International Law and Jurisprudence

Project for the Subject of

Jurispuridence

Submitted by:

Suyash Kunal Joshi (09 BAL 178)

Semester vi B.A. LL.B (Hons.)

Under the guidance of:

Dr. N. Bangkim Singh

Assistant Professor, ILNU

Submitted to:

INSTITUTE OF LAW, NIRMA UNIVERSITY

AhmedabadAcademic Year 2011-12

Declaration

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The information so gathered in the project is the outcome of my own

efforts and no part of this project has been copied in any unauthorized

manner and no part has been incorporated without due acknowledgement.

Date: 28nd January, 2012 Name: Suyash Kunal Joshi

Roll No.: 09 BAL 178

Signature:

Course Coordinator: Dr. N. Bangkim Singh

Signature:

Certificate

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This is to certify that the project entitled: “International Law and

Jurisprudence” has been carried out by Suyash Kunal Joshi

under my supervision and guidance. The project is outcome of her work

completed after careful research and analysis of the data, research material

available in previous works and various judicial pronouncements. The

project is of the standard expected of a candidate for project submission in

the course of Jurisprudence Semester VI of B.A.LLB.(Hons.)

Programme and commend that it be sent for evaluation.

Date: Name: Dr. N. Bangkim Singh

Signature:

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Contents

S.No.

Chapter Page No.

1. Chapter I: Introduction And Research Methodology

1.1 Introduction1.2 Review of Literature1.3 Need for Research1.4 Objective of Research1.4 Hypothesis1.5 Scope of the Study1.6 Research Methodology

2. Chapter II: Sources of law- an overview

2.1. Sources of law in India2.2. Most important Source of law in India2.3. Treaties as Source of law

3. Chapter III: International Law Definition and

Relevance in Jurisprudence

3.13.2.

4. Chapter IV: Conclusion

Bibliography

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CHAPTER -I

INTRODUCTION AND RESEARCH METHODOLOGY

1.1. Introduction

No area of international law has been so little explored by scholars as the

history of the subject. This is a remarkable state of affairs, probably without

parallel in any other academic discipline (including other branches of law).

Although this intellectual scandal (as it well deserves to be called) is now being

remedied, it is still only in the earliest stages of the serious study of international

legal history. Many blank spots exist, some of which will be identify, in passing

the discussion. This can give only the most general .flavour of the major

periods of development of international law. It will accordingly not be

Possible to give more than the most token attention to developments outside the

Western mainstream. Both ideas and State practice will be covered. The ideas

chiefly concern what international law was thought to consist of in past times.

State practice is concerned with what States actually did. It was the two in

combination—if not always in close harmony—that made international law

what it became.

1.2 Review of Literature

The researcher has referred to Jurisprudence of International Law by Nikolaos K.

Tsagourias contains an original analysis of the philosophical and legal sources

underpinning the concept of humanitarian intervention. The book presents and

evaluates the bearing of legal theories - natural law, positivism, realism and critical

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theory - on humanitarian intervention and how the legal framework, in particular

Articles 2(4) and 51 of the United Nations Charter, is molded by theoretical arguments

and influences state practice.

The author goes on to develop a discursive model where the value of human dignity is

attained through dialogue, reflection, and projection embedded in a sense of

responsibility and human solidarity.

The researcher has also referred to the book of ‘Jurisprudence (Legal Theory)’ by Prof.

Nomita Agrawal. This book includes a brief description as to what sources of law is

and its different kinds.

1.3 Need for Research

The need for the research is to analyse and study as to what is International Law is with

respect to present times and the problem related to the same.

1.4 Objective of Research

o The aim and objective of the study is to know as to what international law is.

o To find out the sources of law on International and Indian grounds.

o To study and understand the importance of International Law in present time.

1.5 Hypothesis

The researcher in the present study has following hypothesis:

That what is the importance of International law is in context of Sources of law.

That what are the sources of law, and the origin of International law and its

importance in present time.

