Public International Law Assignment Essay

SPECIAL ASSIGNMENT FOR CRITICAL ESSAY
(MERGED MID-TERM & END TERM EXAMINATION, JAN-APR, 2021)
B.A. LL.B. (Hons.)
SEMESTER IV
PUBLIC INTERNATIONAL LAW
SUBMITTED TO: -
Dr. Mohammad Atif Khan
Faculty of- Public International Law
SUBMITTED BY: -
Yashovardhan Agarwal
183
Sec-C
1920192104
HIDAYTULLAH NATIONAL LAW UNIVERSITY
NAYA RAIPUR, CHATTISGARH
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SACE 1
INDEX
INTRODUCTION-------------------------------------------------------------------------- Page No.2.
DETREMINING ICJ’S JURISDICTION TO BOUNDARY AND TERRITORIAL
CLAIMS-------------------------------------------------------------------------------------- Page No.2.
ANALYZING ICJ’s BOUNDARY DISPUTE JURISPRUDENCE (THE TRIPARTITE
HEIRARCHY) THROUGH CASE RELATED NUANCES----------------------- Page No.5.
EVALUATING THE IMPLICATIONS OF ICJ’s TRIPARTITE
HEIRARCHY----------------------------------------------------------------------------------------------
--------------Page No.11.
CONCLUSION----------------------------------------------------------------------------- Page
No.12.
INTRODUCTION
Under international law, the topic of territorial dispute is hotly discussed. This argument is
significant in international society because of its connection to fundamental rights, state
sovereignty, and international harmony. Territorial disputes promote wars and terrorism
because states attempt to impose control over a certain territory. The use of force to maintain
control over a territory is condemned by international organizations. Article 2 (4) of the
United Nations Charter states that governments should not use external force against a state
or territory in order to undermine a nation's sovereignty and political independence. In
International legal framework, territory ownership holds paramount importance as
sovereignty defines the existence of a state. In a modern state, defined borders are very
essential for the functioning of the modern state.
DETREMINING ICJ’S JURISDICTION TO BOUNDARY AND TERRITORIAL
CLAIMS
SCOPE OF CLAIMS WHICH CAN FALL WITHIN THE PURVIEW OF ICJ
The ICJ being an Independent Subsidiary organ entertains cases which come by referral
through a compromis between two or more states, through relevant provisions of any treaty
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which provide for ICJ’s compulsory jurisdiction or by any treaty provision “committing
disputes arising under the treaty to the court”.1 The scope of the cases court can consider must
comply with sources of law enlisted under the Article 38 of the Statute of International Court
of Justice.2 The Boundary/Territorial claims which appear before the ICJ essentially fall
within the four categories enlisted in Article 38 of instant Statute.
The most hassle-free claims are those which fall under the category of treaty law because it is
easier to prove the existence of a treaty than the existence of any pre-existing custom or
highly enigmatic general principles of law. Because both of these categories require evidence
to prove their existence. That is why the court in its tripartite hierarchal approach takes into
accord a treaty if there is any and then moves ahead with any other recourse.
In the event of absence of treaty law, the court goes ahead with the other three categories, or
to political claims if any or nonlegal claims. The most common nine categories of
justifications for territorial claims are described as follows;
THE 9 MOST COMMON CATEGORIES OF CASES
 Treaty Law
Treaty law is recognized under Article 38 as a source of law and thus holds supreme
importance when it comes to justification for sovereignty over a disputed piece of land. The
treaty serves as a contract to which both sovereign states under question are part of and thus
have to abide by.3 The role of ICJ then only limits to the interpretation of treaty and
ascertaining who has the better claim.
 Economy
These type of claims by a state is to assert as to how much the disputed land is “necessary to
the viability or development of the state.”4 For instance, the territory under question might be
the source of high revenue for a state holding a significant share in its economy.
1 Article 36 of Statute of International Court of Justice
2 Article 38 of Statute of International Court of Justice includes the following sources of law;
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;
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.
3 MARVIN A. CHIRELSTEIN, CONCEPTS AND CASE ANALYSIS IN THE LAW OF CONTRACTS 1 (4th
ed. 2001).
