DOMESTIC LAW BEFORE INTERNATIONAL COURT.

 The international law has its primacy in the case of conflict arises before the international
court, this is supported by the following

Article 103 (UN charter)

In the event of a conflict between the obligations of the Members of the United Nations under
the present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail.

Article 27 (VCLT 1989)

1. A State party to a treaty may not invoke the provisions of its internal law as justification for its

failure to perform the treaty.

2. An international organization party to a treaty may not invoke the rules of the organization as

justification for its failure to perform the treaty.

Article 13 of Draft declaration of rights & duties of the states

Every State has the duty to carry out in good faith its obligations arising from treaties and other

sources of international law, and it may not invoke provisions in its constitution or its laws as an
excuse

for failure to perform this duty.

CASE LAW:

1. LA GRAND CASE- (Germany v. US)

A person named la grand who is german citizen along with a group planned a armed bank
robbery, but they were captured by US govt and US court gave death sentence- but they failed to
follow law that this should be informed to the nation of accused so that they can defend
themselves- so Germany sued and interim order was passed to stay the execution of death- but
US failed to comply- an appeal was filed- US defended citing their domestic law which states
that for procedural default no appeal- court rejected stating no excuse

2. LA AVENA CASE- (Mexico v. US)

52 Mexicans were arrested for the organized Crime by US, but US did not follow the treaty and
cited their domestic law- court rejected the argument.
  Domestic law may be invalid before the international law, but it is still valid in the
domestic nation

INDIA PATENT CASE-WTO CASE

There are two types of patents process and product patent this was according to the TRIPS
agreement but india was having only the process patent, but 10 years of time was given to India
to amend the domestic patent law to include the product patent, but India came up with mail box
system-priority base system- case filed against this and for non-compliance- held to comply
 SUBJECTS OF INTERNATIONAL LAW:

Introduction

Subjects of International Law can be described as those persons or entities who possess
international personality. Throughout the 19th century, only States qualified as subjects of
international law. After, the Second World War, more and more new actors emerged in the
international legal arena such as the intergovernmental organizations created by States,
NonGovernmental Organizations (NGOs) created by individuals, multinationals and even natural
persons (i.e. individuals). These can now be considered as having to a large or sometimes limited
extend the capacity to become international persons.

An entity is a subject of international law if it has “international legal personality”. In other

words, subjects must have rights, powers and duties under international law and they should be
able to exercise those rights, powers and duties. The rights, powers and duties of different
subjects change according to their status and functions. For example, an individual has the right
of freedom from torture under international law and States have a duty under international law
not to torture individuals or to send them to a country where there is a likelihood of that person
being tortured. Legal personality also includes the capacity to enforce one’s own rights and to
compel other subjects to perform their duties under international law. Remember that all subjects
of international law do not have the same rights, duties and capacities

Subject of international law:

 According to Dixon a subject of international law is “an individual, body or entity

recognized or accepted as being capable of possessing and exercising rights and duties
under international law.”
 According to Starke essentials for a subject in international law:

1. holder of rights and duties

2. privilege of filing claims in IL

3. capacity to enter into intr. Agree

4. possessor of interest for which laws are made in IL

  ICJ opinion on repuression case- 1951 defines the legal personality

Theories Regarding Subjects of International Law: Following are the three

theories prevalent in regard to the subjects of international law:

a) Realist Theory: Some jurists have expressed the view that only states are the subjects of
international law. In their view, international law regulates the conduct of States and only States
alone are the subjects of international law. This view has been subjected to severe criticism by
jurists. According to the view expressed by Oppenheim, States are primarily, but not exclusively,
the subjects of international law. To the extent that bodies other than states directly possess some
rights, powers and duties in international law they can be regarded as subjects of international
law, possessing international personality. Further, “International law is no longer if ever was
concerned solely with states. Many of its rules are directly concerned with regulating the position
and activities of individuals, and many more indirectly affect them.” Thus, it is wrong to say that
individual is not the subject of international law. It is now generally recognised that besides
States, public international organisations, individuals and certain other non-State entities are also
the subjects of international law. Many of the rules of international law are directly concerned
with regulating the position and activities of the individual and many more directly affect them.
Thus itis wrong to say that individuals are not the subjects of international law.

