International Law Notes and Study Material

By /

When studying for exams or delving deeper into the subject of Public International Law, having comprehensive and well-organized notes and study materials can make a significant difference. Public International Law, with its broad scope and intricate legal principles, covers a wide array of topics including the relationships between states, international organizations, and individuals. Understanding these facets is crucial for students, legal practitioners, and policymakers alike.

Public International Law governs the legal interactions between sovereign states and other international actors, shaping the framework for international relations and global governance. Rooted in customary practices and formal treaties, it addresses critical issues such as human rights, international humanitarian law, state sovereignty, and the responsibilities of states. Key elements include the maintenance of international peace and security, the regulation of armed conflicts, and the promotion of global cooperation on economic, social, cultural, and humanitarian matters.

In this blog post, we aim to provide you with essential notes and study materials that cover key areas of Public International Law. These resources are designed to help you grasp the fundamental concepts, navigate through the legal texts, and prepare effectively for your exams. From the foundational theories and sources of international law to the roles of international organizations like the United Nations, we offer a structured overview that caters to both beginners and advanced learners.

Join us as we explore the intricate world of Public International Law, offering insights and clarity to support your academic and professional journey.

Definition and Nature of International Law

  • Jeremy Bentham (1780): Introduced the term ‘international law’.
  • Oppenheim: “Law of nations or international law is the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other.”
    • Key elements:
      1. Governs relations between states.
      2. States regard these rules as binding.
      3. Rules derive from custom and treaties.

Criticisms of Oppenheim’s Definition:

  1. State-Centric: Ignores international organizations and institutions.
  2. Individual Rights: Post-UN, individuals also have certain rights and duties.
  3. Sources of Law: Not limited to custom and treaties; includes general principles recognized by civilized nations.
  4. Static Perception: International law is dynamic and evolves over time.
  • Starke: “International law is composed of principles and rules of conduct which states feel bound to observe and commonly observe in their relations with each other, including the rules relating to international institutions, individuals, and non-state entities.”

Nature of International Law: Is it True Law?

  • Austin’s View:
    • International law is not true law because it lacks a sovereign legislative authority and sanctions.
    • Considered rules of ‘positive morality’.
    • Criticized by sociological, legal realism, and historical schools.
    • Criticisms:
      1. Customary Laws: Ignored in Austin’s definition.
      2. Moral Obligation: Laws are also followed due to inner morality (Henry Maine).
      3. Recognition in Practice: States recognize international law and try to justify their actions within its framework (Oppenheim).
    • Holland’s Remark: Described international law as the vanishing point of jurisprudence, implying its lack of a sovereign authority and sanctions.

Basis of International Law: Theories

  • Grotius (De jure Belli Pacis, 1625):
    • Introduced the idea of natural law, emphasizing rules rooted in human reason and natural law.
    • Basis: Law of reasons, customs, and treaties.

Theories on the Basis of International Law:

1. Naturalist Theory:

  • Proponents: Grotius, Pufendorf, Vattel.
  • Concept: Law is based on natural law derived from God, reason, or morals.
  • Criticisms: Too vague; the meaning of natural law is not clear.

2. Positivist Theory:

  • Concept: Law is based on the consent of states.
  • Mechanisms of Consent:
    • Express Consent: Through treaties.
    • Implied Consent: Through customs.
  • Criticism: Relies heavily on state consent, ignoring broader principles.

3. Eclectic Theory:

  • Concept: Combines elements of naturalist and positivist theories.
  • Middle Ground: International law derives from both natural law and the consent of states.
  • Strength: More balanced and comprehensive view.

Key Case Laws and Relevant Sections

1. Customs and Usages:

  • Case: Customary practices influencing legal decisions (various international disputes).

2. Judicial Decisions:

  • Hamira Bibi Vs Zubaida Bibi: Allowed interest on Dower, modifying pure Muslim law.

3. Legislation:

  • Shariat Act, 1937: Codified aspects of Muslim law.
  • Dissolution of Muslim Marriage Act, 1939: Provided legal framework for divorce.

4. Justice, Equity, and Good Conscience:

  • Application: Principles guiding judicial decisions in the absence of specific rules.

Whether International Law is a Weak Law

Starke’s View:

  • Lack of Effective Executive Authority: No centralized body to enforce international rules.
  • Greater Uncertainty: Rules are often ambiguous and rely on state consent.
  • Lack of Effective Sanctions: Enforcement mechanisms are weak, leading to frequent violations.
  • Failure to Maintain Order and Peace: International law has struggled to prevent conflicts and maintain global peace.

Reasons for Weakness:

1. No Centralized Legislative Authority:

  • Municipal Law: Clear legislative procedures by a sovereign authority.
  • International Law: Dependent on treaties and customs, leading to ambiguity.

2. Lack of Enforcement Mechanisms:

  • Municipal Law: Enforced by domestic authorities.
  • International Law: Relies on voluntary state compliance.

