this Declaration, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other states. No
distinction shall be made on the basis of political jurisdiction, or international
status of the country to which a person belongs.
The principle human rights enshrined in the Declaration, in its 30 Articles
are broadly divided into civil and political rights; economic, social and cultural
rights.

Civil and Political Rights: These are as follows:

Article 3: Right to life, liberty and security of persons.
Article 4: Freedom from slavery or servitude.
Article 5: Prohibition against tortme etc.
Articles 6-11: Right to equality before the law and other legal remedies.
Article 12: Right to privacy, family, home and correspondence.
Article 13: Right to freedom of movement and residence.
Article 14: Right to seek asylum.
Article 15: Right to nationality.
Article 16: Right to marry and raise a family. Article
17: Right to own property.
Article 18: Right to freedom of thought, conscience and religion.
Article 19: Right to freedom of opinion and expression.
Article 20: Right to freedom of peaceful assembly.
Article 21: Right to participate in the government of his country.

Economic, Social and Cultural Rights include: These are as follows:

Article 22: Right to social security.

 
 

Article 23: Right to work and free choice of employment.

Article 24: Right to reasonable limitation of working hours.
Article 25: Right to a good standard of living for personal and family's
health.
Article 26: Right to education.
Article 27: Right to enjoy cultural life and share in scientific achievement.

The concluding Articles recognize that everyone is entitled to a good social

and international order in which the rights and freedoms set-forth in the
Declaration can be fully realized (Article 28) and impress upon the duties and
responsibilities which the individual owes to the community (Article 29). Lastly,
Article 30 provides that nothing in the Declaration may be interpreted as implying
for any state, group, or person any right to engage in any activity or to perform any
act aimed at the destruction of any of the rights and freedoms set forth in the
Declaration.

The Declaration was originally conceived of, as a statement of objectives to

be achieved by governments and as such, not part of binding law. Though legally
not binding, the Declaration has gained considerable authority as a general guide of
fundamental rights and freedoms for the member nations and shaping the other
international instruments. As noted by Dr. Nagendra Singh: "The Declaration was
not a mere resolution of the General Assembly but a Constitution of the Charter
and had the dignity of the Charter."
Rules of the Declaration now have the status of customary international law.
The rights enshrined in the Declaration are set "as a common standard of
achievement for all peoples and all nations". States shall "strive by teaching and
education to promote respect for these rights and by progressive measures, national

 
 

and international, to secure their universal and effective recognition and

observance" (Preamble).

(iii) International Covenant on Civil and Political Rights, 1966

It was adapted by the General Assembly on 16 December, 1966 and came
into force on 23 March, 1976.
The Preamble of this Covenant says that "recognising that, in accordance
with the Universal Declaration of Human Rights, the ideal of free human beings
enjoying civil and political freedom and freedom from fear and want can only be
achieved if conditions are created whereby everyone may enjoy his civil and
political rights, as well as his economic, social and cultural rights.
The Covenant comprises of 53 Articles in VI parts. Specific substantive civil
and political rights are:
(i) Inherent right to life (Article 6).
(ii) Prohibition of torture, etc. or punishment (Article 7).
(iii) Prohibition of slavery, forced labour, etc. (Article 8).
(iv) Right to liberty and security, and freedom from arbitrary arrest or detention
(Article 9).
(v) Right of all persons deprived of their liberty to be treated with humanity and
dignity (Article 10).
(vi) Prohibition of imprisonment merely on the ground of inability to fulfill a
contractual obligation (Article II).
(vii) Right to liberty of movement and freedom to choose residence and right not to
be arbitrarily deprived of entering one's own country (Article 12).
(viii) Freedom of aliens lawfully in the territory of State party to the covenant from
arbitrary expulsion (Article 13).

 
 

(ix) Right to equality before the courts, right to a fair and public hearing and right
of a criminal offender to be presumed innocent until proved guilty (Article 14).
(x) Non-retroactive application of criminal law (Article 15).
(xi) Right to be recognized everywhere as a person before the law (Article 16).
(xii) Right to privacy, honour and reputation (Article 17).
(xiii) Freedom of thought, conscience and religion (Article 18).
(xiv) Right to freedom of opinion and expression (Article 19).
(xv) Prohibition of propaganda of war and advocacy of national racial or religious.
hatred constituting incitement to discrimination, hostility or violence (Article 20).
(xvi) Right of peaceful assembly (Article 21).
(xvii) Right to freedom of association including the right to form and join trade
unions (Article 22).
(xviii) Right to marry and to found a family (Article 23).
(xix) Right of protection to a child; right of every child to acquire a nationality
(Article 24).
(xx) Right of every citizen to take part in the conduct of public affairs, to vote and
to be selected, and to have access, on general terms of 'equality', to public services
(Article 25).
(xxi) Equality before the law (Article 26).
(xxii) Rights of ethnic, religious or linguistic minorities (Article 27).
It may be noted that the rights set forth in the Covenant are not absolute and are
subject certain imitations.

