INTRODUCTION TO INTERNATIONAL LAW
International law governs relationships between and among entities with international legal personality: sovereign states and other international actors, such as inter-governmental organizations and individual natural persons. The legal personality attributed to these entities means that they have rights, protections, responsibilities and liabilities under international law.
Sources of International Law
There are four significant sources of international law, identified in Article 38 of the Statute of the International Court of Justice (ICJ):
- International conventions (treaties) establish written rules that are binding on states that have signed and ratified the conventions. Treaties are contractual in nature, between and among states, and governed by international law.
- International custom establishes unwritten rules that are binding on all states, based on general practice. Their binding power is based on implied consent, evidenced by (a.) virtually uniform state practice over time and (b.) a belief that such practice is a legal obligation (opinio juris). Thus, for rules to become part of international customary law, states must follow them, not out of convenience or habit, but because they believe they are legally obligated to do so.
- General principles of law recognized by civilized nations include peremptory norms (jus cogens), from which no derogation is allowed – for example, the principles contained in the United Nations Charter that prohibit the use of force except in self-defence. There is ongoing debate, however, about which particular rules have achieved jus cogens status.
- Judicial decisions and the teachings of the most highly qualified publicists of the various nations are subsidiary means for the determinations of rules of law. While court decisions and scholarly legal work are not sources of international law, they are considered important in recognising the law and interpreting and developing the rules sourced in treaties, custom and the general principles of law.
The first three of the above are recognized as the most important and well-established sources of International law. However, some states, academics and jurists highlight that court judgments, the ICJ’s advisory opinions and UN General Assembly Resolutions (often classified as ‘soft law’) are becoming increasingly influential in the development of the law. In particular, it is argued that they play a role in the establishment of customary international law. For example, the ICJ’s decisions that certain treaty provisions in international humanitarian law have the status of customary international law have sometimes led states not party to the treaty to view themselves as bound to comply with its obligations (Alvarez-Jiménez, 2011). In addition, the ICJ noted in its 1996 advisory opinion regarding the Legality of the Threat or Use of Nuclear Weapons that General Assembly resolutions, while not binding, may provide evidence for establishing the existence of a rule or the emergence of opinio juris, required for international custom (Prost and Clark, 2006).
INTRODUCTION TO CONSTITUTIONAL LAW
A state is defined in international law as “an independent political entity” “occupying a defined territory” “the members of which are united together for the purpose of resisting external force and preservation of internal order.
India’s Constitution is a lengthy, elaborate and detailed document. Originally it consisted of 395 Articles arranged under 22 Parts and eight Schedules. Today, after many amendments, it has 441 Articles and 12 Schedules. It is probably the longest of the organic laws now extant in the world.
The Constitution of India, the precursor of the new Indian renaissance, became effective on January 26, 1950. Before the advent of the Constitution, India was governed under the Government of India Act, 1935, which became effective in 1937. India was then a part of the British Empire; sovereignty of the British Crown prevailed over the country and it was in the exercise of this sovereignty that the British Parliament had enacted the Act of 1935.