4 Professor Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225 (1973).
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 Geography
Territorial jurisprudence heavily relies on this to determine the claim over the piece of land
by parties. Factors of geographical origins such as mountain ranges and rivers act as a natural
boundary in most of the cases but such factors often lead to altercation as it gives leeway for
problems in delimitation, demarcation or both.5 Natural Boundaries, owing to their nature,
can be difficult to mark.6 The natural boundaries by the force of nature can alter over time
and can give rise to problematic situations. The principal question around such claim, as
pointed out by Andrew Burghardt, is two- fold –
 Effective Control
In this type of claim, the party claims a land on the basis that it has effective control and “the
group has "uncontested the land and its resident population”7 The natural boundaries by the
force of nature can alter over time and can give rise to problematic situations. The principal
question around such claim, as pointed out by Andrew Burghardt, is two- fold –
“(1) what constitutes an abandonment of the land by the last governing entity, and
(2) what constitutes administration of the land.”8
 Culture
The ethnic nation argument which justifies the creation of border on basis of cultural
characteristics like religion, language etc. forms the cultural justification defining a territory
according to the group of people living in there.9
 History
The principles of duration and priority comes into play under this category in which the state
needs to provide historical evidence showcasing its possession over a territory in order to
assert its claim. This indicates the priority. Similarly, proof for duration of such possession
5Bradford L. Thomas, International Boundaries: Lines in the Sand (and the Sea), in REORDERING THE
WORLD: GEOPOLITICAL Perspectives on the Twenty-First Century 87, 94 (George J. Demko & William B.
Wood eds., 199
6 Beth Simmons, See You in "Court"? The Judicial Legal Processes in the Settlement of Territorial Disputes, in
A Territorial Dimensions of International Conflict 205.
7 Andrew Burghardt, The Bases of Territorial Claims, 63 GEOGRAPHICAL REV. 225(1973) p. 228.
8 Supra 11
9 Donald l. Horowitz, Ethnic groups in conflict 219–24.
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lays ground of it being under that state for a considerable amount of time.10 They are mostly
related to cultural claims as duration translates to insertion of the culture of the holding state
in that territory.
 Elitism
As these claims are considered to be against the democratic ideals11, they have become rarer
over time. Under this claim, conquerors who termed themselves as having divine rights to
rule over a certain territory after the annexation, contend that a “particular minority has the
right or duty to control certain territory.” Uti Possidetis
A principle mostly used in context of countries in Asia, Latin America and Africa12 to define
postcolonial boundaries; is a doctrine according to which the pre-independence boundaries
set by the former colonial power is inherited by the newly independent states.13 This principle
has led to a lot of criticism as it is argues that colonial borders were vaguely drawn14 and does
not really reflect the inhabitant’s wants. It is also argued that the reliance on the principle in
itself has given birth to may border dispute cases.15
 Ideology
Often considered as the antithesis of uti possidetis claim16, this ideological justification argues
that colonial borders are not appropriately demarcated on the grounds of legal or moral
reasons. These types of justification are often termed as ideological imperialist as it contains
“exclusivist overtones”17 based on “unique identification with the land”.
ANALYZING ICJ’s BOUNDARY DISPUTE JURISPRUDENCE (THE TRIPARTITE
HEIRARCHY) THROUGH CASE RELATED NUANCES
10 Supra note 11 at p. 238.
11 Supra note 11 at p. 239.
12 P. Mweti Munya, The International Court of Justice and Peaceful Settlement of African Disputes: Problems,
Challenges and Prospects, 7 J. INT'L L. & PRAC. 159,215 (1998).
13 Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, 90 Am. J. Int'l L. 590
(1996).
14 Supra note 10 at 114-115.
15 Supra note 10 at 24,31,155.
16 Supra note 10, p.239-240.
17 Supra note 13, p.234.
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The ICJ analysis the competing territorial claims on the basis of tripartite hierarchal approach
wherein it firstly looks for presence of treaty law, then to Uti Possidetis, then to effective
control.
1. DIPOSITIVE NATURE OF A PRE-EXISTING TREATY (TREATY LAW)- The
International Court of justice considers any prior boundary treaty or any other
document which showcases an interstate agreement with regards to boundary
limitation or delimitation is considered as dipositive (Settling the issue). This notion
has even extended by the ICJ in cases wherein a mutual interstate agreement existed
but had certain unclear terms in it but an element of state consent existed. The prime
instance of this was the case of Territorial Dispute between Libya and Chad.18
Territorial Dispute (Libya/Chad), 1994
 The dispute between the two countries was concerning Aozou Strip (a
Purported source of Uranium). The conflict initiated in the year of 1973
when Colonel Mohammar Qaddafi of Libya claimed the strip from Chad.
The matter was taken into the court’s consideration and further the parties
submitted their respective sides relying on the principles of “Uti
Possidetis”, Ideology and elitism.
 The Chad representatives submitted that there existed a treaty known as
the Franco-Libyan Treaty of Friendship and Good Neighbourliness,
1955 and further submitted that Article 8 of the instant treaty most
certainly defined the boundaries which shows that State of chad had
consented. But the Libyan side was apprehensive to recognize that the
1955 treaty defined any boundaries or not because the provisions were
unclear. The court took former sides argument into accord and held that
“when interpreted in good faith with ordinary meanings imputed to its
terms, the 1955 Treaty left no boundaries undefined.”19
 It can be clearly observed here that the court relied on the treaty solely
even when one side was of the opinion that the treaty was unclear to
certain extent. It can also be observed that the court didn’t question the
merits of the instant treaty, which the court also portrayed through its
statements to be unclear on certain terms.
