Q 1: Define International Law. Do you agree with John Austin’s concept, “International Law is not a true law, but a positive international morality” ? Elaborate your answer with appropriate arguments.
ANS : DEFINATION: Jhon Austin’s
" Law is a command issued by the superior to interor having sanctoins of punishment "
"Law is a law of only for one land"
International Law:
Deals with the relations among various ststes.
LAWProffesor L Oppenehiem- JL Brierly-Gray:
Law of nations is the international law is the name of the body of customary and conventional rules which are considered legally binding by the civilized states in their intercourse with each other.(Limited definition ,No mention of UN or international organization)
Sir Robert Jennings and Sir arthur Watt :
The above definition+ States are not only the subject matter of international law. International Organizations to some extent and individuals may also be subject to international law.
Schwarzenberg:
International law is the body of legal rules which apply between sovereign states and such other entities as have been granted international entity recognization
Is International law is a law or not
Two School
1. It is nat a law .
2. It is a law.
Law:
The enforceble body of rules that govern a society.
Two school
1 : Positive school of thought
Lead by Austin - Hobbes - Holland - Beuthan
First School of thought ( Regection )
1. No Law giving authority.
2. No legal sanction .
3. No exective authority.
4. No legislature machinery.
5. Limited Jurisdication.
Second School of thought
Not necessary to have canetion / force for a law e.g
common law in England.
Concept of Austin’s
International Law is not a true law:
⦁ According to Thomas Hobbes and John Austin law is command of sovereign enforced by superior political authority.
⦁ John Austin said that its just a positive International Morality.
According to Thomas Erikson Holland and Jeremy Bentham International law lacks effective legislative machinery, an executive machinery and potent judiciary which is necessary for enforcement.
⦁ Bentham used the term International law for the first time.
INTERNATIONAL LAW IS A REAL LAW :
⦁ Hall and Lawrence :Law is followed and enforced and also derived from custom and precedent law.
⦁ Frederick Pollock :For law to exist the only condition is It should be recognized by the political community as binding them and International law satisfies this condition.
Q2- Discuss the issue of Kashmir in the light of:
⦁ Right of self Determination.
⦁ United Nations Security Council Resolutions.
⦁ Shimla Agreement.
⦁ Non-Interference in internal affairs.
ANS: Right of self Determination. The
“international” nature of the Kashmir dispute can be traced back to Jan 1, 1948 when India knocked the door of UN Security Council and resultantly the Council, via UNSCR 38, called upon the contending governments to refrain from aggravating the circumstances and report any material changes on the ground. Thereafter, the Security Council over a number of years issued a total of 17 resolutions on the dispute of Kashmir. UNSCR 47 of 1948, the most important of the Kashmir resolutions, calls for the resolution of the dispute of Kashmir’s accession to either India or Pakistan through effecting the democratic method of a free and impartial plebiscite. The recent closed door conclave by the UN Security Council on Kashmir re-emphasized the disputed and international nature of the issue.
The principle of self-determination was given overwhelming protection in Article 1 of both International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). In 1966, these two covenants enshrined the self-determination principle verbatim as was laid in GA resolution 1514. The Declaration of Principles of International Law Concerning Friendly Relations (GA Resolution 2625 of 1970) went further in recognising that peoples resisting forcible suppression of their claim to self-determination are entitled to seek and receive support in accordance with the purposes and principles of the Charter. Since the adoption of the Declaration in 1970, the ICJ has, on a number of occasions, confirmed that the principle of self-determination constitutes a binding norm of customary international law and even a rule of jus cogens- peremptory rule of international law. Thus, international law and the specific UNSC resolutions on Kashmir uphold and provide the Kashmiris with the overriding principle of right to self-determination.
United Nations Security Council Resolutions: The
United Nations was involved in the conflict between Pakistan and India just months after the partition of British India. India brought the issue of Pakistani interference in Kashmir before the U.N. Security Council on January 1, 1948. Under article 35 of the U.N. charter, India alleged that Pakistan had assisted in the invasion of Kashmir by providing military equipment, training and supplies to the Pathan warriors. In response, Pakistan accused India of involvement in the massacres of Muslims in Kashmir, and denied any participation in the invasion. Pakistan also raised question about the validity of the Maharaja’s accession to India
(ii), and requested that the Security Council appoint a commission to secure a cease-fire, ensure withdrawal of outside forces, and conduct a plebiscite to determine Kashmir’s future
(iii).The Security Council adopted a resolution establishing the United Nations Commission on India and Pakistan (UNCIP), to act as the mediating influence, and to undertake fact finding missions under article 34 of the Charter
(iv). Shortly thereafter, the Security Council adopted another resolution in support of Kashmir’s right to self-determination, and in recognition for the need for a plebiscite
(v). The plebiscite would be conducted under the supervision of an administrator appointed by the U.N. Secretary General and certified by UNCIP. The resolution also called for withdrawal of armed Pakistani tribesmen and instructed India to reduce her forces. The Commission was informed that both countries had made the situation very complicated as Pakistani regular troops were already inside the borders of Kashmir and that the tribal invasion plus the Indian intervention had evolved into a larger state of war between India and Pakistan.
