Law
1. Public and private
Public international law and private international law are two branches of international law. generally, there is no distinction between public international law and private international law but it is very necessary that one should not confuse public international law and private international law.
2. Definitions of international law:
Oppenhiem
International law is body of customary and convential rules, which are considered binding on civilized states in their relations with each other
3. Basis of international law:
There are two principal theories regarding basis of international law.
(i) Theory of fundamental rights or natural law theory.
(ii) Consent theory or positivism.
I. Natural law theory:
Natural law theory is also known as the theory of fundamental rights. the follower of this theory believe that the basis of all laws is natural law. this theory believe that the basis of all laws is natural law. this theory is traced back of the Greek civilization Grottoes rationalized natural law and applied it in international.
II. Consent theory:
According to consent theory international law consists of the rules which the states have consented to observe. the consent may be express or implied the exponent of consent theory is by kershoek.
4. Definition of public international law:
Oppenhiem
“Public international is body of customary and conventional rules, which are considered binding on civilized states in there relation with each other.”
5. Definition of private international law:
M. P Tandon:
“Private international law is a body of principles determining questions as to jurisdictions and questions as to selection of appropriate law, in civil cases which present them selves for decision before a court of one state or country, but which involves a foreign element i. e. which effect foreign persons or foreign or transactions that have been entered in a foreign country or with respect of foreign system of law”
6. Distinction between public international law and private international law:
I. As to consent:
Public international law based on the consent of the state.
Private international law is not based on the consent of the states.
II. As to object:
Public international law regulates relation ship of states inter se and determine rights and duties of the subject states at international sphere.
Private international law determines as to which law will apply of two conflicting in a particular case having foreign element.
III. As to conflict of laws:
Public international law does not involve in conflicts of laws.
Private international law involves in the conflicts of laws.
IV. As to nature:
Public international is same for all the states.
Private international may be different in various states.
V. As to sources:
Public international law has its sources in treaties, custom etc. etc.
Private international law has its sources in the legislation of the individual state to which the litigant belongs.
VI. As to application:
Public international law applicable to criminal as well as civil cases.
Private international law is applicable to civil cases only, which present themeselves for accession of courts of the state.
VII. As to subject:
Public international law deals with the states.
Private international law deals with the individuals.
VIII. As to municipal law:
Public international law is not part of municipal law.
IX. As to jurisdiction:
Public international law does not involves determination on the question of determination.
Private international law determines court which will have jurisdiction to decided issue in question.
X. As to scope:
Public international law has wider scope. it is of universe character.
Private international law has lessor scope.
7. Conclusion:
To conclude it can be said that, public international law and private international law are branches of international law. public international law is known as conflict of laws. these are different from each an other but in some exceptional cases rules of private international law may become rules of public international law.
1. Princepal Sources
International law is body of rules which regulates relations among states. it comprises mainly of the rules recognized by states in their relation with each other and mostly arises out of international customs and treaties. at present article 38 of the statute of international court of justice is an authoritative text of the source and evidence of international law.
2. Definitions of international law:
Oppenheim
International law is body of customary and convential rules, which are considered binding on civilized states in their relations with each other.”
3. Sources of international law:
Although there is no international legislature and court to which international community must compulsorily submit still under article 38 of statue of international court of justice, rules of international law can be pragmatically found in international conventions, international customs etc, etc.
4. Meaning of sources:
Starke:
“By sources of international law we mean the actual materials from which an international lawyer ascertains the rule applicable to a given situation.”
5. Classification of sources:
Sources of international law may be classified into two categories.
(i) Formal sources.
(ii) Material sources.
I. Formal sources of international law:
A formal source is that source which a rule of law derives its force and validity. there are no formal sources of international law and one of the main criticism on international law is that it does not have an legislature of its own, thus its laws cannot have any sanction.
II. Material sources of international law:
Material sources of international law are those actual materials form which an international lawyer determines the rule applicable to a given situation article 38 of the stature of international court of justice enlists such material sources of international law. there are all kinds of sources in this statute including primary and secondary. pare second of article 38 of the statute enlists secondary sources of international law.
7. Main sources of international law:
I. Primary sources:
(i) International customs:
International customs are one of the most important sources of international law. article 38 of the statute of international court of justice recognizes international customs as a source of international law.
(a) Essentials of valid international custom:
The essentials of valid international custom are as under:
(i) Long duration.
(ii) Uniformity and consistency:
Case law.
(iii) Generality practice or observed.
(iv) Opinio juris et necessitates.
(ii) Treaties:
Treaties are most important source of the international law.
(i) Definition of treaty:
Article 2 of the vienna convention on the law of treaties 1960 defines treaty:
“An agreement whereby two or more states establish or seek to establish a relationship between them governed by international law.”