18 Territorial Dispute (Libya/Chad), 1994 I.C.J.
19 Ibid at 21-26
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 The court further relying on the 1955 Treaty found the application of the
principle of “Uti Possidetis” to be unnecessary as there was already a
treaty in existence and held the decision in favour of Chad.
2. PRESENCE OF COLONIAL ERA LIMITATIONS (UTI POSSIDETIS)- When there
exists no substantial interstate treaty which deals with boundary limitations. The court
in this case goes to the next dispositive basis which in this case is the principle of “Uti
Possidetis”, if applicable. But the sole application of this principle rarely comes into
play when the court decides any international boundary dispute, as it’s considered
unlikely that colonial boundary limitations were not recorded in any kind of
instrument. But, in the cases of dispute arising with regards to internal boundaries this
principle can play a major role because it is possible that might exist a mere domestic
understanding of the boundary and was set through certain authorized practices or just
be documented on a local level. This can be observed in the case of Frontier Dispute
between Burkina Faso and Mali.20
Frontier (Upper Volta) Dispute (Burkina Faso/Mali), 1986
 The dispute was concerning a strip land near the Beli River of the Dori
region. This particular area was very fertile and had temporary
watercourse which made this land suitable for agriculture. The notion of
“Uti Possidetis” was considered in this case because the particular region
was a part of French West Africa colonies. The later decolonization in
1960 raised these Boundary issues.
 The parties claimed their share through “assertions of sovereignty and
administrative control”. The court denied these bases for the claim and
steered its observation towards the locational traces of the boundary during
the colonial period. But the court was not able to find the “Colonial
Effectivites”21 which could clear out the title dispute.
 Consequently, the court went ahead with boundary limitations which
existed during the period of 1932 as that was the period when French
colonies prevailed and there also existed certain evidences with this
regard. Hence the court based its judgment on “Uti Possidetis”, as
20 Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J.
21 Effectivités are administrative activities that demonstrate jurisdiction over territory; most frequently, they
include deed registration, tax collection, and licensing of professions
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“France, in 1947, set the border at its December 1932 limits, which
included the former colony Upper Volta.”22
 The court later, divided the disputed property into half as there existed
inconsistencies and gaps in the said French records. But at a later stage the
court was essentially denied to pass a judgment on the basis of ex aequo et
bono23.
3. EFFECTIVE CONTROL- When the case is not concerning any pre-existing treaty or
and post-colonial limitation then the rule of effective control which is the ultimate
part of the ICJ’s tripartite jurisprudence concerning boundary disputes. In these cases,
the court in lieu to determine the merit of the base of effective control takes into
consideration the “Duration” and “Degree” of the control as this essentially makes the
claimant state’s exercise of the right public. For instance;
Minquiers and Ecrehos (France/United Kingdom)
 The instant group of disputed islands are located in the English Channel
between Jersey (UK) and the French Mainland. Both the parties made their
respective claims on the basis of treaty law, history and effective control.
The court denied the arguments based on treaty law and history as the
parties referred to the fisheries agreement and feudal grants. Both of these
didn’t substantially specify boundary limitations or as the court observed
both if these lacked was a clear explanation as to “which islands were held
by the Kings of England and France respectively.”24
 The court considered the parties claims on the basis of Effective control,
the court was the view that;
“a decision based on solid effective control is analogous to a common law
property award based on adverse possession, whereby the claimant’s
possession must be actual, open and notorious, exclusive, continuous,
adverse or hostile, and extant for a certain period of time.25 Although the
22 Supra Note 3 at 586-587
23 "according to the right and good" or "from equity and conscience"
24 Minquiers and Ecrehos, 1953 I.C.J. at 54.
25 JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY § 1.4.2.1 (2001),
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international formulation is somewhat different, effective control claims
are also based in law”26
 The court relied on acts of sovereignty and jurisdiction exercised by the
British Government through their local administration acts/statutes
regulating
“the handling of corpses, levying taxes, licensing commercial boats,
registering deeds to real property, and conducting census enumerations
and customs affairs.”27 Hence deciding in favour of the UK.
In cases where both treaty law and effective control are present which will prevail?
Sovereignty over Certain Frontier Land (Belgium/Netherlands)
 The case was pertaining to the determination of sovereignty exercised over
border plots marked by several enclaves around Baerle-duc, Belgian
Commune and Baarle-Nassau, Dutch Commune28 by the kingdoms of
Belgium and Netherlands. The claims were made on the basis of Treaty
Law and Effective Control.
