1. Nature And Definition

Question 1

Is IL a true law. Against

Answer 1

1. The controversy revolves around the divergent definition given by jurists for the word LAW
2. Austin - mere positive morality - sovereign legislative authority, command of soverign, sanctions
3. Holland - vanishing point of jurispeudnce
   4 ICJ- no universal jurisdiction, no enforcement agency
4. Vague and uncertain customary rules rather than set
   Ex : demarcation of continental shelf of 2 non opposite state

Question 2

Is IL a true law. FOR??

Answer 2

1. Oppenheim - consent is the basis of IL
   - states constantly recognize IL- legally and morally bound
   - even when breaking IL,, justify breaking on the basis of some other rules of IL– so basically don’t deny
2. Starke - early prmitive socities adhered to law without soverign leg authority.
   - intl legislation in the form of law making treaty
   - UN charter is based on legality of IL

3 hart - IL is law because state regard it as law.

4 USA and Uk.. Part of ML ( paquette vs habanna)

5. Icj - art 59 of statute and art 94 of UN charter
6. Thousands of treaties - rarely violated - diplomatic immunity
7. Sanctions- ex: collective sanctions of UN

System of sanctions, juscogens, recourse to law making treaties

Question 3

Is IL a weak law

Answer 3

8 points given by starke

1. Legislative machinery weaker than state leg machinery
2. No effective executive authority
3. Uncertain compared to state law
4. Lack of effective sanctions
5. ICJ lacks compulsory jurisdiction
6. Icj lacks real power to enforce it’s decision.
7. IL in many cases failed to maintain ips
8. Cannit intevene in matters within domestic jurisdiction

Question 4

What is the basis of IL

Answer 4

1. Groation theory - 3 basis - reasons, customs and treaties.
   2 schools enegred from his theroy
2. Naturalist ( pufendorf)- IL is part of law of nature that emanates from God, morals, reasons. Since IPS is necessary for existence of human kind, all laws relating to it are part of law of nature
3. Postivist theory ( bynkershook) - the basis of IL- COnsent. Custom and treaties are basis because they have consent.
   Criticism- jus cogens without consent
4. Eclectic theory - equal importance to both
5. Contemporary sociological theories tend to support naturalism bcoz they argue that IL is based on social interdependence. Even positive law based on this interdependence

Question 5

Define subjects of IL? what are the 3 theories pertaining to it

Answer 5

Oppenheim - are legal personality under IL- rights, duties , power

1. Realist theory - oppenheim - states alone
2. Fictional - lauterpacht and kelson- individuals alone
3. Functional - states, individuals, IO

Question 6

Are there sanctions in law

Answer 6

Sanctions - measures taken to pressurize a state to comply to intl legal obligation

View that since states are soverign - no sanctions.
But wong to say so

1.starke
2 public opinion- uk and France pulled troops from suez canal- 1956
3. Economic sanctions - g7 sanction on Russia like recent uk ban on import of Russian diamonds
4. Expediency - climate agreement
5. Break doewn of diplomatic relations
6. Fear of expulsion from Io- Iran expelled from un commission on status of women
7. Aviation sanctions- 1990 flight to iraq ti be searched
8. Sportsmen in international events to be prevented
9. Fear of punishment of war crimes

Question 7

3 sanctions highlighted by starke

Answer 7

1. Chapter VII of UN charter- collective sanction
2. Art 94 - icj decision refered to unsc
3. Art 2(4) - aurhorizes use of force in accordance with UN charter

Question 8

What are the 3 theories of relationship between IL and ML

Answer 8

1. Monistic - kelson
2. Dualistic - tripel and anzilotti
3. Harmonization apporocah

Question 9

Why kelson gave monistic theory

Answer 9

1. IL and ML are part of the same legal system. Facets of same phenomena
2. On deep analysis both deals with individuals. ML does so immediately. IL - mediately through states
3. Substance same - command binding upon subjects irrespective of their will
4. Both form part of Natural law

