International law and human rights

Protection of
HR

Universal Regional National

Protection of Protection of Protection of
HR HR HR

Part III of
International Indian HR Protection
bill of HR Constitution Act 1993
(FR)

International
International The Opeitonal
Universal covention on
Covenet on Bills on Civil
declaration of Social,
Civil & Political and Political
HR 1948 Economic, and
Right 1966 Rights 1976
Cultural Rights

Universal declaration of HR -1948

1948- This is the motivational rights which provide the source and inspiration for
HR in all the constitution of countries.
countries

• There is 30 Articles.
• General Art-1 &2.
• Art on Civil & Political Rights -3 & 4.
• Art on Political, Social, Economic, and Cultural rights -22-27.
• Concluding Art-28,29,30.
28,29,30.

Q- Define international law and examine the importance of international law l in the fast
globalization world.. What it be proper to brand International law as a week law.

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Q-How modern international law can be said to be different from old international law? Do
you still feel that international law is a positive international morality, or it is law in true
sense? suggest a few effective measure to make international law even stronger in today
context. (2009)

Q- Define international law and examine the importance of international law in the fast
globalizing world will it be proper to brand international law as a weak law in today’s
context? (2008).

Q- Definition of new international law? Examine in detail the place and importance of
individual and international organizations in the new definitions of international law. How
do you view the future of international law?(2007).

Definitions of International law-

Its Origin- The term international law was first coined by Jeremy Bantham in 1780. It is
synonymous with the law of nations.

Larance- The rules which determine the conduct of the general body of civilized States in their
mutual dealings.

Larance did not consider the individual role in international law he consider only the mutual
dealing rules of civilized states.

Oppenhelim- law of nations or international law is the name for the body of customary and
conventional rules which are considered legally binding by civilized states in their intercourse
with each other.

Criticism-

A- Omission of International organization- it is generally recognized that not only states

but international organizations, have rights and duties under international law, even
though they may not have all rights and duties which state have.
B- Civilized State- there are state which has not been considered as a civilized state but they
are the part of international law for example China.
C- Omission of General rule of law- it is generally considered that international law not
only consist the customary and conventional rules but also the general principle of law.
A/c to Art 38 of the international court of justice- General Principles of Law recognized by
civilized states as the third source of international law.

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 D- Static definition- international law is the body of rule now stands changed as static and
inadequate, like all other law international law is a living law and dynamic in nature.

Though Oppenheim, lather change his definition of international law and included –

International law is the body of rules which are legally binding on states in their intercourse
which each other. These rules are primarily those which govern the relation of states, but sates
are not only subjects of international law. International organization and to some extent, also
individuals may be subjects of rights conferred and duties imposed by international law.

J.L Briely- The law of nations or international law may be defined as the body of rules and
principles of action which are binding upon civilized states in their relations with on another.

Torsten Gihl- the term international law means the body of rules of law which apply within the
international community or society of states.

Kelson- body of rules which regulate the conduct of the states in their intercourse with another.

Soviet definition and approach to international law

The norms regulating relations between the states in the process of their struggle and co-
operation, expressing the will of the rulings class.

Criticism- the soviet approach more towards the international personality than the states.

Chinese Definitions and approach to international law.

International law like all other branches of law, is created in determinate stage of mankind social
development.

In china international law regarded as a legal instrument in the service of foreign policy.

This approach also criticize because they also not regarded international organization and
individuals as subjects like the soviet. But china now has taken completely U turn and
join the WTO.
IL a positive Morality or Weak Law-

Starke has expressed the view that IL is a weak law.

Holland has remarked IL is the vanishing point of jurisprudence, because its followed by
courtesy and hence it could not be kept in the category of law.

Some jurisprudents opine that the IL is only the bundle of moral principles and the states are not
bound to follow them strictly, and IL is a mere positive morality.

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Austin- IL is not a true law, but a code of rules of conduct of moral force only.

HLA Hart- also consider that IL is a mere morality, because there is no element exist which law
requires like

• It has not binding force on states.