 The Belgian side had sovereignty over the plots according to the 1843
Boundary Convention but was inefficient in exercising its right. Because
of which the Dutch asserted their rights over the plots by “acquiescence in
acts of sovereignty”.
 The court took into consideration the 1843 Boundary Convention which
was responsible for establishing the border between Belgium and
Netherlands.29 This particular convention was derived from the 1842
Boundary Convention which set up a mixed commission for determining
the limitations by keeping in mid the administrative status quo.30 The
instant Convention described the plots to be a part of the Baerle-Duc
(Belgian Commune).
 The Dutch were apprehensive of this observation and claimed that the
instant convention was not able to reflect common interest and the Belgian
sovereignty was uncalled for. The court firmly rejected the Dutch claims
26 NORMAN HILL, CLAIMS TO TERRITORY IN INTERNATIONAL LAW AND RELATIONS 25 (1945)
27 Supra Note 7 at 65-69
28 Sovereignty over Certain Frontier Land (Belg./Neth.), 1959 I.C.J. at 212-213
29 Supra note 11 at 222
30 Ibid at 212-213
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and in lieu to resolve the instant tension created a justification hierarchy,
the court stated,
“This is a claim to sovereignty in derogation of title established by treaty.
Under the Boundary Convention, sovereignty resided in Belgium. The
question for the Court is whether Belgium has lost its sovereignty, by non-
assertion of its rights and by acquiescence in acts of sovereignty alleged to
have been exercised by the Netherlands at different times since 1843.”31
 The court decided in the favour of Belgium. In the instant case it can be
clearly observed that Treaty law prevailed. The Belgians were non-
efficiently asserted their rights over the plots but the court was of the view
that inefficient assertion of rights does not mean the state has ceased to
assert its rights.32
 This similar observation was applied in the case of Land and Maritime
Boundary (Cameroon v. Nigeria)33. The court opined that “effective
control was subsidiary to any international agreement fixing the border.”34
EQUITY INFRA LEGEM
The role of equity infra legem comes to play when the tripartite hierarchy fails to guide the
court. The court through this measure “halves the difference between the litigants’ position”,
this notion was specifically observed by the court in the case pertaining to Frontier Dispute
(Burk. Faso/Mali), “It is clear that the Chamber . . .. will have regard to equity infra legem,
that is, that form of equity which constitutes a method of interpretation of the law in force,
and is one of its attributes”35
Preference for Effective Control Justification over Equity Infra Legum
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)
 The issue was regarding the sovereignty over the island groups of Ligitan
and Sipadan, off the coast of Borneo. Both the sides relied on treaty law,
history, effective control, and uti possidetis.
31 Ibid at 227
32 Ibid at 229
33 Land and Maritime Boundary (Cameroon v. Nig.: Eq. Guinea intervening), 2002 I.C.J.
34 Ibid at 353
35 1986 I.C.J. 554, 567–68.
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 The court however found that all the relied upon basis except effective
control were not applicable in the present case hence the court went with
examining the competing claim of effectivités as the sole basis of judgment.
 The court found the case in favour of Malaysia. The court observed that,
“Malaysia’s regulation of the commercial collection of turtle eggs and
establishment of a bird sanctuary on the islands were sufficiently
administrative to demonstrate effective control. The court thus found the
effectivités arguments a sufficient basis for its decision.”36
EVALUATING THE IMPLICATIONS OF ICJ’s TRIPARTITE HEIRARCHY
Firstly, the court in view of stabilizing border disputes systematically basis its decisions on
treaty laws. Since they are stable and predictable. But this might work the other way around.
Breach of treaties is a very common occurring in an international scene and especially when
treaties lack strong provisions and directly affect into the heart of any pre-existing cultural or
historical viewpoint of a territory.37 The court needs to understand that a boundary set by a
particular treaty does not make the relationship between two countries pertaining to that area
more stable.38
Secondly, Applying the notion of Uti Possidetis does not inevitably stabilizes the territorial
conflicts or make it more predictable. The notion of Uti Possidetis is essentially more of a
success in regions like Africa, Asia and Latin America. Because these regions were majorly
affected by colonization and trends of colonial limitation of boundaries have been observed
in various instances. But despite this the instant doctrine was not able to effectively resolve
the underlying boundary disputes in these areas to an end but merely surfaced the conflict to a
dead end and delayed it.39
Thirdly,“ The application of the doctrine of acquisition by effective control is even more
unpredictable than Uti possidetis; moreover, effective control is subject to abuse. In fact,
because it is a general principle of law, it might, in a worst-case scenario, encourage
territorial imperialism and a new wave of colonialism.”
