Public International Law & Human Rights

KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

(An e-initiative by KCL)

NOTES ON

Code

:

107

Subject

:

Public International Law & Human Rights

Course

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VII

Class

:

LL.B. 1st Yr

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

LL.B. Ist Year International Law & Human Rights

Q.1

What are the different sources of International Law?

Ans. Sources :- Sources of International Law can be classified into the following Categories :1.

International Conventions or Treaties :- The term “Conventions” applies to any treaty, protocol or agreement, regardless of its title or form. According to Article 38 of the statute of international Court of justice, it is the first source of International law. Art. 2 of Vienna Convention on the Law of Treaties 1969, “A treaty is an agreement whereby two or more states establish or seek to establish relationship between them governed by International law.” International Treaties may be following two types :-

A)

Law Making Treaties :- Law making treaties are those treaties which are entered into by a large number of states. These are the direct sources of law. Treaties may be divided into following two types.

(i)

Treaties enuciating the rules of universal International Law :- Those treaties which are signed by a majority of the states are called the Treaties enunciating the rules of universal International Law. United nations charter is an example of type of treaties.

(ii)

Those enunciating general principles :- Treaties which are entered into by a large number of Countries enunciated general principles of International law 1958 and 1960. Geneva Con ventions on the law of the Sea is good examples of such types of Treaties.

B)

Treaty Contracts :- Treaty contracts are those treaties which are entered into by two or more states Such type of treaties are also the source of International law because they held in the development of customary rules of International law.

2.

International Customs :- International Customs used to be the most important source of International law in the past. In the modern period, their importance has lessened. In the words of Viner, “A custom, in the intendment of law, in such a usage as hath obtained the force of law.” Customary rules of international law have developed in the following three Circumstances :- (a) Diplomatic relations between states (b) practice of organs of 2

KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

International Institutions and (c) State laws, decisions of the State‟s Courts and State‟s parliamentary or administrative practices. West Rand Central Gold Mining Co. Ltd. V.R. (1905) 2 K.B. 291 (Right of passage over Indian Territory Case), Porttugal V. India (I.C.J. Rop. 1960 at 6) are good examples of

application of custom in international law.

3.

General principles of law recognised by the civilized states :- The general principles of law recognised by the civilized nations is an important source of law through which International law adopts itself in accordance with the changing times and circumstances. In the words of Lord Mc Nair, “it describes an inexhaustible reservoir of legal principles from which the tribunals can enrich and develop public International Law,” Res Judicata, estoppel, etc. are examples of the general principles of law recognised by civilized states.

Following are some of the important cases relating to the general principles of law recognised by civilized states :a)

R.Key (1876) 2 Ex. D.63 -

b)

United States V. Schooner :-

c)

Charzow factory (Indemnity Case), Pub. P.C.I. (1938), Serious A, NO.17 -

d)

Bracelona Traction Case, Preliminary Objectives, (I.C.J Rep. (1964) P.6)

International Courts have recognised the following general principles : (1) good faith (2) responsibility (3) prescription (4) In the absence of any express provisions of the Contrary, every Court has a right To determine the limits of its own jurisdiction (5) a party to a dispute cannot himself be an arbitrator or judge (6) resjudicata (7) In any judicial proceeding, the Court shall give proper and equal opportunity of 3

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hearing to both parties.

4)

Decisions of Judicial and Arbitral Tribunals - According to Art. 38 of the International Court of Justice, the decision of Judicial and Arbitral Tribunals are Subsidiary means for the determination of the rules of law, Art. 59 of the Statute of international Court of Justice provides that they will have “no binding force except between the parties and in respect of that particular case”.

5)

Juristic Works :- The opinions of jurists are also regarded as subsidiary means for the determinations of the rules of International law.

