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PART I: THE BASICS

Chapter 1: An Introduction to
International Law
Law has been an integral element in every form of society, since the
inception of mankind. It has been a boundary of sorts, confining human
behavior within acceptable limits, and any transgression therein was always
frowned upon, penalized and to the best possible extent, deterred. Evolution
of man as a social animal depicted a phased and a gradual expanse his
interactional sphere, from the singular microcosm of the family, to the
present day multi-layered scheme of global relations. The world seems to
shrink progressively, and relations are beginning to be forged, not just
amidst individuals, but governments, organizations and the like. As each
layer of the socio-political hierarchy establishes itself, it becomes all the
more necessary for a legal framework to govern each, for it is the need for
stability at each level that drives the pivotal role that law plays.
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Law binds the individual units of the community together, by channelizing


individual values and norms into recognized mores. On the positive side,
Law is permissive, in that it enables the enforcement of rights, the
obligatory fulfillment of duties; and is also coercive, in that it works to
penalize transgression and violation. In a nutshell, Law can be easily
construed as a body of norms and rules that regulate human behavior, which,
in the process, reveals the intricacies of the social set up, with all its
inherent ramifications and maladjustments.
Law has no limit for what it regulates, given that there are Laws governing
the actions of humans, the actions of corporations, the actions of
organizations, and the actions of the government itself. It is in the last
category, that International Law finds its place, while the preceding three
are governed by what is popularly known as Municipal Law, or Domestic
Law. The primary difference between International Law and the Laws
governing the other three realms, is that International Law caters to states,
and perhaps regional organizations, while all else govern the minor entities
that come within the states.
International Law itself is broadly segregated into Private and Public
International Law. Private international law, alternatively termed as Conflict
of Laws, refers to the conflict between the laws within particular states with
their own legal systems, in the event of the obtrusion of foreign elements that
eventually leads to questions in pertinence to the applicability of a foreign
law, or the role of foreign courts. The latter, oftentimes called just
International Law, is the supranational law governing the relations of states
in their interactions with one another, and the primary concern of this book.
The aim of Public International Law is to monitor the behaviour of states in
the international sphere.[1] Where there is a community of states, the
maintenance of law and order becomes essential. A state will, as a general
rule, do its best to act within the ambit of the framework of rules which
make up international law. On the occurrence of any transgression or
violation of the general principles of peaceful and cooperative cohabitation
between states, automatically evokes the disapproval of the fellow states in
the community. Such disapproval could manifest in the forms of a tag of bad
reputation, or in the form of much more severe consequences, such as
sanctions and war.
Public international law covers a plethora of aspects that come to be, in the
course of relations between states. Warfare, space deployments, sea routes
and trade are few of the myriads of aspects covered. Public international
law is bifurcated into general, and regional. The former refers to the set of
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rules that govern the larger community of states, not confined to a specific
region. Regional International Law refers to the legal framework dealing
with the workings of a specified set of states, bound either by cartographic
and geographical links, or ideological perspectives.
A close perusal of contemporary International Law would reveal that it is
going through a rapid and profound transformation to keep pace with the
remarkable changes in the world. It has consistently been expanding its
horizons both, in terms of its subjects and orientation, consequently resulting
in a marked change in its character. It is true that the structure of
international legal system is quite flexible, and this is essentially in order to
be receptive to socio-political transition for its very survival.
Definitions
Primarily, as has already been seen, International Law or the Law of
Nations functions as the lubricant to cushion the frictional movements
between states in the anarchical set up. Given that the international arena is
one of an anarchical nature, all states are sovereign, and maintain that each
is equal to the other. This equality and sovereignty warrant that there cannot
be one above them all, or one single state being the leader. As a natural
corollary, International Law, is the law between these nations, and not the
law above these nations. This is the legitimate reason behind the usage of
the term International Law.[2] Simply put, it refers to the law that governs
states. A cursory perusal of the working definitions of International Law
indicates the different dimensions of the continually evolving subject.
Scholars for years together, have aspired to channelize the varied practices,
conventions and legal precedents into a compact legal system, beginning
therein, with a definition of the term.
In the words of Oppenheim, one the greatest exponents in the field, the Law
of Nations, or International Law, as it is called, is the name for the body
of customary and conventional rules, which are considered binding by
civilized states in their intercourse with each other.[3] The crux of this
definition lies in the fact that international law is the law that governs the
conduct of states in the realm of international anarchy. While the definition
concentrates on establishing that it is the customary and conventional rules
that make up international law, it fails to take note the value and worth of
juristic opinion, and simple state practice. The qualification of states as
civilized, to comfortably fit the bill as one following international law, is a
subjective notion. What defines civilized is not elaborated upon, and in the
present day and age, there are several states that indulge in practices not
acceptable to the other states, and these states are as equally steeped and
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involved in the workings of international law, as are the other states that
frown upon these practices. Furthermore, the definition seems to constrict
the applicability of International Law only to states, while present day
practice depicts that international organizations are also included within the
ambit of international law. Lastly, the construal of international law as a
body of rules, is questionable on many accounts. International law is a
dynamic field, and is continuously reinterpreted and reshaped in the very
process of its application by authoritative decision makers, nationally and
internationally.[4]
The ninth edition of Oppenheims book, edited by Sir Robert Jennings and
Sir Arthur Watts, has a revised version of the earlier definition, which
holds that International law is the body of rules which are legally binding
on states in their intercourse with each other. These rules are primarily
those which govern the relation of States, but States are not the only
subjects of International Law. International Organizations, and to some
extent, also individuals maybe subjects of rights conferred and duties
imposed by international law. While there has been a dispensing away
with, of the civilized tag, and the inclusion of the other subjects of
international law, the definition still seems to lag behind in that the
confinement of the field into a body of rules and the non-inclusion of all
elements comprising the law. Another question that arises is with regard to
the extent to which states, individuals and international organizations are
bound by these rules. Several aspects go into the determination of the
binding force, and many a time, International Law has been labeled with the
moniker of a soft law.[5]
Much has been said about the importance of Judicial Precedents and
observations of judges in the course of the active interpretation of the law.
In this regard, two important cases evinced that the decisions passed by
different forums included the definitive requirement for international law. In
Queen v. Keyn,[6] a decision that preceded Oppenheims definition, held
that International Law refers to the collection of usages which civilized
states have agreed to observe in their dealings with one another. The
famous Lotus Case,[7] had the Permanent Court of International Justice
define International Law, as that which governs relations between
independent states. The court went on to hold that the rules of law binding
upon States therefore emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of
law and established in order to regulate the relations between these coexisting independent communities or with a view to the achievement of
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common aims. Restriction upon the independence of states therefore


cannot be presumed. It must be remembered that the genre of definitions
provided in a judicial opinion are confined to the requirements of the case
in question, and hence, there is neither need for, nor should there be an
expectation for, a wider definition. Both questions involved the liability of
states concerned in the event of a collision on the high seas, between
vessels owned by different states. The definitive tangent observed in both
cases was to induce the wrongdoer state to atone for its misdeeds, and to
pay for the loss caused. The use of language sufficient to induce the states to
do the needful, in the interest of justice and restoration of peace in the
international comity underlies the definitions delivered herein.
In the words of J.G.Starke, International Law is that body of law which is
composed for its greater part of principles and rules of conduct which
states feel themselves bound to observe, and therefore, do commonly
observe in their relations with each other, and includes also: (a) The rules
of law relating to the functioning 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 or duties of such individuals are
the concern of the international community.[8] This definition, though a
little more on the recent side of the legal research spectrum, seems to ignore
the role of the newer aspects that contribute to international law in making it
what it is. The important role that customary practice, conventions and
treaties, juristic opinions and precedents play in forming the body of
international law has not been specifically enumerated in the definition.
However, this definition has included international organizations,
individuals and non-state entities, as subjects of international law, which
bodes well in the light of the most recent developments.
A working definition of International Law would be hard to frame, given the
nature and dynamism that the subject has been accorded. What seems right at
one point of time seems grossly erroneous at another, and what seems
contextually right loses ground in the big picture.
Origin and Development of International Law- A brief
historical outline
In many ways than one, International Law can be construed as a product of
the experience of civilized nations in the world, and their well orchestrated
interactions with one another. The actual point marking the origin and
milestones marking the development of International Law has been a subject
of much consternation among scholars world over.[9] While a couple of
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authors prefer to examine the relations and treaties governing polities from
as old as 3000 BC, encompassing the pre-classical antiquity in the Near
East, Ancient Greece, Persia and the Romano Hellenistic era,[10] the
generally prevailing view where International Law is concerned, is that it
originated in Europe, emerging during the period after the Peace of
Westphalia in 1648, that put an end to the Thirty Years War.
The Early Eras
While the modern international system can be traced back some 400 years,
certain basic concepts can be discerned in political relationships, about a
thousand years ago.[11] Contributions from different quarters have evidently
been rife in the pre-1648 era. The Greek Civilization, with the emergence of
a polity of sorts, comprising city-states, warranted a miniature model of
todays actual international legal set up, with definitive rules governing the
inter-relationships of these city-states. Dispute resolution through peaceful
means as an alternative to war, prior declaration before actually
commencing war, the exchange of prisoners of war and mutual-cooperation
of sovereign states propelled the Greek system of unity in the midst of an
anarchical set up. Greece was steeped in its virtuous pursuit of Natural
Law- a branch formulated by the Stoic philosophers of the third century BC,
and their theory was that it constituted a body of rules of universal
relevance. Such rules were construed to be rational and logical in nature, on
account of originating from human intelligence. The Romans, on the other
hand, hinged largely upon warfare. They construed the existence of two
kinds of war, just and unjust war. Just wars could be waged on four grounds,
namely, where there was an attack on Roman Territory, disregard or
violation of the privileges of ambassadors, contravention of treaties, and the
assistance to enemy states by friendly countries. Any other modality was
construed antithetical to the requisite yardstick of justice. Treaties were
classified into three kinds, Treaties of Friendship, Alliance and Hospitality.
The Romans had two sets of law, jus civile, or the law that governed its
own people, and jus gentium, or the law that governed foreigners. With
time, the latter replaced the former in entirety, until the former ceased to
exist altogether. The Romans followed the Greek concept of natural law.
The classical rues of Roman Law were collated in the Corpus Juris Civilis,
a compilation of legal material by a series of Byzantine Philosophers,
completed in 534 AD.[12]
The role of Israel is also noteworthy. A universal ethical stance coupled
with rules relating to warfare was handed down to other peoples and
religions and the demand for justice and a fair system of law founded upon
strict morality permeated the thought and conduct of subsequent generations.
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[13] Prophet Isaiah declared that sworn agreements, even where made with
the enemy, have to be performed.[14] It was believed that the foundationstone of mans existence was peace, and not power.
In Africa, the Egyptian civilization flourished, under the auspices of fertile
endowments beside the river Nile. Rameses II of Egypt, and the King of the
Hittites signed a treaty, for the establishment of eternal peace and
brotherhood.[15]
Following a similar pattern, were the developments in Asia. The
Mesopotamian civilization, chaperoned by the crux of Hammurabis laws,
grew to be similar to the Greek set up, involving city-states. The rulers of
two cities in the Mesopotamian civilization, namely, Lagash and Umma,
signed a treaty inscribed on a stone block, in relation to the definition of a
boundary.[16] The Indus Valley civilization and all subsequent Indian
political regimes until the sixteenth century, had their own modality of
procedure governing international trade and international relations. There
was an extensive maritime trade network operating between the erstwhile
Indus Valley and Mesopotamian civilizations, as early as the middle of the
Indus Valley Civilization, with much commerce being handled by merchants
from Dilmun.[17] The Chinese civilization had a regional-tributary system
in place, and though fragmented, it remained in place for a considerable
length of time. Hindus, both during and after the Vedic Age, in the Indian
subcontinent, displayed immense respect for International Relations. Ample
generosity was seen to occur, and every activity was measured against the
yardstick of morality. During the Buddhist age, and its propagation phases
much later, foreigners were invited to India, or rather the empire that India
was, back then, for economic and educational activities. Hieuen Tsang and
Fa Hien were only two of the myriads of the scholars from outside India,
who made a foray into the Indian educational realm, in erstwhile
universities of learning, such as Nalanda and Takshila.
Such conduct would be of frugal importance if there was no code governing
it, and thus, was in order, an international legal system, neatly in place,
governing the entire realm of their relations. Islam and its influences in the
Asian territory cannot be ignored. The primary principle underlying Islamic
international relations, was their hostility towards non-Muslim countries,
and the concept of unity, or Dar al-Islam, between Muslim countries.
Religion was their catchword, and those that were the peoples of the book,
namely, the Jews and the Christians, were given better treatment as opposed
to non-believers, though they were construed lower in position to the
Muslims. They were steeped in respect for the understanding of the
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distinction between combatants and non-combatants during warfare, and


understood the importance of honoring their word, by fulfilling their treaty
obligations, with the aim of preserving their sanctity.[18] With the end of
conquest, Muslim states began building strong relations with non-Muslim
states. Diplomacy law was largely propped on the rules of hospitality, and
was named aman.[19] Prisoners of war were left to the Imam, who would
decide their fate.
The Middle Ages
The Middle Ages were characterized by the authority of the organized
Church and the comprehensive structure of power that it commanded.[20]
Europe was steeped in religious development, and ecclesiastical laws were
the norm for all, irrespective of other regional or personal affiliations. The
entire period is filled with instances of turmoil between the Church and the
Polity. Ultimately, the Church won the conflicts, although, in reality, this
victory over secularism was largely short-lived. Religion may have been a
unifying factor, but political differences managed to spill over nevertheless.
During this era, the authority of the Holy Roman Empire and the
supranational character of canonical law was of utmost importance.[21]
Nevertheless, commercial and maritime law developed speedily, and
England established the Law Merchant, a code of rules covering foreign
traders, and this was declared to be of universal application.[22] The
European states began evolving mercantile courts to settle disputes between
tradesmen at various fairs. This paved the way for an embryonic
international trade law.[23] Maritime customs evolved. Founded upon the
Rhodian Seal Law, a Byzantine work, many of whose rules were enshrined
in the Rolls of Oleron in the twelfth century, and other maritime textbooks, a
series of commonly applied customs relating to the sea permeated the naval
powers of the Atlantic and Mediterranean coasts.[24]
Soon after, intellectual development took Europe by storm, in the form of the
Renaissance. Science, humanities and individual thinking were the new
order of the day. There were open challenges to Papacy, with advanced
exposition of knowledge that was otherwise suppressed until then. Secret
societies emerged, in an attempt to propagate knowledge. The world began
to realize that the earth was not flat, that there could be flying objects in the
future, and earned some of the worlds best literature and best art it could
possibly imagine. Printing became a reality, thereby allowing quicker
dissemination of information. The Byzantine Empire collapsed with the fall
of Constantinople, after which the Turkish armies in 1453, drove many a
Greek scholar to seek sanctuary in Italy. It was at this point, that individual
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nation-states such as England, France and Spain, specifically, came to fore


as developed states steeped in territoriality. The Italian city-states sought to
break away from Papacy, and forayed into secularism. It was from these
struggles that the major staples of modern international life, such as,
diplomacy, statesmanship, the theory of balance of power and the idea of
community of states evolved.[25]
The creation of independent states, states that believed in maintaining their
sovereignty in their interactions with one another is where the actual roots
of International Law are found. The Renaissance, did, in effect, succeed in
building a strong political framework for the erstwhile futuristic system of
International Law. The Reformation and the series of religious wars did
much to add to the power of the states. The continental system, thus paved
the way for the state-based anarchical system.

Subsequent Development- From the Treaty of Westphalia to The


Modern Ages
The subsequent development of International Law is also subject to different
views. In Grewes words, there were three distinct systems of International
Law after the sixteenth century, marked by the interests, ideologies and
policies characteristic of the period in question, namely, the International
Legal Orders of the Spanish Age (1494-1648), the French Age (1648-1815)
and of the English Age (1815-1919).[26] On another note, is the division of
the periods into 1648 to 1815, 1815 to the First World War, the interim
period between both wars, and the Second World War until today, which
holds its own as good classification.[27]
For the purposes of this analysis, the periods of reference shall be the
Classical System of International Law, (1648-1919), and the Modern or
New System of International Law, evolving from the span of time
commencing after the First World War.
The Classical system of International law involved the recognition of the
state as the only subject of international law. States were construed as
equal, and sovereign, in a realm of international anarchy. Although treaties
and leagues existed in the ancient and medieval systems, they did not begin
to assume the prominent part in the political history of the world, which they
have since attained, and now occupy, until the middle of the seventeenth
century, and shortly after Hugo Grotius, whose work, De Jure Belli Ac
Pacis is considered one of the earliest points to mark the evolution of
International Law.[28] At this point of time in history, states readily
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accepted the untrammeled right to wage wars and to enforce claims, in the
pursuit of protecting its own domestic, national interests. This period
evinced colonization by leaps and bounds, by greater powers in the
European set up. The British had active settlements in several portions of
Asia and Africa, while French and Portuguese colonization followed suit
closely. Other European States had colonies to their credit, but not to the
large extent that the former possessed. The three centuries succeeding the
Peace Treaty of Westphalia witnessed a grand expanse of interaction
amongst the European powers, and their imposition of their international
legal order upon the remainder of the world. This could be construed as the
general order of things until 1919, with states carrying out wars against one
another in an attempt to secure territories, and then acceding to the other in
the course of Peace Treaties. Peace was restored by either treaties that
divided territories for both warring groups, a successfully completed
conquest, or sometimes, bizarrely, by forging matrimonial relations. An
interesting anecdote that indicates this, was the case of Bombay, in India.
India was under the colonial rule of the British, in some parts, and under the
Portuguese and French, in certain other parts. The Island of Bombay, was
ceded to the British Empire, in 1661. King John V of Portugal presented it
to King Charles II as the dowry of his daughter, Catherine, and Charles then
made it over to the East India Company for a nominal rent of 10 a year.
While this is just one case spelled out in words, a major portion of
international relations were forged between states in a similar manner, if not
entirely the same.
In 1815, the Congress of Vienna was convened, where many rules of
International Law, such as those dealing with international rivers,
classification of diplomatic agents and their duties, were laid down. The
Lieber Code, of 1863, passed by the Congress of the United States of
America sought to govern the conduct of the US forces during the United
States Civil War. This was considered to be the earliest recitation of the
rules and articles of war, as required to be adhered to by civilized nations.
The Declaration of Paris, in 1856 followed suit, dealing with the issues of
naval warfare. This declaration made attacks on undefended ships
punishable, and permitted the sinking of enemy ships or their destruction
during war, only after taking the requisite precautions to save the lives of the
crew. Following this, the Geneva Convention of 1864 was created, in
relation to the Laws of War. The Permanent Court of Arbitration, seeking to
make sure that states would resort to peaceful dispute resolution, as
opposed to brazen warfare, was established in 1899. The hallmarks of the
development of international law are the Hague Conferences of 1899 and
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1907, which dealt with the importance of peaceful dispute settlement in the
international sphere. These conferences aimed at formulating rules relating
to land and naval warfare. They laid down the duties and rights of neutral
states, and forbade any form of bombardment over undefended people. The
rights and duties of neutral states were elaborately laid down. The Treaty of
Locarno, between France, Germany, Britain and Italy, among other
countries, dealt with boundary disputes, also required states to settle their
disputes peacefully. However, in 1936, Germany refused to follow the
treaty.
The Modern Era
From 1919 onwards, there was a major change in the international anarchy.
The use of force was not so absolutely acceptable anymore, and the
international community was sought to be streamlined better. The First
World War that commenced in 1914 finally came to an end with the signing
of the Treaty of Versailles. The League of Nations was created soon after
the war drew to a close, seeking to call upon nations to be one in their
endeavour of maintaining peaceful relations, and in building a world
community on the strong foundations of peace. War was expected to be a
last resort, and established that any state waging war in violation of the
contents of the Covenant of the League of Nations, would be deemed an
enemy of the whole comity of states. Nevertheless, the League of Nations
did not quite succeed in its noble attempt, given that there were one too
many factors propelling its failure. The foremost cause was that the League
permitted a withdrawal of membership. States took to flouting rules, and to
cover their shortcomings, they would conveniently withdraw their
membership, leaving virtually no room for the maintenance of peace. In the
midst of this, the Kellog-Briand Pact, also called the Paris Pact, was signed
in 1928. The pact sought to require those who were privy to it, to renounce
war as an instrument of their policy for the settlement of disputes. In 1929,
another Geneva Convention was passed, and signed by 47 States of the
erstwhile world order. Rules relating to the treatment of prisoners of war
were laid down, reprisals involving a use of force were prohibited, and the
provision of medical supplies and other facilities to prisoners of war were
also championed. Subsequently, the attacks by Italy on Corfu in 1931, Japan
on Manchuria in 1935, Italy on Ethiopia in 1935, and Russia on Finland in
1939, led to the winding up of the League of Nations. The Disarmament
Conference, convened under the League of Nations, also proved to be a
failure.
The Second World War, a global military conflict lasting from 1939 to
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1945, ended all attempts to maintain peace. It involved most of the world's
nations, including all of the great powers, organized into two opposing
military alliances named the Allies and the Axis. The actual beginning of the
war dates back to September 1 , 1939, when Poland was invaded by Nazi
Germany. This was followed by declaration of war on Germany, by France
and several countries of the British Empire, and the Commonwealth. As on
the aid date, several countries were already at war, such as Ethiopia and
Italy in the Second-Italo-Abyssinian War, and China and Japan in the
Second Sino-Japanese War.[29] States that were not originally involved
joined the war later in response to events, such as the German invasion of
the Soviet Union and the Japanese attacks on the U.S. Pacific Fleet at Pearl
Harbor and on British overseas colonies, which triggered declarations of
war on Japan by the United States, the British Commonwealth[30] and
Netherlands.[31] The war ended with victory in the Allies hands, and the
politico-social structure of the entire world had completely changed.
With the war coming to a close, the United Nations was formed on October
24 , 1945, marking another milestone in the development of International
Law. The stated aims of the United Nations are facilitating cooperation in
international law, international security, economic development, social
progress, human rights, and the achieving of world peace. The aim was to
replace the League of Nations, to stop wars between countries, and to
provide a platform for dialogue. Despite such a move, there was a mild
spillover of the war into the peaceful period, with the advent of the Cold
War. It was, in essence, the continuing state of political conflict, military
tension, proxy wars, and economic competition after World War II primarily
between the Soviet Union and its satellite states, and the powers of the
Western world, particularly the United States.[32] Although the primary
participants' military forces never officially clashed directly, they expressed
the conflict through military coalitions, strategic conventional force
deployments, extensive aid to states deemed vulnerable, proxy wars,
espionage, propaganda, a nuclear arms race, and economic and
technological competitions, such as the Space Race.[33] Although both
states were, during the World War, allies on the same front, the configuration
of the post-war world allowed room for deviated ideologies and altered
viewpoints from both ends. The Cold War led to the birth of alliances such
as the Eastern Bloc or the Warsaw Pact on the Soviet side, the NATO, on
the American side, and in the middle, the non-aligned movement, depicting
allegiance to neither side. The Berlin Blockade, the Korean War, the Berlin
Crisis of 1961, the Vietnam War, the Cuban Missile Crisis, the Soviet War
in Afghanistan and the Able Archer 83 exercises were the primary incidents
st

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marking the Cold War. The demise of the Cold War came in with the
increase of military and economic pressures on the Soviet, imposed by the
United States. Mikhail Gorbachev, the erstwhile Soviet President,
introduced the liberalizing reforms of Perestroika and Glasnost, meaning
reconstruction and openness. Formally, the Cold War ended after the Soviet
Union collapsed in 1991, thereby leaving the United States as the dominant
military entity, and Russia with a large part of the Soviet Unions nuclear
weaponry.
The UN has remained till date, with an expanding membership. The UN
Charter can be called an International Treaty of sorts. It seeks to regulate the
mutual relations of its members, seeking to encourage the progressive
development of International Law and its codification. The UN has six
principal organs, namely, the General Assembly, the Security Council, the
Secretariat, the Economic and Social Council, the Trusteeship Council and
the International Court of Justice. The UN has, today, attained a sense of
universality, with 192 members having joined the system.
The Nature of International Law
The actual nature of International Law has often been subject to much
debate, given that there are opposing theories as to whether it is, in reality, a
law or not. It has often been touted as a soft law, or sometimes, as a
vanishing point of jurisprudence. Clearly it is one of the only bodies of
law that has no singular document penning all its dimensions on paper, and
instead contains a plethora of sources spanning from customary practice to
treaties and from juristic opinions to judicial decisions. Although a state is
not bound to act in a certain way unless there is a treaty requiring it to do so,
or a customary practice binding them with opinio juris, or the psychological
element that induces a state to believe that a certain genre of behaviour is
considered binding, there are only a couple of instances to such effect in
International Law. All states are not made mandatory signatories to every
treaty, and a custom is an unwritten code or practice that a state is left to
choose to observe and follow. The system of anarchy and equality of states
by according each the right to sovereignty, are one of the major reasons for
International Law to be on a mildly different tangent as opposed to all other
forms of conventional law. International law is not an adversarial system
of law. Many of its rules have evolved from the practice of states and often
these do not stipulate rigid obligations or confer overriding legal rights. The
nature of International Law can be studied in two different ways- the
theoretical approach and the practical approach.
The Theoretical Approach
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The theoretical approach studies International Law as an academicians


subject, as viewed from the point of view of a juristic scholar. If there is an
acceptable surmise that International Law is a law, notwithstanding the fact
that it is of a different kind as opposed to national legal systems, the
question of where it derives its legal validity, arises. The question as to why
it is a law at all comes next. In answer to these questions, there are four
theories in all, governing the understanding of the nature of International
Law.
The Command Theory
John Austin, the proponent of this theory, considered law to be a series of
commands or orders, issued by a sovereign backed by the threat of sanctions
in the event of any disobedience of these commands. This, he named,
positive law. Anything that was not in conformity with this rule, i.e., if the
rules of a system did not surmount to a collection of orders backed by
threats, emanating from a sovereign, they were not positive law. Austinian
thought indicates that International Law is not really positive law, because
there is no command arising from a sovereign. Customary international law
evolves from mere state practice over a lengthy duration of time, and treaty
law evolves through consensual practice. There is no sovereign authority
issuing commands in the wake of the fact that the world comity is an
anarchical set up. Thus, international law, is only a species of positive
morality, and is not something that comes within the ambit of jurisprudence.
The Austinian theory has been discredited by many a scholar. The whole
concept of commands from a sovereign, backed by threats is not descriptive
of the sum and substance of national law, leave alone international law.[34]
The law is not an element that indulges solely in coercion or compulsion,
but one that seeks to regulate the free relations of entities, by laying down a
set of orderly and binding principles. This is precisely the reason for the
fact that the theory fails to explain why states feel bound by international
law, despite the absence of a sovereign authority.
The consensual theory
This theory holds that the essence of the binding nature of International Law
lies in the fact that its existence as a law flows from the consent of states. It
is a positivistic genre of law, based on the tenets emanating from the actual
practice of states. Primarily, it contends that no International Law can be
created without the consent of the state which is to be bound by the said law.
This automatically implies that a newly created state cannot be bound by
pre-existing rules because consent is the source of all legal obligations. The
will of the state creates the International Law that governs it. The theory
15

contends that an actual law based on reality is created, as opposed to a


series of morality based rules created based on what is desired.
A
state may consent in two ways, explicitly, as pacta sunt servanda in the
case of treaties, and implicitly, as opinion juris in the case of customary
practice. The bottom-line is best encapsulated by the phrase voluntary selfrestriction.
This theory is not free from drawbacks. It is not wholly true that consent
alone makes up the states obligation to follow any rule, thereby creating
International Law. There are several rules that are not to be dependent on
the vagaries of state consent for them to be binding. Secondly, past practice
reveals that newly created states are also bound by pre-existing law, and not
only by laws created prospectively after their evolution. Although this is
only by legal fiction, fact remains that this theory is contradicted.
Natural Law theory
The fundamental origin of every creation being nature, the natural law
theory purports International Law to be based on natural law doctrines, or
the law of nature. The theory presupposes an utopist genre of law,
considering man to be a reasonable, rational being. The binding force is
derived from applying the mandate of natural law to the methods of creation
of law as used by states. Theoretically speaking, this point of view does
little to help understand international law. It is not what states should do,
that governs certain rules in International Law, but rather what the states
actually do, that go to make International Law what it is. Natural law does,
of course, govern those concepts of International Law that do not have a
shelf life- such as equity, justice, good conscience, rules of jus cogens, war
crimes and laws of war, and the respect for human rights. But this is about
as far as the theory can go, since it does little to explain where and how the
binding effect comes into play.

Ubi Societas, Ubi Jus


Practical necessity has been the driving force behind the evolution of any
law, and there isnt much difference where International Law is concerned.
Law is essential for any society, and because of this necessity tag, it is ex
hypothesi binding. The rules of International Law are also necessary, as the
units interacting with one another require an established code of conduct,
and a set of rules and regulations to define their conduct. The theory seems
to be immersed in the perceptible ideas of tautology, given that it holds that
International Law is binding, because it has to be binding. States do indeed
16

belong to a world community of sorts, but in reality, each states seems to be


more concerned with its own interests, and the furtherance of the interests of
its own nationals. This theory is exceptionally pragmatic in that it
recognizes that the binding nature of International Law is an extra-legal
concept.
Deconstructionist Theories
The theory contends that there is no legal objectivity to International Law at
all. It was deemed, by scholars of this ilk, such as Koskenniemi, that
International Law is merely a culmination of politics, morality and selfinterest, that can conveniently be put to use to justify or condemn behaviour
based on the standpoint of the states in question.
Value Oriented Theories
Jurists such as McDougal, Laswell and Feliciano perceive international law
as the pursuit of certain preexisting community values, in consistency with
which all rules should be interpreted and applied.
Realist Theories
The contention of this theory is that the real importance of International Law
lies not in the validity or otherwise of its claim to be law, but in the impact
it makes on the conduct of international relations. The theory perceives that
it is enough to justify its existence by surmising that it is accepted as a major
influence on international politics. The question as to whether or not it is
accepted as law is neither here nor there, nor whether it is disobeyed or
obeyed.
Non-Statist theories
The fundamental notion that the law is created by the states for the states is
rejected by this brand of thinking. Such a perception, the theorists contend,
is far too parochial in it understanding of International Law. International
Law cannot be confined within the ambit of the functional zones of states
alone, since it governs a much bigger picture, of which this is only a part.
The Practical Approach
The practical side of International Law evinces the manner in which
International Law is dealt with, by states in their practice. The primary
surmise is that International Law, as a system of law, exists because there is
a body of rules that states believe they are bound by, in their interactions
with one another. Such acceptance of such a body of rules exposes the
weaknesses of the contentions of those that argue that International Law
does not exist.
17

International Law is an integral part of every nations jurisprudential realm.


It is virtually embedded in the day-to-day workings of National Courts,
Foreign Offices, Governmental and Non-Governmental Organizations, and
even in International Organizations. Several decisions pronounced by
National Courts are considered important expositions of International Law
and its application.[35] International Organizations depend on the acumen of
lawyers to conduct their operations.
States, in the International scenario, do not consider themselves to be above
the law in any respect, but instead, consider themselves bound by certain
intangible, and yet binding precepts. There is no modern day instance of a
state claiming that it is not bound by any law. A wrongdoing state is wont to
justify its stance under some defense provision or under any legally
accepted cadre of behaviour by drawing a reference to a law, or its
contents.
Consistency in obeying and fulfilling the legal obligations dictated by
International Law is the highest form of available evidence to prove that
there is, indeed, a working legal framework. There are numerous instances
where the law is violated, flouted, or even misconstrued, but all of these go
to prove the primary existence of the law itself.
A major cause for concern is as to whether, International Law may be
enforced, and if that be so, how. One of the most frequently used arguments
against International Law, is that it cannot truly be enforced. In any and
every national legal system, the law is known to be enforced. If a wrong is
committed, a punishment does, and shall follow suit. But what happens in
International Law? Practice depicts that there is no real, formal enforcement
of the law, as has been seen in the United States illegal invasion of
Grenada, Afghanistan and Iraq. However, the singular point that should be
in consideration is that the law is made to govern the individuals, and it is
not that they are obeyed purely because they are enforceable. It is not the
question as to the quality of law in place, but the law itself, that finds its
place to regulate the subjects it targets. International law has never been
wholly dependent on institutionalized enforcement, and as a natural
corollary, there isnt really a court, or a police force or any similar organ at
the International Level, to do this. Enforcement procedures do exist, such as
the Security Councils power to take action against a state flouting
International Law, [36] the deprivation of legal rights and privileges from
the state involved in the violation, and judicial enforcement through
tribunals and courts.[37]
Having said this, it is imperative that we understand that International Law
18

is also rife with its own drawbacks. It would be fallacious to conclude that
international law is a perfect system. There is plenty of room for
improvement, given that the law has not even reached the peak of its
evolutionary development. The first major factor that strikes one in his study
of International Law, is the astute lack of institutions. There is no
legislature, judiciary or executive, so to speak of, and nor any functionary,
such as the police forces and a similar ilk. This may not seem to be a
serious defect because of the different purpose of international law, but it
does not rule out that there will always be some difficulties, especially if
malefactors are perceived to be able to violate the law with impunity.
Secondly, the overtly flexible and open-ended nature of International Law
does not bode well in the attempt to seek certainty. The lack of clarity in the
meaning of the law itself may prove to be reason enough to spark a dispute
between states. Thirdly, each state may be driven to pursue its own vital
interests, with more preference for it as opposed to fulfilling international
obligations. The rules of self-defense, self-help and necessity become
means for the state to justify such action in the international realm.
Private International Law and Public International Law
International Law is divided into two basic kinds, Conflict of Laws (called
Private International Law), and Public International Law. Private
international law deals with issues arising within particular legal systems,
where foreign elements play a role, thereby raising questions as to the
applicability of the foreign law itself, or the role of the foreign court in
passing the requisite judgment.[38] There are obviously several differences
marking the two as distinct entities. Public International Law essentially
governs relations between sovereign States in their inter-relations with one
another. Private International Law, on the contrary, works to govern private
issues and disputes involving individuals, artificial and natural. Public
International Law is largely made of treaty and customary law, while
Private International Law is comprised of the quintessential rules of
national or domestic laws of different states that compete between
themselves as to answering the question of which one ought to prevail over
the other. Thus, the latter is an actual part of the domestic legal system.
There appears to be little connection between public International Law and
the various municipal systems of Private International Law.[39] The
principal idea underlying Private International Law is the notion that there
are certain circumstances that deem it fit to allow a foreign legal system to
govern a matter, or to allow a foreign court to decide a particular case. The
fact that each State in question has a different perception as far as these
circumstances are concerned, primarily leads to the conflict.
19

While there are indeed a plethora of differences between the rules of


Private International Law in different countries, it must be remembered that
there are several countries that share similar rules. However, this similarity
cannot be solely attributed to Public International Law, as the similarities in
different legal systems derive their foundations from several factors, ranging
from pure coincidence, to convenience. At the same time, it cannot be
dismissed that States do embark upon creating treaties to unify their rules of
Private International Law, which thereby paves the way for Public
International Law to regulate the content of Private International Law.[40]
The Hague Conference of Private International Law, is evidence to such
effect.[41]
For states to incorporate a norm of Public International Law in the wake of
their legal system, it is not only necessary to show that room for such a rule
does exist in their municipal system, but also that there is an opinion juris
warranting that states are obliged to incorporate the same. Private
International Law, on the contrary, does not restrict itself in this manner, as a
judge confronted with a case involving a plausible foreign law intervention
stratagem, do not delve into the depths of what the law maybe, in the other
states. A State deviating from the expected genre of activity in Private
International Law, does not face ostracism or sanctions, as opposed to the
case involving a violation of or deviation from Public International Law.
Public International Law governs states and international organizations to a
larger extent, as opposed to individuals. Private International Law is
concerned with individuals. Public International Law is not necessarily
always a part of Municipal Law, while Private International Law is
essentially so. Public International Law is largely the same for all states,
while the same is not the case with Private International Law. Private
International Law is concerned largely with which forum needs to decide
the matter, and thereby which Law ought to govern the differences. Public
International Law works on an overriding tangent.
International Law: The Vanishing Point of
Jurisprudence?
In Hollands words, International Law is the vanishing point of
jurisprudence, since it lacks any arbiter of disputed questions, save
public opinion, beyond and above the disputant parties themselves, and
since, in proportion as it tends to become assimilated to true law by the
aggregation of States into a larger society, it ceases to be itself, and is
transmuted into the public law of a federal government.[42] Austin
purports that International Law, as Holland has pointed out, is not a real
20

law, given that there are no sanctions, nor any effective machinery.
However, it cannot be believed that this point of view is true in entirety.
Sanctions are not always the most essential elements of law. And if it be
true that they are indeed construed as essential elements, it will be improper
to deem that International Law is devoid of any sanctions whatsoever.
Traditional International Law contained sanctions such as Pacific
Blockades, retorsions, war reprisals and self-defense as accepted
Sanctions. With the advent of the UN Charter, the Security Council is
authorized to recommend or decide upon the measures taken to implement
the decisions of the International Court of Justice. Furthermore, the rules of
Collective Self-Defense, and Self-Defense under Article 51 of the UN
Charter, allow for response to any use of force by states in the International
Realm. The UN Security Council, empowered under Article 16 of the UN
Charter to use economic measures to address "threats of aggression" and
"breaches of peace," has also approved partial or comprehensive sanctions
on only two occasions from 1945 to 1990. By contrast, since 1990 the
Security Council has imposed sanctions on eleven nations, including the
former Yugoslavia, Libya, Somalia, Liberia, Haiti, and several other
nations. Sanctions seem to lend themselves well to international
governance. Instances such as the Lockerbie Bombings case,[43] where
action against the Libyans was taken by the UN for the bombing of a Pan
American flight in 1988 over Lockerbie led to the death of 270 people, and
subsequently instances involving North Korea and Congo are proof enough.
In Hollands view, there is no judge or arbitrator to decide international
disputes. However, in the wake of International Courts, such as the
International Court of Justice, the International Criminal Court and the like,
there are plenty of reasons to accept the contrary view. Although the
International Court of Justice seemingly lacks compulsory jurisdiction, and
has no real effective authority to see to it that its decisions are enforced, and
that there is no binding effect of these decisions, the fact remains that the
forum is, in every sense of the term, a World Court. Parties privy to the
dispute are bound by the decision as elaborated under A.59 of the UN
Charter, and although the rule of stare decisis does not bind the Court,
prudence in exercising discretion allows the Court to follow the path it
traced on an earlier account. Each member of the UN is bound to comply
with the decisions of the ICJ, as under A.94 of the UN Charter. Failure to
perform its obligations paves way for the intervention of the Security
Council. There is room for compulsory jurisdiction, as seen under A.36(2)
of the Statute of the ICJ.
21

Thus, it cannot wisely be construed that International Law is indeed, a


vanishing point of jurisprudence. While it may not fall in line with the
expected framework for all laws, it must be understood that the manner in
which the International Set-up is constructed, with all states being
considered equal and sovereign, there cannot be a conventional legal set up,
warranting a supervening authority over states that seek anarchy.
Weaknesses in the System: The time for change
International Law is hardly free from flaws, as is the case with every other
genre of law. Primarily, there is really no effective authority that churns out
legislative material. Although anarchy is to be preserved at all costs,
maintaining a legislative body to give the proposed legal set up a form and a
tangible structure would bode well. Sanctions backing International Law
ought to be strengthened manifold, considering the fact that the breaches of
International Law are more frequent, and less effectively controlled.
Although Customary law is a very important source, the intervening notions
of persistent and subsequent objectors, and the parametric paradigm of
changing customs cause one too many issues in terms of interpretation and
understanding of the law. It is the very notion that there is no clarity in the
law that paves way for debates that in turn, become disputes. The ambit of
the law must be widened enough to include a codification of customary
practice, as is being partially fulfilled by the International Law
Commission. Furthermore, the rule of stare decisis could be made
applicable to the International Court of Justice, and also, the rule of making
the decision absolutely binding on the parties to the case in question. This
would not prove to be an intervention in their sovereign rights, but instead,
would prove to be a stronger mechanism in assuring the anarchical set up
that the international arena requires.
Another aspect that needs to be curbed is the unholy trend of individual
states, venturing into the arena of peacekeeping by delving into unilateral
sanctions. Unilateral sanctions seem to disturb the balance of equanimity
and peace in the international set up, by sounding out the wrong notion, that
some states are indeed, superior to the rest. Inaction by the international
authorities, namely, the body created as a comity of nations ought not to be
the case. There should, for this reason, be a rule of law, and not a rule of
perceived morality. Intervention in other States is being increasingly
justified, or rather, claimed to be justified, in the name of humanitarian
requirements, which, in reality, is but a mask, a faade to hide the real
intentions backing a states activities. A stronger foothold on the legislative
framework, and an executive body that would enforce the law, would prove
22

to be useful in setting the ground norms for international relations.


International Law today
Law per se, as a framework provided for social engineering, can hardly be
deemed static. As a natural corollary, it would be in the fitness of things to
understand that International Law takes this dynamic nature to a new level
altogether, considering the developments of states in their relations with one
another. Every individual entity in the world community seeks peace and
stability in its relations with other similar entities. This paves way for the
evolution of values, norms and mores, governing social, economic and
political relations. It is only fair, therefore, to understand that International
Law is a product of the vagaries of the comity of nations, and the
environment that shrouds the same. International law has clearly evolved in
accordance with the set notions prevailing in each age, and in order to last
and survive, it is necessary that it be altered in accordance with the
prevalent reality in each era.
There are, of course, myriads of miniscule and major conflicts arising out of
the formulation of new norms. Old norms and the newly evolving trends do
not always fit in to accommodate one another. Thus, the world comity is
posed with the problem, of where to draw the line, between the old
yardsticks, and the new ones. The world comity is called upon to infuse life
into the new norms, while not disrupting the fabric of the already existent
system.
Change is the only constant, and naturally, adaptation to all genres of
change, is a necessity. The resounding developments of technology, have
unleashed into the world, the internet, nuclear weapons, modern forms of
crime such as terrorism, cyber offences and such others of a similar global
cadre. Nuclear weapons and the subsequent arms race have created a furor
among nations, creating some sort of a status quo in Europe, and a balance
of terror world over. Technology has scaled new heights, allowing man to
explore the depths of the ocean, and the vertical heights of outer space.
Mining of the ocean-bed and harvesting of live species under the sea are
now a reality, but nevertheless, sparks plenty of debates as to the rightful
beneficiaries of such exploitation.[44] Outer space has evoked debates, on
the liability of states in the spatial realm, on the question of ownership of a
portion of space that cannot wisely be demarcated as ones own territorial
expanse, state responsibility for issues in outer space,[45] and the arms race
in outer space and of the ever worrisome question of use of force.[46] The
global terror network has sparked much consternation, given the rise in
numbers of terror attacks world over. The key questions terror poses the
23

world are that of state responsibility, in the wake of state-sponsored


terrorism,[47] issues of extradition of suspected and proved terrorists,[48]
and the subsequent question of jurisdictional competence for the trial of a
terrorist once the person is brought forward post-extradition.[49] The
environment and related concerns have been brought within the ambit of
international law, too. The advent of global warming, a new tribe of
environmental refugees, environmental degradation and over-exploitation of
resources have posed a threat to the sustainability of the environment as a
whole.[50] Understanding that natural resources are common to all states,
the international legal framework has embraced environmental concerns
within its purview.[51]
The expanse of international law cannot be confined within the ambit of
words. Its broad spectrum encompasses a plethora of issues, ranging from
human rights, to war crimes, from outer space law to the law of sea. It
would be fitting to thereby infer, that international law has expanded from
its original duty of maintaining peace, to the added responsibility of
determining the consequence of modern interests of states. However, the
raison detre of international law and the determining factor in its
composition remains the needs and characteristics of the international
political system.[52] Quite obviously, when there are several units
comprising a system, there has to be a working model to govern the logistic
dynamics of their interrelationships, whatever may form the basis of the
same, whether hostility or peaceful co-existence. The anarchical set up in
the international realm has made it clear in no uncertain terms, that there
cannot be a world order forged on the foundation stone of hostility. In a
globalized world, no state can stand independent of relations with other
states. Each state is, in many ways than one, so intricately woven into the
weft of an international community, that it is virtually inextricable. And so,
one arrives at some form of international legal order, no matter how
unsophisticated and occasionally positively disorderly it may be.[53]
There are no singular centralized legislating, executing and judicial
authorities in International law. Thus, all that evolves as International Law
is a series of primary rules, and norms warranting a certain genre of
conduct. In many ways, International Law can be deemed a conglomeration
of principles of law as are recognized by states in their own individual
sphere of functioning. A state is thus obliged to follow international law,
because fundamentally, it is driven by the core philosophy of do unto
others, as you expect others to do unto you.

24

Chapter 2- The Sources of International Law


The word source has a plethora of interpretations.[54] Professor
H.L.A.Hart distinguishes between its use in a material or historical sense,
and in a formal or legal sense.[55] The former implies that the term implies
a causal or a historical influence, chronicling the originating points of a
certain rule of law, by clearly defining a place and time marking its
evolution. The latter ignores the date or place of origin of the rule of law,
but places importance on the date and other criteria marking the point of
acceptance of the legal system as binding. The concept of binding law is,
thus, distinguished from morality and social norms; and the law, as it is, i.e.,
de lege lata is different from the law as it should be, i.e., de lege feranda.
[56] This is where a source plays a role, working on issues pertaining to the
law making processes, and is not to be confused with mere informative or
bibliographical sources.[57]
At this juncture, it is imperative to understand the dynamics of the
International Realm, a mechanism fundamentally anarchical in its structure.
There are defined entities in the National set up, marking the Legislature, the
Executive and the Judiciary. This makes it easy to determine where the law
originates from, and what it is, that goes into making the law. A simple case
in point is the Constitution. In the United States of America, India, Australia,
to name a few States, the law of the land is codified in a written form, and it
is from the authority conferred upon the Parliament by the instrument, that
the law originates. However, in the case of the United Kingdom, there is no
written Constitution. A series of conventional practices, and documents
upon which the unwritten Constitution exists, is the only set of rules. Once
again, given that there is a defined set of entities such as the Legislature,
Executive and Judiciary, precious little is left to a scholars research, as to
where the law originates from, or what it contains. The International arena,
however, does not function in this manner. There is no authority to adopt
universally binding legislation,[58] and no compulsory jurisdiction of any
international court or tribunal without consent from the States. The very
subjects of International Law create the rules and principles that they are
bound by. States create International Law, per se, by their interactions with
one another. Conventions are born by State relations, customs and general
practice evolves from State activity in tandem with the need of the hour, as
current events demand of them. Thus, what a State does, says or agrees to at
one point, with time and continual practice, evolves into a rule that binds the
State itself.
Sources of International Law are a varied spectrum. From written material
25

such as Treaties and Conventions, to unwritten codes governing conduct


such as custom, a plethora of sources infuse life in the body of law
considered as International Law. The 19th century viewpoint, as voiced by
the positivists, recognized that a sovereign could limit its authority to act by
consenting to an agreement according to the principle pacta sunt servanda,
and that a treaty bound only those privy to it, as according to the principle of
pacta tertiis nec nosunct, nec prosunct. This consensual view of
international law was reflected in the 1920 Statute of the Permanent Court
of International Justice, and preserved in Article 38(1) of the 1946 Statute
of the International Court of Justice, which still holds well as the single
definitive statement of the sources of International Law. The Court is
required to apply, among other things, (a) international conventions
"expressly recognized by the contesting states", (b) "international custom, as
evidence of a general practice accepted as law", (c) the general principles
applied by the Court were those that had been "the general principles of the
law recognized by civilized nations"- which functioned as a means to avert
non-liquet, and (d) "judicial decisions" and the most highly qualified
juristic writings "as subsidiary means for the determination of rules of law".
This provision has been accepted as constituting a comprehensive list of
sources of International Law.[59] Paragraph 2 of the Article speaks of the
settlement of disputes, ex aequo et bono, which in turn would not prejudice
the power of the court. This is not a source, but a mere indicator of the fact
that disputes shall be settled in a manner that is not entirely based on
International Law, but in fact, goes beyond the realm of International Law,
subject, of course, to the consent of the concerned parties.[60] The doctrine
ascribes to the preceding paragraph, the status of important evidence of the
sources of positive International Law. This trend, is reflected in other
spheres too. Article 92 of the UN Charter warrants that the Statute of the ICJ
is an integral part of the Charter itself. The UN Charter binds almost every
State, with a few exceptions. It is true that even states that have not been
members of the UN, have accessed and been privy to the International Court
of Justice, in pursuit of a solution for their disputes, following Article 93(2)
of the UN Charter. The International Court of Justice is the principal judicial
organ of the UN, as outlined under A.92, and is one of the six principal
organs of the UN. The law applied by the principal judicial organ of the
UN, thus, is the law that binds all the States in the world.
Although Article 38 enumerates the primary sources, it must be remembered
that this is not based on lex specialis derogate generali, and hence, does
not have a hierarchy. Such a hierarchy would be a fallacy, were it installed
in the first place. A simple pointer as to why, is understood by perusing
26

Article 53 of the Vienna Convention on the Law of Treaties, which indicates


that the peremptory norms of International Law are accepted and recognized
by the International Community of States as a whole, and that there can be
no derogation from it, whatsoever.
Article 38 cannot be construed as an exhaustive enumeration of the sources
of Law. State Practice per se, is not actively accepted as a source albeit
enumerated. Mere practice devoid of any opinion juris is not accepted, as it
does not amount to customary practice. Unilateral acts by which States
assume obligations are also excluded from the ambit of the sources. The
rules and norms established by established International Organizations are
also excluded from the ambit of the sources. Although these rules do not
bind the states as such, they bode well for fostering stronger relations among
states.

Treaties
The ICJ Statute speaks of International Conventions, whether general or
particular, establishing rules expressly recognized by the contesting
states.[61] The term conventions, in this context, implies treaties. This
point needs to be reemphasized at each level, particularly to avoid the
confusion of the term with either conferences, or with conventions of the
constitution in the unwritten British Constitution. A treaty refers to an
agreement under International Law, entered into by Sovereign States
amongst themselves, or with International Organizations. Other common
names for treaties are agreements, protocols, covenants, conventions and
exchange of letters. Treaties may loosely be compared to contracts,
considering that the underlying notion is the rule of pacta sunt servanda,
which implies that treaties ought to be respected. A state that is privy to a
treaty alone is bound by it, and a third state is not, unless the treaties
expressly create obligations and rights for third parties. This is called pacta
nec nosunct, nec prosunct. The Law relating to treaties has best been
codified by the Vienna Convention on the Law of Treaties, 1969, which has
been signed and ratified by certain states. Those that have not ratified it or
signed it, may still recognize it as binding, as it is, in many ways than one, a
restatement of customary practice.
Treaties are major instruments that cement bonds and cooperation among
states in International Law, and hence, are rightfully termed as the maids-ofall-work in International Law.[62] This being a fact, it must be understood
27

that cooperation in the international front infuses a state of flux and


dynamism characterized by a continual change in the positions of the states
concerned. Treaties, therefore, can rightfully be deemed as instruments that
infuse change. Most times, treaties come into play in circumstances where
there is a need for solutions, or the settlement of differences between states.
Broadly, treaties can be segregated into two categories each, based upon
two broad mechanisms of categorization. On the basis of their nature,
treaties may be law-making and contractual treaties. On the basis of the
parties privy to them, treaties may be either bilateral or multilateral in
nature.
In relation to the first modality of classification, treaties can be construed
either law-making, or contractual in nature. Treaties may come across as
contracts, but in many ways, they also perform the functions of statutes,
conveyances, memoranda of association of companies, and even in capacity
as the constitution. In national systems, Legislatures exist, which are vested
with the responsibility of making laws. The products of these legislatures
surmount to statutes. On the contrary, a contract simply binds only those who
are privy to the sum and substance of the same. The treaties that seek to
impose obligations on parties and seek to regulate their conduct, are called
law making treaties, or traites-lois. The primary aim of such treaties is to
cover the universal and substantive legal principles, and to conclude an
agreement in pertinence therein.[63] On the contrary, Contract Treaties, or
traites-contract, are those which resemble contracts, and create obligations
for the concerned states alone. Such treaties only cover specific aspects and
concerns of the states involved. Treaty contracts are not law-making in
nature, but are evidence of customary law and state practice. A series of
bilateral treaties containing a similar rule may be evidence of the existence
of that rule in customary law, although this proposition needs to be taken
with a pinch of salt, given that bilateral treaties reflect discrete
circumstances.
Based on the second modality of categorization, treaties maybe segregated
into bilateral and multilateral. Bilateral treaties are negotiated between a
limited number of states, most commonly between entities that are clearly
divided into two sides. A simple case in point is the conclusion of the treaty
between Switzerland and the European Union, where seventeen parties to
the treaty had neatly fallen into two sides, leading the concluding entities to
lie as the European Union on one part, and Switzerland on the other.
Effectively, treaties are express agreements and are a form of substitute
legislation as undertaken by states. Those states that do not sign the treaties
28

are not bound by their provisions.[64] However, this is not the case where
the treaty reflects merely customary practice, or already established state
practice. Even when a treaty rule comes into being, covering the same
ground as a customary rule, the latter will not be simply absorbed within the
former, but, instead, will maintain its separate existence.[65]
Certain treaties are path-breaking, in that they attempt to establish a regime,
which will, out of necessity, also extend to non-parties. A case in point is
the UN Charter, in specific, articles 2(4) and 2(6), and the General
Agreement on Trade and Tariffs. Many a time, treaties also codify
Customary International Law, which implies that they put down, on a
concrete basis, those rules that states have continually followed in the
International scenario, as evidenced by comprehensive state practice.
Classic examples of this are the Vienna Conventions on the Law of Treaties,
and the UN Charter, both of which, in addition to laying down the customary
norms as they are, also progressively lay down the law by improvising and
adding to the extant set of rules.
Customary International Law
Customary International Law refers to practices that derive from custom.
The Statute of the International Court of Justice[66] acknowledges the
existence of Customary International Law in Article 38(1)(b), incorporated
into the United Nations Charter by Article 92.[67] In International Law,
custom largely emerges from the practice and activities of states, the
process of which may take a significant quantum of time, to emerge on the
scene as customary practice. In the Nicaragua case,[68] the ICJ defined
custom as constituted by two elements, namely, an objective one that refers
to general practice, and the subjective one which is acceptance as law,
named opinion juris. State practice can be evidenced in different ways,
ranging from the domestic legislation, to diplomatic and ministerial
statements, from governmental manuals and judicial decisions, to votes cast
in the United Nations General Assembly, and the Security Council.
However, not all state practice amounts to custom. There must be a general
recognition of the fact that the prevalent practice is of such nature, that the
states are under an obligation under the law, to act in that specified manner.
This is called opinio juris. To arrive, thus, at a comprehensive and all
encompassing definition of custom, it must be understood that Customary
International Law comprises all such rules and norms as emanate from
consistent state practice undertaken with the notion in mind that the law
requires them to act in that manner.[69] Establishing this requirement, i.e..,
opinio juris, can be rather difficult, because all that is necessary is a
29

consistent fact-and-case based analysis.[70] The easiest instance is where


there is a treaty that codifies existent Customary International Law. This is
clearly an exhibition of opinio juris, even if it is a treaty that includes
progressive development, it still stands out as an authoritative statement of
law.[71] The Vienna Convention on the Law of Treaties, 1969, is a classic
example of this. Though only about a hundred odd states are parties to it,
most of its principles are unquestionable accepted by states in their
understanding and participation in International Law. Sometimes, even a
collection of bilateral treaties on a single subject evidences custom. The
decisions of International Tribunals, Courts and Judicial authorities are also
evidence of Customary International Law.
The Elements constituting Custom
In understanding Customary International Law, it is necessary to understand
what each element comprising it stands for. Actual state practice of states is
the first requisite for a norm to attain the status of Customary International
Law. State practice, refers to the behavioural component of Customary
International Law. The crux lies in the fact that a number of states perform
such acts or omissions as are constitutive of the customary practice. For a
valid International Custom, to be in existence, it is necessary to prove it by
way of satisfactory evidence that the custom is of such nature that it
received general consent of the states and no civilized state opposes it, or
shall oppose it.[72] As far as both custom and state practice are concerned,
four factors need to be taken into consideration, namely, duration,
consistency, repetition and generality.
Where duration is concerned, it is important to understand that there is no
specified time limit, no rigid timeline as such. It entirely depends on a case
to case basis, and due regard needs to be given to the nature of the usage in
question. Classical international law required the element of duration so that
a particular practice could become part of customary international law. To a
great extent this element consisted in a period of time during which a state
could become aware of another state's practice. This obviously had to
change with the advent of telecommunications since states now have
immediate access to state practice. This situation led to the creation of
instant customary law.[73]
As regards continuity and repetition, the rule laid down in the Asylum
Case[74] albeit a largely contextual decision, aptly encapsulates the
position in International Law, to be one where the Customary Rule must be
in accordance with a constant and uniform usage practiced by states. The
facts of the case were such that Victor Raul Haya de la Torre, the leader of
30

an unsuccessful rebellion in Peru, during the most part of 1948, secured for
himself, asylum in the Colombian Embassy in Lima, Peru. Columbia and
Peru approached the ICJ as regards whether Colombia had the right to grant
asylum. The Court, in the context of the case, sought to study the practices of
states at large in pertinence to asylum, and thereby noticed that there were
one too many inconsistencies in practice, making it difficult to quite clearly
cull out consistent state practice. In the Right of Passage over Indian
Territory case,[75] the ICJ pointed out that when in regard to any matter or
practice, two states follow it repeatedly for a long time, it becomes a
binding customary rule. However, this does not rule out the fact that if states
perceive that a course of action is legal, and perform it, even if only once in
the context of a specific instance, it is logical to infer that there is tacit
consent for the rule involved.[76] What needs to be understood, thus, is that
where there are major inconsistencies, either in the form of acts or
omissions that go against the rule in question, the creation of a customary
rule is precluded. Minor inconsistencies do not punch holes in the creation
of a customary norm, as was laid down in the Fisheries case,[77] where the
dispute involved British claims against Norway for the introduction by the
latter, of national legislation granting exclusive fishing rights surrounding
the Norwegian coastline positioned north of the Arctic Circle, eventually
culminating in the courts support of the Norwegian mechanism of territorial
delimitation of the sea. Another point worthy of noting is that where there is
no practice that goes against a supposed norm of Customary International
Law, even a small quantum of practice is sufficient to create a customary
rule, even if it involves few states, or a very short duration, or the
combination of all factors. A classic example of this was evidenced in the
Legality of Nuclear Weapons Case,[78] where the Court, while dabbling
with the question as regards the existence of a Customary practice
prohibiting the use of nuclear weapons, inter alia, concluded that there
cannot be an oversight where the policy of deterrence was concerned, to
which an appreciable segment of the International Community has devoutly
adhered to, for several years. Naturally, it is only the nuclear weapons
states that subscribe to such practice, and not to all the states in the
International Community. Thus, in sum, it is not necessary that there needs to
be unanimous practice in the same direction by all the states involved.
The element of uniformity has been explained by the International Court of
Justice as being an essential prerequisite before a custom could come into
existence.[79] Absolute rigorous conformity with the purported practice
need not be existent.[80] Just about enough to prove uniformity of practice
in favour of the generic stance is sufficient. A custom must essentially
31

mirror the practice of states in the international realm. Though it is indeed


true that there are a couple of states that are stronger, and influence the
formulation of what is deemed as the law, it must be remembered that as
long as there is uniformity, customary status is deemed to be achieved.
There needs to be an analysis of the nature of the rule, and all opposition it
arouses, since this factor makes a difference when it comes to determining if
it is Customary Law or otherwise. Where there is a lot of opposition to a
proposition, it will not attain a status of Customary International Law. No
unsubstantiated claims will be accepted as evidencing customary law, as
that would surmount to a case of unilateral law-making, which would be an
anathema to the very premise of impartiality that International Law is
founded upon.
Another point to be considered is the strength that the original rule wielded,
in place of which the new rule stands. This catalyzes the creation of instant
customary law, as was evidenced by the evolution of outer space as the
common heritage of mankind, thereby limiting sovereignty rights to airspace
alone.[81] One point that has not been as much as mentioned in myriads of
scholastic opinion and juristic treatises, is the fact that this practice so
spoken of, needs to stand up to the mark of legality and morality. A
hypothetical example would amplify this point. If several states in the
international arena follow a rigorous campaign of persecutions and
genocide, this does not fall within the ambit of custom, or state practice
evidencing custom, for the simple reason that it is an anathema to what the
law, and morality dictates.
The second prerequisite is opinio juris, which refers to the psychological
or subjective notion that drives a state to act in a certain manner.
Essentially, a state acts in a certain way because it believes it ought to act in
that manner under the law, and that it is binding upon them to act in that
manner. The maxim in entirety reads as opinio juris sine necessitatis, and
was coined by Francois Geny, in the course of his attempt of distinguishing
between legal custom and a mere usage.[82] The rule finds roots in the
comity of states doctrine.[83] The definition essentially presupposes that all
rules of Customary International Law are framed in terms of duties.[84] The
crux of the rule is that a state is only bound by what it consents to, what it
deems an obligation for it to observe, and therefore obeys the mandates of
the rule in question. As for culling out opinio juris, one needs to delve into
the world of state practice and the catena of acts and omissions comprising
their conduct and participation in the International Arena. While bilateral
and multilateral treaties, resolutions of the General Assembly and the
Security Council of the UN and documents evidencing International
32