36 Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), 2002 I.C.J. at 674-678, 684.
37 Andrew T. Guzman, The Cost of Credibility: Explaining Resistance to Interstate Dispute Resolution
Mechanisms, 31 J. LEGAL STUD. 303 (2002)
38 Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 CAL. L. REV. 1823, 1873 (2002).
39 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Maritime Delimitation and Territorial
Questions (Qatar/Bahrain), Land and Maritime Boundary (Camaroon/Nigeria).
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The ICJ being a court of law have to be biased towards treaties and various other legal
justifications. As it bound to consider certain sources outlined in the Article 38 of its Statute.
Among which the first is Treaty law. The statute although does not itself assign relative
weight to a particular source but it is accepted notion to consider international agreements as
an authority.40 Similarly, the principle of Uti Possidetis and effective control are also
considered legally authoritative.“A systemic bias toward legal justifications is not
inconsistent with a preference for decisions based on equity infra legem over those based on
political considerations, because there is a basis in international law for decisions based on
equity.41”
CONCLUSION
This study discusses territorial justification categories such as treaties, geography, and
economic, to name a few. It also examined the International Court of Justice's doctrine on
territory disputes. The International Court of Justice has given greater recognition to the
concepts of treaties, uti possidetis, effective control and equity infra legum.
40 MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 46–47 (4th ed. 2003).
41 Frontier Dispute (El Salvador/ Honduras: Nicaragua Intervening), 1986 I.C.J.
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SACE 2
INDEX
INTRODUCTION------------------------------------------------------------------------- Page
No.13.
THE NOTIONS OF MONISM AND DUALISM ----------------------------------- Page
No.14.
CONSTITUTION AND INTERNATIONAL LAW--------------------------------- Page
No.16.
INDIA FORMALLY DUALIST AND FUNCTIONALLY MONIST-----------Page No.17.
JEEJA GHOSH VS UNION OF INDIA----------------------------------------------- Page
No.19.
INTRODUCTION
International law as taught by Robert Oppenheim is a “Law of Nations or international law is
the name for the body of customary law and conventional rules which are considered binding
by civilized states in their intercourse with each other.” A good amount of consideration must
be provided to the word “countries” used by Oppenheim which clarifies the scope of
application of International Law, this showcases that in principle, International law must must
operate at an international level. But through the course of time this particular notion widened
its scope from only catering to states and nations. During the twentieth century distinctions
between International law and Municipal law became far more less. But both the laws still
hold on to their true nature.42
Since the advent of technology and globalization people are getting more and more aware
about their surroundings as well as the surroundings of far away lands which essentially plays
a crucial role in increasing the influence of international law and its principles over a
domestic setup. The national organisations, domestic courts, lawyers and citizens of the
different countries are learning understand the importance of international law and its
principles in a detailed manner.43
42 SHAW N. Malcolm, International Law, 4th Ed., Cambridge University Press, 1998, p.100.
43 Visar Morina, Fisnik Korenica, Dren Doli, The relationship between international law and national law in the
case of Kosovo: A constitutional perspective, International Journal of Constitutional Law, Volume 9, Issue 1,
(Jan 2011)
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PRILIMANRY CONTOUR OF RELATIONSHIP BETWEEN INTERNATIONAL LAW
AND MUNICIPAL LAW
The primal nature of international law differs from that of municipal law. It is important that
we address that, international law has evolved in a manner distinct from local law. It is
instructive that a domestic legal system is distinguished by the presence of a legislature,
courts with obligatory jurisdiction, and centrally administered sanctions (within its domestic
legal order). These major components largely makeup the fundamental elements of a
domestic legal order. Taking the case of International laws, it lacks these components in some
way or the other, which makes it prone to criticisms of not being an actual law.
The most important thing that differentiates International law to municipal laws is the binding
nature of the latter, which is not available within the purview of International law.
The notion of Positive obligation is the one that essentially makes it possible for a legal
system to implement international principles in a persuasive capacity. The domestic legal
systems cannot outrightly implement the international rules and regulations and also it cannot
be treated as primary governing law.
There has been much debate with respect to the application of International laws in the
municipal domain which gave birth to two schools of thoughts namely, Monism and Dualism
(Dealt further).
INCREASING SCOPE OF APPLICATION INDIAN SCENARIO
The Indian judiciary has also turned to international law concepts to fill existing gaps in local
law and regulations. The current growth of international law supremacy in domestic issues is
strongly tied to the rapid expansion of the influence and reach of the globalization process in
key sectors. There is a pressing need to adhere to consistently evolving and widely
acknowledged global norms. These improvements are being implemented in order to address
a wide range of difficulties involving several countries that can lead to undesirable situations.
