National Institute of Business Management Attempts to codify

customary international law picked up momentum after the Second World War with
the formation of the International Law Commission (ILC), under the aegis of the
United Nations.
Chennai - 020

SECOND SEMESTER EMBA/MBA

Subject : International Law

Attend any 4 questions. Each question carries 25 marks

(Each answer should be of minimum 2 pages / of 300 words)

1. Write an essay on the origin of International Legal order and its nature.
The system of public international law may be described as ‘consisting of a body of
laws, rules and legal principles that are based on custom, treaties or legislation and
define, control, constrain or affect the rights and duties of states in their relations with
each other’. Public international law has increased in use and importance vastly over
the twentieth century, due to the increase in global trade, armed conflict,
environmental deterioration on a worldwide scale, awareness of human rights
violations, rapid and vast increases in international transportation and a boom in
global communications.

Public international law has three principal sources: international treaties, custom, and
general principles of law. In addition, judicial decisions and teachings may be applied
as "subsidiary means for the determination of rules of law". International treaty law
comprises obligations, states expressly and voluntarily accept between themselves in
treaties. Codified customary law is made the binding interpretation of the underlying
custom by agreement through treaty. For states not party to such treaties, the work of
the ILC may still be accepted as custom applying to those states.

Public international law establishes the framework and the criteria for identifying
states as the principal actors in the international legal system. International law is
concerned with the treatment of individuals within state boundaries. There is thus a
comprehensive regime dealing with group rights, the treatment of aliens, the rights of
refugees, international crimes, nationality problems, and human rights generally. It
further includes the important functions of the maintenance of international peace and
security, arms control, the pacific settlement of disputes and the regulation of the use
of force in international relations. Even when the law is not able to stop the outbreak
of war, it has developed principles to govern the conduct of hostilities and the
treatment of prisoners. International law is also used to govern issues relating to the
global environment, the global commons such as global communications, and world
trade.

According to international law, all states are sovereign and theoretically equal. As a
result of the notion of sovereignty, the value and authority of international law is
dependent upon the voluntary participation of states in its formulation, observance,
and enforcement. Although there may be exceptions, it is thought by many
international academics that most states enter into legal commitments with other
states out of enlightened self-interest rather than adherence to a body of law that is
higher than their own.

Breaches of international law raise difficult questions for lawyers. Since international
law has no established compulsory judicial system for the settlement of disputes or a
coercive penal system, it is not as straightforward as managing breaches within a
domestic legal system. However, there are means by which breaches are brought to
the attention of the international community and some means for resolution. For
example, there are judicial or quasi-judicial tribunals in international law in certain
areas such as trade and human rights. The formation of the United Nations, for
example, created a means for the world community to enforce international law upon
members that violate its charter through the Security Council.

Origin:

International law has developed historically and philosophically over many centuries,
in many cultures and a rudimentary system of international law existed even in
ancient societies. Persons from even the most diverse historical cultures sought to
relate to one another in a peaceful, predictable, and mutually beneficial way.

On this viewpoint one can refer to Neff’s ‘A short history of International Law’ in
Evans (2006), which traces the development of international law in many historical
traditions.

Neff persuasively contends that persons from even the most diverse historical cultures
sought to relate to one another in a peaceful, predictable, and mutually beneficial way.
He points out that Mesopotamia, northern India and classical Greece had three areas
of international law: diplomatic relations, treaty-making, and rules governing the
conduct of war. As these are still three major areas of international law, it establishes
the view that international law has long historical roots.

During the medieval period, throughout Europe, customs began to be accepted,

founded on the Rhodian sea law and which was a Byzantine work. In addition, there
was a ‘continental law merchant’, which was a series of regulations and practices
governing trade. The area of diplomatic relations developed in this period and the
European states began to conclude bilateral treaties which spelled out reciprocal
guarantees of fair treatment.

