SWELLING OF INTERNATIONAL LAW BY UNITED NATIONS

Introduction

1.1  Definition

The words “International Law” were used for the first time by Jermy Bentham in 1780. Since then these words have been used to denote the body of rules and principles which regulate the relations among the members of international community. The term ‘members of international community now denote States, International organizations, individuals and certain non- State entities[1]  

      Prof. L. Oppenheim has defined International Law in the following words –“The Law of Nationals or International Law is the name of the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other”. This definition was given by Prof. Oppenheim in 1905.[2] Oppenheim’s definition, which was considered appropriate at one time, is now subjected to severe criticisms:

The Dispute of Maritime Boundary between Bangladesh, India and Myanmar (Admiralty Law)

Introduction

 One of the concepts that underpin the UNCLOS is that the maritime area beyond the national jurisdiction is a "common heritage of mankind." Maltese Ambassador Avid Pardo first articulated this concept in 1967. Malta is a small country in the Mediterranean, and the country felt that the sea-bed and ocean floor under the high seas should be considered "the common heritage of mankind," meaning that no country could own or utilize for its benefit the maritime area beyond its national jurisdiction. By declaring this concept, Malta has emphasized that small countries without great technical expertise for exploration will derive benefits from the exploration and utilization of the sea-bed of international areas.
The concept caught the imagination of most member countries of the UN. And when the UN Conference on the Law of the Sea began, almost all delegates of developing countries incorporated this concept in their policy statements.
       Bangladesh faces the Bay of Bengal, and the importance of its access to the open ocean can be appreciated if one considers the handicaps of landlocked countries, such as Nepal and Afghanistan. Accordingly, from the early years of its birth, it took great initiative and interest to participate in the UN Sea Law Conference.[1] Bangladesh has unfortunately failed to stop India and Myanmar encroaching upon its maritime territory. The seismic survey of Bangladesh’s territorial sea line has now become crucial as a UN set deadline for lodging maritime claims is to expire in next one year exposing Bangladesh to risks of losing a vast territory in the Bay of Bengal. Bangladesh signed by the UN Convention on the Law of the Sea called in 2001 and under the law we are obligated to lodge our claim on the maritime boundary by 2011 .But Bangladesh could not make any major headway in lodging its claims through seismic and other studies despite the fact the country could lose an area in the sea which is larger than the mainland Bangladesh. Experts said, Bangladesh needs to start the seismic survey immediately to claim its legitimate sea territory. Under the convention Bangladesh was required to submit necessary documents to the UN to validate its claim of territorial water, Exclusive Economic Zone up to 200 nautical miles and continental shelf up to 350 nm from the baseline.

Divorce Law in Bangladesh

Dissolution of Muslim Marriage:

On the Judicial Responses to Curb the Arbitrary Exercise of Divorce

Introduction

“With Allah, the most detestable of all things permitted is divorce”

Prophet Mohammed (PBUH)

Marriage is the very foundation of civil society and no part of the laws and institutions of a country can be more vital importance to its subjects than those which regulate the manner and conditions of forming and, if necessary, of dissolving, the marriage contract.[1]  

Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce . Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is the worst. Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together.[2]

International Law of the Air / Aviation Law / Airline Law

1.1       Introduction

The thousands of year’s human beings have looked to the skies with hope and admiration. The dreams of achieving artificial flight have occupied the imaginations of thinkers and engineers since the days of ancient Greece right up to the time of Leonardo da Vinci. Although these flights of fancy were ultimately futile, in 1903 Wilbur and Orrville Wright finally turned centuries of dreaming into reality when they flew 120 feet in Kitty Hawk, North Carolina on December 17th, 1903.

Aviation law is the branch of international law that concerns flight, air travel, and associated legal and business concerns. Some of its area of concern overlaps that of admiralty law and in many cases, aviation law is considered a matter of international law due to the nature of air travel.[1] However, the business aspects of airlines and their regulation also fall under aviation law. In the United States, the Federal Aviation Administration [FAA] governs applied aspects of flight. In the international realm, the International Civil Aviation Organization [ICAO] provides general rules and mediates international concerns to an extent regarding aviation law.

1.2 Determination of Air Space & Aviation Law

Each State exercises complete sovereignty over its territory which comprises of lands, waters, maritime belts, air space, etc.

      According to the old view watch State exercises sovereignty over its complete air space. In the modern times, this view is subjected to criticism and has been criticized by the jurists. There are several views or theories prevalent in this connection.

