Chapter-5 Law of the sea # Introduction (UNCLOS, 1982) -It evolved during the time of Grotius. During the 19th century the law of sea only dealt with the disputes related to maritime zones that included territorial sea, contiguous zone and high seas. In the 20 th century with the increase of need to capture more and more area of the sea emerged and there were conflicts among those who were the dominant states and those who were trying to save their economic interest. Emergence of new Asian and African countries and to make use of the minerals underneath the sea increased the disparity among the nations. There was a dire need that suited the interest of all the nations, whether developing or developed. -Two U.N. conferences were held in Geneva in 1958 and 1960 (1) first included convention on Territorial sea and contiguous zone, convention on High seas, Convention of fishing and conservation of living resources and convention on continental shelf. (2) Second included breadth of the territorial sea but it failed to achieve success -Third U.N. Conference (UNCLOS-III)(1) This considered many aspects related to Law of the sea. As a result The Convention on the Law of the sea, 1982 came into force in 1994. India also signed the UNCLOS in 1982, however, ratified the convention on 1995. #Territorial sea/waters/Maritime Belt/Maritime Zone -Also called Maritime belt or Territorial sea or Maritime zone. It is that belt of sea that is adjacent to coastal state and the state exercises its sovereignty. It is different from internal waters as the people have a no right to innocent path to the other states and is restricted within the boundaries of state. (1) Breadth of territorial sea-Earlier the breadth was only up to that distance which a fired canon could shot and at that time it was 3 nautical miles. With the development of science, this concept has to be changed. -As per Art. 3 of Convention the breadth of territorial sea is 12 miles from the baseline. -Article 5 says that the normal baseline for measuring the breadth of territorial sea is the low water line and where the coastline is complicated, there the straight line method is used. -Case-Angelo Norwegian Fisheries Case-The dispute was between Norway and U.K. which was related to the straight baseline method adopted by Norway because of its indented coastline. The U.K. was opposing the method adopted by Norway and contended that the proper method that should have been adopted by Norway was Low Water Line. The ICJ held that the use of the method depends on the geographical, historic and economic consideration of any nation. As per the geography, the coastline of Norway is indented and cut into various part and using the straight baseline method in which, appropriate points are selected on different island and then these points are joined with each other with a straight line, was a good method. If we see historically, the Norway has been following this method for a very long time. Economically, the people of the Norway earn their livelihood from the territorial sea by fishing. The rule of Anglo-Norwegian Fisheries in incorporated in Article 7 of UNCLOS. In India also the position is same and the territorial sea stretches to 12 nmi from the baseline. (2)Rights of States over Territorial sea-The state enjoys sovereign powers over the territorial sea. It also enjoys such powers over the air space that extends up to territorial sea and the bed and sub-soil. Only the state is authorized to use the minerals and other useful products within the its territorial sea limits. However, there is an exception to it which is of*Right to Innocent Passage-Article 17 of UNCLOS specified that ships of all states enjoy a right of innocent passage through the territorial sea. The term passage means as passing through the territorial sea from high seas to high seas, and proceeding to or from port. Entry upon the territorial sea for any other purpose is not ‘passage’ -Article 18 describes “Passage” -Article 19 describes “Innocent” -Article 20 describes “Any ship, vessel while passing through the territorial sea of some other state, shall show their flags. In case of submarines, they should surface and show their flag. 1
-Article 23 describes “Ships, vessels or submarines, taking nuclear/noxious substance, shall carry with them, the documents and shall observe special precautionary measures. -Article 24 describes “No state shall hamper the innocent passage of ship of any of the state through the territorial sea. -Coastal states consider passage of warship as infringement of their sovereignty or a disturbance to national security. #Contiguous Zone-It extends to 24 nautical miles including the territorial sea stretch of 12 nautical miles from the baseline. In other words we can say that this zone start from where the territorial sea ends and it extends up to 12 nautical miles. The state enjoys only police and revenue jurisdiction and not absolute sovereignty, over this zone. The state has control over these waters and can impose and enforce laws in four specific areas viz. (1) pollution (2) taxation (3) customs