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INTERNATIONAL LAW & SPECIAL ECONOMIC ZONES

INTERNATIONAL LAW

International law is set of rules generally regarded and accepted as binding principle relations between states/nations. It serves as a framework for the practice of stable and organized international relations. In other words, international law is a set of legal principles, rules, regulation or any code of law that is mutually acceptable to two or more nations collectively, and are willing to bind themselves is such legal relation.

There are two traditional branches of internationals law are:

1-    Jus Gentium - Law of Nations, these are such set of rules that a country has adopted and sometime legislated under domestic laws. These international rules and regulations are observed by the country irrespective of any treaty or agreement between nations. Example, government policies of international trade and economy, war codes, domestic legislations on foreign transactions etc.

2-    Jus Inter Gentes - Agreements between nations, are express and explicit understandings between nations by formation of an international agreement, treaty, referendum, code or any other binding document. Example, trade agreements, extradition treaties etc.

Essentials to International Law:-

[1] Agreement between Nations:

International Law is an out-fall of agreements between nations, where nations are willing to agree on certain terms and conditions, subsequently abiding by it. Such agreements can be for economic growth, defense purpose, criminal extradition, border agreements and any other sector as deemed fit by nations.  

Unlike other domestic laws in India, International Laws are not made by the Parliament but are drafted agreements with are mutually agreed by coding nations. In most cases international forums like United Nations, WTO, BRICS Nations, G-8 Summit, OPEC (economic agreement), NATO, SAARC, IMF and other similar groups provide a platform for such international agreements. 

[2] Consistency with Domestic Law:

In many legal segments, international law has to be made in consonance with domestic law. For example, Intellectual Property Right Laws are legislations which has to be observed bilaterally, domestic and international, for its effective functioning and execution. 

[3] Binding law:

International law generally is a non-binding law. There is no legal mandate to abide by such laws as there is no court or similar forum to punish such agreeing nations. It solely depends upon the relations between the nations and their willingness to follow such law.

[4] Trials and Jurisdiction:

Some international agreements and their violations thereof are made subject to court of a decided jurisdiction. Nations may make themselves cognizable to certain offences/violation to court of law as so decided by them.

International law differs from state based legal system in that it is primarily applicable to countries rather than to private citizen. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European court of human rights or the international criminal court. Treaties such as the Geneva conventions may require national law to conform to respective parts.

Categorization of International Law

International Law is that form of law which relies on ‘consent based governance’ to a great extent, as states are not ordinarily to abide by it, unless they expressly consent to particular course of conduct, though certain aspects are expectations to the consent requirement, such as principles of customary international law and peremptory norms. International law can be further categorized into:

1-Public international law

2-Private international law

3-Supernational law

[1] Public international law– it is formed out of the relationships between nations which are formed by treaties, executed by national heads of the state (country/nation), which are considered the subject of international law. Norms of international law have their source which are as follows:

(a) Custom, or customary international law or consistent state practice accompanied by opinions of jurists (legal heads of states).

(b) Globally accepted standards of behavior, which are also known as Peremptory norms (jus cogens or ius cogens).

(c) Codifications contained in conventional agreements, generally termed treaties.

The primary objective of public international law is to provide for a framework of rules and regulations which help in fostering stable and organized international relations. Public international law is further classified into fields such as law of the seas, internationals humanitarian law, the law of treaties and intellectual property.  

[2] Private international law– ‘conflict of law’, often called ‘private international law’ in civil law jurisdictions, is distinguished from public international law because it governs conflicts between private person rather than states or other international bodies. It concerns the question of which jurisdiction should be permitted to hear a legal dispute between private parties of different nations, and which jurisdiction’s law should be applied, therefore raising issues of international law.

For example, A multi-national company (foreign company) having its head office in a foreign country is running a legal case in India. Therefore, the company is legally bound to proceed as per Indian Laws and not laws of its home nation. 

Today corporations are increasingly capable of shifting capital and labor supply chains across borders, as well as trading with overseas corporations. This increases the number of dispute of an inter-state nature outside a unified legal framework, and raises issue of the enforceability of standard practice.

Private International Law versus Public International Law

Private international law is different from public international law, as the latter is a set of rules which governs the intercourse between nation through determining the rights and obligations of the governments of the nation, while the former comprises of certain rules and regulations which are established or agreed upon by private citizen from different nation who enter into transactions and that would govern them if a dispute were to arise; e.g. international trade.

[3] Supranational law- Systems of ‘supranational law’ arise when nations explicitly cede their right to make certain judicial decisions to a common tribunal are directly effective in each party nation and have priority over decision taken by national court. Hence, courts are set up commonly by two or more nations, which determines disputes arising common to such nations.