According to the first view, air space is available for each State and the aircrafts of each State may pass through it without any obstruction. This view has been vehemently criticized because it is contrary to many international treaties. Each state exercises control over its air space and the aircraf6ts of another state can better in its air space only after seeking its prior permission. In accordance with the second view, each state exercises control over its air space up to unlimited height. It is entitled to exercise complete control over it and may not permit the entry of the aircrafts of other states in this area. This view also does not seem to be correct because in view of the rapid scientific and technological developments aircraft can go to a very high attitude. It is not possible for each state to exercise control over unlimited height. Since it is not possible to exercise control over unlimited air space, this view, has lost much of its relevance.

International Court of Justice

International Court of Justice
Cour internationale de justice
Established	1945
Jurisdiction	Worldwide, 193 State Parties
Location	The Hague, Netherlands
Authorized by	UN Charter ICJ Statute
Judge term  length	9 years
Number of positions	15
Website	www.icj-cij.org
President
Currently	Hisashi Owada[1]

Peace Palace, seat of the ICJ

The International Court of Justice (French: Cour internationale de justice; commonly referred to as the World Court or ICJ) is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. Its main functions are to settle legal disputes submitted to it by states and to provide advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly. The ICJ should not be confused with the International Criminal Court, which potentially also has global jurisdiction.

Activities

Established in 1945 by the UN Charter, the Court began work in 1946 as the successor to the Permanent Court of International Justice. The Statute of the International Court of Justice, similar to that of its predecessor, is the main constitutional document constituting and regulating the Court.^[1]The Court's workload covers a wide range of judicial activity. To date, the ICJ has dealt with relatively few cases. However, since the 1980s there has been a clear increase in willingness to use the Court, especially among developing countries. After the court ruled that its covert war against Nicaragua was in violation of international law (Nicaragua v. United States), the United States withdrew from compulsory jurisdiction in 1986. The US now only accepts the court's jurisdiction on a case-by-case basis.[2] Chapter XIV of the United Nations Charter authorizes the UN Security Council to enforce World Court rulings. However, such enforcement is subject to the veto power of the five permanent members of the Council. Presently there are twelve cases on the World Court's docket.

Composition

The ICJ is composed of fifteen judges elected to nine year terms by the UN General Assembly and the UN Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 4–12 of the ICJ statute. Judges serve for nine year terms and may be re-elected for up to two further terms. Essentially, this has meant common law, civil law and socialist law (now post-communist law). Since the 1960s four of the five permanent members of the Security Council (France, Russia, the United Kingdom, and the United States) have always had a judge on the Court. The exception was China (the Republic of China until 1971, the People's Republic of China from 1971 onwards), which did not have a judge on the Court from 1967–1985, because it did not put forward a candidate. Judges of the ICJ are not able to hold any other post, nor act as counsel. In practice the Members of the Court have their own interpretation of these rules.

The Development of Natural Law Principles have a Profound Impact in the Making of International Law

At a Glance International Law:

International law is the term commonly used for referring to laws that govern the conduct of independent nations in their relationships with one another. It differs from other legal systems in that it primarily concerns provinces rather than private citizens. In other words it is that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and (a) The rules of law relating to the function of international institutions or organizations, their relations with each other and their relations with States and individuals; and

(b) Certain rules of law relating to individuals and non-state entities so far as the rights and duties of such individuals and non-state entities are the concern of the international community. However, the term "international law" can refer to three distinct legal disciplines

• Public international law, which governs the relationship between provinces and international entities, either as an individual or as a group. It includes the following specific legal field such as the treaty law, law of sea, international criminal law and the international humanitarian law.

• Private international law, or conflict of laws, which addresses the questions of (1) in which legal jurisdiction may a case be heard; and (2) the law concerning which jurisdiction(s) apply to the issues in the case

• Supranational law or the law of supranational organizations, which concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.

The two traditional branches of the field are:

• jus gentium — law of nations

• jus inter gentes — agreements among nations

Entities that create international law:

- States

- International organizations (which are composed of states)

Subjects of international law, who bear the rights and duties of international law:

- states

o international law developed to regulate states because of:

 the emergence of states

 state interaction

 development of the laws of war

• Purpose for laws of war: it is in the mutual interests of all states to regulate the conduct of war, and in trying to agree on rules that will make it unlikely that war will happen.

o The Classic Model of relations between/among states

 States are opaque (billiard ball theory – states hit each other one the outside but do not interfere with one another’s internal affairs) and we don’t really look at what’s inside

• Thus, international law only regulated relations between states, and did not regulate the internal affairs of states

 Now, international law is also used to regulate the internal affairs of states

- Individuals

o The person has become increasingly accepted as an independent actor, subject to and benefiting from international law (this is a recent development)

o Individuals are not parties to international law – they can be a bearer of duties and a beneficiary of rights, but they are not parties to international law

- corporations

- international organizations

o for the purposes of our class, an international organization is an organization composed either solely or primarily of states, like the United Nations

Sources of international law:

- Customary international law

o Article 38 of the ICJ

- Treaties

o A treaty is an agreement between states, between states and international organizations, or between international organizations, that is binding under international law (something binding under the laws of one state is not international)

Emergency Provision

1.1 Definition of Emergency / What is Emergency:

The emergency provision is not well defined in the constitutions that adopted it. Generally emergency provision is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviors, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale for suspending rights and freedoms, even if guaranteed under the constitution. Such declarations usually come during a time of natural or man made disaster, during periods of civil unrest, or following a declaration of war or situation of international or internal armed conflict. Justitium is its equivalent in Roman law.

