Written while pursuing the NUJS M.A. in Business Laws

1)   Introduction

Change is the law of nature. Everything, except of course the law of change itself, is subject to change. Law being no exception to this rule is inherently of dynamic character. But the 20th century has witnessed ever accelerating speed of change. The same trend is continuing in the 21st century. In view of the unprecedented speed and dynamism that are characteristic of the present age, it is very natural to ask: can law keep pace with life? [1]

The most important function of law is to help in solving the problems of the society in and for which it exists. [2]

Law can perform this august function effectively only if it can reconcile the needs of change and stability. International Law is not a subject of daily occurrence, but has a concern when one goes beyond one’s own nation and comes in contact with the family of nations, then he comes to the International Law. Everyone should at least have a very elementary knowledge of nearly all the aspects of international law. This paper is an attempt to explain the relationship between state law and international law and what is the role of individual in international law.

2)   Relationship between International Law and State Law

International law is a new concept of human history. State law (Municipal law) means the internal law of a sovereign state. International law and state law (municipal law) are two separate legal orders, existing independently of one another. A state law can not act as International law, but International law can act as municipal (state) law in certain circumstances. State law has binding force within its territories of a sovereign state. But in certain circumstances, International law may not have such binding force, unless and until the sovereign state incorporates it in its state law. Due to this, there can be controversy about whether the relations between these two laws are relations of coordination between self-existent independent orders or relations of subordination of the one to the other, or of the other to the one.[3] Or again whether they are part of the same order but both subordinate to a superior order.

It is necessary that they should both be purporting to be, and in fact be applicable in the same field, that is, to the same set of relations and transactions. Harris says “International law is a law of coordination, but not subordination. It is usually regarded as a law between, but not above several states.”[4]

a)    Theories:

There are five theories, which explain the relationship between international law and state law.

  1. Monistic Theory
  2. Dualistic Theory
  3. Specific Adoption Theory
  4. Transformation Theory and
  5. Delegation Theory

1) Monistic Theory:

Mono= alone, single

Monism= the view, common to various philosophical systems, which reduces all reality to a single principle or substance. According to Monism theory, man is the root of all laws, whether they are international or state. It means International law and state law are the two branches of a single tree. Both of these laws emanate from a unified knowledge of the law.

DJ Latham Brown defines: “According to monist belief, international obligation and municipal rules are facets of same phenomenon, the two deriving ultimately from one basic norm and belonging to the unitary order comprised by the conception of law” [5]

JG Starke defines “In their (i.e., monists) view the science of law is a unified field of knowledge, and the decisive point is, therefore, whether or not international law is true law. Once it is accepted as hypothesis that international law is a system of rules of truly legal character, it is impossible, according to Kelsen and other monistic writers to deny that the two systems constitute part of that unity corresponding to the unity of legal science. Thus any construction other than monism and in particular dualism, is bound to amount to a denial of the true legal character of international law.”[6]

Supporters of this theory: Wright, Kelsen, Duguit etc are the supporters of Monism theory.

2) Dualistic Theory:

Dualism = the quality of being two-fold; the division of reality into two irreconcilable substances.According to Dualistic theory, International law and state law are two different laws. They are two separate laws. Regarding the subject, individual is the subject of state law and state is the subject of international law. Similarly, state law is the result of the will of the people of that state. Whereas International law is the result of the common will of all states. State laws differ from state to state. But International law is common to all the states. Kelsen calls dualistic theory as Pluralistic theory.

DJ Lathan Brown says “the monistic view of the law is part of philosophy according to which totally is a single structure. But within the framework of the unitary universe is the diversity of phenomenon… The difference are significant and the dualist considers that municipal law differs markedly from international precepts.”

Supports of this theory are Anzilloti, Oppenheim, Triepel etc.

Monistic Theory vs Dualistic Theory:

Out of the five theories explaining the relationship between international law and state law, first two theories, ie. Monistic theory and Dualistic Theory are most important. Both of them are antonyms to each other. There is a controversy between these two important concepts.

Anzilloti, supporter of dualistic theory opines that the state law is obligatory, whereas international law is based on the principle “pacta sunt servanda”[7]

Ross says that national law (Municipal law/state law/internal law) is not derived from international law. Starke opines “International and internal laws are independent systems. Their interconnection lies partly in the demands. International law makes on internal law, partly in references to one another.”

Kelsen[8] says “the norms of international law are mostly incomplete norms. They require completion by norms of national law. The international legal order presupposes the existence of the national legal orders.

Without the latter, the former would be an inapplicable fragment of a legal order. Hence, reference to national law is inherent in the meaning of the norms of international law. In the sense the international legal order delegates to the national legal orders the completion of its own norms.”