THE NOTIONS OF MONISM AND DUALISM
MONISM
The monist approach emphasizes the application of international law as a guiding legal
framework for establishing peaceful international relations in the international realm.
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Furthermore, the monist perspective provides for a much wider scope of application of
international law, is essentially regarded as superior to domestic law.44
If a country adopts or ratifies a treaty, it should be implemented in the national framework,
according to the monist notion. One of the most essential aspects of the monism approach is
that international law can be immediately implemented and enforced by domestic courts
without the need for domestic implementation. Thus, the monist framework establishes a
single and unified legal system, with international law ruling supreme in a legal order and
local law playing a secondary role.45
The monistic view is unitary wherein law is either based on the formalistic logical grounds as
propounded by Hans Kelsen46 or on strong ethical concerns contended by Lauterpacht47.
Formalism- Kelsen: Kelsen in his pure theory propounded that,
“the fundamental principles by means of which any legal order can
be comprehended' and that it is a 'general jurisprudence' furnishing
'the basic conceptions that enable us to master any law' and
accordingly serving as 'the theoretical basis for all other branches
of jurisprudence”48
This is what we call a formalistic approach wherein a law is given the status of a
fundamental law from which other branches of law branch out.
Ethical postulate- Hersch Lauterpacht: Lauterpacht in his book International law and
human rights affirmed the notion of rational and ethical postulate becoming a crucial
part of international community interests and functions. He further stated, while
arguing against Spinoza’s principle of ‘law of reason’ that,
“Why should not the same motive which prompts men to live under
the reign of law [within a state] apply to whole nations? Are not the
perils which beset them equally great?”49
44 Robert J.Sharpe, Kent Roach, The Charter of Rights and Freedoms, (Jan, 2017)
45 Are the Indian Courts Still Following the Constitutional Principle of Dualism? Not Quite So – The RMLNLU
Law Review Blog, https://rmlnlulawreview.com/2020/04/01/are-the-indian-courts-still-following-the-
constitutional-principle-of-dualism-not-quite-so/
46 Stewart, Iain. “The Critical Legal Science of Hans Kelsen.” Journal of Law and Society, vol. 17, no. 3
47 Jessup, Philip C., and R. R. Baxter. “The Contribution of Sir Hersch Lauterpacht to the Development of
International Law.” The American Journal of International Law, vol. 55, no. 1, 1961
48 Supra Note 35
49 Supra Note 36
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From this we understand that reasons are not the only governing variable when
talking about application of law the notion of ethics and rational must come into play
as well.
Hence, through both these theories the Monistic view becomes much clearer that, monist are
firm believers of the application of International law in municipal domain to be with respect
to fulfil ethical needs and consider International law to be the mother of domestic law hence
application is not question with this regard.
DUALISM
The dualist obviously has the exact opposite approach in addressing the application of
International Law in domestic sphere. The dualists believes that both the laws exist separately
and do not have an impact on the other50. The dualists further believe that, International law,
as a separate system, does not constitute part of a state's municipal law. When rules of
international law are in play within a state, they get around this by virtue of their acceptance
by the state's internal law, and they apply as part of that internal law rather than as
international law. As a result, the question of whether system of law is superior to the other is
avoided because they have no common scope of application. Each is supreme in its own
domain.
CRITIQUES
Monism and dualism are both subject to various criticisms. One of the most essential is that
no home system strictly adheres to either theory. The application of international law in
domestic issues is carried out in a number of ways by various institutions of a state. Domestic
courts, for example, may apply international law on a regular basis, but a parliament does not.
Another circumstance in which a state may permit direct intervention of customary
international law, but the state demands that the international treaties be ratified into domestic
legislation before they can impose legal responsibilities on state institutions.
CONSTITUTION AND INTERNATIONAL LAW
ARTICLE 51
50 Aparna Chandra, India and International Law: Formal Dualism, Functional monism, India Journal of
International Law. (2017).
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According to Article 51 (c), the State shall strive to “foster respect for international law and
treaty obligations in the dealings of organized peoples with one another...”51 According to
Articles 12 and 36 of the Constitution, the term "state" refers to "the Government and
Parliament of India, as well as the Government and Legislature of each of the States." Article
51 (c) distinguishes between international law and treaty duties, stating that the word
"international law" refers to international customary law. If this is the case, it appears that
international customary law is not incorporated into Indian municipal law. But this notion is
not true with respect most countries for instance, International customary law rules are only
incorporated into English municipal law if they are internationally recognized or have
acquired the country's approval.52 Hence, we can agree on the English instance which is
reasonable and fair. Since the principles are universally recognized the applicability must not
be an issue per se.