scholastic opinion are valuable evidence of opinio juris, it is not


particularly mandatory that there be official statements signifying its
existence.[85] In addition to understanding what a state does, or refrains
from doing, there needs to be an analysis of the reaction of other states, to
the conduct of the former.[86]
Aside of state practice, another vehicle that orchestrates the creation of new
customary law, are treaties.[87] The ICJ has stated that the norm-creating
process is a perfectly possible one, and does, from time to time occur. It has
further held that it constitutes one of the recognized mechanisms by way of
which new rules of Customary International Law may be formed.[88]
All along, emphasis has significantly been laid on the generic acceptance of
a norm as a custom, in order for it to subsist as part of the law that states are
bound by, in the International Realm.
Jus Cogens
A valuable subset of customary International Law is the conceptual
framework of jus cogens. Jus Cogens refers to those peremptory norms in
International Law from which no derogation is permissible. There is no
clear agreement as regards precisely which norms are jus cogens, nor how
a norm reaches that status, but it is a generally accepted notion that jus
cogens includes the prohibition of genocide, maritime piracy, slavery,
torture, the prohibition of the use of force and the threat to use force, and
wars of aggression and territorial aggrandizement.[89] The most famous jus
cogens norm is the prohibition of the use of force, and the threat to use force
in international relations, a rule that is both crystallized in treaty law[90]
and in Judicial opinion.[91] For a jus cogens norm to be created, the
principle must first be established as a rule of international law and then
recognized by the international community as a peremptory rule of law from
which no derogation is permitted.
Unlike ordinary customary law, which has traditionally required consent
and allows the alteration of its obligations between states through treaties,
peremptory norms cannot be violated by any state through international
treaties or local or special customs or even general customary rules not
endowed with the same normative force.[92] The Vienna Convention on the
Law of Treaties, under Article 53, emphasizes that any treaty that conflicts
with a peremptory norm is void. The treaty allows for the emergence of new
peremptory norms as under Article 64, but does not specify any
compilation, or comprehensive list of accepted peremptory norms. The
number of peremptory norms though generally considered limited have at no
point been exclusively catalogued. They are not listed or defined by any
33

authoritative body, but arise out of case law and changing social and
political attitudes. Generally included are prohibitions on waging
aggressive war, crimes against humanity, war crimes, maritime piracy,
genocide, apartheid, slavery, and torture.[93] As an example, the world
court has regarded the principle that it is impermissible for a State to
acquire territory through war as a peremptory norm.[94] Jus cogens is
different from erga omnes obligations, in that the latter refer to obligations
that are owed to the community as a whole. An erga omnes obligation exists
because of the universal and undeniable interest in the perpetuation of
critical rights (and the prevention of their breach), while a jus cogens norm
exists predominantly due to the level of importance attached to the
adherence to such a norm is high. Examples of erga omnes norms include
piracy, genocide, slavery, torture, and racial discrimination. The concept
was recognized in the ICJ's decision in the Barcelona Traction case.[95]
Reservations to a jus cogens are unlawful.[96]
Acquiescence and Protest- Change agents in the Custom-creation process
Customary International Law essentially emerges from a pattern established
by states in the course of their conduct, along with an absence of protest and
acquiescence by other states.[97] The three tools, in tandem with the rules
of recognition, admission and estoppel form a rather complex weft within
the ambit of which legal principles are related, and are deemed applicable.
Acquiescence is the equivalent of tacit recognition manifested by unilateral
conduct which the other party may interpret as consent and as founded upon
the principles of good faith and equity.[98] Acquiescence by states in the
International arena, to the practices or conduct of other states, without any
form of protest, indicates a presumption in favour of the fact that such
conduct of the state is accorded legitimacy. This automatically implies that
when other states remain silent in response to the conduct of one other state
in the International sphere, there is acceptance of the practice as being
legitimate in the eyes of law.[99] The converse cannot be read into
existence, either, i.e.., that there cannot be an inference that merely because
certain states do not indulge in a certain activity, there is a rule prohibiting
the activity. If states in the International arena abstain from following the
same route as a state in its conduct conscious of being under an obligation to
abstain, a rule prohibiting the activity does indeed exist.
When a new rule comes into place, acquiescence in this context can be a
rather problematic issue. The inference of acquiescence where a new rule is
concerned is rather difficult, for the simple reason that a states silence may
not be due only to acquiescence, but plausibly due to other factors such as
34

sheer lack of interest, or even the diversion of attention towards something


more important and vital to the interests of the state, or it may wish not to
offend gratuitously. Where a state acts in contradiction to an existent
customary rule, and other states acquiesce in this, then that specific state is
deemed not to be bound by the original rule.[100] The position of a state
that has, from the very inception of the customary norm, objected to its
existence, is easy to understand.[101] However, as regards the position of a
state that suddenly takes a deviant stand and refutes obeisance to a norm it
subscribed to, there seems to be one too many issues to settle. But a new
rule that uproots an existent norm and receives support from a majority of
states, will not lose ground on account of the fact that a few states protest
against its continued existence. Persistent and constant protests against a
newly emergent rule may well create a path in favour of creating a
recognized exception to the rule, but this is to be construed as applicable
only after a thorough assessment of the facts and circumstances of the case,
thereby arriving at a conclusion favourable to granting the exception.
The Persistent Objector
Without doubt, a state is in no way bound by any obligatory requirement to
follow a rule that it has not consented to. This norm takes shape in the
context of treaties as pacta nec nosunct, nec prosunct,[102] and in the
context of customary law, finds root in the emerging persistent objector
doctrine. If a state persistently objects to the development of a customary
norm in International Law, it cannot be held to that law when it ripens into a
custom. The doctrine finds its roots in the Asylum case[103] and the
Fisheries Case.[104] In both the cases, the acceptance of the doctrines was
purely on dictum.[105]
The doctrine dictates that the objectors shall be exempted from the norm
after it becomes a custom, so long as the state in question is capable of
rebutting and does rebut, the assumption that it acquiesced to the norm, and
prove that, instead, it exercised clear and consistent objections throughout
the norms emergence. Simply put, where a state does not deem a rule as
custom, it cannot be expected to conform to such a norm. A state, thus, can
be bound by the general practice of other states even against its own wishes,
if it does not so much as protest against the emergence of the rule and if it
does not consistently does so.[106]
Two primary theories run parallel to each other in the context of a states
position as regards customary International Law. The traditional approach
regards obeisance to all rules unless objected to explicitly since the
inception of the rule itself as the fundamental norm. Based on this, one
35

would surmise that a new state would be bound by all customs in force at
the time of their attainment of statehood. The second theory is more obliging
where new states are concerned, contending that a state is permitted to
choose between existent customs, without regard to what other states
contend.[107] This approach is rather disruptive, in that there will be a case
of constant choice, and every time a state is found to act in contradiction to
an established custom, it would conveniently purport subscription to the
alternative school of thinking as regards the custom itself. The former
approach is rather rigidly typecast, demanding complete obedience.
Absolute obeisance to rules would leave no room for change, and would
witness the continued applicability of a redundant genre of principles. What
is required, thus, is a middle-path of sorts, cutting across through both
theories.
Presently, the doctrine is accepted as a valid defense to the binding effect of
customary International Law,[108] however, it is relegated to taking a backseat in the event when it is raised in the context of peremptory norms, or jus
cogens. Norms develop over time, and some, rather quickly. Since the
inception of the norm itself, and in some rare cases, since the inception of
the concerned state itself,[109] certain states may choose to object to the
custom in content and form in which it originated, and consistently object to
its use and application. However, as far as consistency and objections as
terms fit for interpretation are concerned, there is still a considerable set of
unsettled questions, warranting doubts specifically as regards the
evidentiary burden upon the states to prove their consistent objection.[110]
Arising as a mildly deviant, emergent offshoot, is the doctrine of subsequent
objector, a theory which purports that a state may choose to take a stance
against a custom supported earlier by them, or not opposed earlier by them,
claiming a case of a change in fundamental circumstances as the reason
precluding its continued applicability, or even indicating the plausible
redundancy of the norm in the wake of a changed world. Under the
subsequent objector doctrine, states can gain an exemption to depart from an
existing rule of customary law only by securing the acquiescence of other
states. The generic trend is such that a subsequent opt out right is untenable
because other states have come to rely on the subsequent objector
originally conforming to the rule. [111]
Behaviour and acts deviating from the already established set of customary
rules are instrumental in the creation of customary law. Old rules are
displaced by new ones, and new law keeps emerging in the dynamic realm
that International Law is. As newer customary rules emerge in an attempt to
36

displace old ones, there are instances of both rules existing side by side
until such time there is a choice of one, thereby explicitly overruling the
other. This amplifies the fact that states are bound by all norms, except those
that they dissent from since the rules inception.
Regional Customary Law
Customary Law need not be an all-encompassing set of norms. It is likely
that there are customs specific to certain portions of the world, connected
geographically- as is the case of the rules governing the European Union,
Latin America, the Organization of American States to name a few,[112] or
connected ideologically, like states that subscribed to the notion of nonalignment during the Cold War.[113] It may also be exclusive as regards the
relationship between two states alone.[114]In the context of a regional
custom, the standard of proof required is far higher than a custom whose
applicability is not confined to specific zones. The state that alleges the
existence of such custom as between itself and another state has the burden
of proof to prove what it asserts.[115] In the Right of Passage over Indian
Territory case,[116] the ICJ recognized the custom claimed by Portugal,
namely, that there was a right of passage over Indian territory as between
Portugal enclaves, as existent.
The quintessence of local or regional custom depends upon the particular
activity of one state being accepted by the other state as an expression of a
legal obligation, or the assertion of a right. This distinguishes general
custom from local custom, being that in the former, a considerable majority
of states in support of the norm in question is a prerequisite for the
establishment of the norm as a custom.[117] Local customs need the
acceptance of only the concerned states, whether it is the both states privy to
a custom, or the couple of states proximally located or ideologically bound.
General Principles of Law
Many a time, courts in the International sphere may find the absence of laws
on a particular issue. This leads the courts to use existing rules, or general
principles that guide the existent legal system, whether they b referred to as
emanating from justice, equity or good conscience. Since there is no real
legislating authority in the International Realm, and that states seek to ensure
the continued maintenance of the anarchical balance of power, there happen
to be a number of situations seeing issues in need of legislative assistance.
These create what are commonly understood as gaps in the law, and are
termed as Non-Liquet.[118] This lacuna has paved the way for the
emergence of the use of general principles of law, as recognized by
civilized states, by the International Court of Justice in deciding cases.[119]
37

These general principles are deemed capable of closing the gap in the
extant legal system, and assist the courts in coming to a clear conclusion.
[120]
The General principles include within their ambit, a wide spectrum of legal
principles. Natural law scholars hold that all principles of natural law are
all included, while Postitivists hold that this is merely a subheading under
treaty and customary law, in order to be able to include all the remaining
elements under its ambit, aside of all things that require consent. Principles
emanating from procedural law and the law of evidence, such as estoppel
and res judicata, and from natural law, such as equity, justice and good
conscience are the most commonly used general principles in deciding
cases in the International sphere.
In the Chorzow Factory case,[121] the PCIJ recognized that every violation
of an agreement involves an obligation to make reparation, in the context of
a wrong being consistent of indemnity corresponding to the damage caused.
In the Corfu Channel case,[122] circumstantial evidence and its
evidentiary value, as being admitted in all legal systems, and its use in
International decisions being evidence of its importance in International
Law. The court went on to enunciate that res judicata, the rule that
precludes a matter from being subject to re-litigation if it has already been
decided by a final court of law, as being a part of the general principles of
law.[123] Similarly, the rule of estoppel was also deemed a part of the
General principles of law.[124]The full compensation of prejudice, by
awarding to the injured party the damnum emergence and lucrum cessans is
a principle common to the main systems of municipal law, and therefore, a
general principle of law which may be considered as a source of
International Law.[125] Acquired rights are also deemed a part of the
general principles of law.[126]
The most important of all the general principles of law is the rule of Good
faith.[127] The principle has been exposited under Article 2(2) of the 1970
Declaration on Friendly Relations, and in the Nuclear Test cases.[128]
Good faith, also known by a term of reference in Latin, bona fides refers to
good, honest intention (even if they eventually produce unfortunate results)
or belief. In law, it implies the mental and moral state of honesty, conviction
as to the truth or falsehood of a proposition or body of opinion, or as to the
rectitude or depravity of a line of conduct.[129] This concept is important in
law, especially equitable matters. Good faith, conceptually speaking, is not
really a source of an obligation where none would exist otherwise.[130]
Equity is another major part of the General principles. It refers to the set of
38

legal principles, in jurisdictions following the English common law


tradition, which supplement strict rules of law where their application
would operate harshly. In the Diversion of Water from the Maine case,
[131] it was held that what are regarded as principles of equity, have long
been treated as part of International Law and have been applied by the
Courts. The ICJ has a long history in deciding cases in accordance with
equitable principles.[132] The use of equity has generally been more
pronounced in the 1982 UNCLOS cases, specifically under Article 59,
which provides the basis for the resolution of conflicts regarding the
attribution of rights and jurisdiction in the exclusive economic zone, and
Article 83, which deals with the delimitation of the continental shelf
between States with opposite or adjacent coasts; and in the context of the
Convention on the Law of non-navigational uses of International
Watercourses, 1997.
Judicial Decisions
Judicial decisions are to be used as subsidiary sources of law, as subsidiary
means of interpretation and determination of the rules of law, rather than an
actual source. Under Article 38(1)(d) of its Statute, the ICJ is also to apply
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. It is difficult to actually quantify the extent of
influence these materials have on the development of the law. The decisions
of international and municipal courts and the publications of academics can
be referred to, not as an actual source of law as such, but as a means of
recognizing the law established in other sources. In practice the
International Court of Justice does not refer to domestic decisions although
it does invoke its previous case-law. Pleadings in cases before the ICJ are
often replete with references to case law and to legal literature. Decisions
of varied courts before the ICJ hold persuasive value, to such extent, as
clarified by Article 59 of the ICJ Statute itself, that even the decisions of the
ICJ bind none aside of those privy to the case as parties to the dispute.
There is, evidently thus, no rule of stare decisis in International Law.
Nevertheless, oftentimes, it has been found that the Court does refer to its
past decisions and advisory opinions to support its explanation of a present
case.
Judicial decisions hold a rather important position in the big picture. Courts
do not just determine the law, but actually play a pragmatic role in
determining the course of its evolutionary development. In tracing the
development of the law, one can find plenty of milestones with the hallmark
39

of judicial opinion. In the Anglo-Norwegian Fisheries case, [133] the


statement of the criteria for the recognition of baselines from which to
measure the territorial sea, later found place in the 1958 Geneva
Convention. In the Reparations case,[134] the court recognized the legal
personality as possessed by international institutions. The policy of
reservations to treaties was accorded recognition as having legal standing,
in the Genocide case.[135] In the Nottebohm case,[136] the Court upheld
the principle of effective nationality, which began to be named the
Nottebohm principle, where the national must prove a meaningful
connection to the state in question. Until this decision, this principle was
previously applied only in cases of dual nationality to determine which
nationality should be used in a given case.
The reasoning that resides behind a conscious choice of excluding stare
decisis in International Law, is that the International Realm is largely
dynamic. What was decided at an early point of time might have well been
what the situation demanded at that juncture, but clearly need not be fitting
in the light of a similar case, later in the future. For instance, the Lotus case,
[137] that created the Lotus principle or Lotus approach, was originally
considered an epoch making foundation of International Law, which states
that sovereign states may act in any way they wish so long as they do not
contravene an explicit prohibition. This principle, however, was later
overruled by Article 11 of the 1958 High Seas Convention, which
emphasized the fact that only the flag state or the state of which the alleged
offender was a national had jurisdiction over sailors regarding incidents
occurring in high seas.
Judicial decisions are inclusive of all arbitral awards, and also decisions of
municipal courts. The Alabama Claims Arbitration,[138] heralded the
new era of peaceful settlement of International disputes in the course of
which increasing use was made of judicial and arbitration methods for
conflict resolution. The case predominantly involved a vessel built in
Liverpool, to the specifications of the concerned confederate states, which
succeeded in capturing some seventy Federal ships during the American
civil war. The US sought compensation after the War for the depredation of
the Alabama, and other ships, and the Tribunal accepted this. Britain had
infringed the rules of neutrality and hence paid compensation.
The decisions of municipal courts are also an invaluable source of
information as regards customary International Law, or even state practice.
[139] In addition to these, the decisions of the European Court of Human
Rights, and the Inter-American Court of Human Rights and other similar
40

forums hold importance. All of these decisions, however, at all times,


remain only persuasive in nature.
Juristic Writing
Academia is a very clear and consolidated rendition of the law, and the
ways in which it is to be interpreted. Juristic writings constitute the second
part of the source as mentioned under Article 38(1)(d). Since the inception
of International Law, immense importance has been vested in the perusal of
the scholastic opinion of a plethora of writers in International Law, such as
Gentili, Grotius, Pufendorf, Bynkershoek and Vattel to name a few. The
origin points of International Law are marked with the opinions of scholars,
commencing with the Naturalist and Positivist schools of thinking. With the
emergence of the Positivist school, scholastic opinion began expanding
horizons of thinking, where interpretations of actual events were included
alongside the actual text of the law.
The scholarly works of prominent jurists are not sources of international
law but are essential in developing the rules that are sourced in treaties,
custom and the general principles of law. This is accepted practice in the
interpretation of international law and was utilized by the United States
Supreme Court in The Paquete Habana case.[140] Juristic opinion is a
rather useful ready source of practice of states as regards International Law,
and is evidence of principles that form customary law. Textbooks and
articles enable the discovery of what the law is on a particular point, rather
than being the fount of actual rules.[141] However, there have been several
writers who have paved the way for the evolution of specific laws.[142]
Besides, academic thought stimulates opinions and existent values, and also
points out the loopholes that exist in any legal system.
Another dimension to scholastic writing emanates from Publicists and
policy analysts, who, through their writings, provide immense information
on the position of a state as regards a particular issue in International Law.
States, too, in the presentation of claims rely upon the points of view as
taken by policy analysts and publicists in their country. The value of the
writings of policy analysts, however, at no point, should be underestimated
as being reflective of a biased viewpoint, because it ultimately boils down
to the reflection of the sentiments of a segment of people represented by
such a publicist.
Ex Aequo Et Bono
Ex aequo et bono, a Latin term that means according to the right and good
or from equity and conscience, is a found under Article 38(2), of the Statute
of the International Court of Justice which provides that the court may
41

decide cases ex aequo et bono, but only where the parties agree thereto.
Dynamic changes in international relations, typified by the growing
international investment disputes, have brought the concept of ex aequo et
bono back into focus.[143] Parties are increasingly faced with little or no
law in the applicable field, or a situation where one or both parties mistrust
the law or its application to their particular dispute. Coupled with this is a
growing interest in the expeditious resolution of disputes in emerging areas
of law. The expertise of international adjudicators may be viewed as
outweighing reliance on inapplicable law. A system which depends on
conceptions of fairness may also be considered preferable to the law of an
applicable state.[144]
Developing Sources of International Law
Broadly speaking, sources may be segregated into two groups, namely, one
that deals with formulating the law- which includes treaties, customs and
general principles of the law; and two, those sources that evidence these
rules, which includes juristic opinion and judicial decisions. However, it is
not wholly impossible to have sources that involve a mix of the two.
As new sources that seem a chip of both blocks emerge, the dividing line
between both forms seems to slowly disappear. Some of the new sources
include resolutions of the UN General Assembly and the Security Council.
[145] Certain resolutions of the UN General Assembly are binding on the
member states, while others are largely recommendatory and crystallize
opinions. Mostly, the General Assemblys resolutions evidence state
practice, and are means to determine the existence of opinion juris.[146]
This is because, when states vote, they effectively testify to the fact that they
either agree, or disagree with a particular point of view. An example for
this is the case of the 1960 Declaration on the Granting of Independence to
Colonial Countries and Peoples, which was a Resolution that was signed by
all members, with nine abstentions. It became some sort of a path-breaking
resolution, which recognized self-determination as a right, and also
demanded that colonial rule be put an end to. Another agreement is the Outer
Space Declaration of 1963, which led to the evolution of new rules that
were laid down to govern access, use and the exploration of outer space.
Unilateral acts of states also constitute sources of International Law.[147]
Though, strictly speaking, these are not sources of law, they can be
construed as constituting sources of obligation.[148] Usually, unilateral acts
are taken to gauge the point of view of the state in question.
The Hierarchy of the Sources
Article 38(1) enunciates the general sources of law that constitute the
42

International Legal regime. In the order it enunciates, Treaties come first,


followed by Customary International Law, General Principles of Law and
Judicial decisions and Juristic Writings in that order. The General
principles are entirely complementary to treaty law and custom, considering
that they are predominantly applied for the sake of non-liquet.
The sources that are of more recent origin are generally accepted as more
authoritative and specific rules take precedence over general rules. Jus
cogens rules are peremptory norms that cannot be deviated from by states as
a consequence of which they possess a higher status than jus dispositivum,
or the law subject to the dispensation of the parties, or normal international
rules. It can be altered only by subsequent norms of the same status. Rules in
the former category include the prohibitions against genocide, slavery, and
piracy and the outlawing of aggression. The Vienna Convention on the Law
of Treaties provides under Article 53 that a treaty will be void if, at the time
of its conclusion, it conflicts with a peremptory norm of general
international law.
Further, the wrongfulness of a state action is precluded if the act is required
by a peremptory norm of general international law. International law also
has established a category of erga omnes obligations, which apply to all
states. Whereas in ordinary obligations the defaulting state bears
responsibility toward particular interested states, in the breach of erga
omnes obligations, all states have an interest and may take appropriate
actions in response.
Where does Article 38 stand today?
Article 38 of the Statute of the International Court of Justice has paved the
way for ample discussion, debate and disputes, in relation to its standing
and treatment of the conceptual scope and framework of the sources of
international law, more so in the past few decades. After a brief
understanding of the contents of the article, it stands clear that the purport of
the provision is to essentially determine exactly what the ICJ may deem and
apply, as international law, while it expounds the law in relation to disputes,
or requests for advisory opinions. As a consequence, therefore, scholars,
lawyers and everyone who has anything to do with international law, almost
automatically begin to look up just the four sources as Article 38
enumerates, and in the process, completely rely upon what Article 38 states,
that is, these are the only sources of international law. However, one must
not forget that the article itself was a part of a statute that was prepared as
early as the 1940s, and the world today has traversed a considerably long
43

trajectory from the era, to where it is today. Given the number of events one
can pin down, the number of changes as the times have advanced, it is in
order that we review Article 38, and what has been, but a blind reliance
upon it.
A cursory glance at Article 38 indicates the nature of the international
anarchy and legal order that the statute intended to achieve. International
law, at that juncture, presumed that states were the only subjects of the law,
and therefore, were the principal actors. The article is in pursuance of the
same genre of philosophy, where it completely ignores the role of
international organizations, corporations, individuals, non-governmental
organizations and other non-state actors. Furthermore, the article is
emphatic upon a consent-based legal system, which hinges upon voluntary
action. States are essentially bound to follow only those norms that they
consent to, whether by signing a treaty, or by allowing a usage to burgeon
into a custom without their persistent or subsequent objections, or by putting
together what amounts to the generally accepted principles of law- which
need to be accepted by the concerned state itself, or even by putting on the
anvil the general practice of states as accepted and recognized by the state
concerned, as well. This is not quite the scenario in the present realm,
considering that states are being bound actively by norms that they have not
quite consented to. Many a jus cogens or even erga omnes obligations have
not really been consented to, in terms of a definitive approach to either term.
The active role of the Security Council and the mandates under Chapter VII
indicates the passage of resolutions by a fifteen-state body, which binds
other states though in practice, they have not consented to the same.
A simple perusal of article 38 indicates its incompleteness. The role of
resolutions, the extent of ambiguity shrouding the principles of customary
international law and general state practice are conspicuous by their
absence. States are in general concurrence on certain norms as constituting
jus cogens and erga omnes obligations, but nothing in the statutory matrix
depicts the attachment of any importance to the principles, or how one may
actually arrive at the conclusion that a certain norm belongs to the purport
and ambit of customary international law. The article remains ignorant of the
notion of persistent and subsequent objectors and their role in obstructing
the mushrooming of customary international law. It simply indicates that a
notion of custom is a source of law, but fails to note that the importance of
certain norms may be eroded by objections raised by either states that began
objection since the inception of the custom itself, or, subsequent to its
emergence at the inception of the state itself. Another facet that has been
ignored is the role of regional custom. By excluding epoch-making legal
44

considerations such as these, article 38 fails to deliver in the present era.


The consequences are hardships aplenty, since states face the obligation to
discharge a heavy burden in the pursuit of proving that it is either bound, or
refuses to be bound by the said practice itself. What really constitutes state
practice, how many states are necessary to follow a particular course of
action for it to burgeon into custom, how is opinio juris to be determined,
and what is the status accorded to the resolutions of the UNSC and the
UNGA, are only just the tip of the iceberg.
Using the phrase civilized nations, article 38 is still couched in the postworld war time, where ideological hegemony and the superior status
assumed by some states marked the legal mindset of the founding fathers of
the UN system. Today, steeped in the ideology of equality of states and
sovereign authority, states have begun to work towards creating a system of
inter-state recognition that has in the process, of built the foundations for an
anarchy. In the wake of such changes, it would be wise for the Article to be
reworked to speak of states, rather than civilized or uncivilized, for it is
really no longer a world where a true hierarchy of states exists. Another
fallacious facet to article 38 is the importance attached to the teachings of
highly qualified publicists of various nations, and to the customary and
state practice in the world order, falls apart in the wake of an anarchy
comprising of nearly 200 states, and still more as they emerge afresh. Back
then, there was a miniscule arrangement comprising 40-odd nation-states
that built up the international anarchy, and consequently, the ideals attached
to the aforementioned were feasible. However, in todays world, that
feasibility is lost in the burgeoning number of states, and in the varied
practices of states. A classic humdinger is the case of the United States
actions in Iraq and Afghanistan, which took the world by surprise as it
involved a case of taking law into its own hands. The act was a flagrant
violation of international law, and naturally, no other state can claim to
follow it because it was in effect, the practice of a civilized nation.
By laying down the sources in the form of a vertically-ordered hierarchy,
with room for the ICJ to be the final decision-maker as to the law, there has
been a case of fragmentation of the law itself. The ICJ is not the only
international dispute resolution body; there are plenty of tribunals,
arbitration-based organizations and courts. With their presence among the
international dispute settlement machinery available for states, it seems too
confined a notion that only the ICJ would be free to determine the last word
on the question of sources.
International Law cannot afford to be watered down. Starting at the top,
45

there are so many questions as to what the law itself is, and where one
could fathom the fount, or the true source for something that has in effect,
come to be the law. True, indeed, the branch merges into what has come to
be known as soft law, but, one cannot turn a blind eye to the areas that
scream hoarse for improvement, and can, in fact, be improved. The sources
are fraught with irregularities, as questions still remain. There is no doubt
that Article 38 still leaves a lot to be desired. Of course, there is no
question as to the value of the provision itself, because in many ways than
one, the article has helped define international law itself, as a discipline
distinct from politics and international relations. It has definitely aimed at
creating a mature legal framework of sorts, but hasnt seen the process
through. However, merely because of these lofty ideals, one cannot allow
the law to stultify in the confines of article 38. As dynamic as society is,
law needs to be one step ahead to ensure that there is a means to keep
actions and omissions in check. Therefore, reviewing Article 38 would
bode well to the process of evolution of international law.
The ILC and Codification- Progressive steps in the process of
Creating Law
Private codification efforts have been rife, allowing for the development of
International Law, however, nothing has reached the scale and magnitude
that the ILC has, effectively. Intergovernmental regulation of legal questions
of general and permanent interest may be said to have originated at the
Congress of Vienna, in 1814, where the provisions of law pertaining to
International rivers, abolition of slave trade, ranks of Diplomatic agents
were all adopted by the signatory states of the Treaty of Paris, 1814. Since
that point of time, International legal rules have been progressively
developed and codified, on a plethora of issues ranging from the laws of
war, the pacific settlement of disputes and the unification of private
international law, among other things. As the First World War drew to a
close, there was immense importance attached to progressive codification
of International Law.
Over the years, several attempts have been made in the effort to codify
international law. The work which culminated in the creation of the
International Law Commission was began in the Resolution of the Assembly
of the League of Nations of 22 September 1924, which established the
Committee of Experts for the Progressive Codification of International Law,
consisting of 17 members. The Committee was primarily established for the
purpose of making recommendations as to which issues required to be
addressed in international law and the steps desirable to that end. In 1927,
46

after discussions with the Governments and the League Council, the
assembly decided to convene a diplomatic conference, seeking to codify the
law on nationality, territorial waters and the responsibility of states for
damage caused in their territory to the person or property of foreigners.
[149]
The committee's work led to the League of Nations Codification Conference
of 1930, which dealt mainly with the issues of nationality laws, territorial
waters and state responsibility to damage caused to foreign nationals. Fortyseven governments were represented in the codification conference. At the
end of this, the instrument emergent therein touched only upon the issue of
nationality.[150]
On 25 September, 1931, the League Assembly adopted an important
resolution on the procedure of codification, with the main theme being the
strengthening of the influence of governments at every stage of codification.
[151] When the Second World War broke out, aside of practical precedents
being created by practice, theoretically, nothing was done, where
codification was concerned.
The United Nations adopted this principle from the League's resolution in
Article 13(1) of its Charter, which states that the General Assembly shall
initiate studies and make recommendations for the purpose of encouraging
the progressive development of international law and its codification. On
December 11, 1946, The General Assembly passed Resolution 94, seeking
to establish a committee of legal experts to make recommendations to the
UN Secretary-General on the modes in which the General Assembly could
encourage the progressive development of international law and its
codification. The committee of experts recommended the establishment of a
permanent UN commission to promote these objectives. This gave way to
the emergence of the ILC, or the International Law Commission as it is
known. On November 21, 1947, the UN General Assembly passed
Resolution 174, which provided for the creation of the International Law
Commission in order to fulfill the obligations of the Charter.[152] The
statute of the Commission defined its purposes as being the Promotion of the
codification of International Law, and solving the problems within public
and private international law. States were divided in their opinions. Some
states construed codification and progressive development as being one,
while the other states perceived marked differences. Either-way, they
believed that it would be necessary to conclude international conventions
before the results were binding on states.
Practice of the ILC reveals that its work involves both, codification and
th

47

progressive development of the law.[153] Some of the Commissions work


that is worthy of mention include the formulations of the Nuremberg
principle, the formulation of clear cut precepts as regards the question of
International Criminal Jurisdiction in its first session in 1949, the Draft
Statute for the ICC in 1994, the Draft Code of Crimes against the Peace and
Security of Mankind in 1996, and the Draft Code for State Responsibility.
The International Law Commission's work has led to the creation of a
number of treaties and other works of international law that are key to the
present international legal order such as the Vienna Convention on the Law
of Treaties, The Vienna Convention on Succession of States in respect of
Treaties, The Vienna Convention on Diplomatic Relations, The Draft
Articles on the Responsibility of States for Internationally Wrongful Acts
and the International Criminal Court, first proposed in December 1948 at
the request of the UN General Assembly.
The ICJ has decided several cases in keeping with the work of the ILC. The
Gabcikovo-Nagymaros Danube Dam case,[154] is a standing example. In
the words of President Schwebel, the judgment is notable because of the
breadth and depth of the importance given in it to the work product of the
ILC- particularly the Draft Articles on State Responsibility. This rather
illustrates the fact that just as the judgments and opinions of the Court have
influenced the work of the ILC, so the work of the Commission may
influence that of the Court.[155]
Other codifying entities include the UNCITRAL and the UNCTAD, which
have expanded the ambit of available material in the fields of economic,
financial and development activities. There are also temporary organs such
as the Committee on the Principles of International Law, which have worked
towards the production of various declarations and statements. The ILO,
UNEP, UNFCCC and the UNESCO have also played an integral role in
codification. Private codification efforts have been rife, allowing for the
development of International Law, however, nothing has reached the scale
and magnitude that the ILC has, effectively.

48

Chapter 3- International Law and Municipal


Law
International Law is the law that governs the inter-relations between states,
and international organizations. The term is 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 the rights and liabilities of sovereign states rather than private
citizens.[156] International Law governs the state in its capacity as a
sovereign, in its relationship with other sovereign states. To a lesser degree,
international law also may affect multinational corporations and
individuals, an impact increasingly evolving beyond domestic legal
interpretation and enforcement. Municipal law, on the other hand, refers to
the law that governs the domestic realm, or the inner workings of the states,
thereby dabbling with private citizens. The term Municipal Law is given
by International Lawyers, to the national or domestic laws of the state. It
essentially seeks to govern the state in its capacity as a sovereign in relation
to its private citizens.
The relationship between International Law and Municipal Law is rather
relevant in the study of International Law. Municipal law acts as a source of
law, in that it evidences state practice, customary law, and even lends some
of the general principles of law to International Law, succinctly filling the
gaps in the International Legal realm. International Law largely deals with
the study that combines two main branches of law, namely, the law of
nations called jus gentium and international agreements and conventions,
called jus inter gentes, which have different theoretical foundations and
should not be confused. Municipal law fills the interstices that prevail in the
nearly all-encompassing system that International Law aspires to be. The
relationship between International Law and Municipal Law is fraught with
theoretical problems.
Ample literature is available on the confluence of both streams of law, and
these are equally indicative of two theories that govern the applicable
dimensions of the two laws when they function in conjunction with each
other. However, neither theory attempts to distinguish both, nor provides
one with primacy over the other. Both theories, rather, justify the existence
of both laws in the real sense of the term. The two primary theories
governing International Law and Municipal Law, and the relationship
between the two are the dualist and monist theory. Alongside these, there is
the transformation theory, and the delegation theory that govern both streams
of law, as well.
49

The Dualist Theory


The Dualist theory, also called the pluralist or positivist theory, is a school
of thought that assumes that International Law and Municipal Law are two
different systems of law, that exist independently of each other.[157] The
central question that arises, now, thus, is as to which of the two are superior
to the other. The theory points out that both streams of the law are exist
separately and cannot purport to have an effect on, or overrule each other.
This is essentially due to the fundamentally different legal structures
employed by both laws on the one hand as by the state, and on the other
hand, as between states.
The chief proponents of this theory are Triepel and Anzilotti. Triepel
maintains that for Municipal Law, the subject is essentially the individual,
while for International Law, the subject is the state. Given that the subjects
are not the same, there has to be a transformation of one to the other. This is
called the Transformation Theory. However, Triepels claim cannot be
accepted in astute entirety, for the simple reason that dynamism in the
International milieu has warranted the fact that the individual is
progressively being recognized as a subject of International Law, with the
Nuremberg and the Angola Trials . in Anzilotis point of view, however, the
two laws are to be conditioned. He holds that state laws are imperatival and
hence have to be obeyed, whereas International Law is largely in the nature
of promises, and therefore is necessary to transform promises into
commands before making them applicable to the municipal sphere. He went
on to state that the position is not necessarily sacrosanct, in the sense that
law is not necessarily a command, because people obey the law when they
consent to it, and often times, people obey the law because of the possible
gains that may accrue from it.
The Dualist theory has been best exhibited in the model of British Law. A
treaty has no effect in English domestic law, unless it is expressly made a
part of it. Once it is made a part of the law, it is entirely enforceable in the
courts. However, merely because it is a part of English Law does not mean
that it can give rise to causes of actions for individuals. If the treaty alters
domestic law, or requires the raising of revenue or alteration of taxation,
only then can it give rise to a cause of action for an individual. An
unincorporated treaty has no formal standing in England. A treaty in conflict
with the common law will, consequently result in the prevailing of the latter.
An incorporated treaty becomes a part of the law of the land, but does not
enjoy any special status as such. It shares the same relationship with other
legislations, as two statutes in the domestic realm do. At all times, the
50

Parliament remains supreme, given that it can pass legislation that can
override a treaty, even if it binds the UK in the International sphere.
Dualism requires a translation of International Law into Municipal Law.
Devoid of translation, International Law is really no law at all if it is not
National Law. A state accepting a treaty, but neither adapting its National
Law to conform with the treaty, nor creating a National Law explicitly
incorporating the treaty, violates International Law.
Dualists believe that judges in National Courts never apply International
Law unless and until the same is translated into National Law.[158] As a
rule, the Dualists support the supremacy of International Law. International
Law must be translated into National Law, and existing National Law that
contradicts International Law must be translated away, i.e., it must be
suitably modified or eliminated in order to conform to such translated
International Law. Such translation, however, poses a problem to national
laws that are voted after translation. Although it is possible for the
translation of national law to match International Law, the translated law
can be overridden by another national law on the principle of lex posterior
derogate legi priori, a norm which means that the later law repeals the
earlier one. This means, thus, that a state can effectively violate
International Law.[159] A dualist system thus, needs continuous scrutiny to
see to it that a later law does not violate international Law.
Dualism recognizes the fundamentally different nature of inter-state and
intra-state relations, and the different legal structures that are put to use in
the course of the interactions between the state and the individual, and the
state and other states. Where municipal legislation permits the exercise of
rules of International Law as part of its regime, on sufferance as it were, this
is an example of the supreme authority of the state within its own domestic
jurisdiction, rather than any influence maintained by International Law
within the internal sphere.[160]
Monism
Monism pursues a contention that is diametrically opposed to the
contentions of the Dualist school of thinking. The theory perceives
International Law and Municipal Law as one, and holds that a states
conduct at the national and International level are governed by the dictates
of both sets of rules, national and international, that the state has consented
to be bound by. Monist states make a distinction between International Law
in the form of treaties, and in the form of jus cogens.
Monism does not require a translation of International Laws into Municipal
Law before it is applicable in the domestic realm. Once ratified, the rules of
51

International Law find immediate acceptance in the domestic legal set up.
This automatically implies that a judge in a monistic judicial system is free
to apply to International Law; a citizen is free to invoke International Law
before a municipal court of law, all as though they were integral parts of
Municipal Law. A judge may even declare a national rule invalid if it is
found to be in contravention of any International rule.
Monism in its purest form recognizes International Law and Municipal Law
as being one, to such an extent that where national law is found
contradicting International Law, it is null and void, even if it was enacted
prior to the International Law in question, and even if it was the constitution
itself.
The chief proponent of Monism was Hans Kelsen, who stated that the
ultimate source of validity of all law is derived from a basic tenet of
International Law. His theory purports that all rules of international law
were supreme over municipal law, that a municipal law that is inconsistent
with International Law is automatically null and void, and that all rules of
International law are directly applicable to the domestic spheres of a state.
Kelsen relied on the philosophy of Kant as a basis for his theory.
Law is regarded as constituting an order that lays down patterns of
behaviour that ought to be followed, coupled with provisions for sanctions,
which are employed once an illegal act or course of conduct has occurred
or has been embarked upon. Given that this definition implies both, within
the internal and the international sphere, a logical unity of the two may be
forged.[161]
Given that states own their legal relationship to the roles of International
Law, and since states cannot be equal before the law, without a rule to that
effect, it follows that International Law is superior to municipal law. Article
27 of the Vienna Convention on the Law of Treaties suggests that a state
party may not invoke internal law as a justification for its failure to carry
out an international agreement.
Germany is an example of the monistic school of thinking. It follows a
system of practice where treaties take effect as legislation the moment they
are ratified, and immediately, by way of the rule of lex posterior, they only
take precedence over national legislation enacted prior to their ratification.
Similarly, the monistic rule is followed in Holland. When an individual
finds his right violated, in Holland, he can go to a Dutch judge who must
apply the law of the conventions by which Holland is bound, even if it is not
in conformity with the prerequisites of Dutch domestic Law. [162]
While it is true that both, a monist and a dualist state can comply with
52

International Law, a monist state is less at risk of violating international


rules, because judges can apply international law directly.[163] In a monist
state, more reliance is vested on the judges than upon the legislators. Given
that no judge is absolutely infallible, it must be remembered that there is a
likelihood of a judge making mistakes, as a consequence of which a state
may just end up violating International law, as the case would be if the
dualist state failed to transform the international law into its municipal law.
[164] The quintessence of the monist approach comprises deep suspicion of
an international system built upon the foundation stone of sovereignty and
absolute independence of states. This fact is exemplified by the faith in the
capacity of the rules of International law to instill the international order
with a sense of moral purpose and justice founded upon respect for human
rights and the welfare of individuals.[165]
A third Approach
A third approach, being a modified version of the dualist position, was
formulated by Fitzmaurice and Rousseau. It seeks to establish a recognized
theoretical framework that is steeped in pragmatic reality. The theory
essentially contends that there is no common field of operation between
international law and municipal law, by way of which one system is deemed
superior to the other, or inferior to the other. The theory settles this score by
establishing that each stream of law is supreme in its own sphere of action.
A conflict of obligations emerges, consequently. It implies that a state may
be caught between its obligations to its domestic sphere of action, and its
obligations to the international realm. In all such cases, the domestic sphere
remains unaffected no matter what call the state takes, while if the state
decides against catering to its international obligations, it finds itself in the
thick of controversy for having flouted international law. This theory does
not advocate a specified course of action as a prescription, but instead
points out what happens in reality.[166]
Municipal Law in International Law
International Law does not ignore municipal law. Municipal law is relied
upon largely to evidence customary law, general principles of law and state
practice. International law leaves plenty of questions to municipal law, to
answer.[167] Municipal law cannot be invoked as a justification for the
violation of International Law.[168] A.46(1) of the Vienna Convention on
the Law of Treaties also goes on to establish that a state may not invoke the
fact that its consent to be bound by a treaty has been expressed in violation
of a provision of its internal law regarding competence to conclude treaties
as invalidating its consent, unless the violation of its internal law was
53

manifest and concerned a rule of fundamental importance. [169] Article 7


(2) of the Vienna Convention on the Law of Treaties states that heads of
state belong to the group of persons who by virtue of their functions and
without having to produce full powers are considered as representing their
state. A state has no general obligation to keep themselves informed of
legislative and constitutive developments in other states which are or
become important for the International relations of these states.
Another example is the Alabama Claims Arbitration,[170] where the US
objected strongly when Britain allowed a confederate ship to sail from
Liverpool to prey upon the American shipping segment. The court held that
the fact that Britain had no legislation necessary to prevent the construction
or departure of the vessel could not be put forward as a defense, and as a
consequence of the decision of the court, Britain was made liable to pay
damages for the depredations caused by the warship. A state cannot adduce
as against another state, its own constitution with a view to evading
obligations incumbent upon it under International Law or treaties in force.
[171]
Generally, the fundamental principle of International law, is that it prevails
over municipal law.[172] The inability to act under domestic law is no
defense to non-compliance with an international obligation.[173] However,
by way of contrast, the ICJ pointed out that the fact that an act of a public
authority may have been unlawful in municipal law did not necessarily mean
that the act in question was unlawful in International Law.[174]
Nevertheless, at no point is it to be believed that domestic law is irrelevant,
because of the aforementioned subservience to International Law. Quite
contrarily, internal rules play a very important role in the big picture that the
working of International Law is.
Municipal law is an efficient indicator of a countrys stance, or position on
a particular sphere of functioning. As a consequence thereof, an
international dispute redressing forum would be right in vesting reliance
upon the municipal legal systems of the disputing states before arriving at a
feasible solution. To pinpoint an example, is the Serbian Loans case,[175]
where reliance was vested in the domestic laws of Serbia in the course of
deciding the dispute.
Municipal law is also evidence of state practice, and the general principles
of law.[176] It is mandatory to keep in mind that where an international
court is considering the concepts of national law, when there is an explicit
absence of such concepts in the realm of International Law, care should be
taken to avoid all cases of automatic transposition.[177] Municipal Law is
54

also a great index to the extent of compliance or non-compliance with


International Law and obligations. An excerpt of the judgment rendered by
the PCIJ in the Certain German Interests in Polish Upper Silesia
case[178], is an example to prove this point:
From the standpoint of International Law and of the Court, which is
its organ, municipal laws are merely facts which express the will and
constitute the activities of states, in the same manner as do legal
decisions or administrative measures. The court is certainly not
called upon to interpret Polish Law, per se, but there is nothing to
prevent the Courts giving judgment on the question as to whether or
not, in applying that law, Poland is acting in conformity with its
obligations towards Germany under the Geneva Conventions.
No matter what the context of a role that municipal law has in the
International Legal scenario, at no point can the absence or presence of a
particular factor in municipal law stand as the ground for the evasion of an
International obligation.
International Law before Municipal Courts
States, as has already been mentioned, have a bounden duty to obey and
adhere to International Law. Nevertheless, how states choose to adopt
International Law in their municipal systems differ from one state to the
next. States have an obligation to adhere to the norms of international Law,
and any breach, irrespective of whether by the Legislature, executive or the
judiciary, shall cause the state to bear responsibility.[179] Instances exist
where treaties have dictated requirements of domestic legislation upon
states privy to it.[180] To understand International Law in the municipal
realm, it is necessary to first understand individual modalities as followed
by states. Before going into this, it is necessary to understand the theories
that underlie the applicability of international law within the domestic legal
realm.
The Transformation Theory
The transformation theory arises out of a dualist perception, which
construes International Law and Municipal Law as two different branches,
and notes that for international law to have any effect within the domestic
realm, it needs to be specifically transformed into municipal law. This is
normally accomplished by the aid of the constitutional machinery appointed
to handle the legislative responsibilities. This doctrine finds its roots in all
formalities pertaining to the device of ratification of a treaty by the
sovereign prior to the operation of a treaty.
The Incorporation Theory
55

This theory derives its origins from the monistic school of thinking, which
purports both International and National law are one. The theory contends
that International Law becomes a part of Municipal Law automatically. In
the words of Blackstone, the law of nations, wherever any question arises
which is properly the object of its jurisdiction, is here adopted in its full
extent by the common law, and is held to be a part of the law of the land.
[181] Most countries rely upon these rules by choosing between the two, in
implementing customary International Law. However, treaties follow a
different trajectory, in that they are governed by specific stipulation in the
concerned treaty itself, as enlisted herein below.
The United Kingdom
Britain follows a different pattern for customary international law, from that
which it follows in relation to treaties. Each of these needs to be understood
in detail to comprehend the ways in which Britain works.
Customary International Law
Britain largely follows the theory of incorporation in relation to customary
international law. The adoption of the incorporation theory dates back to the
eighteenth century, where the vagaries of diplomatic immunity were sought
to be channelized into constancy and certainty. Since as early as 1737, as
evidenced in the decision of Buvot v. Barbuit,[182] Lord Talbot was known
to have held that the law of nations in its full extent was part of the law of
England, and as a consequence thereof, a Prussian commercial agent could
not be rendered liable for failing to perform the demands of a decree.
Following suit nearly three decades later, in Triquet v. Bath,[183] Lord
Mansfield upheld the decision in Buvot, while determining as to whether a
Bavarian minister to Britains domestic servant could claim diplomatic
immunity. Albeit an accepted contention, customary rules that ran counter to
previously established Acts of Parliament and precedents would not be
implemented.
Over the entire period of the 19 Century, a whole catena of decisions
emerged, indicating a clear deviance from the incorporation theory, making
a foray into the school of thought pursuing the transformation theory. R. v.
Keyn,[184] marked the turning point. A German ship called the Franconia
collided with and sank a British vessel that was in the English Channel,
squarely within 3 miles from the English coast. Indicted for manslaughter as
a consequence of the death of the passenger, the core contention of the
German captain was that of whether the English Courts had jurisdictional
competence to hear the matter. Analyzing the key factors in the factual and
legal matrix, the court concluded that the rules of International Law may
th

56

contain precepts pertaining to any exercise of jurisdiction over the High


Seas. But, there wasnt any such rule in the English system. The court held
that one thing did not automatically follow from the other, and the power of
the Parliament on the one hand, and the authority of the court to apply
criminal law to a sphere where it had not been applied to, before, had to be
kept independent of one another. Lord Cockburn noted the gap in the English
legal system, specifically in pertinence to legal issues on the High Sea, and
thereby concluded that it was a non-existent rule in British Law, while
existent in International Law. So saying, the German captain was released.
This judgment essentially holds credit for being a turning point in the
theoretical side of Britain and International Law, the decision itself is
criticized for ambiguity primarily in relation to whether or not a right of
jurisdiction exists over the territorial sea.[185] Ultimately, the ambiguity
ceased with the passage of the Territorial Waters Jurisdiction Act,
1878.More than any revolutionary change in stance where the theories are
concerned, the difference underlying these theories is more about a shift in
presumption than anything else.
Later developments dissolved the thin red line separating black from white.
Lord Alverstone in the West Rand Gold Mining Case,[186] declared that
all rules that received the common consent of civilized nations, Britain
being one among them, would apply in the municipal courts. However,
qualifying the rule, he indicated that for such a rule to apply, either it should
be proved by way of satisfactory evidence to have been recognized and
acted upon by Britain, or be of such a nature that no civilized nation should
repudiate it. In Triquets case,[187] Lord Mansfield indicated that the
common law does not include such rules of International Law that find place
in textbooks, and have no evidence of having gotten Britains assent. In
Mortensen v. Peters,[188] Lord Dunedin pointed out that there shall not be
any subservience of statutory law to customary International Law, given that
the supremacy if statutory law emanates from the Supremacy accorded to the
Acts of Parliament. A court would, thus, have to heed the statute even if it
ran counter to a norm of customary International Law.
Lord Arkins words in Chung Chi Cheng v. R,[189] reemphasizes this fact.
Unless accepted and adopted by the domestic legal set-up, a rule of
International Law cannot be applied before the domestic courts. As a
naturally arising corollary, any alleged rule of customary International Law
should be proved by way of evidence adduced, as being a valid and binding
norm, for it to fin acceptance in the municipal realm. It must be understood
that International Law is not construed as foreign law, but as part of the law
57

of the land after sufficient evidence to such effect is adduced. Naturally,


thus, a foreign law has to be proved by way of expert testimony, as though a
fact is being proved. But, for international law, a court can have recourse to
text books and scholarly works instead, or even treaties, conventions,
authoritative texts, state practice and judicial decisions of courts of other
countries.[190]
In the Trendtex Trading Corporation v. Central Bank of Nigeria,[191] the
Court of Appeal comprising three judges unanimously accepted the doctrine
of incorporation as the correct course of action. One point that was
emphasized upon was that International Law did not know the rule of stare
decisis. In the words of Lord Denning, where International Law changes, the
court could implement that change without waiting for the House of Lords to
do it. The rule has since been followed in entirety.[192]
Treaties
Where treaties are concerned, a different set of rules govern the dynamics of
incorporation. States privy to a treaty may create a new law that may be
binding on them irrespective of prior practice or contemporary practice.
Thus, the role of the executive is far more emphasized in the case of treaty
law as opposed to customary law. If it be true that treaties ought to be
rendered applicable directly in the municipal realm right after signature and
ratification, and before domestic operation, the executive would be able to
legislate without the legislature.
The case of the Parliament Belge,[193] is illustrative of this rule. There
was a collision between the Parliament Belge, a cargo boat that belonged to
the King of the Belgians, and a British tug, and this resulted in a claim for
damages by the British Tug before the Probate, Divorce and Admiralty
division of the High Court. The core contention raised by the Attorney
General was that the Court could exercise no jurisdiction over the ship as it
belonged to the Belgian King, and in addition, by way of a political
agreement between Belgium and Britain in 1876, immunity that was
applicable to a warship would also apply to the cargo boat in the present
case. But the contention was rejected under the premise that such immunity
could not be extended to other categories by using a treaty, without
parliamentary consent. Many a time it has been clearly emphasized that it is
the Crown which in the UK possesses constitutional authority to enter into
Treaties and this prerogative power cannot be impugned by the Courts.[194]
This rule certainly has exceptions. S.6 of the European Parliamentary
Election Act 1978, provided that no treaty providing for an increase in the
powers of the European Parliament would be ratified by the UK without
58

prior Parliament approval.[195]


In the United Kingdom, while the Crown signs and ratifies all International
agreements, it cannot legislate directly. An act of Parliament is essential in
order for the treaty to become a part of English Law.[196] It therefore
followed that as far as individuals were concerned, such treaties were res
inter alia acta from which they could derive rights and by which they could
not be deprived of rights or be subjected to obligations.[197] In the words
of Lord Templeman, except to the extent that a treaty becomes incorporated
into the laws of the UK by statute, the courts of the UK have no power to
enforce treaty rights and obligations at the behest of a sovereign government
or at the behest of a private individual. The interpretation of treaties that are
not incorporated by way of a statute into the municipal realm, and the
decision as to whether they have been complied with or not, are matters
exclusively for the Crown as the court must speak with the same voice as
the executive. This rule, of course, is not without exception. A court may
seek to make a reference to a treaty in order to bring out the relevant factual
background,[198] as it occurs in circumstances where a contract
incorporates the terms of a treaty.[199]
The ratification of an international treaty may pave the way for legitimate
expectations, that the executive will, in absence of a statute to the contrary,
or instructions to the contrary, act in conformity with the treaty.[200] Some
treaties do not require the passage of legislation prior to rendering the treaty
as part of the domestic law such as treaties relating to the conduct of war,
cession of territory, imposition of changes and levies on the privy-purse,
[201] and even administrative agreements bearing less importance.
Sometimes, the Parliament may approve in advance the conclusion of
treaties in some specific areas, stipulating the specific limits or sometimes
may utilize any subordinate legislation to deal with a treaty. The general
practice in the UK is to lay before both Houses of the Parliament all treaties
which the UK has signed, or intends to sign.[202] The text of any such
agreement is laid before the Parliament, before any action is taken. This is
called the Ponsonby Rule.[203] All treaties signed after 1 January 1997
have to be laid before the Parliament, along with an Explanatory
Memorandum.
English law presumes that a piece of legislation is to be so construed as to
avoid a conflict with International Law.[204] It is usually operative when
the Act of Parliament which is intended to bring the treaty into effect is itself
steeped in ambiguity. The UK is bound by all international obligations that it
is asked of, in any treaty. This is irrespective of its domestic considerations.
st

59

One case in point is the enforcement of UN Sanctions, as a consequence of


the United Nations Act, 1946, which enables the Crown to adopt Orders in
Council so that effect can be given to sanctions.[205] Interpretation of
international treaties incorporated by statute includes the use of traveaux
preparatoires,[206]
Generally, a broad approach, as taken in Fothergill, is the one that is
followed. In Siddhu v. British Airways,[207] Lord Hope stated that it was
well-established that a purposive approach should be taken to the
interpretation of International Conventions, which have the force of law in
this country. In Salvage v. Lancer Navigation,[208] a more traditional
approach that was founded upon the relevant articles of the Vienna
Convention on the Law of Treaties, 1969, while emphasizing the
significance of a textual interpretation of the words in question as
understood in their ordinary meaning, was relied upon. Courts in Britain
have, however, also adopted a rather progressively broader, purposive
construction to the interpretation of domestic laws in order to ensure
compatibility with treaties and conventions.[209]
The Human Rights Act, 1998 occupies a rather special position. It has been
instrumental in incorporating the European Convention on Human Rights.
S.3 of the said act provides that so far as it is possible to do so, primary and
subordinate legislation must be read and given effect in a way in which is
compatible with convention rights. However, such a rule does not affect the
validity or the continuing operation of any primary legislation that is
incompatible. In the case where a legislation cannot be rendered compatible
with the convention rights, a declaration under s.4 signifying incompatibility
may be made, and the Parliament under s.10, may choose to modify the
incompatible provision. Interpretation of domestic legislation in order to
constitute it compatible with the convention ought to be done with due
reference to the relevant jurisprudence from the European Court of Human
Rights as per s.2 of the Act. The evolution of the European Community as a
burgeoning association of the European states needs to be understood in the
process of studying the manner in which the community law prevails over
national law. Domestic legislation made pursuant to the European
Communities Act, 1972, to this end, have all been given purposive
construction.[210]
The United States of America
Customary Law
America is largely similar to the UK in its modality of handling the
incorporation of customary and treaty based International Law. One
60

additional factor that needs to be taken into account is the Constitution. In


Boos v. Barry,[211] the US Supreme Court held that as a general
proposition it is of course correct that the US has a vital national interest in
complying with International Law. However, at all points of time, the rules
of International Law are always subject to the Constitution. As was the case
with the UK, the incorporation theory was originally accepted, and later
modified. Evidence of the former position was enunciated in the Pacquette
Habana Case,[212], where the court stated that international law is a part
of the American law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right
depending upon it are duly presented for their determination. The erstwhile
approach was followed when the theory of incorporation was applied, with
a degree of caution.[213]
As far as customary International Law is concerned, the present approach is
that the Customary International Law in the US is deemed federal law and
its determination by the federal courts binds states courts.[214] This
position has been reiterated in the Committee of US Citizens living in
Nicaragua v. Reagan case.[215] However, the political and judicial organs
of the US are given the power to ignore International Law, in pursuance of a
statute or a controlling executive act. This has been instrumental in stirring
up large controversy,[216] and so has the relationship between custom and
inconsistent pre-existing statutes.[217]
Nevertheless, it is a generally accepted notion that statutes supersede earlier
treaties or customary international law. In Valdez v. Oklahoma,[218] the
court indicated that it would be an anathema to the constitution if a court
decided that a decision of the ICJ overrules a binding decision of the US
Supreme Court and thus afforded a judicial remedy to an individual for a
violation of the Constitution. The presumption that a piece of legislation is
not assumed to run counter to International Law was reiterated in Schroeder
v. Bisell,[219] unless it unmistakably appears that a congressional act was
intended to be in disregard of a principle of International comity, the
presumption is that it was intended to be in conformity with it.[220]
The relationship between the laws of the US and International Law was reexamined in Filartiga v. Pene-Irala.[221] The court of appeals adjudged
that torture amounted to a violation of International Customary Law, and
was thus actionable. It went on to hold that in ascertaining the content of
International Law, the contemporary rules and principles of International
Law were to be interpreted and not those as of date of the prescribing
statute.
61

In Siderman v. Republic of Argentina,[222] an action was initiated to


secure a judgment in the US against the Republic of Argentina for torturing
its own citizens. But the matter floundered upon the doctrine of sovereignty.
On the same parameters of thinking, acts of International terrorism are not
actionable under the Alien Tort Claims Act.[223] However, there was a
different trajectory traversed by the court in Kadic v. Karadzic.[224] The
court held that claims based upon official torture and summary execution did
not exhaust the list of actions that may be covered by the Alien Tort Claims
Act, and that allegations of genocide, war crimes and other violations of
International Law could be covered.
Treaty Law
Article IV(2) of the US Constitution provides that All treaties made, or
which shall be made with the authority of the US, shall be the Supreme Law
of the Land, and the judges in every state shall be bound thereby, anything in
the Constitution or the laws of any state to the contrary notwithstanding.
Article II of the Constitution notes that while the President has the power to
make International Agreements, he may only ratify them if at least two-thirds
of the senate approve. An exception to this rule is the institution of executive
agreements. The President makes such agreements on his own authority, and
in turn constitutes treaties within the framework of International Law. In US
v. Pink,[225] the Supreme Court, in a case that came up after the 1933
Litinov Agreement that indicated the American Recognition of the Soviet
government, held that such executive agreements possessed the same status
and dignity as treaties made by the President with the advice and consent of
the Senate. Though some Senators have now and again taken the position
that certain vital international agreements ought to be submitted as treaties
for the Senate's advice and consent, the popular view is that a
Congressional-Executive agreement may be used every time a treaty could
be.[226] Under the prevailing view, the opposite is true as well, i.e., a
treaty may be used whenever a Congressional-Executive agreement could
be.
As for the implementation of treaty law, America follows the principle of
self-executing and non-self-executing treaties.[227] Self-executing treaties
operate automatically within the domestic sphere, without any municipal
legislation. Non-self-executing treaties require the passage of enabling acts
prior to their operation in the domestic sphere. The Courts distinguish
between the two by a perusal of the practical content in both treaties. In
Edye v. Robertson,[228] the Supreme Court held that those treaties in which
certain provisions are capable of enforcement as between private parties in
62

the courts of the country are deemed to be in the same category as the other
laws of the Congress.
This issue was re-examined in 1952 in Sei Fuji v. California,[229] where
the core issue raised was as to whether the UN Charter was a self-executing
treaty, and, by virtue of such, part of the law of the land, which would
supersede the inconsistent local statutes. The court held that in the process
of determining whether a treaty was self-executing or otherwise, regard
must be had to the treaty itself in order to understand the underlying
intentions of the signatories, and also to the traveaux preparatoires. The
court ultimately concluded that the UN Charter was not self-executing,
stating that the Charter did not purport to impose legal obligations on the
individual member nations or to create rights in private persons.
In Diggs v. Schultz,[230] a similar question came up. The Byrd Amendment
in the USA, legalized the import of strategic materials. This was forbidden
by a binding UNSC Resolution. The court ultimately held that the resolution
was violated by way of the amendment so made, but also stated that the
Congress may choose to disregard a specific treaty, and that nothing could
be done to alter that. However, the US was liable internationally for the
breach of the rule it was bound by.[231] Nevertheless, the general
presumption is that the Congress will not legislate in a manner contrary to
the treaties that the US is signatory to.[232] The Courts also follow a
generic rule of interpretation, in that where an act and a treaty exist on the
same subject, the courts will seek to construe the both of them in order to
give effect to both, so that one is not contrary to the other. If, however, there
is an inconsistency of such nature that no reconciliation is possible, the one
that is later in time shall prevail over the prior one.[233] In applying this
line of thinking, in the case of US v. PLO,[234] when as per the Anti-terror
law in force at the time, all PLO offices in the US were sought to be closed,
the question as to whether the PLO mission in the UN had to be closed or
not was answered. The Court held that there was no intention whatsoever to
violate the UN Headquarters Agreement in unequivocal terms.
In the decision of Breard v. Greene,[235] the US Supreme Court held that
there needs to be accorded respectful consideration to an international treaty
by the relevant international court. In deciding thus, the court relied upon the
ruling of the ICJ in Paraguay v. USA,[236] upholding the Constitution as the
Supreme Law of the Land, and declaring that International Treaties bore the
same status as statutes, under the Constitution.
Canada
Canadian law states that customary International law forms a part of its
63

domestic legal system. In the Reference Re Secession of Quebec


decision[237] the Canadian Supreme Court noted the importance of
drawing upon International Law to determine the rights and obligations of
actors within the Canadian Legal system. As for treaties, Canada follows
transposition. This was laid down in Lord Atkins opinion, in Attorney
General for Canada v. Attorney General for Ontario.[238]