6)

Decisions or Determations of the Organs of International Institutions :- In the modern age the decisions of the organs of international institutions are also treated as sources of International law. After the establishment of U.N. most of the development of International law and its codification has taken place through the instrumentality of International Organisation. The International Court of Justice has recognized it in a number of Cases such as certain expenses of the U.N.(1962), South West African Cases (1966), Effects of Awards of compensation made by the U.N. Administrative Tribunal (1954).

Some other Subsidiary sources of international law :- following are the other Subsidiary sources of International law :1)International Comity 2) State papers 3) State guidance for their officers 4) Reason 5) Equity and justice

Q.2

Write a critical envoy on Universal declaration of Human Rights 1948.

Ans. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS :- In 1948, the General Assembly passed the Universal Declaration of Human Rights. This has been hailed as a Victory of Individuals in respect of Human Rights. There are 30 Articles in Declaration which describe in

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

detail human rights and fundamental freedoms. For examples : Article I provides, “ All human beings are born free and equal in dignity and rights, they are endowed with reason and conscience and should act to one another in spirit of brotherhood.” Some writers have expressed the view that the Universal Declaration has now assumed legal value. Dr. Nagendra Singh has remarked :- The Declaration, was not a mere resolution of the General Assembly but a continuation of the charter and had the dignity f the Charter” This seems to be the correct view. Prof. Louis B.Sohn has also remarked that the Declaration “Constitutes an authoritative interpretation of the Charter, which is binding upon Members to the extent that the charter is binding,” PROVISIONS OF THE U.N. DECLARATION ON HUMAN RIGHTS :Provisions of the Universal Declaration of Human Rights may be classified into four categories :- General (Articles 1 and 2) Art.1 of the declaration provides that all human beings are born free and equal in dignity and rights, they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Art.2 provides that everyone is entitled to all the rights and freedoms set forth in the Declaration without distinction of any kind, such as race, Colour, Sex, language, religion, Political or other opinion, national or social origin, property, birth or other Status. Civil and Political - Civil rights include rights such as right to life and liberty (Article 3) Article 4 says that slavery and the slave trade shall be prohibited in all their forms. Article 5 embodies that no one shall be subjected to torture or to cruel, in human or degrading treatment or punishment. Article 6 to 11 provides Rights to Equality before law and Legal Remedies. Article 12 says that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Article 13 provides Right to Freedom of Movement to leave any Country and return to his country. Article 14 Right to seek asylum Article 15 Right to Nationality. Article 17 Right to own property 5

KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

Article 18 provides Right to freedom of Thought, Conscience and Religion, Article 19 :- Right to Freedom of opinion and Expression Article 20 and 21 provides Right to freedom of peace Assembly and Association.

ECONOMIC, SOCIAL AND CULTURAL RIGHTS :Article 22 :- Economic, Social and Cultural rights include the Right to Social Security. Art 23 :- Right to work, free choice of employment. Art 26 :- right to Education Art 27 :- Right to enjoy Arts and share in Scientific achievement Concluding Articles :- These articles recognize that everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized (Article 28) and they stress the duties and responsibilities which the individual owes to the Community (Article 29). Lastly, Article 30 provides that nothing in the Declaration may be interpreted as implying for any state, group, or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth in the Declaration. The Declaration was originally conceived of as a statement of objectives to be achieved by Governments and as such, not part of binding law. But now, 54 years later, it is accepted by so many states that it is considered to be an international standard against which their behaviour is measured.

Q.3

Define State and non state entities point out the difference between Vassal Status and protectorates.

Ans

State - State is the main Subject of International law. According to Salmond,” State is a Community of people which has been established for some objectives such as, Internal order and external Security.” Different kinds of States and Non-State entities

1. Confederation:-It is formed by states who are independent in the international field. Under International law Confederation has no international personality the states forming Confederation are not treated as International persons.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

