Legal Talks by Desikanoon

This episode discusses the concepts of Monism and Dualism and also the differences between Municipal Law and International Law. Sources of International Law - https://youtu.be/xxCGE8fpVE0

Opinio Juris - https://www.youtube.com/watch?v=TkR4j43Qmms

 

Pacta Sunt Servanda - https://www.youtube.com/watch?v=CPftp4WnmVQ  

 

Sources of International Law - https://youtu.be/xxCGE8fpVE0

 

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Amazon Music: https://music.amazon.com/podcasts/4b89fb71-1836-414e-86f6-1116324dd7bc/Legal-Talks-by-Desikanoon 

Opinio Juris - https://www.youtube.com/watch?v=TkR4j43Qmms 

Pacta Sunt Servanda - https://www.youtube.com/watch?v=CPftp4WnmVQ 

Telegram: https://t.me/Legal_Talks_by_DesiKanoon

This episode discusses the concept of Jus Cogens in International Law.

This Episode explains the meaning of the Oldest Doctrine in Public International Law, Pacta Sunt Servanda, its relevance and exceptions.

Latin Term – Meaning – “Opinion that an act is necessary by rule of law” or opinion of law. It is considered to be a belief that the practice is obligatory. This belief in the mandatory nature the conduct or practice may be termed Opinio Juris. 

 

Importance and Relevance – To decide whether a custom has become a source of International Law or not.

 

What is Custom? 

 

‘Custom’ is one of the many sources of International Law. It means a long established and commonly adopted practice that has acquired the force of law. 

 

Also finds mention in Article 38 (b) of the ICJ Statute that states that International Courts must apply international customs in their decisions, wherever possible and wherever it is a general practice accepted as law either in domestic laws or treaties or international agreements. 

 

Three types – general, regional and local. 

 

General Customs are followed in most of the places and jurisdictions. 

 

Regional Customs are followed in a particular region. North America may have its own Regional Customs distinct from South America or Asia. 

 

Local Customs have limited influence in a geographical area. India Pakistan and Sri Lanka may have a local custom that may not be followed anywhere else. 

 

The existence of a custom can be deduced from the practice and behaviour of states. Such custom becomes part of International Law when it is a State Practice and opinio juris. 

 

State Practice + Opinio Juris = New Customary Rule of International Law 

 

 

Four Steps 

 

1. Establish existence usage of a practice or conduct. 

2. Existence of State Practice 

3. Existence of Opinio Juris 

4. 1 +2 + 3 = New Custom

 

If all three are present, the practice or conduct becomes a new customary rule of International Law. 

 

1. Step 1 - How to establish existence of usage of a practice or conduct? When a country contends existence of a practice or conduct, it usually gives evidence in form of newspaper reports, statements by government leaders, mentions particular provisions in some law.

 

2. Step 2 - If such an existence is established, then the next step is to look into State Practice. State Practice simply means how states behave in practice. This practice can be found in their legislation, judicial decisions, administrative acts, official publications, treaties etc. Basically, it covers any act or statements by a state from which its existence as a customary law may be inferred.

 

3. Step 3 - Once State Practice is established, then the presence of opinio juris is to be seen. To ascertain such presence of Opinio Juris, the behaviour of the state towards that conduct or practice is seen. If the states make that practice or conduct legally obligatory or codify it or make it a legal right, then that conduct, or practice can be said to satisfy the ingredients of ‘Opinio Juris’ 

 

4. Step 4 - If existence of usage of a practice or conduct satisfies the dual requirements of State Practice and Opinio Juris, it becomes a valid ‘custom’ in International Law and the Court may decide accordingly. 

 

Issues faced by the Court in deciding presence of Opinio Juris 

 

1. Countries may exert pressure to make a practice a custom but views of countries with greater power does carry greater weight as politics or power cannot be divorced from law.

 

2. Unsubstantiated and unilateral claim by a state regarding existence of a custom cannot be accepted. It is the international context that plays a vital role in the creation of custom. 

 

3. Unsubstantiated and unilateral claim by a state regarding the existence of a custom are not accepted. It is the international context that plays a vital role in the creation of custom.

 

4. In new areas of law, Opinio Juris may be quickly or even instantaneously established because of the newness of the situation involved and lack of contrary rules. However, in traditional areas of law, it is more difficult to establish a custom as it has to be done through series of usages. Custom should mirror the perception of the majority of states.