b) Fictional Theory: There are certain jurists who have expressed the view that in the ultimate
analysis of international law it will be evident that only individuals are the subjects of
international law. Professor Kelson is the chief exponent of this theory. By Kelson, Individual
alone is the subject of international law. The duties and rights of States are only the duties and
rights of the men who compose them. Many modern treaties do bestow rights or impose duties
upon individuals. Kelson's view appear to be logically sound. But so far as the practice of the
States is concerned it is seen that the primary concern of the international law is with the rights
and duties of the States. From time to time certain treaties have been entered into which have
conferred certain rights upon individuals. Although the statute of the ICJ adheres to the
traditional view that only states can be parties to international proceedings, a number of other
international instruments have recognised the procedural capacity of the individual. There are
number of examples wherein international law applies on individual not only mediately but also
directly.

c) Functional Theory: This view not only combines the first and second view but goes a step
ahead to include international organisations and certain other non-state entities as subjects of
international law. This view appears to be more practical and is better than the other two views.
The reason in support of this view are as under:

(i) In present times, several treaties have conferred upon individual certain rights and duties, for
example International Covenant on human rights.

(ii) Geneva Convention on Prisoners of War 1949, has conferred certain rights upon the
Prisoners of law.

(iii)The Genocide Convention 1948, has imposed certain duties upon the individuals.

(iv) It is now agreed that International organisations are also the subjects of international law.
United Nation is an international person under international law and it is held by International
Court of Justice that United Nation is a subject of international law and capable of possessing
rights and duties and it has capacity to maintain its right by bringing International things.

(v) The law making treaties in respect of international criminal law, have imposed certain
obligations upon the individuals, for example narcotic drugs convention, 1961.3 Thus the states
are not only the subjects of international law. There is no doubt that states are still the main
subject of international law and most of the part of international law concerns with the conducts
and relationship of state with each other, but in view of the developing and changing character of
the International Law, International organisations and some non-state entities and individuals are
also the subjects of international law. It apparent from the above discussion that the position of
subjects of international law has greatly changed with the passage of time
Evolution of the history of expansion of the subject of international law beyond the state:

1. IHL

 This law is only for the states initially

 There are four Genneva conventions among that 1 and 2 talks about the state, and the 3
and 4 talks about the individuals particularly prisoners of war and the civilians.
 The Genneva convention additional protocol 1 (1970) Following by that the NLM
(national liberation movement ) which recoganised the war between states and not state
groups which is expanding the scope of the application of the war law beyond the state.

2. ICL:

 The evolution of the ICL was started from the Nuremburg tribunal (1960) where it was
the first tribunal where individuals directly prosecuted and not the state under the IL
( Hemler was prosecuted under the tribunal) and the Tokoyo tribunal
 After this only ICTY, ICTR, SCSL, ICT was formed

3. IHRL:

 The jurisprudence of the IHRL where the regional courts were developed
 Which is the European court of HR and inter American court of HR
 In these the individuals can file case against state eg: Anderson v. France
 ICCPR-optional protocol 1 where individuals refer a situation to HR council under that
OP

4. IIL:

 In IIL the cases are between individual and state, company and state
 This is a investor-state mechanisim
 STATE AS SUBJECT OF INTERNATIONAL LAW:

Introduction:

State is the primary subject in International Law. The requirements to be considered as a subject of
international law are the capacity to have rights and duties under international law. Some writers also
argue that a State must be fully independent and be recognized as a State by other States. The
international legal system is a horizontal system dominated by States which are, in principle, considered
sovereign and equal. International law is predominately made and implemented by States. Only States
can have sovereignty over territory. Only States can become members of the United Nations and other
international organizations. Only States have access to the International Court of Justice.

Definition of state:

 Montevideo convention (1933)- Art-1 defines state

Which says the following
1. Permanent population
2. Defined territory
3. Stable government
4. Capacity to enter into the international relations with other states

FOR THE FIRST THREE CONDITIONS BALANCED APPROACH IS REQUIRED NOT

MATHEMATICALLY OR NUMERICALLY BUT CONSISTENCY IS REQUIRED.