((ii) Kinds of treaties:
(a) Law making treaties
Law provisions of law making treaties are directly a source of international law. law making treaties perform the same functions in the international field as legislation dose in the state field. there are the means through which international law can be adapted to in accordance with the changing time and circumstance and the rule of law among the states can be strengthened.
(b) Treaty contracts:
Treaty contracts are entered into by two or more states. the provisions of such treaties are binding on the parties to the treaty. the treaty contracts are indirect source of the international law.
(iii) General principles of law:
General principles of law recognized by the civilized states is also an important source of the international law. general principles of law are those rules which have been recognized by almost all the states.
General principles recognized by the international:
General principles recognized by the international court has recognized following principles in different decision.
(i) Good faith.
(ii)Responsibility.
(iii) Prescription.
(iv) In the absence of any provision to the contrary every court has right to determine of it own jurisdiction.
(v) A party to a suit cannot himself be an arbitrator or a judge in his own case.
(vi) Res-judicate
(vii) Estoppels
(viii) Audi alterm paterm.
(iv) Judicial decisions:
Juristic works forms the evidence of international law, yet it assumes importance when there are no established customs or treaties.
(v) Decisions of determinations of the organs of international institutions:
Decisions on questions of jurisdiction of an organ of international institution may have a law making effect. sometimes organs of the international institutions are authorized to give binding determinations concerning the interpretation of their constituent instruments.
(vi) State papers:
State papers other than treaties are also source of international law. the archives of the foreign affairs department of every country contain a mass of valuable experts opinion which are useful for international law.
8. Subjects of international law:
Following are the subjects of international law.
(i) States.
(ii) Political entities legally proximate to state.
(iii) Condomonia.
(iv) International Territories.
(v) International organizations.
(vi) International institutions.
(vii) International criminal law.
(viii) Treaties concerning international minorities and individuals.
(ix) Non- state entities.
(x) Insurgents.
9. Conclusion:
To conclude it can be said that the sources are the name of historic fall put of which rules of conduct comes into existence. although there is no international legislature and court to which international community must compulsorily submit, still under article 38 of the statue of international court of justice provide sources for international law.
1. Nationality
Nationality is status of a person who is attached to a state by the tie of allegiance. it is a relationship between a state and individual. the fundamental basis of a nationality of a person is membership of an independent political community. the question of determination of nationality comes within the doctrine of municipal law. the Hague conference (1930) while adopting convention of the conflict of nationality laws left to each state to determine as to “who are its nationals under its own laws”.
2. Meaning:
The word nationality is derive from the word national which simply means subject of a particular state.
3. Definition:
According to Openheim:
“Nationality of an individual is his quality being a subject of a certain state.”
Hyde:
“Nationality is a relationship between a state and an individual which is such that the former may regard the latter as owing allegiance to itself.”
4. Determination of nationality
U. S v/s Wong Kum Ark 1898:
It was held that state may determine as to what type or class of people shall be entitled to citizenship.
5. Right of nationality:
According to article 15 (i) of the universal declaration of human rights 1984 i. e every one has rights to a nationality. the hague convention on certain questions relating to the conflict of nationality laws 1930 provides that it is for each state to determine under its municipal law who are its nationals.
6. Importance of nationality:
Strak’s views
(i) Protection of rights:
Protection of rights of the diplomatic agents are in consequences of nationality.
(ii) Jurisdiction of state:
State exercises jurisdiction over civil and criminal matters over the persons of its nationality.
(iii) Practice of state during war:
During war enemy is determined on the basis of nationality.
(iv) Refusal to extradite:
State can refuse to extradite its own nationals.
(v) Responsibility of state:
States shall be responsible for harmful acts committed by their nationals if they allow them to commit such a harmful acts.
7. Modes of acquisition:
Following are the modes of acquisition of nationality.
I. By birth:
The chief mode of acquiring nationality is by birth. a person acquires nationality of the state where he is born.
(i) Kinds of nationality by birth:
(a) Jus Soli:
It is nationality according to territory or locality of birth.
(b) Jus Sanguinis:
It is nationality according to the nationality of the parents.
II. By naturalisation:
Nationalisation is a process by which a person living in a foreign state acquire a citizenship of that state or it takes place when a person becomes the subject of state to which he was before an alien. there are six way of nationalisation.
(a) Marriage:
The wife assumes her husband’s nationality, if latter is the national of another state.
(b) Legitimation:
A legitimate child acquires the nationality of his father.
(c) Option:
If a person fulfils the requisite conditions prescribed by the law of any state, he may be offered nationality by that state.
(d) Domicile:
If a person keeps domicile of a state he also gets the nationality of that state.
(f) Government service:
If a person gets govt, service in a state he acquires the nationality of that state.
(i) Permission by state to apply:
If law of any state permits application from persons for conferring nationality. such person may get nationality if they prove their eligibility.
III. By resumption:
It happens when a person resumes his nationality after losing it.