In some countries, the state of emergency and its effects on human rights and freedoms and governmental procedure are regulated by the constitution and/or a law that limits the powers that may be invoked. Rights and freedoms may be suspended during an emergency, for instance, freedom of movement, but not non-derogable rights.  In many countries it is illegal to modify the emergency law or the constitution during the emergency.

In Bhagat Singh vs. King Emperor, Lord Dunedin said, “A state of emergency is something that does not permit of any exact definition. It connotes a state of matters calling for drastic action”.

Stiphen P. Marks has said, “Emergency is a situation which results from a temporary condition, which place institution of the state in a precarious position, which leads the authorities to feel justified in suspending the application of certain principles”.

According to the view of our constitution it means the existence of a condition whereby the security or economic life of Bangladesh or any part thereof is threatened by war, external aggression or internal disturbance.

1.2 Classification of Emergencies

From the view point of territorial extent emergency may be of two types:

a) National Emergency; and

b) Partial or State Emergency.

In the first case emergency is declared throughout the whole territory of the state.
On the other hand the second one is declared in a particular area of a unitary state or in a state of a federation.
For example, under article 352 emergency can be declared in India and under article 356 partial emergency can be declared. The Pakistan constitution also provides for the National and Partial emergency.

On the basis of its nature, emergency may be of three types,  they are:

a) Emergency of War,

b) Emergency of Subversion: and

Contract Act, 1872

Related Legislation / Statutes:

1. the Contract Act, 1872. (Bangla/English)
2. the Specific Relief Act, 1877.  (Bangla/English)
3. the Evidence Act, 1872. (Bangla/English)
4. the Specific Relief Act, 1882. (Bangla/English)
5. the Sale of Goods Act, 1930. (Bangla/English)

Leading Cases:
1. Carlill -vs- Carbolic Smoke Ball Co. (1893) 1 QB 256.
2. Bhagwandas -vs- Girdhari Lal & Co. [ AIR/ 1966/ SC 543.]
3. Balfour -vs- Balfour (1917) 2 KB 217.
4. Lalman Shukla -vs- Gauri Dutt. (1913) II AII LJ 489.
5. Mohri Bibi -vs- Dharmodas Ghose (1903) 30 IA 114.
6. Ramsgate Victoria Hotel -vs- Montefiore.
7. Hadley -vs- Baxendale (1854) 9 Exch 341.
8. Lews -vs- Averay (1971) 3 AII ER 907.
9. Tweddle -vs- Atkinson (1861) 1 B & S 393.
10. Pharmaceutical Society of Great Britain -vs- Bots Cash Chemists (1953) 1 all ER 483.
11. Harvey -vs- Facey (1893) AC 552.
12. House Hold Fire Insurance -vs- Grant (1879) 4 EXD 216.
13. Brogden -vs- Metropolitan RLY Co. (1877) 2 APP Cases 666
14. Dunlop Pneumatic Co. -vs- Selfridge & Co. (1915) AC 847.
15. Ammiraju -vs- Shemma AIR (1917) Mad 287.
16. Sowler -vs- Potter (1940) 1 ILB 271.
17. Sattyabroto Ghose -vs- Mungeeram Bangur & Co

Muslim Laws

the Muslim Personal Law (Shariat Application) Act, 1937 (XXVI of 1937).
the Dissolution of Muslim Marriages Act, 1939 (III of 1939).
the Child Marriage Restraint Act, 1929 (XIX of 1929).


the Muslim Family Laws Ordinance, 1961 (MFLO) (Ordinance VIII of 1961).
the Muslim Marriage and Divorces (Registration) Act, 1974 (LII of 1974).
the Guardians and Wards Act, 1890 (VIII of 1890).
the Succession Act, 1925 (XXXIX of 1925).
the Wakf Ordinance, 1962 (East Pakistan Ordinance No. I of 1962).
the Mussalman Wakf Validating Act, 1913 (VI of 1913).
the Family Courts Ordinance, 1985 (XVIII of 1985).


Leading Cases:
Abdul Fata Vs. Russomoy Choudhury (1894), 22 IA 76
Ahmed Ali Vs. Sabha Khatun Bibi PLD 1952 Dhaka 385