1.6 Scope of the Study

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The research made by the Researcher is Limited to the Indian Scenario with respect to

the International Law and Jurisprudence in India. As to how it emerged and what is its

relevance in present time

1.7 Research Methodology

In order to carry out an extensive Research, the Researcher has espoused the Doctrinal

Method of carrying out the Research. Doctrinal Research which provides a systematic

exposition of the rules governing a particular legal category, analyses the relationship

between rules, explains areas of difficulty and, perhaps, may even predict future

developments. The researcher has tried to include the various judicial pronouncements

and any such rules or provisions or statistics available and applicable in the present

scenario. The Researcher has used various sources of which Articles, websites,

database are a major role to play. The Researcher has also used various Articles and

cases on the aforementioned issue.

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CHAPTER –II

Sources of Law- An Overview

• Source of Law

The International Court of Justice (ICJ) was established in 1945 as the successor to the Permanent International Court of Justice (PICJ), which was created in 1920 under the supervision of the League of Nations (the precursor to the United Nations). The PICJ ceased to function during World War II and was officially dissolved in 1946. The ICJ is a permanent international court located in The Hague, Netherlands, and it is the principal judicial organ of the United Nations (UN). It consists of 15 judges, each from a different state. The judges are elected by the UN General Assembly and the UN Security Council and must receive an absolute majority from both in order to take office.1

The ICJ has jurisdiction only over states that have consented to it. It follows that the court cannot hear a dispute between two or more state parties when one of the parties has not accepted its jurisdiction. This can happen even where the non-consenting party adheres to the court's statute, for mere adherence to the statute does not imply consent to its tribunals. In addition, the court does not have jurisdiction over disputes between individuals or entities that are not states (I.C.J. Stat. art. 34(1)). It also lacks jurisdiction over matters that are governed by domestic law instead of international law (art. 38(1) ).2

Article 38(1) of the ICJ Statute enumerates the sources of international law and provides that international law has its basis in international custom,

1 http://www.slideshare.net/robinkapoor/chapter-01-sources-of-law-presentation2 Prof. Nomita Agarwal (2008). Jurisprudence (legal theory), Allahabad: Central Law Publications.

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international conventions or treaties, and general principles of law. A rule must derive from one of these three sources in order to be considered international law.

Custom Customary international law is defined as a general Practice of Law under article 38(1)(b). States follow such a practice out of a sense of legal obligation. Rules or principles must be accepted by the states as legally binding in order to be considered rules of international law.

Conventions and Treaties Conventional international law includes international agreements and legislative treaties that establish rules expressly recognized by consenting states. Only states that are parties to a treaty are bound by it. However, a very large number of states voluntarily adhere to treaties and accept their provisions as law, even without becoming parties to them. The most important treaties in this regard are the Genocide Convention, the Vienna conventions, and the provisions of the UN Charter.3

What are the sources of law in India?

The basic resource of law in India (as in most countries in the world) is the Constitution which, in turn, gives due recognition to statutes, case law and customary law consistent with its dispensations.4 Statutes are enacted by the Parliament, State Legislatures and Union Territory Legislatures. There is also a vast body of laws known as subordinate legislation in the form of rules, regulations as well as by-laws made by Central and State Governments and local authorities like Municipal Corporations, Municipalities, Gram Panchayats and other local bodies. This subordinate legislation is made under the authority conferred or delegated either by Parliament or State or Union Territory Legislature concerned. Apart from the statutes and legislations, the decisions of the Supreme Court are binding on all Courts within the territory of India. The decisions of the High Court have a persuasive value in so

3 Nikolaos K. Tsagouria, Jurisprudence of International Law, Oxford Publications.4 http://www.britannica.com/EBchecked/topic/291011/international-law

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far as the interpretation of the law is concerned. Further, as India is a land of diversities, local customs and conventions which are not against statute, morality, etc. are to a limited extent also recognised and taken into account by Courts while administering justice in certain spheres

Most Essential Sources of Law in India

(A)Customs

Customs are oldest source of law. It is the outcome of habits. When a particular habit is followed for a long time by the people regularly and habitually, the custom comes into being. When written laws were more conspicuous by their absence in the primitive society, it was customary laws that regulated human conduct in the primitive society. It is said that kings have no power to create custom and perhaps less to destroy it. Customs largely influence the legal system of a state and the state gets rid of the bad customs like Sati, Polygamy, and Dowry etc. only by means of legal impositions. The United Kingdom provides the best example of customary laws which are found in the common law of England. In the United Kingdom the law and custom are so intimately connected with each other that the violation of convention custom will lead to the violation of law.