The sixteenth and seventeenth centuries constituted ‘the classical age’ of public
international law. The major scholar of that era was Hugo Grotius whose main work
was ‘On the Law of War and Peace’, published in 1625, and in which he further
developed the just-war theory and argued that the law of nations was distinct from the
law of nature. The purpose of the law of nations was to regulate the external conduct
of rulers. Up to the nineteenth century, international law had developed over
centuries, with its flowering in the classical age. Although Grotius might be known as
the chief architect of our modern international legal philosophy, the roots of his
scholarship are in the ancient natural law texts and developments of mercantile law in
the Middle Ages.

In the eighteenth and nineteenth centuries another philosophical tradition developed in

contrast to Grotius’ natural law theory which has also influenced modern international
law: positivism. It is important to note that modern international law has also been
profoundly influenced by developments in the nineteenth and twentieth centuries
which until the end of the Second World War was dominated by positivist thinking
and the development of a plethora of bilateral and multilateral treaties, such as the
treaties that constituted the results of the Hague Conferences, the establishment of the
League of Nations, and, finally, the United Nations (UN).

Recently in the late-twentieth and early twenty-first centuries, in addition to the

staggering developments in international legal instruments (multilateral law-making
conventions) and international institutions (the UN, World Trade Organization
(WTO), International Criminal Court) we have seen the rise of a diverse range of
international law theories, even though, there is a argument that there is a continuation
of natural law and positivism. One recent example, as embodied by Martii
Koskenniemi in his writings, ‘What is international law for?’ seeks to deconstruct the
language used in international law and analyses the basic meaning. Juxtaposed with
this philosophy, are writers on liberal internationalism, such as Teson and Slaughter
and the New Haven school which examines the process of international law-making
as expounded by Myers McDougall and Michael Reisman. All of these theorists
examine international law through the lens of philosophical thinking that might
influence the development of international law into the future.

In this brief historical review, it can be seen that international law was developed over
many centuries and that the classical age of Grotius and the Spanish philosophers
might only be one stage in the continuing development of public international law that
continues into the twenty-first century. There continue to be divergent theories of
international law, which will inform future development of the subject.

2. Explain Constitutional and administrative law.

Constitutional Law

1.Constitutional law is genus.

2.Constitutional law deals with various organs of the state.
3.It deals with the structure of the state.
4.It is the highest law.
5.It gives the guidelines with regard to the general principles relating to
organization and powers of organs of the state, and their relations between
citizens and towards the state. It touches almost all branches of laws in the
country.
6.It also gives the guidelines about the international relations.

Administrative Law

1.Administrative law is a species of constitutional law.

2.It deals with those organs as in motion.
3.It deals with the functions of the state.
4.It is subordinate to constitutional law.
5.It deals in details with the powers and functions of administrative authorities.
 6.It does not deal with international law. It deals exclusively the powers and
functions of administrative authorities

3. Explain common law and equity systems of law.

Key Difference: Common Laws are laws that have come about of been enacted based
on court rulings. These laws are developed based on rulings that have been given in
older court cases. Common laws are also known as case law or precedent. Equity is a
branch of law that was developed as a supplement to the strict statutory laws that may
provide too harsh punishments. In layman’s terms, equity is a part of law that decides
punishment on the basis of justice and fairness after looking at all aspects of the
punishment, including the motive of the accused.

There are many different kinds of law systems that are present in today’s world that
vary depending on the cases, region, country, etc. Common law and equity are two
different types of law systems that are often confusing to many people that are not so
knowledgeable about law. Law is a very confusing field, with many variations,
ifs/buts, etc. The rules often change depending on the case and the surrounding
situation. Common law system is basically a system of laws that is made up of rulings
made in previous cases, while equity is a system that provides rulings after
considering every aspect of the case.