and (4) immigration and can punish the infringement of the law. Thus, the state can impose only certain restrictions over this zone. This concept developed die to the inability of coastal states to ensure effective protection of all its interest because of the limited breadth of territorial sea. *Note-India also follows the same rule as is described in Article 5 of Maritime Zone Act, 1976. But in contradistinction, India has included ‘security’ amongst the purpose of contiguous zone and the authority of Indian Govt. is much greater as it can exercise control and can take cognizance of any offence. #Continental Shelf-( got sanctity in Geneva Convention, 1958)-It is the natural prolongation of the land territory to the continental margin’s outer edge or 200 nautical miles from the coastal state’s baseline, which ever is greater. It is the extension of the land territory beneath sea. It is the submerged landmass. -Article 2 of Geneva Convention specifically allows only the coastal state to explore and exploit the natural resources with its continental shelf. -Article 76-85 of UNCLOS lays some provisions regarding the Continental shelf which are:(1) Provision for revenue sharing in respect of exploitation beyond the 200 nautical miles limit (2) Limit of continental shelf is the outer edge of the continental margin or 200 nautical miles, whichever is more (3) The view about delimitation of the Continental Shelf has been changing and the door has been left open for development of case law in this field. The issue of delimitation is controversial because:(1) Geneva Convention used equidistance special circumstances rule (2) North Sea Continental shelf case (3) Anglo-French continental shelf arbitration Etc. -Article 6 of Indian Maritime Zone confers certain rights to Indian coasts which are:(1) Right to exploration, exploitation, conservation and management of all resources within the limit of continental shelf (2) Right to construct and maintain artificial islands, off-shore terminals etc. (3) Right to scientific research (4) Right to protect marine environment and control pollution #Exclusive Economic Zone-(is the product of UNCLOS, 1982)-Article 57 says that is shall not extend beyond 200 nautical miles from the coast baseline from which the territorial sea is measured. It comprises of two categories:(1) Water column (2) Seabed underlying water column. -Right mentioned under Article 57 given to coastal states(1) Right to exploration, exploitation, conservation and management of all natural resourcesm whether living or non-living, of seabed and sub-soil and super adjacent waters. (2) Right to construct, use and maintain artificial islands, installation and structures and off-shore terminals etc. (3) Right to scientific research (4) Right to protect marine environment and control pollution (5) Other rights and duties provided for in the Convention. -Rights to other states related to the EEZ and the states shall strictly comply with thes(1) Freedom to navigate (2) Freedom of air space (3) Laying of submarine cables and pipes etc. 2
-In India, Central Government is empowered to declare any area of EEZ as a designated area. In Maritime Zones of India, regulates the fishing by foreign vessels in the maritime zones of India and such provision is not there in UNCLOS.
High Seas-is that part of the sea which is beyond national jurisdiction. As per Article 86 UNCLOS, it is that part of the sea which is not the part of EEZ. Thus Territorial water, internal water and EEZ are excluded from the limit of the High seas. -Article 87 UNCLOS says that high seas are open to all states whether coastal or landlocked and the rights to the states are as follows:(1) Right to navigate (2) Right of overflight (3) Right to lay submarine cables and pipelines (4) Right to fishing (5) Right to scientific research (6) Right to construct artificial islands/installation permitted under International law (1) Right of Search and seizure on High seas-All the ship should carry the flag flying of their respective state. Warships are immune in this area and this immunity is only for ship being used for government noncommercial service. (2) Right to Hot pursuit-If any ship violates the laws of any coastal state, then the coastal state is permitted to undertake hot pursuit. The ship should be with Territorial sea/contiguous zone/EEZ/Continental shelf. The pursuit may only be commenced after giving the other ship a visual or auditory signal to stop. The pursuit can only be undertaken by warship, military aircraft or any ship on government duty. If the hot pursuit is broken, then it can’t be resumed. Also, if the ship which is being pursued enters the territorial sea of its own state or any other third state, then the pursuit can’t continue. (3) Right of Visit- Any ship can be check if there is a suspicion that the ship is engaged in piracy, slave trade, unauthorized broadcasting or the ship is without nationality or misrepresenting the flag or refusing to show its 3
flag. Their papers can be checked and if not found guilty then they should be compensated for any damage caused.