3. Sanctions and Penalties:

  • Municipal Law: Defined penalties for violations.
  • International Law: Often lacks immediate punitive measures.

4. State Sovereignty and Consent:

  • Municipal Law: Binding on all individuals within a state.
  • International Law: States can choose not to comply.

Counterarguments to Starke’s View:

1. Increasing Codification and Institutional Support:

  • Treaties and International Institutions: Provide clearer rules and enforcement mechanisms.

2. Role of International Organizations:

  • UNSC and ICJ: Can impose sanctions and resolve disputes.

3. Customary International Law:

  • Accepted practices become binding norms, enhancing stability.

4. Moral and Political Pressure:

  • States comply to maintain good relations and avoid condemnation.

5. Human Rights and Global Governance:

  • International law protects human rights and addresses global challenges.

Functions of International Law

International law operates without a central authority, relying on the consent of states to perform its functions, which include:

  • Maintaining international peace and security
  • Developing friendly relations among nations
  • Achieving international cooperation on economic, social, cultural, and humanitarian issues
  • Settling international disputes peacefully
  • Prohibiting the threat or use of force against a state’s territorial integrity or political independence
  • Providing the right of self-determination to peoples
  • Ensuring fundamental freedoms and human rights

Subjects of International Law

Entities with international personality, capable of having rights, duties, and the capacity to make international claims, are subjects of international law. Theories on subjects include:

  • Realist Theory: States are the sole subjects.
  • Fiction Theory: Individuals are the ultimate subjects, with states as intermediaries.
  • Functional Theory: Recognizes states and other entities like international organizations as subjects, based on their capacity for rights and duties.

Sources of International Law

International law is created through various sources:

  • Custom: The oldest source, based on consistent and general state practices that become obligatory. Elements include duration, continuity, and generality.
  • Treaties: Formal agreements between states, embodying express consent. Can be general (open to many states) or particular (bilateral or limited in scope). Governed by principles like pacta sunt servanda (sanctity of contracts). The Vienna Convention (1969) codifies treaty law.
  • General Principles of Law: Recognized by civilized nations, these principles ensure justice and fairness, such as res judicata (finality of judgment) and equity.
  • Judicial Decisions: Subsidiary means for determining rules of law, with decisions binding only on the parties involved.
  • Writings of Jurists: Scholarly works used as a last resort to elucidate rules of international law.
  • Equity: Considerations of fairness and reasonableness, though not explicitly listed as a source by the ICJ statute.
  • Resolutions of the General Assembly: Important for the development and codification of international law through instruments like the Universal Declaration of Human Rights (1948) and other key resolutions.

Relationship of International Law and Municipal Law

International law and municipal (domestic) law interact, with some states incorporating international law directly into their legal systems, as seen in the USA and UK.

States in International Law

State: Defined as a society of people occupying a territory, bound together by common subjection to a government, and possessing the capacity to enter into relations with other entities.

Montevideo Convention (1933) Qualifications:

  1. Permanent population
  2. Defined territory
  3. Government
  4. Capacity to enter into relations with other states

Population: A community of individuals living together, regardless of race, creed, culture, or color.

Territory: The land occupied by the state, whose size is irrelevant. Disputes over precise borders do not negate statehood.

Government: Essential for governance and functioning of the state. Without a government, an entity is not considered a state.

Capacity to Enter into Relations: The ability to engage in diplomatic and international relations, distinguishing states in international law.

Kinds of States

  1. Sovereign States
  • Sovereignty: Supreme authority within territorial limits, independent of other earthly authorities.
  • Internal Sovereignty: Authority within the state.
  • External Sovereignty: Freedom in external affairs, including foreign policy and international relations.
  • Relative Sovereignty: Modern interpretation where sovereignty is limited by international law and obligations.
  • Sovereign Equality: Principle that all sovereign states are equal in status, irrespective of size or power, as recognized under Article 2, Para 1 of the UN Charter.
  1. Not Fully Sovereign States
  • Protectorate States: States under the protection of another state, surrendering certain international affairs (e.g., Bhutan and Sikkim with India).
  • Vassal States: Under suzerainty of another state, lacking independent international relations (e.g., former states under colonial rule).
  1. Not Typical States
  • Holy See: Governs the Catholic Church, possessing international personality despite its small size and unique structure.
  • Neutralized States: Declares neutrality in conflicts, guaranteed by international agreements (requires abstention from offensive actions, neutrality in wars, and guarantees by other states).

Rights and Duties of States

Rights:

  1. Right to Independence: Sovereignty and freedom from external control.
  2. Right to Territorial Jurisdiction: Authority over its territory.
  3. Right to Equality: Equal status among other states.
  4. Right to Self-Defense: Protecting itself against aggression.

Duties:

  1. Duty to Refrain from Intervention: Non-interference in other states’ affairs.
  2. Duty to Respect Human Rights: Upholding human rights and fundamental freedoms.
  3. Duty to Ensure International Peace: Promoting global peace.
  4. Duty to Settle Disputes Peacefully: Resolving conflicts without violence.
  5. Duty to Refrain from War: Avoiding engagement in warfare.
  6. Duty to Fulfill Obligations: Adhering to international commitments in good faith.
  7. Duty to Conduct Relations: Engaging with other states under international law.