• It is not back by the Sanctions.

IL is a weak law Strong Law

No superior political authority. The development of international
organization proved to be the legal organ of
IL for example UN organ help to focus
attention upon the need for mutual
observance of the rules.

No legislation machinery The constitution instruments of the

international organization represent an
advanced stage of the development of
international law. It has introduced a quasi-
legislative element in the law making process
at the expense of contractual element,
facilitating a quicker response to the
problems of international social order.
Lack of sanctions. It has the sanctions power- Common law of
England is the true example of it. The
constitution of united state of America
provides sanction to international law, as it
part of their law. Further the charter of
United Nations proclaims sanctions behind
it.

Lack of enforcement power or effective For example Art 21 of the constitution of

executive authority WHO bind its member states to undertake the
obligation to take action relative to the
acceptance of the conventions.
Lack of judiciary mechanism. International Court of Justice. And under the
Art 59 of ICJ its decisions are binding upon
the parties to a disputes.
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Importance of International law-

International law in one shape or another has existed in almost all climes and ages. It is true that
conception of a family or one world was foreign to the ancient world, but nevertheless nations
came into contact with one another and as a result of the contact there sprang up international
trade, rules regarding the declaration and conduct of war, treaties and diplomatic privileges..
To grow economically, politically, and technologically state has to interact with each other.

Traditional IL and new IL- the independence of the nations is one of the corner stones of the
new law of nations. The traditional IL was envisaged as a law governing the relations of sovereign
states with each other. And the new international law not only the states but also considering the
international organization, and to some extant the individual have the rights and duties towards
IL. The development of league of nations was a great landmark for this new development
which culminated in the establishment of the united nations.

Ancient Interne national law.

The history of international law can be seen in ancient history as well, in Ramayana, Mahabharat,
and Bhagwat geet . the rule of governing war, peace and neutrality based on Dharma. They
attached the due importance to the inviolability of a duta or ambassador.
The elaborated form of International law the government and foreign affairs can be seen in
Kautilya Arthashatra and Nitishatra of Kamandka,

Oppenheim- Observes that Greeks left to history the example that independent sovereign State
can live in a community which provides a law for the national relations of the member States
provided that there exist some common interest and aims which bind these state together.

Romans- also advocated the importance of international law.

Crisis/ Challenge in IL.

Rapid scientific and technological progress.- this brought the crisis in IL, this crisis is nothing
more than a tension between the needs of stability and the demand of change. The new demands
of the new countries did not mean total rejection of traditional legal system but merely
readjustment of the old law to the new conditions.

In times of rapid political economic, and technological changes, the development of law both
within and among states tends to lag behind, its content becomes unstable and uncertain, and its
effectiveness is minimized.

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The braking of Soviet Union- crisis of world power.

Nuclear war.

Environment degradation.

Terrorism

Suggestion for improving IL-

• ICJ should be compulsory jurisdiction.

• International criminal court should be established.
• IL should be codified.
• Enforcement machinery should be strengthened.
• International bureau of investigation and prosecution should be established.
• UN charter should be amended and it authorized to intervene in domestic jurisdiction.

Conclusion- it is the body of rules which regulates the conduct and relations of the members of
international community. The contention that state alone are subject of international law is not
only inconsistent with the changing character of international law but has become completely
obsolete and inadequate. And it is not static but like a all living law. We can not ignored the
importance of IL, by saying that it is a weak law, because municipal law operates in centralized
manner and IL operates in decentralized manner.

Q- Source of International law.

Q- Define the different source of IL, under the statue of ICJ. What are the other sources
different from those enumerated in the aforesaid statue.(2007)

Q-what are the different source of IL in the statue of ICJ? Explain in detail any two of them.
Briefly explain the status of customary IL in today’s world.(2008)

The term source refers to methods or procedure by which international law is created.

The sources of international law can be divided into following categories:

1. International conventions.
2. International customs.

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 3. General principles of law recognized by the civilized states.
4. Decisions of judicial or arbitral tribunals and judicial works.
5. Decisions or determinations of international organizations.