(B) Religion

The religion is another important source of law. It played an important role in the primitive period when men were very much religious minded and in the absence of written laws the primitive people obeyed religion thinking it of divine origin. In the medieval period, most of the customs that were

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followed were only religious customs.5 Even today the Hindu Laws are founded on the code of Manu and the Mohammedan Laws are based on the Holy Koran. The religious codes become a part of the law of the land in the state incorporates the religious codes in its legal system.

(C) Judicial Decisions

Since the dawn of the human civilisation the dispute between two parties is referred to a third party who acts as the arbiter6. His decision is generally obeyed by both the parties. The arbiter may be a tribal chief or a priest. But with the passage of time, the judicial organ of the state is given power to decide cases between the parties. While deciding a case and pronouncing a judgment, the judges generally apply their own common sense and justice. This is known as Judge-made laws or case laws. Justice Holmes commented that "judges do and must make laws". The principle by which a judicial decision becomes a precedent is known as "Stare Decisis".

(D)Scientific commentaries

Chief Justice Hughes of the U.S.A. opines that “We are living under a constitution and the constitution is what the judges say it is". The law needs interpretation and the scientific commentaries and interpretations by eminent jurists have contributed a lot for the evolution of a legal system. The views of Blackstone in the U.K., Kent in the U.S.A. have made tremendous impact on the legal system of their respective countries. The opinions of these expert legal luminaries are always kept in high esteem by the judges and the courts.7

(E) Equity

The term 'equity' literally means 'just', 'fairness' and according to 'good conscience'.8 When the existing law is inadequate or silent with regard to a particular case, the judges generally apply their common sense, justice and fairness in dealing with such cases. Thus, without 'equity' the term law will be devoid of its essential quality.

5 http://www.dfat.gov.au/treaties/workshops/treaties_global/moraitis.html6 http://ejil.oxfordjournals.org/content/10/1/31.full.pdf7 http://legal-dictionary.thefreedictionary.com/International+Law8 http://www.law.harvard.edu/faculty/dkennedy/publications/illusions.pdf

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(F) Legislation

This is the most important and modern source of law. The legislature is that organ of the state whose primary function is to make laws. To Leacock the legislatures deliberate, discuss and make laws. Thus, law can be defined as the opinion of the majority legislators. They are recorded in the Statute Book. When the legislature is not in session, the executive is empowered to issue ordinances, decrees etc. which as good as the laws are made by the legislatures.

(G) Precedents

It is today the prevailing opinion that a decision of a court of law, particularly a court of high authority, which explicitly or implicitly lays down a legal proposition constitutes a general and formal source of law. It is the reason or legal principle of the case, which is known as the ratio decidendi applied by the Doctrine of stare decisis, which forms the law for the future. A decision is not binding because of its conclusion, but in regard to its ratio and the principles laid down therein which is declared in the case Bachan Singh v State of Punjab.

In Krishena Kumar v Union of India, the Supreme Court has observed, “The Ratio Decidendi is the underlying principle, namely, the general reasons or general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The Ratio Decidendi has to be ascertained by an analysis by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge made, and a minor premise, consisting of the material facts of the case under immediate consideration.”

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Obiter dicta on the other hand are observances of the court in the judgments passed by it. Although it is of persuasive value, normally even an obiter dictum of the Supreme Court is expected to be obeyed and followed.