(iv) International Covenant on Economic, Social and Cultural Rights, 1966

The General Assembly adopted this Covenant on 16th December 1966 and it
came into force on 3rd January, 1976. It comprises 001 Articles divided into five
parts. Its preamble says that it considers the obligation of States under the. Charter

 
 

of the United Nations to promote universal respect for, and observance of, human
rights and freedoms.
It comprises of 31 Articles divided into five parts. The substantive rights
mentioned in it are:
(i) Right to work freely chosen (Article 6).
(ii) Right to enjoyment of just and favourable conditions of work (Article
17).
(iii) Right to form and join trade unions (Article 8).
(iv) Right to social security/social insurance (Article 9).
(v) Right relating to the protection of the family, motherhood, childhood and
young persons and right of free consent to marriage (Article 10).
(vi) Right to adequate standard of living (food, clothing and housing), and to
the continuous improvement of living conditions (Article 11).
(vii) Right to physical/mental health (Article 12).
(viii) Right to education including a plan for implementing compulsory and
primary education (Article 13).
(ix) Undertaking to implement the principle of compulsory education free for all
within a reasonable number of years (Article 14).
(x) Right to take part in cultural life, enjoy the benefits of scientific progress, and
benefit from the protection of moral and material interests resulting from any
scientific, literary or artistic production of which he is the author (Article 15).

Thus, the obligations are essentially programmatic and promotional. The

State Parties undertake to take steps to the maximum utilisation of its available
resources in order to achieve the full realization of the rights by appropriate means,
including particularly the adoption of legislative measures [Article 2(1)]. The
rights recognized are to be exercised on the basis of non-discrimination (Article

 
 

2(1)) However in relation to economic rights, developing countries "may determine

to what extent they would guarantee" such rights to non-nationals.
India has become a party to these two Covenants. It may be noted that the
two Covenants represent the first two generations of human rights. The "first
generation" consists of civil and political rights, mainly based upon natural rights
philosophy of the 18th century thinkers, like Rousseau. The "second generation"
consists of economic, social and cultural rights, which were recognized after the
advent of socialism in the 20th century. The emphasis in both has been on the
individual's rights. The Universal Declaration, which is the embodiment of the
rights of both these generations, gave them equal importance and made them
interdependent.
However, in the 1970s, the "third generation" rights emerged, which are
collective/group rights, such as the right to development, right to healthy human
environment, right to peace, and right of self-determination. Article 27 of the
Covenant on Civil and Political Rights also recognizes group rights for minorities.

International Bill of Human Right

The International Bill of Rights is an informal name given to the three
international treaties and conventions established by United Nations. It consists of
the Universal Declaration of Human Rights (adopted in 1948), the International
Covenant on Civil and Political Rights. 1966 and both the Optional Protocols to it
and the International Covenant on Economic, Social and Cultural Rights 1966.
The International Bill of Rights has became the backbone of human rights
jurisprudence and finds an appropriate place in the legislations and constitutions of
many new nations (e.g. Part III of the Indian Constitution relating to Fundamental
Rights).

 
 

The preamble of the Universal Declaration of Human Rights refers to the

"faith in fundamental human rights, in the dignity and worth of the human person
and in the equal rights of men and women" and their determination "to promote
social progress and better standards of life in larger freedom." It also refers to the
pledge taken by member states, "to achieve, in cooperation with the United
Nations, the promotion of universal respect for the observance of human rights and
fundamental freedoms". Through the preamble, the General Assembly proclaimed
the Universal Declaration of Human Rights "as a common standard of achievement
for all peoples and all nations to the end that every individual and every organ of
the society, keeping this declaration constantly in mind, shall strive by teaching
and education to promote respect for these rights and freedoms and by progressive
measures, national and international to secure their universal and effective
recognition and observance, both among the peoples of Member States themselves
and among the peoples of territories under their jurisdiction".
The Declaration is neither addressed to nations nor to member State Nations
The rights proclaimed in it may be classified into following four categories:
(i) General-Articles I and 2.
(ii) Civil and Political-Articles 3 to 21.
(iii) Economic, Social and Cultural rights-Articles 22 to 27.
(iv) Conclusion-Articles 28 to 30.