Recognition of States

Recognition: Formal acknowledgment by existing states of a new state’s international personality. Recognition is essential for establishing legal relationships with other states.

Theories of Recognition:

  • Constitutive Theory: Statehood is conferred through recognition by other states.
  • Declaratory Theory: Statehood exists upon fulfilling statehood criteria, with recognition serving as a declaration of this fact.

Forms of Recognition:

  • Express Recognition: Formal declaration or notification (e.g., India recognizing Bangladesh in 1971).
  • Implied Recognition: Indication through acts without formal declaration (e.g., participation in international treaties).

Mode of Recognition:

  • De Facto Recognition: Provisional acknowledgment when the new state lacks full stability.
  • De Jure Recognition: Full and formal acknowledgment when the new state meets all criteria of statehood.

Nationality

1. Definition and Significance:

  • Nationality signifies the legal tie between individuals and the state.
  • Nationals owe permanent allegiance to their state.

2. Concept by Oppenheim:

  • Nationality of an individual is his quality of being a subject of a particular state.

3. Determination:

  • Determined by Municipal Law.
  • International Covenant on Civil and Political Rights (Article 12, para 4) and Universal Declaration of Human Rights (Article 15, para 1) emphasize the right to nationality.

4. Nationality vs. Citizenship:

  • Nationality: Legal relationship between a state and an individual under international law.
  • Citizenship: Relationship between a person and the Municipal Law. Irrelevant to international law.
  • All citizens possess nationality, but not all nationals may be citizens.

5. Modes of Acquisition:

  • By Birth (jus soli): Acquired by being born within a state’s territorial limits.
  • By Descent (jus sanguinis): Acquired based on parents’ nationality.
  • By Naturalization: Acquired by changing nationality through a legal process.
  • By Subjugation: Acquired after a territory is conquered and integrated.
  • By Registration: Acquired through a state’s registration process, varying by state laws.

Jurisdiction in International Law

Definition and Link to Sovereignty:

  • Jurisdiction: Authority granted to a legal body to handle legal matters.
  • In Public International Law, jurisdiction is tied to sovereignty, enabling states to govern persons or activities within their legal interest.

Territorial Jurisdiction:

  • Based on state sovereignty, it covers persons, property, and events within a state’s territory.
  • Extends to land, national airspace, internal waters, territorial sea, national aircraft, and vessels.
  • Includes crimes committed within its territory and those affecting it, leading to concurrent jurisdiction.
  • Case Law:Nottebohm Case (Liechtenstein v. Guatemala): Court ruled no substantial relationship between Nottebohm and Liechtenstein, dismissing the suit.
  • North Atlantic Fisheries Case (UK vs. Norway): ICJ upheld Norway’s territorial claims.

Criminal Jurisdiction:

  • Pertains to offenses where a person is accused.
  • Scenarios: Between states, federal and domestic courts, and offenses within state law.
  • Case Law:SS Lotus Case (France vs. Turkey): Court upheld Turkey’s jurisdiction over a French officer after a ship collision.

Types of Criminal Jurisdiction:

1. Territorial Jurisdiction:

  • Based on the geographical boundary of a court’s authority.
  • Case Law: Mubarak Ali Ahmad vs. State of Bombay: Conviction upheld despite the offense being committed from Karachi.
  • Director of Public Prosecution vs. DOOT: English courts had jurisdiction over drug offenses despite actions abroad.

2. Nationality Jurisdiction:

  • Jurisdiction over nationals accused of crimes abroad.
  • Active Nationality: Protects state’s interests abroad.
  • Passive Nationality: Jurisdiction where the offense took place.

3. Universality Jurisdiction:

  • Jurisdiction over certain crimes regardless of where committed, like piracy and war crimes.
  • Case Law: The Schooner Exchange vs. McFaddon: National ships are free from foreign jurisdiction.

4. Protective Principle:

  • Criminalizes acts outside borders that affect state security.
  • Case Law: Nicaragua vs. USA: ICJ ruled US violated Nicaragua’s sovereignty.
  • Abdul Kader Mahomed Jhaveri vs. Union of India: South African penalized for conducting business in India without permission.

5. Cross Frontier Jurisdiction:

  • Recognizes jurisdiction over external conduct affecting the state.
  • Case Law: Achille Lauro Incident: US planned to charge terrorists with piracy under its law.

Treaties and Conventions:

  • Tokyo Convention, 1963: Addresses offenses against civil aircraft in flight.
  • Montreal Convention: Criminalizes actions threatening civil aviation safety.

Conflicts and Immunities:

  • Conflicts arise with multiple states claiming jurisdiction.
  • Immunities:
    • Sovereign Immunity: States are exempt based on independence and equality principles.
    • Diplomatic Immunity: Diplomatic agents are immune from criminal jurisdiction.
    • Consular Immunity: Limited immunity to consular officers.