Though looks like a sound theory, many donot follow. Sovereign

Question 10

Dulaistic theory of triple and anzilotti

Answer 10

Both IL and ML different

1. Subjects- states vs individuals
2. Will of state vs common will of states
3. Enforcement - Command of sovereign vs pacta sunda servanda

Question 11

Key points for concept of opposability

Answer 11

1. Use where the relationship between IL and ML Is concerned
2. Starke explained through illustration
3. If a and b in front of an international tribunal. A relies upon some ground to support its claim. State B may seek to invoke a rule under it’s domestic rule to oppose A, if the rule is in accordance with IL
4. To apply this rule wrt ‘treaty rule ‘ - only of the other party party to treaty
   North Sea continental shelf case, rule of equidistant principle was held not opposable to Germany, becuse Germany not signatory to geneva convention on continental shelf

Question 12

Traditional definition of IL

Answer 12

1. Traditionally IL is defined as law governing the relationship of sovereign state with each other. Jeremy Bentham in 1780
2. Kelson - body of rules which determine the conduct of states in their intercourse with each other
3. Oppenheim- IL is a body of customary and conventional rules which are considered binding by civilised nations in their intercouse with each other

Question 13

Modern defn of IL

Answer 13

1. Defn that IL is a body of rules of conduct is now considered static and inadequate
   MA KAPLAN AND katzenbach - commonplace that law is considered a process rather than self executory body of rules
2. Not only customary and conventional rules but also general principles of law
3. Strake - not just rules pertaining consenting states, but rules regarding working of IO, rules relating to individuals and non state entities
4. Best defn by Charles fenwick- body of general principles and specific rules which are considered binding on members of international community in their mutual relation

Question 14

Which is supreme - IL or ML

Answer 14

1. Greco Bulgarian case ( PCIJ ) when it comes to contracting parties of a treaty ML cannot prevail over the treaties. On the other hand when national courts find it difficult to reconcile ML and IL , they give preference to ML
2. Contemporary jurisprudence
3. Rising interconnectedness
4. Duty on every country to frame their constn and law in accordance with
5. Some countries uk , USA
6. IL exerts a definite check on the municipal law of the nations, and holds the state who commits excesses in violation to IL accountable to the state whose citizens have suffered
7. Edward Collin’s - in practice the relationship between ML and IL exists in the mixture of IL supremacy. ML supremacy and a coordination of legal systems

Question 15

What is UKs practice wrt ML and IL

Answer 15

1. Customary law
   Part of ML provided not inconsistent with statutes

If inconsistent
A. If ml is unambiguous
B. if ml is vague - harmonious construction and avoid conflict

2. Treaties- do not automatically come into force

Treaties which are of primary importance and intrudes into the domain of legislature- requires legislative action for their implementation

If ml unambiguous - ml will prevail
If ambiguous - use the treaty positions to interpret the statutory language

Question 16

USA syptate practice wrt ML And IL

Answer 16

Parquette vs habana - IL is part of our law

1. Customary law- bound, unless clear and unequivocal ML
2. Treaty - article 6 - any treaty entered by USA is part of the supreme law of land. Thus, treaty give n same position as state laws,

If there is conflict, whichever is later in date shall prevail

Question 17

2 cases for india wrt customary law

Answer 17

1. Annakumaru case - SC used international customary norms concerning prescriptive title to pass the final verdict
2. Vellore citizens forum case - customary IL of sustainable development imported into India

Question 18

Treaty law for India

Answer 18

Art 253 - parliament has power to make any law for implementation of an international treaty.
Several examples. - BD act 2002- convention of biodiversity, wlpa - Stockholm convention, trademarks act - TRIPS agreement

But not clear if legislation is required for implementation of all treaties

1. Legislation required :

Shivakumar Sharma vs UOI - treaties cannot be enforced in municipal courts unless backed by legislation

Court has said that treaties that affect citizens right need backing of legislation. Ex : BIRMA vs state - in case of extradition treaty since it affects the constn right of life and liberty under art 21 legislation is required

2. Legislation non required for ALL treaty

Beriberi union case no 2 : when territory demure belonged to Pakistan , giving it back doesn’t entail cessation of territory, so can be done by executive actiom and no need of legislation