(v) The International Convention on the Elimination of all forms of Racial

Discrimination
This is one of the major international human rights instruments drawn up by
the United Nations, this Convention provides for the establishment of a monitoring
and follow up mechanism and was adopted on 21 December 1965. The States
Parties have agreed to this Convention considering that Universal Declaration of

 
 

Human Rights proclaims that all human beings are born free and equal in dignity
and rights and that everyone is entitled to all the rights and freedoms set out
therein, without distinction of any kind, in particular as to race, colour or national
origin.
(
vi) Convention on the Rights of the Child
The adoption of the Convention on the Rights of the Child on 20 November
1989 was the culmination of a long-standing United Nations concern for this
aspect of human rights. It has been stated in its preamble that the peoples of the
United Nations have, in the Charter, reaffirmed their faith in fundamental human
rights and in the dignity and worth of the human person, and have determined to
promote social progress and better standards of life in larger freedom.
(vii) The Convention on the Elimination of all Forms of Discrimina-tion
Against Women
This Convention was adopted on 18 December, 1979 and came into force on
3 September 1981. It is stated that it is the obligation of the States Parties to ensure
the equal rights of men and women to enjoy all economic, social, cultural, civil and
political right.

 
 

THE VIENNA DECLARATION AND PROGRAMME OF ACTION

Forty-five years after the adoption of the Universal Declaration of Human

Rights and twenty five years after the Tehran International Conference on Human
Rights, the General Assembly organised the World Conference on Human Rights
in Vienna from 14 to 25 June, 1993 to review and assess the progress that had been
made in the field of human rights and to identify obstacles to further progress in
this area and ways in which they could be overcome. The Vienna Declaration and
Programme of Action emphasised that action for the promotion and protection of
economic, social and cultural rights is as important as action for civil and political
rights.
This World Conference on Human Rights considered that the promotion and
protection of human rights is a matter of priority for the international community.
It helds that enhancement of international cooperation in the field of human rights
is essential for the full achievement of the purposes of the United Nations.
It further says that all people have the right of self determination. By virtue
of that right they freely determine their political states, and freely pursue their
economic, social and cultural development. The human rights of woman and of the
girl-child are an inalienable, integral and indivisible part of universal human rights.
The full and equal participation of woman in political, civil, economic, social and
cultural life, at the national, regional and international levels, and the eradicating of
all forms of discrimination on grounds of sex are priority objectives of the
international community. Gender-based violence and all forms of sexual
harassment and exploitation, including those resulting from cultural prejudice and
international trafficking, are incompatible with the dignity and worth of the human
person, and must be eliminated.

 
 

The World Conference on Human Rights recommends increased co-

ordination in support of human rights and fundamental freedoms within the United
Nations system. It considers the elimination of racism arid 'racial discrimination
and promote equality, dignity and tolerance. It recommends that priority be given
to national and international action to promote democracy, development and
human rights. It considers human rights education, training and public information
essential for the promotion and achievement of stable and harmonious relations
among communities and for fostering mutual understanding, tolerance and peace.

Optional Protocol to the International Covenant on Civil and Politi-cal Rights

(1966)
The States Parties to the present Protocol,
Considering that in order further to achieve the purposes of the Covenant on
Civil and Political Rights (hereinafter referred to as the Covenant) and the
implementation of its provisions it would be appropriate tc enable the Human
Rights Committee set up in Part IV of the Covenant (hereinafter referred to as the
Committed to receive and consider, as provided in the present Protocol,
communications from individuals claiming to be victims of violations of any of the
rights set forth in the Covenant.
Have agreed as follows:
Article 1
A State Party to the Covenant that becomes a party to the present Protocol
recognizes the competence of the Committee to receive and consider
communications from individuals subject to its jurisdiction who claim to be
victims of a violation by that State Party of any of the rights set forth in the
Covenant. No communication shall be received by the Committee if it concerns a
State Party to the Covenant which is not a party to the present Protocol.

 
 

Article 2
Subject to the provisions of Article 1, individuals who claim that any of their
rights enumerated in the Covenant have been violated and who have exhausted all
available domestic remedies may submit a written communication to the
Committee for consideration.

Article 3
The Committee shall consider inadmissible any communication under the
present Protocol which is anonymous, or which it considers to be an abuse of the
right of submission of such communications or to be incompatible with the
provisions of the Covenant.