The European Union is an example of an international treaty organization which implements a supranational legal framework, with the European court of justice having supremacy over all members nation courts in matter of European Union law.

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INTERNATIONAL LAW OF TREATY

(PRIVATE INTERNATIONAL LAW)

A treaty is an agreement under international law entered into by nations in international law, namely sovereign states and internationals organization, a treaty may also be known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are under international law, equally considered treaties and the rules are the same.

History

The law of treaties is now set out in the Vienna convention of 1969 on the law of treaties which contains the basic principles of treaty law, the procedures for how treaties becoming binding and enter into force, the consequences of a breach of treaty, and principal for interpreting treaties.

Principle of Binding-Nations

The basic principal underlying the law of treaties is ‘pacta sunt servanda’ which means every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Principle of Exclusion

The other important principle is that treaties are binding only on state parties. They are not binding on third states without their consent. Treaties are sometimes referred to by the place and year of adoption, e.g. the 1969 Vienna Convention. If a state becomes a signatory to such a treaty, it is not bound by the treaty, but it undertakes an obligation to refrain from acts the provisions of a treaty when it deposits an instrument of accession or ratification to the official depositary of the treaty.

If a state is signatory to an international convention but decides to become a party, it send an instrument of accession. The general rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.

(PUBLIC INTERNATIONAL LAW)

International Law of Land

Borders are geographic boundaries of political entities or legal jurisdictions, such as governments, sovereign states, federated states, and other subnational entities. Borders are established through agreements between political or social entities that control those areas; the creation of these agreements is called boundary delimitation. Border disputes arise when nations fail to reach an agreement and are unable to flag positions dividing territories of respective nations.

An everyday example is the Jammu and Kashmir issue between India-China and Pakistan. Also, the recent tiff-off at Dokhlam Plateau between Bhutan and China; are example of unsettled border issues.

Some borders such as a state's internal administrative border, or inter-state borders within the Schengen Area (European Union) are often open and completely unguarded. Other borders are partially or fully controlled, and may be crossed legally only at designated border checkpoints and border zones may be controlled. Thus, the relation and the agreement between bordering nations determine the law of land.

International Border are generally demarcations mutually accepted to nations. A nations territory and its land rights are recognized by international law, as well as by the national legal systems of neighboring common law and civil law countries. In customary law jurisdictions, customary land is the predominant form of land ownership.

International Law of Sea

The United Nations convention on the law of sea (UNCLOS), also called the Law of The Sea Convention or the Law of The Sea Treaty, is the international agreement that resulted from the 3rd United Nations Conference on the Law of The Sea, which took place between 1973 and 1982. The Law of The Sea Convention defines the rights and responsibility of nation with respect to their use of the world’s oceans, establishing guidelines for businesses, the environment and the management of marine natural resources.

The convention which conclude in 1982, replaced four treaties. UNCLOS came into force in 1994. About 167 countries and the European Union have joined in the convention and it is uncertain as to what extent the convention codifies customary international law.    

Basis internationally accepted guidelines on right over sea waters;

Zone

Distance from Land

Nation’s rights

Internal Waters

-

Covers all water and waterways on the landward side of the baseline.

The state is free to set laws, regulate use, and use any resource in water which is within the land territory of the state.

Foreign vessels have no right of passage within internal waters

Territorial Waters

12 Nautical Miles (22 kms)

Considered as part of a country, a private space of the nation. The nation is free to decide the governance of such waters, it can impose laws, apply sanctions, charge tax, levy fees and exercise other territorial rights. 

Contiguous

12 Nautical Miles – 24 Nautical Miles

Beyond the 12-nautical-mile limit, there is a further 12 nautical miles from the territorial sea baseline limit, the contiguous zone, in which a state can continue to enforce laws in four specific areas: customs, taxation, immigration and pollution.

The state can pursue any person who violates any law in the territorial zone and is trying to run away. This makes the contiguous zone a hot pursuit area.

Exclusive Economic Zones

200 Nautical Miles (370 kms)

Within this area, the nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. The EEZ’s were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important.

Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables in such area.

Continental Shelf (International Waters)

200 Nautical Miles +

No territorial laws apply in this zone. The water area is free for universal use, subject to the exclusivity of use by a specific nation.

 

Not all countries abide by the above rule, as international law is difficult to bind on nations. Undetermined sea spaces are a major area of concern; for example, the recent issue of China sea, where multiple nations are claiming their right over sea waters. The matter is sensitive because it involves military advantage, revenue from international use of sea space, access to oil and other natural resources.

International Law of Air

A basic principle of international air law is that every state has complete and exclusive sovereignty over the airspace above its territory, including its territorial sea. The principle of airspace sovereignty in international law is probably well reflected in the maxim, Cujus est solum ejus est usque ad coelum et ad inferos, which means that he who owns the land owns what is above and below it.