IV. By subjugation:
It is a acquired when a state is defeated or conquered and when all citizen acquire nationality of conquering state.
V. By cessation:
When a state has been ceded in another state. the people of that territory get nationality of the state in which the territory has been merged.
VI. By legislative or administrative act:
Nationality can also be acquired by the legislative or administrative act of the state.
8. Modes of losing nationality:
According to oppenhiem nationality can be lost in the following ways.
(i) Release:
It is effected by submitting an application by the nationality holder. if the application is allowed he may lose his nationality.
(ii) Deprivation:
Some states provide deprivation of nationality in certain circumstances. if a national of a state gets his appointment in another state without seeking prior permission of his state, he will be deprived of the nationality in that state.
(iii) Residence Abroad for long period:
If a person resides for a long period in abroad his nationality is lost.
(iv) Substitution:
Loss of nationality of substitution occurs when a person loses nationality of one state and acquires nationality of another state.
(v) Substitution:
Loss of nationality of substitution occurs when a person loses nationality of one state and acquires nationality of another state.
10. Conclusion:
To conclude it can be said that nationality is a legal relationship between the states and its citizens. a person without nationality is statelessness. universal declaration of human rights 1984 provides that every one has the right of nationality. there are different modes of acquiring and losing nationality.
1. Asylum
Asylum is the protection which a state gives on its territory on in some other place under the control of certain of its organs to a person who comes to seek it. it is the right to every state to refuse to extradite any refugee in certain circumstances.
2. Meaning:
The word Asylum is Latin and derived from the Greek word “Asylia” which means invoidable place.
3. Definition:
Asylum is shelter and active protection extended to a political refugee from another state by a state which admits him on his request.
4. Basis of Asylum:
A state has a right to grant asylum to a person on the principle that it has a sovereign right to control over the individual found on its territory. the right of territorial asylum has been conferred to a state on the basis of its sovereignty over territory.
5. Elements of Asylum:
There are two main element of Asylum which are following.
(a) Shelter.
(b) Active protection on the part of the authorities in control of the territory of asylum.
6. Reasons for Asylum:
Following can be the main reasons for granting asylum.
(a) To save a person from the jurisdiction of the local authority.
(b) May be granted on extra legal ground so on humanitarian ground.
(c) For the sake of national security.
Corfu Channel Case 1949:
It was held by ICJ that Asylum may be granted on humanitarian ground in order to protect political offenders against the violent action.
7. Right of a person to claim asylum:
In accordance with the “universal declaration of human rights under article 15 “every one has a right to seek and enjoy in other countries asylum from prosecution.
8. Types of Asylum:
Asylum has two types.
(i) Territorial asylum.
(ii) Extra territorial
(iii) Neutral asylum
I.Territorial asylum: Territorial asylum is granted within the territorial bounds of the state offering asylum and is an exception to the practice of extradition. It is designed and employed primarily for the protection of persons accused of political offenses such as treason, desertion, sedition, and espionage. It has become a widespread practice, however, to exclude from this category persons accused of the murder of a head of state, certain terrorist acts, collaboration with the enemy in time of war, crimes against peace and against humanity, and war crimesII. Extra territorial or diplomatic asylum:
Extraterritorial asylum refers to asylum granted in embassies, legations, consulates, warships, and merchant vessels in foreign territory and is thus granted within the territory of the state from which protection is sought. Cases of extraterritorial asylum granted in embassies, legations, or consulates (generally known as diplomatic asylum) are often occasions for dispute.
(iii) Neutral asylum: is employed by states exercising neutrality during a war to offer asylum within its territory to troops of belligerent states, provided that the troops submit to internment for the duration of the war.
1 Ware crime
There are certain rules of international law if they are violated, it will constitute war crimes. if they are committed by the soldiers or by other individual, punishment is given not by an independent forum but by the victorious states.
2. Definition of war crimes:
According to Schwarzenberger:
“War crimes are acts which strike at the very roots of international society, like genocide, piracy, violation off recognized rules of warfare.
According to Oppenheim:
“War crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders.
According to Higgins:
“War crime include the vidation of the recognized rules of warfare by illegitimate hostilites in arms committed by individuals who are not members of the armed forces espionage and war treason and marauding.”
3. Classification of war crimes:
Oppenhiem classifies war crimes under the following four heads:
(i) Violation of recognized rules regarding warfare committed by member of armed forces.
(ii) All hostilities in arms committed by individual who are not members of the enemy armed forces.
(iii) Espionage and war treason.
(iv) Marauding acts.
4. Responsibility for war crimes:
Those person or soldiers who commit war crimes are indivdiually responsible for war crimes such person are called war criminals.
Disability of war criminal:
A person committing war crimes cannot raise the plea that the crime was committed in pursuance of an order of the government or of two superior officer.