Australia and New Zealand


The doctrine that customary International Law forms a part of domestic law
has been reaffirmed in a number of decisions.[239] As for treaty law and
domestic law, the Australian High Court in Minister of State for
Immigration and Ethnic Affairs v. Ah Hin Teoh FC,[240] held that
Australia subscribed to the traditional doctrine of incorporation, in that the
provisions of a treaty do not form a part of Australian law unless such
provisions have been incorporated into Municipal Law by way of a statute,
in keeping with the basic rule of separation of powers.[241] It has been held
that if a statute or a subordinate legislation is of an ambiguous nature, the
courts ought to favour that construction which accorded with Australias
duties and obligations under the treaty in question, to the international
world.[242] This was deemed to be a canon of construction and did not
amount to an incorporation of international law into municipal law.[243]
The Court also went on to hold that merely ratifying a treaty was sufficient
to constitute a foundation for legitimate expectations, that administrators
would act in conformity with the unincorporated, but ratified convention.
Germany
Article 25 of the Basic Law of the Federal Republic of Germany, states that
the general rules of Public International Law are an integral part of the
federal law. It goes on to hold that they shall take precedence over the laws
and shall directly create rights and duties of the inhabitants of the federal
territory.[244] This provision has sparked off much controversy, in the form
of debates mostly as to whether international law would invalidate any
inconsistent municipal legislation, and, indeed, whether international rules
could override the constitution. The use of the phrase general principles of
public international law has led to myriads of problems, because there
often arises a doubt as to whether this means all the principles of public
international law, or only treaties.[245] As regards treaties, practice shows
that the German federal courts are to regard them as superior legislation, but
at no cost can they go against the Constitution. Article 59 of the Basic Law
64

holds that treaties which regulate the political relations of the federation, or
relate to matters of federal legislation shall require the consent or
participation, in the form of a federal law, of the bodies competent in any
specific case for such federal legislation. After this, these treaties will be
treated as incorporated into the German legal system, but with a status no
higher than that of Federal Law. If such law is found to encroach upon the
rights of an individual, a constitutional complaint shall lie to challenge the
law.
The Netherlands
Treaties in the Netherlands need prior approval from the Parliament before
they become binding, as per Article 91(1) of their Constitution. If there is
any conflict with a treaty provision and the Constitution, such provision may
be approved by the Chambers of the Parliament, provided that at least 2/3 of
the votes are in favour. As per Article 94, any statutory provisions in force
in the Netherlands shall not be applicable if such provision is found to be
contrary to treaties that are binding on Netherlands, or to resolutions that are
imposed by international institutions.[246] Customary law does apply
internally, although statutory law always prevails where there is any conflict
between the two.[247]
France
As per the French Constitution, treaties that are duly ratified and published
shall operate as part of the domestic legal system.[248] The President of the
Republic ratifies the treaties, but only in the case of commercial treaties and
those that pertain to international organizations. With the passage of the
legislation, the treaty is deemed a part of the domestic legal set up. Article
55 of the Constitution holds that duly ratified treaties or agreements upon
publication shall override domestic laws, subject to the application of the
treaty or agreement by the other parties.[249] A French court is completely
capable of declaring a statute inapplicable for conflicting with an earlier
treaty.[250] At any point, however, the supremacy of International
Agreements does not extend to constitutional provisions.
The European Union and Select States in the Union
The European Court of Justice has held that community law has supremacy
over ordinary law,[251] and over domestic constitutional law, too.[252] In
Belgium, legislation is needed for the incorporation of all international
agreements, as per Article 68 of the Belgium Constitution. In Norway,
municipal law supersedes all treaties. In Greece, Article 28(1) of the
Constitution indicates that the generally accepted rules of International law,
and International conventions, shall all be a part of Greek Law, from the
65

time they enter into force. It also states that the applications of the rules of
International Law and International Conventions shall be applicable to
aliens subject to the precondition of reciprocity from the concerned states
towards the aliens of Greek origin. As for treaties, Article 36 indicates that
no provision shall have effect without the Parliaments sanction. As for
Austria, the generally recognized rules of International Law are accepted as
part of Austrian law. Obligations arising out of a law in violation of a prior
treaty are internally valid, albeit an international tort.
South Africa
The 1993 interim Constitution of South Africa, under s.231(4) states that
customary International Law is binding on the Republic shall form a part of
the Domestic law of the Republic, unless it is inconsistent with the
Constitution, or any act of Parliament. This indicates that the principle of
stare decisis does not apply to customary international law. Originally,
where treaties were concerned, an Act of Parliament was necessary in order
to incorporate the agreement into the Domestic legal realm. This position
has changed. Ratification is now a Parliamentary function,[253] while the
signature of treaties is a function of the President.[254] S.231(3) states that
such international agreement shall be binding on the Republic, provided the
Parliament expressly provides and such agreement is not inconsistent with
the Constitution. This is indicative of South Africas change from the British
system, to the civil law tradition.
Israel
As far as Israeli practice is concerned, it would be right to surmise that it is
more or less on the lines of the UK. Municipal laws are presumed to be
consistent with international law, and in event of any form of inconsistency,
municipal law prevails. In the famous Eichman case,[255]the Supreme
Court of Israel succinctly laid down the fact that the relationship between
International Law and Municipal Law is predominantly governed by three
rules:
1. The principle becomes incorporated into the municipal legal realm and
a part of that law, only after it has achieved general international
recognition.
2. Where there is a conflict between International Law and Municipal
Law, the courts have a duty to give preference to, and to apply
Municipal Law.
3. Any municipal law open to equivocal construction should be construed
in accordance with Public International Law.
66

Russia
As per Article 86 of the Russian Constitution, the President negotiates and
signs treaties and the ratification documents. Under Article 106, the Federal
Council (the upper Parliamentary Chamber) must consider all the Federal
Laws adopted by the State Duma (the lower Parliamentary Chamber) that
concern the ratification and denunciation of agreements. The Constitutional
Court is given power to review the constitutional validity of treaties that are
not yet in force, as under Article 125(2), and treaties that are in conflict
with the Constitution and are not to be given effect, as under Article 125(6).
As per Article 1594), the generally recognized principles and norms of
international law and the international treaties of the Russian Federation
shall all constitute a part of its legal system. If any international treaty of the
Russian Federation establishes other rules than those stipulated by the law,
the rules of the International Treaty shall apply. This indicates that both,
treaty law and customary law are incorporated into Russian Law. Treaty
laws enjoy a higher status than customary law.[256] The Constitutional
court subscribes to this view.
Japan
As per Article 73(3) of the Japanese Constitution,[257] the Cabinet is
authorized to conclude treaties with the prior or subsequent approval of the
Diet, though executive agreements may be entered into without such
approval, usually by way of a simple exchange of notes. A treaty is
promulgated by way of a publication in the official gazette, as soon as the
Diet approves of it, and the Cabinet ratifies it as under Article 7. The fact
that Japan follows the incorporation principle, is evidenced by Article
98(2) which holds that all treaties concluded by Japan and all established
laws of nations shall be faithfully observed.[258]
China
Chinese scholastic opinion has never accepted the supremacy of
International Law over municipal law.[259] Chinese practice depicts
supremacy being accorded to municipal law, over and above its obligations
as owed under International Law.
India
Article 51(c) of the Constitution of India stipulates that the state shall
endeavour to foster respect for international law, and treaty obligations in
the dealings of organized peoples with one another. The use of the phrase
international law implies customary international law, and treaty
obligations covers treaties alone.[260] Article 51 falls within the ambit of
Part IV of the Constitution of India, which is the non-enforceable portion of
67

the constitution, called the Directive Principles of State Policy. Given that
such rules are non-enforceable, the extent of weightage they have may seem
questionable. Nevertheless, in understanding this provision of law, and the
allied judicial precedents, it stands clear that India follows a dualist system.
Prior to the adoption of the Constitution, India followed the erstwhile
British system; now arises the question as to whether this position has been
modified, or retained as it was.
The constitution of India did not modify the position, given that it provided
for the continued operation of the law in force immediately preceding the
commencement of the Constitution. Municipal courts have the right to apply
the provisions of a treaty if it is incorporated into the domestic legal regime,
and customary law as already being a part of the law of the land. As long as
the customary law is not in any manner inconsistent with the domestic law
of India, it shall be construed to be a part of domestic law. As for treaties,
India is more or less part of the British dualist system. In State of Madras v.
G.G.Menon,[261] the Supreme Court held that the Indian Extradition Act,
1903 had been adopted, but the Fugitive Offenders Act of the British
Parliament had been left alone. The Court stated that the provisions of the
Act could only be made applicable to India by incorporating them with the
appropriate changes into an act of Indian Parliament and enacting on Indian
Fugitive Offenders Act. Since there were no laws on the lines of the act, the
Fugitive Offenders Act could not be held to have force in India by way of
Article 372 of the Constitution. Article 253 of the Constitution holds that
notwithstanding anything in the foregoing provisions of Chapter XI of Part
X, the Parliament has the power to make any law for the whole or part of the
territory of India for implementing any treaty, agreement or convention with
any other country or countries or any decision made at an international
conference, association or other body. But, it would be wrong to hold that
every treaty in need of implementation would need legislative aid.[262]
International treaties and conventions do not automatically become a part of
national law in India, and hence, require legislation to be passed by the
Parliament for the implementation of international law in India. In the light
of this fact, the Indian judiciary, though empowered to adjudicate and not
make legislations, has, (and can) actively interpreted Indias obligations
under international law, by reading into the constitutional provisions, the
provisions of international law in the course of passing a decision in a case
concerning issues of international law.[263] With the help of judicial
activism the Indian judiciary has played a rather appreciable, proactive role
in implementing Indias international obligations under International
treaties. This has happened especially in the field of human rights and
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environmental law.
The government of India is vested with executive powers to enter into and
implement international treaties under Articles 246 and 253 read with Entry
14 of List I of the Seventh Schedule of the Indian Constitution.[264] The
executive powers of the government of India are derived from the
legislative power of the Union of India. In this regard, it is to be noted that
the executive powers of the Union and State governments are co-extensive
with their respective legislative powers.[265] The executive powers of the
Union of India are specifically vested in the President under Article 53 of
the Indian Constitution. Aside of vesting the executive power, this provision
also provide for the exercise of such executive power either by him directly
or through the officers subordinate to him in accordance with the
Constitution. Additionally, it is relevant to read Article 73 of the Indian
Constitution, which confers upon the government of India executive powers
over all subjects in which parliament has legislative competence.
The Supreme Court in Visakha v. State of Rajasthan,[266] took recourse to
International Convention for the purpose of construction of domestic law.
The Court held that in the absence of domestic law occupying the field to
formulate effective measures to check the evil of sexual harassment of
working women at all work places, the contents of International
Conventions and norms are significant for the purpose of interpretation of
the guarantee of gender equality, right to work with human dignity in
Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards
against sexual harassment implicit therein. Any international convention not
inconsistent with the fundamental rights and in harmony with its spirit must
be read into those provisions to enlarge the meaning and content thereof, to
promote the object of the Constitutional guarantee.
In Jolly George Varghese and Another v. The Bank of Cochin,[267] the
Court dealt with the emerging links between domestic law and human rights
by reconciling Article 11 of the International Covenant on Civil and
Political Rights (ICCPR) with Contractual provisions under municipal law
to protect human rights of a the civil debtor whose personal liberty was at
stake due to judicial process under Section 51 (Proviso) and Order 21, Rule
37, Civil Procedure Code. In ADM Jabalpur v. Shivakant Shukla,[268]
the Supreme Court amplified the scope of Article 21 (right to life) of the
Indian constitution by referring to Articles 862 and 963 of the Universal
Declaration of Human Rights.
Recognizing customary International Law as part of the Indian domestic
legal system, in Vellore Citizens Welfare Forum v. Union of India and
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Others,[269] the court held that the precautionary principle and the polluter
pays principle were part of the environmental law of the country, stating that
even otherwise, once these principles are accepted as part of the Customary
International Law there would be no difficulty in accepting them as part of
the domestic law. It is almost accepted proposition of law that the rules of
Customary International Law which are not contrary to the municipal law
shall be deemed to have been incorporated in the domestic law and shall be
followed by the Courts of Law.
Justiciability and Acts of State
Any issue is deemed justiciable if it can be tried by a court of law, with due
accordance afforded to the law.[270] By general practice, all that falls
within the ambit of the executive, are not justiciable before a court of law.
In the words of Shaw, any test as to whether a matter is, or is not justiciable
involves an illumination of that grey area where the spheres of executive
and judiciary merge and overlap.[271] This is particularly brought to fore in
the context of the acts of states.[272] An act of state is the act of the
executive in relation to other states. In pertinence to International Law and
Municipal Judicial authorities, it refers to the norm that one state cannot
exercise jurisdiction over another state. For domestic executive acts, a court
does not deal with any exercise of sovereign power. For foreign executive
acts, courts refuse to intervene.[273] This is, however, not a matter of
discretion, but one of inherence and judicial power. It has been held that
judicial review would be inappropriate in cases where matters fell within
the ambit of diplomacy, and were it that the judiciary intervened, it would
lead to serious consequences.[274] Sometimes, legislation is immensely
useful in determining if an act is justiciable or otherwise. A case in point is
the UK State Immunity Act, 1978, which removed sovereignty for
commercial transactions.[275] Non-justiciability functions as a bar,
disallowing an issue from being raised or proved.

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Chapter 4- Subjects of International Law


Every legal regime comprises entities that are clothed with rights, duties
and obligations under the realm of the law in question. These entities are the
subject of the law, i.e., the very reason the law exists, the very factors that
the law seeks to govern. Such subjects are considered to be legal persons in
that they are deemed as persons in the eyes of law. As a consequence of
being drubbed possessive of such a status, they are capable of suing and
being sued under the law. They are conferred rights and duties under the
law, which, albeit a constant factor under most legal regimes, the actual
nature of the rights and duties conferred depend largely upon the nature of
the law itself.
Affording such a status to entities is called the granting of legal personality,
or the ascription of legal personality. This is essential to the very existence
of these entities, as devoid such recognition, the concerned entity would
lose out on the right to enforce claims. At the municipal level, individuals
and corporations are recognized as being possessive of a distinct
personality of a legal nature, the terms of which are prescribed by the
relevant legislation.[276] The legal regime in a certain place is the
determining factor as regards the nature and scope of personality, which in
turn is the determinative factor of status, capacity and legal competence of
the entity.
In international law, personality involves a tightly woven weft of rights and
duties, as afforded under International Law, and the ability to enforce
claims. Due regard needs to be had to the intricacies of International Law in
order to comprehend the nature of the capacity and competence so accorded.
Some writers opine that though the quality of responsibility for the violation
of a rule co-exists with the quality of enforcing a complaint against a
breach, an entity having either quality is deemed possessive of legal
personality.[277] Other writers hold that legal personality is vested based
upon the element of enforceability of rights in the International sphere.[278]
In the international level, it must be remembered that personality is not
confined only to being what the state possesses, but also to the extent of
acceptance the community wields in relation to such personality. Community
acceptance hinges on several factors, to name one inter alia, the nature of
personality enjoyed by the entity.
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For a long time, it was believed that only states are the subjects of
International law, until a while ago when it was believed that states are the
primary subjects of international law, to the rapidly evolving position
evinced today, in that there are other subjects in international law, with a
position on par with that of a state. The notion that states are the primary
subjects of international law arises from the fact that they seem to fit the bill
by seeming to be the most complete subject, being possessive of a more or
less stable authority or governing regime over a defined territorial expanse
with its own population. Though these facets are indeed lacking where
individuals, international organizations and the newly emerging set of nonstate actors are concerned, it is not something that precludes the conferment
of a legal status for these latter entities. One cannot ignore the burgeoning
sphere of human rights that confers recognition of individual people as part
of International law, or the cement that the United Nations and other
transnational organizations world over lends to the wide cross section of
cultures and races constituting states, or even the wanton mushrooming of a
global terror network independent of affiliation to states. Thus, within the
umbrella-term of subjects, are included states, individuals, international
organizations and non-state actors.
Understanding Legal Personality
Personality is of two kinds, namely, objective and qualified. Objective
personality implies the case where the entity enjoys international rights and
duties, and its status operates erga omnes. Qualified personality, also
deemed conditional personality, as the name suggests, is operative only on
the condition that consent is offered, and thus, operates only in personam.
States still retain the status of being major subjects of International Law.
Personality can be acquired by a combination of treaty provisions and
recognition or acquiescence by other international persons.
States
The Restatement (Third) of Foreign Relations explains that under
international law, a state is an entity that has a defined territory and a
permanent population, under the control of its own government, and that
engages in, or has the capacity to engage in, formal relations with other such
entities.[279] This definition is fundamentally consistent with the definition
provided in the Montevideo Convention on the Rights and Duties of States,
which provides that the State as a person of international law should
possess the four qualifications, namely, a permanent population, a defined
territory, government and the capacity to enter into relations with the other
States.[280] Scholars world over, especially from the United States, deem
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this definitive provision as a part of customary international law.[281] The


elements spelled out above are often deemed the essential prerequisites, or
essential conditions for an entity to be regarded as a state under
international law.[282]
In Lauterpachts words, the orthodox positivist doctrine has been explicit
in the affirmation that only states are subjects of International Law.[283]
Albeit a predominant subject, International Law has weaned off from this
rigid line of thinking. The Holy See (1871-1929), insurgents and
belligerents, international organizations, chartered companies and entities
such as the league of cities, were all deemed subjects of International Law
at various points of time.[284]
The Creation of Statehood
The actual creation of statehood mixes both fact, and law. The creation of
states poses a plethora of questions, as to whether such creation is legal or
factual, and how the interaction as between the criteria of effectiveness and
other related legal principles may be reconciled. Terra nullius is no longer
in existence, as a result of which states may only be created as a diminution,
disappearance or merger of existing states.[285] As to what an entity must
possess in order to constitute a state in International Law, reference must be
had to Article 1 of the Montevideo Convention. In order for an entity to be
deemed a state, and thereby an international person, it must possess the
following:
a) A permanent population
b) A defined territory
c) A government
d) The capacity to enter into relations with other states.
The state is commonly defined as a community that is comprise of a territory
and a population, subject to an organized political authority and a
population subject to an organized political authority and that such state is
possessive of sovereignty.[286] The form and nature of internal political
organization and constitutional provisions are facts, and are essential for the
determination of governmental sway over the population and territory.[287]
Of course, the existent rules are not exhaustive given that state practice is
peppered with instances of self-determination and recognition being
accorded therein. A permanent population is naturally a necessary corollary,
as, if there are no people to govern, there really is no state in the actual
sense of the term. There is no minimum number of people as such, to
constitute a state.[288] Territory is also an essential element, because there
is no state in existence if there is no geographically delimited area in its
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control, to be claimed as its own. Territoriality is connected with


sovereignty, in that it constitutes the geographical aspect of the geopolitical
realm. Albeit a pre-requisite, territoriality does not demand that fixed
boundaries are mandatory for the entity to be a state, because a state
embroiled in a boundary dispute is still recognized as a state in International
Law.[289] As long as there is a territory under the control of a governmental
authority, there is enough to fulfill the prerequisite of territoriality. The State
of Palestine as declared in 1988 in Algiers, was not recognized because the
Palestinian organization did not control any territorial area that they
claimed.[290] Albania, during the entire span of time prior to the First
World War was afforded recognition despite being deeply embedded in the
throes of a boundary dispute.[291] On a more recent note, Israel is a
recognized state despite the boundary dispute it is privy to.[292] Kosovo,
which in 2008 unilaterally declared independence, has a few states in the
international community in support of its status as a state, although Serbia
claims sovereign rights over the territorial expanse that Kosovo is.[293]
A government is necessary in order for any political society to function
reasonably and effectively. Opinions have been expressed as to how a
government is not really a prerequisite, but is deemed an indication of the
existence of a coherent political structure and society.[294] The origin point
of this prerequisite dates back to the 19 Century precondition of
civilization as a criterion for statehood. It has precious little to do with
attaching due regard and importance for sovereignty, irrespective of
administrative conditions.[295]
The criterion of effective exercise of control by a government has been
modified. Croatia, Bosnia and Herzegovina have been accorded recognition
and membership in the UN despite being faced with a situation where nongovernmental forces have controlled the territories in question. The capacity
to enter into relations with other states is another listed essential to be
followed for the attainment of statehood. This is not exclusive to sovereign
nations. International organizations need such a capacity to enter into legal
relations, too. It is an essential requisite that the state be able to create such
relations with other states, as this evidences sovereignty and independence
in managing its external affairs. Independence is crucial to statehood and is
a formal statement that the state is not subject to any other sovereign
authoritys rule, and is unaffected by any factual dependence upon other
states, or by submission to International Law.[296]
There needs to be a mix of both, actual and formal independence. This was
the crux of the issue raised in the context of the grant of Independence by
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South Africa to its Bantustans. A sizeable quantum of Transkeis budget


came from South Africa, and Bophuthatswana was split up into a series of
areas, all divided by South African territory.[297] Such independence was
declared invalid by both, the Organization of African States, and the United
Nations, and aside of South Africa, no other states recognized these entities.
Lithuania was originally unlawfully annexed by the Soviet Union in 1940,
and on 11 March, 1990,[298] it declared its independence unilaterally.
Given that the annexation itself was not recognized de jure by the Western
States, and was accorded only de facto recognition, this unilateral
declaration sparked off several politically sensitive debates. Finally,
recognition was afforded in 1991, along with the Soviet Union and a
multitude of other Baltic States. Kosovos unilateral declaration of
Independence in 2008 did not go down too well with Serbia. With three of
the five major states constituting permanent members of the UNSC- US,
England and France backing Kosovo is still in limbo with vehement
opposition from Russia, Serbia and other states. The ICJ, in July-August,
2010, went on to hold that Kosovos declaration of independence did not
violate any rules of International Law.
However, despite all these factors being present in the Montevideo
Conventions definition of the term state can at best only be termed
cadaverous, or as a mere outline. There has been no mention of sovereignty
being a requirement, although scholars perceive that this may be read into it
in the course of understanding the term government. Another issue that
comes to fore is that an entity is accorded statehood only when it displays
capacity to interact with other states, which in turn can be states only if they
can have relations with other states, it displays a vicious circle of sorts.
Self Determination and Statehood
Self-determination implies that nations have the right to freely decide upon
their sovereignty and their political status without any form of external
compulsion or interference. Self-determination as a criterion for statehood
has been found to exist in practice. This has, consequently, resulted in the
acceptance of a lower level of effectiveness. The principle evolved by
leaps and bounds after the First World War. President Woodrow Wilson
actively campaigned for its recognition as a legal principle, but the League
of Nations did not afford recognition to the rule. Nevertheless, several
treaties came forward to recognize the principle. The Aaland Island case,
[299] evidenced the then prevalent notion that self-determination was
deemed only a political concept.
As the Second World War came to a close, states emerged from under the
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thumb of colonial rule by the dozen. Self-determination had, in effect,


secured a position as a catalyst for the achievement of independence of
states under colonial rule. The UN Charter, drafted when the Second World
War ended, recognized self-determination under Article 1(2). The
Declaration on the Granting of Independence to Colonial Countries and
Peoples in 1960[300] recognized self-determination as a matter of right.
[301]
The erstwhile Belgian Congo, which attained independence on 30 June,
1960, also exhibits the inclusion of self-determination as a criteria for
achieving statehood. What came about was a widespread tribal fight, which
in due course of time, spread to the capital city. In time, the Force Publique
had mutinied, Belgian troops had intervened and the province of Katanga
had declared secession. Congo literally suffered a governmental breakdown
of sorts, which, though, never precluded the accordance of recognition by
the International comity and membership in the UN. It is worthy to take note
of the presence of two different factions before the UN, seeking to be
accepted as the legitimate representatives of Congo- one from the head of
state, and one from the Prime Minister, of which the former was accepted.
[302] Rhodesia is another example. A UN General Assembly Resolution
denied the legal validity of the unilateral declaration of independence on 11
November, 1965, and called upon member states not to recognize Rhodesia.
[303] States obeyed the UNs requirements, and Rhodesia was not
recognized. A civil war resulted in the creation of Zimbabwe, a state that
was granted recognition. Rhodesias case evidences a situation where
recognition was deemed a precondition for statehood. On a different note,
useful regard may be had to Guinea-Bissau, the erstwhile Portuguese
colony. A UN Special Mission was dispatched to the liberated areas of the
territories in 1973. It went on to conclude that the colonial power had lost
effective control over large portions of the territory. PAIGC, the local
movement, had control over the area amounting to a quantum between
2/3rds and 3/4ths, and was afforded by foreign observers and inhabitants
alike. On 24 September, 1973, the PAIGC proclaimed that Guinea-Bissau
was an independent state. Subsequently, in a General Assembly resolution,
[304] several states affirmed the validity of this declaration. However,
several western states denied that the criteria of statehood had been
fulfilled. Since about ninety-three states voted in favour of the Resolution,
their view prevailed. Judicial opinion followed the same trend.[305]
As a natural consequence, it would be right to accept self determination as a
criterion of statehood, because otherwise, it would result in the obviation of
statehood. The European Community adopted guidelines on the recognition
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of New States in Eastern Europe, and the Soviet Union on 16 December,


1991.[306] This crystallized and presented a common position on the
recognition of new states, referring to self-determination, along with the
need to respect the rule of law, democracy and human rights. Recognition of
the state implies the accordance of acceptance, of certain factual situations
and endowing them with legal significance. Briefly, there are two theories
of recognition, the declaratory and the constitutive theory. The declaratory
theory maintains that recognition is merely perfunctory in nature, in that it
takes a political colour, as opposed to a legal one. The constitutive theory
purports that recognition is a factor instrumental in creating the state.
Recognition may be understood to hold a rather integral relationship with
the criteria of statehood, in that the more overwhelming the scale of
recognition, the lesser a demand there shall be in terms of objective
demonstration of adherence to the criteria concerned. Conversely, the lesser
the extent of recognition, more attention will be given to the proof of actual
adherence to the criteria.
Extinction of Statehood
The extinction of statehood may occur generally as a consequence of
mergers, absorptions or annexation. The international community needs to
be cautious in accepting the dissolution of a state. The disappearance of a
state is a matter of fact, one that is conditioned by the legal realm, which in
turn apportions legal consequences. Governments easily and generally
disappear, but it is a whole lot rarer for a whole state itself to become
extinct. Because international law comes down heavily on any use of force
whether external or internal,[307] the only way a state may pale into
extinction by way of consent. The Republic of Yemen was created as a
merger of North and South Yemen, in May 1990.[308] Czechoslovakia
dissolved in January, 1993, establishing thereby the Czech Republic and
Slovakia, which is evidence of the dissolution of the erstwhile state,
resulting in the creation of a new one. It is necessary to note that a
continuation of a state does not tantamount to the extinction of the
predecessor state. Russia and India are examples of this. Having emerged
from the USSR, what occurred to Russia was only a case of dismemberment
of other entities, leaving Russia as the remnant that emerged as a
continuation from where the USSR left off.[309] India emerged as the
continuation of India and Pakistan, while Pakistan was a new state.[310]
Self-determination has consistently been used as a means to protect
sovereignty and territorial integrity.[311] Where an entity has actively begun
recognizing itself as an entity possessing such attributes, and seeks to
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determine its own status as it ought to exist in the International anarchy, selfdetermination is their ultimate aim, an aim that needs to be taken into
consideration in their pursuit of acquiring statehood.
Fundamental Rights and Duties of States
States in the anarchical realm mostly endeavour to function in a manner most
befitting the need for the maintenance of peace and order. As a consequence
of being subjects of the International Legal Realm, states are clothed with
rights and duties. In construing these fundamental rights and duties, it is a
fact worthy of mention, that the rights a state possesses, form the very duties
it owes to other states in the International Realm. Some of these rights and
duties are thus enumerated:
Independence. Sovereignty and independence underlie the very crux of a
states existence. The term independence was defined in the Draft
Declaration on the Rights and Duties of States, 1949, prepared by the
International Law Commission, to be the capacity of a state to provide for
its own well-being and development, free from the domination of other
states, providing it does not impair or violate their legitimate rights.[312]
At all points, however, it is important to remember that by subjecting itself
to the rule of International Law, a state does not compromise on its
independence. Political or economic dependence also does not imply that a
state forgoes its independent status, unless such state has been forced, or
compelled to submit to the demands of the superior state. In the AustroGerman Customs Union case,[313]Judge Anzilloti noted that any
restrictions upon a states liberty, whether emerging from customary law or
treaty obligations, do not in any way affect its independence. This is as long
as such restrictions do not place the state under the legal authority of another
state.[314]
In the Nicaragua case,[315] the ICJ states that in International Law, there
are no rules as may be accepted by the states concerned, by treaty or
otherwise, whereby the level of armaments of a sovereign state can be
limited, and this principle is valid for all states without exception. In the
Legality of the Threat of Nuclear Weapons case,[316] the Court held that
state practice shows that the illegality of the use of certain weapons as such
does not result from an absence of authorization, but on the contrary, is
formulated in terms of prohibition. Essentially, International Law permits
the exercise of such rights unless otherwise constrained by an explicit rule.
Independence as a right gives way to several other rights and duties, such as
the right to exercise jurisdiction over its territory and population, the right to
engage in self-defense. As a necessary corollary, a duty not to intervene in
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the internal affairs of other sovereign states exists. This was affirmed in the
1970 Friendly Relations Declaration, and arises out of Article 2(4) of the
UN Charter. Non-intervention is essential in order to maintain the balance of
power in the International arena.[317] A state, at no point, can so much as
purport to enforce its laws on the territory of another state without consent
of such other state.
Equality of States. As a consequence of state sovereignty, it is natural that
all states be treated equal, given that the International system hinges on
anarchy. This equality is ensured irrespective of the size, power and age of
the state. The UN recognizes this notion by allowing one vote per state in
the General Assembly. The 1970 Friendly Relations Declaration also
purports the same notion. The underlying philosophy of the equality of states
norm is that there needs to be a balance of power in the international realm.
If every state is sovereign it is mandatory that no state be deemed superior
to the other, and no state can be allowed to exercise rights over another.
Albeit theoretical, the practical manifestations of the rule differ greatly.
Major states always have an influence, purely because their concerns are
much wider, much deeper, and their powers are more effective. The UN
maintains the equality of states with the one-state-one-vote policy, but still
maintains the veto power in the Security Council, exclusively for the USA,
UK, China, Russia and France, which seems some sort of an anathema to
what the notion of equality stands for.
Peaceful Coexistence. Peaceful co-existence refers to a principle that was
formulated by the USSR, China, and a few other developing nations. The
Non-Aligned movement during the Cold War, in 1954, crystallized peaceful
co-existence as one of the five major principles.[318] As an extension of the
rule of prohibition of a use, or even the threat of use of force, it is clear that
peaceful coexistence emerges as a natural corollary. The UN has afforded
this principle recognition.[319] The UNGA Res 3314 prohibits
aggression, thereby harping on the key rule of peaceful co-existence.
Kinds of States
Albeit ultimately a subject of international law, states are essentially of
different kinds. Understanding these differences is merely to decipher the
internal workings of each state, and to understand the impact of International
Law on each of these entities. Aside of differing with respect to cultures and
inhabitants and other socio-economic aspects, states differ greatly in their
political structure, which in many ways, defines their status in the
International Realm. The most common kinds of states are hereinbelow
described:
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Confederations. A confederation refers to an association of sovereign


states, which, by way of a treaty have chosen to delegate certain aspects of
their own competences and powers to a common institution administering
all the states, with a view to coordinate their policies in many spheres,
without constituting a new state supervening the member states. A
confederation respects the sovereignty of its members and the treaty
constituting it can only be changed by way of unanimous agreement.
Common examples of confederations include Canada, Switzerland, Iroquois
and the European Union. A recent trend has been detected in Belgiums
trajectory as a state, where scholars world over have indicated the
evolution of Belgium as a confederation.[320] Usually created by way of a
treaty, most confederations are known to adopt a common constitution. Most
confederations are established for the purpose of dealing with critical
issues such as defense, foreign affairs or a common currency. Generally, the
central government that is created by the treaty between the states, is
required to provide support for all members. The nature of the relationship
among the states constituting a confederation varies considerably, depending
on the very substratum upon which the confederation itself is built. The
relationship between the member states, the central government and the
distribution of powers among them, are all equally highly variable, since all
of this depends largely upon what nature of activity underlies the creation of
the confederation. A loosely created confederation is more or less similar to
intergovernmental organizations, while tighter confederations may resemble
federations.
Federations. A federation is characterized by the union of partially selfgoverning states or regions that are united by a central or federal
government. In a federation, the self-governing status of the states
comprising it is quintessentially constitutionally ingrained and hence, may
not be altered easily enough by a unilateral decision of the central
government. The governmental structure of a federation is called federalism.
A classic example of a federation is the United States of America, with fifty
states comprising it. Another prominent example is the government of
Germany with sixteen federated Lnder is an example of a federation.
Federations may be multi-ethnic, comprise of multiple races and even of
linguistic mixes, and may, in terms of geographical expanse, cover a large
area of territory. However, it is important to note that none of these are
necessarily the case, and are not prerequisites to fuel the creation of a
Federation. Federations are fundamentally founded on what is called, an
original agreement, forged between a number of sovereign states based
purely upon mutual concerns or interests.
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Unitary States. A unitary state is a state with a single, centralized, national


tier of government, along with one or more self-governing regions as is seen
in some cases. As regards a unitary state, the general notion is that,
regardless of the actual status of any of its parts, its entire territory
constitutes a single sovereign entity or nation-state, and that by virtue of this
the central government exercises sovereignty over the whole territory as of
right.
The basic difference between a federation and a unitary state is that in the
latter, the autonomous status of self-governing regions exists by the
discretion of the central government, and may, at its own discretion, be
unilaterally revoked. It is commonplace for a federation to be brought into
being by agreement between several formally independent states, but in a
unitary state, self-governing regions are often created by way of a process
of devolution, where an erstwhile centralized state agrees to grant autonomy
to a region that was originally entirely subordinate. In a nutshell, thus, it
would be right to surmise that federations are established voluntarily from
'below' while unitary states evolve from 'above'. Sovereignty resides in the
hands of a single central authority, in the Unitary State. In a federation
sovereignty is often regarded as residing notionally in the component states,
or as being shared between these states and the central government.
Condominium. A condominium is said to exist when two or more states
exercise rights over a territory. An example of a condominium is New
Hebrides, over which France and England had control between 1914 and
1980. Austria and Prussia exercised rights over Schleswig-Holstein and
Lauenburg between 1864 and 1866; Great Britain and Egypt over Sudan,
between 1898 and 1955, and Great Britain and France over the Islands of
Canada and Endenbury after 1939.
Vassal State. A vassal state refers to a state that is subordinate to another,
or, under the suzerainty of another state. The vassal in these cases is the
ruler, instead of the state itself. Being a vassal most commonly implies
providing military aid and assistance to the dominant state when it is
requested to do so. It sometimes implies paying a tribute, but a state which
does so is essentially a tributary state. In the present day and age, more
common terms are puppet state, protectorate or associated state.
Protectorate State. A protectorate state entrusts its matters of security,
defense and external affairs to another state, and is not completely sovereign
when it comes to its own internal and external affairs. Its sovereignty is
taken by the country of which it becomes a protectorate state. A protectorate
state enters into an arrangement with another state under which, while
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separate legal personality may be involved, separate statehood is not.


[321]An example of such an arrangement is Morocco, where the Treaty of
Fez, 1912, with France gave France the power to exercise sovereignty on
behalf of Morocco in all aspects of its international relations. However,
Moroccos position as a sovereign state has reinstated, particularly by the
ICJs announcement to such effect.[322] Protectorates cannot be confused
with a colonial protectorate, as it existed during the colonial period.[323]
Mandated and Trust Territories. Mandated and trust territories date back to
the times of the First and the Second World Wars. When the First World War
drew to a close, the Axis and the Russian empires met their demise. The
Allies then established a mechanism to deal with the colonies of the
defeated empires, avoiding annexation. The underlying notion of such
governance was the principle that the well-being and development of such
peoples form a sacred trust of civilization. Advantaged nations, in terms of
resources, experience and geographical position would take charge of the
people, in capacity of Mandatories on behalf of the League.[324] With the
collapse of the League of Nations, and then subsequently the Second World
War, the mandate system was transmuted into the United Nations Trusteeship
System under Chapter XII and XIII of the UN Charter.[325] Early instances
show that the trust territory of the Pacific, as was taken from Japan, was
placed in a category subject to the UN Security Council for security reasons.
[326] South Africa refused to place its mandated territory as a trusteeship
territory.[327] Germany, in and after 1945 is worthy of mention in this
regard. At the end of the Second World War, Germany was divided into four
occupation zones, with control in the hands of four powers, over Berlin. As
a state, of course, Germany continued in a manner quite like a situation of
legal representation, or an agency of necessity.[328] Germany gained full
sovereignty in 1952, subject to retained powers with the three Western
Powers. In 1972, the Federal Republic of Germany and the German
Democratic Republic established in 1954 by the Soviet Union in its zone,
recognized each other as sovereign states.[329] By 1989-1990, the
reunification of Germany became a much sought after aspiration, eventually
happening. With the progressive signature of treaties on economic,
monetary, social, unification and final settlements, by 1990, Germany
evolved as an independent state.
Association of States. States are known to have arranged themselves into
formal associations with one another. An association of such a nature does
not create a state in itself, but certainly impacts the international legal
regime. Some small states with frugal development have close relationships
with other states. New Zealand and the Cook Islands is an example of this.
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Internal self-government is entwined with external dependence. The West


Indies is another example. Originally tied to the UK by way of the West
Indies Act, 1967, the states ultimately gained independence.[330] Other
examples include the Commonwealth of Nations, an association which links
together states with common interests. The SAARC, ASEAN, NATO,
SEATO and CENTO are all associations of states with a view to promote
regional interests and advancement. During the Cold War, several states
decided against taking sides in the hostile exchanges between the USA and
the USSR. This gave vent to the emergence of the Non-Alignment faction,
comprising of states that were not aligned to either camp, i.e., USA or the
USSR, during the period of the Cold War. With the dissolution of the Soviet
Union, and the emergence of the Russian Federation and other Republics
becoming independent, the Commonwealth of Independent States was
formed.[331]
Individuals
The inclusion of individuals as subjects of international Law is deeply
rooted in the emergence of the human rights law and international criminal
responsibility. Originally, only states were deemed subjects of International
Law, but the theory began waning with the understanding that individuals
were what constituted the state itself. Inherently entwined with the concept
of State Responsibility is the concept of citizenship. In the early days,
individual rights were only those that were ascribed, or granted to the
citizens of the State. However, this paved the way for issues such as
inclusion and exclusion, which boiled down to a segregation of rights, as
such, into those that could be enjoyed by a citizen, and those that could be
enjoyed by non-citizens. This segregation came up much after the initial
segregation as existent amongst the citizens themselves- i.e., women and
people from colonies. However, from before the United Nations, the
individual was steadily being recognized as a subject. Humanitarian law
was steadily being codified, with the ultimate aim of dispensing with the
effects of war on combatants and civilians, and aliens were given minimal
protection. The individual was, at all times, nevertheless, construed as an
entity associated with the state, and was not regarded as a subject of
international law. After the Second World War, this glaring defect in the
status of the individual was glaringly evident. It became clear that the state
was not the permanent and immediate guardian of the rights of its citizens.
Gory incidents such as the Holocaust paved way for the awareness of the
need for a strong Human Rights regime, which in turn resulted in the grant of
recognition of the individual as a subject of International Law.[332] With
the understanding that human rights are only just guaranteed by the state, and
83

not granted by the state, by virtue of the fact that such rights are inherent,
sovereignty and citizenship as a link between the state and the individual
took a backseat, giving the individual prominence at the international level.
[333]
While human rights law has been a major factor in expanding international
law enough to include individuals within its ambit, it is not the only reason.
International law identifies nationality as a link between the state and the
individual. This is a very important factor particularly in the light of
jurisdictional issues, and the international protection of individuals by
states. Every state is vested with the right to determine who its nationals
are, but for the acceptance of such recognition of the identity, there needs to
be a genuine connection between the two.[334]
Despite an explicit recognition of individuals as subjects of International
Law, it must be remembered that an individual is not conferred with locus
standi to protest against a breach of International Law.[335] However, an
individual, or few, may actually be conferred with the power to act on
behalf of the state as an agent or a representative. In the past, individuals
were conferred with particular rights capable of being enforced in
International Law notwithstanding what municipal law stipulated. The 1919
Treaty of Versailles allowed nationals of the Allies and their associated
powers to bring cases against Germany before the Mixed Arbitral Tribunal
in their own names, for compensation.[336] In the Danzig Railway
Officials case,[337] the PCIJ held that treaties in International Law did not
as such create direct rights and obligations for private individuals.
Particular treaties, however, can provide for the adoption of individual
rights and obligations enforceable by the national courts where this was in
particular the intention of the contracting parties. Examples of such cadre
include the European Convention on Human Rights, 1950, the European
Convention Treaties of 1957, the Inter-American Convention on Human
Rights, 1969, the International Convention on Civil and Political Rights,
1966, the International Convention on the Economic, Social and Cultural
Rights, 1969 and the Convention on the Settlement of Disputes, 1965.
International criminal responsibility is another area that has sparked off
much encouragement in the direction of including individuals as subjects of
International Law. International law has imposed direct responsibility upon
individuals in certain spheres of action.[338] Piracy, slavery and torture are
deemed cases where offenders guilty of the crime can be tried and punished
by international tribunals.[339] The earliest instance dates back to 1919,
where the Treaty of Versailles recognized the rights of the Allied and their
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associated powers to bring individuals accused of crimes against the laws


and customs of war before military tribunals,[340] and also established
individual responsibility of the Kaiser.[341] The Nuremberg Trials
heralded a new era in international criminal responsibility. The tribunal was
known to have held that international law imposed duties and liabilities
upon individuals, too, because crimes are committed by individuals, and not
by abstract entities such as the state, and, only by punishing the individuals
who commit the crimes, can the provisions of International Law be
enforced.[342] With the affirmation of these principles and the Tribunals
decision by the UN General Assembly in Resolution 95(1), these principles
began to be construed as an integral part of International Law. Genocide is
deemed a crime in International Law, and attracts individual responsibility.
[343] This parameter is afforded recognition in the 1948 Genocide
Convention and in the 1973 International Convention on the Suppression and
Punishment of the Crime of Apartheid. The International Humanitarian Law
regime also confirms individual criminal responsibility. The four Geneva
Conventions of 1949 and the Additional Protocols of 1977 in particular,
stress upon the fact that the High Contracting Parties ought to undertake to
enact necessary legislation to provide effective penal sanctions for grave
breaches by an individual.[344]
The International Law Commission has adopted a Draft Code of Crimes
against Peace and Security of Mankind in 1991, which clamps down
individual criminal responsibility for aggression, genocide, a crime against
humanity, a crime against the United Nations, and any war crimes.
Nevertheless, individual criminal responsibility does not hamper state
responsibility.[345] In 1994, the ILC adopted a Draft Statute for the ICC,
[346] which ultimately culminated in the Rome Statute. Special courts have
been established for Yugoslavia, Rwanda and Sierra Leone to deal with
individual criminal cases.
International Organizations
International organizations have played a major role in International Law.
With the end of the First World War, the growth of International
Organizations began with the League of Nations. It is well established in
Law that international organizations possess international legal personality.
[347] However, the question of an organization possessing a status as a
subject of International Law depends largely upon the constitutional
conferment of powers and duties. As evidence of the same, the capacity to
enter into relations with other states and organizations is to be studied in
detail. An international organization once again, boils down to states which
85

in turn boil down to individuals.


International organizations are usually always established by way of a treaty
that acts as a Charter creating the group. They are totally different from
simple groupings or coalitions of states, such as the G8 or the Quartet. Such
groups or associations have not been founded by a constituent document and
exist only as task groups. Such organizations are also fundamentally
different from treaties. Many treaties do not establish an organization and
instead rely purely on the parties for the purposes of their administration,
ultimately succeeding in becoming legally recognized as an ad-hoc
commission. Non-organization creating treaties have essentially established
an administrative apparatus that was not deemed to have been accorded
international legal personality.
Non-State Actors
Non-state actors is a term used to refer to all those entities in International
Law, that are not states, and do not fit into the description of an international
organization, or that of individuals alone. The extra factor that differentiates
an individual from a non-state actor, aside of the fact that the latter is
essentially a group of individuals, is that non-state actors do not always
affiliate themselves to any state, and operate as a faction on a global plane.
Despite the fact that most scholars question the possibility of including nonstate actors as subjects, and the conferment of responsibility upon them,
most scholastic opinion unanimously agrees that such non-state actors
certainly possess rights. At any rate, this at all costs would spark off
debates as to how rights alone may be conferred, while obligations cannot.
It is the fundamental norm of jurisprudence that a right has a necessary
opposite in a duty, and that a right devoid of a duty would inevitably lead to
an untrammeled use of the right.
For any entity to be deemed to be a subject of International Law, certain
requirements need to be met. Mere conferment of rights is not enough. There
needs to be an active entitlement allowing him to claim his rights, or a
passive entitlement allowing him to be tried and held accountable before an
international body.[348] This approach has been criticized on two main
grounds. Rights may very well exist without obligations, and that the
question of who is and who isnt a subject of international law is, in
Professor Rosalyn Higgins words, just an intellectual prison of our own
choosing, then declared to be an unalterable constraint.[349] The question
as to who is, or who isnt a subject of international law, is a political
decision. Law makers determine that a non-state actors deeds impact the
international community to such an extent that it necessitates its actions to be
86

regulated by International Norms, thereby encouraging the law makers to


create the law.[350] Thus, all we need to do is to see the capacity of the
entity in International Law.
Were it true that International law be in favour of affording Non-State
Actors the status of a subject in International Law, it would put an end to
several issues. Terror outfits, one of the forms of Non-State Actors, could
be brought to book without being hampered by state responsibility and the
issue of demanding their extradition. Imposition of human rights obligations
upon a non-state actor alone would put them in a straitjacket of sorts,
demanding their conformity with international responsibility.
Two kinds of non-state actors exist, namely, violent non-state actors, and
other non-state actors. Violent non-state actors refer to any organization that
uses illegal violence, which is any form of force that is not officially
approved of by the state, in order to reach its goals. The term has been used
in several papers published by the United States military.[351] The term
Non State Actors was widely used in the context of development
cooperation, particularly under the Cotonou Agreement between the
European Union (EU) and the African, Caribbean and Pacific countries. In
the Cotonou Agreement, the term refers to a wide range of nongovernmental
development actors whose participation in ACP-EU cooperation is now
formally recognized. Article 6 of the Cotonou Agreement states that nonstate actors include Civil society in all its diversity, according to national
characteristics, Economic and social partners, including trade union
organizations and the private sector.

The Holy See- A sui generis case


The legal status of the Holy See, in the context of both, state practice and
according to the writing of modern legal scholars, is that it is indeed a full
subject of public international law, with all the rights and duties analogous
to those of States. Although the Holy See does not fulfill the longestablished criteria in international law of statehood, its possession of full
legal personality in international law is backed by the fact that it has
diplomatic relations with as many as 177 states, and that it is a member of
various intergovernmental international organizations.[352] This peculiar
nature of the Holy See under international law, as a non-territorial entity
with a legal personality led professor Ian Brownlie to deem it as a sui
generis entity.[353]
However, it is worthy to note that the Holy See itself, while claiming
87

international legal personality, does not claim to be a State. Cardinal JeanLouis Tauran, the former Secretary for Relations with States of the
Secretariat of State of the Holy See, opines that the Holy See is a sovereign
subject of international law but of a predominantly religious nature.
Some scholastic opinion, perceives the current legal personality of the Holy
See to be a remnant of its preeminent role in the course of medieval politics.
It has been noted that the Holy See has been an actor in the evolution of
international law since before the creation of strong nation states, and that it
has maintained international personality since.[354] Divergent scholastic
opinion, however, holds that the international personality of the Holy See
arises solely from its recognition by other states.[355] Another faction
professing a different opinion from the aforementioned, holds that the
international legal personality of the Holy See is based mostly, but not only,
on its unique spiritual role. This seems to be an incomplete understanding,
however, of the grounds on which its claim as a subject of international law
can be justified, since, in this view, the Holy Sees claim to international
personality can also be justified by the fact that it is recognized by other
states as a full subject of international law.[356] The Lateran Treaty seems
to support this point of view. Under Article 2, Italy was known to have
recognized the sovereignty of the Holy See in the international domain as an
attribute inherent in its nature, in accordance with its tradition and with the
requirements of its mission in the world.
National Liberation Movements
International law has long since recognized insurgents in civil wars, as
subjects having certain rights and duties because they control some territory,
and may in all probability, become the effective new governing authority of
the state.[357] Articles 14 and 15 of the ILCs Draft Articles on State
Responsibility support this viewpoint. However, this is largely related to
the issue of self-determination and non-self-governing territories. The UN
general Assembly has allowed the grant of an observers status for National
Liberation Movements.[358]

88

PART II: STATES AS SUBJECTS OF


INTERNATIONAL LAW

Chapter 5- State Recognition


The dynamic nature of International Law owes ample credit to the vagaries
of political systems world over. History is full of instances of new states
being created, as old states fade away into oblivion. Governments change
periodically, automatically infusing world politics into International Law,
and thereby infusing new perspective. Every event on the international frontrebellions, terror attacks, creation of new states- throws up newer theories
and perspectives, each of which have plenty of legal consequences.
Recognition is most concerned with the legal consequences that emerge
from every such event, and every state is vested with the choice of affording
recognition to any newly emerged international entity. With recognition, a
State expresses its approval of the changes that have occurred in the
International polity, and manifests its willingness to maintain intercourse
with the new entity or government involved.
Recognition results, in both, legal and political consequences at the
international and the national levels. A simple example is, that if an entity is
recognized by State A to be a state, rights and duties otherwise irrelevant,
89

will begin to be considered. Municipal courts would accord privileges to


the foreign state, which would otherwise not be allowed to most other
institutions or entities. The choice to recognize or not to recognize hinges
largely upon the political considerations as opposed to legal factors.
Recognition is not confined to the application of legal principles to facts,
because states may not wish to have such consequences follow at any level.
One example for this is the United States choice to not accord North Korea
recognition, primarily to avoid the onslaught of the legal effects flowing
from such recognition.
The extent of dynamism and a continuous state of flux has made recognition
one of the most difficult topics in International Law.[359] It sparks of plenty
of debate, and there is not a scintilla of doubt as regards its impact on the
political and legal scenario. Recognition stands out as one of the major
areas where there cannot be a clear cut divide between law and politics,
thereby making it difficult for one to extricate from the other. Even if a state
chooses on purely political grounds, to refuse, or to accord recognition, its
decision can well be deemed capable of having plenty of legal
consequences. These legal effects, so to speak, have a different set of
consequential results in International Law, as from those in Municipal Law.
Recognition dabbles with a plethora of factual situations, and cannot be
straitjacketed and deemed applicable only in one specific genre of
circumstances. Aside of the recognition of states and governments,
recognition, in principle, may have a role to play in the context of territorial
claims, the recognition of belligerency, insurgents, national liberation
movements, and foreign legislative, administrative or executive acts.
Recognition of a state differs from the recognition of a government, in that
the former results in the acknowledgment of the entity as fulfilling the
criteria of statehood. The latter refers to acknowledging the authority in
effective control of the state at the stipulated point of time. The fundamental
difference segregating one from the other, ultimately, is that there can be
recognition of a state, without recognizing the entity in power at that
particular time, while the opposite is not a possibility, since the recognition
of the government automatically means that the state is recognized.
Recognition of States A definitive perspective
Recognition, generally speaking, refers to a process whereby certain facts
are accepted and endowed with, or are conferred with a certain legal status,
such as statehood or sovereignty over newly acquired territory. It signifies
the willingness, and positive choice by a state in the international
community, in favour of accepting the new state as a member of the same
90

community. In a nutshell, thus, Recognition is simply a procedure whereby


the governments of existing states respond to certain changes in the world
community, and a means by which existing states seek to effect changes in
the same community.[360] The process of recognizing a new entity as a state
is political in nature, allowing room for each country to decide for itself as
to whether it is to extend such acknowledgment, or withhold the same.
International recognition is a rather important piece of evidence indicating
that the factual criteria of statehood actually have been fulfilled.
The Institute of International Law defines recognition of states as the free act
by which one or more states acknowledge the existence on a definite
territory of a human society politically organized, independent of any other
existing State and capable of observing the obligations of International law,
and by which they manifest therefore, their intention to consider it a member
of the International Community.[361] Recognition is one of the means by
which the subjects of International Law may make a situation or transaction
acceptable or opposable to themselves.[362]
Oppenheim defines recognition as being a means through which the
recognizing state declares that a foreign community or authority is in
possession of necessary qualifications of Statehood, of governmental
capacity, or of belligerency.[363] This definition requires that all the
essential qualifications of Statehood, namely, a population, a defined
territory, a government and the capacity to conduct its international relations
independently,[364] needs to be in existence before the entity is to be
fulfilled. However, state practice evidences a deviation from this
precondition. The definite nature of territorial expanse is not a sine qua non
for the purposes of recognition, as was proved in the case of Israel, which
was recognized as soon as it was granted independence in 1948 by the
United States and many other nations. Further, practice also evidences that
the prerequisite for a stable and effective government for Statehood is also
not a mandated precondition.[365] However, it must be remembered, that in
fulfilling all the essential criteria for the achievement of statehood does not
automatically imply that recognition must follow. It is possible that there
may be no recognition despite these criteria being fulfilled, because there is
no duty to recognize, but that there is only just a political discretion of sorts.
States are motivated by their own interests, in determining whether or not it
should recognize the newly emerging state.
The term recognition, when used in the context of recognition of States and
governments in international law, may have several different meanings. It
may indicate a range of things, spawning from the recognizing States
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willingness to enter into official relations with a new State or government,


or explicitly express its opinion on the legal status of a new entity or
authority, or both. Conceptually, it boils down to a state acknowledging the
status of any entity in International Law, as a subject therein. A state may be
recognized as being fully sovereign, or as an effective authority in a specific
area, or even as any state subordinate to another state.[366] Recognition is
thus an affirmation by one international legal person, of the status of another
entity, as being a legal person, or, of the validity of a specified factual
situation. Recognition causes factual and legal consequences.
Historically, the earliest instance of recognition was in 1648, when Spain
recognized the United Netherlands as a state, which had declared their
independence in 1581. When France and Britain were in dispute as regards
the status of the United States of America, Britain perceived that title to
territory could not be established by way of a revolution or war, if the
former sovereign did not recognize the title. France took a different stance,
accepting that based on the doctrine of effectiveness, title was indeed to be
recognized.[367]
Recognition of governments and national liberation movements is in
definitive terms, governed by the same parameters of political motivation,
and interests of the states concerned. A classic example of this is the PLO.
The Palestine Liberation Organization was given the status of an observer
by the United Nations General Assembly, in 1974.[368] It went on to
declare the establishment of the independent state of Palestine in 1988 by its
Parliament-in-exile, or the Palestinian National Council.[369] The
erstwhile Government in exile was in Tunisia, and was accorded
recognition by several states, including India among others.[370] Today,
newly formed states such as Kosovo, Abkhazia and South Ossetia are still
awaiting recognition from a large majority of states in the International
anarchy. The case of Kosovo is particularly interesting, in that three of the
major powers housed as permanent members of the Security Council, i.e.,
the USA, UK and France have recognized Kosovo, while Russia and China
have not. This seems a case of double standards on part of the former, as
none of the states as much as afford an iota of recognition to South Ossetia
or Abkhazia. This is clearly indicative of political interests being the
factors backing the choice of the state to recognize, or to not recognize. The
legal consequences emanating therein, are that Abkhazia or South Ossetia,
or Kosovo, for that matter, will not enjoy rights under the municipal legal
regimes of the states not recognizing them. It must be remembered that
though some states that are unrecognized by the world community may be
members of the United Nations, it does not automatically evince recognition,
92

although it is a clear-cut case being made out in favour of announcing that


the concerned entity is indeed a state.
Albeit highly politically motivated, and self-interest inspired, recognition
finds a place in International Law on account of the legal consequences that
emanate from it. The recognized entity enjoys certain rights and duties under
International Law, and also under the municipal laws of the states that have
recognized it. Once recognized, the state granting such recognition is not
allowed to contest the qualifications for recognition.[371]
Theories of Recognition
Albeit a very practical aspect of International Law, two theories
fundamentally govern the process of recognition, thereby creating models
of recognition. The core contentions of these theories are indicative of what
goes into the recognition process, and what emanates from the accordance
of recognition. The theories study the manner in which recognition itself is
perceived by the states in question, which in turn, indicate how the state, or
the entity concerned is perceived. The two basic theories are the
Constitutive, and Declaratory Theory.
The Constitutive Theory
The Constitutive theory puts the process of recognition on a rather high
pedestal. The crux of the theory is that recognition is the fact that constitutes
the state, or brings the state into existence. The theory purports that until
such time that recognition is accorded, the entity is not a state at all. A state
is, and becomes, according to this theory, an international person through
recognition only and exclusively.[372] The state, in effect, evidently
deduces its legal existence from the will of those that have already been
established.[373]
The theory originated with Jellinek, who was essentially the first to give
modern formulation to the constitutive doctrine of state recognition,
contending that legal relations in the form of legal rights and duties between
two entities not subject to a superior legal order can arise only as the result
of mutual recognition of legal personality.[374] Though essentially stating
that every state actually part of organized humanity enters ipso facto into the
general community of States, Jellinek urged that recognition is a necessary
factor in order to make it a part of the juridical community of States, thus
seeking to distinguish between statehood and membership in the
international community, which is the fount of rights dependant on
recognition. Scholastic opinion, subsequently, in favour of this school of
thought included those of Triepel and Anzilotti.[375] Anziloti primarily held
that rules of international law emerge from the consent of States, and
93

naturally, a subject of International law should come into being


simultaneously with the conclusion of the grant of recognition.
Despite rather supportive scholastic viewpoints, the theory has a catena of
downsides to it. When a new state appears on the scene, possessive of all
the requisite attributes that deem it a state, and it is not recognized, the state
would essentially be a cat on the fence, being both, an international person,
and not an international person, all at once.[376] Recognition cannot, for all
practical reasons, be afforded by all the states at one time together. States
take time in deciding whether or not to afford recognition, in the process
taking longer, or less longer in comparison with other states. With all these
practical potholes in place, there is no wrong in admitting that recognition is
in no way any form of conclusive proof of the existence of the state itself.
This is buttressed ably by state practice, which indicates clearly that nonrecognition does not automatically mean that the entity does not exist, given
that legal history is full of instances where judicial remedies have been
sought against unrecognized states or governments under International Law.
In the Pueblo case,[377] the case was between the United States and North
Korea, although the United States did not recognize North Korea. The
United States ship was captured by North Korea for spying in North Korean
territorial waters. It was released later without trial, when the United States
a document, indicating that the Pueblo, their vessel, was indeed spying.
Similarly, the Tinoco Arbitration case,[378] was an arbitration between
the United Kingdom and Costa Rica, the latter not being recognized by the
former. The Tinoco government took over the country by force in 1917,
while at the same time proclaiming its own constitution. The government,
which remained in power until 1919 was subsequently ousted, paving way
for the new government which passed a decree that repudiated some of
Tinocos obligations towards British Nationals, among other obligations.
The Tinoco government was not recognized by the United Kingdom, thereby
leading to the UK bringing in a claim on behalf of its nationals against Costa
Rica. The Costa Rican contention was that the UK did not recognize Tinoco,
and hence, the claim could not be sustained. The arbitrator, however, ruled
that the UK could very well bring in a claim even though it did not recognize
Costa Rica. In 1949, when British airplanes were shot over Egypt, by
Israeli airmen, the British government demanded compensation from Israel
though it had not recognized Israel.[379]
Were it true that the constitutive theory be the rulebook that ought to be
followed, there would be too many fallacious consequences to deal with. If
an entity is not a state until it is recognized as one, as a natural corollary, it
would imply that such entity has no rights or duties under International Law,
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and under the concerned municipal law. While in each of the above cases
there was no recognition, it is clear that the entities were all under
obligations to the states suing them in the International sphere of action.
Secondly, states are free to decide if they wish to accord recognition, or
withhold the same. This is entirely a political decision of sorts, one that
cannot be put in a straitjacket of mandate. When a state decides to grant
recognition, it is merely a case of recognition following the cognition of the
very factual existence of the entity.[380] Thirdly, recognition works
retrospectively, in that the state once recognized, all acts and laws of the
state are given effect to from the time the state in question fulfilled the very
quintessence of the criteria for the attainment of statehood. Retroactivity
flows from the underlying philosophy of State sovereignty, in that there
should be continuity in the states functioning, which would otherwise lead
to nullifying transactions entered into by the unrecognized entity with private
citizens of a State. The theory, however, is a rather severe demonstration of
sovereignty, in that unless a sovereign state recognizes an entity as a state,
such entity is not a state. This puts a spoke in the wheel of the constitutive
theory, since the core contention of the theory rests on the foundation-stone
of the norm of non-existence of a state prior to recognition.
However, the Constitutive theory is not entirely dismissed. In some
circumstances, the emergence of a new state, or the establishment of a new
government by deploying means that are unconstitutional or even the
occupation of a territory legally claimed will be sufficient to establish a
state without opposition. Such evolution may leave the new state insecure,
and thus, recognition would be of immense value, in bringing the state into
accepted existence.
The Declaratory Theory
The declaratory theory, popularly known as the evidentiary theory contends
that recognition is merely perfunctory, because a state exists even if there is
no recognition accorded to it. Recognition is merely a declaratory piece of
evidence, indicating that the state has indeed fulfilled all the essential
requirements of statehood. The theory purports that an entity does not derive
statehood from the consent of other states, but from its own set of factual
circumstances. The state is what it is for the simple reason that it acquires
independence by way of its own efforts, and does not need to await
recognition in order for it to attain statehood.[381]
The declaratory theory enjoys greater favour as opposed to the constitutive
theory, given that it is highly accommodative of the political nature of
recognition. The theory does not depict a situation of incapacitation on part
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of the state if there was no recognition. State practice and judicial opinions
depict that even non-recognized entities are bound by their international
obligations.
Over the past century, practice has evidenced that the declaratory approach
has been preferred over the constitutive approach. States that have refused
to recognize other states,[382] rarely contend that the other party is devoid
of powers and obligations before International Law and exists inside a legal
vacuum. This indicates that recognition is not given for purely political
reasons, and that such refusal does not mean that the state in question is not
bound by rights and duties in International Law. When a state fulfills all the
requisite elements for the attainment of statehood, it hampers the exercise of
rights and duties, particularly in that there will be no diplomatic relations
between the states in question. The Charter of the Organization of American
States adopted at Bogota in 1948, enunciates clearly under Article 9 that the
political independence of states is independent of its recognition by other
states. A state is free to defend its integrity and independence, even before
formal recognition is afforded. The 1936 Resolution adopted by the Institut
de Droit International emphasized that the existence of the new state with all
the legal effects connected with that existence, is not affected by the refusal
of one or more states to recognize.[383] The states that emerged with the
end of the First World War regarded their emergence as states upon their
declaration of independence, and not as a consequence of peace treaties.
[384] The existence or disappearance of a state is a question of fact, and the
effects of recognition by other states are purely declaratory.[385]
The declaratory theory, although pragmatic in its own way by identifying
recognition as decidedly perfunctory, is flawed in one respect. An entity
though in existence, when not recognized by say, a state, or a few states, or
even many states, would find itself in a situation where despite being a state
for all practical reasons, it fails to enjoy the rights and duties under the nonrecognizers municipal laws; and, would also find itself in a situation where
its status under international law, with respect to the other state(s) not
recognizing it, would be one lacking legal personality. To this extent, thus,
recognition seems constitutive.
Recognition is essentially undertaken on the middle-path, in practice,
combining both declaratory and constitutive elements. It is declaratory in
that the process of recognition is based upon certain definitive facts and the
fulfillment of the essential prerequisites of statehood. It is constitutive in
that the acceptance by the recognizing state of the particular community as
an entity possessing all the rights and obligations already inherent in
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statehood.
Recognition- Obligatory v. Discretionary
When a state fulfills all the requisite criteria for statehood, and awaits
recognition from the other states in the international anarchy, there arises a
question as to whether there is a duty to recognize, or if it is a discretionary
issue left to each state to sort out. Lauterpacht opines that once the
conditions of statehood have been complied with, all other states have a
duty to grant recognition. The absence of a central authority in the
International Legal Regime is a handicap in the process of assessing and
according legal personality. this automatically implies that the duty thus falls
upon the states.[386] However, pragmatic as this line of thinking seems to
be, State practice does not support the view point. The United States,
especially, in 1976, declared that in its point of view, International Law did
not mandate that a state ought to recognize another state, and that it was a
question for the judgment of each state to answer.[387] In one sense, this
may seem unfair, but in keeping with the primary tenets of International Law,
it seems clear that a state as a sovereign, is free to determine its own
internal and external affairs, and its standpoint on international affairs and
related issues. This is essentially depictive of the fact that States,
fundamentally, have their own sovereign rights, and this extends to their
choice of granting, or withholding recognition. Granting or withholding
recognition ultimately remains to be an issue of policy, rather than one of
obligation under the law.
Looking at recognition as a duty also depicts another glaring lacuna in the
theory. If states in the international comity are obligated to recognize a
newly formed state, this would, in effect, create a right in the hands of the
newly formed state, to be recognized, and in event of denial, to demand that
it be recognized. However, there is no prudence in considering that the right
could exist, because that would go against the political independence of the
other states that may choose not to recognize the newly created entity for
want of better things for their interests.
Though states may, in essence, refute a grant of recognition, once a new
entity fulfills the requisite criteria for statehood, it cannot quite be ignored
by the International community. In many a situation, states have remained on
their own high-ground of non-recognition as far as a new entity is
concerned, but with time, recognition is eventually granted. This is a facet
attributed to the dynamic nature of the legal realm, and the ever changing
sphere of political action. Globalization has made the world a progressively
smaller place, and interfaces open up a plethora of avenues for states as
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entities to interact in the playground of the international anarchical realm.