There were initial suggestions that air space should be available for free use for nations but the principle of airspace sovereignty was unequivocally affirmed in the Paris Convention on the Regulation of Aerial Navigation (1919) and subsequently affirmed in the Chicago Convention on International Civil Aviation (1944). The basic principle applies vertically i.e. airspace ends where outer space begins.

It follows from the principle of airspace sovereignty that every state is entitled to regulate the entry of foreign aircraft into its territory and that persons within its territory are subject to its laws. States normally permit foreign aircraft to visit or fly through their territory without too much difficulty.

In the alternative, air law is the body of law directly or indirectly concerned with civil aviation governed by International Civil Aviation Organization (ICAO), but the practice of individual states in this regard is not yet settled. International character of air law is either ‘international law’ or ‘international uniform law’ for commercial activity, wars or tourism purpose. Here international law means the air rights’ agreement between nations and international uniform law means rights which have been adopted/accepted universally by all nations.

SPECIAL ECONOMIC ZONE

A special economic zone (SEZ) is an area in which business and trade laws are different from rest of the country. SEZ’s are located within a country’s national borders, and their aim include increased investment, job creation and effective administration. The creation of special economic zones by most countries are motivated by the desire to attract foreign direct investment (FDI).

It is important to know that vide the Government of India’s Notification dated January 15, 1976 an exclusive economic zone (EEZ) of India in ocean waters has been created up to a distance of 200 nautical miles from the coastline.

LAW ON OUTER SPACE

Outer space also known as Space, is the near-vacuum between celestial bodies. It is where everything; all of the planets, stars, galaxies and other objects is found. In lay terms it can be said that the law that governs the use of celestial resources and space consumption in space is Space Law.

United Nation Office for Outer Space Affairs

According to the United Nation Office for Outer Space Affairs (UNOOSA), which is tasked with promoting international cooperation in the peaceful uses of outer space, space law is the body of law applicable to and governing space related activities.

The inception of the field of space law began with the launch of the world’s first artificial satellite by Soviet Union in October 1957. The United Nation general assembly adopts the declaration of legal principles governing the activities of states in the exploration and uses of outer space in 1963.

The Outer Space Treaty

The Outer Space Treaty represents the basic legal framework of international space law. India too is a signatory to this treaty.

Highlights on governance of outer space;

1.    It bars states party to the treaty from placing weapons of mass destruction in orbit of Earth, installing them on the Moon or any other celestial body, or otherwise stationing them in outer space.

2.    It exclusively limits the use of the Moon and other celestial bodies to peaceful purposes and expressly prohibits their use for testing weapons of any kind, conducting military maneuvers, or establishing military bases, installations, and fortifications.

3.    The treaty also states that the exploration of outer space shall be done to benefit all countries and that space shall be free for exploration and use by all the States.

4.    The treaty explicitly forbids any government from claiming ownership of a celestial resource such as the Moon or a planet.

5.    The Treaty states that outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, if being used or occupied by a nation.

6.    The State that launches a space object retains ownership, jurisdiction and control over that object. The member State/nation is also liable for damages caused by their space object.

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INTERNATIONAL COURTS

There are numerous international bodies created by treaties adjudicating on legal issue where they may have jurisdiction. The only one claiming universal jurisdiction is the United Nations Security Council. Others are United Nations’ International Court of Justice, and the International Criminal Court (when national systems have totally failed) and the Court of Arbitration for Sport.

[1] United Nations Security Council

Under the Charter, the Security Council has primary responsibility for the maintenance of international peace and security. It has 15 Members, and each Member has one vote. Under the UN Charter, all Member States are obligated to comply with Council decisions.

The Security Council takes the lead in determining the existence of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of settlement. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security.

[2] United Nations’ International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The seat of the Court is at the Peace Palace in The Hague, Netherlands. Of the six principal organs of the United Nations, it is the only one not located in New York, United States of America.

The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.

[3] International Criminal Court

The International Criminal Court (ICC) investigates and where warranted, tries individuals charged with the gravest crimes of concern to the international community, which include genocide, war crimes and crimes against humanity.

The Court is participating in a global fight to end impunity, and through international criminal justice, the Court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.

​​The Court cannot reach these goals alone. As a court of last resort, it seeks to complement, not replace, national Courts. Governed by an international treaty called the Rome Statute, the ICC is the world’s first permanent international criminal court situated at Rome, Italy.

[4] Court of Arbitration for Sport

The Court of Arbitration for Sport (CAS) is an international quasi-judicial body established to settle disputes related to sport through arbitration. Its headquarters are in Lausanne, Switzerland and its courts are also located in New York City and Sydney. Temporary courts are established in current Olympic host cities.

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