Precedents may be classified into original and declaratory precedents. Original precedents are those that create and apply a new rule or law, while declaratory precedents are those that merely declare or apply the same pre-existing legal principle on a similar case. Both original as well as declaratory precedents are equally important sources of law.9

Precedents may also be classified into authoritative and persuasive precedents according to its binding force on the lower courts. An authoritative precedent is one in which judges must follow it whether they approve of it or not. A Persuasive precedent is one in which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach as much weight as it seems to them to deserve. In India, Article 141 of the Indian Constitution says that Law declared by the Supreme Court is binding on all courts while the judgment of one High Court of a state has persuasive authority over another High Court. Precedents are binding only from a higher court to a lower one while persuasive authority exists only between collateral courts or courts of the same rank. One Division Bench decision is binding on another Division Bench of the same court. Judgment of earlier Division Bench of the High Court is binding in subsequent proceedings of the same case.

Authoritative precedents may further be classified into absolute and conditional. Absolutely authoritative precedents are binding on lower courts irrespective of however erroneous it may be. Conditionally authoritative precedents are usually binding on all ordinary cases, however in one special case its authority may lawfully be denied if the wrong and unsound nature of the law is proved.

When a precedent is disregarded, the court may either overrule it, or merely refuse to follow it. Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of all authority, and becomes null and void and a new principle is authoritatively substituted for the old. The Supreme Court will not ordinarily depart from its earlier decision. However, if an earlier decision is found erroneous, and is thus detrimental to the general welfare of the public, the Supreme Court will not hesitate in departing from it, as it laid down in the case Sajjan Singh v State of Rajasthan. Where a precedent is merely not followed, the result is the two stands side by side conflicting with each other. Such a situation can be

9 http://www.scjudgments.com/display.aspx?2426b1ee-afb2-425c-a26e-0a7a80b5f0a2

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solved only when a higher authority formally overrules one of the laws and sanctions the other. The Supreme Court is not bound by its own decisions and may overrule its previous decisions. It may overrule them either by expressly saying so or impliedly by not following them in a subsequent case. Judgments are not scriptural absolutes but relative reasoning.

The binding force of the precedent may be destroyed when it is overruled by a higher authority or if it is in opposition to a pre-existing statute or an earlier decision of a superior court. A number of decisions on Constitutional law have been abrogated by constitutional amendments such as the decisions in Golak Nath v State of Punjab. The binding force of the precedent may also be weakened if a particular point of law involved in the decision is not perceived by the court, which is known as precedents sub silentio and does not have any precedential value.

The value of the doctrine of precedent has been much debated. Judges have been criticised on the grounds that precedents give them the power to transform from law-implementers to law-makers. However, it has also been argued in favour of Precedents that the practice is necessary to secure the certainty of the law. At a time of commercial development and constitutional jurisprudence, it is the duty of the superior courts to be cautious in laying down precedents keeping in mind future developments.

Besides the above sources of law two more sources of law can be added in the present days. The executive in a parliamentary democracy has the support of the majority legislators in the legislature enabling it to make laws according to its choice. The executive in a presidential system can influence legislation in the floor of the legislature through its party men. With the advent of time, the legislature is required to make laws in a large number of subjects. Due to paucity of time, the legislature makes laws in the skeleton form and the flesh and blood is added to it by the executive. This is termed as 'delegated legislation which has considerably enhanced the role of the executive in the field of legislation. Public opinion in this age of democracy plays a vital role in the process of law making.10

Treaties as a Source of International Law

10 http://www.preservearticles.com/201104265957/6-most-essential-sources-of-law-in-india.html

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Traditionally, the sources of international law are regarded as being listed in Article 38 of the Statute of the International Court of Justice.

These are:

International Conventions whether general or particular establishing rules expressly recognized by 'the contesting states';

International custom as evidence of a general practice accepted as law;

The general principles of law recognised by civilised nations; and

Judicial decisions and the teachings of the most highly qualified publicists of the various nations (as subsidiary means for the determination of rules of law). 11

There are three important types or classes of treaties. The first is the general Multilateral Treaty. This type of treaty is one that is open to all states of the world (or if it’s a regional multilateral treaty, opens to all states in the large regional group). The critical role of the Multilateral Treaty is to lay down rules of behavior (laws) that tend to be of a fundamental and “norm-creating” character. In other words, many of the principles and rules that make up Multilateral Treaties also form the basis of general rules of law.