Article 4
1. Subject to the provisions of Article 3, the Committee shall bring any
communications submitted to it under the present Protocol alleged to be violating
any provision of the Covenant.
2. Within six months, the receiving State shall submit to the Committee
written explanations or statements clarifying the matter and the remedy, if any, that
may have been taken by that State.

Article 5
1. The Committee shall consider communications received under the present
Protocol in the light of all written information made available to it by the
individual and by the State Party concerned.

 
 

2. The Committee shall not consider any communication from an individual

unless it has ascertained that:
(a) The same matter is not being examined under another procedure of
international investigation or settlement;
(b) The individual has exhausted all available domestic remedies
This shall not be the rule where the application of the remedies is unreasonably
prolonged.
3. The Committee shall hold closed meetings when examining
communications under the present Protocol.
4. The Committee shall forward its views to the State Party concerned and to
the individual.
Article 6
The Committee shall include in its annual report under Article 45 of the
Covenant a summary of its activities under the present Protocol.
Article 7
Pending the achievement of the objectives of resolution 1514 (XV) adopted
by the General Assembly of the. United Nations on 14 December, 1460 concerning
the Declaration on the Granting of Independence to Colonial! Countries and
Peoples, the provisions of the present Protocol shall in no way limit the right of
petition granted to these peoples by the Charter of the United Nations and other
international conventions and instruments under the United. Nations and its
specialized agencies.
Article 8
1. The present Protocol is open for signature by any State which has signed
the Covenant.

 
 

2. The present Protocol is subject to ratification by any State which has

ratified or acceded to the Covenant. Instruments of ratification shall be deposited
with the Secretary-General of the United Nations.
3. The present .Protocol shall be open to accession by any State which has
ratified or acceded to the Covenant.
4. Accession shall be effected by the deposit of an instrument of accession
with the Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all States which
have signed the present Protocol or acceded to it of the deposit of each instrument
of ratification or accession.
Article 9
1. Subject to the entry into force of the Covenant, the present Protocol shall
enter into force three months after the date of the deposit with the Secretary-
general of the United Nations of the tenth instrument of ratification or instrument
of accession.
2. For each State ratifying the present Protocol or acceding to it after the
deposit of the tenth instrument of ratification orins1rUmentofaccession, the present
Protocol shall enter into force three months after the date of the deposit of its own
instrument of ratification or instrument of accession.
Article 10
The provisions of the present Protocol shall extend to all parts of federal
States without any limitations or exceptions.

Article 11
1. Any State Party to the present Protocol may propose an amendment and
file it with the Secretary-General of the United Nations. The Secretary-General
shall thereupon communicate any proposed amendments to the States Parties to the

 
 

present Protocol with a request that they notify him whether they favour a
conference of States Parties for the purpose of considering and voting upon the
proposal. In the event that at least one-third of the States Parties favours such a
conference, the Secretary-General shall convene the conference under the auspices
of the United Nations. Any amendment adopted by a majority of the States Parties
present and voting at the conference shall be submitted to the General Assembly of
the United Nations for approval.
2. Amendments shall come into force when they have been approved by the
General Assembly of the United Nations and accepted by a two-thirds majority of
the States Parties to the present Protocol in accordance with their respective
constitutional processes.
3. When amendments come into force, they shall be binding on those States
Parties which have accepted them, other States Parties still being bound by the
provisions of the present Protocol and any earlier amendment which they have
accepted.

Article 12
I. Any State Party may denounce the present Protocol at any time by written
notification addressed to the Secretary-General of the United Nations. Denuncation
shall take effect three months after the date of receipt of the notification by the
Secretary-General.
2. Denunciation shall be without prejudice to the continued application of
the provisions of the present Protocol to any communication submitted under
Article 2 before the effective date of denunciation.

Article 13

 
 

Irrespective of the notification made under Article 8, paragraph 5, of the

present Protocol, the Secretary-General of the United Nations shall inform all
States referred to in Article 48, paragraph I of the Covenant of the following
particulars:
(a) Signatures, ratifications and accessions under Article 8;
(b) The date of the entry into force of the present Protocol under Article 9
and the date of the entry into force of any amendments under Article 11;
(c) Denunciations under Article 12.
Article 14
1. The present Protocol, of which the Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited in the archives of the United
Nations.
2. The Secretary-General of the United Nations shall transmit certified
copies of the present Protocol to all States referred to in Article 48 of the
Covenant.