 

Important Case Laws

 

1. Lotus Case

2. North Sea Continental Shelf Cases

3. Nicaragua v. United States 

4. Germany v. Italy

5. Asylum Case (Peru v. Colombia) 

1. 1958 – The United Nations Office for Outer Space Affairs (UNOOSA) is an office of the U.N. Secretariat that promotes and facilitates peaceful international cooperation in outer space. It is part of the UN that was established in the year 1945. If aliens actually visit the Earth, this will be the competent organization to deal with the same. Visionary approach of United Nations.  

 

2. 1960 – Establishment of Latin American Free Trade Association (LAFTA) by the Treaty of Montevideo. This treaty provided for new foreign investment rules and restrictions on operations of foreign firms in Latin American countries. It was later transformed into Latin American Integration Association. Currently, it has 13 member states.  

 

3. 1967 – Establishment of Association of Southeast Asian Nations (ASEAN) initially as a security association since at that point of time, entire Southeast Asia was beset with conflicts. It is currently a political and economic union of 10 member states including Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines and Singapore.  

 

4. 1967 – Signing of the Outer Space Treaty or the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Currently, there are 113 parties to this convention. Key provisions of the Outer Space Treaty include prohibiting nuclear weapons in space; limiting the use of the Moon and all other celestial bodies to peaceful purposes; establishing that space shall be freely explored and used by all nations; and precluding any country from claiming sovereignty over outer space or any celestial body.

 

5. 1969 – Adoption of Vienna Convention on the Law of Treaties (VCLT) that introduced the concept of ‘jus cogens’ in International Law. VCLT is one of the most important treaties in International Law. Currently, there are 116 parties to this convention.  

 

6. 1972 – United Nations Conference on the Human Environment at Stockholm, Sweden. The United Nations Environment Programme (UNEP) was created as a result of this conference. Around 122 countries attended it. Its success lies in the fact that in 1972, environmental governance was not seen as an international priority and still it was able to bring on board so many countries.  

 

7. 1979 – Signing of the Moon Treaty or the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. Currently, 18 states are parties to the treaty. Its primary objective of is to provide the necessary legal principles for governing the behavior of states, international organizations, and individuals who explore celestial bodies other than Earth, as well as administration of the resources that exploration may yield.  

 

8. 1985 – Establishment of the South Asian Association for Regional Cooperation (SAARC). It is a regional intergovernmental organization and geopolitical union of states in South Asia aiming to accelerate the process of economic and social development in its member states through increased intra-regional cooperation. Its member states are Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka.  

 

9. 1991 – Birth of Mercosur, a South American trade bloc established by the Treaty of Asunción. Mercosur's purpose is to promote free trade and the fluid movement of goods, people, and currency. Its members are Argentina, Brazil, Paraguay, and Uruguay.

 

10. 1995 – Birth of World Trade Organization (WTO) through the Marrakesh Agreement. It replaced the General Agreement on Tariffs and Trade (GATT) that was established in 1948. It is an intergovernmental organization that regulates and facilitates international trade. Currently, it has 164 member states.  

 

11. 1996 – Formation of Shanghai Five that later on succeeded as Shanghai Cooperation Organization (SCO) in the year 2001. It is a political, economic and security organization. Its member states are China, India, Kazakhstan, Kyrgyzstan, Pakistan, Russia, Tajikistan and Uzbekistan.

 

12. 1998 – The International Criminal Court (ICC) is established under the Rome Statute, adopted by 120 States on 17 July 1998 during the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome and enters into force on 1 July 2002. 

1.  1815 – Congress of Vienna – Series of international diplomatic meetings to discuss a new European order post the downfall of Napoleon that led to agreements on national boundaries within Europe, Neutrality Pacts, freedom of navigation.  

2.  1823 – Monroe Doctrine by James Monroe, then President of US - Any intervention by external powers in the politics of the Americas is a potentially hostile act against the US.  

3.  1824 – Calvo Doctrine –  Jurisdiction in international investment disputes lies with the country in which the investment is located. (Carlos Calvo, Argentine Jurist). Used mostly in International Investment Law.  

4.  1842 – Treaty of Nanking – Ended the First Opium War between Britain and Qing Dynasty – Its provisions involved cession of Hong Kong to the crown. Was considered an unequal treaty.  

5.  1864 – First Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.  

6.  1865 – Establishment of International Telegraph Union to deal with international interconnection, standardization of equipment, tariffs etc.  

7.  1871 – Sino-Japanese Friendship and Trade Treaty – Mutual pledge for friendship and cooperation, exchange of ambassadors, trade related provisions.  

8.  1899 – First Hague Peace Conference – Establishment of Permanent Court of Arbitration.  