Another important class of treaties are those that establish a Collaborative Mechanism by which states can regulate or manage a particular activity. These treaties tend to lay out a specific purpose or objective and then back it up with legal principles. Collaborative Mechanism Treaties usually operate through decisions made by their main organs and central governing bodies. They tend to have an institutional and administrative character that allows them to oversee various areas of activity.

The third important class of treaty is the Bilateral Treaty. These treaties are those made between a small number of states (not necessarily just two, but generally less than four or five). Bilateral treaties often are drafted in contractual terms in which the parties mutually exchange rights and obligations. They are usually detailed and provide for specific conditions that dictate the parties’ rights and duties. Common examples of this type of treaty include treaties of alliance, trade, friendship, etc.

11 http://jurisonline.in/2010/03/sources-of-law/

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Cross-Over Concepts with Customary International Law

With certain obvious differences (such as treaties based on written agreements by parties), customary international law and treaties intersect in important ways in regards to the formation of international laws12.

One such cross-over is the concept of entanglement. This occurs when provisions in treaties also rise to the level of customary international law. When this happens, a state might be bound to a provision of a treaty even when that state is not a party to the treaty. As a member of the international community, states agree (assuming they are not the persistent objectors discussed in Part I) to be bound by customary international.

This can be a tricky concept that is difficult to grasp, but at the core, the essential aspect is that the rule itself is customary international law. Therefore, the codification or inclusion of the rule in a treaty merely serves to emphasize and state that what law is already.

Another important concept is that of instant custom. This occurs when a provision or rule in a treaty is agreed to by a large number of countries, including all specially affected states. When the number in agreement is substantial enough, the provision or principle instantly establishes a rule of customary international law. The need for a large number of states to be in agreement necessarily means that this requires the treaty to be a multilateral treaty. 13

As with other forms of customary international law, a state may oppose the rule and be a persistent objector. When instant custom is at issue, a persistent objecting state must dissent throughout the formation process. This must be in the form of actual debates and discussion in opposition.

12 http://www.dfat.gov.au/treaties/workshops/treaties_global/moraitis.html13 http://intlblawg.wordpress.com/2009/10/13/treaties-as-a-source-of-international-law/

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CHAPTER –III

INTERNATIONAL LAW- Definition and Relevance in Jurisprudence

The Nature and Development of International Law

"A body of rules common to all civilized nations, equally binding upon all and impartially governing their mutual intercourses."14

14 http://www.duhaime.org/LegalDictionary/I/InternationalLaw.aspx

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In the long march of mankind from the cave to the computer a central role has always been played by the idea of law- the idea that order is necessary and chaos inimical to a just and stable existence. Every society, whether it is large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what cannot be done, permissible acts, forbidden acts, have all been spelt out within the consciousness of that community. Progress, with its inexplicable leaps and bounds, has always been based upon the group as men and women combine to pursue commonly accepted goals, whether these are hunting animals, growing food or simply making money.

Law is that element which binds the members of the community together in their adherence to recognised values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulations. Law consists of a series of rules regulating. Behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions.

And so it is with what is termed International Law, with the important difference that the principal subjects of international law are nation – states, not individual citizen. There are many contracts between the law within a country (municipal law) and the law that operates outside and between states, international organisations and, in certain cases, individuals.15

International law itself is divided into conflict of law (or private international law as it is sometimes called) and public international law (usually just termed international law). The former deals with those cases, within particular legal systems, in which foreign elements obtrude, raise question as to the application of foreign law or the role of foreign courts.

Public international law covers relation between states in all their myriad forms, from was to satellites, and regulates the operations of the many international institutions. It may be universal or general, in which case the stipulated rules bind all the states ( or practically all depending upon the nature of the rule), or regional, whereby a group of states linked geographically or ideologically may recognize special rules applying only to them. The rules of international law must be distinguished from what is called international comity, or practices such as saluting the flags of foreign warships at seas, which are implemented solely through courtesy and are not regarded as legally binding. Similarly, the mistake of confusing international law with international morality must be avoided. While they may meet at certain points, the former discipline is a legal one both as regards its content and its form, while the concept of international morality is a branch of ethics. This does not mean, however, that international law can be divorced from its values.