I. PERMANENT POPULATION: A permanent population is another necessary requirement for

statehood. There are no criteria relating to the size of the population: Andorra with its 68,000
inhabitants is as much a State as India, which now has currently well over one billion
inhabitants. Neither does international law set any requirements about the nature of the
population: the population may largely consist of nomads (such as in Somalia), it may be
ethnically (relatively) homogeneous (such as in Iceland) or very diverse (such as in the former
Soviet Union), it may be very poor (such as in Sierra Leone, where in 2000 nearly 70 percent of
the population lived below the poverty line) or it may be very rich (as in many Western States).
It should also be noted that the requirement of a permanent population does not relate to the
nationality of a population: it merely requires that States have a permanent population.
According to Brownlie it connotes a stable community with a physical basis.
 II. DEFINED TERRITORY: The development of the State is closely linked to the ability to exercise
effective control over a defined territory. However, the existence of border disputes is not an
obstacle to attaining statehood in international law. There is no rule stating that the boundaries
of a State should be undisputed or unambiguously established. Israel for example, was admitted
to the United Nations on 11 May 1949, despite its ongoing territorial disputes with the Arab
States. According to O'Keefe there is no limit to size. Undefined boundaries will not matter as
long as the core territory is defined. With regard to the size of the territory it can be stated that
no specific requirements exist: the international community of States consists of both micro-
States, such as Liechtenstein and San Marino and very large States such as Canada or Russia
III. GOVERNMENT: The third requirement for statehood, is the existence of a government capable
of exercising independent and effective authority over the population and the territory. The
importance that is attached to the criteria of independence and effectiveness is understandable
considering the predominantly decentralized nature of international law. Since international law
lacks a central executive body, with the power to enforce compliance with international
obligations, compliance with international obligations must often be guaranteed by the States
themselves. A State must therefore be able to the effectively and independently exercise its
authority within its borders. According to Brownlie the existence of effective government, with
centralised administrative and legislative organs, is the best evidence of a stable political
community
IV. CAPACITY TO ENTER INTO RELATIONS WITH THE OTHER STATES: It can be said that the capacity
to enter into full range of international relations can be a valuable measure, but capacity or
competence in this sense depends in part on the power of the government, without which a
State cannot carry out its international obligations. The ability of the government to
independently carry out its obligations and accept responsibility for them in turn greatly
depends on the previously discussed requirements of effective government and independence.
Moreover, a State cannot enter into relations with other States if it is not recognized.
Consequently, it cannot be recognized as a State. According to Shaw the concern is the lack of
competence to enter into legal relations, and the essence of such a capacity is independence
Types of state & the Non-state entities:

1. Micro-state:
 Mini-state
 This term was first time used by the Un secretary general during the submission
of yearly reports eg. Nauro, Maldives
 But many states opposed to this proposal eg. US opposed for Maldives and came
up with the policy of associate membership for mini-state, susch state (AM) states
can only participate in some conferences not in voting rights. But UN gave full
membership for such states
 According to UNSC these are states which are small in territory, workforce,
economic power
 But these states have full state soverginity.
2. Illegal states: ( they cannot enter into international relations)
 These state they violate the JUS CO norms eg. Annexation of territory or
declaring new state by violating JUS CO
 Eg. Manchuria in China it was annexd by Japan but many other states
deregoganised ir including US
 Eg. Israel annexed both east Jerusalem & Goland heights during 1960 but many
don’t recogaganised it.
3. Condominium:
 A particular territory look after by coaltition of states
 These state don’t get state membership as they are called as non- self governing
territories
 Eg. Antartica governed by 29 states, Brcko is governed by Bosnia, Coalisha,
Sprska.
4. Confideration & Federation states:
 Confideration states are a group of states as a group they are not qualified to be a
state nut individually they are eg. Commonwealth countries
 Federation a group of states which is a state eg. USA
5. Protectorates states:
 These states are under the protection of the another state
 Eg. Treaty of Fez- Moraco kept protection under France for military protection
 PS in return they give some soverigin rights to the states from which they get
protection eg. Tax rights
 They are states under IL
6. Mandate territories: MT
 It is a modern form of PS
 The MT is under the league of nations i.e 22 of covenant of LON
 The trustee territory under the UN
 There are three categories under the MT as A,B,C
 A-erstwhile Turkish territories (Palestine, Iran, Syria)- already wealth countries
but they want guidance for government
 B- Central African territories- ( Rawanda)- little bit less in economy- actual
governance is done by mandate countries
 C- leased developed territories (South west Africa, Samova)- no economy- no
governance in this country, as the mandate country has to take care of that
territory as part of their territory.
7. Trusteeship territories:
 It is governed by article 77 of UN which is divided three
 Countries already under mandate system- it is continued by TT eg.
The country which has not got independence
 Voluntarily trusteeship eg. If a country doesn’t have self governance
 Countries which is detached from enemy states.
 Total 11 countries were kept under trusteeship among that 10 are from mandate
system and 1 from enemy country
 This system was ended in 1994
 The last country to get independence from this system is PALAU
8. International administered territories:
 These territory are directly under the control of UN rg. Jerusalem as international
city as UNGA passed resolution that Jerusalem as intern. City
Basic rights and duties of state:

 Being the most prominent among the different subjects of international law, a State is
by definition endowed with the capability of bearing rights and duties under
international law. With regard to the development of written legal instruments dealing
with fundamental rights and duties of States, several significant results were achieved
during the 20th century.
 The Montevideo Convention of 1933 constituted one of the first examples of insertion
of ‘rights and duties’ of States in a multilateral legally binding instrument.
 The Charter of the Organization of American States (‘OAS Charter’), adopted in 1948,
contained a full Chapter devoted to ‘Fundamental Rights and Duties of States’. I
 In 1949, as a part of the report covering the work of its first session, the International
Law Commission, submitted to the General Assembly the text of a ‘Draft Declaration on
Rights and Duties of States’.
 It comprised 14 articles detailing four rights (independence, jurisdiction, equality, and
self-defence) and ten duties, to peacefully settle disputes with other States, to refrain
from resorting to war as an instrument of national policy, to refrain from giving
assistance to any State action in violation of the duty not to resort to war, to carry out
international obligations in good faith, and to conduct relations with other States in
accordance with international law and with the principle that sovereignty of each State
is subject to the supremacy of international law.

FUNDAMENTAL RIGHTS:

(i) Right of Independence: The notion of independence was scrutinized as early as 1931 in the context of
the advisory opinion dealing with the customs system established at that time between Germany and
Austria. The view was taken by the Permanent Court of International Justice that an entity that cannot
fulfil the test of legal independence shall not be considered as having an international legal status
altogether. Article 1 of the Draft Declaration lays down that every State has the right to independence
and hence to exercise freely, without dictation by any other State, all its legal powers, including the
choice of its own form of government. Several international judicial decisions have tackled the issue of
independence. These include, for example, the PCIJ’s judgment in the Lotus Case.
(ii) Right of Sovereignty: Sovereignty is closely related to independence. As a matter of fact, the two
concepts have sometimes been interpreted as different sides of the same attribute. As an attribute of
the State, sovereignty is generally thought to require the presence of a community, consisting of a
territory and a population governed by an organized political authority. According to long-standing
international law practice, ‘sovereignty in the relations between States signifies independence’ and
‘independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any
other State, the functions of a State’. Among the implications of the right to sovereignty, is therefore the
corresponding prohibition to intervene in matters within the domestic jurisdiction of other States.
Article 2 of the Draft Declaration lays down that every State has the right to exercise jurisdiction over its
territory and over all persons and things therein, subject to the immunities recognized by international
law.

Integral right of right of sovereignty of state:

 Art.2(7)- freedom from interfrence into the domestic affairs of the state
 Art.2(4)When one state is soveri state no other state can use the power & threat or use of force

(iii) Right to Equality: According to the right to equality Art. 2(1) (or equal treatment), all States occupy
the same position within the international community, have the same legal capacity, and bear equal
rights and duties regardless of their size or power. The right has been enshrined, inter alia, in the
Friendly Relations Declaration, the 1963 OAU Charter and the 2000 Constitutive Act of the Organization
of African Unity. Article 5 of the Draft Declaration lays down that every State has the right to equality in
law with every other State.