3) Harmonization Theory:

O.Connell propounded a new theory in between monistic theory and dualistic theory. This new theory is in a compromising way. The monistic theory was old and emanated in 18th century. The dualistic theory was emanated in 19th century. Both of them are traditional. O.Connell propounds a compromising theory in between them and this new theory is known as Harmonization theory.[9] According to this theory, International law and internal law both work for the solution of the problems of mankind on the earth. None of them is superior and none of them is inferior. Both of them work for human welfare. The problem between these two concepts arises, when a conflict arises between them. Where a conflict arises between international law and state law, which of them should prevail, and which of them should be eliminated. Under such circumstances propounders of Harmonization theory say that it is the duty of the judges under such circumstances to solve the problem. The judges should not upgrade one law and should not degrade another law naming as superior or inferior. But their minimum duty is to harmonize them and to pursue the matter according to the given circumstances. Finally this theory says that neither International law not municipal law has supremacy over the other.

O.Connell says “International law is a law of co-ordination, but not subordination. It is usually regarded as a law between, but not above several states.”

In this way, harmonization theory is modern theory than both monistic and dualistic theories. The supporters of harmonization theory suggest that the harmony shall be brought between international law and internal law by two ways:

  1. Judges: The judges of national courts and international courts have to interpret the or inferiority.
  2. Enactments by sovereign states: The second step is that the sovereign states shall enact their municipal laws according to international circumstances, changes, and conventions. If there are any old laws conflicting the international laws, the sovereign states shall amend their local laws, so that they coincide with the international laws.

4) Specific adoption theory:

This theory is propounded by positivists. According to them, the international law cannot be applied in sovereign states directly, unless and until that sovereign states specifically adopts that law by way of enactments.

For example, the protection of human rights act, 1993has been enacted by the Indian Parliament, which came into force with effect from 8th January 1994. The statement of objects and reasons of this act says “India is a party to the international covenant on civil and political rights and the international covenant on economic, social and cultural rights, adopted by the General Assembly of the United Nations on the 16th December 1996. The human rights embodied in the aforesaid covenants stand substantially protected by the constitution.”

The UNCITRAL (United Nations Commission on International Trade Law) prepared a Model Arbitration Law (MAL) in 1985. The General Assembly of the United Nations Organization requested all the countries to adopt the Model Arbitration Law with a view to bringing uniformity in International Commercial arbitration practice. MAL was intended for “international commercial arbitration”. However, the provisions of MAL are also suitable for ‘non-international’ (domestic) and also for ‘non-commercial’ (private) arbitrations. The Law Commission of India recommended adopting the provisions of MAL in place of the Arbitration Act, 1940. The Indian Parliament has enacted the Arbitration and Conciliation Act, 1996.

Like this, there are several examples showing that the member-states have adopted the international law in their territories.

Examples:

According to the Vienna Convention on Diplomatic Relations, 1961 (International Law), India enacted in 1972 Vienna Convention on Diplomatic Relations Act, 1972.

Similarly, India adopted Convention on the Suppression and Punishment of the Crime of Apartheid, 1973, by enacting The Anti-Apartheid United Nations Conventions Act, 1983.

India adopted Convention for the Suppression of Unlawful Seizure of Aircraft, 1970, by enacting the domestic law in the name of The Anti-Hijacking Act, 1982.

Similarly, India enacted The Suppression of Unlawful Act against Safety of Civil Aviation Act, 1982 to adopt the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971.

 Criticism:

Critics say that this theory is not fully trustworthy. Every state need not make Acts for every convention. Some customs of International Law are enforceable in municipal law, whether they are specifically adopted or not.

5) Transformation Theory:

International Law spreads universally. But this law has to undergo the transformation if it is applied in municipal law. This is called “Transformation Theory”. The supporters of this theory opine that without transformation, international law cannot be applied in internal (state) law. [10]

Criticism:

Transformation theory looks identical with Specific Adoption Theory. The Criticism, which is applicable to Specific Adoption Theory, is also applicable to Transformation Theory.

Queen vs KeynIn the Queen Vs Keyn [11], Lord Coleridge, C.J defined International Law in the following words: “The law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another.”

6) Delegation Theory:

The propounders of this theory are the critics of Specific Adoption Theory and Transformation Theory. The supporters of Delegation Theory depend upon mostly on the constitution of International Law.

According to them, the International Law delegates the rule-making power to each state in accordance with the procedure and system prevailing in each state in accordance with the constitution and rules of the treaty, or any other conventions. [12]

Criticism: Jurisprudence, Constitutional Law and Administrative Law explains about Delegated Powers of Legislation. This delegation is possible, only where there are two powers and one of them is superior to one other. Example: Parliament is superior than the provinces or states or Union Territories in a Federal State. In India, a state legislative assembly is inferior and Indian Parliament is superior. Parliament can delegate the legislative powers to state legislative assemblies within the provisions of Constitution of India. But in the case of International Law, the members of United Nations Organization are sovereign states. They are not inferior to any other state. No state is superior that others. At present, the United Nations Organization is functioning like a coordinator. There is no question of superiority or inferiority. Small countries like Nauru, Vatican City, Nepal, Kuwait etc., are also equally enjoying all rights and privileges as the big countries, viz., America, India, China, United Kingdom etc.