9.  1914-1918 – First World War

10.  1919 – Treaty of Versailles – Disarmament of Germany, payment of reparations by Germany, territorial concessions etc.  

11.  1920 – Paris Peace Conference – Establishment of League of Nations – a worldwide intergovernmental organization to maintain world peace.  

12.  1920 - Establishment of Permanent Court of International Justice.  

13.  1923 - Establishment of the Hague Academy of International Law  

14.  1928 – Kellogg-Briand Pact – International Agreement on peace – was aimed at preventing the second world war.  

15.  1939-1945 – Second World War

16.  26.06.1945 – Signing of Charter of United Nations  

17.  18.04.1946 – Replacement of Permanent Court of International Justice by International Court of Justice.  

18.  10.12.1948 – Adoption of Universal Declaration of Human Rights by UN GA.

History of Modern International Law till the end of 18th century 

1. Authority of the Organized Church was beginning to be challenged as there were constant struggles between religious authorities and rulers known as Crusades (12th and 13th centuries). 
2. Introduction of Modern Printing in the 15th Century disseminated knowledge undermining feudalism. 
3. Renaissance – 15th Century 
4. Treaty of Tordesillas – 1493 – Between Isabella I of Castile, Ferdinand II of Aragon and John II, King of Portugal establishing a new boundary or demarcation line. 
5. Development of Concept of ‘Sovereignty’ by scholars like Bodin, Machiavelli, Hobbes etc. (15th and 16th centuries).
6. Increase in the number of independent states led to formation of customary rules of International Law involving diplomatic relations. Earlier, International Law was called ‘Law of Nations’. 
7. Treaty of Amasya establishing peace – 1555 – Between Ottomans and Safavids after their war. 
8. International Law was influenced by Natural Law (Inherent Law or Higher Law based on God, Nature and Reason) (15th and 16th centuries). Important scholars like Vittoria, Belli, Brunus, Suarez, Gentilis were present during this period. 
9. Formation of Dutch East India Company – 1602 – Colonial Expansion. 
10. Establishment of lex mercatoria by Britain as international trade was increasing at a frantic pace. 
11. The greatest of the early writers is Hugo Grotius and is often called the father of International Law (16th and 17th centuries). 
12. De Jure Belli ac Pacis (1625) by Grotius dealt with actual customs that were followed by the states of the day. 
13. The concept of Freedom of Seas was also explained and put forth by Grotius through his work Mare Liberum (1609). 
14. Peace of Westphalia – 1648 – Two treaties signed in the Westphalian cities of Osnabruck and Munster ending the thirty years war that brought peace to the Holy Roman empire. 
15. Peace of Utrecht – 1715 – Series of treaties – Between Great Britian, France, Portugal and Spain for end of War of the Spanish Succession. 
16. 1758 – Scholar Emer De Vattel published the famous work of ‘The Law of Nations’. 
17. 4th July 1776 – US Declaration of Independence – Brought the concept of ‘self-determination’ to the world stage. 

S. No.

Timeline

Treaty Between/Reign

Treaty Regarding/Remarks

1.

2600 BC

Rulers of Ancient Sumerian Cities of Lagash and Umma (Modern Iraq) Border treaty defining boundary marks, found on a stone block.

2.

1200 BC

Egyptian–Hittite Peace Treaty between 

Pharaoh Ramesses II of Egypt and King Ḫattušili III of the Hittites 

Establishment of Peace, Respect for Territorial Integrity, No State Aggression, Defensive Alliance

3.

800 BC

Prophet Isaiah of Ancient IsraelHe said that Agreements must be respected, even when made with the enemy. 

4.

Around same time

Hellenistic/Greek CivilizationNumerous treaties linked the city-states together in a network of commercial and political associations

5.

Around 30 BC to 476 AD

Roman Empire

Jus civile – Early Law that applied only to Roman citizens. 

 

Jus gentium – Simplified rules to govern the relations between foreigners and citizens. (Instrument – Preator Peregrinus) 

 

Later on, jus gentium became the norm and jus civile took the backseat. 

 

Natural Law was incorporated in the Roman Law to serve as the ultimate justification for jus gentium (rational principles common to all civilized nations).

 

Legal Compilation – Corpus Juris Civilis – It contained the classical rules of Roman Law. 

6.

1000 AD

Early Islamic World 

Dar al-Islam – It is term used by Islamic Scholars that literally means house of Islam. It connotes all the countries that were under Muslim Sovereignty. Abu Hanifa is generally considered as the founder of this concept. In order to be a part of Dar al-Islam, certain requirements were laid down. 

 

Aman – The law dealing with hospitality and safety of diplomats and foreigners.