2. Federal State:- Generally a federal state is formed by the merger of two or more sovereign states. A federal state is an international person under international law. 3. Condominium:- Condominium is a territory where two or more states exercise Sovereignty. New Hebrides is a good example of Condominium. 4. Vassal State:- A Vassal state is a state which is under the Suzerainty of another state. Its Independence is so restricted that it has no Importance under international law. 5. Protectorate State:- A protectorate state is a state which entrusts some of its important functions to another Sovereign State. It retains a Sufficient measure of Sovereignty and remains a state under International law. For example, Bhutan is a protectorate state of India. 6. Trust Territories-Composition of the TRUSTEESHIP COUNCIL:- As provided under Article 86 of the U.N. charter, Trusteeship Council Comprises of the following members of the U.N. (a) Those members who are administering trust territories‟. (b) The permanent members of the Security Council as are not administering Trust territories and (c) As many other members elected for three years‟ term by the general Assembly as may be necessary to ensure the total number of members of the Trusteeship Council is equally divided between those members of the United Nations which administer trust Territories and those which do not.

FUNCTIONS AND POWERS

(1) It may consider reports submitted by the Administering Authority. (2) It may accept petitions and examine in Consultation with the Administering Authority. (3) It may provide for periodic Visits to the respective Trust Territories at times agreed upon with the Administering Authority. The Trusteeship Council has done Commendable work. The number of inhabitants living in trust Territories has been Constantly decreasing every year. The last territory was Palau which became a member of the U.N. in December1994.

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

Difference between protectorate and Vassal state Protectorate State generally

Vassal State

1. A protectorate State generally entrusts 1. Vassal State is generally its defence, external

autonomous in its internal matters

affairs etc. to another State.

,

but is Completely dependent upon another state in external matters.

2. A protectorate State remains a

2. A Vassal State is not treated a State under

State Under International law.

international law.

3. Since a protectorate State retains a 3 A Vassal State is bound by treaty of sufficient

measure

of

Sovereignty,

war or peace entered into by the State

declaration of war or peace made by

under whose international

the protecting State with another State

guardianship in remains.

is not binding upon it.

Q.4(a) Explain the Maxim Pacta Sunt Servanda. (b) Write a short note on United National Commission of Human Rights. Ans.(a) Pacta Sunt Servanda – According to Anzillotti, the binding force of International law is founded on the fundamental principles known Pacta Sunt Servanda, which means that the agreements entered into by the States must be followed by them in good faith. This principle, though a fundamental and very important principle of International law, fails to explain the binding force of customary rules of international law. as aply remarked by an author, “The realization that international customary law does not rest on agreements and that the tenet of “pacta Sunt Servand” is itself a rule of decided on a formula which takes into account of usage as the fact which is the origin of the rules of International Law. “States ought to behave a they have customarily behaved.” (b) U.N. Commission on Human rights – The Commission on Human Rights was established by the Economic and Social Council in February, 1946. It is the nearest approach to permanent 8

KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

machinery for the supervision of the “problem of protection” of human rights. It is one of the six functional commission established by the Economic and Social Council. Under its terms of reference the commission was directed to prepare recommendations and reports on (1) an International Bill of Human Rights (2) International Conventions or declarations on Civil liberties : the status of women, freedom of information and similar other matters.

3.

The protections of minorities

4.

The prevention of discrimination on the basis of race, sex, language or religion, and

5.

Other matters concerning human rights. The Commission‟s terms of reference are extensive : under them, it may deal with any matter concerning human rights. The Commission makes studies and recommendations either on its own initiative or at the request of the General Assembly or the Economic and Social Council. The Commission consists of 43 members elected for 3 years terms and meets annually or a period of five or six weeks. At present, these are 53 members of the Commission. All Commission decisions are made by a majority of the members present and voting. The Commission submits a report on each session to the Economic and Social Council. At its first session in 1947, the Commission established the Sub-Commission on prevention of Discriminations and protection of minorities. 842 the commission was held from 14th March to 22nd April, 2005 and discussed the report of the Commission in Iraq.

Q.5

How for the individual can be said the subject of International Law.