15 http://assets.cambridge.org/052182/4737/sample/0521824737ws.pdf

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Statute of the ICJ, art. 38(1), sources of international law

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply?

A. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

B. international custom, as evidence of a general practice accepted as law;

C. the general principles of law recognized by civilized nations; 16

D. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.17

16 http://www.kentlaw.edu/faculty/bbrown/classes/HumanRightsSP10/CourseDocs/1ICJ%20Art_38.pdf17 http://www.kentlaw.edu/faculty/bbrown/classes/HumanRightsSP10/CourseDocs/1ICJ%20Art_38.pdf

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CHAPTER IV

CONCLUSION

It is difficult to define law, but it is easy to define about law. Sources of law are an important

facet to law as it helps in giving a definition to law.

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If a study is made of the legal systems in the world in modern times, it would be found that

most of the law is made by legislation. In some countries, especially in Common Law

countries, the decisions of the superior courts, or precedents, also form a source of law. 18Customs, too, play a very important parting the framing of laws, and the rights and

liabilities of individuals are determined on the basis of customs, especially upon matters on

which there are no pre-existent legislation, and no precedent to cover the matter. Sometimes

customs are abrogated by the legislation, and at other times are confirmed by their decisions.

The judges, in passing their judgment, take help from numerous other sources of law to,

juristic or authoritative writings, foreign decisions (Standard of Justice), moral considerations

and public opinion. The law generally comes from these sources. Sources of law are the tools,

methods an techniques that are availed by the legal system in order to carry out its social

goals and objectives, which is to provide justice to the people, most effectively and

adequately19. Sources of law concerns itself with the methodology, modes of reasoning and

the interpretation of law, and not with the problems, principles and rules of specified law.

BIBLIOGRAPHY

Books:

18 http://jurisonline.in/2010/03/sources-of-law/

19 http://www.businessdictionary.com/definition/international-law.html

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Prof. Nomita Agarwal, “Jurisprudence (Legal Theory)”, Central Law Publication, 2008.

Dr. S.P. Dwivedi, “Jurisprudence and Legal Theory”, Central Law Publication, 2007.

Cases:

Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, 954 : 1985 Cri LJ 875 and the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. Raj Bahadur Singh v. Legal Remem-brancer, AIR 1953 Cal 522. Vishal Jeet v. Union of India, AIR 1990 SC 1412. Laxmi Kant Pandey v. Union of India, AIR 1984 SC 469. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922; Chairman, Railway

Board v. Chandrima Das, AIR 2000 SC 988. Randhir Singh v. Union of India, AIR 1982 SC 879. Uttarkhand Mahila Kalyan Parishad v. State of U. P., AIR 1992 SC 1695. Thota Sesharathamma v. Thota Manikyamma, (1991) 4 SCC 312. Mrs. Gita Hariharan v. Reserve Bank of India with Dr. Vandana Shiva v. Jayanta

Bandhopadhyaya, AIR 1999 SC 1149. Gayatri Devi Pansari v. State of Orissa, AIR 2000 SC 1531. Gazula Dasaratha Rama Rao v. State of A. P., AIR 1961 SC 564. Maneka Gandhi v. Union of India, AIR 1978 SC 597. Chitra Ghosh v. Union of India, AIR 1970 SC 35

Websites:

http://definitions.uslegal.com/j/jurisprudence/ http://indiannow.org/?q=node/18 http://www.law-lib.utoronto.ca/diana/puneannotations.htm http://exim.indiamart.com/ssi-regulations/employment-children.html http://www.preservearticles.com/201106107765/1083-words-free-essay-on-the-status-

of-women-in-india.html http://www.historytuition.com/position_of_women_in_ancient_india/index.html http://www.thisismyindia.com/ancient_india/woman-in-ancient-india.html

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