Implementation and Monitoring of Human Rights

There cannot be an international protection of human rights unless there is a
strong and effective machinery for its implementation. Implementation is key to
making the system of international protection of human rights effective. But the
protection of human rights in international level is a difficult problem because of a
variety of reasons. Firstly, the International Court of Justice is open to States only.
It implies that individuals have no access to the Court. Thus, it has always refused
to entertain the petitions and requests which have often been addressed to it by
individuals. Secondly, the jurisdiction of the International Court of Justice depends
upon the consent of the States involved, and this has been done by few States to
disputes involving human rights. Thirdly, even if the International Court in a few

 
 

cases is able to render judgments against the State, which violates human rights,
there is no international police to enforce the decisions of the Court. No doubt, the
Security Council has been empowered to enforce the decisions of the Court against
a party to a case which has failed to perform the obligations under a judgment of
the Court, if the matter is brought before it by the aggrieved party. But it is
regarded as a political body and its recommendations are some times motivated by
political considerations. If the barrier of veto is not crossed, the Council becomes
incompetent to take any decision against the State which has failed to comply with
the decision of the Court. Fourthly, although the International Law of Human
Rights has fostered a growing political and legal support for the protection of
human rights, many States still regard that enforcement of human rights is an
interventionist act. Consequently, implementation of international Human Rights
Law, depends largely on voluntary compliance by the States. Security Council, of
Course, can take collective action against a State if it decides that violations of
human rights by a State is likely to endanger" international peace and security.

The above limitations on the implementation of human rights at international

level makes it clear that the most effective way to implement human rights vests
within the legal systems of the different States. Domestic law of a State is required
to provide an effective system of remedies for violations of international human
rights obligations. International Human Rights Law has not become that strong so
as to enforce and implement human rights violations committed by a State.
However, a variety of international bodies have been monitoring and dealing with
the cases of violations of human rights. A number of committees, working groups
and special rapporteurs have been set up to monitor the violations of human rights.
Monitoring mechanism may broadly be divided into two categories which are as
follows:-

 
 

(I) Conventional Meeba.ism: There are at·1east eight core human rights
treaties which have set committees to perform the task of monitoring State's parties
compliance with their obligations which are U follows:-
(1) Human Rights Committee (HRC) by the International Covenant on Civil
and Political Rights (ICCPR).
(2) Committee on Economic, Social and Cultural Rights (CESCR) by the
International Covenant on Economic, Social and Cultural Rights (ICESCR).
(3) Committee on the Elimination of Discrimination Against Women
(CEDAW) by the Convention on the Elimination of All Forms of Discrimination
Against Women.
(4) Committee Against Torture (CAT) by the .Convention Against Torture
and other Cruel, Inhuman and Degrading Treatment or Punishment.
(5) Committee on the Rights of the Child (CRC) by the Convention on the
Rights of the Child.
(6) Committee on the Racial Discrimination (CRD) by the Convention on
the Elimination of All Forms of Racial Discrimination.
(7) Committee on the Rights of Migrant Workers and Members of Their
Families (CMW) by the Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families.
(8) Committee on the Rights of Persons with Disabilities by the Optional
Protocol to the Convention on the Rights of Persons with Disabilities.

The above Committees monitor the State's obligations through a dialogue

with the representatives of each of the State's parties on the basis of a detailed
report (an initial report followed by periodic reports at approximately four to five
year interval). The principal outcome of this process is the record of the resulting
dialogue and the Committee's own summary of the key points which provide an

 
 

opportunity for individual member or the Committee as a whole, to indicate the

extent to which the State party appears to be in compliance or otherwise. Some of
these Committees such as HRC, CEDAW, CAT, CRD and CMW deal with
complaints from individuals alleging violations of their rights under the treaty
concerned and some of these committees deal with inter-State complaints such as
HRC, CAT, CRD and CMW.

(2) Extra Conventional Mechanism: In addition to treaty mechanism the

most important procedures designed to protect human rights have been established
within the United Nations Commission on Human Rights and its Sub-Commission
on the Protection of Human Rights (earlier named as Sub-Commission on
Prevention of Discrimination and Protection of Minorities). The ad hoc nature of
the special procedures of the Commission on Human Rights allows for a more
flexible response to serious human rights violations than the treaty bodies. Experts
entrusted with special human rights mandates act in their personal capacity and are
designated either as Special Rapporteurs, Representatives or independent experts.
When several experts are given a mandate a group is send which is known as
working group. These experts examine, monitor and send report to the
Commission either on human rights situations in specific countries and territories
or on global phenomena that cause serious human rights violation worldwide.
The activities of the rapporteurs and groups include seeking and receiving
information’s, asking Governments to comment on information concerning
legislation or official practices and forwarding to Governments for clarification
alleging about urgent cases that fall within their mandates. The annual report of
each rapporteur or group contains information on all of the above activities, as well
as summaries of correspondence, details of meetings with sources of information
and governments and general analysis and recommendations.