Common Laws are laws that have come about of been enacted based on court rulings.
These laws are developed based on rulings that have been given in older court cases.
Common laws are also known as case law or precedent. These rules can be written as
well as unwritten. In a common law justice system, the laws of a country depend on
the rulings or decisions of courts or other tribunals, where it is believed justice
prevailed.

The general principal of this system is that similar cases with similar facts and issues
should not be treated differently. If there is a dispute between laws, the authority or
precedent looks to past cases and must provide the same reasoning and decision that
was provided in the first case. The laws can also be altered and evolved based on the
circumstances. The judges also have the authority to create new laws or alter and
interpret older laws. Once the law has been altered or changed during the ongoing
case, the law will then be enforceable on all other cases henceforth with similar
evidence and situations. Many countries live in common law systems or mixed
systems.
Equity is a branch of law that was developed as a supplement to the strict statutory
laws that may provide too harsh punishments. In layman’s terms, equity is a part of
law that decides punishment on the basis of justice and fairness after looking at all
aspects of the punishment, including the motive of the accused. This system is enacted
whenever there is a disagreement to the application of common law. For example: If
stealing is a crime and is punishable by law, then anyone who steals is a criminal.
Now, if a person steals, they would automatically be punished. However, in equity
law, the judge would also take into consideration why the person stole, what was the
circumstance under which they accused felt the need to steal, etc.

Equity came around approximately 200-300 years after the development of the
common law system in England. The courts of law during that time were filled with
the enforcers of the king’s law and were trained to administer punishments that were
set in stone. However, any person that was not satisfied with the outcome of the law
courts in England, could appeal to the King for a lesser punishment. When the number
of appeal cases grew, the King forwarded this duty to his High Chancellors. The High
Chancellors were church clergymen and would usually take into consideration the
surrounding factors before making a decision. This court became known as the ‘Court
of Chancery.’ Following 17th century, the court of Chancery started appointing proper
lawyers instead of clergymen or nobles.

In modern times, both the courts have seemed to merge in many countries to create a
much fairer law system. However, in some countries, these courts are still separate.
The major differences between common law and equity exist in the type of solutions
that are offered by both. The court of law usually offers monetary solutions, while the
court of equity can offer the person to do something or not do something. For
example, let’s take a person who stole a car. In the court of law, the victim will more
commonly receive the monetary value of the car, while in the court of equity the
judge can tell the thief to return the property itself. In common law systems the
outcome is often same or similar to the outcome provided in previous cases, while in
equity the outcome can change depending on the circumstances of the situation.
Another major distinction between the two is the type of courts and the judges
available. In the court of law, a jury will be present to determine the outcome of the
case, while in equity court; there is only a judge present that will decide the outcome.

4. The philosophy of law is known as jurisprudence.Explain.

Jurisprudence is the theoretical study of law, principally by philosophers but,
from the twentieth century, also by social scientists. Scholars of
jurisprudence, also known as jurists or legal theorists, hope to obtain a deeper
understanding of legal reasoning, legal systems, legal institutions, and the
role of law in society.
 Modern jurisprudence began in the 18th century and was focused on the first
principles of the natural law, civil law, and the law of nations.[1] General
jurisprudence can be divided into categories both by the type of question
scholars seek to answer and by the theories of jurisprudence, or schools of
thought, regarding how those questions are best answered. Contemporary
philosophy of law, which deals with general jurisprudence, addresses
problems internal to law and legal systems, and problems of law as a
particular social institution as law relates to the larger political and social
situation in which it exists.[2]