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Chapter-3 Relationship b/w International Law and Municipal Law Municipal Law-is a law of a particular nation which operates within its jurisdiction upon all persons, things, acts and actions (intra state). -Legislature is supreme -the court can compel any person, department or government to appear before it -law is made by the legislature There are Two theories given on the relationship between Municipal Law and International Law(1) Monictic- It was given by Kelson etc which says(a) Both the systems regulate the conduct of individuals while municipal law does immediately and international law does it mediately. (b) In both, the substance of the law is same i.e. they both give command binding on the subjects irrespective of their will (c) Both systems have their origin from a single norm, which is the foundation head of all laws. Delegation Theory-stated that each state is delegated with constitutional rules of International Law as to how the international treaties will become applicable in the state law. By this they wanted to say that there is no transformation of the international law and there is no new creation of any law. This theory was criticized on the grounds that delegated these constitutional laws to the states? Because the states are sovereign and equal and does not recognize any authority over it and above it. (2) Dualistic-It was given by Oppenhiem etc.. Their views are just opposite to the monism viz:(a) The subjects of Municipal law are individuals and the subjects of international law are states (b) Municipal law is a command of a sovereign while international law is more in the nature of promises (c) Source of Municipal Law is the will of the state while source of international law is the common will of the states Specific Adoption/Transformation theory-They contended that the international law is not automatically applicable in the municipal sphere. They are only applicable if the municipal law transforms such international law into municipal or state legislature. Thus, international law cannot be directly enforced. This theory was criticized as there are many principles of International law which are applied in the field of municipal law with specific adoption viz. customary rules. Further, the law making treaties become applicable to the states without any transformation. Harmonisation theory-It says the municipal law and international law are equal. Both are made for humans. If any contradiction appears, it should be harmonized in the following two ways(1) By the judges by their juristic reasoning (2) By enacting international law into the municipal law that it doesn’t contradict in any way and if it does, it should be amended to avoid contradiction. International law-is a law that operates mainly on sovereign states -all states are sovereign and equal -no state can be compelled to appear in any court -law is made by treaties etc.
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Customary rights
Treaties
UK USA They treat them as a part of Same as England. their own land but only if they are consistent with their own law. In case of inconsistency, the municipal law will prevail
India Article 15 (c) of Constitution says that the state shall endeavour to foster respect for international law and treaty obligations in the dealing of organized people with one another. It is observed that Indian court in Chank Fishery case and ADM Jabalpur case gave completely opposite views related to international law. But now, International customary are enforceable law as far as they don’t conflict with the statute law. Rule of Harmonious construction is also followed here. (Gramaphone Company of India case). No Incorporation is required. It is necessary that some Here every this is Treaty making is an executive act. treaties should receive the dependent upon consent of the Parliament. constitution. The All treaties do not constitution says “All automatically come into treaties are the law of force and they do not land”. But in USA if become the law itself. Some there is a conflict require legislative work. If between the still there is some conflict, International law and the Parliament law will state law then, prevail whichever is later in date shall prevail and if the conflict is b/w US constitution and International law, the constitution will prevail. (
Conclusion- UK, USA and India attribute primacy to municipal law if it is clear and ambiguous. If it is, then in Indian scenario, they follow the harmonious construction to avoid conflict. Conclusion State practices-neither monistic nor dualistic view holds good in all situations. However, dualistic theory is closer to the truth, as international law is not always enforceable in the municipal courts of UK, USA and India. Municipal courts give effect to international law only if it is clear and not conflicting.
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Chapter-2 Sources of International Law Oppenhium says-“Source of law” is the name for a historical fact out of which rules of conduct come into existence” Starke-“Custom” is such a usage as has the force of law. Article 38 Statute of ICJ defines the sources of law as:1. International conventions 2. International customs 3. General principles of law recognized by civilized nations 4. Subject to provisions of Article 59, judicial decisions and teachings of most highly qualified publicists (1) International Conventions-(Treaties)-Vienna Convention, 1969. -Meaning of Treaty-Oppenheim-Treaties are agreement of contractual character between states or organization of states creating legal rules and duties. -pacta sund servanda-which means states to treaties are bound to fulfill the obligations on them. No economic relations can exits without this between states and foreign corporations. None of the parties to treaties can frustrate the objectives or the treaties. This proves that treaties are