5. Who commit war crimes:
War crimes may be committed by.
i. Arm forces
ii. Political leaders having the power to control or authority to give directions.
6. War crimes trials:
6.Important war crimes trials are following:
(a) Nuremberg trial (1946)
(b) Tokyo trial(1946)
(c) Peleus trial
(d) Eichman trial (1962) (e) Mai lai trial
(f) Milosevic trial.
7. War crimes and united nation:
United nation recognized those principle which have been laid down in different war crimes trials. the general assembly also formulated certain principles relating to person guilty of war crimes. according to a resolution of general assembly where in it was laid down that state shall not grant asylum to any person with respect to whom there are serious charges for considering that he has committed war crimes. the united nation that he has authorised every state to try own nationals for war crimes or crime against humanity.
8. Conclusion:
To conclude i can say that war crimes are those acts which are violative of customs of war. the criminals or may not be member of armed forces. those person who commits war crime are personally responisble for their acts. the war crimes are against humanity and international peace e.g murder deportation imprisonment rape and other inhuman acts.
1. Geneva convention
The rules of treatment of the prisoner of war are governed by the Geneva convention 1949. this convention is regarded most important convention on the protection of the prisoners of war.
2. Prisoner of war:
Prisoner of war is a status which is given to a person captured by a belligerent during a war or in an armed conflict all the persons captured by the belligerents do not acquire this status.
3. Persons treated as prisoner of war:
Article 4 of the Geneva convention enummerat that certain categories of persons who have fallen into the hands of enemy shall be called as prisoner of war which are following.
(i) Member of armed forces of a party to the conflict.
(ii) Members of militias and member of volunteer corps, which also fulfil the following conditions.
(a) That of being commanded by a person responsible for his subordinates.
(b) That they have a distinctive sign which can be recognized from distance.
(c) That they have a distinctive sign which can be recognized from distance.
(d) That they carry arms.
(e) That they obscure the laws and custom of war.
(iii) Members of the armed forces who profess allegiance to a govt. or an authority not recognized by the detaining power.
(iv) Persons who accompany the armed forces without actually being member of armed forces.
(v) Inhabitants of a non- occupied territory who take up arm to resist the invading forces without having had time themselves into regular armed units.
4. Sir Robert Phillimore’s views:
According to Sir Robert Phillimore following classes of person have no claim to the treatment of the prisoners of war.
(a) Bands of marauders, acting without the authority of the sovereign or the order of the military commander.
(b) Deserters, captured among the enemy troops.
(c) Spies, even if they belong to regular army.
5. Fundamental principles relating to prisoners of war:
The Geneva convention 1949 contain the following important provisions relating to treatment of prisoners of war.
(i) Human treatment of prisoners:
Prisoners of war at all time be humanly treated. international law protects the prisoners from the punishment for hostile acts committed prior to capture.
(ii) Prohibition as to any act harmful for health:
Any unlawful act or omission by the detaining power causing death or seriously endangering the health of the prisoners of war is prohibited.
(iii) No physical multilation:
No prisoner of war may be subjected to physical multilation or to medical or scientific experiments of any kinds which are not justified by the medical, dental or hospital treatment of the prisoners.
(iv) Protection against act of violation:
Prisoners of war at, all times be protected, particularly against acts of violation.
(v) Right to respect of their persons and their honour:
Prisoner of war are entitled in all circumstances to respect of their persons and their honour.
(vi) Maintenance of prisoners:
The detaining power shall be bound to provide free of charge for maintenance for medical attention required by their state of health.
(vii) Equality of treatment:
The detaining power should teat prisoners equally without any distinction based on nationality religious belief or politically.
(viii) No physical and mental torture:
No physical or mental torture no any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever. prisoner of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.
(ix) Right to possession of articles of personal use:
All effects and articles of personal use except arms, horse, military equipment and military documents shall remain in their possession likewise their metal helmet’s and gas masks, like article issued for their personal protection.
(x) Quarter facilities:
Prisoners shall be provided quarter facilities similar as to those of the detaining power. the premises should be protected from dampness. they should be adequately heated and lighted. all precautions must be taken against the danger of their life. the detaining power should provide separate dormitories to woman prisoners. the detaining power shall also be bound to take all sanitary measures necessary to ensure the cleanliness of camp and to prevent epidemic.
(xi) Identity documents:
At no time prisoners of war be without identity documents. the detaining power shall supply such documents to the prisoners of war who possess none.
6. Present position regarding geneva convention of P. O. W:
Presently powerful states have ignored the geneva convention regarding P. O. W. or example U. S. A violated these refuges in Afgan and Iran war. P. O. W. were treated and are being treated in humanly and tortured in Gunatanamo.
7. Conclusion:
To conclude it can be said that international law protects all prisoners of war from punishment for their hostile acts committed prior to capture. the detaining power is not free to enforce its own municipal law except permitted by international law.