Extradition

1. Definition:

  • Extradition is the surrender of an accused or convicted individual to the state where the crime was committed.

2. Purpose:

  • Suppresses crime and acts as a deterrent.
  • Safeguards the territorial state from becoming a haven for international criminals.
  • Based on reciprocity and international cooperation.

3. Legal Duty:

  • Exists only when created by a treaty. Not a general legal duty under international law.

4. Extradition vs. Deportation:

  • Extradition: Involves two states, primarily in the interest of the requesting state, and applies to criminal prosecution.
  • Deportation: Unilateral action by the expelling state, may apply on various grounds.

5. Extradition of Political Offenders:

  • Customary international law generally prohibits the extradition of political offenders.
  • Indian Extradition Act, 1962, also incorporates this principle.

6. Key Principles in Extradition:

  • Double Criminality: Crime must be recognized in both the requesting and territorial state.
  • Rule of Specialty: Fugitive can only be tried for the offense for which extradition was granted.
  • Relative Seriousness: Treaties specify that only serious offenses are extraditable.
  • Prima Facie Evidence: Territorial state must be satisfied with the evidence against the accused before extradition.

7. Extradition Laws in India:

  • Governed by the Indian Extradition Act of 1962.
  • Extradition treaties define the framework for surrendering fugitives.
  • Pre-independence treaties are still considered, but practical utility depends on mutual recognition and notifications.

Asylum

1. Definition:

  • Asylum involves providing shelter and protection to a person by a state, refusing to surrender them to the requesting state.

2. Basis:

  • Sovereignty: Right of a state to control individuals on its territory.
  • Humanitarian Grounds: Protects individuals from unfair trials or persecution.

3. Forms:

  • Territorial Asylum: Granted within the state’s own territory.
  • Extraterritorial Asylum: Granted outside the state’s territory, such as in embassies (diplomatic asylum).

4. Legal Framework:

  • Universal Declaration of Human Rights (Article 14): Recognizes the right to seek and enjoy asylum.
  • Declaration on Territorial Asylum (1967): Defines principles for granting or refusing asylum.

Diplomatic Agents

  • Diplomatic Agents: Representatives residing in foreign countries on behalf of their home country, acting as a link between the sending and receiving states. They engage in diplomacy, maintaining and establishing mutual relations and conducting legal or political transactions.

Historical Context:

  • Ancient practices involved sending temporary envoys.
  • Permanent diplomatic missions started in the 17th century.
  • The Congress of Vienna (1815) codified customary rules on diplomatic ranks.
  • The Vienna Convention on Diplomatic Relations (1961) further codified diplomatic law.

Classification:

  • Ambassadors: Accredited to the head of state.
  • Envoys and Ministers: Accredited to the head of state.
  • Chargés d’Affaires: Accredited to Ministers of Foreign Affairs.

Functions:

  1. Representation: Represent policies and beliefs of the sending state.
  2. Protection: Safeguard the rights and interests of the sending state and its nationals.
  3. Negotiation: Conduct negotiations on behalf of the sending state.
  4. Observation: Monitor and report events in the host state affecting the sending state’s interests.
  5. Promotion of Relations: Foster social, cultural, and economic ties between the states.
  6. Consular Functions: Perform tasks such as registering births, deaths, and marriages, and issuing passports.

Diplomatic Immunities and Privileges:

  • Diplomatic agents are granted immunity from the jurisdiction of the host state, a principle deeply rooted in international law.

Theories Behind Immunity:

  1. Extraterritorial Theory: Diplomatic agents are considered within the jurisdiction of their home state, not the host state.
  2. Representational Theory: Diplomatic agents are personal representatives of the sovereign, receiving the same privileges as the head of state.
  3. Functional Theory: Immunities are granted to enable diplomats to perform their duties effectively.

Privileges and Immunities:

  • Inviolability: Diplomatic agents are inviolable and cannot be arrested or detained. The host state must respect and protect their personal freedom and dignity (Article 29, Vienna Convention).
  • Limited Exceptions: In exceptional cases (e.g., a diplomat posing a significant public threat), the host state may detain or arrest a diplomat.

UNITED NATIONS ORGANISATION

The failure of the League of Nations and the devastation caused by the Second World War prompted many to desire peace. This led to the creation of the United Nations (UN) on October 24, 1945. The UN was founded in the ashes of a war that brought immense sorrow to humanity.

San Francisco Conference 1945

The San Francisco Conference, officially known as the United Nations Conference on International Organization, consisted of delegates from 50 nations. They met on April 25, 1945, to discuss proposals made by the states. The last session of the conference was held on June 25, 1945, where the Charter was passed unanimously and signed by all 50 representatives on June 26, 1945. Poland signed the Charter on October 15, 1945, making the final count of signatories 51 states.