like international legislation. -rebus sic stantibus-Article 62 Vienna Convention-means the treaty is intended to be binding on parties only as long as there is no significant change in the circumstances which obtained at the time when the treaty was concluded. Which means if there is any significant change in the circumstances then the treaty is not bound on the states as it may hamper the growth, self preservation and vital interest of the nation. (ICJ Fisheries Jurisdiction case, UK) -Essentials(a) There must be a change in the circumstances that were at the time when the treaty was concluded (b) The change is fundamental (c) The change was not foreseeable by the party (d) The original circumstances were essential to the consent of the parties (e) Under the present circumstances, it would be difficult to perform the obligations delegated under the said treaty -Types of Treaties as laid by Starke(1) Law making treaties-Large number of states are there in it. They discuss a particular subject and the laws about it. They lay general rules for future conduct. (2) Treaty contracts-This kind of treaty is between 2 or only few states dealing with a special matter concerning these states only. -Vienna Convention of Law of Treaties, 1969- codified the law of treaties. It came into force on 27th January, 1980 It includes Doctrine of jus cogens and rebus sic stantibus. -Essentials(1)Parties competent to make a treaty-Every state whether sovereign or non-sovereign possesses capacity to conclude treaties. Also, international organizations also possess the capacity to make treaties. (2) Free consent of the parties-If consent is taken by fraud, coercion, misrepresentation, threat, then the treaty is void. If the consent by a state is given erroneously or by mistake, then the state is not bound by the treaty, even if the consent was a free consent. (3) Modes of consent-Signature, exchange of instruments constituting treaty, ratification, acceptance, approval, accession, or by other means -Ratification of a treaty-means the head of the state or its government approves or ratifies the signatures of its authorized representatives. Earlier the view was that unless the state ratified the signature, the treaty was not bound on them. There are still certain condition when the state may become bound even without ratification which are:7
(1) When there is a provision in the treaty itself (2) When state owe the necessary intention (North sea continental shelf case) -Treaties and third states-Treaties never impose obligations or confers rights on third states. But there are some exception to it also which are:(1) if the third party state itself accept the obligation in writing but not in that condition where the other states are aggressor in nature. (2) It the third party has been following the rule of the treaty as International custom -Jus Cogens-are the basic and fundamental rules and principles which all the states must observe and their non-observance may affect the very foundation of the legal system to which they belong.
(2) International customsArticle 38 (1)(b) Statute of ICJ defines courts should apply “International customs, as evidence of general practices accepted as law” -is the oldest and most original source of International law. -Usage means those actions which are often repeated -Custom is when clear and continuous habit of doing certain actions grows up and which is done considering is at right -the feeling on the part of the states that by following the custom they are fulfilling legal obligation. This is called opinion juris sive necessitatis. -Essential ingredient(1) Long duration (2) General practice (3) Belief that such practice if obligatory-opinio juris (4) Uniformity and consistency -Cases (1) S.S. Lotus case-French and Turkish ship collided (2) North sea continental shelf case-Denmark, netherland and Norway continental shelf dispute (3) Asylum case-asylum given to a rebel Peru leader by Columbia (4) Right of passage case-India denied right to passage to Portugese. -Why there is a decline in the importance of International customs(1) Development of more field in law- intellectual property, nuclear issues, ozone hole etc. These subjects require precise agreements and customs by its nature is general (2) Cases of S.S. Lotus, North Sea Continental shelf and Asylum case proves that it is very difficult to prove opinio juris (3) The process of development of a custom is very slow -Difficulties in application of International customs(1) Custom must be proved (2) Continuous practice has to be proved (3) Opinio juris has to be proved (4) If customs are in conflict with some treaty, the treaty will supercede (5) The onus on that state who is trying to prove the custom (3) General Principles -Article 38 (1)(c) of Statue of ICJ defines “General principles of law recognized by civilized nations is one of the sources of law”. 8
Sorenson says-They are called so as they are so general that they are generally found in all systems of law that have attained a comparable state of development. General principles of law (1) Natural Justice(a) to act in good faith and without bias (b) to give each party opportunity to state his case (c) no man must be judge to his own cause (d) no party can take advantage of his own wrong-Chorzow Factory Indemnity case (2) Principle of subrogation (stepping into shoes of another)-Mavrommatis Palestine Concession case (3) Principle of Prescription (a claim to a right founded upon continuous enjoyment of it-Island of Palmas case (4) Principle of res judicata (conclusiveness of final judgement)-UN. Administrative Tribunal case (5) Principle of estoppels-Temple of Preah Vihear case (6) Principle of equity, justice and good faith-North Sea continental shelf case, Anglo Norwegean Fisheries case (7) Principle of territoriality of criminal law-S.S. Lotus case (8) Principle of obligation to repair a wrong (9) Elementary considerations of humanity etc.-Corfu Channel case Soviet writer like Tunkin etc do not envisage them as separate source of International law as they regarded as “General principles of International law” and not of any particular legal system. Their views are lost because of break up of Soviet Union. They were criticized by Tanaka etc. who hold that these principles are based upon reason and that these principles are found in one form or the other in all human societies. (4) Judicial Decisions-and Writings of Jurists