 

3)   STATE PRACTICES REGARDING THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND INTERNAL LAW

a)    Indian Practice

Principally, Indian practice regarding the relationship between International Law and Internal law was emanated from British practice. From the beginning, Britain distinguished the customary rules of International Law and the rules laid down by treaties. This was India’s pre-constitution situation.

After Indian Constitution was framed, India adopted the practice of adopting everything in accordance with Indian Constitution. [13] In fact, the Indian Constitution framers had been inspired with the Charter of United Nations Organization. This has been reflected in Indian Constitutions’  Preamble, Part- I to Part- IV especially.

Article 51 of Constitution of India provides as follows:

Article 51. Promotion of International Peace and Security.

The state shall endeavor to:-

  • Promote international peace and security;
  • Maintain just and honorable relations between nations;
  • Foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and
  • Encourage settlement of international disputes by arbitration.

Article 51 of Constitution of India reflects India’s State Policy and Practice regarding the relationship between the International Law and Municipal Law (State Law concerned to India).

Article 51 ( c ) stresses on “pacta sunt servanda” principle. Article 51 (b) and (d) explain how the relationship between India and other countries shall be maintained.  Article 51 (a) provides that India is a peace-loving country, and it should promote International Peace and Security.

Article 51 is incorporated in Part – IV of the Constitution of India which is “Directive Principles of State Policy” which are not enforceable in a Court of Law.

Article 372 (1) of Constitution of India provides that the laws, which were existed at the time of the adoption of Constitution, shall continue in force and shall be adopted in future, unless they are altered or repealed or amended by a competent legislature. That means the treaties,  agreements etc., entered into by the then British Government on behalf of British India shall be valid, until they are repealed, amended or altered. [14]

Practically India adopted the customary International Law in her Internal Law. It is similar to that of British Practice. British follow dualistic view. India also follows dualistic procedure.

b)   Berubari Case (1969)

Berubari was a small piece of land of 9 square miles in West Bengal having about 12,000 population. The Indian Government entered into an agreement with Pakistan to give Berubari to Pakistan in exchange of Cooch-Bihar enclaves. Political agitation started against this agreement.

The President of India referred the matter to the Supreme Court of India under Article 143 of the Constitution of India. The President of India asked two questions:

Was any legislative action necessary for the implementation of agreement?

Was Article 3 of the Constitution sufficient or an amendment was needed?

Decision:

The Supreme Court gave its opinion under Article 143 that if the Government of India would want to cede a part of the territory of India to a foreign state, it can do so only by an amendment of the Constitution.

Supreme Court held “Ordinarily an adjustment of a boundary which international law regards as valid between two nations, should be recognized by the courts and the implementation thereof can always be with the executive unless a clear case of cession is involved when Parliamentary intercession can be expected and should be had. This has been custom of nations, whose constitutions are not sufficiently elaborate on this subject… A settlement of a boundary dispute cannot be held to be a cession of territory… A treaty really concerns the political rather than the judicial wing of the state. When a treaty or award after arbitration comes into existence it has to be implemented and this can only be if all the three branches of Government to wit the legislature; the Executive and the Judicial; or any one of them, possesses the power to implement it. If there is any deficiency in the constitutional system, it has to be removed and the state must equip itself with the necessary power. In some jurisdictions the compromise read with the Award acquires full effect automatically in the Municipal Law, the other body of Municipal Law notwithstanding. Such treaties and awards are self-executing. Legislation may nevertheless be passed in aid of implementation but is usually not necessary. “

Result:

As a result of the Supreme Court’s decision in Berubari’s case under Article 143, NinethAmendment of the Constitution of India, 1960 was passed by the Parliament, which re-defined the boundary of the State of West Bengal and made necessary changes in the First Schedule so as to cede the Indian Territory of Berubari to Pakistan as provided in the Indo-Pakistan Agreement.

c)   BRITISH PRACTICE

Since the beginning, the Britain has been maintaining the International Law basing on two principles:- 1. Customary Rules and 2. Treaties. It has been maintaining the distinction between these two principles.

Customary Rules of International Law:

It is the practice of Britain to adopt the customary rules of International Law in its internal law, subject to the following conditions:

  1. i) The Britain Government adopt those customary rules of International Law, which are not inconsistent with its internal law.
  2. ii) Where the highest court declares a decision regarding the policy modulating the relationship between international law and internal law, the subordinate courts should adopt that decision (Precedent).[15]

iii) Interpretation: The courts shall interpret the customary rules, Parliamentary statutes. If the statutes are ambiguous, the courts give priority to International Law. If the statutes are clear, the Courts give priority to internal law.

  1. iv) Rule of Evidence: In certain matters, Crown has more privileges. Where a Crown has given recognition to a state, the courts have no authority to question it. Acts of state do not come within the purview of British Courts.

Treaties:

Parliament is the superior person. The relationship of International Law and Britain is maintained by the British Parliament.  It has to give the answer to the nation. The Parliament has the power to enter into treaties with other countries. It is necessary to get the consent of the Parliament if the Britain has to cede its territory.

