Introduction To International Law

Every state has their own respective laws (domestic laws) which regulate the conduct of its citizens. These laws regulate the private, social, commercial and other activities of the individuals. These internal laws also help in regulating the conduct and affairs of the state machinery. 

But, what happens when there is a dispute between two or more state parties?
Which body of law governs their conduct?
Which jurisdiction is to be applied in case of disputes related to private parties across different jurisdictions?

The answer to these situations lies in International Law.

History and Meaning
Many scholars have traced the history of international law back to concepts or systems prevalent in different periods in history such as the European Renaissance, or in different civilizations such as the Roman Empire or the ancient Middle East, International law, as we know it today, took its form in the mid-19th century during the expansionist and industrial eras, when concepts such as state sovereignty gained increasing prominence, alongside ideas such as exclusive domestic jurisdiction and non-intervention in affairs of other states. These ideas were then spread throughout the globe by the imperial European powers through colonization.
Subsequently, international law ended up becoming truly 'international' in the initial decades after World War II, owing to the rapid decolonization that took place then, leading to the formation of numerous independent states which infused the European dominated ideas and practices of international law with their own diverse cultures and influences. At the same time, international organizations such as the League of Nations and the United Nations came into existence in the aftermath of World War I and World War II respectively, thus marking an era of a new form of international law in which organizations such as UN along with its organs would have a significant role.

International Context
International law hence came to be a framework of rules and principles binding the relations between states and governing their conduct amongst themselves. It is a form of law which relies on consent-based governance to a great extent, as states are not ordinarily obliged to abide by it, unless they expressly consent to a particular course of conduct, though certain aspects are exceptions to the consent requirement, such as principles of customary international law and peremptory norms or jus cogens.

International Law can be further categorized into:
- Public International Law and
- Private International Law

Public International Law
Public International Law is the law that regulates relations between states. Public International law is different from other types of laws because it is concerned with interstate regulation, i.e., it deals in regulating the conduct of one state with another and is not concerned with the relations between private entities (legal and natural persons) and even the domestic laws of any country.
The primary objective of Public International law is to provide for a framework of rules and regulations which help in fostering stable and organized international relations.

Some key areas where public international law is applicable:
Peace and security Human rights Finance Airspace
Trade Intellectual
Property
Development Sea
Weapons Bio-diversity Science and security
Fisheries
International Crimes Climate change Extradition Natural resources

Public International Law is further classified into fields such as law of the seas, international humanitarian law, the law of treaties, and so on.

Private International Law
Private International Law, often referred to as 'Conflict of Laws', is a set of rules and principles that govern interstate interactions and transactions of private parties. It is a body constituted of conventions, model laws, domestic laws of states and secondary legal sources. It commonly involves issues like which
- Jurisdiction should be permitted to hear the case, and
- Jurisdiction's law should be applied.In is different from Public International Law, as the latter is a set of rules which governs the intercourse between nations through determining the rights and obligations of the governments of the nations, while the former comprises of certain rules and regulations which are established or agreed upon by private citizens from different nations who enter into transactions and that would govern them if a dispute were to arise.

There are certain international bodies which have been working towards harmonizing private laws of different countries and bringing uniformity in their application. The bodies include organizations such as the Hague Conference on Private International Law, the International Centre on the Settlement of Investment Disputes (ICSID), the International Institute for Unification of Private Law (UNIDROIT), the United Nations Commission for International Trade Law (UNCITRAL), and so on. The Hague Conference, convened by the government of Netherlands, originates back in 1893, and focuses on developing conventions on a wide array of aspects of private law. The UNCITRAL works towards developing model laws and guides, related to international trade and commercial laws, including the UNCITRAL

Arbitration Rules.
Some of the international conventions/model laws in the sphere of private international law which have gained more traction in recent times are, the United Nations Convention on Contracts for the Sale of International Goods (CISG), the UNCITRAL Model Law on International Commercial
Arbitration, the Geneva Convention on the execution of foreign arbitral awards, and so on.
The CISG, also referred to as the Vienna Convention on sale of goods, is a multilateral treaty which provides options for avoiding choice of law issues by providing a framework of accepted substantive rules with respect to contract disputes.In is considered one of the most influential documents in private international law, and nowadays is deemed to be incorporated into any otherwise applicable domestic laws, unless expressly excluded.
The UNCITRAL Model Law has provided a framework for domestic laws on international arbitration and is being adopted by an increasing number of countries, with India joining the list in 1996.