The UN did not come into existence immediately upon the signing of the Charter. Many countries required the Charter to be approved by their Congress or parliaments. The Charter would come into force when the governments of China, France, Great Britain, the Soviet Union, and the United States, along with the majority of the other signatory states, ratified it. The UN officially came into existence on October 24, 1945, upon ratification by 29 signatories, including the five permanent members of the Security Council. The name “United Nations” was taken from the Declaration of the United Nations and was a tribute to Roosevelt, who suggested it.

Preamble of the United Nations

The Preamble of the UN Charter sets forth the basic aims of the United Nations:

  1. To save succeeding generations from the scourge of war.
  2. To reaffirm faith in fundamental human rights.
  3. To establish justice and respect for international obligations.
  4. To promote social progress and better standards of life.

The Preamble also affirms that to achieve these ends, the people of the United Nations are determined:

  1. To practice tolerance.
  2. To live in peace as good neighbors.
  3. To unite to maintain peace and security.
  4. To ensure that armed forces shall not be used except in the common interest.
  5. To employ international machinery for the social and economic betterment of all peoples.

Purpose of the United Nations

Article 1 of the Charter outlines the purposes of the United Nations:

  1. To maintain international peace and security.
  2. To develop friendly relations among nations.
  3. To foster international cooperation in social, economic, cultural, and humanitarian matters.
  4. To develop respect for human rights and freedoms.
  5. To take necessary steps to achieve these objectives.

Principles of the United Nations

Article 2 lays down the following basic principles to be observed by both the UN and its members:

  1. The basis of the United Nations shall be the sovereign equality of its members.
  2. Member states shall fulfill in good faith their obligations under the Charter (e.g., pacta sunt servanda).
  3. Member states shall settle their disputes by peaceful means.
  4. Member states shall not threaten or use force against the territorial integrity or political independence of another member state.
  5. All member states are to assist the UN when it takes preventive or enforcement actions against a state.
  6. The UN shall ensure that non-member states act in accordance with these principles as necessary for maintaining international peace and security. This right is supported by the decision of the ICJ in the Reparation for Injuries Suffered in the Service of the United Nations case.
  7. The UN shall not interfere in matters within the domestic jurisdiction of member states.

Membership of the United Nations

The UN is an intergovernmental organization where only sovereign independent states can be members. According to Article 4, membership is open to all peace-loving states that accept the obligations of the Charter and are able and willing to carry them out. However, no state has an automatic right to be admitted as a member of the UN.

There are two types of members:

  1. Original members: Those states that participated in the San Francisco Conference on April 25, 1945, and signed and ratified the Charter.
  2. Members subsequently admitted: A state can be admitted when it is first recommended by a majority of the Security Council members, including all five permanent members, and later approved by a two-thirds majority of the General Assembly.

The ICJ, in its advisory opinion on the Conditions of Membership in the United Nations (1948), stated that without a favorable recommendation by the Security Council, the General Assembly cannot admit a new member on its own. Conversely, the General Assembly can reject the Security Council’s recommendation for membership of a state.

Suspension and Expulsion

  • Article 5: A member state against which preventive or enforcement action has been taken by the Security Council may be suspended by the General Assembly upon the recommendation of the Security Council.
  • Article 6: The General Assembly may expel a member state upon the recommendation of the Security Council if it persistently violates the principles of the Charter.

GENERAL ASSEMBLY

The General Assembly is one of the principal organs of the United Nations. Provisions relating to the General Assembly are contained in Chapter IV of the Charter, comprising Articles 9 to 22.

Composition

Article 9: The General Assembly consists of all members of the United Nations. Each member has equal status, irrespective of size, power, or importance. Each member can have up to five representatives in the General Assembly.

Voting System

Each member of the General Assembly has one vote. The principle of equality of the members is strictly observed. Decisions on important questions, as specified under Article 18, paragraph 2 of the Charter (e.g., maintenance of international peace and security, election of non-permanent members of the Security Council, admission, suspension, and expulsion of members, budgetary matters), require a two-thirds majority of members present and voting. Other questions are decided by a simple majority of the members present and voting.

Article 19: A member in arrears in its financial contributions to the organization, where the amount equals or exceeds the contributions due for the preceding two full years, shall have no vote in the General Assembly. The Assembly may permit such a member to vote if the failure to pay is due to conditions beyond the member’s control.

Functions and Powers

The functions and powers of the Assembly are laid down under Articles 10 to 17 of the Charter.

General Functions

Article 10: The Assembly has wide powers to discuss any questions or matters within the scope of the Charter or relating to the powers and functions of any organs provided for in the Charter.