This article distinguishes three distinct branches of thought in general

jurisprudence. To begin with, ancient natural law, as a major branch and
theory of jurisprudence, is the idea that there are rational objective limits to
the power of legislative rulers. The foundations of law are accessible through
reason and it is from these laws of nature that human-created laws gain
whatever force they have.[2] Secondly, 'clarificatory' or analytic
jurisprudence rejects natural law's fusing of what law is and what it ought to
be. It espouses the use of a neutral point of view and descriptive language
when referring to aspects of legal systems.[3] It comprises different theories
of jurisprudence. For example, legal positivism, holds that there is no
necessary connection between law and morality and that the force of law
comes from some basic social facts.[4] And legal realism argues that the real
world practice of law is what determines what law is; the law has the force
that it does because of what legislators, lawyers and judges do with it.
Thirdly, normative jurisprudence is concerned with "evaluative" theories of
law. It deals with what the goal or purpose of law is, or what moral or
political theories provide a foundation for the law. Besides the question
"What is law?", it tries to answer what the proper function of law was, or
what sorts of acts should be subject to legal sanctions, and what sorts of
punishment should be permitted

5. What are Environmental rights ?Explain.

Environmental protection within particular societies involves a complex
balancing process and ordering of socio-economic priorities. In relation to
other rights, where does an environmental right fit into a hierarchy of human
rights and how should the conflicts with other human rights, such as right to
property/ livelihood, be resolved? How to balance environmental protection
with a general or collective right to economic development?
 Indian courts have proceeded by balancing interests and striking
compromises. Environment and development have been accommodated in a
framework of balancing and ad hoc equity rather than an absolute application
of rights in the context of prevailing norms and community preferences. This
is where restriction of environmental rights comes in. Thus, our courts have
taken the view that there cannot be one universal applicable standard to judge
all environments. One of the reasons being the problem of defining
environmental rights so as to satisfy diverse ethical and cultural criteria.

To secure effective implementation, "rights" must be determinate in scope

and consistent in formulation. How should "substantive environmental right"
be defined? Which dimensions of the environment are to be protected? What
degree of environmental change is permissible? In a survey of existing
constitutional and statutory provisions relating to environmental quality, one
finds a series of adjectives attached to the word "environment" such as
"decent", "viable", "ecologically balanced", "clean", "healthy", etc.

Why is this exercise of defining so difficult? One reason is that precise

qualitative and quantitative dimensions of environmental protection are not
readily translated into legal terms. Secondly, there is no uniformity of opinion
on the definition of environmental rights. Difficult ethical decisions are at
stake: are we to protect livelihood or ecological sustainability? Underlying
such questions are different conceptions of the good life, involving moral
choices of the most profound nature. Even where a precise textual definition
exists, moral choices will lie in its interpretation. The appropriate authorities
(including courts) will still be involved in balancing competing claims.
Which standards would apply in the context of imperfect knowledge and
scientific uncertainty? Hence, the need for regulatory mechanism. Courts are
reactive, regulators are proactive. However, procedural as against substantive
environmental rights are more effective.
6. Explain International Human Rights Law and organisations.

International human rights law (IHRL) is the body of international law

designed to promote human rights on social, regional, and domestic
levels. As a form of international law, international human rights law is
primarily made up of treaties, agreements between sovereign states
intended to have binding legal effect between the parties that have agreed
to them; and customary international law. Other international human
rights instruments while not legally binding contribute to the
implementation, understanding and development of international human
rights law and have been recognised as a source of political obligation.[1]
The relationship between international human rights law and international
humanitarian law is disputed among international law scholars. This
discussion forms part of a larger discussion on fragmentation of
international law.[2] While pluralist scholars conceive international
human rights law as being distinct from international humanitarian law,
proponents of the constitutionalist approach regard the latter as a subset
of the former.[3] In a nutshell, those who favors separate, self-contained
regimes emphasize the differences in applicability; international
humanitarian law applies only during armed conflict. On the other hand, a
more systemic perspective explains that international humanitarian law
represents a function of international human rights law; it includes
general norms that apply to everyone at all time as well as specialized
norms which apply to certain situations such as armed conflict between
both state and military occupation (i.e. IHL) or to certain groups of
people including refugees (e.g. the 1951 Refugee Convention), children
(the Convention on the Rights of the Child), and prisoners of war (the
1949 Third Geneva Convention).

25 x 4=100 marks