This article is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, she tries to explain briefly what the concept of International law is, what are its two branches, its emergence, the organizations established and a brief interaction between Indian Law and International Law.
Meaning of International Law
According to Jeremy Bentham’s classic definition, international law can be described as a collection of rules governing the relations between different states. It provides normative guidelines for countries along with methods and mechanisms. Initially, International law had a limited scope, it was restricted only to topics concerning war, peace, diplomacy but now it includes questions of human rights, economic, trade, space law, and even international organizations. International law is a legal order and not just an ethical terminology, although International law has been significantly influenced by ethical concerns, particularly human rights
What is Public International Law?
Widely, two international law kinds are accepted, firstly, the Public international law, which deals with the rights and responsibilities that countries possess toward each other. Countries are referred to as ‘states’ in Public International Law. This type of law is applicable to international organizations like the United Nations (UN) and the World Trade Organization (WTO). Public international law essentially governs issues affecting humanity at large, this includes the environment, human rights, ocean, etc.
What is Private International Law?
By the name of it, we can understand, Private international law deals with the relationships between citizens belonging to different countries. For instance, an American man and a French woman were married in America and now live in Quebec. If they want to apply for divorce, the rules embedded in private international law will determine whether they have to go to a US, French or Quebec court to get their status of married negated.
Nature of International Law
International law is an independent system of law and it works differently from domestic systems in a number of aspects. It is important for the states to consider relevant international laws when responding to a particular situation. The rules of international law are generally adhered to and therefore enforcing them by military means or even by the use of economic sanctions is not a well-known practice. The system of ‘this’ law works on the principle of reciprocity as well as enlightened self-interest. States that breach international rules lose credibility in the eyes of other states, creating a prejudice which would be unhealthy for their well being amongst other nations of the globe. This value that this system brings forth the certainty, predictability, and sense of common purpose of all nations as far as the international affairs are concerned. International law provides for a set framework and rules along with procedures for international interactions.
Development of International Law
International Law only affected the principles governing World War, peace issues, trade issues earlier but since the scope has extended so much, organisations like United Nations General Assembly and ICJ are required to handle the disputes affecting international relations between states. This started with the establishment of the General Assembly in 1947 by The International Law Commission so as to promote the progressive development of international law and understand its formal codification. The members of the Commission are extremely relevant to the regulation of relations among different states, they frequently consult with the International Committee of the Red Cross, the world court- International Court of Justice and UN agencies. Often, the Commission is held responsible for preparing drafts on aspects of international law.
Topics concerning international law are prepared by the Commission and transferred to the General Assembly, which convenes an international conference in order to incorporate the draft into a convention. The convention is then proposed such that states are invited to become parties — by virtue of which countries shall formally agree to be bound by the provisions of the conventions. Some examples in sequential order are-
The Convention on the Non-navigational Uses of International Watercourses, adopted by the General Assembly in 1997, for the equitable and reasonable utilization of watercourses common between two or more countries.
The Convention on the Law of Treaties between States and International Organizations or between International Organizations, adopted at a conference in Vienna in 1986;
The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly in 1973;
The Convention on the Succession of States in Respect of State Property, Archives and Debts, adopted at a conference in Vienna in 1983.
Further, the International humanitarian law includes the principles and rules that regulate warfare, also governs the humanitarian protection of civilian populations, sick and wounded combatants, and most importantly prisoners of war. The United Nations has taken a prime role voluntarily to advance international humanitarian law. The United Nations Security Council has also become increasingly involved in protecting civilians in cases of armed conflict, promoting human rights and principle and protecting children in wars.
For Judicial settlement of disputes
International Court of Justice
The most primary as well as apex United Nations organ for the settlement of disputes is the International Court of Justice. It is also known as the World Court. It was founded in the year 1946. Since its establishment, the Court has considered over 170 cases in total, issued numerous brilliant judgments and advisory opinions that upheld the notion of ‘humanity’ before anything else. It is functioned to work in response to requests that are put forward by UN organizations. Mostly all the cases have been dealt with by the ‘Court’, but since 1981 six cases have been transferred to special chambers considering the request of the parties involved in the disputes.
In all the judgments put forth, the Court has addressed international disputes and tried to resolve them, this includes disputes of economic rights, rights of passage, non-interference in the internal affairs of the neighbour states, diplomatic relations, the grievous issue of hostage-taking, the right to an asylum and also ‘nationality’. States have a right to bring such disputes before the Supreme Court and seek an impartial solution to their differences based on the law. Peaceful settlement on questions of land frontiers, maritime boundaries and territorial sovereignty is expected of the Court proceedings and the Court has been very successful in preventing the escalation of disputes
International law and Indian law
International law definitely has an impact on the domestic laws of the country but, it is not considered to become part of any municipal law automatically. Hence, the controversy as to where there is a conflict between domestic law and customary international law, experts believe that the former will prevail. As far as India is concerned, the courts have played an active role in resolving disputes and even in the implementation of India’s international obligations. Cognizance of both treaties as well as customary practices of international law in cases violating human rights or even questions of environmental law has been taken, the most recent example of which is the Kulbhushan Jadhav case. Article 51 of the Charter mandates respect for the international law, although it is not an enforceable Article. Article 253 of the Indian Constitution states exclusive power on the Parliament with respect to the international affairs (issues or otherwise). But the Constitution has no provision aimed at expressly settling the relation and the status of international law in the Indian courts. This “silence” in terms of legislation has given the flexibility and open interpretation to courts to implement international law in a very progressive but at the same time in a measured manner.