Article 38 of International Court of Justice (ICJ) recognized the following sources for IL:

1. International conventions.
2. International customs.
3. General principles of law recognized by the civilized states.
4. Decisions of judicial or arbitral tribunals and judicial works.

International conventions- Art 38 of ICJ consider it as the first source of IL. A/c to Hudson
Conventions is used in a general and inclusive sense. It would seem to apply to any –treaty,
agreement, and protocol. A convention may be general either because the numbers of parties or
character of it or it may be particular which deals with specific parties.

Whenever an international tribunal decides any disputes between any states, it first seeks whether
there is any treaty between the parties if there is a treaty between the parties the tribunals is bound
to follow the rules laid down by the respective treaty. As schwarzenberger rightly describe the treaty
– treaty are agreement between subjects of international law creating a binding obligations in
international law.

Reference can be made by Art 26 of Vienna Convention on the law of treaty which applies the rule of Pacta
Sunta Servanda – means treaty is the binding force upon the party and it must be performed by them in a
good faith.

Protocol is the supplement of treaty, it use as a modification of treaty.

Vienna Convention on the law of Treaties –

It is of two kinds

1. Law making treaties.- this type of treaties perform the same functions in the international
field as legislation does in the State files. it can again be divided into two types-
I. Treaties enunciating rules of International law- example UN charter.
II. International treaties which lay down general principle.- example Geneva
Conventions on the law of sea, and Vienna Convention on the Law of Treaties.
2. Treaty contract. In this treaty two or more State are entered into contract sort of thing.
And these treaties are binding on the parties.

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3. International Customs.- it is the oldest and the original source, of international as well as
of law in general. Customary rule are the rules which have been developed in a long
process of historical development. The customs arose from the natural principles of
justice and public utility. The sanction of the custom means the people of the nations
accepted it. And it deserved the sanction of law also. As Salmond rightly said- customs is to
society and law is to sate. Art 38(b) of ICJ recognizes custom as evidence of general
practice accepted by law.

In order to understand the meaning of custom we have to understand the meaning of

usages. Usage is in fact is the early stage of custom. In other words those habits which are
often repeated by the States. –Satrk- where a custom begins where usages ends.. usage
is an international habit of action that has yet not received full legal attestation. It is
not necessary that usages always become the custom.

Ingredients of Customs-
1. Long duration.
2. Uniformity.
3. Generality of practice.
4. Acceptance of law.

4. General principle of law recognized by civilized state. Means those rules which we find
repeated in much the same from in the developed systems of law, either because they have
a common origin as in Roman law or because they express a necessary response to certain
basic needs of human associations.
International court has recognized the general principle of law such as- good faith,
responsibility, prescription, res judicata etc.

5. Decisions of Judicial or Arbitral Tribunals and Justice Works-

ICJ decisions- it is the main international judicial tribunal, but it is to be noted that its
decisions are not binding nature. Art 59 of ICJ says that- no binding force except between
the parties and in respect of that particular case.
Jurist Work- although juristic works cannot be treated as an independent source of
international law yet the view of the jurist may help in the development of law.

6. International organizations- such as WTO,WHO etc.

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 7. Other source of International Law-
I. International comity – the mutual relation of states are based on the principle of
comity, when a state behaves in a particular way with other states, the later have
also to behave in the same way.
II. State paper- when one state send letters to each other for mutual interests. These
letters are sometimes published. A study of these letters sometimes revelas that
certain principles are repeatedly followed by states in their mutual intercourse.

Q- what do you mean by Interventions? Examine the present position of different grounds
of intervention in international law under the UN charter.(2007).

What is intervention in international law. UN has minimized the effect of the grounds of
intervention to a great extent. Now what are the grounds left justified for a nation state to
intervene in the affairs of other nation state? (2009).

Monroe doctrine.

Drago doctrine.

Corfu channel case.

A- Intervene- to intervene in the affairs of another.

Oppenheim - intervention means dictatorial inference by a state in the affairs of another
state for the purpose of maintaining or altering the actual conditions of thing.