Manner of Recognition
Recognition is a dynamic process, involving a mix of knowledge of
necessary facts and an intention to recognize the entity as a state itself.
International law does not clamp down a duty to recognize, and does not lay
down a mode of action to be followed in order to depict recognition. State
practice has showed that recognition may be granted explicitly or implicitly,
the latter being a matter of inference and presumptuous understanding. In any
case, where the state has recognized the other entity, it immediately implies
a case of accordance of acceptance of the entitys status as a legal person.
Explicit Recognition
Explicit recognition, as evident from the name, is a form whereby the state
declares, or announces its recognition of another entity as a state. This may
come to be either in the form of a public statement, or a notification, or a
diplomatic note, or even a personal message sent to the new entity, or in the
form of concluding a bilateral treaty or agreement. The Indian governments
recognition of Bangladesh was by way of a formal declaration.[388] The
United Kingdom followed this mechanism in its recognition of its erstwhile
colonial and dependent territories. This was evident in the context of its
many treaties with its colonies at the time of their independence.[389]
Explicit recognition is easy to cull out, and to use in order to understand the
position of each state in the International realm. Explicit recognition also
works in favour of the state emerged newly, in that it is capable of
accurately determining where its rights and duties can be enforced, and
sought to be enforced in the International Sphere of action.
Implicit Recognition
Recognition need not be expressly depicted all the time. Recognition can
easily be inferred from the conduct of the parties in question. However, in
order to draw a conclusion in favour of recognition, it is necessary that the
act must be of such nature that it is indicative of the fact that recognition was
indeed intended, and that it was an inescapable consequence. As long as the
intention is in favour of according recognition, nothing can preclude an
inference in favour of a position that evinces the accordance of recognition.
[390]
As far as implicit recognition is concerned, bilateral and multilateral acts
are most efficient in aiding a favourable inference. Where a state signs a
bilateral treaty with a new entity, it implies recognition. Of course, only
signature or ratification is insufficient.[391] Allied therewith, is the
establishment and forging of diplomatic relations between the recognizing
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and the recognized, the receipt of consuls of the new state, and sending
individuals in capacity of representatives for the purpose of ceremonial
functions in the new state. Similarly, multilateral acts evince a similar
conclusion. A state is free to express its intention to recognize a new entity,
by way of common participation in a multilateral treaty, or an international
conference, along with the unrecognized entity.[392] Albeit implicit in some
cases, the extent of importance one may attach to the conclusion as derived
from a multilateral act is rather questionable, because ultimately,
recognition is a unilateral and discretionary act. The United States and the
United Kingdom have been rather cautious in adopting this line of thinking.
[393]
Kinds of Recognition- Common Types and Prototypes
Recognition, as is the case with most other forms of protocol based practice
in International Law, produces varied patterns of action. As already
enunciated, there is no set of norms to abide by in the course of practice.
This has only lead to a wide venation of types and prototypes on the leaves
of International Law. Some of the most common ones are explained herein.
De Facto and De Jure Recognition
Recognition may be of two forms, de facto and de jure. The distinction is
rather important to the countries modeled on the Anglo-American system.
With the exception of the cases involving newly emergent states, the
distinction between de jure and de facto recognition is relevant in
pertinence to governments.
De Facto recognition indicates the existence of some doubt as to the longterm viability of the government in question. Where the recognizing state
opines that the new state or governmental authority lacks the stability and
permanency it needs to remain on the International Scene permanently, it
generally tends to afford de facto recognition. De facto governments are
more of an unsure position, where the recognizing state adopts a cautious
approach, seeking to wait and watch before committing to a permanent
recognition of sorts. De jure recognition, on the contrary, indicates that the
state granting recognition accepts that the effective control as vested in the
hands of the new government is permanent and that there is no legal reason
detracting from this. If the recognizing authority is sure of the stability and
permanence, and is sure of the other requisite criteria being fulfilled, it
accords de jure recognition. However, at the very base, both forms are
founded on the perception that there needs to be effective control over a
given area with a certain sense of permanence and stability. Usual practice
evidences a general tendency to afford de facto recognition before de jure
99

recognition, a trend most common in cases where the bona fides of the
governments acquisition of power are questionable and do not quite meet
the threshold of constitutionality.
Drawing distinctions between the two, it is clear that a de jure government
is one that ought to possess the powers of sovereignty but may be deprived
of them at a given time, and a de facto government is essentially one in
possession of all the powers of sovereignty, but having come upon them in a
manner that is questionable.[394] Once granted, on no account can a de jure
recognition be withdrawn, except where the state itself ceases to exist, or
there is a change in the governmental entity. However, a de facto
recognition is reversible, in that a state accords it with the apprehension as
to the states continued stability and longevity, and should there be any
reason striking at the very base of either, the recognition so accorded may
freely be withdrawn. A de facto recognition is not always tentative, or one
that hangs on tenterhooks by depending on the vagaries of the recognizing
states chosen point of view. Where a state turns a de facto recognition into
a de jure one, there is no room for tentativeness. A case in point is the UKs
original decision to accord de facto recognition to the Soviet Union in
1921, and three years later, its subsequent decision to change it to de jure
recognition.[395] The Italian conquest of Abyssinia was accorded de facto
recognition by Britain in 1936, and later became a case of de jure
recognition two years later.
During civil wars, the distinction between de facto and de jure recognition
is employed in order to illustrate the difference between legal and factual
sovereignty. The distinction is also rather more clearly pronounced in the
municipal law of the recognizing state, as opposed to the international legal
realm. However, instances reveal conflicts between a de facto recognized
regime, and the displaced erstwhile de jure regime on the same territory.
Practice reveals that in such cases, the rights and duties of the de facto
government would prevail over the de jure one.[396] The basic differences
between both forms of recognition at all times are rather obvious. De facto
recognition is temporary and conditional, but de jure recognition is
permanent. Only de jure entities can be accorded diplomatic relations, and
can claim to receive property in the recognizing state.
Premature Recognition
The acceptable recognition of a state differs entirely from the intervention in
the domestic affairs of the state by way of premature recognition. What
underlies both is perspective as regards the facts peculiar to the concerned
event. An example of premature recognition is the case of Croatia.
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Recognition afforded to Croatia by the European Community on 15 January,


1992 was premature. The Yugoslav Arbitration Commission, in Opinion
No.5 on 11 January 1992, that Croatia had not fulfilled the preconditions
for recognition, particularly because the Croatian constitutional act had not
fully incorporated the requisite guarantees in pertinence to human rights and
minority rights.[397]
Another example is the recognition of Bosnia and Herzegovina by the
United States, on 7 April, 1992, and the European Community on 6 April,
1992. The government of Bosnia and Herzegovina held effective control
over less than one half of its territorial expanse, and this continued until the
Dayton Peace Agreement of 1995.[398] Recognition, as such, is also
capable of being overdue, in that it has not been granted despite being
considerably long after the criteria of statehood have been fulfilled.
Collective Recognition
Collective recognition arises when several states recognize a newly formed
entity together, in the form of a collective act. Collective recognition is
neither prohibited nor prescribed as the norm under International Law. As a
matter of policy, states are free to decide whether or not they wish to
recognize states, and in the course of according recognition, they are free to
determine whether they wish to do it in conjunction with other states,
collectively. This facet has been the major factor in diluting the extent of
collective recognition in practice, although it is not ruled out in entirety. It
would be advantageous over a unilateral act of one state, and insistently
assure the acceptance of the newly emergent state. The Berlin Congress of
1878 accorded recognition to Bulgaria, Serbia, Romania and Montenegro,
and Estonia and Albania were recognized by the Allies in 1921.[399] As to
what these collective acts of recognition are, however, are left to the
recognizing states themselves to determine. Oftentimes, instances have
posed questions in need of an answer, particularly in relation to cases
where the new entity acquires membership in the United Nations. This was
answered in the United Nations case,[400] by the ICJ which said that the
admission of a new entity into the United Nations was merely an
acknowledgment by the organization, that the member is a State. Admission
to the membership is not necessary collective recognition. A vote in favour
of a states membership does not imply recognition or readiness to assume
diplomatic relations.[401]
Recognition has a two-pronged role to play in International Law. Where the
recognizing state is concerned, recognition offers acceptance that the new
entity is deemed a state in the International community. Admission as a
th

th

th

th

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member to the United Nations essentially fulfills the function of accepting


the entity as a state. For the international community, recognition is deemed
evidence of Statehood of the newly formed entity. Thus, the admission of an
entity into an organization does not automatically imply that each individual
state has accorded the entity with statehood.
Conditional Recognition
Conditional recognition refers to that form of recognition whereby the newly
created entity is accorded recognition, depending upon the fulfillment of
certain conditions in further addition to the normal requirements.
Conditional recognition was a rather integral part of international practice
in the nineteenth century, but has dwindled since.[402] Conditional
recognition, however, has no standpoint in the eyes of legal theory, given
that non-fulfillment of the condition and subsequent disobedience of the
conditional requirement does not warrant the withdrawal of recognition.
[403]
The non-acceptance of conditional recognition also rests on the fundamental
surmise that if the recognizing state is free to recognize, or refuse to
recognize at its own whim and fancy, it does not bode well for the newly
emerging entity to be clamped down with the heavy obligations of
additional conditions imposed by the recognizing state. Of course, these
conditions bear political overtones, more than legal character. It is because
of this facet that even disobedience of the conditional demands does not
warrant the withdrawal of recognition, or the termination of recognition.
The recognizing state, however, is not left without a remedy. It is free to take
political action by breaking up diplomatic relations, or even take to the
imposition of sanctions. This may lead to a situation of hostility and a
general feeling of distrust, as a primary result of which the process of
Conditional Recognition has been done away with.
Legal consequences of Recognition
Recognition is an essentially political function, with consequences bearing
both, legal and political overtones. Politically, a state opens up its avenues
for relations with a newly accepted entity, which in turn is likely to have
tangible impacts on its policies and economic structure, where applicable.
The legal side of the consequences flows from the series of rights,
privileges and duties that are conferred upon the newly recognized state by
the recognizing state. The newly recognized state is entitled to conclude
treaties, establish diplomatic relations and create corresponding obligations
for the other nations under International Law. The new entity is conferred
recognition as a sovereign, and is granted the entire array of rights it is
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entitled to, in capacity as being a sovereign authority. The general practice


of most States in International Law allows the newly recognized entity to
sue in the courts of the recognizing state, to claim immunity from legal
action for all its diplomatic representatives and properties in the
recognizing state, and to demand and receive possession of all public
property that belong to it. Granting recognition is essentially an act of the
executive, which thus requires the courts in the recognizing state to seek the
opinions of the executive, and to have a look at all letters and certificates
received from the foreign office, all of which bear conclusive force.[404]
This was the line of thought as applied in Duff Development Co. v.
Kelantan Government,[405] where the court followed the Foreign Offices
statement in recognizing Kelantan as an independent state. Where there lies
any form of ambiguity in the foreign offices statements, the court is
permitted to make its own independent assessment of issues at hand, and the
factual circumstances shrouding them. The court, however, is fully permitted
to study the attributes of statehood as possessed by the entity,
notwithstanding the conclusion of the Foreign Office, in all circumstances
aside of jurisdictional immunity.[406]
When states recognize a claim to statehood, which directly implicates issues
of sovereignty, the legal position essentially depends partly on a distinction
between matters which are obligatory in international law, and those which
are left to the states good judgment. The states recognition of a new entity
will open up avenues for the state in congruence with the new entity, but, as
far as norms such as jus cogens, or erga omnes obligations go, nonrecognition does not preclude the right to sue, or to take action against the
non-recognized entity. This is not a hard and fast rule, in that state practice
is peppered with cases where states have taken non-recognized- in relative
context- entities to task, and sought compensation and other relevant
remedies.[407]
Another aspect that needs to be understood is that recognition functions
retroactively. If recognition is rendered operative with effect from the date
on which recognition is accorded, it would render all legislative,
administrative and executive acts of the state prior to such date as null and
ineffective, which would hardly bode well for the legal and political
standing of the state in question. Retroactivity, thus, functions as the stopcork in the process, and secures the position of the state in the international
realm, by dating the recognition back in time, thereby accepting the
legitimacy and legal standing of all the legal, administrative and executive
acts. Retroactivity in recognition validates all the decrees and acts of the
erstwhile unrecognized entity.[408]
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Withdrawal of Recognition
Once granted, recognition cannot generally be withdrawn if it is a case of de
jure recognition. This works in the same manner even if the recognition was
essentially conditional in the first place. The Montevideo Convention, under
Article 6 emphasizes this line of thinking, holding that de jure recognition is
fundamentally unconditional and irrevocable. Nevertheless, one cannot
forget that in practice, de jure recognition is withdrawn when one state
merges into another state, either as a result of annexation, or through
conquest. This purports a case where the recognition of the original entity
ceases as the entitys existence itself draws to a close. Of course, the state
may not necessarily do this, because it may continue recognition even if the
entity has lost all the attributes of statehood. The 1940 policy choice of the
US and the UK, in not accepting the Soviet annexation of Latvia, Lithuania
and Estonia, and in accepting the diplomatic representatives of these states
in capacity of accredited representatives of a de jure government is proof of
this.
As regards de facto recognition, it is essentially provisional. The
underlying reason for affording de facto recognition is that there still are
doubts as to the credibility of the states stability and continuance into the
future. The entire backdrop, upon which de facto recognition is centered, is
one which perceives the factual context before such recognition is extended.
This implies that once the factual circumstances change, the recognition may
well be withdrawn.
As far as the recognition of a government is concerned, once recognition is
extended to a new government, recognition as regards the former
government has effectively been withdrawn. Historic accounts show the UK
withdrawing recognition of Ethiopia, Abyssinia as it was then known as,
also withdrawing the recognition of the erstwhile Haile Salessies
government in the process, while it granted de jure recognition to Italys
annexation of Abyssinia.
Non-Recognition and Consequences that Follow
When an entity is not recognized as a state in International Law, it faces
disabilities and a stultified sense of existence in pertinence to the specified
states that have not extended recognition. The unrecognized state will not be
allowed to sue in the municipal courts of the state that has not recognized it,
and all of its administrative and legislative acts will not be given
recognition either. There will be no immunity afforded to its
representatives, and the unrecognized state will not be allowed to recover
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public property it is due to otherwise receive.[409] However, nonrecognition does not affect issues aside of jurisdictional immunity.
Marriages duly performed, transfers properly registered and adoptions
undertaken, will not be invalidated on account of non-recognition.[410] The
unrecognized state has no locus standi whatsoever in the courts of the nonrecognizing state.
Allied with the notion of non-recognition, is the Stimson Doctrine of nonrecognition. Formulated by the erstwhile United States Secretary of State in
1932, the doctrine emerged with the Japanese invasion and conquest of
Manchuria, which was under the sovereignty of China. The doctrine
purports the withholding of recognition from new territorial titles or
territorial changes brought out by the use of force or any other act of
doubtful or unlawful character. The doctrine works as a protest against any
form of illegality in the international realm, and is steeped in the idealistic
adage of according respect for jus cogens obligations. It aims to send out
the message that a wrong cannot be righted, and that a title acquired by
means that do not fulfill the lawfulness requirement cannot be set right by
affording recognition. The doctrine takes one step further in establishing that
states have to declare non-recognition, so as not to even allow room for
acquiescence and prescription to play a part in the state securing its
territory. It later found place in the League of Nations, under Article 10. The
UN Charter does not have a similar provision, but prohibits the use of force
in the course of international relations under Article 2(4). All forms of
intervention, and attacks on territorial integrity are prohibited under Article
2(4). Nevertheless, the issue of obligatory non-recognition came up as an
issue in the context of South-West Africa, more commonly known as
Namibia. The UN General Assembly terminated the South African mandate
over Namibia in 1966, while bringing Namibia under the direct control of
the UN. The Security Council through a resolution, declared the continued
presence of South African authorities in Namibia illegal, and declared all
acts taken by the Government of South Africa on behalf of Namibia, after the
termination of the mandate as being illegal.[411] The ICJ, in its advisory
opinion in the Legal Consequences for States of the Continued Presence
of South Africa in South-West Africa (Namibia) case,[412] held that all
of the member nations of the UN were bound by the obligation of not using
force or the threat of force in the course of International Relations. The court
held that member nations were obliged not to recognize the legality of the
South-African presence in Namibia, and were to abstain from sending in
representative diplomats and special missions to South Africa- Namibia
included. Economic dealings and relationships were also ordered against.
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With the end of Namibias case, there hasnt since been another such
instance in International State Practice, though the matter serves its purpose
by holding high academic value.
Recognition of Governments
A state is an abstract entity, and functions only through its people. It is a
ridiculous prospect to assume that all the individuals in the state shall take
decisions on behalf of the state, for practical reasons such as room for
imprudence, and the likelihood of logistical difficulties arising. Therefore,
these people appoint representative entities in the form of the government,
which in turn functions as a liaison between the people of a state, and the
international world. Recognition of a government is governed by similar
protocols and politico-legal considerations as state recognition. However,
recognition afforded to a government is independent of recognition of the
state, except where the situation involves a nascent state that is being
recognized along with the governing entity. When the government is not
recognized, it does not mean that the state loses recognition. Similarly, when
the state itself is recognized, a change in government does not jeopardize its
standing in International Law, since there is only just a change in the
political administrative trend in the state, which is essentially internal.[413]
The recognition of a state does not immediately and automatically mandate
that the recognizing state has to recognize the new regime in charge of the
state itself.
When the new regime takes over by way of means that seem
unconstitutional, unlawful or generally don the garb of being questionable,
the issue of recognition of governments seems a rather important issue that
needs to be addressed. This does not arise when the change in government
bears lawful and constitutional overtones, since it fulfills protocol and
lawfulness. Recognition of such an entity automatically follows when there
is an expression of congratulations, or any other perfunctory depiction.
Where the change is unconstitutional or unlawful, the prime criterion taken
into consideration before extending recognition is the stability that the
government is capable of, along with the extent of sway over the populace,
and the extent of effectiveness it possesses. If these aspects are not weighed
with due prudence, it would amount to being a premature act, one that is
illegal in terms of being tantamount to intervention in the internal matters of
the state, thereby breaching International Law. The state is free to grant de
facto recognition to the governing authority until such time that it satisfies
itself as to the veracity of the government, and the stability it shall wield in
the years to come.
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Recognition of governments has not generally been approved of by the


scholastic world. As pointed out by Judge Richard Baxter of the ICJ, it
seems more problematic than of any help, and any form of partial
withdrawal would help in having smooth relations with States where
revolutionary governments take over.[414] The Estrada doctrine also
indicates the loss of favour in relation to this, where in the 1930s, the
erstwhile Mexican foreign minister held that it was the duty of a State to
continue diplomatic relations with States without regard to the revolutionary
changes on its soil. Present-day practice of the United Kingdom and the
United States depict a tendency to rely upon this doctrine in issues
pertaining to the recognition of governments. Originally, in the United
Kingdom, importance was laid on the effective control test, which was a
mechanism where the extent of effective control of the governmental
authority was studied as a precondition to the grant of recognition.[415] As
far as the United States is concerned, this doctrine is rather important. In
1978, when it came to a question of recognizing the Taraki Government in
Afghanistan, the United States pointed out that the question was not one
pertaining to whether recognition is to be given, but one as to whether the
diplomatic relations should continue.[416] Australia also followed suit in
1988, indicating that their policy leaned more towards determining whether
there needs to be a continuation of diplomatic relations, or the establishment
of the same, wherever applicable. India seems to show allegiance to the
Estrada doctrine in practice, as was evident by its maintenance of
diplomatic ties with the Najibullah regime in Afghanistan despite not having
formally recognized it. Recognition of governments may seem to be deemphasized in the present milieu, but there does not seem a possibility of
completely doing away with the theory, since recognition hinges largely
upon political considerations. This in turn, gives room for states to snap
diplomatic ties with another state as a retorsion, and restore it to normalcy
later.[417]
Having laid out the theoretical and practical considerations, it is necessary
to study the modalities that need to be followed in order to effect
recognition of governments. It may be done by way of sending a formal note
of acknowledgment, or a public announcement, agreement,[418] or even
receiving the credentials of the envoys and representatives of the new
government.
Recognition of Belligerency and Insurgency
The recognition of belligerency and insurgency has for a fairly long time,
held only theoretical value more than anything else. Afghanistan, erstwhile
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Yugoslavia and Sri Lanka brought the subject onto the practical realm, long
after the earliest instance, the Spanish Civil War between 1936 and 1939.
Insurgency and belligerency are essentially forms of insurrection, which
mean acts of uprising with arms in tow or any form of rebellion against
established civil authorities or established governments. Being primarily
internal in nature, belligerency and insurgency are not usually interfered
with by other states unless there are vested interests that need protection.
Where the interests need to be protected, and there needs to be intervention
by an outside state, certain preconditions need to be fulfilled for the
recognition of both, insurgency and belligerency. Where insurgency is
concerned, these are the prerequisites:
1. The insurgents should be in effective occupation of a fairly substantial
portion of territory
2. They should enjoy support of a majority of the populace inhabiting the
territory
3. The insurgents should have the will and ability to carry out
international obligations.
Belligerency refers to a case where there is an armed rebellion, which
reaches enough proportions to stir up a war between the existent government
and the rebellious groups. To recognize belligerency, the following criteria
need to be fulfilled:
1. The hostilities must be widespread, and of a general character
2. The insurgents should be in effective occupation of a fairly substantial
portion of territory
3. The forces of the insurgents should be properly commanded and
observe all the laws of warfare
4. The hostilities must reach such magnitude and proportion that outside
states may find themselves compelled to conclude the existence of
belligerency
5. Recognition of belligerency should be followed by a Declaration of
Neutrality.[419]
Of course, it is not to be forgotten that the recognition of belligerency and
insurgency are equally backed by political considerations. Extending
recognition will confer protection of the commercial interests, trade
interests and other interests against any form of attacks and harm by warring
entities, for the recognizing states. Once recognition is granted, the
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relationship between the state affording such recognition and the belligerent
or the insurgent, will be governed by the rules of International Law.
Political considerations being at the helm of affairs at all times, has led to
the choice of states to refrain from recognizing belligerency and insurgency.
States such as the UK and France believe they are bound by an obligation of
Non-Intervention, and hence refuse recognition of belligerency and
insurgency.

Chapter 6- State Responsibility


Having established that a state is a subject of international law, it is clear
that there are rights and duties owed to and by it as regards the international
community as a whole. The status of a state as a subject entails that it is an
entity that is governed by and subject to international law. As a
consequence, a state is granted certain rights under law, and is expected to
conform to certain obligations under the law. This rule takes root in the
rudiments of jurisprudence, which succinctly elaborates upon the fact that
every right has a duty as a corollary. When a state either breaches its duty,
or poses a hindrance to the rightful enjoyment of another states rights, a
state must necessarily face the consequences. This is entirely governed by
the rules of state responsibility. The law of state responsibility deals with
the determination as to whether there is a wrongful act in the first place, and
then the legal consequences of the wrongful acts, and how the state may be
held responsible for the wrongful act as carried out by it.
When an international obligation is breached, or when one state commits an
internationally wrongful act against another state, the two states find
themselves inextricably linked by the rules of state responsibility. A breach
of an international obligation gives rise to a requirement for reparation in
any form.[420] When the rights of another subject of international law are
breached, by way of an unlawful act or omission, it happens to be a
violation of substantive law, which in turn, gives rise to consequences that
are governed by procedural law.[421]
The active interaction between international law and the rules of state
responsibility has resulted in the emergence of several instances of judicial
precedents and plenty of scholastic debates. A major segment of this field is
a result of state practice, which has in turn evolved into a form of customary
international law. However, the international law commission has been
working extensively in this field, having divided the entire sphere of law
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into three parts, whereby Part I deals with the origin of International
Responsibility, part II deals with the form, content and degrees of
International Responsibility, and part III deals with the settlement of
disputes and the implementation of International Responsibility.[422] Part I
was provisionally adopted on 9 August, 2001,[423] and with the UN
General Assembly Resolution 56/83, dated 12 December 2001, the
Articles were commended to the governments.
The law on the subject is essentially largely customary international law.
Judicial opinion evidences a greater part of the customary norms.[424]
Given that the state cannot by itself commit acts of commission or omission,
responsibility arises for the acts of the states individuals and agents, and
corporations.
Responsibility: Meaning and Nature
Oftentimes, it is said that the sovereign does not have any obligations under
the law. This stands true for a state in pertinence to its own subjects, as it
has the discretion to change a law if it so requires. Of course, newer trends
depict that the state can indeed be held responsible for draconian policies,
and any of their actions that flagrantly disregard its subjects rights.
However, when one sovereign interacts with the other, there is no room for
the rule of no responsibility. The rules of international law as to state
responsibility concern the circumstances in which, and the principles
whereby the injured state becomes entitled to redress for the damage
suffered.[425] It is both a principle in international law and in municipal
law, that any breach of an engagement involves the obligation to make
reparation.[426] In the Spanish Zone of Morocco case,[427] Justice Huber
noted that responsibility is a necessary corollary of a right. All rights of an
international character involve international responsibility, and
responsibility results in the duty to make a reparation if the obligation in
question is not met.
At times, the term responsibility is used interchangeably with the term
liability, but the use of either term in a straitjacket has not been known.
Liability is commonly understood to be the second part of responsibility, in
that it is the part where the payment, or compensatory reparation needs to be
made. Responsibility, however, refers to the determination of who or what
the force behind the act or omission itself is, and thereafter the demand for
reparation from such identified force.
The quintessence of state responsibility hinges on the fulfillment of three
basic essentials. Primarily, there needs to be in international obligation
between the two states, in force at the material time. Secondly, an act or an
th

th

110

omission which is imputable to the state responsible should have occurred.


Finally, there must be loss or damage ensuing as a result of such act or
omission.[428] Several decisions of judicial opinions world over have
emphasized upon the importance of these essentials. In the Rainbow
Warrior case,[429] it was held that international law did not distinguish
between contractual and tortuous responsibility, so that any violation by a
state of any obligation of whatever origin gives rise to state responsibility
and consequently to the duty of reparation. Re-affirming this point of view,
the ICJ ruled in the Gabcikovo-Nagymaros dam case,[430] that a
determination of whether a convention is or is not in force, and whether it
has or has not been properly suspended or denounced, is to be made
pursuant to the law of treaties. On the other hand, an evaluation of the extent
to which the suspicion or denunciation of a convention, as seen
incompatible with the law of treaties, involves the responsibility of the state
which proceeded to it, is to be made under the law of state responsibility.
[431]
In addition to crystallized judicial opinion, the arena of state responsibility
is largely constructed by the International Law Commission. The crux of the
conceptual framework of state responsibility is found under Article 1 and
Article 2. Article 1 reemphasizes the general rule that is supported by wide
state practice, that every intentionally wrongful act of a state entails the
international responsibility of that state. Article 2 indicates that there occurs
an internationally wrongful act of a state when the conduct consists of an
action or omission that is attributable to the state under International Law,
and constitutes a breach of an international obligation of that state.[432]
Having laid these points down, it must be clear that whether an act is such
that it warrants state responsibility is something within the ambit of
international law to judge. It is in the light of this rule that Article 3 has been
included under the Draft Articles, as purporting that international law shall
determine what constitutes an internationally wrongful act, and not
municipal law. A breach of an international obligation occurs when an act of
that state is not in conformity with what is required of it by that obligation,
regardless of its origin or character, as per Article 12. Article 13 holds that
an act of a state shall not be considered a breach of an international
obligation unless the state is bound by the obligation in question at the time
the act occurs.
A breach need not be a one-time event, if the state in question is repetitively
indulging in conducting the act or omission, thereby repetitively injuring the
other state. This is called a continuing breach. Article 14 states that a breach
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that is of a continuing nature extends over the entire period during which the
act continues and remains not in conformity with the international obligation
in question. Article 15 states that a breach that consists of a composite act
will also extend over the entire period during which the act or omission
continues and remains not in conformity with the international obligation. A
state assisting, directing or controlling another state,[433] or coercing
another state,[434] to commit an internationally wrongful act will also be
responsible if it so acted with knowledge of the circumstances and where it
would be wrongful if committed by that state.[435]
Having understood the core contents of the law on state responsibility, it is
essential to note that many a time, doubts arise as to whether these legal
provisions are exclusive, and distinct, or whether they overlap into any
sphere of international law. The generic tendency is of course, to view it as
distinct,[436] however, it cannot be ignored that it does indeed function in
conjunction with other dimensions of the legal system. The issue was
discussed at length in the Rainbow Warrior Arbitration case.[437] In
1985, the Rainbow Warrior vessel, while moored at harbor in New
Zealand, was attacked in an act that involved two French agents. The vessel
was damaged, leading New Zealand to protest against the same. The
Secretary General ruled in capacity of a mediator, and as consequently
agreed by the states, the two agents were to be imprisoned at a French base
in the Pacific for three years. But, both agents were allowed to return to
France before the expiration of the stipulated period, which led to New
Zealands claim that the agreement had been breached. The French
government contended that the Law of Treaties was irrelevant, and that it
was defended by the defense of force majeure under the law of state
responsibility. The tribunal concluded that France had established a clear
defense, and went on to conclude that there was no difference in
International Law between contractual and tortuous obligations, and
reparations for the breach of both itself will arise in both cases. The
tribunal observed that in principle, a state could validly raise a defense
under the law of state responsibility that was otherwise not available in the
law of treaties.
Fault as a Basis of Responsibility
Many a time, varying perceptions have been known to have arisen in
relation to whether fault can be deemed a basis for state responsibility. The
objective responsibility theory contends that the state is strictly responsible
without any importance attached to fault as a basis. The subjective
responsibility theory contends that a state can be held responsible only if
112

there is proof of the element of dolus, which means intention, or culpa


which means negligence. Only if either exists, can the state be held
responsible. Most scholastic opinion and judicial precedents have been
known to lean towards the objective theory of state responsibility.
In the Neer Claim,[438] an American Superintendent of a Mexican mine
was shot. The USA claimed damages on behalf of the surviving family
members for the lackadaisical handling of all investigations. Using the
objective theory, the US Claim was disallowed. In the Caire claim,[439]
where a French citizen was shot by Mexican soldiers for failing to give
them 5000 Mexican dollars, it was decided that Mexico was liable, in
keeping with the objective theory, holding that the responsibility for the acts
of the officials or organs of the state, which may devolve upon it even in the
absence of any fault on its part. However, in the Home Missionary Society
Claims case,[440] evidenced an approach on the lines of the subjective
theory. In this case, the levy of a hut tax sparked off an uprising where the
society property was damaged, and several missionaries were killed. The
outcome of the dispute was that the claim of the society as represented by
the US, was dismissed, holding that it was an established norm in
international law that no government was responsible for the acts of rebels
where by itself it was guilty of no breach of good faith or negligence in
suppressing the revolt. However, it must be kept in mind that this decision
was in tandem with the question of insurgency alone, and hence a generic
inference cannot be effectively drawn.
In the Corfu Channel Case,[441] the ICJ indicated a view in favour of the
principle of subjective responsibility, holding that it cannot be concluded
from the fact of the control exercised by a state over its territory and waters
that that state necessarily knew or ought to have known if any unlawful act
perpetrated therein, nor yet that it necessarily knew or should have known
the authors of such act or omission. Nevertheless, any fact of exclusive
control over territory has bearing upon the methods of proof available to
establish the knowledge of that state as to the events in question. Given the
high threshold of evidence required in such judicial matters, the victim state
should be allowed a more liberal recourse to inferences of fact and
circumstantial evidence.
It must be remembered that the question of prima facie responsibility for
any unlawful act committed within the territory of the concerned state,
irrespective of attribution, oftentimes raises different issues. This, thus,
indicates that it is no proof of the acceptance of the fault theory. Practice
seems strongly evidentiary of the fact that the objective theory is accepted
113

generally. The ILC, however, in its commentary, has emphasized that the
Articles have not taken a definitive position on this controversy, but did note
that the standards as to objective or subjective approaches, fault, negligence
or want of due diligence would vary greatly contextually.[442]
Original and Vicarious Responsibility
Original responsibility clamps down on a state for the acts of its government
and allied entities, while vicarious responsibility arises for the acts of its
citizens and its agents. Original responsibility is essentially that which a
state bears for its own actions, for its governments actions, and for the
actions of the lower agents and private individuals as performed with the
command or authorization of the Government. Vicarious liability arises
when there are acts other than their own, such as those unauthorized acts of
their agents, subjects and aliens on their territorial expanse. The philosophy
underlying vicarious responsibility emanates from the old school of thought
wherein only the state was deemed a subject of International Law, and since
individuals could not be held liable, the state itself as an entity ought to be
held liable on behalf of the individual in question. A state is an inanimate
entity, incapable of acting on its own without the involvement of human
action.
The essential difference between original and vicarious responsibility is
that the former involves a case where the state is directly in breach of legal
obligations binding on it, while the latter is a case of indirect liability. The
legal consequences are not the same for both, since one is a case of neglect
of its own duty and the other is that of anothers duty. A state bears a higher
degree of responsibility when it has neglected its legal duties. In cases of
vicarious responsibility, the State has an obligation to make the concerned
individuals to make reparation.
Imputability of Responsibility
When a state is made absolutely liable wherever an official is involved, it
encourages that state to exercise greater control over its various
departments and representatives. It encourages stringent compliance with
objective standards of conduct in International Relations. However, to hold
a state thus responsible, it is essential to prove a link between the state and
the person, or persons actually committing the unlawful act or omission.
Naturally, because the state is an inanimate abstract legal entity in itself, it
cannot act without the actual intervention of human conduct, particularly that
of its authorized officials and representatives. However, a state is not
responsible under International Law for all acts performed by its nationals.
A state is only liable for those acts that are imputable or attributable to the
114

state. Imputability is that legal fiction which links the actions of, or
omissions of state officials to the State itself, in the process thereby,
rendering the state responsible for the damage ensuing therein to the
property or person of an alien.
State responsibility is an all-encompassing field, including unlawful acts or
omissions committed directly by the state, and directly affecting other states.
In the Nicaragua Case,[443] the ICJ found that acts imputable to the US
clearly included the laying of mines in the Nicaraguan waters, and attacks
on Nicaraguan ports, oil installations and a naval base by its agents.
Similarly, in the Corfu Channel Case,[444] Albania was held responsible
for the consequences emanating from the laying of mines in its territorial
waters on the basis of knowledge possessed by that state, as to the presence
of such mines, albeit the fact that there was no clear cut evidence as to who
laid those mines. In the Rainbow Warrior Arbitration case,[445] when the
vessel of the same name was destroyed by French Agents in New Zealand,
the latter received a sum as compensation from France after liability was
imputed. It is not altogether impossible for a state to be charged with
responsible for the activity of its officials in injuring a national of another
state, and this activity need not be one authorized by the authorities of the
state.
As per A.4 of the ILC Draft Articles, any and every state organs acts,
whether judicial, legislative or executive or any other nature. This is
inclusive of all people and entities having that status in accordance with the
internal law of that state. Both customary law and juristic opinion,[446]
lean towards the view that the conduct of any organ of a state must be
regarded as an act of that state.[447] The term organs is inclusive of all
units and sub-units within a state.[448] Article 5 states that the conduct of
any person or entity that is not an organ of the state under Article 4, but is
empowered by the law of that state to exercise elements of governmental
authority shall be considered as an act of the state under International Law,
as long as such person or entity is acting in that capacity in the particular
instance. This provision covers corporations, private entities and other
entities which retain certain public or regulatory functions. Article 6 of the
Draft Articles holds that the conduct of an organ placed at the disposal of a
state by another state shall be considered as an act of the former state under
International Law, if that organ was acting in the exercise of elements of
governmental authority.
Ultra-Vires Acts
A state may be held responsible for an unlawful act, even if it is beyond the
115

legal capacity of the official involved in the act, provided, the officials have
acted at least to all appearances as competent officials or organs or they
must have used powers or methods appropriate to their official capacity.
[449] In the Youmans claim,[450] unlawful acts by the militia, namely
joining a riot from which they had to protect Americans, and thereby killing
the very ones they had to protect, were imputed to Mexico. The ILC Draft
Articles also touch upon this aspect. Article 7 states that the conduct of an
organ or of a person or entity empowered to exercise elements of
governmental authority shall be considered an act of the concerned state
under International Law in that capacity even if it exceeds its authority or
contravenes instructions.[451] This is an indication of the acceptance of
absolute liability, implying that the objective theory is the correct approach.
[452] Even though a private individual is not regarded as a state official, so
that the state is not liable for his acts, a state may be held responsible for
failing to exercise the control necessary to prevent such acts.[453]
Control and Responsibility- Quantifying the Extent
Oftentimes, the responsibility of states is linked to the extent of control the
state has, over the person or entity. This usually occurs in the context of
private and corporate entities in the private sector that commit any unlawful
acts. Article 8 of the ILC Articles stipulates that the conduct of a person or
group of persons shall be considered as an act of state under International
Law if the persons or group of persons is in fact acting on the instructions
of, or under the direction and control of, that state in carrying out the
conduct. As long as there is clear proof of the instructions given, the
imputation of responsibility is not difficult. But, the proof of direction and
control is an area replete with controversy and difficulty. Such conduct will
be attributable to the state only if the state directed and controlled the
specific operation and the conduct complained of was an integral part of the
operation, as per the ILC Commentary.[454] The most famous case in this
regard is the Nicaragua Case,[455] the ICJ held that in order for the
conduct of the contra guerillas to have been attributable to the US, who had
financed and equipped them, it would, in principle, have to be proved that
the state had effective control of the military and paramilitary operation in
the course of which the alleged violations were committed. The inference
ultimately was that overall general control would not have been sufficient to
impute responsibility.
This effective control approach was modified in the Tadic Case,[456]
where the Yugoslav War Crimes Tribunal adopted a more flexible approach,
holding that the degree of control may vary based on the circumstances and
116

a high threshold might not always be required. The situation would


definitely vary greatly, when the state in question was in clear and
uncontested effective control of the territory where the violation occurred.
Physical control of a territory and not sovereignty or legitimacy of title is
the basis of state liability for acts affecting other states.[457] To be read in
this context, is Article 9, which states that the conduct of a person or a group
of persons shall be considered as an act of the state under International Law
if the person or group was in fact exercising elements of governmental
authority in the absence or default of the official authorities and in
circumstances such as to call for the exercise of those elements of authority.
[458]
Mob Violence, Insurrections, Civil Wars and State Responsibility
In the context of state responsibility for rioters, violence or rebellious
elements, the extent of responsibility depends on whether the government
has acted in good faith, and without negligence. If there has been good faith
and no negligence, the government is not held responsible for the acts of
rioters and rebels that cause loss or damage.[459] The state has a bounden
duty to display due diligence. As to what the term due diligence means, has
yet not been defined, given he extent of difficulty there exists, in
quantification.[460] Special provisions apply to diplomatic and consular
personnel. Article 10 of the ILC Draft Articles purports that where an
insurrectional movement is successful either in becoming the new
government of a state, or in establishing a new state in part of the territory of
the pre-existing state, it will be responsible for its activities prior to its
assumption of authority.[461]
In Short v. The Islamic Republic of Iran,[462] the Tribunal held that the
International Responsibility of a state can be invoked where the conditions
or events causing the departure of an alien are attributable to it, but that not
all exodus of aliens from a country in a period of political disorder would
as such be attributable to that state. At the time in context, the revolutionary
movement had not been able to establish control over any portion of Iranian
territorial expanse, and the government had depicted that it had lost control.
The acts of the revolutionaries could not be imputed to the government
emerging from the success of the revolution, just as the acts of the
supporters of the prevalent governmental authorities cannot be imputed to
the government itself. The claim for compensation ultimately failed, since
there was no identification made of the agent of the revolutionary movement
the actions of whom forced him to leave Iran. However, in Yeager v. The
Islamic Republic of Iran,[463] the Tribunal awarded compensation for
117

expulsion. The expulsion occurred by way of revolutionary guards, after the


success of the revolution. Though, at the time, the revolutionary guards were
not an official organ of the state, it was held that they were exercising
governmental authority with the knowledge and acquiescence of the
revolutionary state, making Iran liable for their acts.
Between both extremes is the case of Rankin v. The Islamic Republic of
Iran,[464] where the tribunal concluded that the claimant had not proved
that he had left Iran after the revolution due to action by the Iranian
government and the Revolutionary Guards as distinct from learning because
of the general difficulties of life in that state during the revolutionary period.
Thus there was no responsibility imputed. Where any conduct is not
attributable to a state beforehand, but the state itself subsequently
acknowledges the conduct as its own, the state is responsible for it.[465] An
example is for this is the Iranian Hostages Case,[466] where initially the
attack on the US Embassy could not be imputed to Iran, with the subsequent
approval of the Ayatollah Khomeini and other organs, the act became a state
act.

State Responsibility for Injury to Aliens


International law requires that aliens living in a state should be granted the
same rights that the citizens of the state are given. This is a duty on part of
the state. Where an alien suffers any injury due to any agent of a state, the
state itself is responsible. A state owes a duty to the international community
as a whole, to exercise due diligence in preventing its own subjects as also
other foreign subjects within its own territory. If the citizen of a state causes
some damage or harm to an alien on that states territory, the alien gains the
right to file a suit for compensation according to law of that state. Of course,
the decisions of the court bind the aliens, and all rights of appeal, review
and revision flow.
The rules of Human Rights are of fairly recent origin. Despite this being a
recent development, for about over two hundred years, International Law
has laid down a consistently maintained standard for the treatment of aliens.
[467] States are not under a duty to allow aliens into their territorial
expanse, but, if aliens do come in, they are to be treated in a manner
befitting their status as humans. When this is transgressed from, there
happens to be a violation of International Law.[468] These obligations are
categorized as primary rules by the International Law Commission.[469] In
technical terminology, any failure to comply with this minimum international
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standard causes international responsibility, and the state of the injured


claimant is allowed to exercise its right of diplomatic protection,[470] by
claiming through its diplomatic channels. The claim may be one for
compensation or any other mode of reparation. The claims are usually
always settled by way of negotiation, arbitration, conciliation or even
judicial settlement. It must be remembered that these duties are owed to the
injured state, and not to the injured alien, because the state suffers an injury
when its own citizens themselves suffer injuries. This implies that the
injured state has a choice whether or not to pursue a claim. This was best
explained in the Barcelona Traction Case,[471] where the court held that
within the ambit of International Law, a state may exercise diplomatic
protection by whatever means and to whatever extent it deems fit, in keeping
with its own choices for its own interests. The court went on to enunciate
that the persons, legal or natural, on whose behalf the state acts, cannot do
anything if they feel that their remedy is inadequate. They can only resort to
municipal law, which is again a preponderance of possibilities, because
there need to be avenues open for them in municipal law. The state is the
sole judge where it comes to deciding whether it should grant protection,
and if so, to what extent. This is not to say that international law disregards
the individuals, since the focal point in calculating the extent of loss
suffered is entirely the individual. In the I am Alone case,[472] the USA
sank a British vessel that was smuggling liquor into the United States. The
sinking, though declared illegal, did not attract compensation, since the
same was employed by citizens of the US for the sake of importing liquor.
But, an apology and a sum of US$25,000 was ordered to be paid by the
USA to Britain, for the disrespect to their flag.
In making a claim, it is important that it be presented without any
unreasonable delay.[473] It is also important to note that contributory acts
on part of the alien himself, precludes the state from seeking redressal on
any account. A state cannot claim on behalf of an injured alien, if his hands
are not clean.[474] Again, this matters only if the damage so caused is
proportionate to the damage that ensues.
The Calvo Doctrine
The Calvo Doctrine was propounded by Calvo of Argentina, a publicist,
and contends that during a civil war, the state is not responsible for the
losses suffered by the aliens on its territory, as if this responsibility is
accepted, then bigger nations would gain an excuse to intervene in the
independence of weaker states. The doctrine arose from Calvos's ideas,
expressed in his Derecho Internacional Terico y Prctico de Europa y
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Amrica.[475] The Doctrine has not been completely accepted by states


such as America and the UK. The Calvo Doctrine often, is found to be
included in contracts, where liability is sought to be averted upon contingent
events. The doctrine was created in the wake of the armed interventions in
Mexico by France in 1838 and 1861 to effectuate certain claims of French
citizens against the Mexican government.[476] At heart, the doctrine is a
justification of the right of governments to be free of interference of any sort.
[477] The Calvo Doctrine provides that aliens are not entitled to rights and
privileges that are not accorded to nationals of a given country, and
therefore, aliens doing business in a given country may seek redress for any
grievances only before local authorities.[478] The corollary of this concept
is that governments can have no greater responsibility toward aliens than
they have to their own citizens.[479] In the Orinoco Steamship Co. Case,
[480] the arbitral tribunal did not accept the Calvo Clauses inclusion. The
leading arbitral decision addressing the validity of the Calvo Clause is
North American Dredging Co. of Texas (United States of America v.
United Mexican States).[481] The U.S. government asserted a claim for
$233,000 on behalf of a U.S. corporation for breach of a contract for
dredging a Mexican port. The contract provided in Article 18 that the U.S.
company would be considered as a Mexican in all matters concerning the
contract, it would not have any rights aside of those granted to Mexicans,
and that diplomatic intervention on its behalf was not permitted. The
Convention that created the Claims Commission included under Article V a
waiver of any necessity for the parties or their citizens to exhaust local
remedies as a condition precedent to asserting their claims. Despite its
acceptance in Latin America, the Calvo Clause has not been generally
accepted by nations outside Latin America, and has not become a generally
accepted principle of customary international law.[482] Over the years, the
clause seems to have lost much of its appeal and controversy.[483]
Generally, the United States government today does not intervene
diplomatically on behalf of its citizens in disputes with Latin American
governments except in cases of flagrant denials of justice.[484]
Defenses to State Responsibility
State responsibility is not absolute, but is subject to certain defenses, which
flow from circumstances that oblige a state to act in a certain manner, or
make a state act in such a manner. These defenses are stipulated under the
ILC Draft Articles, and are also existent norms under customary practice.
(a) Consent: Where a state consents to an act by another state which
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would otherwise constitute an unlawful act, wrongfulness is precluded


provided that the act is within the limits of the consent given.[485]
When there is a dispatch of troops from one state to another, at the
request of the latter, the latter state cannot hold the former state liable
for any acts of the troops.
(b) Self-Defense:[486] When an act is undertaken in conformity with
the UN Charter, as self-defense, a state is precluded from being held
responsible. This covers self-defense as under customary International
Law and as under the UN Charter, which, under A.51, speaks of selfdefense as being an inherent right of an individual state, and as being
a collective right as well. However, the ILC clarifies that the fact that
an act is taken in self-defense does not preclude all wrongfulness,
because at all times, human rights and humanitarian laws have to be
respected. As stated in the Legality of the Threat of Use of Nuclear
Weapons case,[487] respect for the environment is one of the elements
that go to assessing whether an action is in conformity with the
principles of necessity and proportionality, and thus, is in accordance
with the right to self-defense.
(c) Countermeasures: Article 22 of the ILC Draft Articles states that if
an act constitutes a countermeasure, it precludes wrongfulness and
averts responsibility for the state.[488] Originally, the word reprisal
was used to depict such acts, and meant any act otherwise unlawful,
but rendered legitimate by way of the prior application of unlawful
force.[489] A countermeasure is different from Article 60 of the
Vienna Convention on the Law of Treaties, which speaks of the
consequences that emanate from the material breach of a treaty, holding
that the other parties to a treaty may well terminate or suspend the
treaty. Countermeasures do not affect the legal validity of the
obligation that has been breached, by way of a reprisal. In the recent
decision in the Gabcikovo-Nagymaros Project Case,[490] the ICJ
enunciated that in order to be justifiable, a counter-measure must meet
certain conditions. Firstly, it must be an act in response to a prior
internationally wrongful act of another state and must be directed
against that state. Secondly, the injured state must have called upon the
state committing the wrongful act to discontinue its wrongful conduct
or to make reparation for it. Thirdly, the countermeasure must be
commensurate with the injury suffered, taking account of the rights in
question. Lastly, its purpose must be to induce the wrongdoing state to
comply with its obligations under International Law, and the measure
must therefore be reversible. Chapter II of the ILC Draft Articles,
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specifically the articles numbered 49 to 53 essentially dictate the rules


for countermeasures. Article 49 states that an injured state may only
take countermeasures against a state responsible for the wrongful act in
order to induce the latter to comply with the obligations consequent
upon the wrongful act. A countermeasure is limited only to the extent of
non-performance of the obligation, and must be taken in such a way as
to allow the state to resume the performance of the obligation. Article
50 clarifies that countermeasures shall not affect the obligation of the
state to refrain from the threat or use of force as under the UN Charter,
obligations to protect human rights, to prohibit reprisals of a
humanitarian character, other jus cogens obligations and obligations
under any applicable dispute settlement procedure between the two
states.[491] At all times, the state taking the countermeasure is under
an obligation to respect and uphold the inviolability of diplomatic and
consular agents, premises, archives and documents. Article 51 holds as
important the requirement for proportionality, noting that
countermeasures must be commensurate with the injury suffered taking
into account the gravity of the internationally wrongful acts and the
rights in question.[492] Article 52 states that before taking up
countermeasures, the injured state must call upon the responsible state
to fulfill its obligations and notify that state of any decision to take
countermeasures, and must offer to negotiate. The injured state may
take any such countermeasures as it deems necessary to preserve its
own rights. However, the countermeasures must cease where either the
wrongful acts themselves have ceased, or, the matter is pending before
a court or a tribunal with powers to take binding decisions, then
countermeasures should cease, or, if not yet taken, should not be taken.
[493] Once the state has complied with its obligations, the
countermeasures should cease.
(d) Force Majeure: Force majeure refers to those acts that are out of
the control of the entity, and hence cannot be averted. They refer to the
acts of god, or the acts of any entity that wields a higher power beyond
human control. Force majeure has long been accepted as precluding
wrongfulness,[494] and the standard of proof to be advanced is rather
high. War was rejected as a form of force majeure in the Serbian
Loans Case,[495] where the First World War was cited as the reason
for Serbias impossibility to repay a loan. Article 23 of the ILC
Articles provides that force majeure can be construed as a ground
precluding state responsibility. In the Gill Case,[496] a house that
belonged to a British National, in Mexico had been destroyed as a
122

consequence of a sudden and unforeseen action by the opponents of the


Mexican Government. The commission held that a failure to prevent
the act was due to a genuine inability to take action in the face of a
sudden situation, thus, is the occurrence of any event that is beyond the
control of the state. There has to be a constraint which the state was
unable to avoid or oppose by its own power.[497] Force Majeure was
taken up as a defense in the Rainbow Warrior Arbitration,[498]
where the tribunal stated that the test of applicability of this doctrine
was one of absolute and material impossibility, and a circumstance
rendering the performance of an obligation more difficult or
burdensome did not constitute a case of force majeure.
(e) Distress: Article 24 of the ILC Draft Articles states that
wrongfulness is precluded if the author of the conduct concerned had
no other reasonable way in a situation of distress of saving the authors
life or the lives of other persons entrusted to his care.[499] An
example of this is the agreement in the 1946 US-Yugoslav
correspondence, which specified that only in an emergency would
unauthorized entry into foreign airspace be acceptable, or the seeking
of safe haven in a foreign port without sanction by a ships captain in
stormy conditions.[500] Distress differs from force majeure, given that
it has an element of choice involved, but oftentimes, this is illusory,
given that in both cases, extreme peril exists and whether or not there
is a choice, is highly debatable.[501] In the Rainbow Warrior
Arbitration,[502] the tribunal enunciated three conditions as being
necessary preconditions for the defense of distress to be applicable.
First, there should be exceptional circumstances of extreme urgency,
recognized by the other interested party, or is clearly demonstrated.
Second, the re-establishment of the original situation as soon as the
reasons of emergency invoked to justify the breach of the obligation
has disappeared, and third, the existence of a good faith effort to try
and obtain the consent of the other state based on an agreement.
(f) Necessity: Article 25 provides that necessity may not be invoked
unless the act was the only means for the state to safeguard an essential
interest against a grave and imminent peril, and the act does not
seriously prejudice a crucial interest of the Alien states or of the
International Community as a whole. Necessity cannot be invoked if
the state itself has contributed towards the creation of the situation of
necessity.[503] The Torrey Canyon case,[504] is an example of this
kind, where a Liberian oil tanker spilled large quantities of oil when it
went aground off the UK bombed the ship. This was deemed a
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legitimate action by the ILC.[505] The defense of necessity has often


been deemed controversial.[506] It is a ground well recognized and
accepted in customary law, and precludes responsibility for a state if
proved.[507] In M/V Saiga No.2,[508] the ITLOS dismissed the
doctrine of necessity, but found that it did not apply as no evidence had
been produced by Guinea to show that its essential interests were in
grave and imminent peril, and Guineas interests in maximizing its tax
revenue from the sale of gas oil to fishing vessels could be safeguarded
by means other than extending its customs law to parts of the Exclusive
Economic Zone.
Invoking State Responsibility
Substantively, a state has a right to require a delinquent state to pay for the
damage ensuing as a consequence of its conduct. Article 42 of the ILC Draft
Articles stipulates that a state is entitled as an injured state to invoke
responsibility of another state, if the obligation breached is owed to that
state individually, or to a group of states, including that state or to the
international community as a whole, and the breach of the obligation
specifically affects that state or is of such character as radically to change
the position of all the other states to which the obligation is owed with
respect to the further performance of the obligation. Where there has been a
waiver of the claim, or by way of conduct, if there has been any
acquiescence in the lapse of the claim, responsibility may not be invoked.
[509] Waivers, if any, need to be clear and unequivocal.[510] Acquiescence
is judged based on the facts and circumstances.[511] If several states are
injured as a consequence of the same wrongful act, each state may
separately invoke responsibility,[512] and, if several states are responsible,
each states responsibility may be invoked by the injured state.[513]
Obligations owed by a state towards the international community as a whole
is distinct from its obligations as owed to another state.[514] Article 48
states that a state other than an injured state may invoke the responsibility of
another state if either the obligation is owed to a group of states including
that state, and is established for the protection of a collective interest of the
group, or the obligation breached is owed to the international community as
a whole.
Consequences of Internationally Wrongful Acts
Fundamentally, the breach of an international obligation warrants two types
of legal consequences. Primarily, it creates new obligations for the
breaching state, which may take the form of duties of cessation and nonrepetition as described under Article 30 of the ILC Draft Articles, and a
124

duty to make full reparation as under Article 31. Article 33(1) categorizes
these secondary obligations as being owed to other states or to the
international community as a whole, hinting at a possible erga omnes
feature. The articles indirectly acknowledge in the form of a savings clause,
the fact that states may owe secondary obligations to non-state actors such
as individuals or international organizations. Secondly, the articles create
new rights for the injured states, namely, the right to invoke responsibility as
under Articles 42 and 48, and a limited right to take countermeasures as
described under Articles 49-53. These rights lean heavily towards states
and do not deal with how state responsibility is to be implemented if the
holder of the right is an individual or an organization. The chief element of
progressive development in this area is Article 48, which states that certain
violations of international obligations can affect the international community
as a whole such that state responsibility can be invoked by states on behalf
of the larger community. This provision is a manifestation of the Barcelona
Traction decision by the ICJ that some obligations owed are called erga
omnes, toward the international community as a whole.[515]
Cessation
Cessation refers to ceasing the act that affects other states adversely, for
which the wrongdoing state is deemed responsible. The state responsible
for the internationally wrongful act is under an obligation to cease that act, if
it is a continuing one, and also to offer appropriate assurances and
guarantees of non-repetition if circumstances so require.[516] For cessation
to arise, it is essential that the wrongful act be of a continuous character, and
that the violated rule must still be in force at the date the order is given.
[517] In the La Grand case,[518] the court held that when a state commits
to ensure implementation of specific measures, it is sufficient to meet the
injured states request for a general assurance of non-repetition.
Reparation
Reparation refers to the remedying of a breach of an international obligation
for which the concerned state is responsible. The core precepts of this
principle were laid down in the Chorzow Factory Case,[519] where the
PCIJ held that the actual notion of an illegal act contains the essential
principle that reparation must, as far as possible, wipe out all the
consequences of the illegal act and re-establish the situation which would
have existed if that act had not been committed. Subsequent jurisprudence
has reaffirmed this principle.[520] The obligation to make reparations is
entirely governed by International Law, regardless of what domestic law
contends.[521] Full reparations for the injury caused by the internationally
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wrongful act shall take the form of restitution, compensation and


satisfaction, individually in combination.[522]
Restitution implies restoration of the situation that existed prior to the
wrongful act. Restitution in kind is one of the most commonly practiced
modes of reparation, given that it re-establishes the original situation.
Restitution has been frequently seen in the past, but is presently much lesser
in the practical realm in the present day, since the nature of disputes as
between states has also followed a different trajectory. Modern disputes
deal with issues of expropriation, which stand out as situations that pose
difficulty in returning the expropriated property to the entity.[523] Article
35 stipulates restitution while keeping in mind the fact that to the extent that
it is not materially impossible and does not involve a burden out of all
proportion to the benefit deriving from France to their previous place of
confinement in the Pacific, calling it restituto in integrum. France argued
that cessation was an appropriate remedy, which in the present situation was
barred by time.[524] The concept of restituto in integrum has been
employed merely as a vehicle for establishing the amount of damages.[525]
In the Texaco Case,[526] it was held that restitution in kind under
international law constituted the normal sanction for non-performance of
contractual obligations and that it is inapplicable only to the extent that
restoration the status quo ante is impossible. This approach seems a
violation of sovereignty, in that the enforcement of such a restitution may
create several problems.[527]

Compensation
Monetary compensation is an integral part of reparation given that it is a
means to repatriate in equal value to replace the asset confiscated. Article
36 of the ILC Draft Articles states that where damage is not made good of
restitution the state ought to give compensation.[528] The quantum of
compensation to be provided shall cover any financially assessable damage
including loss of profits as long as it is proved.[529] However, as pointed
out in Velasquez Rodriguez v. Honduras,[530] punitive or exemplary
damages go beyond the concept of reparation, and are not a part of
international law as such. While the method of calculation employed varies
significantly based on the property involved, it is usually assessed on the
basis of fair market value.[531] Damage includes material and nonmaterial damage.[532] In the Im Alone case,[533] compensation was
awarded for the indignity suffered by Canada when its ship registered in
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Montreal was unlawfully sunk. In the Rainbow Warrior Arbitration,[534]