Sources Of International Law
A source of law within a domestic legal system is easier to determine. Within the domestic system it is considered as something which is not too difficult a process, where one may look at the various legislations or statutes provided for by the legislature and if there is a lacunae in the statute then decisions of the domestic courts.

But, it is not so easy to pinpoint the sources of International law. Yet, the most authoritative source of international law is Article 38(1) of the Statute of the International Court of Justice, which provides that when a court which deals with disputes relating to international law, it shall apply: 'International conventions, whether general or particular, establishing rules expressly recognized by the contesting states, (a) International custom, as evidence of general practice accepted by law (b) The general principles of law recognized by civilized nations (c) Subject to provisions of Article 59, judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of international law.'

Though Article 38(1) is technically limited in application to the International Court of Justice ('ICJ'), since the function of the court is to decide disputes submitted to it in accordance with international law and all members of the United Nations are ipso facto members, it is widely accepted that this is considered as enumerating the general norm on sources of international law. Although the provisions of the Statute of the ICJ do not suggest any hierarchy, they are generally applied in the following order in case of disputes.

Treaties
A Treaty/International Convention/Charters refers to legally binding, written, agreements in which states agree to act in a particular manner as specified in the agreement. Treaties are often complex documents, particularly with regards to those involving more than two parties as they are binding upon them and are to be entered into in good faith. Agreements which are between different nations but without the intention of creating binding obligations are not considered treaties, however they may have political effects. A treaty need not be one consolidated document but may consist of more than one related documents.

Treaties may be drafted between states by their leaders or government departments depending on the circumstances.

However there are a number of stages that are involved in order to convert a final draft into a binding treaty. The final text has to be 'adopted' in an international conference by way of two-thirds majority. A state may express its consent to be bound by a particular treaty in certain cases, the most common of which are:
 

Consent by signature

In certain cases, treaties may be given force by way of signatures of representatives who have been given the full powers, i.e., authorization in writing from their state to be able to take decisions on its behalf.

Consent by exchange of Instruments
In some scenarios, consent may be recorded by way of exchanging certain instruments, i.e., documents which contain the terms agreed to by both sides, when these instruments provide that on such exchange they will be in effect.

Consent by Ratification
Ratification is simply understood to be the act by which a State establishes its consent to be bound by a treaty on the international plane. This was initiated as a measure to ensure that the representative who signed a treaty had due authority, by seeing whether the state agrees to 'ratify' the same. Ratification differs from country to country but usually requires a sign that the state consents to follow the provisions of the treaty i.e., could be assent by the President of the State or require a vote of a majority in the legislature.In multilateral treaties, involving a number of countries, ratification is usually the most preferred method of expressing assent where one party collects the ratification of the others.
They are generally considered to be the most accepted as they are in a written form and have been explicitly assented to by the states party to the dispute.

Customs

An observed custom could be derived from the law of nature or mutual consent and is extremely fluid. Custom is usually derived by sifting through many layers and evidences of state practice and opinion juris. Many other sources such as unsigned treaties and United Nations declarations have been included to identify and cover more and more customs and practices in the international domain.

International Court of Justice (ICJ) decisions
Article 59 of the Statute of the ICJ states that decisions of the ICJ have no binding force except on the parties to the dispute, however the ICJ tends to examine its previous decisions, determine which cases should not be applied and rarely departs from the relevant case law.
There are many who feel a departure from the current system is necessary as these are outdated. However, and for the time being, these are the prevalent sources for the purpose of international law.

International Institutions
The growth in the number of sovereign nations and increasing international relations gave rise to notions of international co-operation. The 19th Century saw the commencement of international non-governmental associations such as the International Law Association, in 1873, and the International Committee of the Red Cross, in 1863. These institutions paved the way for the formation of the League of Nations in 1920 which was the predecessor to the United Nations in 1945.
Today, there are numerous organizations established by inter-governmental agreement and having a large number of social, economic and cultural influences which have been facilitated by the United Nations. Some of the key organizations that have been set up with the aid of the League of Nations and the United Nations are mentioned below.