  1. vs KEYN (1876) 2 Ex. D. 63 (Court for Crown Cases Reserved)

Keyn was the captain of the German ship named Franconia. It collided with the Strathclyde, a British ship at a point in the English Channel within three miles of the England Coast. As a result, a passenger on board of the Strathclyde dies. Keyn was prosecuted at the Central Criminal Court for the manslaughter of the passenger and found guilty. The defendant Keyn raised the question whether an English Court had jurisdiction to try this case. The case was reserved for the Court for Crown Cases Reserved.[16]

Judgment:

Six justices out of seven gave judgment that the English court had no jurisdiction to try the case, and acquitted the defendant.

Principles: (i) Cockburn C.J. observed “On board a foreign ship on the high seas, the foreigner is liable to the law of the foreign ship only. It is only when a foreign ship comes into the ports or waters of another state that the ship and those on board become subject to the local law. These are the established rules of the law of nations. They have been adopted into our municipal law, and must be taken to form part of it…Unless, therefore, the accused, Keyn, at the time of the offence of which he has been convicted was committed, was in British territory or on board a British ship, he could not be properly brought to trial under English law, in the absence of express legislation.”[17]

(ii) On the question whether the three miles belt of sea surrounding Great Britain was British territory in English Law, Cockburn CJ ruled it and held “…even if entire unanimity had existed… the question would still remain, how far the law as stated by the publicists had received the assent of the civilized nations of the world…to be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage…Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an act of parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature.

The assent of nations is doubtless sufficient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas.”

Result: The judgment of this case was criticized by the Press and Parliamentarians in Great Britain. As a result, the Parliament of Great Britain has reversed the Rule of R vs Keyn by enacting the Territorial Waters Jurisdiction Act, 1878. The Preamble of this Act reads “Whereas the rightful jurisdiction of Her Majesty, her heirs and successors, extends and always has extended over the open seas adjacent to the coasts of the United Kingdom and of all other parts of Her Majesty’s dominions to such a distance as is necessary for the defence and security of such dominions…”[18]

Lauterpact observed that the judgment in R vs. Keyn was the reflection of “Transformation Theory”. He commented “it cannot be said that this judgment amounts to a rejection of the rule that international law is a part of the law of England. Writers seem to forget that the main issue of the controversy in the case was not the question whether a rule of international law can be enforced without an Act of Parliament; what was in dispute was the existence and the extent of a rule of international law relating to jurisdiction in territorial waters.”

The Parlement Belge (1878 (4) PD 129)[19]

The Parlement Belge was a packet-board, belonging to the King of the Belgians.  It collided a steam tub Daring, belonging to the British national on 14-2-1878.  The owner of Daring sued the owners of the Parlement Belge claiming 3,500 pounds, arising out of the collision. There was a convention in between the Queen of England and the King of the Belgians, by which the Parlement Belge was placed in the category of a public ship of war.

Sir Robert Phillimore J held that the owner of Daring was entitled to compensation, as he had a statutable right of action against the Parlement Belge. He observed, “Upon the whole, I am of the opinion that neither upon principle, precedent, nor analogy of general international law, should I be warranted in considering the Parlement Belge as belonging to that category of public vessels which are exempt from the process of law and all private claims.” The owner of Parlement Belge appealed.

 Judgement:

The Court of Appeal reversed the decision of the lower court and gave judgment in favour of the Parlement Belge on the ground that, contrary to the ruling of Sir Robert Phillimore, the immunity sought was available under customary international law and hence at common law.

Mortensen vs. Peters (1906) 8 F.(J.) 93

The British Parliament enacted the Fisheries Regulation (Scotland) Act 1895. Sec 10(4) of that Act reads “Any person, who fished by beam or otter trawling in contravention of the law was subject to a fine or imprisonment.” Mortensen was a Dane and the master of a Norwegian ship. He fished in the Scotland seas violating the said Act. Peters, the Chairman of the Fisheries Board sued Mortensen. Mortensen was convicted by the Scottish Court. He appealed to the House of Lords.

Judgment:

The House of Lords upheld the judgment of the Scottish Court.

Ostime vs. Australian Mutual Provident Society (1960) [20]

The question arose, in this case, that which of the laws would prevail, if there is a conflict between a treaty and internal law of Britain.

Judgment:

The House of Lords decided that if the treaty has been incorporated and enforced through a law enacted by Parliament, then the treaty should prevail over internal law. If the treaty is not adopted by any law enacted by Parliament, then the internal law should prevail over the international law.

Oppneheim explains the British Practice as follows: “It is the practice of British Courts to accept as conclusive statements of the Foreign Office relating to certain categories of questions of fact in the field of international affairs.  These include: (a) the question whether a foreign state or government has been recognized by the United Kingdom either de facto or de jure; (b) the question whether recognition has been granted to conquest by another state or to other changes of territorial title, and generally, whether certain territory is under the sovereignty of one foreign state or another; (c) the sovereign status of a foreign state or its monarch; (d) the commencement and termination of a state of war against another country;

( e) the question whether a state of war exists with a foreign country or between two foreign countries; (f) the existence of a case for reprisals in maritime war; (g) the question whether a person is entitled to diplomatic status; and (h) the existence or extent of British Jurisdiction in a foreign country.”

d)   American Practice

The American practice is explained by the Supreme Court of America in the case “Head Money Cases: Edye vs. Robertson (1984)” as follows: “A treaty is made by the United States with any foreign national can become subject of judicial cognizance in the courts of this country, it is subject to such Acts as Congress may pass for its enforcement, modification or repeal.”