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Chapter-1 Nature, Definition and Scope of International Law -Definition of International Law The words “International Law” was first used by Bentham in 1780. International law is what that regulates the relations among the states. “Public International Law” has come to us from Europe. -Oppenheim-“International law or Law of Nations is the name of for the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other.” This definition became obsolete and it was criticized on the following grounds:(1) The definition takes into accounts the states only. But today international organizations and institutions are also regarded as subjects of international law. (2) International law also provides certain rights and duties to individuals. (3) He talked about only the “civilized states” which is also criticized. The Western used to call the Christian states as civilized states. It is to be noted that at present there are 185 members of UN which are Christian and no-Christians states. (4) The words “Body of rules” states that International law is fixed. But it is not so because the International law is changing with the passage of time, circumstances and necessities of situations. (5) He said that International Law is derived from customs and treaties which is also not correct because as per ICJ, the General Principles of law recognized by civilized nations are also the source of law while deciding the International dispute. -Oppenheim-gave a newer definition of International Law “International law is the body of rules which are legally binding on states in their intercourse with each other”. These rules govern the states. He stated that not only states but individuals and international organizations may be the subjects of rights conferred and duties imposed by Internantional law. -Starke-“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. The definition of stake reveals the changing character of International law and reflects the present position. Conclusion- On the basis of above definitions we may conclude that “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 norms confer rights and impose obligations upon states and, to a lesser extent, upon international organizations and individuals. Above views reflect both old and new version of International law. Old explain it as a system regulating the rights and duties of states and that is why it is called the “Law of Nations”. The New or modern explains that International law is a changing and expanding code. -Development of International law -International has been into a change since its inception. Sometimes it does not keep up pace with the changing circumstances and sometimes it warns people from the forthcoming danger. Eg.- UNEP warned the people of the increase in earth’s temperature and came up with the “Global Warming” concept. -The view of Old International law was that it is “Law governing the relations of sovereign states with each other. But with the change in time the new International law deals with social interdependence”. -At present there is hardly any state which in the interest of the international community has not accepted restriction on its liberty of action. -Expanding horizons of science, technology, trade, commerce etc has made the states to work in cooperation. The Factors that largely contribute to the development of International law are:- (Subjects of international law) (1) International Organizations-The setup of various organizations viz. UNO, ICJ, ILO contribute to the development of International law. They deal with social, economic, political, cultural problems of the states. Eg-WHO has contributed to the International Sanitary Regulations, ICJ (International Court of Justice) related to justice. 10
(2) Individuals-are now regarded as the subjects of International law. The individuals can file petitions in violation of their rights before some international forums. (3) Codification of International law-Earlier the rules and regulations were not codified and were uncertain and ambiguous. Now the rules and regulations have been codified and applied uniformly. (4) Multilateral Treaties-Unlike earlier times, now a days the conclusion of the treaties are considered as rules of International law. Even the space, moon and deep sea are governed in accordance with the rules framed through multilateral treaties. -Crisis in International Law (1) International law has to keep pace with the changing times and circumstances which is very difficult. (2) According to Brierly, it focuses more on stabilizing rather than growth of international society. It maintain present values rather than to create new ones. (3) Appearance of new states with different cultural backgrounds, level of development is also a problem. (4) Agendas like Nuclear weapons, AIDS, environmental control and various subjects are emerging and International law has to deal with it. (5) Treaties concluded makes new rules but it is a cumbersome process as it depends upon the consent of the states with different ideologies, cultures, religions that create problem for international law in the law making. India’s position- India has helped in many spheres for the progressive development of International law. Her contribution has been significant in the codification of International law, environmental protection, nonalignment etc. -Nature of International Law Q-Is International Law true