Intervention means a country interferes the affairs of another country by means of force or by
any other means.

Examples-

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1. India intervene in the affairs of Pakistan in 1971, when refugees of the Bangladesh flew into
west Bangal and the situation was unreasonable for India, the war took place and Bangladesh
came as a independence country- this is the example of intervention by force.
2. America intervene in India and Russia deals of Crio-genic Engines required for rocket
technology, due to America diplomatic interventions Russia broke this agreement.

Prohibitions of Intervention-

In principle IL prohibits interventions, this prohibitions is the corollary of every state

rights to sovereignty, territorial integrity and political independence.

Art2(4) UN charter- all member shall retain in their international relations from the threat or
use of force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the purposes of the united nations.

Ar2(7) UN charter- nothing contained in the present charter shall authorize the United Nations
to intervene in matters which are essentially within the domestic jurisdiction of any state.

Grounds of Intervention

As a general principle UN Charter prohibited the Intervention, but Art51 of UN Charter

provide two grounds of Interventions-
1. Self Defense. Art 51, provides the protection of self defense against the armed attack of an
country, but this is subject to the review of the security council, and this right is not
available to a non member of UN.

Illustration-

X is the country surrounded with A on the west and B on east fronter of it. After
some border incidnet there were some solders killed of each of the state. The X
attacts A and B, and occupied major portion of A and B. X take a plea in the security
council that X were under the clear threat of attact by A and B and and he started
military operations in order to protect its interest.
But X is not justified under the Article of 51 of UN charter of self defence. Because
Art 51 permits the rights of self defence only if – an arm attack had not taken place
but the contention was that preparations were being made to launch the attacks.

The Caroline case (1841)- there were some Canadian rebellion groups fighting against
Britain for independence of Canada. The US used to support them by supplying arms. The
Caroline was the name of the American ship by which the America supplies the arms to

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 the rebellion. The Britishers seized this ship which was then in the American port of
Scholosser, and took it to Nigara falls within the territory of British Canada. America
protested it was a clear illegal intervention. And the matter went to Arbitration and the
Arbitrator also held that it was a clear intervention by British.

2. Collective Intervention- The security council passed a resolution to intervene in matter

of Iraqi intervention in Kuwait by sadam hussain and made the collective intervention in
it.

Chapter VII of UN Charter provides other grounds of Interventions:

1. Humanitarian grounds.- UN is authorized by collective Interventions when Human
rights are violated in any country.
2. Enforcement of treaties rights. Initially it was supposed to be good, but not UN not
recognized this intervention to protect the treaties rights.
3. Intervention to prevent illegal interventions. Kuwait is the best example of this
intervention.
4. Balance of power.
5. Protection of person and their property- initially it was recognized but, not UN not
recognized it as a good means of interventions. And UN also criticized America
intervention in Grenada in 1983.
6. To maintain law and order.
7. Intervention in civil war- it is also not recognized a good ground to intervene

Conclusion- in view of the above discussion it may be concluded that a state my intervene in the
affairs of another state only on the ground of self defense. The UN may intervene in the domestic
affairs of members state on the ground of maintained or restoration of international peace and
security. That is to say, it can take collective measures or can make collective interventions. The
UN can also intervene in case of member’s countries civil war when there are violations of human
rights.

Geneva Conventions-1949

What rules are laid down by Geneva Convention in 1949 for the treatment of prisoners of
war?(2006)

One of the convention concluded in 1949 in Geneva related to the treatment of prisoners of war
which applies to any armed conflict-recognized or unrecognized-arising between the contracting
parties. The convention came into force in October 21,1950.

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Art 4 of this convention deals with the categories of war prisoners which are

1. Members of armed force, and members of militians.

2. Members of other militians and members of volunteer troupes.
3. Persons who accompany the armed forces, without actually being the member thereof,
such as civil members of military crews, war correspondents ,supply contractors,
members of labor units etc.