The Paquete Habana Case (175 U.S. 677 (1900)) [21]

Regarding the application of customary international law in internal law of America is explained in “The Paquete Habana Case (1900) by Gray J. as follows “International law is part of our law, and must be ascertained and administered by the Courts of Justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, whether there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.”

In this case, the United States Supreme Court found and applied a customary rule of International law exempting coastal fishing vessels from capture as prize of war.

Garcia Mir vs. Meese (1986)

The Cuban immigrants were detained in America for a long time. The detention was against the customary international law. But it was in accordance with the internal law of America.

Judgment:

The Supreme Court of America upheld the American Statutes with regard to the detention because the Attorney General’s decision to detain the immigrants was in terms of “The Paquete Habana” judgment. The court held that it was ‘a controlling executive act.’

 

SEI FUJII vs. CALIFORNIA (19 I.L.R. 312 SC of California 1952)

Gibson- the plaintiff was an alien Japanese, residing in the State of California of USA. He purchased certain land in a district of that state. According to State of California Alien Land Law, the plaintiff was not entitled to purchase that land. Therefore, the State of California escheated that land in 1948 from the plaintiff. The plaintiff sued the State of California in the District Court, which gave judgment against the plaintiff. He appealed the Supreme Court of California.

Judgment:

The Supreme Court of California gave judgment in favor of the State Government opined that California Alien Land Law was valid as there was no treaty between USA and Japan conferring upon the plaintiff the right to own land.

Principles:

In this case, the plaintiff contended that the California Alien Land Law was invalidated and superseded by the provisions of the United Nations Charter i.e., Articles 1, 55 and 56, pledging the member-nations to promote the observance of human rights and fundamental freedoms without distinction as to race.

Answering to the challenge, Justice Marshall observed “A treaty is to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract- when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court.”

The American practice is identical with British practice with regarding the customary rules of international la0w. It was explained in the above case-laws. But the American practice regarding treaties is different from British practice. In Britain, the relationship and priority to treaties depend on upon the consent of the Parliament of America. Whereas in America, the relationship between the treaties and internal law depends on upon the provisions of the Constitution of America. Article VI of American Constitution provides that all laws made in pursuance thereof and the international treaties entered into under the authority of the United States shall be the supreme law of the land.

Where the treaty and the Constitution of America conflict, the Constitution of America prevail over the treaty. In America, treaties are of two kinds. [22]

Self – Executing Treaties:  These treaties can be adopted without the consent of Congress. They are lesser important treaties and nominal in nature.

Non- Self- Executing Treaties: These are very important treaties. They can be implemented only after the consent of the Congress, and their adoption by a specific statute. It is also called as ratification. For example, President Clinton’s Government wanted to sign on the NPT agreement, which prohibits the preparation of atomic weapons throughout the world. It has been insisting the Indian Government sign on it. However, Congress of United Stated of America did not give its consent to it in August 1999.

4)   SUBJECTS OF INTERNATIONAL LAW AND THE PLACE OF INDIVIDUAL IN INTERNATIONAL LAW

Subject means falling under the control or authority of someone;

A member of a state in relation to his Government or owing allegiance to a sovereign or other ruler, or any member of a state except the sovereign himself. All people residing in a country are the subjects of that country.[23]

Subjects of International Law = Every subject of a country gets rights and duties towards his Government. Every subject enjoys political rights of that country. Then what are the subjects of International Law? The State or People or both? This is the question arises very often in International Law and causes crux. There are three theories explaining the subjects of international law.

  1. States alone are subjects of International Law;
  2. Individuals alone are the subjects of International Law; and
  3. States, Individuals, and certain non-state entities are the subjects of International Law.

a)    States alone are subjects of International Law

This theory explains that only States are subjects of International Law, and the individuals are not subjects of it, that means all the member nations of UNO are the subjects of International Law. Traditionally, the International Court of Justice treats States alone as the subjects of International Law.

Percy E. Corbett and other Jurisprudents are the supporters of this theory. They opine “States are the only subjects International Law and individuals are only incumbents of rights and duties at International Law in so far as they are objects and not subjects.”[24]

Percy E. Corbett, in his classic book “The Growth of World Law” writes “The triumph of positivism in the late eighteenth century made the individual an object, not a subject of International Law. This law is more and more emphasized the separateness of states, making their sovereignty, indeed its basic principles.”

Prof. Oppenheim says “Since the law of nations is primarily a law between states, states are to the extent, the only subjects of the law of nations.”