law? Answer-Some say that International law is a law as it is regarded as a law just like ordinary law of a state which are binding on the individuals and other are contrary who hold the view that it is not a true law as it is a code of rules of conduct of moral force only. Austin says no. He said that International law is not a true law. According to him law is the command of the sovereign. It is a command which if not obeyed will attract sanction. The violation of the command is punishable. He says it is a rule of morality. He says there is no sovereign over the International law to enforce the rules of International law. He also says that even there is no executive to enforce the decision given by the International law. As per his view, the superior is the real sovereign. This view of his was criticized by Oppenheim and Starke. Oppenheim-says that International law is a true. He says that different states of the world do together constitute a body bound together through common interest. They interact with eachother while they have different culture, language, legal systems etc. He said International law is a true law because of the following reasons(a) the rules of International law are recognized by as law by the different government of different states and they abide by it because they feel they are legally bound to follow it (b) If any state break the rule, the state never deny that they have not done it but rather they defend themselves and justify their act. Starke-said that if there is no legislative authority that doesn’t mean there is no law. Law making is new now and it is in the form of law making treaties, conventions etc.. The authoritative agencies doesn’t regard it as a moral code and UN is based on legality of international law. As per the arguments we can sum up as follows:(1) Rules laid down by treaties are binding and formulating international rules is well settled by means of treaties etc. (2) When any question arises, the states do not look upon moral arguments but they take reference from treaties, precedents and opinions of specialists which proves that states do not deny the existence of international laws (3) International conferences and conventions also treat international law as a true law. The decisions given by the ICJ is binding upon the parties and under certain conditions these can also be enforces. 11
(4) International law does not lack in sanction (5) International law is not frequently violated. Thousand of treaties have been concluded, but the instances of their violation are very few. Conclusion- International law is a true law. As compared to municipal law it is a weak law but, it is a law. -Basis of International law- Theories- The concept of International law was first used by Grotius. In his theory, there are three basis of international law-Law of reason, customs and treaties. From these basis the following theories came up(1) Naturalist theory-They say International law is a natural law. It is part of nature and God made. The Internantional law is a law related to peace and security and are necessary for human kind, thus all the laws are parts of law of nature. This theory was criticized. (2) Positivist theory-This theory says that only those principles are considered as laws which have been adopted with the consent of the state. Law is that which exist in fact. It is the law which is enacted and followed the states and hence it is binding upon them. Customs and treaties came into existence with the consent of the states. The consent could be tacit or express. This theory is criticized as not all the laws come from treaties and customs. Further, a treaty may be binding on a third state also because at times they are bound against their will because of general international law. (3) Eclectic theory- says both naturalist and positivists views are extreme views. There should be a theory that gives equal importance to both, would be a correct theory. -International law as a weak law (1) No effective executive authority to enforce the rules of international law (2) No complete jurisdiction and is not in a position to decide all kind of disputes (3) The court acts with the consent of states (4) Conflict between the municipal law and international law (5) Treaties concluded by the states could be so formulates so as to favour the states involved (6) Lack of Sanction because of which the rules are frequently violated (7) International law has failed many a times to maintain order and peace in the world. (8) It is a decentralized system -Suggestions for improving international law(1) Effective executive agency to enforce rules of international law (2) Effective Sanctions is some state violates it (3) Independent Judiciary (4) It should change with the pace of circumstances and situations (5) Judicial precedents should be applied -Sanctions in international law-Sanction is a penalty imposed in order to enforce obedience to a rule of law. Sanctions are there in international law so as to make the states to abide and perform their legal obligations. Earlier times, the sanctions were in the form of war and reprisals. But not now these measures are unlawful. Now, the sanction must be lawful and they must conform to the provisions of UN Charter. Sanctions may be applied as follows:(1) Sanctions by State-The state may apply sanction with self help and in accordance with UN Charter which includes not to use force against the errant state. (2) Collective sanction-Organizations established by states have been empowered to take collective sanctions against the erring state. (3) Public opinion-made the force of UK and France to pull out from the Suez Canal 1956. Public opinion is the -Effectiveness of Sanction-Thus, international law is not without sanctions although these sanctions are not generally for the enforcement of international law. These are to maintain or restore peace and security which is the only part of international law.