This convention laid down the following important points relating to the treatment of war
prisoners:

1. Treatment- The main philosophy behind this convention was the treatment of war
prisoners and which is the humanly treatment- Art 13 of this conventions – prisoners of
war must at all time be humanly treated.
2. Custody of prisoners- it prohibited any unlawful act or omission by the detaining power
causing death or seriously endangering the health of the prisoner of war in its custody is
prohibited and will be regarded as a serious breach of the present conventions.
3. Prohibition of experiment on war prisoners- no prisoner of war may be subject to
physical mutilation or to medical or scientific experiments of any kind which are not
justified by the medical or the hospital treatment.
4. Protection against public insult- prisoners of war must all time be protected,
particularly against act or violation or intimidation against insults and public curiosity.
5. Personal respect- they must be entailed in all circumstances to respect of their persons
and their honor.
6. Medical assistance- they must be provided require medical attentions by their state of
health.
7. Protection against discrimination- they must be treated alike by the detaining power
without any adverse distinction based on race, nationality, religious belief or political
opinions or any other distention subject of similar criteria.
8. Protection against physical and mental torture- they must be protected against any
physical and mental torture, even though they refuse to disclose any information which is
being asked by them.
9. Articles of personal use and protection- they must be provided all articles of personal
use except arms, horses, military equipment and military documents.
10. Protections of Officers and aged prisoners- all the officers and prisoners of equivalent
status shall be traded with due regards for their rank and age.
11. Monthly allowance- they must be provided the monthly allowance of pay, the amount
which shall be fixed by the convention, into the currency of said powers.

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 12. Personal communications- they shall be allowed to send and received the letters and
cards to their relatives.

Conclusion-

It is clear from the above provisions that these rules have been made for ensuring good treatment
towards the prisoners of wars. It has become a general principle of international law that the
prisoners of war should always be treated humanely. It is the duty of the prisoners of war that
when they asked questions like their name, age, DOB and regiment etc. they should give reply
properly. In case they do not give correct and appropriate replies in respect of the said question
they may not get the facilities which they might be entitled to get.

Q-

What do you understand by human rights? Up to what extent these rights have been given
place in International law? What are the legal provisions in relation to HR under UN
commission on HR and UN center for HR? (2009).

Explain the philosophy of HR. how international law has given recognition to these Rights?
Explain fully the concept of International Bill of HR in this context? (2008).

Attempt a critical essay on Universal Declaration of HR 1948?(2007).- see from sujata law
series pate 162.

A- HR is derived from the principle of Natural Law. It is not the product of social order and nor the
conferred upon the individual by the society. It is the result of recognition by the state but they
are logically independent of the legal system for their existence.
Definition- HR are those fundamental and inalienable rights which are essential for life as
human being. It is inherent in our nature and without which we cannot live as a human being.
Louis Henkin- HR are rights of individuals in society, which are deemed essential for individual
well being, dignity, and fulfillment, and that reflect a common sense of justice, fairness and decency.

Section 2(1)(d) of the protection of HR Act 1993- HR means the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the Constitution or embodied in the
international covenants and enforceable by courts in India.

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Art 55 of UNO Charter- conditions or stability and well being which are necessary for peaceful and
friendly relations among nations based on respect for the principle of equal rights and self
determination of people.

Philosophy of HR- the philosophy of HR is based on Individual natural rights and social respect
which are essential element for the human life, in other word it is- respect for human rights and
fundamental freedom.

HR and International law-

HR plays an important role in international law, according to Art 1 of UN- to achieve
international co operation in solving international problems of an economic, social
cultural.
The Universal declaration on HR possesses legal value. In the veiw of Judge Nagendra Singh- the
declaration therefore was not mere resolution of the General Assembly but a continuation of the
charter and had the dignity of the charter.

Legal provisions in relation to HR under UN commission on HR

UN Commission on HR- This commission on HR established by the Economic and Social Council in
1946 was the permanent machinery for the supervision of the problem of protection of HR.
The commission was directed to prepare recommendation and reports on:

I. An international bill on HR.-

II. International conventions or declarations on civil liberties; status of woman
and freedom of information.
III. Protection of minorities.
IV. Preventions of discrimination on the basis of race, sex, language, or religion.
V. Matters concerning HR.