France was ordered to pay $7 million to New Zealand for all the damage it
had suffered.
Satisfaction
Satisfaction as a mode of reparation implies non-monetary compensation,
and includes official apologies, punishment of guilty officials and the actual
formal acknowledgment of the unlawful character of an act.[535]
Satisfaction was deemed to be approved by long-standing practice, and the
international courts themselves, where moral or legal damage ensued
directly to a state.[536] Sometimes, an injured state may seek only a
declaration that the activity complained of is illegal.[537] However, a
dissenting opinion was preferred in the Nuclear Tests Case,[538] where the
court held otherwise. This is something common in the context of territorial
disputes. Article 37 of the ILC Draft Articles stipulates that a state that is
responsible for a wrongful act is obliged to offer satisfaction for the injury
thereby caused in so far as it cannot be made good by restitution or
compensation. Satisfaction comprises an acknowledgment of breach,
expression of regret, apology or any similar act,[539] or assurance or
guarantee of non-repetition.[540]
State Responsibility and Jus Cogens
Jus Cogens refers to all those peremptory norms in International Law from
which no derogation is permissible. State responsibility in relation to a
breach of jus cogens warrants a higher degree of liability, given the nature
of the obligation in question. A distinction was drawn in this regard, under
Article 19 of the ILC Draft Articles 1996, between international crimes and
international delicts, within the ambit of unlawful acts.[541] Article 19
states that an internationally wrongful act which emanates from the breach
by a state of an international obligation so essential for the protection of
fundamental interests of the international community that its breach was
recognized as a whole constitutes an international crime. The Article termed
all other internationally wrongful acts as delicts.[542] Such international
crimes include aggression, colonial domination, slavery, genocide,
apartheid and torture. A state that deals with such crimes, and encourages
their performance, ends up committing a flagrant violation of its jus cogens
obligations. This raises a question as to how a state may be held criminally
responsible, which in turn has unfailingly struck a discordant note, paving
the way for ample consternation.[543] Some scholastic opinion evidences
the fact that the concept has no legal value and cannot be justified in
principle, because exacting penal sanctions could only pave the way for
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instability.[544] A diametrically opposed school of thought, however,


purports a different opinion altogether, contending that the attitude towards
certain crimes by states has altered with a view to bring them within the
realm of International Law.[545] The inclusion of Article 19 was justified
on three grounds. Primarily, that the concept of jus cogens has evolved from
scratch as a set of integral rules, as emphasized under Article 53. Secondly,
individual criminal responsibility has evolved as an individual unit under
International Law, and, thirdly, the UN Charter provides that there can be
enforcement action against a state where there is a use of, or threat to use
force or aggression.[546] This approach was changed,[547] due to the
controversial nature of the suggestion, and thus, mention of international
crimes of states was excluded, and emphasis was laid on the consequences
of a breach of erga omnes obligations and jus cogens obligations. Article
41 of the Draft Articles provides that the states are obliged to cooperate to
bring an end through lawful means, any breach by a state, of an obligation
arising under a peremptory norm of International Law and not to recognize
as lawful, any such situation.
Diplomatic Claims and the Nationality of Claims
When it comes to any damage or injury suffered by the nationals of a state,
the doctrine of state responsibility comprises two aspects, namely, the
attribution of the acts of its organs and officials to the delinquent state, and
the capacity of the other state to adopt the claims of the injured party.
Article 44 of the ILC Draft Articles states that the responsibility of a state
may not be invoked, if the claim of such state, is not brought in accordance
with any applicable rule relating to the nationality of claims.[548]
Nationality is the factor that links a state to an individual, thereby opening
up an avenue for the individual, to enjoy the benefits under international
law. The ILC has also come out with a series of Draft Articles on
Diplomatic Protection,[549] of which Article 1 states that Diplomatic
protection comprises of resort to diplomatic action or other means of
peaceful settlement by a state adopting in its own right the cause of its
nationals in respect of an injury to that national arising from an
internationally wrongful act of another state. Every state has a bounden duty
to protect its nationals, and in the process, it may take up claims against
other states. A state, however, is not obliged to provide diplomatic
protection for their nationals abroad.[550] Once this is done, the claim
becomes that of the state. This arises as a consequence of the historical
unwillingness to allow individuals the right under International Law to
prosecute claims against foreign states, for reasons pertaining to state
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sovereignty and non-intervention in internal affairs of the state. By taking up


the cause of one of its subjects, and by resorting to diplomatic action, or
international judicial proceedings on his behalf, a state is really asserting its
own right, its right to ensure in the person of its subject, the respect for the
rules of International Law.[551] When a state takes up a case on behalf of
its subjects before an international tribunal, the tribunal deems the state as
the sole claimant, since the espousal of the claim by the state warrants that
the state alone shall proceed to sue for the matter, as the individual will no
longer be necessary to pursue the claim once the state comes into play.[552]
Diplomatic protection cannot be deemed intervention contrary to
international law by the concerned state; however, a state us under an
obligation to adopt only the claims of its nationals, and not those of its nonnationals, or foreign subjects. But, Article 7 of the Draft Articles on
Diplomatic Protection states that as an exercise in progressive development
of the law, a state may adopt the claim of a stateless person or refugee who
at the date of the injury and presentation of the claim is lawfully and
habitually resident in that state. This is not the right of the national
concerned, but a right of the state concerned, which it may exercise as per
its discretion.[553] It is not a matter of duty that is incumbent on the state.
[554] A state has full authority to extend its nationality, as explained under
Article 3. This is also enunciated under Article 3 of the Hague Convention
on Certain Questions Relating to the conflict of Nationality laws, 1930.
The right of Diplomatic Protection arises only where there is a genuine link
between the claimant state and its national. This was laid down in the
Nottebohm case.[555] While this may be a generic rule, the facts and
circumstances of each case need to be analyzed. The Nottebohm case[556]
broke new ground by witnessing the exercise of diplomatic protection,
thereby bringing the issue of nationality out of the sphere of domestic
jurisdiction, onto the plane of international law. The court held that as
evidenced by state practice, nationality is a legal manifestation of the link
between a person and the state that grants nationality. In this case, the
Liechtenstein government instituted proceedings, seeking restitution and
damages for Nottebohm, against Guatemala, for acts contrary to
International Law, carried out by Guatemala against Nottebohm. Guatemala
questioned Nottebohms right to Nationality of Liechtenstein, and thereby
his right to diplomatic protection. Nottebohm was born in Germany in 1881,
and applied for naturalization in Liechtenstein in 1939. Since 1905, he lived
in Guatemala, and operated his business there. While the court held that
Liechtenstein was free to decide who its nationals were, Guatemalas
recognition of this grant of Liechtensteinian nationality was debatable, as to
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whether it was mandatory or not. The Court observed that Nottebohm had
spent a very short time in Liechtenstein, and aside of this, and the
naturalization process, precious little else existed between him and
Liechtenstein. He had lived in Guatemala for 30 years. The court concluded
that Liechtenstein could not extend diplomatic protection because nationality
was granted without regard to the general concept as adopted in
International Relations. The extension of the doctrine of genuine connection
to the sphere of diplomatic protection from the field of dual nationality
heralded a new, albeit much criticized move.[557] However, the ILC Draft
Articles on Diplomatic Protection, adopted in 2002 did not require the
establishment of a genuine link as a requirement of nationality,[558] and the
commentary contends that the Nottebohm case should be contextualized to
its own facts alone, and understood in the light of all the peculiar to the
case.
In determining the link between the individual and the state, it is extremely
important to note that the purported status of nationality must have existed at
the date of the injury, and should continue until at least the date on which the
formal presentation of the claim is made. However, the continuance of
nationality hinges upon a wide catena of factual issues, agreements made, or
any other relevant factors as existent between the parties involved.[559]
Dual nationality allows the concerned individual to possess the nationality
of two states. In such cases, either state of which he is a national may adopt
his claim against a third state.[560] Practice of course, is evidence of the
fact that there is no need to establish a genuine link between the state of
nationality and the dual national. Where there is more than one state of
nationality, the rule appears to be that the state with which he has the more
effective connection may be able to take up cudgels on his behalf, as
opposed to the other state. The principle is based on the rules of state
sovereignty and sovereign equality, which excludes within its ambit the
principles of diplomatic protection in case of dual nationality, and must
yield before the rule of effective nationality, wherever such nationality is
that of the claimant state.[561] Article 6 of the ILC Draft Articles on
Diplomatic Protection provides that a state of nationality may not exercise
diplomatic protection in respect of a person against a state of which the
person is also a national unless the nationality of the former state is
predominant, both at the time of the injury and at the date of the official
presentation of the claim.[562]
Where corporations are concerned, however, there needs to be a tangible
link between it and the state seeking to take up its claim. Jurisprudence
reveals that importance has been attached to various factors, ranging from
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the incorporation of the company to the maintenance of its administrative


centre and the existence of substantial holdings by nationals in the company.
[563] In the Barcelona Traction case,[564] the ICJ held that a state under
the laws of which the corporation was incorporated and in whose territory
its registered office is situated, could rightfully espouse its claim. As for
ships, the practice differs. In M/V Saiga (No.2),[565] the tribunal held that
the flag state bears the rights and obligations with regard to the ship, so this
implies that every person involved with, or interested in its obligations are
linked to the flag state and their nationalities are irrelevant.
Taking up Claims: The importance of Exhaustion of Local Remedies
As a rule, customary international law dictates that before international
proceedings are instituted, or before claims are raised, all remedies
provided by the state have to be exhausted first.[566] The point of this
canon is to facilitate the state to have an occasion to remedy the wrong that
has occurred within its own legal order and to reduce the amount of
international claims that may be brought. Article 44 of the ILC Draft
Articles on State Responsibility provides that state responsibility may not
be invoked if the claim is such that the rule of exhaustion of local remedies
applies, and any available and effective local remedy has not been
exhausted.[567] The Ambatielos Arbitration,[568] between Greece and
Britain witnessed the application of this rule where the remedies available
under the English Law were not exhausted. The rule applies only to
remedies that are available, that are of an exhaustive nature. Not having
gone on appeal is no ground to dismiss a case, where such appeal would not
affect the basic outcome of the case.[569] The rule does not apply in cases
where one state has been guilty of a direct breach of International Law,
causing immediate injury to another state, but applies where the state is
complaining of an injury to its nationals.[570] Treaty stipulations may
waive local remedy requirements as seen under Article XI of the
Convention on International Liability for Damage caused by Space Objects,
1972. In Elettronica Sicula SpA (ELSI) case,[571] the court held that the
rule is an integral part of customary international law. The case involved an
action brought by the US against Italy, alleging injuries to Italian interests of
two US based corporations. Italy contended that the action was barred by
the exhaustion of domestic remedies rule, while the US countered that
argument by submitting that the dispute was submitted under the Treaty of
Friendship, Commerce and Navigation, 1948, between both states, which
spoke of submitting disputes to the ICJ and did not mandate the exhaustion
of local remedies. However, the court held that though the parties to a treaty
131

may well dabble in forum shopping, it found itself unable to accept that an
important rule of customary international law should be held to have been
tacitly dispensed with. The court went on to hold that the doctrine had no
applicability to the present matter, since the treaty in question had been
violated. The sum and substance of the dispute was that there was alleged
damage to two US Corporations, and given that the claims involved a
generous mix of interests of both states. Finally, the claim that local
remedies had not in fact been exhausted in the case because both US
Corporations had not raised the treaty issue before the Italian Courts was
rejected. The court was not persuaded that there was some remedy which
the corporations should have exhausted.
Treatment of Aliens and State Responsibility
Protection of foreign nationals involves plenty of different approaches
adopted by different countries of the Western and Developing blocks. The
general tendency of developing countries and communist countries formerly,
was to eagerly seek to reduce what the deemed as the privileges accorded
to capitalist states by International Law. Western nations have aspired for
protection of investments and their nationals abroad, and their property.
States in the West have contended the existence of an international minimum
standard for the protection of foreign nationals that needs to be upheld,
irrespective of how it treats all its own nationals. Other states contend that a
state needs to treat the alien as it treats its own nationals. States, such as
those of Latin American origin perceive the minimum standard concept as a
ground of interference in internal affairs of other states.[572]
The Calvo Doctrine evolved at this juncture, which re-ascertained the
principle of non-intervention, asserting that aliens were entitled only to such
rights as were accorded to nationals, and thus, had to seek redress for
grievances exclusively in the domestic sphere.[573] The doctrine was
essentially a shield against state intervention. In the Neer Claim,[574] an
American superintendent of a mine in Mexico had been killed, and the
commission held that the propriety of governmental acts should be put to the
test of international standards. In the Certain German Interests in Polish
Upper Silesia Case,[575] the Court upheld the existence of a common or
generally accepted norm under International Law, respecting the treatment of
aliens, applicable irrespective of what municipal law contends. The Garcia
case,[576] followed by the Chattin Case,[577] witnessed the view that an
international standard needs to be adhered to; but, in the Roberts claim,
[578] a reference was made to the test as to whether aliens were treated in
accordance with ordinary standards of civilization. A rather high threshold
132

is specified before the minimum standards are made applicable.[579] The


general perception of this minimum is that there is no defined standard
with a fixed content, but comprises a process of decision,[580] a process
that involves an examination of the responsibility of the state for the injury
to the alien in the light of all the circumstances of the particular case.[581]
The concept refers to the improper administration of civil and criminal
justice as regards an alien.[582] It would include the failure to apprehend
and prosecute those causing wrongs to the aliens as was seen in the Janes
Claim,[583] where an American citizen was killed in Mexico, the identity
of the killer being within the knowledge of the government that actually
ended up doing nothing. The widow was awarded compensation for nonaction, for unreasonably lengthy detention, and unlawful treatment in prison.
[584] The evolution of human rights has created a certain minimum standard
of state behaviour in pertinence to civil and political rights. None of the
instruments distinguish nationals and aliens, specifically applying to
individuals within the territory and subject to the jurisdiction of the state
without discrimination.[585] Specific efforts are being made in pertinence
to non-nationals of the country in which they live.[586]
Without doubt, a plethora of differences exist in the rights of nationals and
aliens. Aliens have no political rights and may be barred from employment
in certain spheres, such as government jobs, while being subject to the local
law at all times. A state has absolute authority to refuse the influx of aliens,
or to allow admittance of aliens. Jurisprudence depicts that a state is
obliged to divulge convincing reasons for expelling an alien. In the Boffolo
Case,[587] the court held that expulsion can be resorted to only in extreme
circumstances, in a manner least injurious to the alien. Reasons for
expulsion need to be enunciated whenever demanded. The onus of proof of
the wrongfulness of expulsion falls on the claimant alleging wrongful
expulsion.[588] Expelled aliens are required to be taken back by the state
whose nationality it possesses.[589]
Expropriation and State Responsibility
With the expansion of the world economy and the evolution of globalization,
privatization and liberalization as phenomena that have opened up national
economic frontiers, developed nations began heavily investing in
developing areas of the world, colonizing states, in the process.
Independence was granted at the end of the Second World War, the
properties and influence of nationalization measures by the Soviet Union
began thawing under pressure. Two opposing objectives frame the rules
relating to expropriation in the international sphere. Primarily, countries
133

dabbling with capital exports are mostly in need of some form of protection
prior to investing abroad. Secondly, countries importing capital are wary of
the power of foreign investors and the currency drain, and are oft stimulated
to take over such enterprises. This has paved the way for nationalization,
given that every state aspires to acquire control of privately owned
property, given that it is vital to socio-economic progress. No doubt an
important requirement, there arises no question as to the validity of
nationalization. However, what happens when a foreigners property is
sought to be expropriated? If a state were to refute expropriation of any
aliens property it would embitter its citizens by indirectly conferring
privileges to foreign property. Therefore, a state can most certainly
expropriate foreign property, as long as it fulfills all the requisite
conditions.[590]
The next issue is as to when international law has a role to play in such
situations. In Texaco v. Libya,[591] the court held that by stating that the law
governing the contract referred to general principles of law which was
taken to incorporate international law; by including an international
arbitration clause for the settlement of disputes; by including an
international arbitration clause for the settlement of disputes; by including a
stabilization clause to prevent unilateral variations of the terms of the
agreement, international law enters the sphere of the agreement. Where
expropriation is unlawful, international law is the yardstick used to
determine its lawfulness or otherwise. The following things need to be taken
into consideration while expropriating an aliens property.
Property: In the words of Higgins, there exists an almost total absence of
any analysis of conceptual aspects of property.[592] The term property is
inclusive of several things, such as physical objects and even abstract
entities. Property has been discussed as the concept of all movable and
immovable property, whether tangible or intangible, including all industrial,
literary and artistic property as well as rights and interests in property.[593]
Concession rights have been deemed incorporeal property.[594]
Expropriation: The term expropriation conveys a clear meaning, i.e. action
involving taking of property.[595] The 1961 Harvard Draft includes any
such unreasonable interference with the use, enjoyment or disposal of
property as to justify any interference with the use, enjoyment or disposal of
property as to justify an interference that the owner thereof will not be able
to use, enjoy or dispose off the property within a reasonable period of time
after the inception of such interference.[596] Where an entity is rendered
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completely incapable of exercising and enjoying any of its rights of


ownership in relation to their properties in another state, it is a case of
expropriation. In Starett Housing Corporation v. Government of the
Islamic Republic of Iran,[597]it was held that measures taken by a state
can interfere with property rights to such an extent that these rights are
rendered so useless that they must be deemed to have been expropriated,
even though the state does not purport to have expropriated them and the
legal title to the property formally remains with the original owner. The
seizure of a controlling stock interest in a foreign corporation is
expropriation.[598] In Biloune v. Ghana Investment Centre,[599] when a
stop order was issued against an investor who began construction work
relying upon the government representations without building permits, it
was deemed indirect expropriation. Where the taking of property is in
effect, a process, it will be difficult to determine at what point the process
becomes expropriation. Determination is essential for certain issues such as
calculation of compensation for expropriation. In Santa Elena v. Costa
Rica,[600] the Tribunal stated that a property has been expropriated when
the effect of the measures taken by the state has been to deprive the owner of
title, possession, or access to the benefit and economic use of his property.
This is essentially a factual issue, to be scrutinized with due consideration
of the facts of the case. Expropriation includes the taking away of closely
connected ancillary rights, such as patents and contracts that are not directly
nationalized.[601]
Public Purpose: Nationalization is, without doubt, a measure for the socioeconomic advancement of the state and hence, the underlying purpose must
be public welfare. This obviously mandates a similar line of thinking as
regards the basis of any form of expropriation. As noted by the PCIJ, in the
Certain German Interests in Polish Upper Silesia Case,[602]
expropriation must be for reasons of public utility, judicial liquidation and
similar measures. Stretching this definition brings in ample debate,
particularly as regards how far it may be stretched. In the BP case,[603] the
reason for the expropriation of the BP property was the Libyan point of
view that the UK had encouraged Iran to occupy certain islands in the
Persian Gulf. The acquisition of the stipulated zone was construed to be in
violation of International Law as it was made for purely extraneous reasons,
and bore arbitrariness and discrimination. The public utility principle is not
a necessary prerequisite for the legality of the nationalization, as was held
in the Liamco Case.[604] The UNGA Resolution on Permanent Sovereignty
on Natural Resources, 1962, mentions this requirement under paragraph 4,
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but A.2(2)(c) of the Charter of Economic Rights and Duties of States, 1974
does not. In Santa Elena v. Costa Rica,[605] the tribunal held that public
purpose is to be the basis of expropriation in International Law for it to be
tenable in law.
Payment of Compensation: When property is taken as part of a move of
expropriation, the concerned individual loses a tangible portion of his
wealth, and in most circumstances, of their sustenance. The requirement to
pay compensation is a standard maintained by several states, and finds
place in several bilateral treaties.[606] Called the Hull Formulation, the
principle is known to have evolved by the US Secretary of State, Hull, on
the occasion of Mexican expropriations.[607] Early cases in International
Law did not rely on the Hull Formulation.[608] The UNGA Resolution on
Permanent Sovereignty on Natural Resources, 1962, mentions appropriate
compensation as a necessity for expropriation. This was deemed a rule of
customary International Law, in the Texaco Case.[609] In the Aminoil
Case,[610] the tribunal held that the standard of appropriate compensation
in the 1962 resolution codifies positive principles. While the compensation
principle finds links with both, international and national law, under the
1962 Resolution, the Charter on Economic Rights and Duties 1974, puts its
application in a straitjacket, exclusively to the domestic sphere of action,
which is not the generally accepted norm of customary law. Section IV(1) of
the World Bank Guidelines on the Treatment of Foreign Direct
Investment[611] provides that a state may not expropriate foreign private
investment except where this is done in accordance with applicable legal
procedures, in pursuance with good faith, of a public purpose, without any
form of discrimination on the basis of nationality and against the payment of
appropriate compensation. Clause 2 of the same section indicates that
compensation will be deemed to be appropriate where it is adequate,
prompt and effective. A.13 of the European Energy Charter Treaty, 1994,
states that expropriation must be for a purpose which is in public interest,
not discriminatory, carried out under due process of law, and accompanied
by the payment of prompt, adequate and effective compensation.[612] There
are plenty of methods as to how to value such assets in particular cases.
[613] The general principle is that of fair market value, which means the
amount that a willing buyer would pay a willing seller for the shares of a
going concern, ignoring the expropriation situation completely.[614] Interest
on the value of the assets so expropriated will also normally be paid.[615]
While these principles are generally agreed upon, there is still much debate
in pertinence to cases of loss of future profits, and any compensation to be
paid for them. The full compensation of prejudice, by awarding to the
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injured party, the damnum emergens (loss suffered) and lucrum cessans
(expected profits) is a principle common to the main systems of municipal
law, and therefore, a general principle of law which may be considered a
source of international law, although the awarded compensation is only for
directed and foreseeable prejudice, and note remote damage.[616] In the
case of Metaclad Corporation v. United Mexican States,[617] it was
decided that the fair market value of a going concern with a history of
profitable operation may be based on an estimate of future profits subjected
to a discounted cash flow analysis. However, where the enterprise has
either not operated adequately long to set up a performance documentation,
or, where the enterprise has not made a profit, actual investment made must
be taken into consideration.[618] In certain cases, jurisprudence has
indicated the need to peruse the validity of lawfulness of the expropriation
itself.[619] Where an investment was made a short while prior to
nationalization, compensation in an amount equal to the fair market value of
the investment must be given.[620] A clear distinction must be made
between lawful and unlawful expropriations, since the rules applicable to
the compensation to be paid by the expropriating state differ according to
the legal characterization of the taking.[621] Where expropriation was
unlawful, full restitution in kind or its monetary equivalent is necessary to
reestablish the situation that would have remained, had there been no
expropriation.[622] Where it is lawful, the standard is that the payment of
the full value of the undertaking at the moment of dispossession.
Investment Treaties cover within their fold, commercial relations of states.
Such treaties are mostly bilateral.[623] Bilateral treaties essentially work to
ensure that the interests of both states involved, and this is generally
uniform, and evidences general state practice. The generally exhibited
features of such treaties may be taken note of. The prime concepts are
defined broadly. Next, the parties assume to promote and generate
circumstances favourable for investment, aspiring to award such
investments fair and equitable treatment, and also to undertake to keep
away from impairing, by way of any form of bias, the management and use
of any investments. The parties also undertake that the investments by
contracting parties are not to be deemed less favourable than those of other
states. Several states settle their expropriation disputes by lump-sum
settlements at the end of protracted negotiations, most times at values below
that of the current value of the assets involved.
Non-Discrimination: Non-discrimination has been defined as a requirement
for a valid and lawful expropriation.[624] In the Liamco Case,[625] it was
strongly argued that a discriminatory nationalization would be unlawful.
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Discriminatory treatment has to be proved with astute clarity, thereby


proceeding beyond all reasonable doubt. The onus of proof, anyway, lies
only upon the one that alleges the existence of discrimination.

Chapter 7- State Succession


States are, as pointed out earlier, one of most important subjects of
international law. Dynamism underlies every social, economic and political
entity. No political entity remains completely absolute, in that they also bear
the consequential brunt of change. New states emerge, as old states whittle
away into oblivion.[626] In a constant state of flux, states are always
interacting with other states, and forces in the international realm.
Secessions, mergers, dissolutions and disintegrations come and go, each
orchestrating the emergence onto or disappearance of states from the
international realm. Additionally, governing entities change, different
political parties take charge at different times, altering the state either
governmentally or constitutionally. However, despite all of these changes,
the state retains its original blueprint, as marked characteristically by its
entity, and remains bound by rights and obligations it inherited from the
predecessor entity. This was more of a regular feature at the twilight stages
of the Second World War, where new states mushroomed from under the
thumb of colonial rule, thereby playing a valuable role in contributing to
international law.
When a state has changes in its political set up, such that sovereignty
changes hands in the territorial expanse of the state, plenty of questions
138

arise. When a new state makes its way into the international realm, there
arises questions as to what rights and obligations come into its hands, as to
how far is it expected to be bound by the treaties entered into with other
states, by its predecessor, whether nationality automatically devolves upon
its inmates to replace the erstwhile nationality, what happens to all the
public property owned by the sovereign, and to what extent the sovereign
can be held liable for the liabilities and debts as owed by its predecessor
under international law. These issues do not just remain theoretical debates,
but also open doors for practical difficulties if they remained ungoverned by
requisite rules. The principles of state succession govern these issues, and
comprise a mix of state practice and customary law, and have also been
codified in part in the Vienna Convention on the Succession of States to
Treaties, 1978. Unlike succession in municipal law, succession in
international law is essentially comprised of varied rules with due regard
being afforded to the allied fundamental norms of state sovereignty, equality
of states and the maintenance of anarchy by way of the rule of nonintervention.
Scholastic opinion reveals two basic principles in place. The erstwhile
Roman point of view regards the continuance of legal personality in the
estate, which occurs by way of inheritance.[627] In opposition to this line of
thinking, is a doctrine which basically denied any transmission of rights,
obligations and property interests between the predecessor and successor
sovereigns. This doctrine emerged during the positivist thinking period, in
the 19 Century, and was also expressed in the form of the clean-slate
doctrine, at the end of the Second World War, thereby stipulating that states
emerging from under the thumb of colonial rule were free from
encumbrances of the predecessor sovereign.
State succession rears its head in several defined circumstances, each of
which mirror the mechanisms of acquisition of political sovereignty.
Instances include dismemberment, secession, annexation and mergers. One
common thread linking each of these instances is that a once recognized
entity ceases to exist, either wholly or in part, and a new entity comes into
existence. Despite the issue of state succession, a state is always
responsible for its duties, and is always in possession of its rights in
International Law. The rights and duties are inherent and emanate from
sovereignty, and do not have anything to do with the change of hands in
charge of the state. The distinctions between the various modes of creation
of states are extremely important, since they determine the quintessence of
the rules of law that apply to different situations.
th

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Most issues of state succession are addressed by treaties specific to the


sphere of activity concerned, as was the case of the Treaty of St. Germain,
1919, that dealt with the succession issues of the entities emanating as a
result of the dissolution of the Austro-Hungarian Empire.[628] If not
treaties, bilateral agreements between the new state and perhaps the
colonial powers that governed them, are useful in settling questions of state
succession. The UK, France and the Netherlands have a long standing
history of having entered into devolution bilateral agreements with colonial
entities seeking decolonization, from under their control. Most such
agreements provided that all rights and benefits, obligations and
responsibilities, in general, devolving upon the colonial power in relation
to the territory in question, all arising out of valid international instruments,
would devolve upon the new state.[629] This system was not deemed
satisfactory, given that several new states emerged after unilaterally
declaring independence. This resulted in periods of paradigm shifts where
treaties entered into by the predecessor state would continue in force, and
be subject to appraisal as to which was to be received, and which is to be
discarded.[630] Those that did not survive under customary international
law were deemed terminated. State succession is generally rather complex.
Most of the rules that constitute the body of law on the subject have evolved
in specific response to particular events in the international scenario, and
there has not really been consistency in practice.[631] There are a few
well-established principles of International Law that apply to state
succession.[632] The application of these principles is to be determined on
a case by case basis, while deriving assistance from the Vienna Conventions
of 1978 and 1983. However, in the German decision in the Espionage
Prosecution case,[633] it was held that state succession is one of the most
disputed areas of international law.
The law on state succession has appropriately been declared as being
chaotic.[634] Most rules of state succession are customary international
law. In the early 1970s, as the dust kicked up by multiple instances of
decolonization and the emergence of new states was only just settling down,
the ILC attempted to codify the law of state succession, eventually emerging
with the Vienna Convention on the Succession of States in Respect of
Treaties, 1978, and the Vienna Convention on Succession of States on States
in Respect of State Property, Archives and Debts, 1983, the former having
come into force in 1996, and the latter not having entered into force just yet,
are also relevant legal texts in relation to the subject. The conventions are
largely codified versions of existent tenets of law, and to some extent,
progressive development. The codification attempt has largely been touted
140

as a failure, since it seemed to focus largely on the special problems and


interests of newly independent situations, while ignoring other situations
that bore significant relevance. Another criticism that has been leveled
against the legal regime is that the rules in both draft treaties have not
always been followed by states in their actual conduct.
Defining State Succession
State succession can be understood as the replacement of one state by
another in the responsibility for the international relations of territory.[635]
The term is used to describe that branch of international law which deals
with the legal consequences of a change in sovereignty over territory.[636]
State succession includes a plethora of issues within its ambit, spawning
from continuity to non-succession. It ultimately deals with a question of a
factual nature, as to whether there has been a change in sovereign authority
within a specific territory. To a very large extent, a factual, or a case-bycase analysis is essential to determine the nature of rules that are to apply to
the new state. What also matters is the role of recognition and acquiescence
in the process.
The date of succession is the date on which the successor state replaces the
predecessor state in the responsibility for the international relations of the
territory to which the succession relates.[637] In most cases, this is
invariably the date of independence. Plenty of issues emerge as a
consequence of the states emergence in the international realm. When a
state slowly disintegrates, a question as to the dates may arise. This, thus,
equally demands a thorough fact-and-circumstance based analysis.
The Element of Continuity
When a new state emerges in the international arena, it must be decided as
to whether the state is a separate creature from its predecessor, or whether it
is a continuation with a modification. India, post partition, was deemed the
same legal entity that British India was, while Pakistan was deemed a
separate state.[638] Yugoslavia is deemed a continual, successor state of
Serbia. While this is the case in partitions and maybe disintegration,
secession of territory from an existing state does not affect the continuity of
the existing state even though its territorial and populations considerably
diminishes by the secession. An example of this is the cession of
Bangladesh from independent Pakistan. This existing state continues to
retain its rights and duties, all, except those that are specifically tied to the
ceded territory. Where deciding as to whether continuity or succession has
occurred as far as either party to the process is concerned, the criteria of
creation of statehood needs to be studied in due detail.
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Succession in different Contexts


States emerge out of existent states by disintegration, cession, mergers,
annexation and dismemberment. Succession as it rises in each context needs
to be studied in the light of the context involved.
Disintegration
When the USSR disintegrated, the Russian Federation emerged as the
successor of the state.[639] The Council of Heads of State of the
Commonwealth of Independent States, passed a decision dated 21
December, 1991, supporting Russias right to continue in the same capacity
as that of the USSR, with regards to its membership of the UN, including
permanent membership in the UN Security Council and other international
organizations. [640] There was a general consensus in support of Russias
status as the continuation of the USSR as a member of the UN, although not
all instruments of the Commonwealth of Independent States were consistent
with the continuity principle.
Another example is the case of the three Baltic States, namely, Estonia,
Latvia and Lithuania, which gained independence after the First World War,
and were subsequently annexed by the Soviet Union in 1940- an act that was
not recognized by some states, such as the United States, but was accepted
de facto by some states, such as the United Kingdom.[641]
The Baltic States declared independence in 1991.[642] In the same year, the
European Community adopted a Declaration welcoming the restoration of
sovereignty in the Baltic States. As a consequent implication of this
accepted restoration of independence, these Baltic states do not constitute
successor states to the USSR, thus implying freedom from such rights and
obligations as would be consequential upon such a kind of succession.[643]
Yugoslavia, however, witnessed a more complex issue as regards
succession. The Socialist Federal Republic of Yugoslavia collapsed over
several months,[644] with the individual constituent units proclaiming
independence at different times.[645] The Arbitration Commission on
Yugoslavia deemed that the process was over by the time its opinion was
issued on 4 July 1992.[646] In the course of its opinion, the Commission
noted that Bosnia and Herzegovina had a referendum that resulted in a
majority in favour of independence. Serbia and Montenegro had established
a new state called the Federal Republic of Yugoslavia, on 27 April, 1992.
Slovenia, Croatia and Bosnia were recognized by the states of the UN and
the EC, and had also been granted membership in the UN.[647] The
Socialist Federal Republic of Yugoslavia, thus, had been declared as
ceased to exist.[648] Despite this turn of events, Serbia and Montenegro
st

th

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142

each continued to maintain that it constituted no new state, but remained a


continuation of the erstwhile entity. The UN Security Council, in Resolution
777 (1992) held that the state, known as the Socialist Federal Republic of
Yugoslavia had ceased to exist, and that Serbia and Montenegro could not
continue automatically, the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations.[649]
Unification
Another form of State Succession is unification. A merger of two or more
already existing states to create a new state is unification. This has occurred
in cases of the Yemen Arab Republic, and the Peoples Democratic
Republic of Yemen, which merged into one. Both states entered into an
agreement on 22 April, 1990, and established the Republic of Yemen, by
merging two existing states and creating a new state with a new name.[650]
Another mechanism that constitutes unification is when one state absorbs
another, leading to the disappearance of the latter, while the former
continues with a larger territory and population. An example for this is
Germany, which, at the end of the Second World War, was divided into five
parts, four of which were governed by USA, UK, France and Russia, along
with a fifth special Berlin Area, that formed part of the no-zone.[651] The
German Democratic Republic was recognized as a sovereign state having
full authority over internal and external affairs subject to the rights and
responsibilities of the Four Powers in respect of Berlin and Germany as a
whole.[652] A monetary, economic and social union was established by
way of a treaty in May 1990. A second treaty in August 1990, provided for
the unification in October by the accession of the Global Depository
Reserves under Article 23 of the Basic Law of the Federal Republic, on 12
September 1990, the Treaty on the Final Settlement with respect to Germany
was signed by the two German states, and the four Allied Powers.[653] The
last agreement settled matters definitively, and confirmed the borders of
unified Germany as those of the Federal Republic of Germany and the
German Democratic Republic, provided for the reduction in the armed
forces of Germany, and for the withdrawal of Soviet Forces from the
withdrawal of Soviet forces from the territory of the German Democratic
Republic. The four Allies ended their rights and responsibilities concerning
Berlin and Germany as a whole, so that the amalgamated Germany had full
sovereignty over its internal and external affairs. Between the Federal
Republic of Germany and the German Democratic Republic, the treaty dated
31 August, 1990, clearly provided that the latter was assimilated into the
former.
nd

th

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Absorption and Merger


When one state is absorbed by another, or merges into another, the former
entity becomes extinct, and the latter expands territorially. As a consequence
thereof, those treaties that have been signed by the former state, of a
political nature,[654] cease to exist as the concerned state itself ceases to
exist. However, territorial treaties that define boundaries shall continue to
define the boundaries as they did originally. Treaties of the absorbing state
continue to govern the newly acquired territorial expanse. However, all of
these principles can be altered in application with the expression of a
contrary intention by the parties. A case in point is the German Unification
process, whereby Article 11 coupled with Annex I of the Unification treaty,
1990, sought to exclude the erstwhile territory of the German Democratic
Republic, from the treaties of the Federal Republic of Germany in relation
to NATO issues.
As per Article 31(1) of the Vienna Convention on the Succession of States
to Treaties, where two or more states unite to form one successor state, the
treaties continue in force unless the successor state and the other state party
agree otherwise, or, if it appears that it would be incompatible with the
object and purpose of the treaty or would radically change the conditions
for its operation. The second clause of the same provision establishes that
such treaties would apply only in respect of that part of the treaty in respect
of which the treaty itself was originally in force at the date of succession of
states. However, where contrary intentions are declared, to the effect that
the multilateral treaty shall be applicable in relation to its entire territorial
expanse, or, that the treaty itself is such that by its terms or by way of having
limited members requires the consent of other members, the aforementioned
rule is modified.[655] This is the general trend exhibited in the context of
bilateral treaties as well.
It seems clear that these provisions are amply useful in relation to cases
where two states join together to become a new, third state. But what
happens when one state simply takes over another state, leaving the latter
completely extinguished? The general mechanism as followed by
International Law has best been reflected in Article 31 of the Vienna
Convention on the Succession of States to Treaties, even in such situations.
During the Egypt-Syria merger, the United Arab Republic was formed in
1958.[656] Similarly, Tanganyika and Zanzibar merged to form Tanzania in
1964.[657] In both cases, there were provisions to the effect that there
would be a continuation of treaties in the territories to which they had
applied before the mergers. With a general practice in place that also points
144

in the same direction, it stands clear that Article 31 applies in such


circumstances.
Cession
Cession refers to the instance when one part of a states territory becomes a
part of another states territorial expanse. Cession brings along with it, a
plethora of consequences relating to state succession. The general rule is
that treaties of the former cease to apply to the territory while the latters
treaties shall extend to the territory. Article 15 of the Vienna Convention on
the Succession of States to treaties establishes the rule, which is also
famously known as the moving-frontiers rule.[658] It adds a proviso, that
where it appears from the concerned treaty, or, is otherwise established that
the application of the treaty to the territory would be incompatible with the
object and purpose of the treaty would radically change the condition for its
operation, the extension of the treaty should be avoided. Historical
examples amplify this line of thinking. After 1919, it was held that German
treaties would not apply to Alsace-Lorraine, but that French treaties would
apply.[659] Article 15 thus personifies customary law.
Secession from an independent state results in the continuation of the
original state, with reduction in territorial expanse, but with all its
obligations from before intact as regards its territory, except the portion that
has been ceded. The newly created entity begins life afresh, free from all
treaty rights and obligations that bound its former sovereign.[660] This
occurs because it is difficult to preserve as a common rule that states that
have not signed treaties are to be made bound by them.
Succession and Treaties: Rules and
Reality
The underlying norm of every treaty that a state is signatory to is pacta sunt
servanda, which implies that the state must respect all the treaties it has
signed. However, as per the rule of pacta tertis nec nosunct, nec prosunct,
which implies that only those states that are party to a treaty are bound by
that treaty, a treaty does not apply to a third state, or to any state that has not
signed it. When succession occurs, an independent state, a new state
emerges from the original entities that existed. These new entities are
independent of the original entities, or may, in some cases, continue as
extensions of the original entity. The rules pertaining to succession to
treaties are found in customary law, and have also been codified in the
Vienna Convention on the Succession of States in Respect of Treaties, 1978.
As regards treaties, or agreements with the predecessor state, as far as
bilateral issues are concerned, the consent of the other party is required.
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Articles 8 and 9 of the Convention emphasize this rule. Article 8 says that
such agreements in themselves cannot affect third party states and this
reaffirms an accepted principle. Article 9 deals with unilateral declarations
and emphasizes that such a declaration by a successor state alone cannot by
itself affect the rights and obligations of the state and third states.
For the purpose of state succession, treaties are divided into three kinds.
The first of these are the territorially applicable treaties- which include all
treaties that apply to definitive territorial extent, such as treaties that define
boundaries. These treaties are called dispositive treaties. The general
viewpoint as regards territoriality treaties indicates that they remain
untouched by succession, and continue unaffected, and that succession
always occurs. These treaties are known to run with the land, and are
unaffected completely, by changes in sovereignty over the territorial
expanse.[661] This is primarily so with due respect and regard for the
maintenance of stability. The first internationally accepted expression of this
line of thinking is the Latin American doctrine of uti possidetis juris. This
was subsequently enunciated in the American Practice,[662] laid down in
Resolution 16 of the meeting of Heads of State and Government of the OAU,
1964. The ICJ has also accepted this point of view, as expressed in the
Burkina Faso/Mali case.[663] Uti possidetis has been extended from
decolonization to the creation of new states from existing independent ones,
as state practice depicts. A great deal depends on the situation at hand,
including the stand of other states, and the UN. Article 62(2) of the Vienna
Convention on the Law of Treaties states that a fundamental change in
circumstances cannot be invoked as a ground for terminating of or
withdrawing from a treaty that establishes a boundary. Article 11 of the
same states that succession does not affect a boundary established by a
treaty, and obligations and rights established by a treaty, and relating to a
regime of a boundary. In the Libya/Chad case,[664] the ICJ held that once
agreed, the boundary stands, as any other approach would vitiate the
fundamental principle of the stability of boundaries. A boundary established
by a treaty enjoys permanence, which a treaty itself may not enjoy. In the
Eritrea/Yemen case,[665] boundary and territorial treaties are erga omnes
in character. A commonly encountered consequence of this rule is that states
that emerge newly, inherit those boundaries that are drawn for it by prior
colonial powers. Colonial boundaries, in places such as Africa, were
oftentimes unnatural given that they disregarded ethnic divisions. Areas
forming a natural unit were cut across. However, independent states were
not in one consensus when it came to redrawing boundaries, and wanted to
preserve and protect what they already had, to avoid unwanted hassles.
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[666] Subsequently, in 1964, the OAU adopted a resolution that encouraged


member states to respect the extant borders on the achievement of
independence.
Allied with this is a set of rules that govern the principle of moving treaty
boundaries. When a state loses a part of its territory, it loses its rights and
obligations under the treaties it is signatory to, in so far as those treaties
used apply to the territory so lost. An example is when the United Kingdom
accorded independence to Nigeria, it was no longer bound by an AngloAmerican extradition treaty to extradite criminals from Nigeria. It did not
have a right, any longer, to require that criminals be extradited from the
United States, for any crimes that were committed in Nigeria. But, as
regards the corollary, when a state acquires new territory, it does not
automatically succeed to the predecessor entitys treaties in respect to the
area. Its own treaties become applicable to the newly included area. A case
in point is the application of the French treaties to Alsace and Lorraine,
after they were ceded to France by Belgium in 1919. These two principles
constitute what is called the rules of moving treaty-boundaries. These rules
find application in cases where existing state territories transfer portions of
their territory to another state, thereby transferring the rights of sovereignty
over them. The gist of the rule lies in the fact that once the territory moves,
the treaties that the successor state is bound by, applies to this newly
acquired territorial expanse. The rule, however, leaves a glaring lacuna.
What happens when one state is completely absorbed by another? This was
a line of argument advanced by Germany at the time of the preliminary
discussions on the 1978 Convention. Of course, it would be easiest said
than done to conclude that the successor states treaties shall alone apply,
and all of the predecessor treaties fade into profanity. The practical realm
would purport to throw up too many issues in this regard, and hence it still
remains a gray area.
The second kind, namely, the Political treaties, deal with the establishment
of rights or obligations which are particularly linked to the regime in power
in the territory in question. These imply treaties of alliance, friendship or
neutrality.[667] These treaties do not bind successor states as they are tied
to the nature of the state that has ceased to be. The emergence of states at the
end of the colonial era witnessed a plethora of political treaties. A new
state can succeed to a multilateral treaty to which the predecessor state was
a party.[668] This is not without exception, given that a new state cannot
succeed to a multilateral treaty if it would be incompatible with the
intentions and ideologies of the extant signatories of the treaty, and, a state
may choose not to succeed to a multilateral treaty, in which case this rule
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does not apply. A new state succeeds to a bilateral treaty made by the
predecessor state with another state, only if both states involved agree to
this.[669] A perusal of these provisions indicates a higher degree of
importance for consent in the case of bilateral treaties. This arises naturally
out of the fact that multilateral treaties are established for the very sake of
widespread participation and membership. States have the right to enter into
treaties in their capacity as sovereigns. However, it cannot be forgotten that
colonies were often given a partial treaty-making power before becoming
sovereign. This gave them the right to enter into such treaties that did not
suffer from the state emerging independent. The UN Charter is a prime
example. While under British Rule, India joined the UN as early as 1945.
After it attained independence in 1947, it continued as a member of the
United Nations.
The third category deals with other treaties, which are not easy to define or
categorize when it comes to succession. There seems a general
inclination[670] of states in favour of succession to some categories of
multilateral treaties and conventions.[671] However, this is not an
exhibition of a general rule, and thus, each circumstance needs to be
analyzed independently of a generic set of rules. The claims as made by
relevant states, and the related positions and reactions of third states must
be studied. This is the general scheme of things as far as multilateral treaties
are concerned. But, as far as bilateral treaties go, the pivotal point is that of
the individual contractual state, since only two states are involved in a
bilateral treaty. The general presumption is that of non-succession, with due
regard to all the facts and circumstances of the case. The catena of instances
pointing towards state practice reveals that most states rely upon and
support the clean-slate doctrine.[672]
The Nyerere Doctrine
In the course of the span of time between the 1950s and 1960s, many
African colonies achieved independence. The rules of succession did apply
to most, but, in some states, the newly emergent doctrine called the Nyerere
Doctrine of selective succession to treaties applied. Julius Nyerere, the
first President of Tanzania, was the hand behind the evolution of this rule.
He was known to have opined that international agreements dating from the
colonial times should be subject to renegotiations when a State becomes
independent. This was because, the newly independent state should not be
automatically bound by something that the nation was not in a sovereign
position to agree to at that time. Therefore, in a bid to salvage its sovereign
148

identity, a newly independent State can upon the attainment of independence,


review the international treaties that it stands to inherit and decide which of
the agreements it will accept and which it will repudiate. Although such an
approach to State succession is not new and was already recognized by
customary international law, Nyerere is recognized for the modern
formulation of the optional doctrine of the law of State succession. This
doctrine is generally considered as being more refined than that of the
tabula rasa, or the classical doctrine of clean slate. Under the Nyerere
Doctrine, this is only an assumption, as the doctrine does not do away with
the possibility of a renewal of commitments or agreements of mutual interest
to the parties concerned. This doctrine rejects any categorization of
international obligations between those that the successor state ought to
accept and those which it could reconsider.
Human Rights Treaties
Within the realm of State succession, the subject of succession in relation to
human rights treaties is of special interest. Several human rights violations
often occur precisely during the periods of political instability which tend to
stem from state succession. In such circumstances, it is imperative to know
the precise extent of the international obligations which are incumbent on
the successor. This applies not only to the obligations under the international
human rights standards which are in force, but also to the reporting
obligations, the complaints procedures and, more generally, the rules of
accountability.
Human rights treaties are specific treaties, which establish that obligations
are owed directly to individuals and provide for direct access for
individuals to international mechanisms.[673] When a state party to a human
rights treaty either disintegrates, or, is one from which other states are
created, if the basic rules of succession are followed, there is a danger that
this may lead to the deprivation of the protection of human rights for the
people in the territory. In relation to the Yugoslav tragedy, the UN Human
Rights Committee, in its 45 session, was quick to rise to the occasion
where it held that all the people within the territorial expanse of erstwhile
Yugoslavia are entitled to the guarantees of the Covenant.[674]
In 1994, the Commission on Human Rights adopted a resolution, numbered
1994/16, on 25 February, 1994, in which it sought to reiterate its call to
successor states which had not yet done so, to conform to appropriate
depositories that they continue to be bound by obligations under
international human rights treaties. The Commission also requested human
rights bodies to continue furthering the continuing applicability of the
th

th

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respective international human rights treaties to successor states, while also


requesting the Secretary General to encourage successor states to conform
with their obligations under international human rights treaties to which
their predecessors were a party as from the date of their independence.
[675]
Judicial opinion on the subject tends towards the same notion. In the
Application of the Genocide Convention (Bosnia-Herzegovina v.
Yugoslavia) case,[676] the Court held that it was in effect, not necessary to
go into the question of human rights treaty succession, since both successor
states were parties to the Genocide Convention. Nevertheless, the issue
itself was addressed in two separate opinions. In the words of Justice
Shahabuddeen, to effectuate its object and purpose, the Genocide
Convention would fall to be construed as implying the expression of a
unilateral undertaking by each party to the Convention, to treat successor
states as continuing as from independence any status which the predecessor
state had, as a party to the Convention. The object and purport argument
could be extended to Human Rights Treaties.[677] In Justice Weeramantrys
opinion, it was held that a principle of contemporary international law
exists, that there is an automatic succession to so vital a human rights
convention as the Genocide Convention.[678] This opinion stemmed from
the fact that there was the danger of gaps appearing in the system of human
rights protection, as between the dissolution of the predecessor state and the
acceptance of human rights treaty obligations by the successor state or
states.
International Claims and Succession
International claims refer to any cases or legal disputes seeking
compensation or reparation for illegal acts, which are regarded as being
personal in the international scenario. As a consequence thereof, there is
no succession to the rights of the claimant state or to the obligations of the
state called to make such compensation or reparation. International claims
are unaffected by expansion or contraction of the claimant state or of the
defendant state, since the clean-state rule warrants that new states
commence operations with a clean slate, and that where the claimant state
becomes extinct, the claim also follows suit down that lane. In the Browns
Claim,[679] a US Citizen suffered a denial of justice in South Africa, in
1985. The Boer War broke out before his claim was settled, and led to the
annexation of the Republic by the United Kingdom. In pursuance of his
claim, the United States pressed for justice against the United Kingdom. It
was ultimately concluded by the Arbitrator that the United Kingdom had not
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succeeded to the South African Republics liabilities for international


claims.
Succession and Nationality
Nationality is the single-most important factor in linking an individual to a
state, particularly in the context of individual identity, and allied rights and
obligations. Nationality has links with the principle of state sovereignty, in
that the state that grants nationality may do so only if it is vested with the
rights accruing from its status as a sovereign. When sovereignty in relation
to a territory changes, the automatic consequence arising therein, is that the
subjects of the predecessor state, continuing to inhabit the territory now
belonging to the successor state, automatically lose their old nationality and
acquire the nationality of the Successor State. This becomes a little complex
in practice. Determination of who these inhabitants are, now takes on a
rather difficult note. The criteria to determine ones status as inhabitants can
be anything under the sun, ranging from birth on territory, to residence on
territory, to a mix of both. Choosing birth as the criteria is easy, there
involves no date calculations. If residence is chosen, the biggest challenge
lies in culling out the relevant periods and time requirements that need to be
satisfied, in order to be construed an inhabitant. At present, the gray area
stretches over a vast expanse. Legislative provisions and treaties can
perhaps be of use in the matter, in assisting the provision of some viable
solution, to say the least.
Having identified the zone as bearing too many lacunae to name, the
International Law Commission in 1993, went on to address the topic of state
succession and its impact on nationality of natural and legal persons. The
working group devoted to the topic concluded and submitted a report in
1995, with its fundamental suggestions built on the fact that every person
whose nationality might be affected by the change in the international status
of the territory has a right to nationality. It also pointed out that states have
the obligation to prevent statelessness, considering that it is the most serious
ramification emanating from state succession, along with issues of dual
nationality, separation of families resulting in different nationalities for
different members, and the warped implications that branch off from them.
Succession and Contractual Rights
The succession of a state to the contractual rights of its predecessor has
been subject to much debate and discussion, far before the era of
decolonization. As early as the West Rand Central Gold Mining Co. v.
The King,[680] it was held that the successor state does not succeed to the
contractual liabilities of the predecessor state after taking the latter in its
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fold. However, this case has been subject to much criticism, in that the ICJ
rejected the surmise in the German Settlers case.[681] By sheer logic, it
would be right to say that a state cannot be bound by a contract to which it is
not a party. However, if the alien has brought home some benefit to the
territory after outing in money and effort in the course of performing his
contractual obligations, the state acquiring such sovereignty over the
territory should, with all due regard to the law, allow the alien to reap the
rewards accruing from his investment. This makes the successor states
liability seem quasi-contractual. Of course, this classification as contractual
or quasi-contractual only brings in a nomenclature-driven theoretical
dimension, since the consequences are ultimately the same.
Contractual succession comes to fore in the light of concessions and
national debts. Concessions are rights accorded by a state to any person,
legal or natural, to operate an enterprise based on certain terms defined in
an agreement entered into between both. This may relate to any activity
involving the provision of a public utility. The concession grants rights that
are partly contractual, and partly proprietary in nature. The general notion is
that a successor state must pay recompense if it annuls concessions granted
by predecessor states.[682] As for national debts, if there has been a
takeover of a whole state, then the successor takes on all obligations of the
predecessor. If it has only just been a part, then part of the debts shall be
succeeded to.
Succession to Assets
The basic rules underlying succession to assets and debts are couched in
customary international law. These tenets were given personification in the
Vienna Convention on Succession to State Property, Archives and Debts
1983. However, the convention is not in force. A plethora of its provisions,
with the exception of those segments dealing with newly independent states,
reflect the principles of customary law that remain in place till date.
The chief rule in relation to the distribution of assets, archives and debts in
succession-related situations is that the relevant parties should settle the
issues between themselves by way of an agreement. The rules found in the
Vienna Convention of 1983 come into operation only in those circumstances
where an agreement has not been entered into. Jurisprudence on the subject,
as explained by the Yugoslav Arbitration Commission in the course of its
Opinion No. 9, the successor States to the Socialist Federal Republic of
Yugoslavia were to settle all aspects of the succession by agreement
together, in tandem with one another.[683] The approach was subsequently
reinforced in Opinion No. 14, where the Yugoslav Arbitration Commission
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declared that the first principle applicable to State succession is that the
successor States should consult with each other and agree a settlement of all
questions relating to succession.[684]
Public Property: The term public property implies all the property that
belongs to the state, i.e., all property distinct from those that belong to its
nationals and inhabitants, while the predecessor state retains the public
property on the territory it has not given away.[685] The classic rule
postulates that only the public property of the predecessor state passes
automatically to the successor state,[686] as dependant on the definitive
ambit of the public property in question. Public and private property differ
from each other in terms of definitive ambit, based on the conceptual
differences that exist in private and public law. Recourse to municipal law
is an oft sought after requirement, considering that it is only a few times
when there is a definition of what public property includes.[687] Therefore,
the question now shifts as to which municipal law needs to be referred to.
The law of the predecessor state is the relevant legal regime that needs to be
perused in understanding the ramifications that shall arise in the context of
succession and state public property. This is so, because the law that
defines the property as being public property, shall be the law that shall
determine the direction it shall take as regards attaining its final destination
in the wake of succession.[688] Article 8 of the Vienna Convention 1983,
while codifying customary law, stipulates the meaning of state property,
holding that it implies all property, rights and interests which, at the date of
succession of states, were, according to the municipal law of the
predecessor state, owned by that state.[689]
The Yugoslavian Arbitration Commission reemphasized this point, by
holding that in order to determine whether the property, debts and archives
belonged to the Socialist Federal Republic of Yugoslavia, reference ought
to be made to the domestic law of the Soviet Federal Republic, as was in
operation on the date of succession.[690] For the sake of cogency and
clarity, the date in question for the passing of the property is the date of
succession, unless otherwise agreed by the parties concerned or decided by
an appropriate international body.[691] This is usually the date of
independence. Of course, in theory, this is much simpler. There will be
plenty of difficulties, as different dates of succession exist for different
successor states.[692] Agreement between the concerned parties alone
would help solve these difficulties.[693]
To gain better perspective on the subject, it would be relevant to understand
the background that contributed to the jurisprudence from the Yugoslavian
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Arbitration Commissions. Primarily, in relation to the specific issue under


discussion, the Commission was confronted by two problems. The first of
these issues was that the 1974 Constitution of the Soviet Federal Republic
of Yemen had transferred the ownership of several items of property to the
constituent republics. The commission, in this regard, concluded that such
property could not be held to have belonged to the Socialist Federal
Republic of Yugoslavia, whatever may be the origin or initial financing.
[694] Secondly, the Commission had to deal with social ownership, a
principle that had received much importance and attention in the Socialist
Federal Republic of Yugoslavia. This issue was dealt with by way of
mixing a functional approach and the territoriality principle. Social
ownership was held mostly by associated labour organizations, each of
whom had their own legal identity and personality, and operated in a single
republic within whose jurisdiction it came. Therefore, the assets, property,
debts and archives were not to be divided amongst the powers on account of
state succession; but rather, instead, each successor state was to exercise
their sovereign powers where they were concerned.[695] However, in all
other cases where other organizations managed social ownership, whether
at the federal stage or in two or more republican entities, their property,
debts and archives were to be divided between the successor states, if at all
they exercised requisite public prerogatives on behalf of the Soviet Federal
Republic, or the individual republics. In the absence of public prerogatives,
the organizations were to be deemed private-sector enterprises, which shall
not face the consequences of state succession.[696] In 2001, the
Yugoslavian Agreement provided under Article 6 of Annex A that the
successor state on whose territory immovables and tangible movables are
situated is the one to decide whether such property was state property or
otherwise.
The generally accepted ideology as echoed by customary law, is that public
property of a predecessor state with respect to the territory involved, passes
to the successor.[697] When a state gains a small portion of new territorial
expanse from another state, it succeeds, in the process, to the public
property of that state situated on the territorial expanse it has acquired.
When a state takes over another state, thereby taking over all of its territory,
it pretty much succeeds to all the public property of the erstwhile state,
irrespective of where it is situated.[698]
At the base of all this assessment, lies the mandatory requirement to
distinguish between private and public property. State owned immovable
property present on the territory to which succession relates, passes to the
successor state, as has been enunciated under Article 14 of the Vienna
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Convention of 1983.[699] Where the immovable property is situated outside


the ambit of the successor state, or states if applicable, the generally
applicable rule is that where the predecessor state continues to exist, the
property remains with the predecessor, unless otherwise agreed between the
parties, or unless special circumstances prevail.[700] As a necessary
corollary, where the predecessor state itself has ceased to exist, the
property abroad should be divided proportionately between the successor
states.[701]
As regards newly independent states, Article 15(1) (b) exposits the law.
Immovable property having belonged to the territory, to which succession
relates, situated outside it and having become state property of the
predecessor state during the period of dependence, shall pass to the
successor state, while other immovable state property situated outside the
territory shall pass to the successor state in proportion to the contribution of
the dependent territory. It must be remembered that these provisions do not
fall within the ambit of customary international law.
Movable property connected with territory is governed entirely by the
territorial principle.[702] Article 17 of the Vienna Convention of 1983,
stipulates that movable state property of the predecessor state connected
with the activity of the predecessor state in respect of the territory to which
the succession of states applies shall pass to the successor state. This, of
course, is not without implications of high degrees of complication. It is
rather difficult to determine which property is destined specifically for
local use, or, which property is really connected with the activity of the
predecessor state in the concerned territory. The Yugoslavian Arbitration
Commission in the light of movable property went on to assert that public
property passes to the successor state on whose territory it is situated.[703]
This is not to rule out that particular pieces of property can be dealt with
differently. The Yugoslavian Agreement purported that the rule they laid
down would not apply to tangible state property that bears heavy
importance as far as the cultural heritage of the successor states, which
originated there albeit situated at another place at the date of independence.
The property shall naturally go to that successor state where the cultural
heritage itself is.[704] Military property is also dealt with in keeping with
special agreements.[705]
When it comes to movable property housed outside the territory of the state,
more complications come into place. Article 17(1)(c) of the Vienna
Convention of 1983 holds that such property, in the event of there being a
separation of a part of a state, shall pass on to the successor state in an
155

equitable proportion. The approach clearly seems to be a modification of


the territoriality approach.[706] Of course, the equitable division rule gains
a greater stronghold in the case of there being a case of dissolution of the
predecessor territory, and in the case where such property holds a stronger
link with the territory in relation to which succession occurs.[707]
Movable property poses no issues in the context of cases of absorption and
merger, simply because by virtue of one state subsuming the other within its
ambit, there happens to be no doubt that it just takes over the property of the
other. The German unification was a clear exposition of the relevant rules.
The Unification Treaty stipulated under Articles 21 in relation to property
during absorption and merger, that they directly became Federal assets, and
was to be used to discharge all the relevant public tasks of the territory of
the former GDR. Article 22 mentioned that all public assets of legal entities
in that territory, including the land and assets in the agricultural sectors
which did not serve directly specified administrative tasks. The financial
assets were to be administered in trust by the Federal Government and be
apportioned between the Federal Government and the Lander of the GDR.
Succession to Archives
Archives refer to all those properties that bear special characteristics. They
are essentially difficult, by nature, to divide and segregate, while they can
easily be duplicated and reproduced. Archives are essentially those items
that constitute the heritage of a state, the historical realm of a state, and the
identity itself. They may comprise of documents, philatelic and numismatic
collections, photographs, audio and video documents and myriads of other
similar material. The UNESCO has come to the forefront in dealing with
archives, in that it has called for the restitution of archives as part of the
reconstitution and protection of the national cultural heritage and has
appealed for the return of an irreplaceable cultural heritage to all those who
created it.[708] In addition, the United Nations Convention on the Law of
Sea, 1982, is relevant. Article 149 purports that all objects bearing
archaeological and historical value are to be preserved or disposed of in a
manner that benefits mankind as a whole. Article 303 on the other hand,
warrants that states have the duty to protect objects of an archaeological and
historical nature found at sea shall co-operate for this purpose. This has
also been exhibited in practice, as is seen in the context of European States
dealing with cessions of territory including archives.[709]
The Vienna Convention of 1983 also exhibits the law on succession to
archives. Article 20 warrants that all documents of whatever date and kind,
produced or received by the predecessor state in the exercise of its
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functions, which, at the date of the succession of states, belonged to the


predecessor state according to its internal law and were preserved by it
directly or under its control as archives for whatever purpose. As a general
rule, archives pass as at the date of succession and without compensation.
This occurs without affecting the archives in the territory owned by the third
state.[710] Article 27 states that where a portion of a states territory is
transferred to another state without an agreement, the part of the state
archives of the predecessor state which should be at the disposal of the state
to which the territory is transferred for the purpose of administration of the
territory, shall pass to the successor state. The same provision applies to
newly formed and newly independent states, with a few minor differences.
Archives that belonged to the territory subject to succession, and became
archives of the predecessor state during dependence, passes on to the
successor state. The term archives in this context, implies all forms of precolonial material, in the hands of every entity from the government to
private individuals. Relevant instances of state practice include the Treaty
of Peace of 1947 between Italy and Ethiopia, which dictated that Italy was
under an obligation to restore all archives and objects of historical value
that belonged to Ethiopia or its natives, and were removed from Ethiopia to
Italy since October 1935.[711] Vietnam was another example, where the
1950 agreement between France and Vietnam warranted that there should be
a return of all historical archives.[712]
Article 28(2) provides that the passing or the reduction of parts of the state
archives of the predecessor state of interest to the territory in question is to
be determined by agreement in such a manner that each of the states can
benefit as widely and equitably as possible from the parts of such archives.
Clause 3 of the same article purports that the predecessor state has to
provide the newly emerging state with the best available evidence from its
state archives relating to territorial title and boundary issues.
Where two states unite to form a third successor state, the archives of the
former two states pass on to the successor state.[713] Where a portion of a
state is ceded to another, or is ceded to form another state, unless otherwise
agreed between the states, the part of the state archives of the predecessor
as required to remain with the territory concerned for the purpose of normal
administration of the same, will pass on to the successor, as per Article 30.
These provisions apply in the case of dissolution of states, resulting in its
replacement with other successor states. In the absence of agreements, state
archives pass on to the successor states in an equitable manner with due
regard being accorded to all circumstances, as according to Article 30. The
Yugoslavian Agreement of 2001 confirmed these principles.[714] The
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agreement went on to add that all other archives that fall outside these
categories are to be governed by an agreement between the successor states.
[715]
Articles 28, 30 and 31, each state that there shall be no infringement of the
rights of the people of those states to development, to information about
their history and to their cultural heritage. This ultimately signifies the fact
that there shall be absolutely no room for the violation of human rights.
Though these rights may not really exist in the legal realm in black and
white, and may just be read into the right to life, it is right to accept that the
general trend leans towards the fact that there should be encouragement
towards allowing the enjoyment of these rights.
Succession and Public Debt
Public debt, sometimes also called as national debt is that debt indulged in,
by the Central Government in keeping with the interests of the State.
Essentially, public debt is a rather sensitive issue, considering the fact that
there are third parties involved, who take the form of creditors, and they
would naturally be reluctant to accept a change in the identity of the debtor,
and a cloud of uncertainty hanging over the likelihood of repayment would
worry them.
Article 36 of the Vienna Convention of 1983 deals with the issue, by
indicating that a succession of states does not as such affect the rights and
obligations of creditors, and therefore, the state is still liable for the debts
irrespective of what nature it takes post succession. Article 40 states that
where part of a state separates to from another state, unless otherwise
agreed, the state debt of the predecessor state passes to the successor state
in an equitable proportion taking into account in particular the property,
rights and interests which pass to the successor state in relation to that debt.
This proposition cannot totally be said to constitute a codification of
customary law, per se, since the view of the confused and disparate practice
of States to date seeks to differ. Nevertheless, the contents of these
provisions do dictate a rather appreciable, pragmatic and feasible
approach.
As a corollary, therefore, it naturally follows that the successor state has a
right to take up fiscal claims belonging to the former state, including the
right to collect the taxes that fall due. In practice municipal courts will
enforce obligations of the predecessor state against the successor only when
the successor state has taken steps to recognize them. Article 38 explains a
circumstance where a new state comes into place. It states that when the
successor state is a newly independent state, then it is a case where no
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state debt shall pass, except by agreement and the fulfillment of certain other
conditions.
In order to understand the dynamics of state succession and their impact on
public debts, it is necessary to understand what actually constitutes public
debts in their entirety. Public debts comprise national debts, which are debts
owned by the State to an external or internal creditor; local debts, which
refer to debts contracted by a sub-governmental territorial unit or other form
of local authority, and finally localized debts, which imply those debts that
are incurred by the Central Government for the purpose of local projects or
areas.
Succession works differently in relation to each of these debts. As regards
local debts, it is clear that they pass on to the successor state under
customary International Law. This occurs especially since they constitute all
those arrangements that are entered into by sub-governmental territorial
authorities, which are now transferred to the jurisdiction of the successor
state and a succession does not directly affect them. They continue to
constitute debts borne by the specific territory in question.[716] Similarly,
succession requires that localized debts also pass on to the successor state.
This arises on account of the fact that they are closely attached to the
territory to which the succession relates, and pass to the successor state in
conformity in accordance with the territoriality principle.[717]
Having said this, it seems clear that there are defined rules for the
succession of states and their impact on local and localized debts. However,
this is not the same in the context of national debts. There is a bifurcation in
the degree of complication involved. In the case of an absorption or merger,
the state absorbing the erstwhile territory shall take over the debt of the
erstwhile state.[718] Useful reference in this regard may be had to the
Unification Treaty in the context of the unification of Germany, where
Article 23 spoke of the fact that the total national budget of the German
Democratic Republic was to be assumed by a special Federal fund as
administered by the Federal Minister of Finance.
When it comes to secession or the separation of a territorial portion from
one state, where the predecessor state continues in existence, the
predecessor state retains the public debt.[719] There is no yardstick created
by uniform state practice, for the simple reason that there is no uniform state
practice. However, while on the one hand prudence warrants that new states
wouldnt want to be embroiled in a debt at the very outset itself, and
therefore, the predecessor retains the debt; on the other hand, it seems that
some states may be eager to display their creditworthiness, which in turn
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would encourage them to involve themselves in debt allocation agreements.


