notes of 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 1974
I 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