Prof. Schwarzenberg’s opines that the States are subjects of International Law, and the individuals are the objects of it.

b)   Individuals alone are the subjects of International Law

According to this theory, individuals are the subjects of the International Law. Presently the world population has crossed 600 crores and the entire residents of the world are the subjects of the International Law. This theory is the antonym to the former theory. This theory criticizes the former theory that the former theory fails to explain the position of slaves and pirates in the International Law.

Kelsen, Westlake etc., are the supporters of this theory. They stress that League of Nations was founded on the basic principle of: “We, the High Contracting Parties of the League of Nations…” But failed in achieving its aim of International Peace. Whereas the preamble of the Charter of the United Nations starts with “WE, THE PEOPLE OF THE UNITED NATIONS…”

The International Law is born out of customs of the people of the various parts of the world. Therefore it is correct to say that the individuals are the subjects of International Law. This second theory explains clearly the position of slaves, pirates. In fact, it has prohibited the slavery and servitudes. It protects the individuals from pirates. The law which is framed by International Law is adopted by the states. The law is made according to the wishes of the people.

Westlake wrote “The duties and rights of the states are only the duties and rights of men who compose them. There is no difference between International Law and State Laws. There is only small difference that State-Laws applies on individuals ‘intermediately’ whereas international law applies to the individual ‘mediately.’”[25]

c)   States, Individuals, and some non-state entities are subjects of International Law

This third theory is the latest one. It coordinates the first two theories. According to this theory, States, individuals, and certain  non-state entities are the subjects of International Law. The recent conventions, i.e., Convention on Human Rights 1948, European Convention on Human Rights 1950, International Covenants on Human Rights 1966,  and also latest resolution in Geneva Anti-Terrorism and Human Rights 1994 (held on 8-3-1994) etc., proved that the international law recognized individuals as the subjects of it. But at the same time, it should be noted that practically the states are subjects of international law for majority issues. It is the important factor that all important factors of international law are still decided on the basis of the states only, and not on the basis of individuals.

Philip C.Jessup states in a compromising way “But while I agree… that states are not only subjects of international law. I do not go to the other extreme and say…that individuals are the only subjects.”

Danzing Railways Official Case (PCIJ (1928) Series B.No. 15)[26]

Poland acquired Danzing Railway Co., from another country under a treaty. According to that treaty, Poland Government should provide certain amenities to the officials of Danzing Railways. After acquiring that company, Poland did not provide any amenities to them. They sued Poland Government before the Permanent Court of Justice. Poland argued that Danzing Railway Officials were not the parties to the treaty, which was an international treaty, and accordingly, they could not sue Poland, being they were non-subjects of international law.

Judgment:The Permanent Court of Justice gave judgment in favor of Danzing Railways officials and held that they were also the subjects of international law, and they had right to sue. The Permanent Court of Justice ordered the Poland Government to provide the amenities.

The Nuremberg Trial (1946)

20 German Nazi leaders and six organizations committed genocides during the Second World War. They were prosecuted as war criminals. The evidence proved that they committed with common planning and conspiracy. The Nuremberg Tribunal was established after the Second World War to try the war criminals of Germany. The trial started on 20-11-1945.

Judgment:

The Nuremberg Tribunal gave its judgment on 30-9-1946. It found that all the accused except three were guilty of criminal offenses and genocides.

It acquitted those three, and imposed the death sentence for ten accused, awarded punishment of transportation for life to 3 accused and awarded imprisonment for a long period to four accused. The tribunal also found that out of six organizations, only two organizations (the Reich Cabinet and the General Staff and High Command) were not guilty, and the remaining four organizations were guilty.

Principles: The Tribunal rejected the defenses of ‘nullum crimen sine lege, nulla poena sine lege’ (There is no crime nor punishment except in accordance with law.) and ‘act of State’. The the tribunal observed “The fact that a person who committed an act which constitutes a crime under international law acted as the head of the State or responsible government official does not relieve him from responsibility under international law.”

Attorney-General of the Government of Israel vs. Eichmann (The Eichmann Trial (1964))

Eichmann was a German national. He was the Head of the Jewish Office of the German Gestapo. He was the administrator in charge of “the final solution” during the Second World War. His Policy under the guidelines of Hitler led to the extermination of 42,00,000 to 46,00,000 Jews in Europe. After the defeat of Germany, Eichmann fled away to Argentina. The Secret agents of the Israeli Government found him in Argentina in 1960 and abducted to Israel without the Knowledge of the Argentinian Government.

He was before the District Court of Jerusalem under the Israeli Nazi and Nazi Collaborators (Punishment) Law of 1951 for war crimes, crimes against the Jewish people. The definition of “war crimes” given in 1951 was similar to the definition given in the Genocide Convention 1948.

The District Court of Jerusalem sentenced him to death. He appealed to the Supreme Court of Israel.

Judgment:

The Supreme Court of Israel confirmed the death sentence. He was sit in an electric chair, and his Ashes were scattered over the Mediterranean waters.