Promotion of International Cooperation

Article 13: The Assembly is specifically conferred with the power to initiate studies and make recommendations for the promotion of international cooperation in two fields:

  1. Political field: Encouraging the progressive development of international law and its codification.
  2. Economic, social, cultural, educational, and health fields: Assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Elective Functions

The Assembly is commonly known as the central body of the United Nations because it elects members to other organs:

  1. Security Council: Elects all ten non-permanent members. Five members are elected every year as per Article 23, paragraph 2.
  2. Economic and Social Council: Elects all 54 members. Eighteen members are elected every year as per Article 61, paragraph 3.
  3. Trusteeship Council: Elects some members as per Article 86.
  4. International Court of Justice: Elects 15 judges through a parallel voting system by the Security Council and the General Assembly independently.
  5. Secretary-General: Appointed by the General Assembly on the recommendation of the Security Council as per Article 97.
  6. Subsidiary Organs: Elects members for subsidiary organs created under Article 22.

Election to any of the three councils (Security Council, Economic and Social Council, and Trusteeship Council) requires a two-thirds majority as per Article 18, clause 2.

Supervisory Functions

The Assembly supervises the activities of other organs and specialized agencies of the organization. It considers annual and special reports of the Security Council (Article 15, paragraph 1) and reports of other organs such as the Economic and Social Council, Trusteeship Council, International Court of Justice, and the Secretariat (Article 15, paragraph 2).

United Nations Security Council

Chapter V of the Charter: Articles 23 to 27 lay down the provisions relating to the Security Council.

Composition

  • Original Membership: The council originally consisted of 11 members, but it was enlarged to 15 members in 1965 through an amendment to the Charter.
  • Permanent Members: There are 5 permanent members.
  • Non-Permanent Members: The remaining 10 members are non-permanent. They are elected by the General Assembly for a term of 2 years, with 5 members being elected each year to ensure continuity.
    • Eligibility: Retiring members are not eligible for immediate re-election (Article 23 Para 2).
    • Criteria for Election:
      1. Contribution to the maintenance of international peace and security and other purposes of the organization.
      2. Equitable geographical distribution (5 members from Afro-Asian nations, 1 from Eastern Europe, 2 from Latin America, and 2 from Western countries).
    • Ad Hoc Membership: Article 31 allows any UN member, not part of the Security Council, to participate in discussions without voting rights if its interests are especially affected. Article 32 allows any UN member or non-member state to participate without a vote in discussions relating to disputes to which it is a party.

Voting Procedure

  • One Vote per Member: Each member state has one vote.
  • Decisions on Procedural Matters: Require an affirmative vote of 9 members.
  • Decisions on Substantive Matters: Require an affirmative vote of 9 members, including the concurring votes of all 5 permanent members (veto power). The double veto can be applied: first, by determining if a matter is procedural and second, by casting a vote on the substantive matter.

Veto Power

  • Origin: During the San Francisco conference, the big five (permanent members) insisted on veto power as they believed the main responsibility for maintaining world peace would fall on them.
  • Criticism:
    1. Creates a distinction between permanent and non-permanent members.
    2. Contradicts the principle of sovereign equality.
    3. Concentrates decision-making power in the hands of five countries.
    4. Prevents action against the permanent members themselves.

Functions of the Security Council

A. Maintenance of International Peace and Security

1. By Peaceful Means:

  • Chapter VI outlines various peaceful means for settling disputes:
    • Member states can bring disputes under Article 35 para 1.
    • Non-member states can bring disputes under Article 35 para 2.
    • Disputant parties can refer disputes under Article 38.
    • The General Assembly can call attention to disputes under Article 11 para 3.
    • Secretary-General can bring matters to the Council under Article 99.

2. By Enforcement Action:

  • Non-Use of Force: Article 41 allows the Council to call upon members to take measures not involving armed forces, such as economic sanctions and diplomatic measures.
  • Use of Armed Force: Article 42 allows the Council to take action by air, sea, or land forces if measures under Article 41 are inadequate.

B. Miscellaneous Functions

  1. Admission of New Members: Recommends the General Assembly for admitting new members (Article 4 para 2).
  2. Suspension or Expulsion: Recommends the General Assembly to suspend (Article 5) or expel (Article 6) a member.
  3. Appointment of Secretary-General: Recommends the appointment of the Secretary-General (Article 97).
  4. Amendments to the Charter: Amendments require a two-thirds majority in the General Assembly, including all permanent members of the Security Council (Article 108).

The International Court of Justice (ICJ) has a significant role in the international legal framework. Here’s a breakdown of the information you provided:

Establishment and Objectives:

  • The idea of a permanent international court to settle disputes was proposed during the Second Hague Peace Conference, with the Permanent Court of International Justice established in 1921 under the League of Nations.
  • After the League’s dissolution, the International Court of Justice (ICJ) began functioning in 1946, following the provisions of its statute integrated into the UN Charter.
  • The ICJ’s main objectives include settling international disputes submitted by states based on principles of justice and international law and providing advisory opinions on legal questions to authorized bodies under the UN Charter.

Composition and Appointment of Judges:

  • The ICJ consists of 15 judges, ensuring geographical diversity among them.
  • Judges are elected by the General Assembly and the Security Council independently from a list of nominees.
  • They serve for nine years, with five judges retiring every three years but eligible for re-election.
  • Judges must declare their impartiality, possess high moral character, and meet qualifications akin to their countries’ highest judicial officers.