International Labour Organization (ILO)

It was set up post the First World War as a part of the Treaty of Versailles, in 1919 to achieve social justice. It was aimed at improving the conditions of labour in various countries in the world to help achieve humane conditions for such labourers by providing for various regulations and agreements on the conditions of labourers. United Nations Educational, Scientific and Cultural Organization (UNESCO)
Formed in 1945, UNESCO was set up to promote coordination between members keeping in mind the fact mere economic and political arrangements are not enough to ensure growth and stability in member states. By promoting culture, preserving the heritage, sharing knowledge and understanding that are beneficial for the whole of mankind, UNESCO aims to aid sustainable development and foster greater cooperation between nations.

World Bank and the International Monetary Fund (IMF)
The World Bank was instituted as the International Bank for Reconstruction and Development (IBRD-the World Bank) and along with the IMF were dubbed the Bretton Woods Twins in 1944. These two sister institutions were started in order to aid the economies of various nations which had suffered immense losses subsequent to the Second World War. The World Bank aids member states by providing loans to member states for the purpose development and raises its funds by way of the world's financial markets.

World Health Organization (WHO)
The WHO was formulated in 1948 to set up an agency that would move towards aiding member states with regards to health concerns. WHO has been a core agency for setting up of norms and standards to be followed with regards to human health and research regarding the containment of diseases as well assessing worldwide health trends. It coordinates with various agencies in different countries to facilitate greater knowledge and awareness of health issues in various countries.
These organizations, and their counterparts, are aimed to promote international cooperation between member states on a large number of issues from rights of labourers, redevelopment of countries and economies as well as monitoring health trends across the world. After the end of the Second World War, these institutions have flourished and provided exceptional coordination among various departments of governmental and non-governmental organizations to fulfill their goals.

International Human Rights
International Human Rights pose a variety of question under the framework of international law. There are various problems related to enforcement and sanctions with regards to human rights. The Second World War had a profound impact on the development of human rights law as there was a need for a system to give rise to protection of human rights. This led to a wide spurt of activism and literature on the same. We will quickly look into some of the key conventions and treaties promoting and protecting Human

Rights in the international sphere.
Article 4 of the International Covenant on Civil and Political Rights (ICCPR) states that there are certain rights such as the right to life, freedom of thought, prohibition of slavery, etc. that are said to be non-derogable and constitute a special place in the hierarchy of rights. Also, there are certain rights that have also entered the framework of customary international law like the prohibition of torture, genocide and slavery and the principles of non-discrimination. These have become certain inalienable rights that do not require any specific treaty to be given effect to.

One of the most influential documents in this regard is the Universal Declaration of Human Rights which deals with various provisions, a few of them being:
- liberty of a person (Article 3)
- equality before law (Article 7)
- prohibitions on torture (Article 5)
- socio-economic rights such as right to work and equal pay (Article 23)
- right to social security (Article 25)

While it is not a binding document, per se, there have been many instances where it has been referred to by cases of the International Court of Justice and is an extremely important document for the purpose of international human rights.
Another such arrangement was The Vienna Declaration and Programme of Action (1993). It emphasized that all human rights were universal, indivisible, inter-dependent and interrelated. This led to the creation of the post of the UN
High Commissioner for human rights who would principally be responsible for UN human rights activities. The High Commissioner can make recommendations to other UN bodies and can also coordinate between them.

There are several other key legislations and arrangements such as the Convention on the Prevention and Punishment of the Crime of Genocide, The International Convention on the Elimination of All Forms of Racial Discrimination which read with provisions of the Universal Declaration of Human Rights give rise to a host of enforceable rights in both treaty and customary international law.