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-Whether international law is the vanishing point of jurisprudence? Holland says that International law is not a law as there is neither any sovereign authority not there exists sanctions if its rules are violated. There is no judge or arbiter to decide the international disputes and the rules of international law are followed by the state’s courtesy. This view was correct at his time. But international law is changing, and now there are sanctions also. The disputes are decided by the International Court of Justice which is the judiciary. It can be enforced by the external power. Treaties are there to which states it selves get them bind and they follow it as a rule. Thus it is incorrect to say the international law is the vanishing point of jurisprudence. -Difference between Public and Private International law Public International Law 1) Public International law is International law 2) It deals with many states and to some extent with the individuals 3) This deals to maintain order and peace and security in the world 4) These are not the rules of internal law of any state
Private International Law 1) It is the law of State 2) It deals with the individuals of two states
3) It is there to resolve the rules that conflict between municipal laws and international laws 4) Rules of private law are part of internal law of the state 5) It is applied uniformly to all the states 5) Private law differs from state to state 6) Rules are enacted by treaties, customs and 6) Rules are enacted through legislation consent of the states
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Chapter Human Rights Human Rights Day-10th Dec. (1948) Human rights are those fundamental rights which every individual living in any part of the world should be entitled to merely by the virtue of having been born a human being. They are the basic and natural rights and they can’t be taken away by any act of government/legislature. There are essential for the development of the person. They are shared by all men and women. In -Definition -Protection of Human Rights under the UN (1)UN Charter- Human rights occupy a significant place in UN charter. The preamble reaffirms faith in fundamental human rights and the dignity and worth of human persons and in equal rights of men and women. Protection of human rights is one of the purposes of UN (Art 1(3) of Charter). Article 13 says it is the duty of General Assembly for the realization of the human rights. It is to be noted that if any right is violated, then such violation will not be considered essentially a matter of domestic jurisdiction. The General assembly can logically discuss and consider the breaches of human rights. If breaches are of a grave nature so as to endanger the international peace and security, it may be forwarded to the Security Council. However, the UN Charter has failed to discuss the various human rights and fundamental freedoms but the same have been enumerated in the subsequent UN instruments. (2) Universal declaration of Human Rights, 1948-Adopted on 10 Dec, 1948 at Geneva by General Assembly. It defined certain human rights and fundamental freedoms which need to be protected. Article 1-All human beings are born free and equal in dignity and rights. They should show the spirit of brotherhood Article 2-No Discrimination on the basis of caste, creed, colour, sex, religion, language, International status of the country, political jurisdiction Article 30-is Divided into Civil and Political rights and Economic, Social and cultural rightsCivil and Political Right to life and liberty Right to Equality before law Right to Freedom of movement Right to Freedom of thought Right to own property Right to peaceful assembly Economic, Social and cultural Right to social security Right to work, employment Right to Education etc. (3) International covenant on Civil and Political rights, 1966-Adopted on 16 Dec, 1966 and came into force on 23 Mar, 1976. Presently there are 140 state as parties. It specifies only civil and political rights which are:Right to life Right to Liberty and security Prohibition of torture or punishment Prohibition of slavery Right to freedom of thought Right to religion Right to peaceful assembly Right to equality before law Right to freedom of movement
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(4) International covenant on Economic, Social and Cultural Rights, 1966-Adopted on 3 Jan, 1976. There are 31 Articles. The rights mentioned in it are:- (this is the second generation which came after the advent of socialism after 20th century) Right to work freely chosen Right to enjoyment of just and favourable condition of work Right to form and join trade unions Right to adequate standard of living Right to education Right to take part in cultural life Right to social security In 1970, third generation rights emerged which areRight to development Right to healthy human environment Right to peace Right of self determination (etc.) -Enforcement of Human Rights (UN Machinery and Other Conventions) (1) UN Commission on Human Rights-Established by ECOSOC in Feb, 1946. There are 43 members elected for 3 years. It implements the Human Rights. The main task is to promote, setting the standard and enforcement of the Human Rights. HRC prepared drafts for Universal Declaration of Human Rights and two international covenants. The role of the commission of paramount importance. -They receive the complaints/petitions for violation of human rights from any individual of any member state of UN. Complaints can be forwarded by the NGOs -Commission considers the petition and call for the comments of the state government concerned and make recommendations. They also investigate the matter. -The complaint is examined in private -The commission submits the report to ECOSOC They collect evidences in respect of human right violations in all states. These reports are discussed by the commission at public meetings in which states are required to defend themselves. There is also a commission on the status of women to promote rights of women. (2) Procedure under the Covenant (a) the primary method for implementation of right under International covenant of Civil and Political right is “Reporting procedure”. To check the implementation