Shimla Agreement ; 1. The Government of India and the Government of Pakistan are resolved that the two countriesput an end to the conflict and confrontation that have hitherto marred their relations and work forthe promotion of a friendly and harmonious relationship and the establishment of durable peace in the sub-continent, so that both countries may henceforth devote their resources and energies tothe pressing talk of advancing the welfare of their peoples.
In order to achieve this objective, the Government of India and the Government of Pakistan have
agreed as follows:-
(i) That the principles and purposes of the Charter of the United Nations shall govern therelations between the two countries;
(ii) That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization,assistance or encouragement of any acts detrimental to the maintenanceof peaceful and harmonious relations;
(iii) That the pre-requisite for reconciliation, good neighbourliness and durable peacebetween them is a commitment by both the countries to peaceful co-existence, respect for each other’s territorial integrity and sovereignty and non-interference in each other’s internal affairs, on the basis of equality and mutual benefit;
(iv) That the basic issues and causes of conflict which have bedevilled the relations between the two countries for the last 25 years shall be resolved by peaceful means;
(v) That they shall always respect each other’s national unity, territorial integrity,
political independence and sovereign equality;
That in accordance with the Charter of the United Nations they will refrain from the threat or use of force against the territorial integrity or political independence of each other.
2. Both Governments will take all steps within their power to prevent hostile propaganda directed against each other. Both countries will encourage the dissemination of such information
as would promote the development of friendly relations between them.
3. In order progressively to restore and normalize relations between the two countries step bystep, it was agreed that;
(i) Steps shall be taken to resume communications, postal, telegraphic, sea, land
including border posts, and air links including overflights.
(ii) Appropriate steps shall be taken to promote travel facilities for the nationals of the other country.
(iii) Trade and co-operation in economic and other agreed fields will be resumed as far as possible.
(iv) Exchange in the fields of science and culture will be promoted.
In this connection delegations from the two countires will meet from time to time to work out the necessary details.
4. In order to initiate the process of the establishment of durable peace, both the Governments agree that:
(i) Indian and Pakistani forces shall be withdrawn to their side of the international
border.
(ii) In Jammu and Kashmir, the line of control resulting from the cease-fire of December
17, 1971 shall be respected by both sides without prejudice to the recognized position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat or the use of force in violation of this Line.
(iii) The withdrawals shall commence upon entry into force of this Agreement and shall be completed within a period of 30 days thereof.
5. This Agreement will be subject to ratification by both countries in accordance with their respective constitutional procedures, and will come into force with effect from the date on which the Instruments of Ratification are exchanged.
6. Both Governments agree that their respective Heads will meet again at a mutually convenient time in the future and that, in the meanwhile, the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalization of relations, including the questions of repatriation of prisoners of war and civilian internees, a final settlement of Jammu and Kashmir and the resumption of diplomatic relations.
Non-Interference in internal affairs:
Right since its inception, the Government of India has been paranoid at the thought of international intervention, interference, or even interest, in the Kashmir issue. These concerns were not entirely without basis. The UN resolutions on a plebiscite had been defied (some even refer to this as the mess created by Prime Minister Jawaharlal Nehru) and the autonomy promised to the people of Kashmir under the Instrument of Accession and Article 370 had been constantly diluted. For quite some time now, India has taken recourse to the Simla Agreement and emphasized bilateralism because India has never really been sure that the world, by and large, accepted the legitimacy of its control over Kashmir.
There are other reasons for India's hesitation which have been articulated often by different representatives of the government:
Kashmir is an internal problem. This stems from another argument that is often repeated—that Kashmir is an integral part of the country. The reason that it is reiterated at any given opportunity is essentially because New Delhi worries that the United States might use its might as the world’s superpower to impose a solution to Kashmir. Says Victor Gobarev, “Why Indians are so sensitive to the Kashmir issue that they will not agree to either US or international mediation is because multinational India is afraid that it might follow the fate of the multinational Soviet
Union and fall apart. Indian elite considers Jammu and Kashmir, the only Indian state where the majority of the population is Muslim, to be the weakest link in a Hindu-majority country. They fear and with some reason, that should India be weakened, Kashmir would be the first territory lost.
