an introduction to international law

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Introduction toInternational Law

Shiju M V,

Department of PolicyStudies,

TERI ni!ersity,

"ew Delhi


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#ac$%round Pollution does not respect political

&oundaries

Ecolo%ical interdependence


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'&jecti!es To refresh certain &asic concepts

a&out International Law

To understand the le%al instrumentsthat ha!e a &earin% on theen!ironment in %eneral and theforestry sector in particular

To appreciate the di(erent forms thatthese instruments ta$e and the le%alconse)uences of the same*


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'&jecti!es To understand the o&li%ations

imposed on India

To understand how theseinstruments are implemented inIndia


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+ontents An Introduction to

International Law Intended as a

refresher discussion- India and International

Environmental Law

Forest Related InternationalInstruments


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.n Introduction to

International Law Di(erent from national/municipal

law

"o world le%islature

"o world e0ecuti!e

"o world judiciary


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.n Introduction to

International Law International +ourt of 1ustice is not a

2world court3 in the true sense of the

term* 'nly States may apply to and appear

&efore the International +ourt of 1ustice* International or%ani4ations,

other collecti!ities and pri!atepersons are not entitled to instituteproceedin%s &efore the +ourt*


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.n Introduction to

International Law The +ourt can only deal with a

dispute when the States concerned

ha!e reco%ni4ed its jurisdiction* "oState can therefore &e a party toproceedin%s &efore the +ourt

unless it has in some manner orother consented thereto*


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.n Introduction to

International Law Special agreement

Compulsory jurisdiction in legaldisputes The Statute pro!ides that a State may

reco%ni4e as compulsory, in relation to any

other State acceptin% the same o&li%ation,the jurisdiction of the +ourt in le%al disputes* These cases are &rou%ht &efore the +ourt &ymeans of written applications


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.n Introduction to

International Law Indian Voluntary declaration

56 Septem&er 5789

I ha!e the honour to declare, on &ehalf of the:o!ernment of the Repu&lic of India, that theyaccept, in conformity with para%raph ; of .rticle


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.n Introduction to

International Law 5- disputes in re%ard to which the

parties to the dispute ha!e a%reed orshall a%ree to ha!e recourse to someother method or methods of settlement?

;- disputes with the %o!ernment of anyState which is or has &een a Mem&er ofthe +ommonwealth of "ations?


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.n Introduction to

International Law 9- disputes relatin% to or connected

with facts or situations of hostilities,

armed con@icts, indi!idual or collecti!eactions ta$en in selfAdefense, resistanceto a%%ression, fulBllment of o&li%ationsimposed &y international &odies, and

other similar or related acts, measuresor situations in which India is, has &eenor may in future &e in!ol!ed?


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.n Introduction to

International Law C- disputes with re%ard to which any other party to a

dispute has accepted the compulsory jurisdiction ofthe International +ourt of 1ustice e0clusi!ely for or inrelation to the purposes of such dispute? or where the

acceptance of the +ourts compulsory jurisdiction on&ehalf of a party to the dispute was deposited orratiBed less than 5; months prior to the Blin% of theapplication &rin%in% the dispute &efore the +ourt?=- disputes where the jurisdiction of the +ourt is ormay &e founded on the &asis of a treaty concluded

under the auspices of the Lea%ue of "ations, unlessthe :o!ernment of India specially a%ree to

jurisdiction in each case?


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.n Introduction to

International Law 8- disputes concernin% the interpretation or

application of a multilateral treaty unless all theparties to the treaty are also parties to the case

&efore the +ourt or :o!ernment of India speciallya%ree to jurisdiction?6- disputes with the :o!ernment of any State withwhich, on the date of an application to &rin% adispute &efore the +ourt, the :o!ernment of Indiahas no diplomatic relations or which has not &eenreco%ni4ed &y the :o!ernment of India?7- disputes with nonAso!erei%n States orterritories?


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.n Introduction to

International Law 5- disputes with India concernin% or relatin% to>

a- the status of its territory or the modiBcation or delimitationof its frontiers or any other matter concernin% &oundaries?&- the territorial sea, the continental shelf and the mar%ins,the e0clusi!e Bshery 4one, the e0clusi!e economic 4one, andother 4ones of national maritime jurisdiction includin% for there%ulation and control of marine pollution and the conduct ofscientiBc research &y forei%n !essels?c- the condition and status of its islands, &ays and %ulfs andthat of the &ays and %ulfs that for historical reasons &elon% toit?

d- the airspace superjacent to its land and maritime territory?ande- the determination and delimitation of its maritime&oundaries*