[720] In the context of newly independent states, article 38 states that no
debts of the predecessor shall pass on to the newly independent successor,
in the absence of an agreement providing otherwise, in view of the link
between the state debt of the predecessor connected with its activity in the
territory to which the succession relates, and the property, rights and
interests which pass on to the newly independent state.
State practice indicates approaches based on these ground rules. India and
Pakistan, at the point of their partition, agreed such that India would bear the
brunt of all its debts and liabilities as a sole debtor, while Pakistans share
of these debts, in accordance with the proportionality of its share in the
assets of British India, became a debt to India.[721] The 1921 secession of
the Irish Free State from the United Kingdom stipulated that the United
Kingdoms public debt would be apportioned in a fair and equitable
manner, with due regard to all cases of set-offs and counter-claims. As far
as secured debts are concerned, all debts secured by mortgage of assets
located in the territory in question pass along with the proportionate portion
of the debt of the predecessor, to the successor. Nevertheless, where debts
have been charged to local revenue, the presumption favours the opposite.
Article 40 of the Vienna Convention, 1983, states that where a part of a state
separates to form another state, unless otherwise agreed, the state debt of the
predecessor passes to the successor state in an equitable proportion, with
due regard given to the property, rights and interests that pass on to the
successor state in relation to the debt in question.
Where the predecessor ceases to exist, altogether, there needs to be an
apportionment of all the debts of the predecessor, among the successors.
Article 41 of the Vienna Convention of 1983 directs an equitable division,
of course, with due regard to the property, rights and interests which pass to
the successor states in relation to that debt. This provision reflects generally
accepted international practice.[722]
Succession and Membership in International
Organizations
Succession to the membership of international organizations will depend on
whether a new state is formed or whether an old state continues in a
different manner. When a state is carved out of an existent state, there arises
a question as regards to whether it succeeds to the membership in
international organizations of which the former sovereign was a member.
This, however, does not arise at all in the context of cases where territory
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has been ceded to another existing state. As evidenced by past practice,


where the predecessor state disintegrates into new states, the new entities
have to apply to secure membership in international organizations.
Territories that are ceded from one state and join another take on the new
sovereigns status as far as membership in international organizations are
concerned. When a state disintegrates, such that one portion continues as the
successor of the former sovereign, the continuing entity takes on the position
of the former state in respect to membership in international organizations.
In the context of India and Pakistan, in 1947, India was designated as the
continuing sovereign from the erstwhile entity that India was, and therefore
remained a member of the UN. However, Pakistan was a newly formed
state, and in turn, had to apply to become a member of the UN. Another
example is Syria and Egypt, which merged as one in 1958. Upon merger, the
United Arab Republic came to be, and secured membership in the UN. In
1961, this merger broke up, as a consequence of which Syria continued as a
member of the UN, in separate capacity. With the merger of North and South
Yemen, the merged unit took on the membership of the separate predecessor
units, and continued as a member of the UN. In keeping with such state
practice, the UN General Assemblys Sixth Legal Committee laid down a
few principles.[723] The quintessence of these principles include the fact
that as a general rule, it is in conformity with law to presume that a state
which is a member of the UN does not cease to be a member because its
Constitution or its frontier has been subject to changes. It purports that the
extinction of a state as a legal personality must be shown before its rights
and obligations can be considered to have ceased. Further, it stipulates that
when a new state is created, whatever may be the territory and population it
may possess, it cannot claim to be a member of the UN unless it has been
admitted formally in keeping with the demands of the Charter. The
principles also leave room for sui generis cases, by encouraging the
analysis of factual merits on a case by case basis.
Succession and Private Rights
Private rights pose a rather pertinent question to international law in
relation to succession. The prime issue is as to how far the succession of
states will affect private rights. Sovereignty is a rather important factor,
along with the extent of respect accorded to acquired and subsisting rights
are of relevance. The inhabitants of the territory that is taken into the
successor state from the predecessor state take on the nationality of the
successor. Thus, the subject matter of discussion narrows down to a
question as regards what rights an alien has under international law in the
context of state succession. In order to understand state succession and its
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impact on private rights, this segment shall be divided into parts for
coherence.
Nationality: State succession brings in a plethora of questions as regards
the issue of nationality. This is, of course, invariably tied with the question
of human rights. The legal position hinges upon the contents of the municipal
laws of the predecessor and the successor. The law of the predecessor is
useful in determining the degree to which the inmates of a territory to be
yielded to the other state will retain their nationality after the change in
sovereignty. The law of the successor is instrumental in determining the
conditions under which such new nationality is to be granted. While it is
generally accepted that nationality changes with sovereignty, it is essential
for the successor state to declare all the rules relevant to the people born on
the territory, or resident on such territory, or born abroad of parents with the
nationality as accorded under the erstwhile regime. In a manner akin to this,
the ceding predecessor may choose to provide its erstwhile citizens in the
territory so ceded, a choice to retain their original nationality. This paves
the way for the creation of dual nationality. A middle path accounts for the
grant of a choice to the newly induced inmates, to decide which nationality
they wish to keep- either the old, or to discard the old one and take up a new
one.
While actual practice may deviate from the rule book in that factual
circumstances pose different challenges, at all times, it is completely
essential that there should be regard for the rights of the individuals. The
1961 Convention on the Reduction of Statelessness encourages the fact that
no person should be left stateless in the event of a change in sovereignty.
This has also been emphasized upon by the Yugoslavian Arbitration
Commission, where it sought references to both the International Covenants
on Human Rights of 1966.[724] In a bid to pursue the same trend, the
European Convention on Nationality of 1997 was also put in place. All of
these evidenced scattered instances of state practice. The culmination of all
individual instances of state practice resulted in the 1999 ILCs Draft
Articles on Nationality of Natural Persons in Relation to a Succession of
States.[725] Article 1 of these articles emphatically reaffirms the right to
nationality, and goes on to provide that individuals, who have the nationality
of the predecessor as of the date of succession, have the right to take up the
nationality of either state. The intention, here, is clearly to avoid a gap
between the date of succession and the date of any agreement or legislation
that confers nationality.[726] The underlying mandate is that the states have
to take all the requisite measures to see to it that there shall be no case of
statelessness whatsoever. These provisions essentially seek to avert all that
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transpired in regard to the successor states of Yugoslavia and


Czechoslovakia, since the test of nationality of the successor essentially
hinged upon the possession of citizenship of the former constituent republics
instead of upon habitual residence. This led to the deprivation of nationality
of myriads of people.
The second portion of the draft articles explains specific succession
situations, and the implications they have upon nationality. In the event of
transfer of territory from one state to another, Article 20 states that the
successor shall attribute nationality to the persons who have had habitual
residence in the transferred territory, and, that the predecessor shall
withdraw its nationality from such persons, unless otherwise indicated by
exercise of right by these persons. Article 21 goes on to hold that where two
or more states unite to form one successor state, the successor state shall
attribute its nationality to all persons who, on the date of succession held the
nationality of the predecessor. In event of dissolution and separation of parts
of territory from one state, the same rules apply, as explained by Articles 22
and 24 respectively.
Private Rights: Having understood the way nationality is impacted by
succession, it is now necessary to understand the pivotal point, as regards
aliens and their rights under international law in the wake of succession. It
is in this context, that the principle of acquired rights has come into play, in
relation to the rights of foreigners, including a wide variety of legal
interests.[727] The doctrine contends that such rights shall continue after the
succession, and can be enforced by the foreign nationals against the new
sovereign. Jurisprudence has explored the expanse of the doctrine. In the
German Settlers case,[728] Poland had attempted to evict German settles
from its lands. The chief contention was that since many of them had not
taken a transfer of title before the Armistice, they were capable of being
legitimately ejected. The German system encouraged the acquisition of title
by way of leases, or by way of an arrangement whereby they paid prices at
regular intervals, and with the final installment, the land would be theirs
entirely. The Court held that German law would apply until the final
transfer, and all titles so acquired would be governed by the Minorities
Treaty of 1919. The view was modified in the West Rand Gold Mining
Company case,[729] whereby it was stated that upon annexation, the new
sovereign is free to choose which contractual rights and duties of the
erstwhile sovereign it seeks to respect.
The next thing one must note is that the expropriation of property of aliens
may take place, in tandem with the fulfillment of certain conditions. The
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doctrine of acquired rights merely establishes that there is a presumption of


the continuance of the acquired rights. Only those rights that have been
acquired are covered by the doctrine. Therefore, rights that are to come in
the future, do not bind the new sovereign.
Private Property: Private property rights do not bear the brunt of automatic
lapse when there is a transfer of territory from one state to another. The
manner in which they are dealt with hinges largely upon the aspirations of
the successor state. If it so wishes to expropriate any private property in the
territory it has acquired, the nationality of the owner of such property
determines the extent of the successor states power to do so. Therefore, if
the owner of property acquires the nationality of the successors state, then
the successor state gains an untrammeled right to expropriate his property. If
the owner retains the nationality as he had, from the predecessor state, then
the successor state has an obligation to comply with the mandatory yardstick
of minimum national standard of treatment of aliens, which dictates that
expropriation if made, must only be for public purposes along with a
suitable award of compensation.
Succession to Responsibility
When a state under international law, has committed an internationally
wrongful act towards another state, such other state has the right to seek
reparation. However, if, before such state moves towards demanding
reparation, it disintegrates into a couple of successor states, or, if, before
reparation is sought, there happens to be a secession of portions of its
territory while it continues as an independent state, there lies an obstacle in
the path of the injured state in seeking reparation.
Both instances involve state succession. The dissolution of Czechoslovakia
and the Socialist Federal Republic of Yugoslavia are classic examples of
the former, while the best example of the latter is the Soviet Union, which
continued its existence as the Russian Federation, along a number of new
successor states. A lot of importance and attention has been given to the
topic of the effects of state succession on treaties, both by states and by
scholars, but far lesser to the succession of states to the responsibility of the
predecessor. Of course, the traditional customary rule on succession to
treaties has generally been the possession of a clean slate by the successor,
in respect of the treaties of its predecessor.
In 1992, the Socialist Federal Republic of Yugoslavia (SFRY) disintegrated
into five successor states, namely, the Federal Republic of Yugoslavia,
Croatia, Macedonia, Bosnia and Slovenia. Until 2000, the Federal Republic
of Yugoslavia (FRY) claimed that it was not a successor, but a continuation
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of the SFRY. That claim was generally rejected by the international


community, with most states considering the FRY to be just another
successor state of the SFRY. After the collapse of the Milosevic regime, the
FRY renounced its claim to continuity. In 2003, the FRY changed its federal
structure and its name into Serbia and Montenegro. In 2006, Montenegro
became independent with the consent of Serbia and the central authorities.
In 2008, Kosovo attempted to unilaterally secede from Serbia, the legality
of this secession of course still being hotly disputed.
Clearly, thus, there were two cycles of state succession in the former
Yugoslavia. In the interim, Bosnia accused the FRY to have committed
genocide in Bosnia during the 1992-1995 Bosnian conflict, and filed an
application with the ICJ. Croatia followed suit similarly against Serbia in
1999. Most arguments in both of these cases revolved around the question of
state succession to the Genocide Convention itself. Both Bosnia and Croatia
contended that the FRY had become a party to the Convention through
succession. In The Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro),[730] the Court found that its 1996 jurisdiction
judgment was res judicata and that it could not be reopened. In its 2008
jurisdiction judgment in the Croatian Genocide case, in which it could not
rely on a res judicata argument, the Court found that the FRYs claim of
continuation amounted to a notification of succession, and that the FRY was
a party to the Convention on that basis.
Coming to the responsibility aspect, the ICJ found that Serbia was not
responsible for the sole instance of genocide during the Bosnian conflict,
titled the Srebrenica massacre. Since Serbia was the continuation of the
FRY/Serbia and Montenegro, its responsibility, and its obligation to
provide reparation for the genocide would have been undiminished. The
Court went on to hold, that whatever Montenegros responsibility as a
successor state might be for any genocide as a substantive matter,
Montenegro had not given its consent to the pending ICJ litigation.
Therefore, though Montenegro may or may not have succeeded to the FRYSerbia and Montenegros responsibility, it had not succeeded to the
litigation. The Court thus lacked jurisdiction in respect of Montenegro, but
had jurisdiction in relation to Serbia, the FRY-Serbia and Montenegros
continuation.[731]
Albeit less state practice has crystallized on the topic, it would be clear to
any prudent thinker that the customary rule of a clean slate in relation to
state succession to treaties cannot apply by analogy to state succession to
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international responsibility. The doctrine has encouraged voluntary exercise


of choice, as to whether or not to enter into a treaty, and naturally, there
cannot be a grant of choice to the state in relation to its own due
responsibilities, and naturally, therefore, state succession to responsibility
cannot operate under the same paradigm, as a wrongful act has already been
committed. The injured states entitlement to reparation cannot be
eliminated simply because the responsible state has undergone territorial
transformations.

Chapter 8- Territory
The state is, has, and will remain one of the most important and major
subjects of international law. It cannot exist, without the contributing factors
of a territory, a population, a government, and sovereignty. Sovereignty is
essential to the identity of a state, as it implies supremacy in dealing with its
own internal and external affairs, and implies supremacy of the
governmental institutions internally and the supremacy of the state as a legal
person externally.[732] A populace is essential, for without the intervention
of a human hand, the implementation of a law is futile. A government is of
course necessary, given the fact that a people need to be ruled and subjected
to some form of authority. Of course, all of these fall totally without
territory. Without territory, a legal person cannot be a state.[733] As it
stands clearly defined, sovereignty and jurisdiction are all concepts
couched in the principles of territory. As a consequence, thereof, it is vital
to understand the importance of territory in International Law. Classical
International Law hinges upon the axiomatic perception that a state is
deemed to exercise exclusive power over its territory. Since international
law originally grew on the foundations of the state being the sole subject for
a considerable amount of time, it can logically be concluded that territory is
a fundamental concept in international law.
This exalted position accorded to territory and the allied laws is evident
from the large number of legal rules protecting its inviolability. The rule
warranting the respect for territorial integrity takes roots in the norm of nonintervention, as is encapsulated under Articles 2(4) and 2(7) of the UN
Charter. However, this exclusivity has been waning off late, with the
steadfast persistence of human rights law and issues such as selfdetermination, all of which are transnational in nature.[734] International
organizations have also mushroomed over the past century, a trend coupled
with the evolution of the concept of common heritage in relation to the law
of sea and air, have also augmented the reduction of the exalted position
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accorded to the territorial exclusivity of a state.[735] While there have been


instances of dents on the exclusivity, it is still pertinent to note that the
territorial sovereignty accorded to a state remains a fundamental and
important concept in international law.
International law is not like most other legal sub-sects, in that most of its
precepts personify and mirror political conditions and evolves in tandem
with reality. This has led to the emergence of a plethora of rules governing
the transfer and control of territory. Oftentimes, these rules have
successfully borne effects of legitimizing the consequences emanating from
an exercise of power. The anarchical set up that international law revolves
around has augmented the way in which a law must come to terms with the
wielding of power, authority and force.
There is a tangential difference in the way municipal law and international
law deals with territory. Municipal law is rather crafted, intricate and neatly
detailed. This obviously stems from the fact that for a state, land is an
important resource and a contributing factor to the process of wealthcreation and addition to the economy. Land law within the municipal realm
functions to establish an acceptable balance of power within a society.
Plenty of legal rights and obligations exist over land, and this stems from the
division of land into different segments.[736] However, international law
does not treat territory in a manner of such sophistry and quality, primarily
because it is exclusively a state resource, and there is only so much that
international law can intervene. Secondly, the lateral system of territorial
sovereignty in international law that places states on an equal footing is
different of the vertically aligned order of land law under municipal law.
This leads to another dimension. The understanding of territory in
international law and domestic law is the difference in the ramifications
each brings in its stride as a result of a change in ownership under each
realm.
When there is a change in ownership, or in clearer terms, in the sovereignty
handling the state, there are consequences of a larger scale involved. The
nationality of the inhabitants changes, the laws applicable change, and the
obligations owed under the law would take a different route. Under
municipal law, however, this is not the case. The ramifications are far less
far-reaching as opposed to those under international law. International law
is obligated to deal with the effects of a change in sovereignty, and not just
the mere process of transfer, acquisition or loss of territory.[737]
One factor that has been instrumental in marking the difference between the
treatment of territory under both legal regimes, is the fact that in
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international law, territory is most often relative, as opposed to municipal


law where it is absolute.[738]
Understanding Territorial Sovereignty
Territorial sovereignty is an integral part of Statehood. Devoid of
sovereignty, a state cannot be called as sovereign. Under this domain, a
State is free to exercise exclusive jurisdiction over persons and objects.
Other States have no right to interfere in the internal or external affairs of
another state on any account. In the words of Judge Huber in the Island of
Palmas Arbitration case,[739]
Sovereignty in relation to a portion of the surface of the globe is the legal
condition necessary for the inclusion of such portion in the territory of
any particular state.
Territorial sovereignty, thus, has come to mean the existence of a series of
rights exercised over territory, more than just independence of the state
itself. It holds in its cache, a plethora of the fullest rights over the territory
known to the law, and a couple of minor territorial rights such as leases
and servitudes.[740] Territorial sovereignty bears both, positive and
negative connotations, the former being the exclusivity of the states
competence in dealing with its own territory,[741] and the latter being the
obligations to protect the rights of other states.[742]
In tracing the historical roots of the legal provisions on territorial
sovereignty, one finds that it all dates back to the Roman Legal system. The
rules pertaining to ownership and possession, and the rules governing the
classification of different methods of acquiring territory comes directly from
the Roman Laws of property.[743] However, this is not without any
modifications of sorts. Territorial sovereignty encapsulates all the factual
and legal conditions that lead to the territory being deemed as belonging to a
specific authority. The term title implies both, any evidence which may
establish the existence of a right and the actual source of that right, as was
held in the Burkina Faso/Mali case.[744]
At this juncture, it is prudent to understand the differences between the
treatment of territory in municipal law and in international law. International
law looks to treat the ownership and title to territory in relative terms, as
opposed to municipal law which accords a more absolute treatment.[745]
As a corollary, therefore, it is necessary to note that a court, or a tribunal in
dealing with a claim between two states in respect of a portion of territory,
will have to consider all the relevant arguments, and will award the land to
the state that relatively makes out the best case.[746] What makes the title
absolute in municipal law, is that the questions that are dealt with in the
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context of territorial sovereignty essentially deal with ownership and


possession. There needs to be an examination of facts, evidence and the
relevant submissions to see whose claim is better of the two claimants. Not
many of these claims have much to do with territorial sovereignty. Personal
ties of allegiance may exist, but these may not necessarily lead to finding of
sovereignty.[747] The specific attributes of the territory need to be studied,
as along with the specific structure of the sovereignty involved.[748]
Territorial disputes take on a different colour in the context of international
law. They can be segregated into different categories for understanding and
clarity. Primarily, there are disputes that arise over the status of the
concerned state itself, as to the status of all the territory in question
comprised in a specific state. This was seen in the context of the ArabIsrael exchange at one point, and between Morocco and Mauritania. Another
kind of territory related disputes may relate to a specific area on the borders
of two or more states. This occurred in relation to the Somali claims against
Kenya and Ethiopia. The basis of these claims may vary. Claims may be
based on grounds such as the traditional modes of occupation or
prescription, or issues of self-determination and the related ramifications,
along with a few political issues such as geographical contiguity,
historically connected demands, and other economic elements that may bear
relevance to the outcome.
Territory, under International law is not confined to that which belongs to
the sovereign realm of a states control. It includes two other kinds of
territory, namely, terra nullius and res communis. The former refers to all
such territories that belong to no sovereign, and therefore, are not subject to
sovereignty. Res communis can be said to be of the same genre, in that there
is no possibility of reducing such land into the confines of sovereign
control, implying therefore, a case of non-mans land, but every mans land.
The classic examples of these are the high seas and outer space. Neither are
capable of being watered down into compartments bearing sovereign
control, but are open for usage by all and sundry.
Some Basic Concepts
In relation to territory and territorial acquisition, there are a few basic
concepts one must understand before looking at the dynamics of the rules
relating to acquisition. Some of these rules are:
The Doctrine of Inter-temporal Law
Many a time, disputes relate to territorial title that derive from acts bearing
legal significance, such as, perhaps, a treaty concluded sometime back. The
rule applicable in such cases generally is that the situation must be
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appraised, and the treaty involved must be interpreted in the light of the
rules of international law as they existed at that time, and not in the light of
the rules of international law as they exist in the present day, or, at the time
of the dispute if it differs from the date of such act bearing legal
significance. In the Island of Palmas case,[749]
Acquiring Territory: The Position of Newly
independent states
Acquisition of territory under international law involves answers that
invoke a politico-legal study. There are a plethora of other concerns, such
as ones pertaining to recognition. However, the emergence of new states has
always been instrumental in the creation of quite a few issues, since, under
international law, when a new state is created, it does not really have much
competence in its stride to actually hold title to territory. Practice since the
end of the Second World War, and the emergence of decolonization is
indicative of the fact that traditional rules of territorial acquisition do not
really settle the difficulties that arise. Subsequent practice in the course of
development since the emergence of such issues indicates the fact that they
have been dealt with by way of the theories of recognition, rather than in
terms of discussing the ramifications in the light of the modes of territorial
acquisition. This has left frugal room for the sake of discussions of the
modes of territorial acquisition. Instead, emphasis has been laid on the
compliance with factual requirements in pertinence to statehood coupled
with the acceptance by other states.[750] Therefore, when a state is
accorded recognition, it automatically implies a case of acceptance of the
territory as being part of such state, irrespective of the mode of acquisition
that has been pursued.[751]
One of the most significant issues to be taken into account is the fact that the
doctrine of domestic jurisdiction plays an important role. The doctrine
signifies that there is a prohibition on the intervention off one state into the
internal workings of another state, since each state is supreme within the
domestic parameters of its territorial expanse. This rule stems from the
importance that is attached to the stellar values of sovereignty and the
equality of states in the international realm. As a consequence, thus, the
factual matrix comprising each individual case plays a significant role in
leading up to the emergence of a state. With more emphasis on facts and less
upon the legal scrutiny, there has been some sort of stultification in the
search for precise methods by which new entities obtain title to territories.
[752] However, the rule has seen some modification in the prevalent
practical realm. International organizations and exchange between states
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have indicated active involvement in the conditions in non-independent


countries, and the general trend depicts acceptance of the fact that territorial
sovereignty does not stretch to include mandated and trust territories within
its conceptual ambit.[753] As a result of this, there has been a
reconsideration of the rules pertaining to territorial acquisition. Though the
trend is indeed changing, it would be useful to note that municipal law has a
hand in the process of gaining independence.
A state may gain independence either by way of constitutional mechanisms,
where an agreement with the erstwhile controlling authority is sufficient to
create devolution of power, or, in the alternative, by non-constitutional
means where there may be an element of force involved, directed against the
will of the former sovereign. The former allows the grant of independence
by way of either an agreement, or, by way of a domestic legislation
exclusive to the internal realm of the state. This mechanism witnessed
practical manifestation in the case of Burmas quest for independence,
where it entered into an agreement and a treaty with the United Kingdom.
Such cases evince the devolution of sovereignty from one power to the
other, leading to the natural passage of title alongside, since all the
procedures followed fulfill the requirements of the law. However, when a
state gains independence of its own accord, against the wishes of its
previous sovereign, then the question as to how territory is treated arises.
Such independence is usually pursued by way of secession or revolution.
Sometimes, self-determination also goes into creating a new state. Usually
in circumstances like this, other states in the international realm accord
recognition to the newly independent entity, culminating in the ultimate
recognition by the predecessor sovereign itself, that such entity is a state. As
a consequence thereof, there may be an agreement between both states.[754]
When a state comes into existence, having attained sovereignty, there is in
place, a new set of facts. All the criteria required may be fulfilled; the state
may have its own share of commitments to the international community by
way of succession, but inevitably, it is up for recognition by other states in
the international community. States in the international realm have to make a
choice in relation to whether or not they shall recognize such new state. The
essentials required to be fulfilled by states in international law, is as
enunciated earlier, the requirement of territory, sovereignty, population and
a government. When an entity emerges on the international scenario in need
of recognition, one cannot bring in issues of title to territory, since there
cannot be a claim to such title until such time that a legal person exists to
seek such title. Therefore, it is necessary to establish that identity of a legal
person before venturing into the question of territorial acquisition. There
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have been contentious ideas sallied back and forth in this regard. The most
famous of these is the acceptance of the factual parameters that make the
state, and therefore, accepting reality without prying far too deep. This
would result in the acceptance of the entitys identity as a state, and
therefore it shall be deemed that the possession of such territory shall be
accepted as indicating ownership over the territory since independence of
such state.[755] This rule proves adequate in the inter-state realm in
relation to the territory within the possessive ambit of the state. However,
one cannot ignore the fact that this rule may throw up too many questions as
regards territory outside the possession of the state. This approach has also
been questioned on account of falling short of explaining the actual meaning
of territorial sovereignty as far as international law is concerned. Another
suggested line of thinking is the constitutive theory of recognition, which
purports that once an entity is recognized by the international community
such recognition makes it a state, thereby indirectly, conclusively
determining and declaring that it has legal title to the territory involved.
[756] This theory finds lesser acceptance, considering that the constitutive
theory itself has not been accepted by most states in the international arena.
In the wake of there being so many controversies surrounding each theory
that could possibly govern the issue, it would be prudent to look for a
solution involving a deviance from the generally accepted scheme of things.
Instead of placing a restrictive predisposition to demand that only a legal
person can hold titular rights in respect of territory, it would be wise to
afford an opportunity to states-in-the-making, at the stage when they bear the
status of entities devoid of statehood, to hold territory even while it is in the
interim period before it is recognized as being a state. Doing this would
ease out a lot of other complications that may arise from the debatable realm
of recognition. The rule that an entity in stages before its recognition as a
state has a separate status different from the erstwhile administering power
which exists until its people have exercised their right of self-determination,
has been emphasized under the 1970 Friendly Relations Declaration.[757]
In any case, all of these provisions remain tentative at best, considering the
dynamism exhibited by international relations.
Acquiring Territory: Means and
Methods
Coming to the modes of acquisition of territory, one finds there are
mechanisms aplenty available. The traditional perception is indicative of
several distinct modes in which one may acquire sovereignty over a
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territory. The classification of these modes comes from Roman Law and its
cache of rules in relation to the acquisition of property. This has come to be
on account of the similarity between the exercise of ownership and
sovereignty, a practice that manifested itself in the form of according
ownership to the monarch, in the early eras, of the lands in the kingdom.
However, this point of view cannot be accepted in totality. The
juxtaposition of municipal law and the modality of dealing with territory,
with that of international law essentially permits the presupposition that
transfers of territory occur between already existent states, as it does
between already existent individuals within the municipal domain.
However, state practice in the international realm shows that there are
fewer cases of territory transfer between already existent states, considering
the fact that all states are well-settled in their sovereign status. There has
been, instead, transfer of territory by way of new states emerging upon
gaining independence,[758] since such states actually do attain statehood
only upon the fulfillment of all criteria of statehood, of which the most
relevant to the discussion at hand, is that of territory.
The generally accepted modes of territorial acquisition include the
occupation of terra nullius, prescription, cession, accretion and subjugation
or conquest. In addition, there are mechanisms aplenty. Each of these
methods can be original, or derivative in nature, depending upon how they
chanced upon such territory, and the position of such territory at the time of
such acquisition. An original acquisition occurs in all cases where there
was no transfer from a previous sovereign, while derivate acquisition refers
to the opposite.
Accretion, Erosion and Avulsion of Territory
Accretion, erosion and avulsion are mechanisms that describe processes
which result in the increase of territory by way of new formations on
account of some natural occurrences. Deposits on a sea-coast, the creation
of land out of volcanic activity, or the alteration of a landmass as a
consequence of a shift in tectonic plates could cause an extension of
sovereignty. In such cases, there arent really any reasons to ask for a formal
act evidencing appropriation of territory, since such territory comes up as
part of the original territorial expanse as a matter of natural intervention.
Accretion refers to the gradual and imperceptible addition of substance to
existing landmass. It remains a valid mode of territorial acquisition only in
so far as the process gives rise to an extension to all those areas already
subject to effective occupation, which as a rule, flows from contiguity and
certainty.[759]Accretion has not been accorded a specific status, as a
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doctrine of appurtenance, or as one involving effective occupation, but the


trend is such that one may rebut the presumption of territorial sovereignty
over land added by accretion, in the event of sufficient evidence to prove
renunciation. Accretion is generally assumed to be a separate mode of
territorial acquisition in its own right. However, there must be a certain
measure of caution in understanding the concept and applying it as such. In a
case between the United States and Mexico, pertaining to the southern
boundary of New Mexico, the solution of disputes between the United States
and Mexico were dependant on principles of acquiescence and the
interpretation of agreements dealing with the consequence of natural
changes.[760] Accretion poses no legal dispute when there is an emergence
of a territorial portion within the extant territory of a state. This occurred in
the context of Japan, when an island emerged in the Pacific ocean, with an
under-sea volcanos eruption in 1986. The UK government went on to assert
that since the island had emerged within the territorial sea of the Japanese
island called Iwo Jima, it was deemed Japanese.[761]
Avulsion refers to the event where a river tears away from its original
course, and creates a new one altogether. In the event of an absence of an
agreement between the states, sudden, unforeseen alterations in the river
courses on account of avulsion will not modify the already established
frontier line.[762] Avulsion may be a gradual occurrence, or may even be a
sudden, violent shift. Where the former occurs, there may be a choice in the
concerned states hands, to determine a new boundary. In the event that it is
the latter, the boundary remains where it was originally fixed.[763] Though
accretion isnt particularly relevant in international law, it has been rather
important in practice between certain states in the United States.[764]
Boundary and territory-related Treaties and
Awards
Boundary treaties, or treaties dealing with boundaries and frontiers,
essentially enumerate the details of acquisition and loss of territory, or even
clarify any uncertain boundaries between states. Such treaties actually
account for the root of title in their own right. Such treaties essentially
establish an erga omnes regime of sorts, in that they establish a territorial
regime that is valid against the world at large.[765] The regime so created
by the treaty will be binding upon third states, and will continue with
permanence even in the event of the treaty coming to a standstill.[766] This
stems from the fact that there is a necessity to maintain stability and
constancy where international borders are concerned. An agreement may
establish or confirm a particular boundary line by referring to an earlier
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treaty or an earlier document- which may even be a map, and this agreement
vests the boundary with undoubted validity.[767]
As a consequence of boundaries being brought into existence by way of
treaties, many a time, there happens to be a situation wherein the disputes in
relation to the boundaries themselves may be subject to the vagaries of
treaty interpretation. The rules governing the interpretation of treaties are
couched in Articles 31 and 32 of the Vienna Convention on the Law of
Treaties, 1969, and in good faith, in accordance with the ordinary meaning
that is to be given to its terms in their context, and in the light of their object
and purpose.[768] The idea is to understand the common aims, or the
common wills for the parties involved, which in turn would include the
understanding of the subsequent conduct of the parties involved.[769]
However, this issue is not without complications. Most boundary issues
deal with treaties that came into force much before the Vienna Convention
on the Law of Treaties, 1969, as a consequence of which the question of
which law is applicable arises. Jurisprudence points in the direction of
applying customary law, which is personified in the Convention, and
therefore, it is immaterial when the boundary treaty came into force.[770]
The advancements in science and technology have posed another problem in
the path of treaty interpretation when it comes to boundaries. In the
Botswana/Namibia case,[771] the Court dealt with the issue of identifying
the main channel of River Chobe, in relation to an 1890 treaty. It held that
the state of scientific development could certainly be used in an attempt to
understand what the treaty itself stands for. In the Eritrea/Ethiopia case,
[772] the Boundary Commission referred to the rule of contemporaneity,
which implied that when a treaty is interpreted, useful regard must be had to
all the circumstances that prevailed at the time of the conclusion of the
treaty. In relation to understanding this, one has to understand the events
transpiring in the course of practice subsequent to the treaty, and to the
objects of the treaties.[773] However, all the rules of interpretation hold no
value where the treaty is in itself very clear in establishing the boundaries,
or the territorial limits.
Boundary awards hold as much value in constituting a states title to a
portion of territory.[774] When a decision is passed as to the territorial
allocation, or to the boundary determination between two states, such a
decision in principle will bind the parties to the dispute. In addition,
however, it will also bind other states when there is no sustained protest
from them in relation to the determination of territorial expanse.[775] Even
if such determinations of boundary demarcation and territorial allocation is
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not the consequence of an international courts decision, or an arbitral


forums award, such a determination may still be binding in character, if it
can be proved that the parties have consented to the initial decision.[776]
Cession of Territory
Cession refers to the peaceful mode of transfer of territory from one
sovereign to another. The underlying idea is that sovereignty should pass
from one to another, and, this mode of transfer of territory is most common
in the context of cases where peace treaties are entered into at the end of a
war. In a case,[777] cession was defined to mean the renunciation made by
one state in favour of another of the rights and title which the former may
have to the territory in question. A common example of cession is seen to be
cases of decolonization, or the transfer of sovereignty as a consequence of
an agreement between a sovereign authority administering power to
representatives of an indigenous population.
Cession is commonly effected by way of a treaty, which expresses the
agreement to transfer. It is essentially a bilateral mode of territorial
acquisition, considering that there needs to be the co-operation of two states
in order to effectuate the transfer. All other modes of territorial acquisition
are decidedly unilateral, considering that the acts of one state are sufficient
to constitute a title. In cession, the title conferred is purely derivative, since
the validity of the title is highly dependant upon the validity of the title of the
predecessor. Therefore, it is clear that cession is just a case of replacement
of sovereignty over a specified territory, which in turn, accounts for the
applicability of the rule of nemo dat quad non habet imperium, a rule that
implies that no one can give what he does not have. Thus, in the course of
transfer, the acquiring sovereign cannot enjoy any more than the rights that
were enjoyed by the previous sovereign. This is a rather important rule. If
the territory was subject to the use by a third state, the new state into whose
control sovereignty passes, is bound to respect it. As stated by Justice
Huber in the Island of Palmas case,[778] Spain could not give to the
United States, more rights than those that it had for itself. Of course, this is
not the case in other modes of territorial transfer, for the title in these other
cases is original, since they have nothing to do with what the former title
itself was like.
Cession is essentially built on the foundation of the intention of the parties
concerned to transfer sovereignty from one to another.[779] Devoid of any
signs of intention to transfer sovereignty, cession cannot operate. It is not,
however, a matter of certainty as to whether there needs to be an actual
delivery of property in order for there to be a case of valid cession.
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Another case bearing relevance to Cession is the Island of Palmas case,


[780] where Spain had ceded the Philippine islands to the United States by
the Treaty of Paris, 1989. The treaty had actually gone on to establish that
the island of Palmas formed a part of the territorial expanse of the
Philippines. However, when the United States sought to take possession of
the island, it was found to be under Dutch control. Subsequently, arbitration
was embarked upon by the states involved, namely, the United States and
Netherlands. The United States claimed that the island belonged to Spain
before 1898, and the treaty it had entered into, also specified that such
territory was part of Philippines, and that it had acquired the territory by
way of cession. Judge Huber, the arbitrator, held that even if Spain did have
sovereignty over the island in question, it was clear that the Netherlands had
administered it since as early as the eighteenth century, which, in effect, had
supplanted the sovereignty of Spain over the island. Spain had left the island
in 1898, which left the United States without any room to acquire title over
the island from Spain.
Having perused the aforementioned instances, it is clear that there are
essentially two elements that go into making a normal cession. There needs
to be a treaty indicating an intention to hand over the territory. Secondly,
there needs to be an actual handing over of the territory, which implies that
there needs to be a handing over of control of the territory from one
sovereign to another sovereign. There have been many occasions
welcoming debate on whether these elements are really necessary, or
whether they can be dispensed with. The issue was under the scanner in the
Indian case of Union of India v. Maumull Jain,[781] An action was
brought in a court of law, by the respondents, with a view to seek relief
against the imposition of a couple of duties upon the consumption of petrol,
levied by the Municipal Assembly of Chandernagore, which was previously
a French territory and was ceded to India by way of the Indo-French Treaty
of February 2, 1951. Section 7 of the treaty warranted that all rights,
liabilities and obligations of the Government of the French Republic or the
Municipal Assembly or the Administrative Council in relation to
Chandernagore became the rights, liabilities and obligations of the
Government of India. The issue subject to judicial dispute was as to
whether the Union of India could carry on the litigation in its own name in
pursuance of the cessionary treaty, in relation to which Percepteur and the
Municipal Reserveur of Chandernagore were party; and, subsequently,
whether it could pursue appeals against the respondents. The respondents
contended that India could do so if its cession had legal validity, which they
believed, it did not. The court held that the Union of India did have the right
177

to seek appeal in its own name. The court looked into the constitutional
provisions governing the dispute, and went on to hold that even if it were
assumed that the treaty was not legally valid without a parliamentary
legislation, the transfer of territory to India remains accomplished since it
was accepted by both parties to the bilateral treaty. Therefore, whether or
not the treaty was legal or otherwise, the territory still remained with India.
The term legal validity in this context presumably implies the validity of
the treaty in the light of constitutional law. However, this contention is
irrelevant to the effect of the cession itself, because there has indeed been
an actual tradition of the territory. Therefore, the decision can be understood
to imply support in favour of an argument that where there has been
occupation as contemplated by the extent and ambit of the treaty, the
occupation is strengthened enough to subsist on its own, even if the treaty
itself finds itself non-existent. However, such an argument would not quite
subsist, given the fact that it is only a treaty that allows the grant of a legal
meaning to the very occupation by the cessionary state, and is indeed a
necessity in an effective cession.
This line of thinking was concluded in the Iloilo case.[782] By way of the
Treaty of Paris of 1898, Spain had ceded the Philippines to the United
States. With the exchange of ratifications, Spain was evacuate the islands. In
the course of events that transpired, Spanish troops were compelled by
local insurgents to withdraw from the town of Iloilo, and this was even
before the ratifications were exchanged. After the American forces had
made their entry, the insurgents had burned the town and in the course of
this, some property belonging to a few British subjects was lost. The
question was as to whether the United States was responsible, since the
British alleged culpable negligence on the United States part, since they had
delayed occupying the town. The claim was met with rejection, since in
cases of cession, sovereignty de jure and the related obligations did not
commence before the treaty of cession was ratified.
A clear pattern emanating from the aforementioned decision is highly
indicative of the fact that there is no particular tradition to be taken into
consideration, and either way, the cessionary State is entitled to occupy the
territory at any point of time after the treaty comes into force.[783] Thus,
once the treaty itself has come into existence, the cessionary state has the
right to cede the territory to a third power even without taking possession of
it himself.[784] Of course, while understanding this side of theory, one must
not ignore the decision in Reparation Commission v. German
Government,[785] where it was concluded that there may well be a valid
178

cession of territory, even after the territory may be occupied by a new State
and its existence and occupation maybe accordingly recognized. The
contextual decision also included a holding that the fact that the States of
Czechoslovakia and the Serb-Croat-Slovene Kingdom existed in fact, and,
that they were recognized by the Principal Allied and Associate powers on
the date of signing of the Treaty of Versailles, St. Germaine and Trianon did
not preclude the event of there being a cession of the territories involved in
the treaties. Even though the cessionary state was already in possession that
went unopposed, with the consent of the population, did not prevent the
emanation of this result.
Cession of territory need not be made in return for some consideration all
the time. Quid pro quo, thus, is not an important prerequisite. In the earlier
days, there were instances aplenty where force was used, or threatened to
be used, in order for the cession itself to take place in favour of the
victorious state. However, one has to keep the UN Charter in mind in the
present day, thereby leading to the understanding that there shall not be any
use of force to procure territory.
Cession is a common occurrence in any agreement that comes into place at
the end of a war, or as hostilities draw to a close. However, it is not
altogether uncommon in other circumstances. The United States of America
purchased Alaska in 1867 from Russia. Denmark sold certain territorial
regions in the West Indies in 1916 to the United States. These were pure
exchanges of territory. Cession is not altogether uncommon in the context of
situations evincing gifts of territory from one state to another.
In practice, however, with the exception of a couple of territorial alterations
ensuing at the end of a war, with a peace treaty being signed, such as, for
instance, Frances cession of Louisiana to the US in 1803 in exchange for 60
million francs, and Britains cession of Heligoland to Germany in exchange
for Zanzibar in 1890, Cession seems to have been relegated to being a thing
of the past.
Conquest, Use of Force and Territory
The title to a territory in the hands of a state derives validity from a plethora
of legal consideration. This is, of course, inclusive of ethical and moral
considerations as well, since law pivots upon the ground rule that no illegal
act can give birth to a right in law. This is a rather stellar rule in municipal
law, but International law often faces circumstances where it is required to
deviate from its generic and acceptable reactions, to the ramifications of
successful flouting of rules, in order to make room for the demands of
reality. This has, with due reference and parochialization to context paved
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the way for the acceptance of the results emanating from the exercise of
illegal aggression in many instances.
Conquest refers to the act of defeating an opponent and occupying all or part
of its territory. It does not, however, by itself constitute any basis of title to
land.[786] Victorious entities enjoy the right of belligerent occupation,
along with a few rights in pertinence to the territory concerned. However,
the territory remains the legal possession of the ousted sovereign.[787]
Sovereignty does not pass with conquest, but legal issues aplenty come into
place when the territory was under a question as to its legal status well
before the conquest.[788] Conquests result from the use of force, both legal
and illegal. Force per se has been outlawed by the UN Charter under Article
2(4), and was also done by the Kellogg-Briand Pact of 1928. However,
force may be used only in the rare event of self-defense, which is in
response to a prior use of force by another state.[789] Nevertheless, it is
important to understand that it is not that because there has been a successful
use of violence, that territory is acquired. What happened under the
classical rules of conquest, was an acquisition of territory occurred with
every formal annexation following an act of conquest. This came to be on
account of a legal fiction, in an attempt to shield the conquest, and to
legitimize the acquisition of territory.[790] Practice never did clarify,
however, when this formal annexation ought to have been made- whether
during the war, or after the war is an issue that still needs clarification. It
seems logical that one has to decipher the juridical status of the territory in
dispute only at the end of the war, since the control by the state purporting
such annexation must be effective without as much as a possibility that the
former sovereign might regain the land. In the Nuremberg Trials,[791] the
rule that annexations occurring before the end of a war bore no
effectiveness, and were invalid in the eyes of international law was
emphasized. The tribunal also mentioned that the intention to annex is an
equally important ingredient. The conquest of Germany by the Allies in
1945 did not amount to a case of implied annexation by way of the
legislative control that was actually exercised, because the Allies had
categorically emphasized otherwise in their joint declaration.[792]
With the advent of the rule in writing, that a use of force is illegal, there is a
general notion that the acquisition of territory by force is illegal. In addition
to Article 2(4) of the UN Charter, the UN Security Council in Resolution
242, mentioned that the acquisition of territory by war was inadmissible.
Further, the Friendly Relations declaration has thrown light on the issue by
stating that the territory of a state shall not be the object of acquisition by
another state ensuing from the threat or use of force. It goes on to state that
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no territorial acquisition resulting from the threat or use of force shall be


recognized as legal. The Iraqi annexation of Kuwait was unanimously
denounced in the Security Council Resolution 662 of 1990. In the light of
such jurisprudence, it would be wise to conclude that the acquisition of
territory at the end of a war, or an armed conflict would require more action
to fortify the claim- both, of an international and domestic nature- such as
perhaps, a treaty of cession, or the accordance of international recognition.
[793]

Discovery and Occupation of Terra


Nullius
Discovery is the act of finding an unknown territory, namely, territory that
has till such date of discovery, not been known of, and not been subject to
the sovereignty of any other state under International Law. European nations
were one of the earliest to adopt the principle that the discovery of any
territory, not under the control of another sovereign, not subject to effective
occupation by another state, gave title to the government by whose subjects,
or by whose authority, it was made against all European governments. This
title was to be consummated by way of effective and actual possession.
Discovery of new, unoccupied territory as a means to acquire territory is
related to the modern concept of Prior Occupation, whereby territory that is
terra nullius, or land that is in no ones ownership, is occupied and claimed
by a state as belonging to it. The conceptual framework of prior occupation
and terra nullius have recently been highlighted in two prominent cases,
that of the controversy concerning aboriginal land in Australia,[794] and
that of the dispute over the Senkaku (Diaoyutai) islets north of Taiwan.[795]
In the former case, the government had declared aboriginal lands to be terra
nullius to legalize the seizure of those lands by white settlers. Recently,
indigenous peoples have challenged this position in the courts. As for the
latter, with respect to the Senkaku islets, Japan's primary legal argument is
that they were terra nullius when Japan first claimed and possessed them.
As a result of this, Japan asserted that they had sovereignty based on the
principle of prior occupation of the territory unoccupied till then. In
response, the argument of Taiwan and the People's Republic of China was
that the islets were not terra nullius at any point but belonged to China at
the time of Japan's possession so the principle of occupation is not
applicable.
The principle of discovery is applied quite often in state practice, but is not
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quite satisfactory from a legal standpoint, in that there may be a likelihood


of symbolic annexation being confused with the exercise of effectivits.
[796] Discovery will evidently be accompanied by symbolic acts involving
the planting of a flag and similar perfunctory acts. But such contributions
tend to blur the distinction. In the fifteenth and sixteenth centuries, it was
believed that mere discovery with nothing more, was sufficient to confer a
complete title.[797] However, research conducted in recent times is
depictive of a room for doubt that it gave much more than just an inchoate
title, since there needs to be an effective act of appropriation of the territory
concerned.[798] In the Island of Palmas Arbitration,[799] it was argued
by the United States that since it was a successor of Spain, it derived title
from the Spanish discovery of the territory. Justice Huber reserved his
opinion on this point, but went on to state that even if discovery without
anything more did give title at that point of time, the continued existence of
the right must be determined in accordance with the law prevailing at the
specified time, which is in effect, the critical date. He noted that an inchoate
title of discovery needs to be completed within a reasonable span of time by
the effective occupation of the region that is claimed to be discovered.
Support for this view is found in the British and the Norwegian state
practice.[800] American practice indicates that a mere discovery gives no
title, whether inchoate or otherwise. Discovery is not a stand-alone branch
of law, since it makes sense only in the event that it shares contextual place
with the rules of effective occupation, and thus, it seems like modern law
could comfortably ignore this mode altogether.[801] The concept of an
inchoate title is rather misleading. A title can either exist, or not exist. If
anything, it may be a weak title, if it rests upon the foundation of evidence
that is weak.
Related with the concept of discovery, is the principle of symbolic
annexation. Symbolic annexation refers to the declaration, or any other act
of sovereignty or may also be an act of private individuals which may be
ratified subsequently by states with a view to providing unequivocal
evidence of the acquisition of sovereignty over a portion of territory. Where
the territory concerned is uninhabited, inhospitable and remote, oftentimes,
very little is need in the form of state activity, and therefore, the first
decisive act of sovereignty is enough to evince a valid title.[802] However,
this is not to forget the fact that in principle, a state must simply exhibit the
effectivits required to lay claim of sovereignty over the territory.
Nevertheless, jurisprudence reveals that symbolic annexation does not quite
give sovereignty except in rare circumstances, or under special conditions.
[803] The Clipperton Islands case[804] is of particular relevance. A
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lieutenant in the French navy, with due authorization, proclaimed French


sovereignty over the Clipperton island, while cruising close to the island in
1858. Such event was notified to the Hawaii Government by the French
consulate. After inactivity in the intervening period, in 1897, a French
vessel chanced upon three Americans collecting guano on the island, for an
American Company. At that juncture, the United States had clearly indicated
that it had no intention of claiming sovereignty. In the same year, a Mexican
gunboat docked on the island, bringing within its fold, the makings of a
diplomatic controversy. Mexico asserted discovery by Spain as being its
supportive contention. However, the arbitrator in the dispute went on to
assert that even if a historic right existed, it was not augmented in any way
by Mexicos conduct and manifestation of sovereignty. In the light of the
assumption that the territory was actually terra nullius, the question boiled
down to whether, France had proceeded towards securing an effective
occupation, and whether, in the negative, Mexico had a right to deem the
island as open to occupation in 1897. The arbitrator went on to state that a
condition of occupation involved an actual taking of possession which
consisted in an act or a series of acts by way of which the territory is
reduced to possession by such state which does the above. As a
consequence thereof, France acquired the island when sovereignty had been
proclaimed in 1858. This was a case where symbolic annexation actually
did have effect.
But, where the situation involves res nullius or the incident of two states
competing for territorial sovereignty, such symbolic annexation is accorded
the status as valuable evidence. Where there has been a prior, formal
annexation of a territory by another state, such annexation cannot prevail
against an actual and continuous display of sovereignty by another state.
[805] Since formal annexation creates a little more than an inchoate title, the
competing state can succeed in its claim only in the event that it indicates the
existence of prescriptive right, or, by way of proving acquiescence on part
of the other state in its claim. If too much is asked for in terms of the
maintenance of rights, there may be a revival of the erstwhile concepts of
effectiveness and may, in turn, encourage a threat to peace. It would be far
to unhelpful if there were a need for a determinate quanta of effectivits in
the context of remote islands.
Geographical Contiguity
Geographical contiguity, strictly speaking, is not quite a mode of territorial
acquisition under international law. Nevertheless, on account of the fact that
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it has been raised as one of the major contentions by state parties to disputes
relating to territory, it is of relevance in a study of the various modes of
territorial acquisition. The principle has importance in the Law of Sea,
where it has played a role in determining disputes in relation to territorial
sea, or continental shelves. In the Eritrea/Yemen case,[806] it was laid
down that there was a strong presumption that islands within the twelvemile coastal belt would belong to the coastal state, a presumption that
would be rebutted only by way of evidence of a superior title.
Although contiguity is not quite a method of titular acquisition, it is a rather
helpful factor in determining the manner in which a case puts its contentions
forth, in support for its claim. There may be plenty of issues raised in a
dispute about territory, and it is not altogether impossible for a state to argue
a case on law, facts and political ideology. Naturally, a state would be
driven to convince the court or tribunal that it has a stronger case, since it is
fortified with more than just the legal merits.[807]
Historical and Original Title
Sometimes, a state may lay claim to a territory by asserting the submitting
that there is a historical, original or an ancient title to the land in question.
The concept is couched in the well-known principle of immemorial
possession, or, possession since time immemorial. It involves the vesting of
reliance upon evidence bearing general repute, or, bearing adequate opinion
in favour of matters bearing historical worth. This has come to play a rather
significant role in Asia, where traditional boundaries have been accorded
importance. The concept has been given ample importance by international
tribunals in their decisions.[808] However in actual practice and usage, it is
extremely vital that any contention in augmentation of a claim to a historical
title must be proved satisfactorily. However, Judge Huber did not quite
accept contiguity as a ground for acquiring title. He was known to have
said, that it is impossible to show the existence of a rule of international
law, to the effect that the island situated outside the territorial waters should
belong to a state from the mere fact that its territory forms the terra firma,
i.e., the nearest continent or island of a considerable size.[809] He also
went on to mention that the principle of contiguity would be inadmissible as
a legal mode of determining questions of territorial sovereignty, since it was
wholly lacking in precision, and could, in the course of its application,
result in arbitrary results.
Nevertheless, one cannot rule out the fact that the principle may be
construed as important enough to raise a presumption of effective
occupation. In the Eastern Greenland Case,[810] the Permanent Court of
184