Jurisdiction:

  • Only states can be parties in ICJ cases, including UN members and non-members under certain conditions.
  • Individuals cannot directly access the ICJ; their petitions are not entertained.
  • ICJ’s jurisdiction includes contentious cases referred by parties, matters specified in the UN Charter, and treaties or conventions.
  • Advisory opinions are given on legal questions at the request of authorized bodies.

Judgements and Enforcement:

  • ICJ judgements are final and binding between parties for the specific case.
  • States must comply with ICJ decisions under the UN Charter.
  • Failure to comply can be brought to the Security Council for enforcement, subject to the Council’s decisions, which may include measures under Articles 41 and 42 of the Charter.

Settlement of Disputes:

  • Disputes can be settled through various peaceful means such as negotiation, good offices, mediation, enquiry, and conciliation, either directly by parties or with the assistance of third parties or UN organs like the General Assembly and Security Council.

Judicial settlement refers to the resolution of disputes by international tribunals according to international law. The International Court of Justice (ICJ) is currently the most prominent international tribunal. Distinct from municipal tribunals that apply local laws, international tribunals apply rules of international law. Arbitration and ICJ proceedings are significant modes of judicial settlement.

Arbitration:

  • Recognized by the UN Charter under Article 33 para 1 as a dispute settlement method.
  • Involves binding awards based on voluntarily accepted legal procedures between two states.
  • Arbitration is often chosen by disputing parties, requiring their consent.
  • Arbitral tribunals are composed of arbitrators appointed by the parties, usually 3 to 5 members.
  • The award is binding unless arbitrators exceeded their power, act under coercion or bias, or make material errors influenced by malicious acts.

International Court of Justice (ICJ):

  • Established to decide state disputes, succeeding the Permanent Court of International Justice.
  • Requires parties’ consent for case hearings.
  • Differs from arbitration in its permanence, judges’ election, representation, functions, and accessibility.
  • ICJ applies rules per Article 38 of its statute, with public proceedings and published records.
  • Operates within the UN framework, enforcing non-use of force and peaceful dispute settlement principles.

Compulsive or Coercive Means:

  • Retortion refers to retaliation actions, responding similarly to previous state actions.
  • Reprisals involve coercive measures to seek redress for unjust acts, restricted post-UN formation to non-forceful actions.
  • Embargo denotes trade limitations for economic pressure, applied individually or collectively under UN authorization.
  • Pacific blockade, during peace, is now deemed illegal under UN regulations, preventing coercive actions affecting international peace and security.

Overall, post-UN formation, coercive measures like reprisals, embargo, and blockade are limited to non-threatening actions, with retortion as the only permissible coercive method, ensuring international peace and security.

Concept of Human Rights and International Humanitarian Law

  • Human Rights: Fundamental rights and freedoms that every individual is entitled to.
  • International Humanitarian Law (IHL): Branch of international law aiming to limit the effects of armed conflict, protecting those not participating in hostilities and restricting means of warfare.

Key Principles of International Humanitarian Law

1. Principle of Humanity:

  • Respect for human dignity and protection of individuals in conflict.
  • Case Law: Legality of the Threat or Use of Nuclear Weapons (1996): ICJ emphasized the principle of humanity, highlighting the necessity to protect individuals in armed conflicts.

2. Principle of Distinction:

  • Differentiating between civilians and combatants, and civilian objects and military objectives.
  • Case Law: Prosecutor v. Kupreškić et al. (ICTY, 2000): ICTY held that the principle of distinction is a fundamental rule of IHL, condemning attacks on civilians.

3. Principle of Proportionality:

  • Ensuring that military actions do not cause excessive harm to civilians in relation to the anticipated military advantage.
  • Case Law: Prosecutor v. Galic (ICTY, 2003): ICTY ruled that disproportionate attacks violating the principle of proportionality are war crimes.

4. Principle of Military Necessity:

  • Use of force must be necessary for achieving a legitimate military objective.
  • Case Law: United States v. Wilhelm List (Nuremberg Trials, 1948): Established that military necessity does not justify the killing of civilians and destruction of property.

Geneva Conventions of 1949

  • Article 4: Protection of prisoners of war.
  • Article 27: Protection of civilian persons in times of war.
  • Case Law: Democratic Republic of the Congo v. Uganda (ICJ, 2005): ICJ found Uganda in violation of Geneva Conventions for failing to protect civilians during its military operations in the DRC.

Historical Background of International Humanitarian Law

  • Ancient Provisions: Laws of Manu (Mahabharata) and Code of Hammurabi included early rules to protect non-combatants.
  • Modern Codification: Lieber Code (1863) for the Union Army in the American Civil War, emphasizing humane treatment of prisoners and civilians.
  • Case Law: The Hostages Trial (Nuremberg Trials, 1948): Confirmed that principles from historical codes (e.g., Lieber Code) underpin modern IHL.