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.n Introduction to

International Law 55- disputes prior to the date of this

declaration, includin% any dispute thefoundations, reasons, facts, causes, ori%ins,deBnitions, alle%ations or &ases of which e0istedprior to this date, e!en if they are su&mitted or&rou%ht to the $nowled%e of the +ourt hereafter*5;- This declaration re!o$es and replaces thepre!ious declaration made &y the :o!ernment ofIndia on 59th Septem&er 57C7*

"ew Delhi, 5C Septem&er 5789*

Si%ned- Swaran SI":F,Minister of E0ternal .(airs*


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.n Introduction toInternational Law

"ature of International Law International law is the &ody of rules

which are le%ally &indin% on states intheir intercourse with each other* 'ppenheim


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#asis of International Law +ommon consent

It cannot mean that all states must atall times e0pressly consent to e!erypart of the &ody of rules constitutin%

international law, for such commonconsent could ne!er in practice &eesta&lished*


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Sources of International Law5* The +ourt, whose function is to decide in accordance with

international law such disputes as are su&mitted to it, shallapply>

a* international con!entions, whether %eneral or particular,esta&lishin% rules e0pressly reco%ni4ed &y the contestin%states?&* international custom, as e!idence of a %eneral practiceaccepted as law?

c* the %eneral principles of law reco%ni4ed &y ci!ili4ednations?d* su&ject to the pro!isions of .rticle C7, judicial decisionsand the teachin%s of the most hi%hly )ualiBed pu&licists ofthe !arious nations, as su&sidiary means for thedetermination of rules of law*

.rticle


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The decision of the +ourt has no&indin% force e0cept &etween the

parties and in respect of thatparticular case* .rticle C7*


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International +on!entions Law of Treaties

.n international a%reement concluded&etween States in written form and%o!erned &y international law, whetherem&odied in a sin%le instrument or in two

or more related instruments and whate!erits particular desi%nation .rt* ; 5- a- Vienna Convention on the Law of

Treaties, 1969.


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Multilateral Treaty E0istence of more than two parties

#ilateral Treaty #etween two parties

Re%ional Treaty #etween parties in the same re%ion


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Variety of Desi%nations Treaties, .%reements, .cts, +on!entions,

Declarations, Protocols*

The desi%nation alone does not a(ect the&indin% force of the instruments or itscharacteri4ation as a treaty* +on!ention on #iolo%ical Di!ersity +arta%ena Protocol on #iosafety nited "ations Gramewor$ +on!ention on +limate

+han%e Hyoto Protocol


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Si%nature E0presses the consent of the state to

&e &ound &y the treaty* It may &e su&ject to ratiBcation


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RatiBcation 2ratiBcation3, 2acceptance3,

2appro!al3 and 2accession3 mean ineach case the international act sonamed where&y a State esta&lisheson the international plane its consentto &e &ound &y a treaty


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Reasons for ratiBcation States need time &efore they feel a&le

to commit themsel!es to it* The constitutions may pro!ide for a

mechanism for underta$in%

international o&li%ations "eeds time to enact the ena&lin%

le%islations*


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Refusal of ratiBcation The ultimate ri%ht to refuse to ratify is

not impaired . sate cannot si%n a treaty and

su&se)uently conduct itself as if it

had no connection with it or as if itssi%nature were a mere act ofauthentication*


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. State is o&li%ed to refrain from acts whichwould defeat the o&ject and purpose of atreaty when>

a- it has si%ned the treaty or has e0chan%edinstruments constitutin% the treaty su&ject toratiBcation, acceptance or appro!al, until itshall ha!e made its intention clear not to&ecome a party to the treaty? or

b- it has e0pressed its consent to &e &ound&y the treaty, pendin% the entry into force ofthe treaty and pro!ided that such entry intoforce is not unduly delayed*

.rt* 56 Vienna +on!ention*


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International +ustom

'ne of the primary sources of

international law

Two elements State practice .cceptance of the practice as o&li%atory

Opinio juris


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State Practice +ommon and consistent

niform practice is not necessary Sucient de%ree of participation

"o su&stantial dissent

Persistent o&jector


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Opinio juris Geelin% of o&li%ation

Le%ality of the use of nuclearweapons 577=-


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Implementation at the DomesticLe!el .rticle C5 DPSP

Promotion of International Peace andSecurity


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.rticle ;C< Power of the Parliament to enact a

le%islation on a matter listed in theState list Gor implementin% an international

con!ention The En!ironmental Protection .ct, 576= The #iolo%ical Di!ersity .ct, ;;*


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Than$ Jou

an introduction to international law

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