 
 

Resolution 1503 (XLVIII) adopted by the Economic and Social Council in

1970 allows individuals and non-governmental agencies such as non-governmental
organisations to make petitiol1s to the Human Rights. Commission and its Sub
Commission on Prevention of Discrimination and Protection of Minorities on
"situations which appear to reveal a consistent pattern of gross and reliably attested
violations of human rights".
The Sub-Commission was authorized to appoint a working group consisting
of not more than five of its members for a period not exceeding ten days
immediately before the sessions of the Sub-Commission to consider all
communications, including replies of Governments thereon.
The above monitoring mechanisms show that some of them relate to general
situations in a country and others to individual complaints. Some are concerned
with the whole field of human rights, others with specific types of violations. Their
procedure also varies depending upon their mandate. It is to be noted that the
various monitoring procedures adopted by the Commission on Human Rights have
not been very successful in curbing the human rights violations which have been
taking place in different parts of the world may be due to its inherent weaknesses.
It would therefore not be inappropriate to state that while U.N. regime is a strong
promotional one but it has weak monitoring procedures.
The question whether the idea of international implementation of human
rights "violates Article 2, paragraph 7 of the United Nations Charter attracted the
attention of many for a long time. The USSR and its allies have always maintained
that the establishment of an international organ for the implementation of human
rights violated Article 2, paragraph 7 of the Charter and it is purely a domestic
matter. Kelsen seems to be of the view that the question of assuring or protecting
human rights is a matter which is essentially within the domestic jurisdiction of a
State and consequently within the prohibition of Article 2, paragraph 7.

 
 

The above viewpoint seems to have. ignored the far-reaching changes that
have taken place in international law as regards human rights. Resort to
international techniques in the promotion of human rights is justified because of
the following reasons: firstly, international efforts are essential to the search for
world peace which in turn has an intrinsic link with the protection of human rights;
secondly, in today's world which is interdependent, successful efforts to promote
human rights, particularly in the area of economic and social rights may require
physical resources, technology, and expertise beyond a society's internal
capabilities and, therefore, in such cases only international assistance can permit
real progress; and thirdly, to the extent that many human rights denials result from
the action or inaction of governments themselves, inteI1lal pressures for reform
having proved ineffective and, therefore, the only hope for change in such
circumstances may lie in international persuasion or pressure. Now it is universally
agreed that human rights are proper subjects of international concern. It has been
affirmatively assumed by the United Nations Charter, international conventions,
declarations and more than three decades of international practice. Many eminent
authorities like Lauterpacht, Jessup, Quincy Wright, Myres McDougal and Paul
Guggenheim also share the view that human rights are no longer within the
domestic jurisdiction prohibition. The existing and the future international
measures for the protection of human rights are, therefore, justified.
It has earlier been pointed out that the Civil and Political Rights Covenant;
the Economic, Social and Cultural Rights Covenant and the Optional Protocol of
the former are the crux of the international efforts aimed at the protection of human
rights. The Covenant on Civil and Political Rights establishes as the principal
international organ of its implementation, the Human Rights Committee' which
consists of eighteen persons of high moral character and recognized competence in
the field of human rights, consideration being given to the usefulness of the

 
 

participation of some persons having legal experience, sensing 10 their personal

capacity. According to the draft of the Commission on Human Rights, the
members of the Human Rights Committee should be elected by the International
Court of Justice but the Covenant envisages that the members of the Committee
shall be elected by the States parties. In the election of the Committee,
consideration shall be given to equitable geographical distribution of membership
and to the representation of the different forms of civilization as well as of the
principal legal systems.
The functional aspects of the implementation machinery contained in the
international covenants on human rights may be discussed as follows.
The Reporting Procedure Mechanism
Under the Covenant on Economic, Social and Cultural Rights and the
Covenant on Civil and Political Rights the systems, the States Parties are obligated
to furnish their reports within one year of the entry into force of these covenants.
Under the Covenant on Economic, Social and Cultural Rights, the UN Secretary
General shall transmit the reports to the Economic and Social Council which may
in turn transmit the reports to the Commission on Human Rights. But under the
Covenant on Civil and Political Rights, the Secretary General shall transmit the
reports to the. Human Rights Committee for consideration. The Committee shall
study the reports and shall transmit these with such general comments as it may
consider appropriate, to the States Parties.