Basic Principles of International Humanitarian Law

  1. Humanity: Respect and care for all individuals, including enemies.
  2. Military Necessity: Use of force must be necessary and proportionate to the military objective.
  3. Distinction: Differentiation between combatants and non-combatants.
  4. Prohibition on Causing Unnecessary Suffering: Restrictions on weapons and methods causing superfluous injury or suffering.

Specially Protected Persons and Objects

  • Examples: Medical personnel, humanitarian relief workers, journalists, cultural properties.
  • Case Law: Prosecutor v. Akayesu (ICTR, 1998): ICTR recognized the protection of medical and humanitarian personnel during conflicts.

Major Weapons and IHL Treaties

  • Explosive Projectiles (<400g): Declaration of Saint Petersburg (1868).
  • Chemical Weapons: Geneva Protocol (1925); Chemical Weapons Convention (1993).
  • Biological Weapons: Biological Weapons Convention (1972).
  • Case Law: Advisory Opinion on the Legality of the Use of Nuclear Weapons (ICJ, 1996): Emphasized limitations on the use of nuclear and other mass destruction weapons.

Distinction Between International and Non-International Armed Conflict

  • International Armed Conflict: Rules apply between states (e.g., Additional Protocol I to Geneva Conventions).
  • Non-International Armed Conflict: Limited treaty rules (e.g., Common Article 3 of the Geneva Conventions; Additional Protocol II).
  • Case Law: Tadić Case (ICTY, 1995): Defined criteria for distinguishing between international and non-international armed conflicts.

Contemporary Developments

  • Implementation and Teaching: Efforts by the ICRC to encourage states to adopt and teach IHL.
  • Case Law: Hungary v. Slovakia (ICJ, 1997): ICJ applied principles of environmental law in the context of IHL, highlighting the contemporary relevance of IHL principles.

Key International Conventions

  • Ottawa Treaty: Bans anti-personnel mines, result of international efforts to protect civilians.
  • Geneva Conventions: Core of IHL, protecting those not participating in hostilities.
  • Vienna Convention: Governs treaties between states, essential for the formation and application of IHL.

Outer Space and Space Law

Space, unlike Earth, is an expansive and boundless domain with no divisions or national boundaries. It is an area open to exploration and use by all humanity, but this freedom raises questions about property rights, governance, and the rules that regulate space activities. In this article, we will delve into how space laws govern space exploration and who has the authority to enforce these regulations.

The Birth of Space Law

The advent of space exploration began in 1957 with the Soviet Union’s launch of Sputnik. In response, the United Nations established the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) to address the legal and regulatory aspects of space exploration.

United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS)

Formation and Purpose:

The General Assembly established UNCOPUOS in 1959 to regulate space exploration. Its primary objectives include ensuring that space is used peacefully, promoting international cooperation in space activities, and addressing legal issues related to space utilization.

Functions:

UNCOPUOS meets annually in Vienna, Austria, and addresses various space-related issues, including:

  • Maintenance of outer space for peaceful purposes
  • Safe conduct of space operations
  • Management of space debris
  • Space weather monitoring
  • Addressing asteroid threats
  • Use of nuclear power in space
  • Climate change and water management
  • Global navigation satellite systems

Sub-Committees of UNCOPUOS

1. Scientific and Technical Sub-Committee:

  • Meets annually for two weeks to discuss scientific and technical aspects of space activities.
  • Topics include space weather, near-Earth objects, space technology for socio-economic development, disaster management, global navigation satellite systems, and sustainability of space activities.

2. Legal Sub-Committee:

  • Also meets annually for two weeks to address legal issues arising from space exploration.
  • Topics include the status and application of the five UN space treaties, defining outer space boundaries, legislating space activities, space debris mitigation, and international cooperation mechanisms.

Treaties Concluded by UNCOPUOS

UNCOPUOS has formulated five key treaties that govern space activities:

1. Outer Space Treaty:

  • Establishes a framework for space exploration, emphasizing peaceful use and non-damage to the space environment.

2. Moon Treaty:

  • Regulates activities on the Moon and other celestial bodies, ensuring they are used for peaceful purposes and shared by all countries.

3. Rescue Agreement (1968):

  • Mandates that states must assist astronauts in distress and return space objects to their originating states.

4. Liability Convention:

  • Establishes liability rules for damage caused by space objects. States are liable for damage their space objects cause.

5. Registration Convention:

  • Requires states to register space objects and provide orbital information to the United Nations.

Ownership of the Moon

The question of Moon ownership has intrigued many. According to the Outer Space Treaty, the Moon and other celestial bodies are accessible to all states for exploration without national appropriation. This means no single state can claim sovereignty over the Moon.

Conclusion

Space law, as governed by UNCOPUOS and the treaties it has established, ensures that space remains a domain for peaceful exploration and use by all humanity. It provides a framework for international cooperation, legal accountability, and the responsible conduct of space activities, maintaining space as a shared resource for future generations.

Scroll to Top