(iv)Right to Self-Preservation: There is widespread consent that the right of every State to self-
preservation and the corresponding duty not to prejudice the preservation of other States is to be
included among the ‘basic’ or ‘fundamental’ rights. Such a right, according to early commentators,
developed as a right to preserve, maintain, and protect a State’s independence, sovereignty, and
equality. It is for this reason that some authors regard it as a mere corollary of the preceding rights.
Others, on the contrary, see it as the only truly fundamental right of States. The existence of a
‘fundamental right to survival’ has been confirmed by the ICJ in a recent advisory opinion relating to the
legality of the threat or use of nuclear weapons, which recognized the fundamental right of every State
to survival as a basis for admitting its right to resort to self-defence. Article 12 of the Draft Declaration
lays down that every State has the right of individual or collective self-defence against armed attack.
(v) Right to neighbourly relations:

 Right to peacefully co-exist with other states

 “kellog- Briantt (1928) ( renounciation of war as a national policy)- this treaty says that
use of war is illegal
 Components of this rights are
 Non-use of force Art.2(4)
 Peaceful settlement of ID Art. 2(3)
Modes of settling (PSID)
 Negotiation
 Conciliation
 Mediation
 Good office
 Arbitration
 Enquiry
 Judicial settlement

The specific settlement of disputes given under chapter 6 of Un charter

 Non- intervention Art. 2(7)

Fudamental duties:

(i) Non-use of force

Exceptions to this duty is

 Art. 51 Self defense

 Chapter 7- collective security measures
 From Art. 20-27 of ARSIWA
 Universal jurisdiction ( anybody can try or arrest )- this is more importantly in the
cases of Piracy, Genocide, War crime- case law Adolf eichman- (prosecutor
general of Israel v. Adolf eichmann )- US court
 AE is the leader in Nazi Germany he is responsible for transferring people in
Gash chamber. He left to Argentina to escape from case but US helped him- he
changed his name and identity- Israel came to know this so they abducted him
from Argentina & and brought to Israel- held against him including geno
Now AE claims that his arrest was wrongful as Israel don’t have jurisdiction coz
Israel was not state at the time of commission of crime by him.

(ii) PSID

(iii) Article 3 of the Draft Declaration lays down that every Stale has the duty to refrain from
intervention in the internal or external affairs of any other State.

(iv) Article 4 - Every State has the duty to refrain from fomenting civil strife in the territory of another
State, and to prevent the organization within its territory of activities calculated to foment such civil
strife.

(v) Article 6 - Every State has the duty to treat all persons under its jurisdiction with respect for human
rights and fundamental freedoms, without distinction as to race, sex, language, or religion.

(vi) Article 7 - Every State has the duty to ensure that conditions prevailing in its territory do not menace
international peace and order.

(viii )Article 8 - Every State has the duty to settle its disputes with other States by peaceful means in such
a manner that international peace and security, and justice, are not endangered.

(ix) Article 9 - Every State has the duty to refrain from resorting to war as an instrument of national
policy, and to refrain from the threat or use of force against the territorial integrity or political
independence of another State, or in any other manner inconsistent with international law and order

(x) Article 10 - Every State has the duty to refrain from giving assistance to any State which is acting in
violation of article 9, or against which the United Nations is taking preventive or enforcement action.

(xi )Article 11 - Every State has the duty to refrain from recognizing any territorial acquisition by another
State acting in violation of article 9. Article 13 - Every State has the duty to carry out in good faith its
obligations arising from treaties and other sources of international law, and it may not invoke provisions
in its constitution or its laws as an excuse for failure to perform this duty.
(xii) Article 14 - Every State has the duty to conduct its relations with other States in accordance with
international law and with the principle that the sovereignty of each State is subject to the supremacy of
international law.

INTERNATIONAL ORGAN AS A SUBJECT OF INTERN. LAW

 Apart from state, international organisation is a subject of IL since they are the organization of
states which are assigned with specific function. International Organizations are established by
States through international agreements and their powers are limited to those conferred on
them in their constituent document.
 They can enter into international agreements and their representatives 7 have certain privileges
and immunities.
 International personality of the United Nations is affirmed in Article 104 of UN Charter – the
organization shall enjoy in the territory of each of its member such legal capacity as may be
necessary for the exercise of its function and the fulfilment of its purposes.
 The most important evidence for the determination of the international personality of the UN is
the advisory opinion in the Reparation’s case September 1948.
 The powers of the United Nations are set out in the United Nations Charter of 1945.
 The main political organ is the General Assembly and its authority on most matters (such as
human rights and economic and social issues) is limited to discussing issues and making
recommendations. The Security Council has the authority to make decisions that are binding on
all member States when it is performing its primary responsibility of maintaining international
peace and security. The main UN judicial organ is International Court of Justice, which has the
power to make binding decisions on questions of international law that have been referred to it
by States or give advisory opinions to the U.N.