International Justice accepted that it was willing to take into account


contiguity in fortifying its conclusion that Denmark did indeed enjoy
sovereignty over Greenland when the actual settlement scope was limited.
Historical Consolidation of Title
Historical consolidation of title is one of the principles that may be relied
upon, when the territorial expanse in question is not based on an
unequivocal treaty of cession bearing a reference to such territory. When it
comes to title to territory, one must note that titles are always governed by a
couple of basic, underlying rules, such as sovereignty, recognition, consent
and good faith. Initially, on most accounts, title to territory is relative, in that
it depends upon recognition of the titular transfer on account of any modality
of transfer. With the securing of recognition, it becomes absolute. With
absolution, the title begins to gain multiplicity in its roots, in that it
undergoes a process of Historical Consolidation.[811]
The possibility of using this theory as a mode of acquiring territorial title
was advocated by Professor Charles de Visscher,[812] in keeping with a
principle enunciated in the Norwegian Fisheries Case,[813] where he
himself was a judge. He noted that consolidation of historical title is
accepted in international law on account of the fact that states in
international law wield interest in maintaining stability of territorial
situations from the perspective of peace and order. Encapsulated by the
maxim quieta non movere, the idea is to not disturb things that are at peace.
Consolidation has plenty of practical implications for territories that are not
yet finally organized under a State regime, as well as for certain stretches of
sea-like bays. The process is not subject to the conditions specifically
required in other modes of territorial acquisition. At the very base of its
existence, consolidation requires proven long use. However, such long use
is only a representation of complex interests and relations which have borne
effects of attaching a territory to a state. These very interests and relations,
that change on a case-to-case basis, that should be given importance in
deciding in concreto the existence or non-existence of any form of
consolidation of historical titles; and not the passage of a stipulated period
of time. Scholastic perception has indicated that this marks the difference
between acquisitive prescription and historical consolidation.
Historical consolidation is much more than just a terminological reform. It
essentially implies a mode of titular acquisition, and may essentially
become subtly different from what is understood from occupation and
prescription.
Occupation
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Occupation refers to the acquisition of sovereignty with respect to territory


that was terra nullius until such acquisition. The term occupation comes
from the Latin word, occupatio, which means the acquisition of terra
nullius, which in turn, is a term used to denote such territory that has not
ever belonged to a state.[814] This is inclusive of both kinds of territory,
i.e., those that have not been subject to the sovereignty of any state
whatsoever, or, those that may have been abandoned by the previous
sovereign for whatever reason. Abandonment of territory requires two
elements, the animus and corpus, i.e., there should be an intention to
abandon the territory, and, the subsequent failure to exercise authority upon
the territory.[815] This point can best be analogized with the conceptual
framework of municipal law, in relation to losing property, and actually
throwing it away or discarding it. In the former, loss of the property is not
accompanied with the intention of non-usage, as the element of loss
indicates non-intervention on part of the person in possession. However,
where the latter is concerned, there is evidently an intention to do away with
the property altogether, coupled with the physical manifestation of the same.
Today, there are virtually no zones that count for being accorded the status
of terra nullius, since most territorial zones come under the ambit of the
sovereign control of some state or the other in the international realm.
However, territorial disputes are plenty, with questions that go to the very
root of title, which involve a question as to the status of the territory at the
time of its acquisition. The classic example of such a dispute would be that
of the Falkland Islands case,[816] between the United Kingdom and
Argentina. In the early eras, European legal scholars were oftentimes found
to be reluctant to admit that non-European societies constituted states under
International Law, and were, in turn, quick to regard the territory inhabited
by non-European people as terra nullius.[817]
Occupation is said to occur when the territory in question is placed under
the effective control of a state. For the sake of effective control to exist, a
couple of strict requirements are to be fulfilled. The extent of importance
attached to this is essentially on account of the scarcity of terra nullius
land. Back in the sixteenth century, large, unoccupied areas were beginning
to be discovered.[818] At that point of time, effective control was accorded
liberal interpretation, since mere discovery gave an inchoate title, which, in
effect, was an option to the state to a occupy the territory within a
reasonable time, during which time other states were not allowed to occupy
the territory. Of course, this changed with time, as international law began
demanding more to depict effective control.[819] In the present day,
however, the rule of effective control has been construed as a relative
186

concept, since it varies largely based on the nature of the territory


concerned. To put it in terms of an example, it would be much easier to
exercise effective control over barren, uninhabited land, as opposed to
territory where there are people who put up a fight in event of any other
state seeking to take over sovereignty. In the Eastern Greenland Case,
[820] effective occupation is relative in relation to the extent to which the
sovereignty is claimed by the state. when two states contest claims over one
territorial portion, the stronger of the two is the one that gains territorial
sovereignty. Some scholarly opinion indicates that it is not only that the state
must exert effective control, but also that such control needs to be
accompanied by such intention and will, as is necessary, to act as a
sovereign. As a consequence, thus, the independent activity of private
individuals bears little value, unless such private person acted in pursuance
of some authority received from their governments, or, in that any other
manner that their government exercised jurisdiction through them.[821]
Arrangements between states may be effected, such that the states agree not
to make claims, with a view to maintaining the territory as terra nullius.
This has been done for outer space, through the 1967 Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies, and, for Antarctica,
through the 1959 Antarctic treaty. The latter is of particular significance,
since several states had laid claims to various areas of Antarctica, with one
claim overlapping another, ultimately leading to disputes. The 1959 treaty
quelled the disputes well and good, by eventually being signed and ratified
by all the states that evinced interest in Antarctica. One good thing that the
treaty brought forth, was the prohibition of withdrawal from the treaty
within the first thirty years of the signature of the same. The treaty allows
for freedom of movement, scientific exploration and fair use of Antarctica,
throughout the body of its territory, and the parties have endeavoured not to
use it for any form of military purposes. This is all buttressed with Article
IV, which staunchly asserts that no activities in Antarctica can be used as a
basis for asserting, supporting or denying a claim to territorial sovereignty,
or to create any form of rights in the territory itself. This has led to the
acceptance of Antarctica as belonging to the international commons,
governed by the principle of common heritage of mankind.
Prescription
While occupation applies to terra nullius, prescription applies to a territory
that already had a sovereign. Prescription refers to the long occupation of
territory by a state, and the implicit acquiescence of the erstwhile sovereign
187

now dispossessed of such territory, in the occupation. Prescriptive


acquisition of territory is built on the foundations of estoppel and
acquiescence, since, if a state sleeps on its rights, it cannot seek to revive
them against a State that has been enjoying those rights for a continual, long
period. International Law has no set time period for the enjoyment of
prescriptive title, or for such title to mature. Prescriptive acquisition does
not require an animus in order for one to acquire a title. What is enough in
cases of prescription, is de facto control and the exercise of sovereignty. In
the Frontier Lands case,[822] litigated between Belgium and the
Netherlands, the ICJ held that the Netherlands act of sovereignty in the
territory at different points of time in derogation of the Boundary
Convention of 1843, which vested the land in Belgium, was not enough to
extinguish the sovereignty of Belgium over the territory. Nevertheless, the
court was welcoming of the fact that title can be established by way of
prescription.
Prescription exists in two forms- extinctive and acquisitive. Extinctive
prescription requires that a claim has to be brought within a reasonable span
of time. However, for acquisitive prescription, it is necessary that a claim is
brought within a reasonable period of time. In all cases of acquisitive
prescription, title emanates from long-standing possession, continued over a
rather lengthy period of time. This is, of course, in keeping with the fact that
there has been no formal protest, or, that all the parties interested, and all
affected states have each acquiesced in the exercise of authority.[823] If
there is any protest whatsoever, it needs to be effective and actual, in that
mere diplomatic protests are not enough. What needs to be done, is a
subsequent reference to an international organization, or an international
tribunal, except when it is not possible to resort to such a measure. There
will be a comparison, before any international tribunal or court seized with
the issue, between the prescriptive title on the one hand, and the quantum of
action required to put a spoke in the wheel of its fructification.
A study of Prescription as a mode of acquisition is incomplete without a
perusal of the Chamizal Arbitration,[824] a case between the United States
of America and Mexico. The United States claimed and sought to join an
area, called the El Chamizal tract, of around 600 acres after the Rio Grande
changed its course. Initially, the Rio Grande had, for a portion of its length,
made a boundary between the United States and Mexico, identified and
fortified by way of a treaty in 1848. The United States justified its claim on
the ground that it had acquired it by prescription that was undisturbed,
uninterrupted and unchallenged. Ultimately, the claim was rejected since
Mexico had indeed made a couple of protests, culminating in the 1884
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Convention between both countries, settling their rights in congruence with


the change of Rio Grandes path. Mexicos acts, in such manner, were
tantamount to effective protest, and the United States ultimately agreed to
submit the dispute for resolution before a competent tribunal in 1895. The
Tribunal concluded that a part of the Tract which resulted from a gradual
process of accretion belonged to the United States but the portion that had
ensued from a flood in 1864, was Mexicos.
The Falkland Islands case,[825] between Argentina and the United
Kingdom, the subject matter of the dispute was the Falkland Islands, also
known as the Malvinas. Britain sought to lay its claims on the ground of
prescription and self-determination. It submitted that it had an open,
continuous, effective and peaceful possession, and also had occupation and
administration since as early as 1833 with the exception of ten weeks when
there was a forcible occupation of the territory by Argentina in 1982. It also
asserted that it exercised authority according to the wishes of the islanders,
as expressed by way of their democratic selection of representatives
through an election. Counter to these lines of argument, Argentina presented
its claims that it succeeded to the islands on account of being the successor
of Spain, and on account of the rule of uti possidetis, and that it had also
made a couple of formal protests since as early as 1833, to the British
Government initially, and then at the United Nations and a couple of other
International Forums. Having understood the contextual framework flanking
the dispute, it is clear that it is quite difficult to determine the claim of the
two states over the islands, because, in the context of prescription, effective
control of the territory in question alone is not enough, because it is also to
be accompanied by the acquiescence of the state losing its claim. Other
states have evidently acquiesced. Another generally suggested method for
British acquisition of sovereignty over the islands, was brought to fore in
the light of conquest, a method recognized back in 1833. Inter-temporal law
justifies the acquisition of the islands by conquest.
Occupation, Prescription and Exercising
Effective Control
Whether occupation, or prescription, the exercise of effective control over
territory, and the peaceful and effective exercise of sovereign functions is a
rather integral facet to the acquisition of title to territory under International
Law. Effective control, per se, can be understood in two aspects. When the
exercise of authority occurs in a territory that does not already belong to
another state, i.e., terra nullius land, such exercise is best known as
effective occupation. But, when there is an exercise of authority over
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territory that already, formally, belongs to another state, such title is


prescriptive. Nevertheless, the basic difference between both concepts is
merely one of degree. The essential elements sacred to both, is the actual
and effective exercise of state functions on the territory. Determining
whether any case is classified as occupation or prescription is dependent on
the recognition of the fact that some other state did, or did not have a valid
title to such territory at an earlier time. Once this is established, the extent of
effective control is also to be taken into consideration. In the Botswana v.
Namibia case,[826] Namibia and Botswana had settled on the conceptual
framework of a claim of prescription as comprising four conditions, namely,
first, that the possession had to be exercised in character of a sovereign;
second, that the possession must be peaceful and uninterrupted; third, the
possession must be public; and, four, the possession must endure for a
length of time. Though the Court did not quite comment on the role and
importance of prescription in International Law, and did not indicate any
approval or disapproval of the formula as laid down by both states, this
conceptual framework just about sums up the quintessence of what
prescription itself stands for. The underlying tenet is ultimately effective
control, which is also a rather integral concept where occupation is
concerned. Prescription, however, has one added challenge, in that there
exists a present, and subsisting sovereign, who must either be displaced or
acquiesce to the new title holder.[827]
Effective control was best explained in the context of the Island of Palmas
Case,[828] where, by way of the Treaty of Paris, 1898, Spain ceded
Philippines to the United States of America. The United States was under
the impression that the Island of Palmas was included within the ambit of
the territory ceded to it. But, in 1906, the United States came to find out that
the Netherlands had established its presence over the territory. A subsequent
arbitration proceeding witnessed two parallel contentions, namely, the
Netherlands claim that it had title by way of peaceful and continuous
display of sovereignty over the territory, and, the American claim that it had
title on account of cession from Spain under the 1898 Treaty. Justice Huber,
the arbitrator, recorded a finding in favour of the Netherlands, and upheld
their claim. His statement in the course of the decision is oftentimes deemed
to be a classic statement on the theoretical ideas of sovereignty and the
acquisition of territorial title. He went on to note that sovereignty was
implicative of independence, and this meant the power to exercise functions
of a state within the territorial ambit of the state involved. Gubernatorial
display would, as a consequence, prove to buttress their claims over the
territory. For the acquisition of territory, thus, the crux of the issue is the
190

question of whether sovereignty was exercised upon such territory at the


critical date. Obviously, if the answer is an affirmation, it would easily
stand to defeat all claims to the title. Justice Huber noted that the continuous
and peaceful display of territorial sovereignty is as good as actually having
title.
What needs to be there, in effect, is an apparent display of sovereign
control. The state seeking to lay claims to the territory, needs to have
wielded powers of a state within the territory in question. The state would
have to indicate that it has an effective local administrative set up, that it can
capably control and protect its populace, and that it has a functional code of
laws to govern its people with. To put it in a single line, the state seeking
territorial title needs to show that it has behaved as a state, in relation to the
territory. However, this is not to say that every state function is a piece
relevant to the puzzle.[829] In the Case Concerning Sovereignty over
Palau Litigan and Palau Sipadan (Indonesia v. Malaysia)[830] the
relevant acts were enumerated, as being those that are specifically referable
to the territory involved, those that have been pursued with an intention and
will to act as a sovereign and to be regulatory, legislative, administrative,
judicial, quasi-judicial in nature. Not every act can be considered an
exposition of sovereignty, for it is absolutely clear that some activities
would be too trivial, or too disconnected with the sovereign nature of the
authority, and wouldnt do much to establish control and independence, and
hence do not count. Namibia, in the earlier mentioned legal dispute, couldnt
claim title by prescription, since the acts of occupation did not amount to a
function of state authority, but in reality, were only just a couple of sporadic
acts in pertinence to culture and agriculture.
Having established the actual requirements, it is necessary to remember that
the degree, extent and quantum varies from case to case, depending on the
territory in question. In the Clipperton Island Arbitration case (France v.
Mexico),[831] the territory in question was a small, uninhabited coral reef.
French title was found to have been established, even though there were
only minimal acts on the part of the French Navy and a couple of
proclamations of sovereignty in public journals. These acts were deemed to
have been acts of effective occupation, since they were coupled with the
intention to actually exercise sovereignty. In the Eastern Greenland case,
[832] Denmarks display of sovereignty comprised the granting of trading
concessions over the territory, and a couple of instances of minimal display
of administration. It was upheld as being sufficient, since the manner of
assessment is relative- i.e., the determination of ownership by the court
191

relies upon whichever of the two claims is stronger. In a way, the claim is
also relative to the nature of the territory itself. In the Palau Litigan case,
[833] the ICJ held that small islands bearing little or no commercial or
economic significance may need very little in terms of sovereign acts to
establish title, of course, provided that the acts itself bore sufficient
sovereign quality and were in furtherance of an intention to exercise such
sovereignty. What would fortify this claim, in turn, would be the
acquiescence and lack of protest on the part of other states.
While this indicates a favourable trend, the ability to behave like a state
where a territory is concerned, is not always sufficient. In the Land Island
and Maritime Frontier Dispute Case (El Salvador v. Honduras),[834] it
was clarified that the display of sovereignty would not compulsorily be
decisive in favour of the state, if there is another state that could establish
title to territory by way of some paramount legal title. A classic example is
the Case Concerning the Territorial Dispute (Libya v. Chad), [835] a case
involving a face-off between two different bases of claims, dealt with a
claim founded on the exercise of effectivits, and a parallel one founded on
uti possidetis, where the former could not defeat the latter, although it may
have contributed towards modifying a territorial boundary established in
such a manner, with due regard to the fundamental rule of stability of
boundaries. Some instances of judicial opinion have depicted an acceptance
of peaceful and continuous display to be a part and parcel of sovereignty.
[836] Similarly, in the context of the Frontier Dispute (Benin v. Niger),
[837] which reaffirmed the opinion in Frontier Dispute (Burkina
Faso/Republic of Mali),[838] it was stated that pre-eminence is accorded
to legal title over effective possession as a basis of sovereignty. It may seem
like there is a different trajectory being traversed by the more recent cases,
and that they do not quite settle with Palmas case. However, there is a
paradigm shift of sorts in international law, since there is a rapid move
towards a system of sovereignty built on principle and not on power.
In addition to the display of sovereignty, an intention to exercise sovereignty
is necessary. This was described to be a rather integral factor in claiming
title to territory in many a decision.[839] Usually, the existence of an
intention can be culled out from the simple fact that the state is exercising
such authority in the territory.
Critical Date
In certain circumstances, it is possible that there may be a determining
moment, one at which it is possible to infer that the rights of the parties
concerned have crystallized so that acts subsequent to it cannot affect the
192

legal position.[840] Such a moment may either be the date of a treaty whose
provisions are in dispute, or may also be the date on which a territory was
occupied.[841] The Critical date refers to the date on which the dispute
over territory crystallizes. In most disputes, a certain date holds
significance in the context of rival claims and contentions.
It is not necessary that every dispute be tied to a critical date, nor is it even
possible that every dispute will have a critical date. However, where there
does exist a critical date, all acts subsequent to it do not matter, unless such
acts are actually a continuation of all prior acts and are not undertaken for
the sake of improving the legal position of the party seeking to rely upon
them. The choice of the critical date or dates remains with the tribunal that
is vested with the responsibility to decide the dispute.
Once a date is chosen, all the events subsequent to it, relating to the
territorial claim itself, will be ignored. Therefore, beyond the critical date,
no evidence of title adduced will be admissible. In the Island of Palmas
Case,[842] the United States sought to lay a claim on the island on account
of being a successor to Spain, by the treaty of cession of 1898. That date
was deemed the critical date, and the case was decided entirely based upon
Spains rights at that point of time. Similarly, in the Minquiers and Ecrehos
case,[843] France and the United Kingdom brought to fore two totally
different critical dates. Nevertheless, a choice between both was not made.
Since this decision, there has been frugal reference to critical date by
international tribunals.
Critical date bears particular significance in relation to the applicability of
the rule of uti possidetis, where the successor state gains the same
territorial expanse and boundaries as the predecessor. In all such cases, the
date of independence is the critical state.[844] This is not a hard and fast
rule, of course, because there is no preclusion of the likelihood that the
relevant territorial situation or the rights of the state had already crystallized
at a time much earlier than the chosen critical date, and has been established
but not altered later.[845] When more than one state lays claims to the
territory, the first independence date bears more relevance and significance,
because this date marks the date of succession to boundaries established
with binding force by past treaties and agreements.[846]
Inter-temporal Law
When a dispute arises, as to the title to territory, oftentimes, they go to the
very root of the title. To decide such disputes, thus, it would be wise to keep
up with the law as it was at the relevant time, and not as to what the law is,
193

at the time of the dispute. The basic tenets of intertemporal law were
explained in the Island of Palmas Case,[847] where Judge Huber
explained it to mean that the law to applied in a given dispute is the law that
existed at the time when the dispute was to be settled, i.e., the critical date.
If, in keeping with this case, the critical date was 1898, then the dispute
ought to be decided with due reference being made to the law that existed as
of 1898. Intertemporal law is by far, one of the most important concepts in
deciding disputes pertaining to territory. It also, indirectly, drives home the
fact that the present law relating to the crux of the dispute, cannot be forced
into having retrospective effect. Going back to the factual matrix of the
Palmas case, it is clear that the acquisition of the title to territory by way of
conquest, i.e., a use of force, is outlawed in the present day on account of
the prohibition on the use of force. However, it was fully acceptable before
1945. This indicates, that, perhaps, even a use of force to acquire territory
in an era before the UN Charters advent, may not be open to question,
whatsoever, even if it is outlawed by the present legal framework.
The underlying notion of Max Hubers ideology, was that acts should be
judged in the light of contemporary law, but also, those rights once acquired
may be lost if they are not upheld in accordance with the changes in the law,
brought about by development and evolution of the law itself.[848] The crux
of the doctrine can best be encapsulated in two points. Primarily, it requires
that there must be an acquisition of title by way of some acceptable means,
and, that such inchoate title ought to be followed by an explicit
manifestation of authority by the sovereign, in a manner effective enough to
allow the inference of full-fledged and continual possession at the time
when the dispute comes up.[849] However, it was also noted in the case,
that, while the creation of a set of rights depends on the law at the relevant
time, the continued subsistence of the rights were preponderant on the
evolving legal systems, though such stringency would not be put to use in the
case of territories bearing an established boundary regime.[850] The
statement encapsulates a proviso of sorts, which has, in turn, been subject to
careful interpretation with astute flexibility, within the ambit of other allied
rules such as those of acquiescence and recognition.
The principles framed by Judge Huber found affirmation in a host of other
decisions. In the Grisbadarna case,[851] the assessment of a factual matrix
dating back to the seventeenth century, was done in the light of the law in the
seventeenth century. Similarly, in the Eastern Greenland Case,[852] the
principle of intertemporal law saw application where the varying
requirements of international law as regards territorial title were taken into
194

consideration, in relation to the thirteenth and fourteenth centuries, at which


juncture the facts were couched. The continuity in the display of state
functions was deemed integral to the fortification of the Danish titular rights
over the territory. The court, for the same reason, explored the sovereignty
exercise throughout successive periods of time, until the time when Norway
proclaimed its occupation and concluded for each period, that in the
absence of a contesting claim, Denmark displayed sufficient authority to
evidence and confer a valid title to sovereignty.
It is a generally accepted notion that a juridical fact ought to be taken into
consideration with due regard to the law contemporary with the dispute, and
not the law in place when the dispute is sought to be settled, or is raised.
However, there have been instances where states have decidedly sidestepped this rule. In the 1961 issue when the Security Council examined the
Indian invasion of Goa, India asserted that the Portuguese title acquired by
conquest circa 16 Century was invalid in the light of the rules for territorial
acquisition in the 20 century. Similarly, in the Aegean Sea Continental
Shelf Case,[853] it was declared that in interpreting the statement disputes
relating to the territorial status of Greece, implied a Greek reservation to
the 1928 Kellog-Briand Pact, which indicated that it had to be interpreted in
keeping with international law as of the date of the cases hearing, and not in
keeping with what the law was, in 1931. This led to the full-fledged study of
the evolution of the rules relating to the Continental Shelf under International
Law, ultimately leading to the decision that Greeces territorial expanse
included its continental shelf, although, in reality, the concept had no place
in the 1920-1930 legal regime. It may seem a case of choosing what the
state feels the best remedy in keeping with its own needs, but it is in keeping
with the rule of law doctrine, that there shall be a preclusion of retroactivity
for any legal rule. If the law is allowed to enjoy retroaction, it could
jeopardize the territorial interests of many a state that had acquired such
title to territory in a means that is not approved by the present day law.[854]
th

th

The rule of Uti Possidetis


The rule of uti possidetis suggests that the boundaries of newly constituted
republics would be the same as those of the colonial provinces under
colonial powers which they succeeded to.[855] The term is derived from
Roman Law, where it was used to denote an edict of the praetor, the ultimate
purpose of which was to essentially preserve litigation that was pending,
nec vi, nec clam, nec precario, between the claimants involved.[856] In
international law practice, however, the doctrine of uti possidetis evolved
195

in the 19 century, when the administrative boundaries of the erstwhile


Spanish Empire in Latin and Central America were sought to be made into
the international boundaries of the newly independent states emerging from
under its colonial rule. The rule also found roots in post-colonial Africa,
when the erstwhile colonial boundaries were deemed the confluence of the
evolution of boundaries of the newly independent states, and later, became a
well-recognized policy by the Organization of African Unity.[857] The
reason for such a policy being put to practice was that when the colonial
powers were withdrawing from the zones they had colonized, there was a
need to prevent any damage to already established boundaries. In Africa,
especially, boundaries were arbitrary and deviant in relation to the ethnic
and tribal segregations. Many a time, such an issue led to secessions, as was
the case with Belgium Congo and Nigeria. Administrative efficacy and
convenience was to be given precedence over ethnicity and cultural
divisions.
Uti possidetis has, perhaps, come to be acceptable as a norm of customary
International Law, not only just in Africa and Latin America, but in most
other parts of the world where states emerged from under the thumb of
colonial rule. In the Frontier Dispute (Burkina Faso v. Mali),[858] the
ICJ endorsed uti possidetis as being a generic principle, referring to the
intangibility of boundaries and frontiers inherited from colonization.[859]
The rule does not limit itself to geographical confines, in that it is generic in
its applicability, given that it is purely logical in its surmise as to the
consequence of attainment of independence. The idea, ultimately, is to
prevent the independence and stability of new states being endangered by
fratricidal struggles provoked by the challenging of frontiers following the
withdrawal of administering power.[860] In El Salvador v. Honduras,
[861] it was laid down that the rule of uti possidetis was essentially a
retrospective principle, in that it invested as international boundaries, all
the administrative limits that were, at one time, intended for different
purposes.[862]
The principle has feasibility in being applied in circumstances where there
has been a grant of independence at the end of colonial rule. However, what
becomes of the principle and its capability of being applicable in cases of
secession, or dissolution of states, is a different matter altogether. In the
context of the dissolution of the former Yugoslavian territory, where the
federal state was carved out of the territorial expanses of the erstwhile
Ottoman Empire, the Arbitration Commission on Yugoslavia exposited the
position of law, in Opinion No.2.[863] it went on to say that though
th

196

international law did not spell out all the consequences of the right to selfdetermination, it was a rather well established rule that self-determination
ought not to involve any changes to the existing boundaries and frontiers at
the time of independence, by way of uti possidetis, except where there is an
agreement deciding otherwise, between the states involved. As a
consequence of this statement, the full import emanating therefrom was that
the Serbian populace in Bosnia were granted full-fledged human rights
protection, and that was entirely bound by the frontiers of erstwhile BosniaHerzegovina. Opinion No.3 also reflected the same line of thinking, where it
observed that the former boundaries become frontiers protected by
International Law, except where the agreement denotes a contrary intention,
and it was also asserted that the conclusion emerges from the respect for
maintenance of territorial status quo and specifically from the rule of uti
possidetis.[864]

Self Determination and Territorial Title


With the creation of the United Nations in 1945, it had 51 members at that
point. With time, the membership has risen to nearly 200, with many a state
emerging independent at the end of long drawn colonial rule. The move
towards attaining independence came up immediately with the ceasing of the
Second World War, but only after the passage of the 1960 UN General
Assembly Resolution on the Granting of Independence to Colonial
territories and Peoples, that self-determination came to be regarded as much
more than a political viewpoint, and actually as a legal right. Today, of
course, the principle has been brought into effect as a legal rule itself, and
has come to be regarded as a rather important rule. Self-determination may
well be regarded jus cogens. In the East Timor Case,[865] the view upheld
was that self-determination was deemed one of the essential principles of
customary international law. In the Palestinian Wall Advisory Opinion,
[866] the Court was known to have explained that the right of selfdetermination, as possessed by a people, was of an erga omnes nature. It
has also been incorporated in the UN Charter, emphasized in the
International Convention on Civil and Political Rights of 1966, and the 1970
Friendly Relations Declaration. Self-determination may well relate to the
people, but does, without doubt, bear some overtones on the territory in
question. Self-determination, in effect, means the right of a people to
determine their own political, economic and social status of their own. This
would, definitely bear impacts on the territorial integrity, since it entails the
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creation of a political identity, which in turn orchestrates the exercise of


sovereignty over a piece of territory.
Self-determination has been interpreted to refer only to the inhabitants of
non-independent territories.[867] There are frugal incidents in practice,
which depict support for its application as a principle conferring the right to
secede upon identifiable groups within the ambit of already independent
states.[868] In the Reference Re Secession of Quebec case,[869] it was
declared that international law expects that the right of self-determination
will be exercised by people within the framework of existing sovereign
states and consistently with the maintenance of territorial integrity of those
states, and, the right to unilateral secession emerges in the most extreme
cases, and even then, is quite well-couched in carefully defined
circumstances.
In most instances, when there is an exercise of self-determination as a right,
it automatically warrants the acquisition of independence. It is not necessary
why this is the way it should be, because it is possible for a people to
associate themselves with another state, or may even choose to add to
another states territorial expanse.[870] What is necessary in selfdetermination, thus, is the assertion of a free and genuine expression of the
need for it. When there is a grant of independence, there automatically
arises an application of the uti possidetis doctrine.
The only possible exception where there is a likelihood of external selfdetermination, are colonial situations, where the group may find itself
subject to a rather extreme and unremitting persecution along with a lack
of any reasonable prospect for reasonable challenge[871] Secession is
best dealt with by international law, with a catena of rules governing the
process of making a claim, of effective control and international
recognition.
Self-determination, in many ways, has implications on territorial
sovereignty, and also fits in with the principle, in that it cannot come into
play when a colony or a trust territory gains sovereignty and independence,
except in some extreme circumstances. This has been evidenced by the case
of Somalia with its claims to portions of Ethiopian and Kenyan territory,
populated by Somali tribes.[872] Nevertheless, it received very little
support in its claims.
One point that must be remembered is that self-determination cannot be
resorted to, with a view to further already large claims to territory while
defying internationally accepted boundaries of sovereign states. However,
the principle finds some acceptance in that it may be helpful in resolving
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cases of disputed boundaries based on the inhabitants aspirations. Another


avenue in this regard is a case of fortification of claims with geographical
arrangements, a practice which has been rather prominent in history. France
has relentlessly asserted that its natural frontier in the east was the West
Bank of the river Rhine. European powers have claimed hinterland
territories by establishing their presence upon the African coast.
Kashmir
In the wake of an era where constitutional reforms are seen to occur with the
beacons of light that referendum and plebiscite are, Kashmir seems a blind
spot in the rationale and agenda of two states in the South Asian segment.
Fraught with what can best be explained as interests deterministic of
policies, it seems clear that both nation-states, India and Pakistan, have
agreed to disagree wherever Kashmir becomes the crux of their
negotiations. The people of Kashmir are evidently crusading for their right
to self-determination, and that has paved the way to the disruption of peace
in the region.
At the helm of affairs during the Partition of India and Pakistan, creating a
separate and independent India, and a separate and independent Pakistan,
the British accorded the catena of princely states the right to accede to either
entity carved newly out of the erstwhile sub-continent. The Kashmir dispute
dates back not to Kashmir's accession, but rather, to the Junagadh accession.
Junagadh was a province of Gujarat, headed by a Nawab with a Hindu
majority among the population. While the Nawab decided to accede to
Pakistan, India called dibs on Junagadh, contending that it had a Hindu
Majority while Pakistan was an Islamic Theocracy, and basing this on
geographical contiguity and terra firma, that Pakistan could obviously not
have one part of its state territory couched in Indian soil. Pakistan
countered, holding that the decision of the ruler of the princely state held
sway over all else, and rejected the terra firma contention stating that it
could administer the zone with marine ties despite its location in India.
Pakistan further contended that the decision of the princely state was
sufficient, in that it excluded all other considerations, such as the religious
identities of the majority of the population. Nevertheless, at the end,
Junagadh became a part of India.
Kashmir's story followed suit at the heels of Junagadh soon after. Maharaj
Hari Singh headed erstwhile Kashmir, which though headed by a Hindu
ruler, had a Muslim majority. He decided in favour of acceding to India. In
reply, Pakistan questioned the decision purporting a case of double
standards on part of India, for choosing to accept Kashmir as part of its
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territory on the grounds that it rejected Junagadh's decision. It contended that


the majority of the populace was Muslim, and though India was not a
theocracy, the fact that Maharaj Hari Singh himself had ample records in the
history of his leadership that evidenced an intolerant policy filled with
atrocities and torture towards the Islamic segment of society. Nevertheless,
Kashmir joined India's cache of provincial states, and acceded to India.
Since then, Kashmir has consistently been the bone of contention between
both states. Differences between the states took on a new role as troops
were stationed on the borders of both states. Seeking to restore peace, in
furtherance of the objective to avoid war at all costs, the United Nations
Security Council issued Resolution 47, which called for peace to be
restored between the states.[873]
At the end of the debacle, both states had portions of Kashmir in their
hands- Pakistan occupied and India occupied Kashmir. India accorded
Kashmir a special status, under Article 370 of its Constitution, and
exempted applicability of its legislation by inserting the 'except Jammu and
Kashmir' clause in every piece of legislation. Although for the most part a
state of difference in opinion with underlying peace prevailed, a few
instances of exchange of fire across the border developed into skirmishes,
such as the 1947, 1955 and the 1971 wars. In 1989, armed insurgency
commenced in Kashmir, given that after the 1987 State election disputes
resulted in the legislative assembly forming militant wings after the election,
which played a catalyst for the Mujahadeen insurgency, which continues till
date. India's take on the militancy is couched in its claims that these
insurgents are the acts of Islamic terror outfits from Pakistan-administered
Kashmir and Afghanistan, all of whom fight to make Jammu and Kashmir
part of Pakistan. India contends that Pakistan is supplying munitions to the
terrorists, and training them in Pakistan, and also states that the terrorists
have been killing civilians in Kashmir, and committing human rights
violations, while vehemently denying that its own armed forces are
responsible for the human rights abuses. Countering the Indian claim, the
Pakistani government deems these insurgents as "Kashmiri freedom
fighters", and asserts that it offers only moral and diplomatic support to
these insurgents. However, somewhere during October 2008, Pakistani
President Asif Ali Zardari termed the Kashmir separatists as Terrorists in
an interview with The Wall Street Journal, a move that stirred up outrage
amongst Kashmiris, some of whom defied a curfew rule imposed by the
Indian Army, in a bid to burn his effigy.
Closer to a recent period of time, the 2001 Kargil war re-enacted the
erstwhile war scenario. For years together, both states have relentlessly
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pursued amicable and peaceful settlement, and at various times, have both
had representatives meeting on the issue, but reach a deadlock each time.
Unfortunately, most such meetings have evoked lofty panegyric and leave the
world watching on tenterhooks as rhetoric after didactic rhetoric is
delivered, with no viable solution emerging.
India and Pakistan share ample camaraderie on many other fronts, bailing
each other out with sky-high sums of money when faced with natural
calamities, sharing turf and respect on and off the cricket pitch, and even
marriage across the borders, as was the most celebrated case of Sania
Mirza and Shoaib Malik. But Kashmir alone remains a blind spot where
amity and the tenets of peaceful cooperation are concerned. And who suffers
at the end of it all? That's right. The common man. As always. Thousands of
people are massacred at the sacrificial altar of hatred and revolt against
their divided status. Nearly hinging on statelessness, the populace suffers
under the brunt of divided opinion and the fecundity of militancy emerging
from the suppression of interests and the conflict of the simmering tensions.
Sixty odd years have gone by in the game of tug-of-war between both States.
Sixty odd years have gone by with the death-toll mounting. Sixty odd years
have gone by without a solution. And it's definitely high time to pin one
down.
Scholars world over have toyed with ideas aplenty, but all, though paper
tigers, lose ground on their impracticability and lack of tenability. India
giving Pakistan Kashmir may stir up protest from the Hindu quarters
considering that they will be a minority in an otherwise theocratic Islamic
majority, after being in a secular setting. Retaining the status quo will
obviously lead to a repetition of all that's been happening. Dividing
Kashmir is a likely viable option, but plenty of logistics such as the extent
and geographical demands would pave the way for more events of
ideological deadlock. Giving Kashmir in exchange for other territory, such
as, say, Sir Creek, would in all likelihood tilt the balance in favour of one
state than the other, keeping in mind the fact that the economic gain from
having both zones as part of the state are not equal. Leaving Kashmir as an
independent entity would virtually deal a death blow to the state, which
would need enough time to rehabilitate itself, and then to build relations
with the outside world. This is, of course, a proposition understanding that
though becoming independent as a state, Kashmir would have to depend on
its neighbouring states for plenty of things.
One unexplored suggestion that could produce far-reaching results, is to
allow both states to back off for a bit, while Kashmir rehabilitates itself
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under the control of an independent third entity. And filling the shoes of this
independent third entity is the United Nations Trusteeship Council. A wing
of the UN constituted at its inception, the Trusteeship Council was devoted
to placing territories under the administrative control of uninterested states
until they were capable of taking the bull by the horns and standing on their
own feet as independent states. The Trusteeship Council is presently
defunct, but its services are necessary now more than ever, considering the
mushrooming of newer entities as states that face the difficulty of nonrecognition, and the number of states in dispute with one another in relation
to portions of territory embroiled in a boundary dispute such as the present
one.
In keeping with the fundamental norms of anarchy and balance of power that
international law and international relations are founded, and in
understanding that many states perceive the veto power -albeit now frugally
used- as redundant and seek to expand permanent membership in the
Security Council, the administrative responsibility need not be under the
thumb of another state. What could be done in the alternative, is the
constitution of an independent committee comprising of manpower and the
best of academic and juristic scholarship. Neither India nor Pakistan shall
play a role, so as to avoid the swaying of the natives. The committee could
work towards seeking to repatriate the civilians and put them back on their
feet and giving them back their normal lives. With their lives back on track,
the civilians can then be extended the olive branch with an active option to
choose the trajectory they aspire to traverse in the form of a plebiscite or
referendum. When the region decides for itself, the choice exemplifies itself
in allowing the civilians a chance to stay, or to move out.
This scheme of affairs would ascertain a fair choice without the hand of
either state influencing or colouring civilian thought. There seems no point
in the political bigwigs clamouring for all things in the best interests of their
people, while in the background, the very people are dying in large
numbers. It is time the states think in terms of what their people need,
instead of what they want. It boils down to a simple choice.
Kosovo
The Accordance with International Law of the Unilateral Declaration
of Independence In Respect of Kosovo,[874] was an application to the
International Court of Justice, in order to secure an advisory opinion by the
UN General Assembly, in pertinence to the 2008 unilateral declaration of
independence of Kosovo. The territorial expanse of Kosovo was the base
matter of the dispute between Serbia and the Provisional Institutions of Self202

Government of Kosovo. In all of the International Court's history, this was


the first case dealing with a unilateral declaration of independence.
On the 22nd of July, 2010, the Court delivered its advisory opinion, and by
a vote of 10 to 4 it declared that the declaration of independence by
Kosovo, dated 17th of February 2008, was not in violation of general
international law, since, it held, international law contains no prohibitions
on any forms of declarations of independence. Most countries of the world
already recognize Kosovo, all of whom welcomed the decision, deeming it
a unique case that does not set a precedent. The countries that do not
recognize Kosovo refuted the decision, while relentlessly asserting their
stance that they would not be recognizing Kosovo, since the ruling could set
a precedent rolling, thereby encouraging the practice of endorsing secession
and unilateral declarations in other places.
Kosovo had adopted its declaration of independence on 17 February 2008
in a meeting of its Assembly. It was, effectively the second declaration of
independence by the ethnic-Albanian political institutions, the first having
been proclaimed on 7 September 1990. There was no clear cut indication as
to whether the declaration was an official act of the Provisional Institutions
of Self-Government, but, the Court asserted in its decision, that it was not an
official act. This was a significant part in the factual matrix, given that the
Serbian argument hinged on the fact that Kosovo's Self-Government had by
far, transcended its authoritative limits. Serbia sought international
validation and support for its stance that the declaration of independence
was illegal at the International Court of Justice.
A cursory perusal of the decision would not really lead one to surmise that
the ICJ accepted the absence of a right to declare independence within the
ambit of the question it was required to answer. Despite the notions
conspicuousness by its absence, it is quite clear that the neutrality of
International Law in pertinence to unilateral declarations of independence
forms the very foundation of the advisory opinion. Nothing in International
Law so much as purports that a declaration of independence is not
precluded from securing legality on account of its unilateral nature. In
support of this line of thinking, the court mentioned that the illegality
accorded to certain other independence declarations was not due to their
unilateral nature, but was essentially couched in the fact that they were
embroiled in a violation of jus cogens. The crux of this tenet is that the
international legal regime was essentially neutral to the unilateral nature of
declarations of independence. This is not to say that the issue is free from
any form of controversial debate, but that there happens to be a likelihood of
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a non-state actor being in contravention of the legal requirements, since the


entity declaring independence may not quite be a state just yet. Drawing a
theoretical argument, it is clear that this line of thinking echoes the dictum of
the Security Council in the context of South Rhodesia, the South African
Homelands and Northern Cyprus. As a natural corollary, it stands clear that
a state created in contravention of jus cogens, is no state at all, and in turn,
other states are obligated to withhold recognition. This has been recorded
under Articles 40 and 41 of the ILC Draft Articles on State Responsibility.
Relating all of the parameters in this matrix to the case at hand, one can
clearly see that the reasoning of the court is that Kosovo's independence has
not run into troubled waters since it is not in contravention of any norm of
jus cogens. Clearly, it has been accepted that self-determination underlies
the declaration of independence in cases of this sort. A Unilateral
Declaration of Independence depicts a situation where an entity seeks to
emerge independent of its parent state, without consent from the latter, and is
therefore driven to assert its independence by declaring so, on its own. If
such a declaration meets with acceptance from the International Community,
it is tantamount to the creation of a new state. However, this is not a case of
legalizing a territory or a title to it, but nevertheless is one where a new
state emerges, creating sufficient political and legal consequences, all of
which bear links to territory.
As far as International Law is concerned, for self-determination, it is
necessary that the modification of the legal status of any territorial expanse
must occur entirely in accordance with the will of the people, which in turn
must be exhibited by the representative entities of the people. Where nonrepresentative elements take it upon themselves to declare independence, it
is very well established that their conduct holds no value in international
law. That facet in the present matter is not an issue, considering that the
Court has arrived at a conclusion that the declaration of independence
emanated from those pockets of populace that represented the generic pulse
of society.

Loss of Territory
It is clear, that when one state acquires territory, another state loses it.
Therefore, it would be correct to understand that the modes of losing
territory, is the exact opposite of the modes of acquiring territory. When a
treaty of cession orchestrates the transfer of territory from one state to
another, it automatically implies a loss of territory for the transferring state.
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In such instances, there should be both, the factum of the renunciation of


sovereignty, and, the animus to fortify its actions. All of this is common to
all modes of territorial acquisition.
The Polar Zones
Aside of territorial rights over its own territorial expanse, some states may
exercise certain powers of regulation and management over other areas,
while sharing such powers with other states. Or, in the alternative, such
states may have a recognized interest in such areas. It is also possible for
individual states to have exclusive, but limited powers of jurisdiction over
certain areas of a communal nature, such that these rights and powers are
exercised in tandem with those of other states. No state can be said to have
actual rights of sovereignty over such areas, which are called res communis
or communal territory. The territories of such nature cannot be acquired by
any state, and is to be used exclusively for the common heritage of mankind.
Antarctica
The Antarctic zone, or Antarctica, is predominantly an area interspersed
with ice and frozen land. About seven states have raised claims of
sovereignty over Antarctica, namely, the United Kingdom, Argentina, Chile,
France, Australia, New Zealand and Norway- out of which the territorial
claims of three states overlap. Antarctica has now been known to possess
varied valuable reserves of natural resources, namely, coal, oil, gas and
precious metals. Though the present likelihood of commercial exploitation
of the resources in Antarctica is remote, there will be a time when states
would look to the Antarctic for new supplies of non-renewable minerals.
Assertion of state sovereignty in a bid to exploit the zone for commercial
use would not bode well, since states at large accept that Antarctica as a
region is not open to claims of sovereignty. A uniform sharing based
exploitation of the potential wealth of the area has slowly been deemed
acceptable, where states have begun to assert that Antarctica, like the Deep
Sea Bed and outer space, would be construed as the common heritage of
mankind. At all times, however, it is very important to understand the
ramifications of commercial exploitation. If states were given the green
signal to go on untrammeled, in their pursuit of commercial exploitation of
the zone, it would definitely destroy the system as it exists presently.
Further, even in the course of exploitation, if left without a governing
system, there could be instances where more developed states, perhaps out
of superior technology, or perhaps out of mere superiority in the world
order, would end up gaining more out of the zone, as opposed to the more
nascent segments of the developing states. This augments the need for
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sufficient international controls, as also a well-regimented system of


commercial exploitation that sustains the environmental structure, and
preserves the resources in its true form.
In 1959, a treaty governing Antarctica and other states in their pursuit of
dealing with Antarctica had come into place. The idea underlying the treaty
was to govern all those states that had sovereign interests in Antarctica, and
it sought to recognize the importance of environmental protection and
preservation, and also asserted that Antarctica would be used only for
peaceful purposes, thereby ruling out the fortification of any states military
prowess. The treaty also ensured the laying down of a moratorium of sorts,
in black and white, banning all kinds of claims of sovereignty, and
buttressed this rule with Article 4, which lays down that no acts or activities
occurring while the treaty is in force, would be accepted as constituting a
basis for asserting, supporting or denying a claim to territorial sovereignty
in Antarctica, or, create any rights in Antarctica. The treaty came into force
in 1961, from which point all claims over Antarctica in a bid to exercise
sovereignty were suspended. There are 46 member states, with 28
consultative, and 18 acceding. Of these, the consultative, i.e., those who
vote, members include the seven states that claim sovereignty over portions
of Antarctica as part of their national territory. The remaining 21
consultative states are non-claimant nations till date, who have either not
recognized the others claims, or have not stated their positions. The
consultative parties meet every two years, and make recommendations
under the treaty, which in turn deal with various matters and may have
binding value as far as the Consultative Parties are concerned. There hasnt
been any mention of a formal duration for the treaty, and there is room for
review at any point of time, with the end of thirty years. This provision had
originally paved the way for fears that the regime would cease in 1991,
however, from 1982 onwards, the Consultative Parties have been making
sincere efforts to continue the progress made by the Treaty since its
inception, by meeting regularly and discussing the benefits of continuing the
regime. As of today, the treaty is still in force, and has renewed vigor in its
application, with an additional Protocol on Environmental Protection.
The treaty regime has evolved with time, and has emerged as one of the
most important regimes till date. In November 1988, the Convention on the
Regulation of Antarctic Mineral Resource Activities, known as the
CRAMRA, came into place and was left open for states to sign. It was for
the sake of establishing a regime for mineral resource activities. Though it
encouraged a new trend where a couple of states were seen to have been
prepared to relinquish their sovereignty based claims if the regime was
206

successful enough, it eventually became defunct, since it did not sustain the
interest of its members as far as environmental concerns went.
Subsequently, ideas to convert Antarctica into a wilderness reserve, with a
ban on all forms of mining and exploitation, were brought to fore by France
and Australia at a meeting of the Consultative Parties in Paris, in 1898. This
rule has found personification in the Protocol on Environmental Protection
to the Antarctic Treaty that was finally agreed to, by the Consultative
Parties. The Protocol, which has now entered into force, indicates some sort
of a compromise among those states that aspire to pursue the rules of
Mineral Convention and those states that seek to propose an absolute
moratorium on the exploitation of Antarctica. All activities in relation to
mineral resources, with the exception of scientific research, are prohibited
under Article 7 of the protocol. Article 25 encourages a modification of the
terms, either by way of deploying the special procedure under the Antarctic
Treaty itself, or, by way of a review conference about 50 years from the
Protocols entry into force. The idea, thus, is to ensure prohibition of mining
for at least 50 years from the time the Protocol comes into force.
With the protocol in place, one can confirm that there is quite a tangible
reduction in the likelihood of commercial mining in Antarctica. Sweeping
changes have been incorporated in the municipal realm as well, with the
UK, for example, enacting the Antarctic Act 1994, making all the requisite
changes to its national law, as are required to ratify the protocol. However,
there is still merit in the UK/USAs objections to bringing in the wilderness
reserve status for Antarctica. They contended that commercial mining in
Antarctica was, in many ways, inevitable, and it was only a matter of time
before it happened. They asserted that if there is a proper regime in place,
then there would be a definite reduction and perhaps a complete end to any
destructive activities.
The protocol is a rather appreciable development, although it does not quite
affect the legal claims of states in abeyance of the Antarctic Treaty. The idea
is to encourage the perception of Antarctica as an integral part of the
common heritage of mankind, and to avert any possible destruction to the
environment.
The Arctic Zone
The Arctic zone comprises of frozen sea mass. Isolated islands exist, some
of which have been subjected to claims of sovereignty by a few states such
as Denmark and Norway. A greater part of its area is composed of shifting
pack ice, of a permanent character. A couple of states, for instance, Russia
and Canada, have claimed sovereign rights over parts of the frozen sea
207

mass, and these claims have been resisted by a couple of other states, such
as Norway and USA, purporting that the Arctic sea mass is susceptible to
the same legal status as the High Seas. Presently, however, there is some
measurable difference of opinion as regards the status of the Arctic.
Antarctica has a treaty regime, which the Arctic lacks. This has, perhaps,
been on account of the fact that there are frugal resources in the Arctic.
Albeit wielding considerable military value, most states havent ventured,
perhaps on account of maintaining their international responsibility towards
a peaceful system.
Stepping out of the Territorial regime: External
Territorial Rights
As already explained, a state has exclusive right over its own territorial
expanse. However, this is not all. States can enjoy a certain measure of
territorial rights, over those of another state, in the form of servitudes and
leases. These rights are similar to the accepted rules of easements and
leases in municipal law, and these rights are real rights, i.e., rights in rem, in
that they run with the territory, considering that the change of hands with
regard to the territory in question does not affect the right over it. Such
rights are often created by way of a treaty or a bilateral agreement.
Servitudes
Servitudes refer to exceptional restrictions, as imposed by a state over
another, through a treaty, on the territorial sovereignty of a state, whereby
such territory is put under the conditions or restrictions, or the rights of the
user state, serving its own interests or serving the interests of a non-state
entity. The right created therein is a right in rem, and is enjoyed by the userstate, i.e., the praedium dominans not in personal capacity, but in capacity
as the owner of the land that belongs to another state, i.e., the praedium
serviens.[875] A right of servitude runs with the land, since they bind all
successors to the titular rights with respect to the territory. However, merely
because there is a servitude permitted by one state for another to use, it does
not imply any compromise on sovereignty whatsoever.[876] States have
been known to grant rights of servitude to other states, such as perhaps, the
right to fish in the maritime belt, the right to navigate through national
waterways, the use of ports, the use of an airfield for any related facilities.
While it is indeed true that these rights are necessarily in rem, they may be
in personam, too, in that they can be abrogated by the granting State, by
snapping ties as far as the relevant treaty is concerned. In principle, the
general test of an international servitude is that it should be able to survive a
change in sovereignty of either state involved.
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In the North Atlantic Fisheries Arbitration,[877] the United States


asserted that fishery rights were created in favour of its inhabitants, off the
Newfoundland coast in 1818, by way of a Treaty with Great Britain, and
that it constituted a right of servitude. The contention was rejected, with the
observation that a servitude under International Law warranted an express
grant of a sovereign right, and involved an analogy to the relation of a
praedium dominans and a praedium serviens. What happened in the case
was, the Treaty of 1818, allowed one state to grant the other a liberty to fish,
which in turn was not a sovereign right, but only an economic right granted
to the inhabitants of the other state. Furthermore, the Treaty of 1818 did not
prevent the British government from exercising its rights in making
regulations limiting the fishing rights of all persons including the inhabitants
of the United States. This case marked a jurisprudential hallmark of sorts,
by differentiating economic rights and sovereign rights. The grant of
economic concessions to States do not normally grant rights in rem of an
irrevocable nature by the grantor State. Taking up cudgels in favour of
Britain, the court relied on inter-temporal law, and asserted that there was
no evidence to purport that the American and British Statesmen were
conversant with the quintessence of the doctrine of servitude in 1818, i.e., at
the time of the Treaty.
Subsequently, in the S. S. Wimbledon Case,[878] the United Kingdom
asserted that the right of passage through the Kiel Canal, as was guaranteed
under Article 380 of the Treaty of Versailles, which required that the canal
and its allied approaches ought to be maintained free and open to the
vessels of commerce and war, of all nations at peace with Germany, on
terms of equality, was a servitude binding upon Germany. The Court,
however, ruled that as under Article 380, the canal had attained the status of
an international waterway, intended to provide under treaty guarantee easier
access to the Baltic for the benefit of all nations of the world. The Court did
not express a definite view on the question of servitudes, and instead opined
that the existence of servitudes in the domain of international law
questionable. However, the Right of Passage over Indian Territory Case,
[879] servitudes were accepted albeit not invoked in the Portuguese claim
for a right of passage through Indian territory between the Portuguese
enclaves of Daman and Diu and Nagar Haveli. Originally granted by the
Maratha Rulers, the right was later accepted by the British Indian
Government by a treaty and continued in India even after independence.
While the rights were accepted, the Court did not deem them servitudes, but
held Portugals claim as part of a custom. The Court went on to abridge its
decision by stating that the right was not applicable to armed forces, police
209

and armaments, and was subject to the control and regulation by India. This
ensured that it could not quite be deemed a servitude in the strict sense of
the term.
Servitudes may be created in a bid to benefit a community of states, as was
seen in the Aaland Islands case,[880] where Sweden argued that Finland,
in its capacity as a successor to Russia, was bound by the 1856 General
Treaty of Peace, which in turn created a servitude. The International
Commission of jurists reported the issue, and went on to assert that the
existence of international servitudes was not admitted.
Leases
Leases of territory by one state to another under International Law resemble
the leases of land by one party to another under Municipal Law. However, it
is different in that there is no binding effect of the private law of one, upon
the other. A lessee acquires control and sovereign rights over an area
subject to dominion of another state without resorting to annexation. After
the expiry of the term of the lease, the sovereign rights over the region revert
to the lessor state. In the 19 Century, China leased several portions of its
territorial expanse to western powers while retaining its sovereignty- Hong
Kong went to Great Britain by the 1842 Nanking Treaty, Kowloon followed
suit by the 1860 Peking Treaty. Leases, in the present day, are being actively
created for different purposes, ranging from ports for transit, to missile
tracking stations. Most leases are accorded perpetuity, which oftentimes
brings to fore the question as to whether it constitutes a real right under
international law, capable of surviving changes in sovereignty.
th

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Chapter 9- Air and Space Law


Air Space and the Laws governing it- Essaying the
Evolution
Airspace above states and territorial waters, and their status have been
discussed over the years, with different theories and ideals, from as early as
the period before the First World War. Between 1900 and 1914, a whole
cache of academic opinions came to be expressed, each purporting a
different ideology on the status of airspace under International Law. One
view perceived airspace as being absolutely free for use, without any
restrictions by way of sovereign rights. Another point of view recognized
that in terms of an analogy with territorial waters, a portion of territorial
air attached to the state, followed subsequently by a higher free area. A
third point of view construed that all the airspace above a state was within
the ambit and control of the states sovereignty. A fourth viewpoint indicated
a modification of the third approach, by asserting that there was a right of
innocent passage over the airspace of every state, for any civil air vessel
belonging to a foreign state.[881] The most well-known face off on
scholastic perception on theories governing airspace was between the
British concept of sovereignty, and the French idea of freedom of airspace.
[882] However, it was a generally agreed notion that the airspace above the
high seas was terra nullius, and was open to all states to access.
With the outbreak of the First World War, this point of view changed. With
1914, it became clear that states would have to be content with nothing less
than absolute sovereignty over their airspace, since the security issues
emanating from the use of airspace without sovereignty-based restrictions,
were plenty. With tremendous potential for aerial warfare, there were too
many concerns relating to the likelihood of bombing and reconnaissance, as
were seen all through the First World War. Neutral states were exceedingly
insistent on preserving their right to prohibit any foreign aircraft from using
their airspace, and to prevent all forms of aerial warfare over their
airspace. States were evidently not willing to settle for anything less than
complete sovereignty rights over the stretch they deemed as their airspace,
and this paved way for a new norm of customary law to such effect. The
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idea underlying the approach that emanated therefrom, was the extension of
state sovereignty into airspace. It was an accepted precept from the
defenses ideals, and was also acceptable for states who were keen on
evolving a system of regulating flights over national territory.[883] The rule
has been, since, that an aircraft of one state shall have a right to fly over the
high seas, but not over the territorial seas of another state.[884]
Subsequently, the 1919 Paris Convention for the Regulation of Aerial
Navigation recognized the full sovereignty of states over the entire column
of airspace above their landmass and their territorial waters.[885] The rule
has been put into writing in Article 1 of the 1944 Chicago Convention on
International Civil Aviation,[886] stating that every state has complete and
exclusive sovereignty over the airspace above its territory.[887]
This being a given, it is clear that international law rules in congruence with
sovereignty and the issues related therein, are equally applicable to
airspace as they are applicable to land and sea under the sovereignty of a
state. This was exposited in the Nicaragua Case,[888] where the ICJ noted
that the principle of respect for territorial sovereignty was directly infringed
by the unauthorized flight by an aircraft belonging to, or under the control of
the government of another state, over a states territory by traversing its
airspace.
Originally, the idea was to ensure unlimited extent of sovereignty, in that
sovereign rights of a state were allowed to be exercised to an unlimited
height into airspace. This was better known as the rule of usque ad coelum.
[889] However, this has long been subject to the restrictions imposed by the
law of outer space. It is a rather flagrant breach of international law, when a
state violates the airspace of another state. Between 1950 and 1960, several
aerial incidents occurred, when a couple of American military aircrafts
were attacked, or forced to land, or were shot down, and their crews were
interned by Hungary, the USSR and Czechoslovakia.[890] The United States
interjected that the use of force was antagonistic to international law, since
the aircrafts were either flying over international waters, or had
inadvertently set foot into foreign airspace. The ICJ dismissed the American
cases against all the states that refuted liability, since there was no
acceptance of jurisdiction by the respondent states. Subsequently, the Court
denied jurisdiction in the cases brought in by Israel, the United States and
the United Kingdom, against Bulgaria, for having shot down an Israeli
aircraft which was a regular commercial flight, between Austria and Israel,
carrying passengers of several different nationalities.[891]
Later in 1960, a United States U2 reconnaissance aircraft was shot down
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over the Soviet Union. This resulted in the cancellation of a summit


conference with the United States, by the Soviet Union, in a bid to protest
against a violation of its airspace.[892] It is noteworthy that the United
States did not raise any qualms about the Soviet Unions act of shooting
down the U2. This raised a new question, as to whether states had an
untrammeled right to attack an intruding aircraft under all circumstances. As
put by Lissitzyn,[893] In its efforts to control the movements of intruding
aircraft the territorial sovereign must not expose the aircraft and its
occupants to unnecessary or unreasonably great danger- unreasonably
great, that is, in relation to the reasonably apprehended harmfulness of
the intrusion. The principle is a flexible one, giving room for actions to be
taken in the light of legitimate threat to its security. It also warrants that a
warning to land, or demanding a change of course needs to be issued prior
to attacking the aircraft, with only two exceptions that the aircraft constitutes
a grave and imminent threat to the security of the state, and that it is
impracticable to actually extend such a warning. This is a description of the
position of the law in situations relating to military aircrafts entering into the
airspace of another state. However, there is still active debate in the context
of civil aircrafts that enter into the airspace of another state without such
other states consent. Some states encourage the military approach to be
applied even to civil aircrafts, while some other states in conjunction with
the International Civil Aviation Organization (ICAO), a specialized agency
of the United Nations do not wish to follow the ideology, since they believe
that a civil aircraft ought never to be attacked, whatever be the
circumstances. What can be done, they suggest, is to order such civil aircraft
to leave, or to land, and the state whose airspace has been entered into can
seek to protest to the state with whom such aircraft is registered, if its
protest results in no consequential action. At all times, however, it is
necessary to remember that merely because trespassing civil aircrafts are
not to be attacked, there is no automatic right for such civil aircrafts, to
trespass.
In 1981, the International Civil Aviation organization brought a
recommendation to its members, warranting that intercepting aircrafts
should refrain from the use of weapons in all cases of interception of civil
aircrafts.[894] After this, in 1983, the Soviet Union shot down a South
Korean civil aircraft, which had entered into its airspace. The action was
condemned in the Security Council, which also went on to reaffirm the rule
that international law prohibits acts of violence posing a threat to the safety
of civil aviation.[895] The rule purported therein found support in several
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states and their ideologies.[896] The Soviet Union, however, did not assert
that it had an unlimited right to take action against an intruding aircraft, but
went on to submit that it had mistaken the South Korean aircraft for a United
States military aircraft.[897]
The next development in the field was in 1984, when the Assembly of the
International Civil Aviation Organization adopted an amendment, namely,
Article 3bis, to the 1944 Chicago Convention on the International Civil
Aviation. The article stipulates that every state, in the course of exercising
its sovereignty, is entitled to require the landing at some designated airport
of a civil aircraft, flying above its territorial expanse without authority. At
the same time, however, it makes sure to assert that the states ought to
refrain from resorting to the use of weapons against civil aircrafts in flight,
and in events of interception, the lives of people on board and the safety of
the aircraft ought not to be endangered. Another event worthy of mention in
relation to Air Law, is the war between Iran and Iraq.[898] On 3 July,
1988, the American warship, in an engagement with Iranian gunshots in the
Persian Gulf, under the belief that it was being subject to attack from air,
ended up shooting down the civilian Iran Air Flight 655, in the process
killing nearly three hundred passengers from six countries and the crew
members on board the flight. The United States did not admit to its liability
at any point, but did, later, offer to pay ex gratia compensation to the
families of the victims, but the offer was declined by Iran, which in turn
went on to file a claim before the International Court of Justice.[899]
Eventually, the two states took up the claims in the Iran-United States
Claims Tribunal, and the United States settled Irans claims.
Following this event, the Cuban military aircrafts shooting of two civilian
aircrafts registered in the United States led to another condemnation by the
UN Security Council in 1996. What ensued next were a bunch of sanctions
against Cuba under the Cuban Liberty and Democratic Solidarity
(Liberated) Act, 1996, also known as the Helms-Burton Act.
The Legal Framework Today-The Chicago Conference
and Conventions
The present legal regime dealing with Airspace evolved from the 1944
Chicago Conference, and the slew of conventions emanating therefrom. The
Chicago Convention on International Civil Aviation,[900] does not apply to
any form of state aircrafts that are deployed for military or police use, or
even customs requirements, as explained under Article 3. Article 1 mentions
that there shall be complete and exclusive sovereignty over the airspace of
states. Article 6 reinforces this rule, by purporting that no scheduled
rd