TREATY MAKING POWER
Article 73 of the Indian Constitution extends the authority of the Government of India to
matters over which the Parliament has the right to make laws, subject to constitutional
provisions or any law established by the parliament in that regard. In accordance with Article
253, the Parliament may enact laws to carry out international responsibilities,
notwithstanding the constitutional division of powers. There is no legislation that restricts the
executive's power in subjects of international law and relations. The unique condition of
foreign treaties under the constitution is due to a lack of specific provisions. To have a better
understanding, we must distinguish between the drafting of a treaty and its incorporation into
the domestic legal system. The legislature is solely responsible for enacting legislation. As a
result, in general, ratification (approval) by the legislature is required to make the treaty
legally binding on the State. The executive, on the other hand, is a State agency that can incur
legal obligations on the State's behalf. However, as previously stated, there are no restrictions
on the executive's power under international law. As a result, the Supreme Court ruled53 that
international law is part of municipal law unless it contradicts municipal law provisions.
INDIA FORMALLY DUALIST AND FUNCTIONALLY MONIST
FORMAL DUALISM
51 The Constitution of India, 1950, Article 51 (c)
52 Alexander, C. H. “International Law in India.” The International and Comparative Law Quarterly, vol. 1, no.
3, 1952, pp. 289–300.
53 Vishaka v. State of Rajasthan (1997) 3 LRC 361; National Legal Services Authority v. Union of India (2014)
5 SCC 438.
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India has is often considered as a dualist country based on its interaction with international
laws. Formally, the Executive reserves the power to undertake commitments produced by
international conventions and treaties, whereas legislation by Parliament is required for its
implementation on domestic level. Countries like Canada, United Kingdom and Australia
also adopt the same method of interaction with international law by parliamentary legislation
and executive treaty making power.54 In P.B. Samant And Others vs Union Of India 55 cited
the judgement of Attorney General for Canada v Attorney General for Ontario,56 which talked
about rule existing in British legislation pertaining to the case
“If the national executive, the Government of the day, decide to incur the obligations of a
treaty which involve alteration of law they have to run the risk of obtaining the assent of
Parliament to the necessary statute or statutes…. Parliament, no doubt,has a Constitutional
control over the executive: but it cannot be disputed that the creation of the obligations
undertaken in treaties and the assent to their form and quality are the function of the
executive alone. Once they are created, while they bind the State as against the other
contracting parties, Parliament may refuse to perform them and so leave the State in
default.”
Thus the above concept which highlighted the requirement of Parliament to internalize
international law was used by the Apex Court in explaining the enforcement authorities and
distribution of treaty-making between the legislature and the federal Executive.57The dualist
approach is reflected by formal interaction of international and domestic spheres with respect
to obligation to treaties, especially it’s prohibition on adoption without legislative approval of
any international law and is recognised by the Supreme Court.58
FUNCTIONAL MONISM
The aforementioned view of formal dualism provides that international obligations cannot be
enforced in domestic setting unless accompanied with a suitable transformative legislation is
the initial position in the Indian legislative and executive scenario. There have been instances
where the Supreme Court shifted from the its” dualist position of transformation” to “monist
position of incorporation”. The instant doctrine of incorporation makes it possible for the
54 National Commission to Review the Working of the Constitution, A Consultation Paper on Treaty-Making
Power under our Constitution (2001)
55 AIR 1994 Bom 323.
56 [1937] AC 326 (Privy Council).
57 Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400
58 Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551
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courts to enforce international law without any “transformation” unless the law is contrary to
the domestic law. This can be observed through the case of Gramophone Company of India
Ltd. v Birendra Bahadur Pandey59. Here the court found the doctrine of incorporation more
relevant than the doctrine of transformation. hence the court was required to refer the Indian
Copyright Act to interpret the international obligations.
“Rules of International law may be accommodated in the Municipal Law even without
express legislative sanction provided they do not run into conflict with Acts of
Parliament….The doctrine of incorporation also recognises the position that the rules of
international law are incorporated into national law and considered to be part of the
national law, unless they are in conflict with an Act of Parliament.”
MAGANBHAI ISHWARBHAI PATEL V. UNION OF INDIA
According to the Transformation principle, international rules and regulations should be
incorporated into local legislation through the application of suitable constitutional
machinery. For example, consider a parliamentary act. The provisions of Articles 73 and 253
of the Indian Constitution states that the making of a treaty is an executive act.
In the present case, The Supreme Court was confronted with the critical issue of adjusting the
border with another country.
It also determined whether the change could be made through an executive act or if a
constitutional amendment was required. The Supreme Court alluded to the constitutional
structure when deliberating on this question. The Court noted that, according to Article 73,
the Union's executive power extended to subjects over which the Parliament had legislative
authority.