Ans. In recent times several treaties have been entered into wherein certain rights have been conferred and duties have been imposed upon the individuals. In this connection following may be noted : (i)

Pirates – Pirates are treated as enemies of mankind under international law. Every State can apprehend and punish them.

(ii)

Harmful acts of Individuals – Under certain circumstance States are responsible for the harmful acts of their individuals. If a person causes harm to the personal property of the Ambassador of another State, then under international law the State is responsible for his act. Such persons are, therefore, given stringent punishment. 9

KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

(iii)

Foreigners – To some extent international law regulate the conduct of foreigners. It is the duty of each State to give them those rights which it generally confers upon its own citizens.

(iv)

War Criminals – War criminal can be punished under international law. According to Nuremberg and Tokyo Tribunals, since war crimes are committed by the individuals, it is by punishing them the provisions of international law can be enforced.

(v)

Espionage – Espionage is a crime under international law and, therefore, spies can be apprehended and punished.

(vi)

The United Nations Charter gives a place of importance to the individuals. An individual of any member State of the U.N. who claims to be the victim of violation of Human Rights by his own State may send a petition to the Commission through the SecretaryGeneral of the U.N.

(vii)

The 1965 Convention on the Settlement of Investment Disputes between the State and the Nationals of other States is a glaring example of such benign trend.

Thus slowly and gradually individuals are occupying an important place under international law

Q.6

Write a short note on – (i) (W.T.O.) World Trade Organisation (ii) UNESCO

Ans. Establishment of WTO – As a result of the culmination of Uruguary Round of GATT Negotiations for more than seven years at Marrakesh (Morocco) on April 15, 1994. The new World Trade Organisation (WTO) which came into effect on January 1, 1995, replaced the GATT. W.T.O. is in fact the main organ for implementation of Multilateral Trade Agreements. Membership – There are two types of members –(i) original; and (ii) other members. The original members comprise : (a) The members of the GATT as on the date of entry into force of the agreement : and

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

(b) the European Communities which accept this Agreement and the Multi Trade Agreements and of which schedules of Concessions and Commitments are annexed to the Gatt 1994 and four which also schedules of specific commitment are General Agreement on Trade in Services. Withdrawal from Membership - Any member may withdraw from this agreement by giving a written notice to the Director-General of the W.T.O. The withdrawal takes effect after the expiry of six months. Structure – The W.T.O. consists of following bodies – (i)

The Ministerial Conference – It is the highest body comprising of the representatives of all members. It is the executive of the W.T.O. and carries out functions of W.T.O. It meets atleast once every two years.

(ii)

The General Council – It is also comprised of the representatives of all members. It meets between the meetings of Ministerial Conference and carries out the functions of the W.T.O.

(iii)

The Dispute Settlement Body

(iv)

Trade Policy Review Body

(v)

The Committee on Trade and Development, the Committee on Balance of Payment Restrictions and Committee in Budget and Administration

(vi)

Bodies provided under the plurilateral Trade agreements.

(vii)

The Secretariat – The Secretariat is headed by a Director-General appointed by the Ministerial Conference.

On May 13, 2005, Pascal Lamy was elected the Director

General. He took over from Supachai Panit Chipakdi on September 1, 2005. Functions of W.T.O. – According to Article III of the Agreement following are the functions of the W.T.O. (i)

To facilitate the implementation operation, administration and the promotion of the agreement (i.e. of 1994) and the Multilateral Trade Agreement and also of the Plurilateral Trade Agreements;

(ii)

To administer the rulers and procedures governing the settlement of disputes;

(iii)

To administer the Trade Policy Review Mechanism (TPRM);

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KAMKUS COLLEGE OF LAW ( BHAGIRATH GROUP OF INSTITUTIONS) (Affiliated to CCS University, Meerut & Approved by Bar council of India, New Delhi

(iv)

To cooperate with International Monetary Fund (IMF), the International Bank for Reconstruction and Development [IBRD or the World Bank] and its affiliated agencies to bring about greater coherence in global economic policy making.

(ii)

United Nations Educational