The powers of the Human Rights Committee with regard to reporting system
are similar to those of the Committee on the Elimination of Racial Discrimination
which took office in 1970 and bas since administered the reporting system
established under Article 9 of the United Nations Racial Discrimination
Convention.

 
 

The Inter-State Complaints System

The usefulness of inter-State complaints system has been doubted by many
for a long time. It is, therefore, doubtful whether a State would be willing to take
up in an international forum a matter which did not concern its own citizens and
thereby jeopardize its friendly relations faith the State against which the complaint
was directed. However, an inter-State complaint is brought when the complaining
State has political reasons of its own and it- cannot be expected that a State will
have recourse to this remedy exclusively in the interest of the citizens of a foreign
country.
In Article 41 of the Covenant on Civii and Political Rights, a more neutral
word, 'communications', is used in place of the word 'Complaints' which was used
in the original Afro-Asian draft. The procedure envisaged by this Article can be set
in motion- only by a State which has itself made a declaration recognizing the
competence of the Committee to receive and consider communications to the effect
that a State Party claims that another State Party is not fulfilling its obligations
under the present Covenant. Thus, the system of inter-State communications
operates on a reciprocal basis.

Inter-State Communications
Paragraph (a) of Clause (1) of Article 41 of the Covenant on Civil and
Political Rights provides that reference to the Human Rights Committee shall be
preceded by the communication by the communicating State to another State Patty
which is alleged to have not given effect to the provision of this Covenant. Within
three months after receipt of the communication, the receiving State shall afford
the State which sent the communication an explanation or any other statement in
writing clarifying the matter. Paragraph (b) stipulates that if the matter is not

 
 

adjusted six months after the initial communication referred to in paragraph (1),
either State shall the right to refer the matter to the Committee.

Proceedings before the Human Rights Committee

The main function of the Human Rights Committee is to make available its
good offices to the States Parties concerned with a View to friendly solution of the
matter on the basis of respect for human rights and fundamental freedoms as
recognized in the Covenant. The Committee may call upon the parties concerned to
supply any relevant information. The State Parties concerned have the right to be
represented when the matter is being considered in the Committee to make
submissions orally or in writing. The Committee shall submit its report within
twelve months of the receipt of notification for reference of the matter to it. The
report shall be confined to the brief statement of the facts and the solution reached
if the solution is reached, and the brief statement of the facts, the written
submissions and record of the oral submissions made by the State Parties if
solution is not reached. The report shall be communicated to the State Parties.

Ad Hoc Conciliation Commission

In 1950, the proposal for the establishment of ad hoc bodies advanced by the
United Kingdom and the United States was rejected by the Commission on Human
Rights. But the proposal was partly accepted in 1966 by the General Assembly
which to some extent entrusted the ad hoc Conciliation Commission the
responsibility for implementation process.
The members of the ad hoc Commission shall serve in their personal
capacity and shall not be nationals of the State Parties concerned, or of a State not
party to the Covenant, or of a State Party which has not made a declaration under
Article 41. In other words, the members must be nationals of State Parties to the

 
 

Covenant, which have made declarations under Article 41 but must not be
nationals of the parties to the dispute. The main function of the Commission is to
make its good offices available to the State Parties concerned with a view to an
amicable solution of the matter on the basis of respect for the Covenant, if a
matter- referred to the Committee in accordance with Article 41 is not resolved to
the satisfaction of the State Parties concerned. If an amicable solution to the matter
on the basis of respect for human rights as recognized in the Covenant is reached,
the Commission shall confine its report to a brief statement of the facts and of the
solution reached. If such a solution is not reached, the Commission's report shall
embody its findings on all questions of fact relevant to the issues between the State
Parties concerned, as well as its views on the possibilities of amicable solution of
the matter.