Principles: (i) The International Law Jurisprudents upheld the judgment of the Supreme Court of Israel, and held that the State of Israel had “right to punish” the accused, and it had derived

this right from two cumulative sources: (a) a universal source (pertaining to the whole of mankind), which would vest the right to prosecute and punish crimes of this order in every state within the family of nations; and (b) a specific or national source, which would give the victim nation the right to try any who assaulted its existence.

(ii) Oppenheim – Lauterpacht[27] opined that the penal jurisdiction of the States includes ‘crimes injuring its subjects or serious crimes against its own safety.’

(iii) The Supreme Court based on ‘Doctrine of Linking Point’ in punishing the accused, and held “…The ‘linking point’ between Israel and accused (and for that matter any person accused of a Crime against the Jewish people under this law) is striking in the case of ‘crime against the Jewish People’, a crime that postulates an intention to exterminate the Jewish people in whole”.

 

Reparation for injuries suffered in the services of the United Nations case (Advisory Opinion of International Court of Justice) (1949 ICJ Reports 174)

The Great Britain administered the Palestine as mandatory. In 1947, it had given a notice to the United Nations that it was withdrawing forthwith from Palestine. The General Assembly resolved on 29-11-1947 that the Palestine should be divided into two separate countries in between Arabs and Jewish. The Zionists accepted it, but the Arabs did not accept. The Israel unilaterally declared itself an independent State on 14-5-1948. Annoyed with Israel’s declaration, the neighboring Arab countries invaded against Israel. Israel defeated all of them.

This was the background of the above case-law.

United Nations Organization acted as a mediator in the dispute of Israel and Palestine. It sent a team to pacify the enmities between them. Count Folke Bernadotte – a Swedish national, was the Head of the United Nations Truce Negotiation team. On 17-9-1948, he was murdered by a private gang of terrorists.

The United Nations General Assembly asked the advisory opinion of the International Court of Justice whether it (United Nations General Assembly) was a person and whether it can claim Compensation for the death of its employee from Israel. [28]

Judgment:

The International Court of Justice gave its decision positively, and held that the United Nations would be a person, and it would be a subject of International Law. It could sue and could be sued. The ICJ ordered Israel to pay compensation to United Nations Organization for the death of Bernadotte.

Principles:(i)According to the conclusion of ICJ, UNO is an international person. It is at present the Supreme type of International Organization, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.

(ii) The UNO is not a State. But its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is “a Super-State”, whatever the expression may mean. It does not even imply that all its rights and duties must be on the international plane, any more than all the rights and duties of a State must be on that plane. It means that it is a subject of International law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.

(iii) The ICJ observed “It cannot be doubted that the Organization has the capacity to bring an international claim against one of its Members which has caused injury to it by a breach of its international obligations towards it. The injury specified means exclusively injury caused to the interests of the Organization itself, to its administrative machine, to its property and assets, and to the interests of which it is the guardian. It is clear that the organization has the capacity to bring a claim for this damage. As the claim is based on the breach of an international obligation on the part of the Member held responsible by the Organization, the Member cannot contend that this obligation is governed by municipal law, and the Organization is justified in giving its claim the character of an international claim.”[29]

(iv) The ICJ further observed “The only legal question which remains to be considered is whether, in the course of bringing an international claim of this kind, the Organization can recover ‘the reparation due in respect of the damage caused…to the victim…”. We opine that the traditional rule that diplomatic protection is exercised by the national State does not involve the giving of a negative answer to this question.”

Result: After the above opinion given by the ICJ, the United Nations General Assembly had given authority vide its Resolution No. 365, to the Secretary – General to seek reparation from Israel for the death of Count Bernadotte. Israel paid the sum claimed by the Secretary – General in 1950.

Prof. E. Corbett concludes “to me it has long meant that we are witnessing a transition in International legal development from a prolonged stage in which the predominant, not to say exclusively, concern was the regulation of the conduct of States as distinct entities, to one in which equal attention is given to promoting the growth of a body of world law transcending States, and applicable on a footing of equality to individuals, corporations, international and applicable on a footing of equality to individuals, corporations, international organizations, and States.”

Now it is well-settled principle that States, individuals, and non-state entities are subjects of International Law. Nevertheless, States are given more priority in the international law. The States also play a very important role to-day in international law.

d)   Place of Individual in International Law

The procedural capacity of the individuals has been recently emphasized in International Law. Since its inception, the States have been given top priority.

The Universal Declaration of Human Rights 1948 is a landmark in the history of the United Nations Organization. This Declaration upholds the human dignity in every state in the world. It honors every person irrespective of his race, sex, religion, color, language, political opinions etc.

It is well-settled principle now that individuals are also subjects of International Law. Of course, they have lesser rights than states. The Preamble of the Charter of the United Nations Organization starts with the phrase, “We, the people of the United Nations…” This gives a great significance towards the importance of the rights of the individuals.

The Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965 recognizes the rights of the individuals and companies. The International Convention on Civil Liability for Oil Pollution Damage 1969 imposes liabilities and duties upon the individuals. [30]

However, speak to the truth, in most of the occasions in international law, the individual remains an object, not a subject. But certain individuals, viz. pirates, espionage etc., are always considered as objects, and they are held responsible for their illegal acts. They shall be punished for their illegal and immoral acts under the international law. This we have seen in the Eichmann Case. Such criminals and wrong-doers become objects under the international law.

5)   Conclusion

To conclude with the words of Q. Wright “Justice require that the power of the states be curbed so far practicable in consideration of these other interests. In a distant future, these interests, especially the interests of the individuals for whose welfare other institutions exist in both democratic and socialist theory, may achieve a better balance in Universal Law with the national interest of sovereign states.” [31]

6)   Works Cited– Bibliography

  1. O. Obilade, “The Individual as Subject of International Law” IJIL Vol. 14 (1974)
  2. Wright, “Towards a Universal Law on Mankind” Columbia Law Review, Vol 63 (1963)
  3. Percy E.Corbett, The Growth of World Law (1971)
  4. Oppenheim’s International Law, note 4
  5. C.I.J (1928), Series B. No 15
  6. DJ Latham Brown, Public International Law (London 1970)
  7. C. Green, International Law through Cases, Third edition (1970)
  8. Edward Collins, International Law in a changing world
  9. Hackworth: Digest of International Law(1940)
  10. Philip C. Jessup: A Modern Law of Nations (1948)
  11. Starke, Supra Note 2
  12. Wilfred Jenks, Social Justice in the Law of Nations, The ILO impact after fifty years, Oxford University Press (1970)
  13. L. Brierly. The Basis of obligation in International Law, Oxford University Press (1958)
  14. Cases and Materials on International Law DJ Haris (2010)
  15. JG Starke, Introduction to International Law (Tenth Edition) Butterworths, Singapore (1989)
  16. Torsten Gihl, “The legal character and sources of international law” (Stockholm, 1957)
  17. Edwin Corchard, “Relationship between international law and municipal law”, Virginia Law Review. Vol 27 (1940)
  18. Gould, An introduction of International Law, 7th Edition
  19. K. Aganwala, “India’s contribution to the development of international law – role of Indian Courts” (1972)
  20. K. Nawaz, “International Law on the Contemporary Practice of India: Some Perspective”, Proc.ASIL. April 25-27 (1963)

[1] C. Wilfred Jenks, Social Justice in the Law of Nations, The ILO impact after fifty years, Oxford University Press (1970) p. 5

 

[2] J.L. Brierly. The Basis of obligation in International Law, Oxford University Press (1958) p.72

 

[3] D.J. Latham Brown, Public International Law, Sweet & Maxwell, London (1970)

[4] Cases and Materials on International Law DJ Haris (2010)

[5] DJ Latham Brown, Public International Law, Sweet & Maxwell (1970) p 265

[6] JG Starke, Introduction to International Law (Tenth Edition) Butterworths, Singapore (1989) p 73-74

[7] Torsten Gihl, “The legal character and sources of international law” (Stockholm, 1957) p.59

[8] Edwin Corchard, “Relationship between international law and municipal law”, Virginia Law Review. Vol 27 (1940) p.137

[9] Gould, An introduction of International Law, 7th Edition at pages 161-162.

[10] Starke, Supra Note 2, at p.76

[11] 2 Ex. D,63, 153, 154 (1876)

[12] P.E.Corbett: The Growth  of Law(1971) p.47

[13] M.K. Nawaz, “International Law on the Contemporary Practice of India: Some Perspective”, Proc.ASIL. April 25-27 (1963)p.275.

[14] S.K. Aganwala, “India’s contribution to the development of international law – role of Indian Courts” (1972) p 73.

[15] Starke, See Supra Note 2 at p.78

[16] Philip C. Jessup: A Modern Law of Nations (1948) p.17

[17] Hackworth: Digest of International Law(1940)

[18] L.C. Green, International Law through Cases, Third edition (1970) pp 239-240

[19] Edward Collins, International Law in a changing world p.45

[20] (1960) A.C. 459 at p.476; (1959) 3 ALL E.R. 245 at p.248

[21] (1900) 175 US 677 at p.700; also US v Melekh (1960) 190 F. Supp. 67

[22] Hilton v Guyot, 159 US 113, 163, 164, 214, 215

[23] DJ Latham Brown, Public International Law (London 1970) p 234

[24] Percy E. Corbett, The Growth of World Law, Princeton, NJ, 1971

[25] AO Obilade, The Individual as a subject of International Law (1974)

[26] P.C.I.J (1928), Series B. No 15

[27] Oppenheim’s International Law, note 4 at pages 848-849

[28] Percy E.Corbett, The Growth of World Law (1971)

[29] Q. Wright, “Towards a Univeral Law on Mankind”,  Columbia Law Review Vol 63 (1963)

[30]A.O. Obilade, “The Individual as Subject of International Law” IJIL Vol. 14 (1974)

[31] Q.Wright, “Towards a Universal Law on Mankind” Columbia Law Review, Vol 63 (1963)

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