The Court found, "If the rights of citizens or others that are justiciable are not compromised,
no legislative measure is required to give effect to the agreement or treaty."
JEEJA GHOSH VS UNION OF INDIA
BRIEF FACTS
Jeeja Ghosh, an eminent activist involved in disability rights, when Spice Jet forcibly de-
boarded her because of her disability.
RELEVAENT STATUTES AND PROVISIONS REFERRED
59 (1984) 2 SCC 534
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1. United Nation’s Declaration on Human Rights.
2. International Covenant on Civil and Political Rights
3. International Covenant on Economic, Social and Cultural Rights.
4. Convention against Torture, other Cruel Forms, Inhumane and Degrading Treatment or
Punishment.
5. Declaration on the Rights of the Disabled Person.
6. ILO Convention on Vocational Rehabilitation and Employment (Disabled Person).
7. Inter-American Convention on the Elimination of All Forms of Discrimination against
Person with Disabilities.
8. Article 15 of European Social Charter.
9. Article 23 of Convention on Rights of Child.
10. Article 18(4) of African Charter on Human and People’s Rights.
JUDGMENT
the Supreme Court of India reaffirmed the rights of persons with disabilities to live with
dignity and by taking references of above-mentioned International Conventions related with
the human rights and rights of persons with disabilities. The court found the act of de-
boarding her on the basis of her disability as an unreasonable discrimination against her.
ANALYSIS OF THE JUDGMENT
DOMESTIC LEGAL PROVISIONS ARE INADEQUATE
India lacked a sufficient legal law on the rights of the disabled and the adaptation of services
such as transportation to their requirements. The PWD Act of 1995 only addresses such a
circumstance in three sections. However, the Section states that the government is required to
make such changes “within the limitations of their economic capacity,” which makes such
requirements advisory rather than mandatory, as held in Dalco Engineering Pvt. Ltd. v. Satish
Prabhakar Padhye. Until the Jeeja Ghosh decision, which made such clauses necessary.
Section 44 states that such people should not face discrimination and that transportation
services should be tailored to their specific needs. Section 44 states that such people should
not face discrimination and that transportation services should be tailored to their specific
needs. Section 45 requires the placement of auditory signals, kerb cuts, and slopes on
pavements. Section 46 states that ramps shall be installed and restrooms should be altered
accordingly. Such rules stated that such amenities must be made accessible within the
government's "economic capacity," and the government frequently showed its economic
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incapacity to avoid its obligation to furnish such amenities. Furthermore, the Act of 2005 was
absolutely quiet on the issue of private actors' culpability in offering such facilities. Thus, the
Act was grossly insufficient and didn’t cater the needs of the hour and the Court had to rely
on convention.
IMPLEMENTATION OF THE UN CONVENTION OF RIGHTS OF PERSONS WITH
DISABILITIES
As a result, the main issues before the court were accessibility for such people and reasonable
accommodation for their needs in public places and services. Domestic law was insufficient
and silent on the subject, but it was not in conflict with it. Furthermore, domestic law made
the state liable for providing such amenities only to the extent that its economic capacity
permitted. As a result, the Court relied significantly on the United Nations Convention on the
Rights of Persons with Disabilities (UNCRPD). India is a signatory to the Convention, and
Articles 5 and 9 of the Convention provide for such adequate accommodation and
accessibility, which is not dependent to the state's economic capacity. The provisions of
Articles 9 and 5 make it plain that accommodation and accessibility go hand in hand.
AUTHORS COMMENT
The Court did, in fact, decide in favor of the petitioner and ordered SpiceJet to compensate
her for all of her mental anguish and discrimination. The Court mainly relied on Sections 5
and 9 of the UNCRPD in reaching its decision, and deemed the state obligated to allow for
such accommodations notwithstanding the lack of domestic law on the subject. The Court
stressed Article 27 of the Vienna Convention, which requires nations to follow their
international commitments and stipulates that no state may utilize domestic legislation to
avoid its international duties. Thus, the Supreme Court said that when India is bound by a
treaty and the terms in it are not in direct conflict with domestic legislation, applying such
terms is not adverse to the supremacy of parliament. Under the ambit of the same, the Court
also covered private participants. The Court also relied on CAR 2014 (Civil Aviation
Requirements) and ordered that such facilities be made available. The Supreme Court
efficiently utilized the methodology taken by the court in the Vishakha Judgment, as stated
above. The court used the Doctrine of Incorporation instead of the Doctrine of
Transformation.
However, the Supreme Court overlooked the fact that India is a dualist country, with the
Parliament having sole authority over enactments of laws. As a result, an order that reduces
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the need for Parliament to assent to the application of international law or enact a domestic
law along similar lines contradicts India's very dualistic nature.
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