There are various bodies such as the Commission on Human Rights, which is known as the Human Rights Council since 2006. It looks into matters of human rights issues. However, it has faced criticisms on its political selectivity and failure to objectively review the issues in certain countries. The Human Rights Council is continuing the work of the previously set up Commission by broadening its framework by spreading its area over a wider framework.
Generally human rights violations are dealt with by the state in which they occur. However, there are certain human rights, established under treaty that may constitute erga omnes (towards all) obligations for the state parties. This means that there are some violations that are so grave, that any state may take action against such crimes, regardless of whether they occurred in their jurisdiction or not. All states have a shared interest in elimination of such grave violations. This is one of the most empowering features of international human rights law where it does away with the borders and limitations of a domestic body and allows the international community to also seek an active role to protect the rights of citizens of other countries.
Given the primacy of human rights even in domestic legislatures all over the world, it is almost no surprise that international human rights law is possibly given such a high degree of importance in the world of international law.

Customary International Law
According to Article 38 of its Statute, the International Court of Justice 'whose function is to decide in accordance with international law such disputes as are submitted to it,' has to apply, inter alia, 'international custom.' This source of public international law is described, in the same Article, as 'evidence of a general practice accepted as law.'
This description of international custom, even though it has been criticized for its exact formulation, at least makes clear that international custom generally refers to a description state practice, but only such practice as is accepted by the states themselves as legally required. Once a certain practice is understood to be customary law, states are obliged to act as the rule of customary international law prescribes.
International customary law is probably the most disputed and discussed source of international law. For example, it is not clear when a particular state practice becomes a legally binding state practice. It is also unclear how one can identify a rule of international custom, or how one can prove its existence.

International Law & Municipal Law
The interplay between municipal and international law is complex. Some authors believe that international law and Legal Studies 107 the law of the domestic jurisdiction, also referred to as the municipal law of the country, do not intersect and are completely different entities which cannot affect or overrule each other. However in practice it seems that this does not hold true. There are some principles that are clear as this conflict between international law and domestic law is concerned.
Municipal law cannot serve as a defense to a breach of international law, i.e., you cannot use a domestic law to justify the breach of an international one. Neither can one say that their consent to a treaty has been invalidated by way of a change of its municipal law. Similarly, the International Court of Justice has also stated that the lack of domestic legislation cannot be brought up as a defense if there is an international obligation on the state not to do a certain act. There have been various cases on points that state that international law is prevalent over the domestic law however that does not mean that domestic legislations carry no force.

Some international treaties require that countries adopt domestic legislation in line with the international obligations it has already agreed to. Owing to such requirements there is a blurring of the distinction between international and municipal law and domestic courts have also started analyzing international obligations of states in domestic disputes. In countries such as the United Kingdom, there is a doctrine of transformation that states that before any international agreement can be considered applicable domestically it must be transformed into municipal law. This means that the provisions of the treaty need to be transformed into local law, passing a domestic legislation with concurrent provisions as the international obligations.
Similarly in the United States of America, the position is that customary international law is federal law and if the federal courts in the US determine it to be binding then it's binding on the state courts as well. However, no act of legislature may be invalidated merely on the basis of a violation of customary international law. The US Supreme court believes that there should be respectful consideration to be given to the interpretation of international treaties however a domestic rule to the contrary would be given supremacy over those provisions.

Thus, it is to be understood that each country has their own method of dealing with the application of international law to its jurisdiction. The provisions of international law are often used to supplement various propositions of the domestic law when they are both concurrent with each other.
However, whenever there is a dispute between international and domestic law, supremacy of either depends mainly on the forum, i.e., where the case is being contested. International forums generally give preference to treaty law and other international sources whereas domestic forums give preference to statutes of the jurisdiction.

International Law & India
Article 51 of the Indian Constitution specifically states that the State shall endeavour to 'foster respect for international law and treaty obligations in the dealings of organized peoples with one another'. Under Article 253 of the Constitution of India, the Parliament and the Union of India have the power to implement treaties and can even interfere in the powers of the state government in order to give power to provisions of an international treaty.
India generally follows that merely affirming a treaty by way of ratifying it by the assent of the executive unless the treaty requires ratification by way of an act of the legislature. In the landmark case of Kesavananda Bharti vs State of Kerala, it was observed that the court must interpret the provisions of the constitution in light of Charter of the United Nations.
There has been an evolution of the philosophy of the role of international treaties to which India is party to with relation to the Indian Constitution. In the case of Magan Bhai Patel vs Union of India, the court held that if a treaty or international agreement restricts the rights of the citizens or modifies the laws of the state would require to have a legislative measure, e.g. if India is a party to an international agreement to stop the killing of a species of turtle, it restricts the right to trade of certain fishermen by prohibiting killing of the turtle. If this treaty is to be enforced in India, the Indian Parliament needs to pass a domestic legislation regarding prohibition of the killing of such turtle species.In no such right is restricted then it does not need to have a legislative measure to enact it or give rise to some weight in domestic law in the treaty. It is also a very clear of Indian law that international treaties cannot on their own override domestic law. Hence, these treaties which are not enabled by the legislature will not have the same force in law if there is a contradictory law provided for. However, in the case of Sheela Barse vs Secretary Children's Aid Society, the Supreme Court held that India had ratified conventions regarding the protection of children and this placed an obligation on the State Government to implement these principles. This was a case in which there were no contradictory laws and as they were supplementing the law already in force the court held that the treaty could be applied directly to Indian law.