An international bill on HR.- UN to achieve its object of respect for human rights and
fundamental freedom decided to prepare an international bill for HR appointed a commission in
1946 which approved by General Assembly. A drafting committee was appointed for preparing of
the draft of the bill. In its first session the committee prepared a preliminary draft declaration as
a declaration of general principle as well as a draft convention on such specific rights as
would lend themselves to binding legal obligations, and at the same time to consider the
question of implementation of such rights, as proposed by the commission. These three
documents were to be known respectively as the:

I. International declaration on HR. (declaration of general principle)

II. International convention on HR.( convention on such specific rights as would lend
themselves to binding legal obligations)

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III. Measures for implementation of HR.( to consider the question of implementation of
such rights,)

The commission made studies and recommendation either its own or on the request of General
Assembly or by the Economic and social council of UN.

The member of the commission were elected for three years term.

They meet annually for a period of five or six weeks.

The commission submitted a report on each session to the Economic and Social Council .

The commission has 53 members.

One third 1/3 of the seats on the 53 member commission were open to election every year.

In order to assist its work the commission has established a number of subsidiary bodies, such as

• Sub commission of Discrimination and Protection of Minorities.

• Ad Hoc committee on periodic reports.

Discuss the concept of Human rights. Discuss those directive principles of state policy that
are known as human rights. (2006)

A- HR is derived from the principle of Natural Law. It is not the product of social order and nor
the conferred upon the individual by the society. It is the result of recognition by the state but
they are logically independent of the legal system for their existence.

Definition- HR are those fundamental and inalienable rights which are essential for life as
human being. It is inherent in our nature and without which we cannot live as a human being.
Louis Henkin- HR are rights of individuals in society, which are deemed essential for individual
well being, dignity, and fulfillment, and that reflect a common sense of justice, fairness and decency.

Section 2(1)(d) of the protection of HR Act 1993- HR means the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the Constitution or embodied in the
international covenants and enforceable by courts in India.

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Art 55 of UNO Charter- conditions or stability and well being which are necessary for peaceful and
friendly relations among nations based on respect for the principle of equal rights and self
determination of people.

Philosophy of HR- the philosophy of HR is based on Individual natural rights and social respect
which are essential element for the human life, in other word it is- respect for human rights and
fundamental freedom.

Directive principles of state policy that are known as human rights.

The framer of Indian Constitution were deeply influenced by the concept of HR. most of the HR
which propounded in Universal declaration of HR in Part III ( Civil and political rights), and Part
IV (economic, social and cultural rights) of Indian Constitution.
It is also necessary these provision in Indian constitution because India has ratified the two
convention on HR –
1. International Convention on Civil and Political Rights (1966)
2. International Convention on Economic, Social and Cultural rights (1966)

Art 51 of Constitution of India deals an important part regarding the International Law and treaty
obligations. But this article does not give any clear guideline regarding the position of
international law and municipal law in India.

Article 51 is contained in part IV of Constitution of India, and Art 37 of this part clearly provides
that –provision contained in this part shall not be enforceable by any court. This article fall in the
chapter of Directive Principle of State Policy which are non justifiable. But in the later part it is to
be said that- it is the fundamental in the governance of the country and it shall be the duty
of the state to apply these principle in making laws.

The directive principle

• Equal pay for equal work (Art 38).

• Equal justice and free legal aid(Art 39A).
• Equal opportunities of work education of all citizens (Art 41).
• Appropriate laws for the welfare of woman and just and human conditions to all
workers (Art 42).
• Free and compulsory education(Art 45).
• Special care the educational and economic interests of the weaker section. (Art46).
• Improvement of stander of living and public health.(Art 47).
• Preserve forest and wild animal and to improve the environment (48A).

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How the Protection of HR Act 1993 conceives to protect HR in India? Note down the main
functions of NHRC? (2007).

How the chairperson and other members of National /State HRC are appointed.

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