Q3- Diplomatic Agents are the Representatives of the Sovereign States in the territory of a foreign state. Discuss the functions and Immunities of Diplomatic Agents in the light of the Vienna Convention of Diplomatic Relations 1961? Also discuss a legal View on the Raymond Davis Case in the context of Diplomatic Immunity?
ANS: Diplomatic Agents: Diplomats are the persons who reside in foreign countries as the representative of the country by whom they are despatched. They act as a link between the country who despatch them and by whom they are accredited. Therefore, they perform the act of diplomacy, which in International Law means by which the States maintain or establish mutual relations and carry out their legal or political transactions based on their foreign policies.
Act of diplomacy may be performed by the head of State, Government, Minister of Foreign Relations or by and by diplomatic agents.
Representation: Diplomatic agents represent the policies and beliefs of State by which they are dispatched to the state where they are accredited. The function of representation is primarily entrusted to the head of the mission. Oppenheim, in his book, says that “diplomats are the mouthpiece of the head of his own State and the Foreign Minister for communication to be made to State where they are dispatched.
Protection: Diplomatic agents protect the rights and interests of sending State and also of nationals, within the limits allowed by the municipal law of respective State. The limit of diplomats is not prescribed by the International Law but by the municipal law of the State.
Negotiation: Negotiation is the most important function which is performed by the diplomatic agents. Generally, the head of the diplomatic mission negotiates on various aspects of on behalf of the sending State with the State to which they are accredited in order to maintain a friendly relationship. Diplomatic agents are required to communicate the outcome of the negotiation to sending State from time to time,
Observation: Diplomatic agents are required to observe those events and happenings which take place or which may take place in the State where they are accredited, especially those which may affect the interests of the State by which they are sent. After making observations of the events, they are required to make periodical reports to the government of sending State.
Promotion of Friendly Relations: Diplomats are required to promote friendly relations between the sending State and the receiving State. They also have the function to develop the social, cultural and economic relations between the two States.
Consular Functions: Vienna Convention lays down that diplomatic agents can also perform consular functions which may be allotted to them from time to time such as death, birth and marriage registrations of the subjects of home State, issue of passports etc.
Privileges and immunities of a Diplomat
Vienna Convention on Diplomatic Relations of 1961 lays down the different rights and privileges which are granted to diplomatic agents. They are as follows:
Inviolability of Diplomatic Agents:
Diplomatic agents are inviolable is a principle which is recognized in International Law much before the adoption of the Convention of 1961. Article 29 of the Vienna Convention lays down that “the person of a diplomatic agent shall be inviolable”. He shall not be liable to any form of arrest or detention, and the receiving State shall treat him with all due respect and should take all appropriate to prevent an attack on his personal freedom and dignity.
The Government of receiving State by virtue of Article 29 is under a duty to conduct to abstain from any form of conduct which is injurious to the diplomatic agents and also under a duty to prevent such injurious conduct if attempted by another.
This does not mean that the immunity given to the diplomats is absolute. The receiving State has the power to arrest or detain the diplomatic agent in exceptional cases For instance, a drunken diplomat with a loaded gun in a public place can be arrested or if a diplomatic agent commits an act of violence which disturb the order and peace of receiving State in such a manner that it becomes necessary to put him under restraint for the purpose of preventing similar acts.
Pakistan high court has declined to rule on whether Raymond Davis, a CIA contractor arrested for killing two men in Lahore, has diplomatic immunity.
The Lahore High Court closed the case saying a decision on his immunity should be made by the lower court which is already hearing the criminal trial.
That hearing is due to resume on Wednesday, when Mr Davis could be indicted for murder.
The case has already soured relations between the US and Pakistan.
Correspondents say the latest development will only further strain ties as the US insists he has diplomatic immunity. The Pakistani government is facing immense domestic pressure to put Mr Davis on trial for murder.
Hundreds of Pakistanis have taken part in street demonstrations and the widow of one of the dead men killed herself, having said she had no hope of justice.
Mr Davis was arrested in Lahore in January after he shot dead two men. He has said that he killed them in self-defence as they were trying to rob him.
A third man was run over by a US vehicle that came to the American's aid. Mr Davis is charged with two counts - murder and possession of illegal weapons.
Public anger intensified after unnamed US officials said that Mr Davis had been secretly working for the CIA at the time.