a committee is there “Human Rights committee” consisting of 18 persons some of them from the field of human rights. The state parties submit periodic reports to the said committee and measure taken by them to implement the Human rights. The committee considers the report and discuss it in a public meeting where the states are to defend themselves. Under this covenant, a state party may complaint against other state for the noncompliance with the covenant. The complaint is looked into the if the commission fails to give any remedy within 12 months then an adhoc committee is formed. An amicable settlement is tried for. The commission’s report is not binding. These are only for those who are individuals from the state parties. ---------(3) Procedure under the other General Conventions on Human RightsGenocide convention Convention on Status of Refugees Convention on Right of the Child Convention on Political rights of women Convention on eliminating all forms of discrimination against women (4) Procedure under Conventions relating to Women-The convention on the Eliminating of all forms of discrimination against women entrusts the implementation of the right to a committee. The state parties send a report every four years. The commission examines the report and make suggestions and recommendations as a report and the same is sent to Commission on the Status of Women. There is no provision of individual or inter-state petitions. There is not follow up procedure on the report or any sanction if the state fails to submit 15
the report. The commission lack any power to take action in regards to complaints concerning the human right or the status of women. (5) Recent Measures for Enforcement of Human Rights UN Fund for human rights UN Commissioner for human rights -Vienna World Conference on Human Rights-the conference held from 14-25 June, 1993 to access the progress achieved under the 1948 Universal Declaration of Human Rights. It was the “Second Universal Declaration on Human Rights”. It took into consideration the UN’s concern to make Human Rights a priority in its action worldwide. Measures to strengthen, and monitoring the International rights were there. Some major points of Vienna Declaration are(1) Right to development (2) Right of minorities (3) Right of self determination (4) Gender based violence and all forms of sexual harassment and exploitation to be eliminated -Protection of Human Rights in India (a) Human Rights and Indian Constitution/Judiciary-India had become the party to the international covenants on Human Rights by Ratifying them on March 27, 1979 but it has not ratified the Optional Protocol I to the covenant on Civil and Political Right, which allowed the individuals to petition against the state to the HRC. Some of the Human Rights have been specifically enumerated in the Indian constitution such as Right to life and liberty Right to Equality before law Right to freedom to choose and practice religion Right to work Right to equal pay for equal work (etc.) Some rights which are not mentioned in the Indian Constitution but are recognized by the Judiciary are:Right to privacy Right to shelter Right to legal aid Right to speedy trial If there is a conflict between the provision of an International convention and Indian constitution, the Indian Constitution will prevail. (b) Legislation relating to Human Rights in India-There are several legislations laid down by the Constitution which are:Protection of civil rights Child labour Bonded labour Juvenile Justice Act NCMA, 1992 MCWA, 1990 Dowry Prohibition Act (etc.) -Cases(1) PUCL v. UOI- A writ petition was filed under Article 32 of constitution for issues relating to killing of two persons in a fake encounter by Police and awarding of the compensation to the family of the deceased. The defense pleaded “Sovereign immunity”. It was held that “Sovereign immunity” did not apply here. It was further held that the provisions of International covenant on Civil and Political rights explaining the fundamental rights are applicable here. (2)Chairman, Railway Board v. Chandrima Das- A woman, foreign national was raped by the employees of railway in Railway yatri niwas. The railway was held liable under the vicarious liability and was asked to compensate the woman. It was also held that the “Right to life” is available to all, including foreigners.
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(c) Protection of Human Rights Act, 1993/National Human Rights Commission-The commission if based on the guidelines laid down by the UN Commission, to check the independence and effectiveness of NHRI. NHRC consists of 1 Chairperson (Chief justice of SC), One Judge (SC), One (Chief Justice of HC) and 2 members having knowledge of or practical experience in matters relating to Human Rights. The functions of the commission are:-To inquire into the petition of the victim or the petition filed on the behalf of the victim -To intervene any proceeding involving allegation of violation of human rights pending b4 the court with its permission -To visit any jail/institution to study living condition of the inmates and make recommendations -Making recommendation to improve the safeguard of Human rights -Study treaties and other international instruments on human Rights and make recommendations for effective implementation -Encourage the efforts of NGOs -Research in the field of Human Rights Main task of NHRC is to make reports to the government on human rights violations in a particular situation. The commission is required to submit its report annually to the central and state government. The complaints can be files to the NHRC by the individual himself. The Commission does not enjoy the power beyond making the reports after investigation of the case situation. It can take no action. It can only recommend and the government may or may not accept its recommendations. There is no special remedy provided by the commission other than what has already been provided under the constitution by way of fundamental rights. The only benefit the victim gets is that if it is proved that his rights have been violated, the commission can recommend the case to the court for initiating the proceedings. -Concluding remarks on Human Rights
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