Individual Communications
The traditional belief that individuals are not subjects of international law
does not hold good in the light of various developments in international law
affected by the changed circumstances. The Optional Protocol to the Covenant on
Civil and Political Rights is one of such developments inasmuch as it provides for
the rights of individuals to petition the Human Rights Committee which was not
contained in the draft Covenant submitted by the Commission of Human Rights in
1954.
It is worth noticing that the communications addressed to the Human Rights
Committee is not an actio popularis and, therefore, only an individual claiming to
be a victim of violation can make such a communication. In thi!! respect, the
procedure of individual communications differs from the inter-State
communications procedure inasmuch as under the latter procedure, not only the
State claiming to be a victim of the violation but even the other States who do not

 
 

claim to be victims can also make such communications in the general interest of
maintaining the international standard set by the international instrument.
Such an individual right of petition is also contained in the Racial
Discrimination Convention and the European Convention on Human Rights. The
European Convention provides for petitions from any person, or any
non-governmental organization or any group of individuals and the Racial
Discrimination Convention provides for communication from individuals or
groups of individuals. But the Optional Protocol speaks of only individuals and,
therefore, even a group of individuals can also make such communication although
their right of communications is not expressly stipulated in the Protocol.

Human Rights Council

The World leaders-Heads of State and Government met at United Nations
Headquarters in New York from September 14 to 16,2005 and adopted a document
at the end of the Summit known as 2005 World Summit Outcome. The Outcome
document contains a number of global issues on which the leaders agreed to take
action. They agreed to create a U.N. Human Right Council which shall be
responsible for the protection of all human rights and fundamental freedoms for all
without distinction of any kind and in a fair and equal manner.
In order to implement the above provision of the Outcome document, the
General Assembly on March 15, 2006 adopted a resolution to establish the Human
Rights Council, based in Geneva, in replacement of the Commission on Human
Rights. The Council shall be a subsidiary organ of the General Assembly.
The Human Rights Council shall consist of 17 members who shall be elected
directly and individually by secret ballot by the majority of the member of the,
General Assembly. The membership shall be based on equitable geographical
distribution. Membership in the Council shall be open to all member States of the

 
 

United Nations. While electing members of the Council, Member States shall take
into account the contribution of candidates to the promotion and protection of
human rights. The Assembly, by a two-thirds majority of members present and
voting, could suspend the rights of membership of a Council member who commits
gross and systematic violations of human rights. The members of the Council will
serve for a period of three years and shall not be eligible for immediate re-election.
The first election of the Council Members took place on May 9, 20Q6.

The Council shall perform the following functions:

(a) It shall promote human rights education and learning as well as advisory
services, technical assistance and capacity building, to be provided in consultation
with and with the consent of Member States concerned;
(b) It shall serve as a forum for dialogue on thematic issues on all human
rights;
(c) It shall make recommendations to the General Assembly for the further
development of International Law in the field of human rights;
(d) It shall promote the full implementation of human rights obligations
undertaken by States and follow up to the goals and commitments related to the
promotion and protection of human rights emanating from United Nations
Conferences and Summits;
(e) It shall undertake a universal periodic review, based on objective and
reliable information, of the fulfillment by each State of its human rights obligations
and commitments in a manner which ensures universality of coverage and equal
treatment with respect to all States;
(f) It shall contribute, through dialogue and cooperation, towards the
prevention of human rights violations and respond promptly to human rights
emergencies;

 
 

(g) It shall work in close cooperation in the field of human rights with
Governments, regional organisations, national human rights institutions and civil
society;
(h) It shall make recommendations with regard to the promotion and
protection of human rights;
(i) The Council shall submit an annual report to the General Assembly;
(j) The Council shall assume the role and responsibilities of the Commission
on Human Rights relating to the work of the Office of the United Nations High
Commission for Human Rights.

European Convention on Human Rights

The Statute of the Council of Europe, established by the Congress of Europe
consisting of members who were like-minded and have a common heritage of
political traditions, ideals, freedom and the rule of law', stressed that the
maintenance and promotion of human rights were one of the means to achieve the
ultimate objective of European unity. The negotiation within the Council led to the
adoption of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) on November 4, 1950. The Convention was
signed by the members of the Council. It came into force on September 3, 1953.
The Convention in the year 2000 had 41 contracting States.

Protocols to the European Convention

The European Convention has eleven protocols. These protocols have either
amended the Convention or added the rights enshrined in the Convention which
are as follows:
(1) Protocol No. 1 was signed on March 20, 1952 which added four new
articles providing for certain rights and freedoms such as right to peaceful

 
 

enjoyment of one's possessions and right to education and right to free elections.
The Protocol came into force on May 18, 1954.
(2) Protocol No.2, signed on May 6, 1963 provided that the Court of Human
Rights may at the request of the Committee of Ministers give advisory opinion on
legal questions concerning the interpretation of the Convention and Protocol. It
came into force on September 21, 1970.
(3) Protocol NO.3 signed on May 6, 1963, amended Articles 29, 30 and 34
of the Convention and abolished the system of Sub-Commission. It came into force
on September 22, 1970.