The most revolutionary of these cases was the case of Vishaka vs State of Rajasthan, in which the Indian courts used the provisions of the Convention on Elimination of all forms of Discrimination against Women, (CEDAW), to create legally binding obligations regarding sexual harassment.
India has dealt with the interplay of international law as fits the need of the day. While any restriction of rights requires the need for an amendment by legislature, enhancing or broadening the scope of such rights is allowed as long as there is nothing to the contrary or similar in domestic law.

Dispute Resolution

In the domestic scenario disputes may be resolved by way of various methods by way of application to court, mediation, conciliation or even arbitration. In international law there may be disputes regarding a large number of issues relating to treaties or some basic covenants of international law. In the event such disputes arise between states or even between individuals and the state, there are certain institutions and mechanisms in place to resolve such disputes.

International Court of Justice
The International Court of Justice ('ICJ') is termed as the main judicial branch of the United Nations. In 1946, the General Assembly of the United Nations, enacted the Statute of the ICJ which gave rise to the institution of the International Court of Justice at The Hague, Netherlands. All members of the UN are party to this statute, by default owing to Article 93 of the United Nations Charter, and non-members may also become parties under this Article.
The court may have jurisdiction to decide cases in which the parties agree to appear before the court, on their own behest, and agree to be bound by the decision of the ICJ.
The court may also be a forum if provided for in a treaty between parties and in certain cases it is compulsory to refer to the court with regards to certain disputes.
The court may also give advisory opinions under Articles 65-68 of the Statute of the ICJ to countries. These are not binding but are merely referrals to the ICJ to understand the point of law on the matter. The ICJ is thus, one of the primary sources of dispute resolution available with regards to international disputes when parties are agreeable to settle them on their own accord.

International Criminal Court
The International Criminal Court (ICC) is a tribunal set up through the Rome Statute in 2002 with the purpose of prosecuting criminals for 4 major crimes:
- Crimes against Humanity
- Genocide
- War Crimes
- Crime of Aggression

The ICC may prosecute criminals for crimes committed in a country which accepts the jurisdiction of the court.
Thus, only if countries agree to submit to the jurisdiction can the ICC take up certain cases in which the person who has committed the crime is a national of the country or if it was committed in the territory of that country. The cases may be referred by the country directly to the ICJ or though the Prosecutor of the ICC, who is the person appointed to try cases on behalf of the ICC.
The ICC has limited jurisdiction over the ICJ with regards to certain issues pertaining to criminal matters listed under the Rome Statute. The divide is similar to the divide of civil and criminal courts in the domestic context however, the jurisdiction of the ICC is more restricted than that of ordinary criminal courts.

Other Dispute Resolution Mechanism
Often the treaties entered into by the states themselves lay down the procedure to be followed in case of a dispute.
For instance, the General Agreement on Trade and Tariffs (GATT) provides for a dispute resolution panel within its own provisions. Treaties often employ mediation, arbitration and other such dispute resolution mechanisms to arrive at an agreeable decision. The United Nations has even created its own forum to deal with issues related to investment disputes in association with the World Bank.
These are some of the dispute resolution mechanisms available with regards to international disputes available to resolve disputes in international law. There are numerous other forums that can be created which are all dependent on agreements between parties and the provisions of the treaties.
The ICJ's enabling provisions are also wide enough to deal with most disputes that may arise between member states.