Introduction to International Law

1. Introduction to International Law Shiju M V, Department of Policy Studies, TERI University, New Delhi

2. Background • Pollution does not respect political boundaries • Ecological interdependence

3. Objectives • To refresh certain basic concepts about International Law • To understand the legal instruments that have a bearing on the environment in general and the forestry sector in particular • To appreciate the different forms that these instruments take and the legal consequences of the same.

4. Objectives • To understand the obligations imposed on India • To understand how these instruments are implemented in India

5. Contents • An Introduction to International Law (Intended as a refresher discussion) • India and International Environmental Law • Forest Related International Instruments

6. An Introduction to International Law • Different from national/municipal law • No world legislature • No world executive • No world judiciary

7. An Introduction to International Law • International Court of Justice is not a “world court” in the true sense of the term. • Only States may apply to and appear before the International Court of Justice. International organizations, other collectivities and private persons are not entitled to institute proceedings before the Court.

8. An Introduction to International Law • The Court can only deal with a dispute when the States concerned have recognized its jurisdiction. No State can therefore be a party to proceedings before the Court unless it has in some manner or other consented thereto.

9. An Introduction to International Law • Special agreement • Compulsory jurisdiction in legal disputes • The Statute provides that a State may recognize as compulsory, in relation to any other State accepting the same obligation, the jurisdiction of the Court in legal disputes. These cases are brought before the Court by means of written applications

10. An Introduction to International Law • Indian Voluntary declaration • 18 September 1974I have the honour to declare, on behalf of the Government of the Republic of India, that they accept, in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special agreement, and on the basis and condition of reciprocity, the jurisdiction of the International Court of Justice over all disputes other than:

11. An Introduction to International Law • (1) disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement; • (2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations; • (3) disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India;

12. An Introduction to International Law • (4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defense, resistance to aggression, fulfillment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved;

13. An Introduction to International Law • (5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court;(6) disputes where the jurisdiction of the Court is or may be founded on the basis of a treaty concluded under the auspices of the League of Nations, unless the Government of India specially agree to jurisdiction in each case;

14. An Introduction to International Law • (7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction;(8) disputes with the Government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations or which has not been recognized by the Government of India;(9) disputes with non-sovereign States or territories;

15. An Introduction to International Law • (10) disputes with India concerning or relating to:(a) the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries;(b) the territorial sea, the continental shelf and the margins, the exclusive fishery zone, the exclusive economic zone, and other zones of national maritime jurisdiction including for the regulation and control of marine pollution and the conduct of scientific research by foreign vessels;(c) the condition and status of its islands, bays and gulfs and that of the bays and gulfs that for historical reasons belong to it;(d) the airspace superjacent to its land and maritime territory; and(e) the determination and delimitation of its maritime boundaries.

16. An Introduction to International Law • (11) disputes prior to the date of this declaration, including any dispute the foundations, reasons, facts, causes, origins, definitions, allegations or bases of which existed prior to this date, even if they are submitted or brought to the knowledge of the Court hereafter.(12) This declaration revokes and replaces the previous declaration made by the Government of India on 14th September 1959.New Delhi, 15 September 1974.(Signed) Swaran SINGH,Minister of External Affairs.

17. An Introduction to International Law • Nature of International Law • International law is the body of rules which are legally binding on states in their intercourse with each other. • Oppenheim

18. An Introduction to International Law • Basis of International Law • Common consent • It cannot mean that all states must at all times expressly consent to every part of the body of rules constituting international law, for such common consent could never in practice be established.

19. An Introduction to International Law • Sources of International Law 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. • Article 38 Statute of the International Court of Justice.

20. An Introduction to International Law • The decision of the Court has no binding force except between the parties and in respect of that particular case. • Article 59.

21. An Introduction to International Law • International Conventions • Law of Treaties • An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation • Art. 2 (1) (a) Vienna Convention on the Law of Treaties, 1969.

22. An Introduction to International Law • Multilateral Treaty • Existence of more than two parties • Bilateral Treaty • Between two parties • Regional Treaty • Between parties in the same region

23. An Introduction to International Law • Variety of Designations • Treaties, Agreements, Acts, Conventions, Declarations, Protocols. • The designation alone does not affect the binding force of the instruments or its characterization as a treaty. • Convention on Biological Diversity • Cartagena Protocol on Biosafety • United Nations Framework Convention on Climate Change • Kyoto Protocol

24. An Introduction to International Law • Adoption of a treaty • The states draw up a text • The expression of agreement with the text is known as adoption of a treaty. • 1.The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. • 2.The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule (Art. 9 Vienna Convention)

25. An Introduction to International Law • Signature • Expresses the consent of the state to be bound by the treaty. • It may be subject to ratification

26. An Introduction to International Law • Ratification • “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty

27. An Introduction to International Law • Reasons for ratification • States need time before they feel able to commit themselves to it. • The constitutions may provide for a mechanism for undertaking international obligations • Needs time to enact the enabling legislations.

28. An Introduction to International Law • Refusal of ratification • The ultimate right to refuse to ratify is not impaired • A sate cannot sign a treaty and subsequently conduct itself as if it had no connection with it or as if its signature were a mere act of authentication.

29. An Introduction to International Law A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or • (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. Art. 18 Vienna Convention.

30. An Introduction to International Law • International Custom • One of the primary sources of international law • Two elements • State practice • Acceptance of the practice as obligatory • Opinio juris

31. An Introduction to International Law • State Practice • Common and consistent • Uniform practice is not necessary • Sufficient degree of participation • No substantial dissent • Persistent objector

32. An Introduction to International Law • Opinio juris • Feeling of obligation • Legality of the use of nuclear weapons (1996)

33. An Introduction to International Law • Implementation at the Domestic Level • Article 51 DPSP • Promotion of International Peace and Security

34. An Introduction to International Law • Article 253 • Power of the Parliament to enact a legislation on a matter listed in the State list • For implementing an international convention • The Environmental Protection Act, 1986 • The Biological Diversity Act, 2002.

35. Thank You