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international air service may be operated over or into the territory of a


contracting state without that states special authorization to such effect.
States have also qualified their sovereign rights, by agreeing under Article 5
that the aircrafts of other contracting states not engaged in scheduled
international air service, shall have the right to make flights into or in transit
non-stop across their territory, and to make stops for non-traffic purposes
without obtaining prior permission. The right is, of course, subject to the
right of the state flown over, to demand a landing. This marks an exception
to the rule under Article 6 of the Convention, considering that states have
oftentimes required that prior permission be obtained, before charter flights
come over into their territory, even though it is true that such flights do not
quite come within the ambit of article 6 and within the definitional ambit of
scheduled international air services as put forward by the Council of
International Civil Aviation Organization, in 1952, thereby marking another
milestone indicating the modification of a treaty provision by state practice.
[901]
To be able to identify an aircraft as belonging to a particular state, Article
17 purports that aircrafts shall have the nationality of the state in which they
are registered, although the conditions for registration fall within the realm
of domestic law, and vary from state to state, as explained by Article 19.
The next piece of jurisprudence in the list of laws governing airspace, is the
1944 Chicago International Air Services Agreement. It deals with all forms
of scheduled international air services, and stipulates that all the states party
to the agreement recognized the privileges of the air services to fly across
their respective territories, without landing, and, to land for non-traffic
purposes. The agreement was also named the two freedoms agreement. It
was later augmented by the five freedoms agreement, or the 1944 Chicago
International Air Transport Agreement. The second agreement added a
catena of rights and privileges pertaining to the acts of taking on and putting
down passengers, mail and cargo in the territories of state parties. The
agreement, however, did not see many states ratifying the same. The United
States withdrew from it in 1946 on account of the fact that there was far too
much commercial value that had been granted away, which, at present, holds
frugal value.[902]
What regulates the present system, instead, is a tightly woven weft of
bilateral agreements, between individual states for the sake of traffic rights,
in addition to the two freedoms which govern transit. States have been
known to indulge in multiple rounds of negotiation with a view to arrange
for the practical operation of the remainder of the three freedoms. This is
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indicative of the extent of commercial and strategic importance attached to


them. Now, with the advancement of technology and the advent of modern
mechanisms in air travel, and with the stupendous increase in state owned
and private airlines networks, there has been a rather heavy burden on this
prevailing system.
The Conference followed the 1919 Convention, reaffirming some of its core
principles. The sovereignty of states over their airspace; the rule of seeking
prior permission from states to operate scheduled international air services
using their airspace and the right to carry traffic between different points
within the state territory were among those principles that were reaffirmed.
A large part of the foundation laid by the Chicago Conference was, in many
ways, was dented by the catena of bilateral agreements entered into by
states with one another. Nevertheless, it still holds good, since it was
fundamentally based on the Bermuda principles, which essentially declare
that air transport facilities available to the travelling public ought to relate
to the needs of the public and enunciates the fact that there should be equal
opportunities for the carriers of the two concerned nations, in order to
operate on any route as between their territorial expanse.[903] It also makes
clear that in the course of operation by air carriers of the governments of the
trunk services as explained under the annex in the agreement the interests of
the other governmental air carrier ought to be taken into due consideration,
in order not to disrupt the services provided by them. All designated air
carriers providing services under the agreement will pursue, as their main
objective, the providing of capacity sufficient to the demands of traffic
between the countries of which such air carrier is a national, and that which
is its final destination. The general principles of orderly development as
subscribed to by both concerned states govern the right to embark and
disembark upon such services, to and from third states at specified points on
the routes specified in the agreement under its annex. Such right is also
subject to the principle that capacity should bear relation to the traffic
requirements between the country of origin and country of destination, to the
rules and requirements of through airline operation, and to the traffic
requirements of the area through which such air carrier passes, after taking
into consideration the local and regional services. The parties involved are
also under an obligation to engage in consultation as frequently and as
regularly as possible, in a bid to retain close collaboration, so as to ensure
continued implementation of the provisions of the agreement.[904]
The Bermuda agreement did not find approval for long, in that the UK had
denounced the same, in 1976, claiming inequity in share in the North
Atlantic traffic, as the reason. In 1977, a new agreement was signed with the
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USA, by the name of Bermuda II, which reaffirmed the original tenets of
Bermuda I, and moved on to lay down newer regulatory techniques.[905]
This time around, the British airlines were permitted non-stop services,
along with the freedom to combine the points in the US, on each route they
sought to choose. Excess capacities and the problems arising therein came
to be governed by way of a consultative mechanism, and a Tariff Working
Group was also created towards this end.[906]
Another productive angle to the Chicago Convention was the creation of the
International Civil Aviation Organization. It was created as a specialized
agency of the United Nations, based primarily in Canada. The purpose of its
establishment was to create a mechanism warranting the governance of
technical and administrative co-operation between states, in matters
governing civil aviation.[907] The core aims of the ICAO are to ensure the
persistent development of principles, rules and techniques of international
air transport.[908] The entity wields a plethora of powers, of technical,
legal and administrative nature, and exercises them through machinery such
as the Assembly, a Council and a few other bodies based on the necessity of
the Organization. The organization has been catalytic in giving the laws
governing airspace personification, by putting them down in instruments that
have been adopted by states from time to time.
Aside of the International Civil Aviation Organization, there is also an
International Air Transport Association, comprising most of the airline
companies and operators. The members act in consonance with one another
in a bid to establish a uniform system of fares and tariffs, all subject to
governmental approval. The forum also functions as an avenue for the
discussion and for dealing with issues such as hijacking and attacks upon
civil aircrafts.
The Warsaw Convention regime
With the steady increase in civil airlines in use, there has also been a rather
considerable increase in the extent of cases involving the liability of civil
airline companies for the death and injury suffered by passengers on board
these airlines. The Warsaw Convention for the Unification of Certain Rules
relating to the International Carriage by Air, 1929, was instrumental in
establishing upper limits for such liability, and also dealt with other allied
issues in light of responsibility and insurance. Modified by the Hague
Amendment, 1955, the amendment so made was not approved of by the
United States. As a consequence, a subsequent agreement was signed in
Montreal, in 1966, in a bid to raise the limits of liability as far as airlines
flying in, or to the United States.
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The convention, under Article 20, stipulates that the carrier is not to be held
liable if it is proved that such carrier and the agents have taken all the
necessary measures to avoid damage, or, that it was absolutely impossible
for such carrier to take such measures. The burden of proof is squarely on
the carrier, and the threshold, or the expected standard for such proof, is
rather high.[909] The limits to the carriers liability are laid down under
Article 22, as defined in gold French Francs.[910] Article 25 purports that
liability is unlimited under article 25 if damage ensues from the willful
misconduct of the carrier or, of one of his agents.[911] With the entry into
force of the Montreal Additional Protocols, 1975, there is more support lent
to this regime, starting with the substitution of the Special Drawing Rights
for the gold francs. Subsequently, the Guatemala Protocol, 1971 sought to
bring in absolute liability with increased limits in passenger and baggage
instances. The ICAO Council, through its Legal Committee, negotiated a
plan to encourage states to sign and ratify the Montreal Protocols in 1990.
Nevertheless, the condition of airlines liability in most places aside of the
United States of America is best deemed as being below satisfactory.
Oftentimes, thus, those seeking to make claims have been driven to sue the
manufacturers of the aircraft, and not the airlines itself. This is a generic
description, as the specifics are largely preponderant on the laws of the
states, and the extent of compensation that is permitted as per their
respective jurisdictions.
The Turkish Airlines incident in 1974, is the best example of the position of
law on the issue. The Airline built in America, crashed near Paris, resulting
in the death of over three hundred. The incident threw a couple of issues in
the way of the law, steadfast in emphasizing the extent of injustice the
situation portended, in the light of the quantum of compensation that the
passengers and their bereaved families were given and in turn, ought to have
been given. The amount of compensation was severely limited by the
mandate of the Warsaw Convention, leading to the passengers seeking
claims against the manufacturing entity, before the American Courts. Finally,
a Californian court awarded them the damages they were seeking.[912]
On account of the limited liability framework, there were several instances
of individuals seeking compensation by way of approaching other means
outside of the Warsaw Convention. In Ex Parte International Air
Transport Association,[913] there was a question of compatibility between
the European Communitys Regulation 2027/97 that stated that there shall be
no limit on the liability of carriers, and the Warsaw Convention as was
given personification in the UK legislation called the Air Act, 1961. The
Court ruled that the Warsaw Convention as personified in the Air Act, 1961,
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had precedence over the former, since it was essentially established in a bid
to assure uniformity in the legal system, and had also been the only
legislation that had borne remedies for the passengers of air carriers.[914]
There were enough drawbacks and complications in the system, which was
offset by the employment of many agreements and arrangements with
carriers, limiting the liability under the convention.
The 1999 Montreal Convention came in place of the Warsaw Convention,
with a view to doing away with the host of voluntary agreements between
states. Article 21 of the Convention endeavours to completely do away with
all forms of arbitrary limits on air carrier liability in relation to accident
victims. A carrier can avoid liability for the entire quantum of damages only
if it is proved that it was not negligent, or, that a completely different entity,
namely, a third party, was responsible for the damage caused. Carriers are
deemed to be held strictly liable for the first 100,000 Special Drawing
Rights of the proven damages for each passenger.[915] A carrier, therefore,
may not quite avoid liability for the amount, even if there is proof that the
harm ensued not out of negligence on its part. The rule of strict liability
mentioned herein comes only with one exception, namely, contributory
negligence as under Article 20.
Hijacking and Terror Attacks in
Airspace
Another issue most jurisprudence seeks to tackle, in the context of air law,
is that of hijacking. Airspace has now come to play a rather integral in
world communication and infrastructure building. Hijacking and terror
attacks are a looming threat to the peace and freedom of airspace. This has
led to the adoption of several conventions penalizing and outlawing any
form of hijacking, and bringing in a scheme of enforcement measures. It is
possible, however, as put in Shaws words, that the law against hijacking
would begin to be treated as an equivalent to the legal regime governing
piracy on the high sea.[916] In dealing with hijacking, the Montreal
Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation, 1971 deems the performance of an act of violence against a person
on board an aircraft in flight, where the act is likely to threaten the safety of
the aircraft as being an offence. Similarly, it treats the destruction of an
aircraft in the course of service, or damaging it in order to render such flight
unsafe or impossible, as an unlawful offence. The same is construed of an
act sought to destroy, damage or interfere with the operation of air
navigation facilities, and the communication of false information knowingly,
if the same is likely to endanger the aircraft in flight. The Montreal Protocol
219

of 1988 augmented the ambit of the convention, and brought in acts of


violence against people at an airport serving international civil aviation
causing thereby, or likely to cause serious injury or death; and also the
destruction or serious damage of the facilities of such airports and aircrafts
that are not in service, and disrupting the airport services.
Jurisprudence is full of events indicating the claims for damages in the wake
of terror attacks. Starting with Krystal v. BOAC,[917] where the terrorist
attacks warranted the recovery of mental anguish emanating from a hijack
under the Warsaw Convention regime, as augmented and modified by the
1966 Montreal Agreement. Subsequently, an incident occurred where the air
carrier was held responsible for the damage suffered by passengers on
account of a terror attack, at the departure terminal of the airport in Athens.
[918]
Aside of the aforementioned legal instruments, the Rome Convention on
Damage Caused by Foreign Aircrafts to Third Parties on the Surface, 1952
and the Montreal Protocol of 1978 are also noteworthy. Both these permit
the payment of compensation upon the submission of sufficient proof of only
the damage by an aircraft in flight, or, by any person or equipment falling
from such aircraft in flight. The liability is pinned on the operator of the
flight, which, invariably, is the registered owner of the aircraft. The heavy
liability imposed herein seems to be a dissonance, considering that only few
states have ratified the same. Strict liability underlies the legal regime,
therefore, there needs to be a clear cut link between the damage, and the act
that has resulted in the injury itself.
In addition to the aforementioned regime on hijacking, there has also been a
convention denouncing the acts of hijacking, taking hostages and terrorist
bombings, with the advent of the Convention on Offences Committed on
Board an Aircraft, 1963, the Convention for the Suppression of Unlawful
Seizure of Aircraft, 1970, and the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, 1971. This marks the
development of law way before the worlds biggest Airspace infringementcum-terror attack, the attacks on the World Trade Centre, of September 11,
2001. These conventions operate on the basic tenets of quasi-universal
jurisdiction, and create a weft of International obligations that signatory
states are bound to obey.[919]
Aerial Intrusions and attacks on Civilian
Aircrafts
It is an established rule that states have sovereign rights over their airspace.
As a consequence, therein, any intrusion not having legal sanction, nor
220

having prior permission of the state involved, amounts to an intervention. In


the Nicaragua Case,[920] the ICJ held that the territorial sovereignty of a
state is directly infringed by the act of an unauthorized flight of a states
aircraft over another states territory. Such instances justify a demand to
land, or even interception. Over the years, there have been plenty of
incidents since as early as 1945, where aerial intruder aircrafts were
destroyed. The entry of the El Al Israel Airlines into Bulgarian airspace
was intercepted, and the flight was shot down by Bulgarian warplanes. The
case taken up before the International Court of Justice was eventually
dismissed on account of lack of jurisdiction.[921] Nevertheless, the Israelis
submitted that a state at the receiving end of an aerial intrusion could work
in either or both of two ways, whereby they primarily ought to take the
initiative of informing the intruder of their perpetration of such intrusion,
and secondly, to initiate diplomatic action.
Later, in 1973, Israeli airliners shot down a Libyan aircraft, which had
strayed considerably into the airspace of Israel-occupied Sinai, contending
that Israel had warned the Libyan aircraft to land, which in turn had failed to
comply with the order. Nevertheless, after the investigation embarked upon
by the Council of the ICAO, Israels act was condemned, on the ground that
such actions constituted a grave danger to the safety of international civil
aviation, and that such acts constituted a flagrant violation of the rules under
the Chicago Convention.[922] In 1983, a Korean Airlines aircraft was shot
down by the Soviet jets, killing nearly 300 people. The aircraft had strayed
into sensitive Soviet airspace.[923] The Security Council sought to express,
by way of a resolution, the reaffirmation of the stance that international law
prohibits all acts of violence against the safety of international civil
aviation.[924] However, the USSR vetoed the same. The ICAO, in a couple
of weeks from the incident, directed the need for an investigation, and
sought to require a review of the Chicago Convention and all the allied
documents, by the Air Navigation Commission, in a bid to prevent a
recurrence of such an event. With the report in place, the ICAOs council
adopted a resolution, vociferously condemning the act of shooting down the
Korean aircraft.[925] The Council also adopted an amendment to the
Chicago Convention,[926] to Article 3 specifically, stating that contracting
states undertook to have due regard for the safety of navigation of civil
aircrafts. Additionally, annex II of the Convention also provided for
procedures to be followed in the course of interception, which were not
complied with in the Soviet incident, and also clearly enunciated the fact
that an intercepting aircraft cannot use weapons in all cases of interception
of a civil aircraft.[927] The newly inserted article, namely, A.3(a)bis states
221

that the contracting states recognize that every state must refrain from
resorting to the use of weapons against the civil aircraft in flight, and, that in
case of interception, the lives of the people on board and the safety of the
aircraft ought not to be endangered. The provision also indicates that there
should be no interpretation of the provision itself, in a manner modifying the
rights and obligations of states as set forth under the UN Charter. Further, the
next clause, i.e., clause b, reaffirmed the stance that the right of a state to
require a civil aircraft at a designated airport, where such aircraft is flying
above its territory devoid of authority, or, where there are sufficient grounds
to conclude that it is being used for any activity inconsistent with the
Convention itself.
In studying the provision itself, the first thing that strikes the reader is the
reference to weapons, as opposed to force. This is indicative of the creation
of a permissible limit, in that there may be a use of force against an
intercepting aircraft, as long as there is no use of weaponry. The provision
also indicates no difference between national and foreign civil aircrafts, in
that the provision is applicable to a civil aircraft. The second clause, in
contrast to related jurisprudence, specifically article 4 of the 1963 Tokyo
Convention on Offences and Certain Acts Committed on Board an Aircraft,
comes across as being more restrictive of the two. The latter allows room
for intervention only in the event of there being effect of the offence on the
territory of the state, or, if such offence has been committed by or against a
national or permanent resident of such state, or, if the offence is antagonistic
to the security of such state, or if the offence comprises of a breach of any
rules or regulations relating to the flight or maneuver of aircraft in force in
such state, or, the exercise of jurisdiction is necessary to ensure the
observance of any obligation of such state under a multilateral international
agreement. There have been concerns as to the continued existence of
Article 3(a)bis, particularly because the Chicago Convention, under Article
82 indicates that an abrogation of all inconsistent obligations and
agreements. Nevertheless, this need not necessarily have to happen,
particularly since the Tokyo Convention is concerned only with the offences
committed on board an aircraft, while Article 3(a)bis deals with the use of
weaponry against the aircraft itself. For all practical purposes, Article
3(a)bis has come to be treated as a norm of customary international law.
Resort to force is illegal in cases where there happens to be a situation of
distress. When an aircraft is in distress, Article 25 of the Chicago
Convention demands that there needs to be delivery of necessary assistance.
The use of force during distress is certainly outlawed, but only if the
existence of distress is made known to the intercepting forces.
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The sole exception to the prohibition of the use of force is equally


applicable in the airspace regime. States are free to use force in a bid to
protect themselves against attack, i.e., in the course of self-defense. If it is
proved that the intruding aircraft was evidently constituting by its conduct,
an act of aggression, or has carried out an armed attack, or is an act of
terrorism, the victim state is certainly allowed to pursue its cause of selfdefense, and undertake retaliatory action bearing proportionality. However,
there is always a necessity to keep to a cautious approach in such issues. A
state cannot act upon suspicions, or mere unfounded doubts. The Soviet
Union was quick to assume that the Korean Airliner was an American spy
plane. The consequences were severe, and irreparable. Therefore, actions
taken need to be properly bounded by rationality, reasonableness, necessity
and proportionality, and upon the strong foundation of clear-cut evidence.
The issue came to fore again in the context of the US shooting down an
Iranian civil airliner over the Persian Gulf, by way of its warship called the
Vincennes in 1988. However, there was no unauthorized aerial intrusion
into domestic airspace.[928] The blame was vested on the warship, by both,
the US Defense Department and the ICAO, in their reports on the incident.
[929] The core issues were the mistakes made in identifying the aircraft,
and the warnings issued to it, coupled with the already tense situation in the
area on account of the Iran-Iraq War. Scholars have suggested against
holding the United States responsible under law, since there would need to
be proof of fault beyond all reasonable doubt, and since the incident
occurred in a war zone, it was a relevant fact to be taken into consideration.
Self-defense could not quite be invoked, since necessity and proportionality,
the two factors qualifying the very right itself, were not quire fulfilled. The
ICJ took up the matter upon Irans application, but due to the settlements
entered into by both states, the matter was retracted from the ICJs list upon
receipt of notification testifying to such full and final settlement.[930]
In 1990, when Iraq invaded Kuwait, the UN Security Council acted upon the
issue. Resolution 670 (1990) went on to declare that permission for any
aircraft to take off, ought to be denied by all states from their territory,
where the aircraft was carrying any form of cargo to, or from Iraq or
Kuwait, aside of food and humanitarian supplies for medical and health
purposes, or, for the sake of the UN Iran-Iraq Military Observer Group.
States were called upon to deny permission to any aircraft seeking to land in
Iraq or Kuwait, to fly over their territory, unless it was subject to inspection
to ascertain that it bore no cargo in violation of the UN Security Council
resolution 661 91990), or, unless such aircraft had received the approval of
the Sanctions Committee, or was certified by the UN as being solely for the
223

sake of the Military Observer group.


When Cubas military aircrafts shot down two civilian planes over
international waters in 1996, there was strong condemnation from the rest of
the international community. The ICAO adopted a resolution on 28 June,
1996, reaffirming certain principles. Primarily, states have an obligation to
refrain from the use of weapons against civil aircrafts in flight, and, while
intercepting such aircraft, the lives of people on board must not be
endangered. Secondly, states are under an obligation to take appropriate
measures to prohibit the deliberate use of any civil aircraft registered in that
state, or operated by an operator who has his principal place of business or
permanent residence in such state, for any purpose that is incongruent with
the aims of the Convention on International Civil Aviation. Next, the use of
weapons against a civil aircraft in flight was incompatible with the primary
considerations of humanity, the rules of customary international law as
codified in Article 3 bis of the Convention on International Civil Aviation
and the Standards and Recommended Practices enumerated in the Annexes
of the Convention.[931] These Standards and Recommended Practices as
found under the Annexes are of relevance. Particularly important are those
relating to aviation security in Annex 17 to the Chicago Convention, which
has been subject to amendment a couple of times- Amendment 10 came into
play after the September 11 attacks, concerning international terrorism.
Subsequently, the ICAO adopted a Declaration on the Misuse of Civil
Aircrafts as Weapons of Destruction, in a bid to denounce the practices of
terrorism, using civilian aircrafts as a destructive weapon.[932]
Having explained these issues, one must remember, that the situation entirely
differs in the context of military air vehicles intruding into the airspace of
another state devoid of authorization. Self-defense would apply in such
cases, for any acts of interception, and the extent of proof would also be far
lower.
Outer Space and the Law governing it
The fundamental rule of air law is that a state enjoys absolute sovereignty
over all of the space constituting the column of airspace attached to the
territorial expanse subjacent below, belonging to the state. Originally, there
was a belief that this right of absolute sovereignty existed right up into an
unlimited length of the space above the land. However, with the evolution of
rules that governed outer space, there were limits imposed on the extent of
sovereignty a state could enjoy. The original system of absolute sovereignty
over the entire column of space above a states territory was called usque
ad coelum, which, as of today, has been considerably modified.
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224

With the first earth satellite being launched into airspace in 1957, by the
USSR, space exploration drew takers from different quarters, and began to
increase by leaps and bounds.[933] Satellites are now an integral part of
day-to-day living, what with television channels, communications,
observation networks and the like being fundamentally dependant on them.
Exploration of the moon and space expeditions to different planets, have
also come to exist as part of the norm, today, where scientific exploration
and discovery are concerned. Thanks to such advancement in science, there
has been plenty in terms of knowledge upon a variety of issues, such as
resources of the earth, the extent of the solar system, ionospheric activities,
solar radiation, orbital movements, the possibility of life on other planets,
comet and meteoric movements, cosmic rays, planetary structures and
movements.[934] With so much knowledge, and emergent curiosity in issues
arising out of the possible exploitation and use of outer space, there was a
need to regulate the conduct of states in their activities in outer space. This
paved the way for the creation of a regime comprising principles and rules
governing and regulating the interests of states concerned, in tandem with
the needs and interests of the international community at large.
Outer Space- Extent, Limits and
Definition
With the abridgement of the rule of usque ad coelum, state sovereignty
ceased to exist with airspace, since it was completely impractical to
continue with a regime of absolute sovereignty in an arena where several
states had interests in carrying out exploratory activities in outer space. It
was equally impracticable to seek the consent of each state before the
passage of satellites, or, for any satellites or vehicles orbiting at a height of
more than 100 miles above their surface. States have, no doubt, acquiesced
in the traversal of space by such satellites and space vehicles. This is
indicative of the fact that there is a limit to the extent of airspace, and all the
space above is free for use by all states, without prejudice to the interests of
any. Drawing a line to demark a limit is obviously not possible, but with
enough reliance reposed upon technology and science, it has been calculated
at 100 miles above the sea-bed.
Beyond airspace, the entire zone that has now come to be known as outer
space is regarded as res communis, i.e., common property. This implies that
no portion of outer space is subject to sovereignty of any state. States have
been vociferous in supporting this line of thinking, as has been seen in a
whole string of General Assembly Resolutions, specifically UNGA Res
1962 (XVII), which paved the way for the Declaration of Legal Principles
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Governing the Activities of States in the Exploration and Use of Outer


Space. The declaration created a regime, establishing a series of rules,
including the key rules that outer space and celestial bodies were to be left
free for exploration and use by all states on the common platform of
equality, in keeping with international law, and avoidance of national
appropriation of outer space at all costs.[935] UNGA Res 51/126 of 1996
adopted the Declaration on International Co-operation in the Exploration
and Use of Outer Space. This declaration consolidated orchestrated effects
of states, by calling for international co-operation, with special attention to
the benefit and interests of developing countries, and countries with nascent
space operations, stemming from such international co-operation,
undertaken in conjunction with countries with more advanced technology at
their disposal.[936]
With the conclusion of the 1967 Treaty on the Principles Governing the
Activities of states in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies. The treaty reemphasizes that outer space,
inclusive of the moon and all other celestial bodies are outside the purview
of national appropriation by any means or methods. In addition, the
exploration and use of outer space needs to be undertaken only with the sole
objective of being beneficial to all states. There is, however, no stipulated
boundary demarking airspace and outer space.[937]
States have also agreed, as exposited by Article 4 of the Outer Space treaty,
that they shall not place in orbit around the earth, any objects carrying
nuclear weapons, or any other kinds of weapons of mass destruction, install
such weapons on celestial bodies, or station such weapons in outer space in
any other manner. Despite such clear terms, there still seems to be quite a
considerable difference of opinion when it comes to the interpretative
connotation of the provision. The article is clear in that it bans only nuclear
weapons, and weapons of mass destruction from being deployed in outer
space, celestial bodies and the orbit of the earth. While this is a specific
provision in its own right, the core contents of Article 1 is clear in that outer
space is to be used exclusively for peaceful purposes and for the benefit and
in keeping with the interests of other states. This is, by logical construction,
one would be led to conclude that there should be absolutely no military use
of outer space whatsoever. The contradiction arises in that Article 4 is
categorically prohibitive of the use of nuclear weapons and weapons of
mass destruction, and implicitly allows the deployment of military
personnel for scientific purposes and in pursuit of peaceful considerations.
Therefore, putting the arguments down in simple terms, it is the contention
of one that all forms of aggressive military use are prohibited, while the
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opposing contention is that all forms of military behaviour are prohibited


altogether.[938] Article 6 is instrumental in pinning responsibility for all
national activities in outer space, the moon and celestial bodies included,
irrespective of whether the activities are undertaken by governmental or
non-governmental entities, and also requires the augmentation by conduct,
the assurance that outer space shall only be used in conjunction with the
Treaty and its requirements. When a non-governmental entity seeks to
embark upon activities in outer space, it is necessary that they seek
authorization and continuous supervision of by the state in question during
the operations. International organizations are also under an obligation to
adhere to the rules prescribed by the treaty, and, all the states it comprises
also need to stay in conformity with the quintessence of the treaty.[939] On
the same lines, is Article 8, which indicates that states retain jurisdiction
and control over personnel and vehicles launched by them into space.
Article 7 pins responsibility upon the states, for any damage caused to other
states that are signatory to the treaty, by way of their space objects.[940]
The 1972 Convention on International Liability for Damage Caused by
Space Objects is an addition and amplification of the aforementioned
provision. Article XII specifically provides for the payment of
compensation in keeping with the tenets of international law, and the
principles of equity, justice and good conscience, for any damage caused by
space objects in outer space. Article II articulates that there shall be
absolute liability to pay compensation for any damage caused by a space
object on the surface of the earth, or, to any aircraft in flight. Article III
hinges upon fault-based liability, or culpability based upon the element of a
dolus, for damage caused to people and property aboard a space object,
occurring elsewhere. Therefore, there are two different liability regimes,
for damage caused by a space object, in two different places. The Liability
Convention, as it is called, was called upon by Canada in 1979, when there
was allegedly damage ensuing from the Soviet Cosmos 954.[941] With a
view to serving as a mechanism to reinforce the system of state
responsibility, the Convention on the Registration of Objects Launched into
Outer Space entered into force in 1976. The Convention created a regime
encouraging the registration of pertinent and important information
concerning space objects, specifically such as their purpose, location and
parameters, with the UN Secretary General. Following this, the UN General
Assembly adopted Principles Relevant to the Use of Nuclear Power
Sources in Outer Space, in 1993, via UNGA Res 47/68. These principles
purport that the launching state is under an obligation to ensure that a
thorough, comprehensive assessment of safety is undertaken, and made
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publicly available. Where it is found that a space object seems to be


malfunctioning, along with an added risk of re-entry of radioactive materials
to the earth, such state that launched the vehicle itself, is under an obligation
to inform concerned states, and the UN Secretary General, and respond
promptly to all requests seeking extra information, or seeking consultations.
In addition, Principle 8 also lays down that states shall have international
responsibility for national activities involving the deployment of nuclear
power in outer space, irrespective of whether the activities are carried out
by governmental or non-governmental entities. Principle 9, further,
enunciates that each stat launching or procuring the launching of a space
object, and each and every state from whose territory or facility, such a
space object is actually launched, shall be internationally liable for the
damage caused by such space object so launched or procured, or
components of such objects.
A fourth agreement pertaining to space law is the Agreement on the Rescue
of Astronauts, the Return of Astronauts and the Return of Objects Launched
into Outer Space, 1968. It governs the issue of catering to astronauts in need
of emergency assistance. The key rules are that there ought to be immediate
notification of the launching authority, or, in the event that it is not possible,
a public announcement ought to be made, pertaining to the space personnel
in distress, and immediate assistance ought to be provided. Search, rescue
and prompt return are also mandated requirements under the Convention,
along with recovery and return of space objects. Following this regime, the
1979 Agreement Governing the Activities of states on the Moon and other
Celestial bodies came into existence.[942] The agreement is instrumental in
hallmarking the pursuit of demilitarization of the moon and other celestial
bodies. However, military personnel may be deployed for purely peaceful
purposes. The agreement also reiterates the stand taken by the Outer Space
Treaty of 1967. Article IV dictates that the exploration of the moon, and the
use of the moon ought to be in conjunction with the underlying notion that
there should be complete conformity with the basic tenet that it should be the
province of all mankind, and that it should serve the benefit and interests of
all states involved. Article XI carries on in the same strain, reiterating that
the moon is a natural resource, and an integral part of the common heritage
of mankind, and along with other celestial bodies, is not to be subject to
national appropriation and sovereign control. An international regime to
govern the exploitation of the moon and its resources, whenever feasible,
has been sought to be created,[943] with the basic purposes to ensure
orderly and safe development of natural resources of the moon, the rational
management of the resources, the expansion of access and opportunity to use
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those very same resources, and an equity based sharing regime for all states
privy to the regime itself, with due regard to the interests and needs of
developing states and with special consideration to other states that have
contributed to the exploration of the moon. The regime, of course, is one that
would come into play only in the event of feasibility being an accomplished
feat. Furthermore, until into force, the ban on any form of exploitation shall
continue, as explained under Articles XI(4) and VI(2), while allowing
exploration and use, thereby allowing scientific research to continue. As
with all other cases involving outer space, there is absolutely no room for
private ownership of any minerals or natural resources on the moon, or
celestial bodies.
The creation of an International Space Station, arising as a confluence from
the Agreement of 1998 between Canada, Japan, Russia, the United States,
and ten member states of the European Space Agency, has been instrumental
in consolidating international collaboration, in the design, development,
operation and use of the space station.[944] The use is entirely under the
leadership of the United States of America, and the regime has interesting
stands on intellectual property involved in outer space, as also the expanse
of criminal jurisdiction in the context of issues arising out of the use and
operation of projects in outer space.
Satellites and Telecommunications
The biggest boom in technological advancement is the emergence of
telecommunications and the use of satellites in a bid to augment the
development in telecommunications. Communication, education and
entertainment have all evolved by leaps and bounds thanks to the use of
satellites in outer space.[945] The INTELSAT agreements, or the
International Telecommunication Satellites agreements entered into world
over, constitute the legal regime in order to allow member states of the
International Telecommunications Union. These agreements enable the
member states to assist the development and establishment of the system,
despite the fact that most of the work has already been carried out by
several American companies, specifically COMSAT (Communications
Satellite Corporation). Communist countries, in 1971, came up with their
own weft of telecom satellites, named the INTER-SPUTNIK.
Exploitation of the orbital resources by satellites and telecom devices are
founded on the regime as built up by the 1967 Outer Space Treaty, and the
Telecommunications Convention and Protocols of 1973, along with a
plethora of Telecommunication Union Radio Regulations. The worldwide
radio spectrum is subject to regulation by the World Administrative Radio
229

Conferences, and by International Telecom Union.


While there is a fairly sound legal system in place, there still are too many
problems that need attention and need to be tackled. The allocation of radio
frequencies, direct broadcasting through satellites to willing and to
unwilling states, the trouble caused by usage of satellite phones are some of
the few issues. The UNESCO and the Committee on the Peaceful Uses of
Outer Space have been continuously discussing issues pertaining to the
control of material broadcast by satellites, and the subsequent issue of
protecting cultures from being swamped.[946] The use of outer space for
broadcasts and communications have created some sort of a debate between
sovereignty of states, and the right to information and allied rights that
constitute some of the basic human rights.[947] The UNESCO has been
extremely active in this regard. In 1972, a declaration was adopted, called
the Declaration of Guiding Principles on the Use of Satellite Broadcasting,
providing that all states were accorded the right to decide on the content and
form of the educational programs broadcast to their own people. Article IX
of the declaration emphasized that there needs to be prior agreement, for
direct satellite broadcast to the populace of countries aside of the one of
transmission. While the regime was clear in its own right, plenty of states
sought to have a more elaborate and properly drafted regulation.[948]
Subsequently, the UN General Assembly adopted a resolution, namely,
UNGA Res 37/92, which was called the Principles Governing the Use by
States of Artificial Earth Satellites for International Direct Television
Broadcasting. The resolution mandates that a state seeking to establish or
authorize the establishment of direct television broadcasting satellite
services are first to notify the proposed receiving state, and then undertake
an active consultation with them. It is only upon these agreements and
arrangements, that a service may be established. These services need to be
in conformity with the International Telecommunications Union. While the
ideas were generally a little less disagreeable, France, erstwhile West
Germany, USA, UK and Japan, inter alia voted against it.
The International Telecom Union has been instrumental in orchestrating
coordination on technical fronts, between the sending and receiving states,
in relation to frequency and orbital positions before direct broadcasts are
operated. The idea is to avert any adverse effect on the regulation of
broadcasts, although both, frequency and orbital positions are related and
connected.[949]
Another issue that has been rather intriguing, is the mechanism of remote
sensing, which implies the discovery and analysis of resources on the earth,
230

by deploying sensitive sensors in aircrafts and space vehicles, in a bid to


determine the extent of resources available on earth. In addition, the
mechanism has been used extensively in a bid to determine the likelihood of
weather changes, land observation and oceanic observation, along with
meteorological and geographical uses. Military observation and monitoring
has been one of the key areas where the mechanism of remote sensing has
been used. While the modality is indeed rather resourceful and filled with
potential waiting to be tapped, it is not without any accompanying ethical
considerations. The use of the information from remote sensing can be
antagonistic to the balance of power amongst states constituting the
international anarchy. The UN General Assembly Resolution, 41/65 of
1986, has been instrumental in regulating the process, by adopting as many
as fifteen core principles governing the process of remote sensing. The
principle of common benefit of mankind, and subservience of the interests of
all interested states underlies the resolution, which also encourages that
states involved in sensing ought to promote international cooperation and
protection of the environment on earth. The provision of seeking prior
permission before embarking on a sensing procedure is conspicuous by its
absence, but there are provisions encouraging consultations and
enhancement of participation.
In the light of remote sensing, information sharing is a rather intriguing
issue. A few states have sought the creation of an equitable regime for the
sake of information sharing,[950] while raising concerns about the possible
implication of use of information when in the hands of a few states. A few
states are generally accepting of the idea that states have an inherent and
inalienable right to dispose off their natural resources and all information
concerning them,[951] while still more have expressed their concerns in the
light of problems that would ensue from such use, and the likelihood of a
violation and threat to the right to information. While there has been ample
importance attached to the issue by the UN Committee on the Peaceful Uses
of Outer Space, viable solutions have been evasive.[952] The Principles on
Remote Sensing, 1986, as adopted by the UN General Assembly, have
enunciated that the sensed state shall be endowed with the right to access all
the primary and processed data, as produced from such sensing activities,
on a non-discriminatory and reasonable-cost term. Needless to say, a state
that embarks upon remote sensing shall bear international responsibility for
all its activities as they flow from such sensing.
Satellites have emerged aplenty, several from each state and their private
corporations. The influx of this much traffic in outer space has somewhat put
the geostationary orbit under considerable pressure. The geostationary orbit
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extends to an approximate extent of 22,300 miles directly above the equator,


where satellites orbit at the speed of the earths rotation. This zone is the
only portion of orbit that has the ability to provide continual contact with
ground stations, through a singular satellite, thereby qualifying as a finite
resource.[953] Satellites in geostationary orbit can only occupy a single
ring above the equator, approximately 35,800 kilometers into space. This
implies a need to space the satellites apart, which again creates
complications as there only a limited number of orbital slots available for
access, allowing therefore, a limited number of satellites can be placed in
geostationary orbit. The Bogota Declaration of 1976, as signed by Brazil,
Colombia, the Congo, Ecuador, Indonesia, Kenya, Uganda and Zaire,
indicates that the portions of geostationary orbit are part of their respective
territorial zones, over which these equatorial states exercised sovereign
rights.[954] The core contention of their argument is that the geostationary
orbit happens to be a rather exclusive gravitational phenomenon, as
generated by the portion of the earth that is occupied by them, and lies
below that belt in the orbit. This move has been met with considerable
discontent by other states that have shown their discontent through
vociferous protests.[955] These states, in refuting the claims of the
equatorial states, have gone on to assert that it is a rather wild, unscientific
observation of sorts, considering that the gravitational pull depends on the
entire expanse of the earth, and on the speed and velocity of the satellite
involved. The primary contention, however, is the common heritage of
mankind argument, that no part of outer space can be subjected to the
sovereignty of any state, and since the geostationary orbit constitutes an
integral extent of outer space itself, it cannot be appropriated by any state. A
comprehensive legal regime would oust any doubts and discrepancies.
While the field of Space Law is still in its nascent stages, it is steeped in an
era of rapid change and development. The resources available for access in
outer space are infinite, and limited only by our ability to use them in a
manner that is both fair and equitable to all states, in keeping with the
interests of all states, and in tune with the needs of the environment. When
commercial space transportation becomes widely available states at large
will find themselves in a position that would enable them to reap the
benefits of space resources. In the light of that line of thinking, considerable
debate and negotiation has been underway in pertinence to whether space
should continue to be construed as being part of the common heritage of
man, and therefore closed to any national claims and assertions of
sovereignty, or whether its legal definition should be changed to allow
private property in space. Only time can tell.
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Chapter 10- Law of Sea


The Law of Sea governs the use of the seas as is undertaken by states in
their relations with one another. Throughout history, the seas have played an
integral role in forging communication and relations between states. Aside
of this, it has been a reservoir of resources that have provided for the living
of myriads of civilizations and coastal states. With these attributes, the seas
have oftentimes been subject to use, exploration and exploitation. At the
behest of states that do not belong to the coasts, of course, importance has
been attached to the fair use of the zone that does not constitute the exclusive
territorial expanse of any state. As a consequence of so many uses being
attributed to the sea, as a resource, as a means to assist communication and
trade, there emerged a legal regime governing the law of sea.[956] The seas
constitute nearly 70% of the earth, and account for a treasure-trove of
resources for several states.
At one point of time, seas were deemed to be subjected to national
sovereignty. Specifically, the Portuguese in the seventeenth century, claimed
that large segments of the high seas as part of their territorial expanse. The
freedom of the seas doctrine limited the national rights and jurisdiction over
the oceans to a narrow belt of sea surrounding a nations coastline. The
remainder of the seas was proclaimed to be free to all and belonging to
none. The claims were rejected by Hugo Grotius, the undisputed father of
international law, who advocated the rule of res communis where the high
seas were concerned. It was as early as his scholastic work that the rule of
keeping the high seas open for all states to access and use, and retaining it
as incapable of sovereign appropriation, came to be.[957] That line of
thinking has been retained and preserved today, being given shape and
personification in the 1982 United Nations Convention on the Law of Sea as
well. The rule saw support from many a North European State, each of
which sought freedom of the seas for the sake of exploration and expansion
of commercial intercourse with countries in the East.
While this rule was exclusively for the High seas, a considerable difference
in the rules for other portions of the seas began to evolve. Waters, in the
context of international law, have been segregated into three different
portions, each of which is governed by rules exclusive to them.[958] The
233

three divisions accorded to international waters are, internal waters, the


territorial seas and the high seas. A coastal state is fully allowed to
appropriate and exert sovereign rights over a portion of the sea constituting
a maritime belt around its coastline, constituting what is known as the
territorial sea. Plenty of work has gone underway as regards the expanse of
this territorial sea, and in answering the question as to the precise position
of the line dividing the territorial seas and other zones constituting the
oceanic waters. In the early eras, the expanse of the territorial sea was
preponderant upon the ability of such state to exert dominance by using
military means from the confines of its own shore. Now, with time, states
have all sought to expand the extent of their maritime belts by subjecting
greater parts of the ocean to their exclusive jurisdictional control.
This has encouraged the creation of newer zones created, as several coastal
states have begun laying claims to portions of the high seas, appended to
their territorial seas, in the form of contiguous zones, exclusive economic
zones, exclusive fishing zones and the continental shelves, a trend which is
certainly on the rise, as states are moving towards laying claims over larger
portions of the sea. The question as to whether a particular portion of the
seas belongs to a state or not, is subject to a fact and circumstance based
analysis in keeping with the legal regime.[959]
Originally, the accepted expanse of the territorial seas was a 3 nautical mile
limit. Now, it has been expanded to extend up to 12 nautical miles. Of
course, as has already been explained, there has been a consistent assertion
of jurisdictional rights over different parts of the sea, which at one point
were deemed high seas. What was originally an unconditional perception
that there should be absolute freedom on the high seas witnessed much
modification after states began realizing the importance of the resources in
the seabed and the sea itself, way beyond the expanse of the limit
determined as the territorial sea. As a counter, in perhaps, a bid to quell
fears of sovereign control over the high seas, states have asserted the
creation of a common heritage of mankind regime over the high seas, and the
seabed itself. With so much debate and difference, there have consistently
been contradictory principles in the legal regime constituting the law of sea.
An attempt to buttress the law into more concrete form, witnessed the
occurrence of plenty of conferences culminating in the 1958 Conventions on
the Law of the Sea, following the first United Nations Conference on the
Law of the Sea, in Geneva. The Conventions included four Conventions
within its fold, namely, the Convention on the Territorial Sea and the
Contiguous Zone which came into force in 1964, the Convention on the High
234

Seas which came into force in 1962, the Convention on Fishing and
Conservation of Living Resources which came into force in 1966 and the
Convention on the Continental Shelf which came into force in 1964. Of the
four, the Convention on the High Seas mentioned in its preamble, that it was
generally a declaration of established principles of international law. The
other three conventions though did not make such a specific mention,
essentially have come to be accepted as personifying already existing rules,
and creating new rules. The 1958 conference failed to achieve a common
agreement on several issues, particularly those as to the extent of the
territorial sea. Subsequently, a second conference came into play, with the
1960 Conference on the Law of Sea. This conference also failed to arrive at
a conclusive answer to the issue. With time, several states began expressing
their general discontent as regards various rules that were laid down in the
1958 Conventions, and the extent of development in science and technology
pressed for urgent creation of rules to govern issues arising from their
onslaught.
Following this, was another Law of Sea Conference, convened in 1973,
held between 1974 and 1982, between as many as 144 states and 8
Specialized Agencies. The Conference dabbled with plenty of issues,
including several states and international organizations, and considered
several economic, political and strategy oriented issues. Several states that
emerged after colonial rule began expressing interests in securing sovereign
rights over a 200-mile region beyond the expanse of their territorial sea, and
also endeavoured to establish control over the seabed, so as to prevent
states with advanced technology and ample resources in their fold, from
extracting minerals from the resource devoid of political constraint.
Developed states had a different agenda, considering that they were
interested in safeguarding all their routes of navigation, and also opposed
any act that amounted to a weakening of their freedom of passage through
international straits. They were also vociferous in championing their desires
in pursuing and safeguarding their economic welfare, particularly by
pursuing a policy of free exploration and exploitation of the resources on
offer in the high seas and the seabed. In addition to these demands, were
another set of states in pursuit of their own interests, such as those that were
landlocked, or those that were archipelagic regions with an interspersion of
sea and land.[960] With due regard and respect being accorded to each state
and its demands, the final draft of the Convention on the Law of the Sea
turned out to be a package deal of sorts, with compromises being arrived
at between states. Slow progress was a characteristic feature of the
conference and its results, particularly because of the extent of interrelation
235

most issues bore with one another. Quite often, a state was found asserting
that it would support a proposal or a provision on a particular issue, only if
other states were willing to extend support to another proposal on another
issue, which ultimately led to the package-deal set up. A noteworthy
example, is the case where developing states agreed to the provision of a
passage via straits and to the increment of continental shelf rights, to an
extent beyond the 200 nautical mile limit stretching from the coast, in
exchange for the grant of internationalized sea-mining rights.[961] Another
reason for delay in the final outcome, was the deviance in the path of action
by the third conference. The Conference endeavoured to settle on decisions
by way of consensus,[962] as opposed to the earlier conferences which
concentrated on a majority vote mechanism.
With the final draft out in action, in December 1984, the Convention was
closed for signatures on 9 December, 1984, with a solid 159 signatures in
its cache. Article 308(1) of the Convention reads that the convention would
enter into force twelve months after the date of deposit of the sixtieth
instrument of ratification or accession. Several western states, with the
exception of Ireland, refuted signature and ratification, on the ground that
they were dissatisfied with a couple of provisions under Part XI, dealing
with the exploitation of the deep sea-bed. In an attempt to achieve a
universally acceptable solution, and to arrive at a conclusion in relation to
the objections of industrially advanced states, a couple of consultations
among interested states were conducted at the behest of the UN Secretary
General, between 1990 and 1994.[963] These rounds of talks finally
culminated in an Agreement Relating to the Implementation of Part XI of the
Convention, which in turn provided for the modification of the deep seated
sea-bed mining regime, which found considerable acceptance amongst
states.[964] The UN General Assembly on 29 July, 1994, adopted the
agreement. The agreement established a Finance Committee that would
originate the financial decisions of the Authority.
With a fairly concrete legal regime in place, very little has been left to
uncertainty. Certain provisions of the Convention codify customary norms
under international law, in the process carrying forward the same from the
1958 Convention. However, plenty of provisions in the 1982 Convention
constitute a departure from the erstwhile 1958 Convention, and from the
extant rules of customary international law. Universal acceptance has
ensured that the Convention attained the status of a prominent piece of law
pertaining to the seas.
In addition, article 311(1) of the 1982 Convention, the Convention prevails
th

th

236

over the previous four 1958 Conventions. The 1982 Convention, after
having withstood the test of time, is a comprehensive framework, governing
all forms of oceanic use, and territorial concerns not just confined to the
expanse of the seas, but also to the airspace to which the sea is subjacent,
and to the seabed and the expanse of subsoil below the seas. States and their
conduct, and the expanse of their rights and obligations under the law are
entirely governed by the convention.
To undertake a complete study of sorts, it is necessary to understand the law
as it stands, governing internal waters, the actual territorial waters, and the
expanse that forms the high seas.
Internal Waters
The internal waters of a state comprise the ports, harbours, rivers, streams,
brooks, lakes and canals, along with the water that remains on the inner,
landward segment of the baselines, which is taken into consideration in
measuring the extent of the territorial sea.[965] Essentially they imply all
those parts of the seas that are not high seas, or portions of the territorial
seas of the coastal state. The basic legal framework is governed by
customary international law.[966] The 1982 Convention, under Article 8 (1)
defines internal waters to be those waters that are on the landward side of
the baseline, from which the extent of the territorial sea is measured. The
definition corresponds to Article 5 of the 1958 Convention.
Without doubt, it is true that the sovereign control extends to the entire
expanse of the internal waters.[967] A coastal state has every right,
therefore, to prohibit entry into its ports by foreign ships, except in those
cases where ships face any difficulty on sea.[968] Earlier, there used to be a
right of innocent passage over the internal waters of a state.[969] The
difference between territorial seas and internal waters lies in the fact that
there is no right of innocent passage over the latter. Coastal states, thus,
have the right to exercise jurisdiction over foreign ships within their internal
waters to enforce their laws. This runs concurrent with the jurisdictional
powers of the flag state and the state of nationality of the perpetrator. This
set of rights can be understood in the light of a few decided cases. In R. v.
Anderson,[970] an American National who had committed an act of
manslaughter on board a British vessel on French waters, was subject to the
jurisdictional ambit of the British courts. This was upheld even though the
incident occurred within the sovereign expanse of the French Courts, and the
perpetrator had American Nationality, which entailed that the courts of both
these states had jurisdictional rights as well. As a consequence, thus, he was
considered capable of being convicted under English law. Similarly, in
237

Wildenhus case,[971] the American Courts were declared competent in


terms of exercising jurisdiction over a crew member on board a Belgian
vessel, for the murder of another Belgian national, at the time when the ship
was docked in the port of Jersey City in New York.
Coastal states have every right to forbid foreign merchant ships from
entering into their ports. Nevertheless, most states have ample interest in
pursuing their trade and economic interests, and therefore, are open to the
idea of allowing foreign ships into their ports. Having dealt with the
question of entry into the ports, the next issue is with regard to the status
such ships have, once they make their foray into the port. In the light of this
issue, it is necessary to understand the distinction between civil and
merchant ships, and warships, and ships belonging to foreign countries not
indulging in any non-commercial services, as the rules governing one differ
from that governing the other.[972]
Coastal states are permitted to apply and enforce all its legal provisions
against foreign merchant ships, within the ambit of its sovereign control, as
it extends to its internal waters. This also extends to the power granted to
port states, to embark upon enforcement action for all issues pertaining to
pollution offences occurring elsewhere.[973] Nevertheless, the rule is
applicable subject to certain exceptions. The jurisdictional ambit of the
coastal state and its courts has no exclusiveness, as the courts of the flag
state, i.e., the state to whom such ship belongs to, have equal rights of
jurisdiction in trying people for the crimes committed on the ship. Similarly,
the coastal state has no jurisdictional rights to intervene in the exercise of
disciplinary powers by the captain, in dealing with his crew. Another
restriction is couched in the principle that if a crime is committed by a
member of the crew, on the ship, and such crime does not affect the good
order of the state or its inhabitants, the coastal state has to remain out of the
issue, and allow the same to be dealt with by the flag state. This obligation
stems from respect towards the other state, and the need for ease and
convenience of procedure. Coastal states, further, cannot seek to gain from a
ships condition when it is in distress as such ships have a considerable
degree of immunity. Therefore, a coastal state cannot impose taxes and
duties in excess of all the services it renders.
A coastal state has all the authority to embark upon full enforcement
procedures against a foreign commercial vessel, found on its waters without
having prior permission. In comparison, however, the powers of the coastal
state over foreign warships are far lesser than the powers it may wield over
foreign merchant ships. Warships have immunity from enforcement. But, a
238

coastal state can demand that a warship leave its internal waters with
immediate effect. Warships are under an obligation to observe the coastal
states rules on navigation and follow all regulations dictated by it. Though
such a rule does exist, the coastal state cannot send its authorities on the
ship, and cannot carry out any activities on the ship without the Captains
permission. The crew are also immune from prosecution by the coastal state
for any crimes committed by them on board the ship, and for crimes that are
committed on the shore of the coastal state, if they were in uniform, and on
official business at the time when the crime is committed. This rule exists
unless the flag state has decided to waive its immunity. The status of the flag
state stems from the fact that the warship is deemed a direct extension of the
sovereign state.[974]
Measuring Baselines
Measurement of the expanse of the territorial sea is embarked upon, by
commencing from the low-water mark around the coastal expanse of the
state. This is a fairly long-standing principle, having evolved as a norm of
customary international law. Article 3 of the 1958 Geneva Convention on
the Territorial Sea and the Contiguous zone was the first to mention the
principle in writing. Subsequently, this was adopted as Article 5 of the 1982
Convention. In practice, the low-water line along the coast is understood to
mean that portion as is marked on large-scale charts, officially recognized
by the coastal states.[975] Most times, locating the low-water line that
functions as the baseline for measurement of the width of the territorial sea
is not difficult.[976] With the advent of the 1958 and 1982 Convention,
specifically under Article 11(1) of the former and 13(1) of the latter, the
low-water line of low-tide elevations are also capable of being used as a
baseline, in measuring the breadth of the territorial sea, if it is placed partly
or wholly at a distance that does not exceed the territorial seas breadth,
from the landmass. In the event that the low-tide elevation is located in an
area overlapping with the territorial sea of two states, both states are fully
permitted to use the part of the pertinent low-water line, with a view to
calculating the expanse of their respective territorial seas.[977] Devising
what is known as the leap-frogging mechanism, the ICJ went on to assert
that low-tide elevations may not be deemed part of the territorial expanse of
the concerned state, while analogizing with islands. It further asserted that
low-tide elevations situated within twelve nautical miles of another similar
elevation, but well beyond the territorial sea of the state, may not be put to
use in determining the expanse of the territorial sea.[978]
A lot of issues have plenty to do with the geographical structure that each
239

states coastline possesses. If there are considerably deep indentations on


the coast, or if there are plenty of islands that run corresponding to the coast,
or where it is found that bays cut deep into baselines, plenty of legal issues
and calculation-related complications arise. This has paved the way for the
creation of a different genus of rules bearing special importance, especially
when there arises circumstances welcoming the intercourse of states, such
as when foreign vessels choose to fish closer to the territorial sea. In the
words of Shaw, a more rational mode of drawing baselines would have the
effect of enclosing larger areas of the sea within the ambit of the states
internal waters, and thereby extend the territorial seas boundaries further
than this traditional mechanism.[979] A case bearing considerable
jurisprudential importance in this regard is the Anglo-Norwegian Fisheries
Case.[980] The case involved the passage of a Norwegian decree, which
delimited the expanse of its territorial sea to approximately a thousand
miles of its coastline. Instead of measuring this expanse from the low-water
line, the Norwegian mechanism involved the construction of several straight
baselines, each linking the outermost portions of the land, as they ran along
the fringes of islands and rocks (skjaergaard), parallel to the Norwegian
coast. As a consequence of deploying this method, portions of the sea that
would have normally constituted the high seas, came to be included within
the territorial ambit of the Norwegian seas. Naturally, this resulted in a
couple of disputes. When British fishing boats found themselves in the thick
of one such dispute, the United Kingdom questioned the legality of the
Norwegian mechanism of ascertaining baselines, under international law. In
its judgment, the Court concluded that it was the outer extent of the fringe of
islands that bore relevance to establishing baselines. There was no role for
low-water lines of the mainland. The decision came to be on account of the
geographical structure. The general mode of determining baselines parallel
to the cost, termed the trace parallele, was inapplicable. If the traditional
rule was applied, there would be too many complicated geometrical
constructions on account of the indented structure of the coastal expanse,
and the islands that were placed bordering the coastal expanse.[981] With
other mechanisms being inapplicable, the construction of straight baselines
drawn from outer rocks was considered on account of the fact that the
general rule is that the territorial sea ought to follow the direction of the
coast.[982] The Court also went on to hold that the method followed by
Norway was accepted for several years, after having been consistently
applied. The United Kingdom had not protested its pursuance, either. There
was nothing in the attitude of the governments to depict a belief that their
method ran contrary to the principles of international law.[983] This led the
240

court to conclude and uphold the straight baseline principle as a valid


principle. In addition, the court also provided a list of criteria that need to
be fulfilled in order for the delimitation to apply. First, the drawing of the
baselines was not to depart from the direction of the coast, since there is a
close dependence of the territorial sea upon the land. Secondly, the
baselines ought to be drawn in such a way that the sea-area lying within it
should be closely linked to the land, subject to the regime of internal waters.
Lastly, states were allowed to include economic interests and
considerations peculiar to the region involved, as evidenced by longstanding usage.[984] The principles laid down by the court have now come
to be a rather integral part of international law, over a considerably short
span of time.
In addition to these principles, useful regard may be had to Article 4 of the
Geneva Convention on the Territorial Sea, 1958, which stipulates that the
straight baseline system could be deployed in the case of indented
coastlines, or, where there are skjaergaard, provided, that the direction of
the coast is adhered to duly, and the links between the seas within the lines,
and the land subject to the regime of the internal waters is sufficient. Article
7 of the 1982 Convention adds to this, allowing room for economic
considerations of long-standing extent, wherever applicable and wherever
necessary.
Following the enunciation of these principles, plenty of states began
deploying the system, even the United Kingdom, which utilized the rules in
respect of areas to the west coast of Scotland.[985] Nevertheless, in the
course of such usage, there are plenty of instances where states have used
the principles in instances that are not quite justifiable in the eyes of law.
[986] At any rate, jurisprudence as has been indicated above, has always
supported that the rules can be applied only in the wake of the fulfillment of
the requisite conditions as have been laid down and prescribed. In Qatar v.
Bahrain,[987] the Court reiterated the importance of fulfilling the
conditions as a pre-requisite to applying the principle, and also went on the
assert that the mere fact that a state deems itself a multi-island state, or a defacto archipelago, does not warrant that it may deviate from the set of
normally applicable rules, in order to determine baselines unless the
stipulated conditions are met. Article 8(2) of the 1982 Convention carries
forward Article 5(2) of the 1958 Convention, which indicates in no
uncertain terms, that where the consequence of the application of the
straight-baseline rule is such that a great part of the territorial seas or high
seas are enclosed within the ambit of internal waters, a right of innocent
passage is presumed to exist in such waters.
241

Bays and Headlands


Bays constitute portions on the coast, which is a structure that is surrounded
by land on three sides, with water on one. By nature, bays form on a
discordant coastline which implies areas where several bands of rocks run
perpendicular to the coastline. Plenty of issues arise in relation to bays,
specifically with regard to whether the waters of wide-mouthed bays need
to be considered on par with other zones of the sea adjacent to the coast, so
that the baseline of the territorial sea would be measured from such lowwater mark of the bays coast, and whether the straight-baseline method
could be put to use to close-off the mouth of the bay, and the territorial line
could be measured thence.[988]
A generally accepted notion was that the straight closing line could be used
across the mouths of bays. However, there was quite a bit of disagreement
as to the permissible width of the bays, beyond the realm of which the rule
could not operate.[989] Article 7 of the 1958 Convention on the Territorial
Sea provided that if the distance between the low-water marks of the natural
entrance points of a bay does not exceed twenty four miles, a closing line
may be drawn between the two low-water marks, and the waters so
enclosed thereby shall be deemed internal waters. As an alternative,
however, a straight baseline of 24 miles may be drawn, as explained by
Article 10 of the 1982 Convention.
The provisions are subject to exceptions in its application. Historical bays
are not subject to the rule under the aforementioned provisions. In terms of a
definitional assessment, historical bays refer to those that are deemed as
internal waters, by the coastal state, on account of historic rights as
supported by general acquiescence, as opposed to any particular principle
under the law.[990] International law is peppered with incidents indicating
such activity. Canada professed a claim that accorded the Hudson Bay such
a status, although this was met by considerable opposition from the United
States.[991] Another, is the claim over the Gulf of Fonseca, by some
American states, which led to the Land, Island and Maritime Frontier
Dispute.[992] The ICJ mentioned that the states involved and scholars and
commentators had met common ground in agreement that the Gulf was a
historic bay. However, the definition was couched in terms of the historical
situation that surrounded the Gulf, in that it constituted a multi-state bay.
There were no agreed, nor codified rules in relation to single-state bays.
[993] In considering the relevant specific historic circumstances, the Court
concluded that beyond the long-accepted three mile belt for the coastal
states, there were historic waters that were subject to a regime involving
242

co-ownership between three coastal states,[994] and went on to assert the


tripartite presence at the Gulf.[995] Other states vessels enjoyed a right of
innocent passage in the waters couched beyond the coastal belt with a view
to ensure access to any of the three states.[996]
Where waters are outside the statutory limits for inland waters, sovereignty
necessary to establish a title to the historic bay, is tantamount to the
exclusion of all foreign vessels and navigation from the area claimed. This,
of course, needs to be augmented by the acquiescence of states.[997] In a
case concerning the Cook Inlet, the United States Supreme Court went on to
hold that Alaska had not fulfilled the requisite terms, and that the inlet was
not regarded a historical bay under the Soviet or American, or Alaskan
sovereignty. As a consequence, the federal state bore the right to subsurface
the inlet.[998]
Another relevant issue was the claim made by Libya, over the Gulf of Sirte,
called Sidra, deeming it a historical bay. Consequently, it sought the
drawing of a closing line bearing nearly 300 miles in terms of length, in
1973. In retaliation, plenty of states protested, of which the United States
and states of the European Community were part.[999] The United States
was known to have asserted as the basis of its protest, the international law
standards of past, open, notorious and effective exercise of authority, and
the acquiescence of foreign nations,[1000] and indicated that it had, on
several different occasions, sent naval and air forces into the Gulf, in a bid
to maintain its opposition to the claim raised by Libya, and to continuously
assert that the portion of the seas that were the waters of the Gulf, were in
fact, constituent waters of the high seas.[1001]
Islands and Archipelagos
Islands are also governed by the general principles of law that have been
enunciated heretofore, in relation to the measurement of the territorial sea.
The 1958 Convention defined islands under Article 10(1) as areas that
consisted of naturally formed land, surrounded by water, which is
considerably higher than water at high tide. This has also been carried
forward under Article 121(1) of the 1982 Convention. The essence is, that
islands can also have a territorial seam a contiguous zone, an exclusive
economic zone and a continental shelf.[1002] When there is a continuous
chain of islands, each being less than about 24 miles apart from one another,
there occurs the creation of a continuous band of territorial sea.[1003]
Article 121, of the 1982 Convention, under clause 3, establishes that rocks
that cannot sustain human habitation or economic life of their own, shall not
have an exclusive economic zone or a continental shelf. Needless to say,
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this provision is not without its own set of complex issues. There have been
questions aplenty about where the precise dividing line between rocks and
islands lies, and what the meaning of the phrase economic life of their
own actually is. Several states have come forth with rather debatable
claims.[1004]
Another area of academic relevance is Archipelagos. Archipelagic states
are essentially states comprised of many small archipelagos and groups of
islands. Many issues have crept up in the wake of efforts of such states in
drawing straight baselines around the outer limits of their islands, in an
attempt to box in their entire territorial expanse. This has been of
particular relevance in Indonesias context, where they have tried to create a
mechanism to keep all their island-appendages within the ambit of a straight
baseline. This has, obviously, met ample protest, on account of the fact that
rather large areas originally deemed the high seas, have begun falling under
the sovereign ambit of the state. Archipelagos were not dealt with by the
1958 Convention. But the 1982 Convention, under Article 46(a) defines an
archipelagic state as being a state wholly constituted by one or more
archipelagos, and may include other islands. The next clause, i.e., clause
(b), establishes that archipelagos are a group of islands, inclusive of parts
of islands, the interconnecting waters and other national features that are
closely related to the islands, waters, and other natural features, all forming
an intense geographical, economic and political entity, or which historically
have been regarded so. The definition is not entirely ambiguous, but the
question is as to whether they would include states within its ambit, if they
objectively fulfill the requisites under the provision, which, if so, would
bring within the definition, Japan and the United Kingdom.[1005] In Qatar
v. Bahrain,[1006] Bahrains chief contention was that it constituted a de
facto archipelago, and therefore, it could declare itself an archipelagic state
under the ambit of the 1982 Convention, and allow the straight baselines
rule to apply to itself as under Article 47. The Court went on to note that the
claim was not raised as part of Bahrains formal submissions to the court,
and therefore, it had no obligation to comment or decide upon the issue.
Article 47 outlines the basic rule that a state may draw a straight baseline
joining the outermost points of all the outermost islands, and drying reefs of
the archipelago. The line thence drawn would function as a mechanism to
serve as the baselines for all purposes. Article 47 encourages the fulfillment
of certain conditions while the measurement is carried out. First, an
archipelagic State is permitted to draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the
archipelago provided that within such baselines are included the main
244

islands and an area in which the ratio of the area of the water to the area of
the land, including atolls, is between 1 to 1 and 9 to 1. Secondly, the length
of such baselines shall not exceed 100 nautical miles, except that up to 3 per
cent of the total number of baselines enclosing any archipelago may exceed
that length, up to a maximum length of 125 nautical miles. Third, the
drawing of such baselines shall not depart to any appreciable extent from
the general configuration of the archipelago. Fourth, such baselines shall not
be drawn to and from low-tide elevations, unless lighthouses or similar
installations which are permanently above sea level have been built on them
or where a low-tide elevation is situated wholly or partly at a distance not
exceeding the breadth of the territorial sea from the nearest island. Fifth, the
system of such baselines shall not be applied by an archipelagic State in
such a manner as to cut off from the high seas or the exclusive economic
zone the territorial sea of another State. Sixth, if a part of the archipelagic
waters of an archipelagic State lies between two parts of an immediately
adjacent neighbouring State, existing rights and all other legitimate interests
which the latter State has traditionally exercised in such waters and all
rights stipulated by agreement between those States shall continue and be
respected. Seventh, for the purpose of computing the ratio of water to land
under paragraph l, land areas may include waters lying within the fringing
reefs of islands and atolls, including that part of a steep-sided oceanic
plateau which is enclosed or nearly enclosed by a chain of limestone
islands and drying reefs lying on the perimeter of the plateau. Eighth, the
baselines drawn in accordance with this article shall be shown on charts of
a scale or scales adequate for ascertaining their position. As an alternative,
lists of geographical coordinates of points, specifying the geodetic datum,
may be substituted. Ninth, the archipelagic State shall give due publicity to
such charts or lists of geographical coordinates and shall deposit a copy of
each such chart or list with the Secretary-General of the United Nations.
Within the baselines so drawn, all the water enclosed, are called the
archipelagic waters, as under Article 50, and the state has sovereignty over
these waters, as under Article 29, with due respect to agreements and
traditional fishing rights, as required by article 51. All states vessels enjoy
the right of innocent passage through archipelagic waters, as seen under
Article 52, and the same runs for all aircrafts in respect of the airspace
above the archipelagic state, as explained under Article 53. These
provisions have all attained the status of customary international law, as
was pointed out by the United States in its response to Indonesias closure
of the Sunda Strait and the Lombok, which indicated that the 1982
Convention, in its archipelagic provisions, actually reflected customary
245

international law. Therefore, any intervention with such innocent passage


would amount to a case of violation of international law.[1007]
The Territorial Sea
Sovereign Control
Territorial waters are defined as a belt of coastal waters extending up to 12
nautical miles, which is an equivalent to 22 kilometers, stretching from the
baseline of a coastal state.[1008] It is regarded as the sovereign territory of
the state, and foreign ships, both military and civilian in nature, are allowed
a right of innocent passage through it. The right of sovereignty extends to the
airspace above, and the seabed subjacent to it.
For a considerable amount of time, there has been ample disagreement as to
the extent of the territorial sea. In early days, the cannon-shot rule was put to
use in order to determine the width of the territorial sea. This later changed
into the 3-mile rule, which occurred somewhere in the 19 Century. The
United States and the United Kingdom, and any deviation therefrom could
only see justification if they bore historical rights or received general
acquiescence, as was the case in the context of the Scandinavian assertion,
seeking a claim over territorial sea as extending up to 4 miles.[1009]
Several states advanced their own claims, each asserting that they had
sovereign rights and jurisdiction over a certain expanse over the sea that
they deemed, their territorial sea. States sought rights over vast expanses of
the sea, for fishing, for customs and immigration reasons, for exploration
among many other reasons. After the First World War, there was a clear
distinction made, between claims sought to enlarge the width of the
territorial sea, and in relation to specific zones in the sea. The three mile
rule did not see the light of day, particularly on account of other contending
assertions overtaking its practical applicability. The 1958 Convention did
not broach the issue, because there was no agreement amongst the states.
The 1960 Geneva Conference rejected the proposal advanced by the United
States and Canada, which required the creation of a six mile territorial sea,
along with an exclusive fisheries zone extending for another 6 miles.[1010]
The 1982 Convention notes that states have the right to establish the expanse
of the territorial sea, extending not beyond 12 nautical miles as commencing
from the baselines. State practice has been in conjunction with the rule.
[1011]
When there ate states with opposite or adjacent coasts,[1012] the question
of delimitation of territorial seas and their extent therein, poses a different
set of issues. Article 15 of the 1982 Convention asserts that there is the
th

246

basic 12 nautical mile limit, along with which, where there is no agreement
that has been arrived at between the state, neither state is allowed to extend
its own territorial line beyond the median line drawn therein, such that
every point of such line is equidistant from the nearest point on the
baselines, from which the territorial sea is measured.[1013] The provision
has no application in cases where it is necessary to delimit the territorial
seas in a different manner, stemming perhaps from any historical titular
right, or, under any special circumstances. In Qatar v. Bahrain,[1014] it
was held that Article 15 was a codification of a norm of customary
international law.[1015] It was called the equidistance or special
circumstances principle, and the Court asserted that the most logically
accepted and widely practiced approach was to first draw provisionally, an
equidistance line, and then, to consider whether that line ought to be
adjudged in the light of special circumstances.[1016]
The territorial sea bears considerable juridical overtones.[1017] Plenty of
theories have been advanced, in a bid to explain the legal character of the
territorial sea of the coastal state. Some deem it fit to consider the territorial
sea a part of res communis, subject to certain rights reserved at the behest
of the coastal state and its territorial rights of sovereignty, along with the
permissible exercise of the right of innocent passage by any foreign vessel.
[1018] Despite the existence of such theories, it is indisputable notion that
coastal states enjoy sovereign rights over their maritime belts, and can
exercise extensive jurisdictional control in keeping with international law.
There is only one restriction on such a sovereign power as is wielded by the
coastal state, which is the right of vessels belonging to other states, to
innocent passage through the territorial sea of the coastal state. The
territorial sea is thus, different from the internal waters of the state, in that
the latter can enjoy untrammeled rights of sovereignty, completely devoid of
exception.
Originally, Articles 1 and 2 of the Convention on the Territorial Sea, 1958,
which have subsequently been carried forth onto the 1982 Convention,
under Article 2, state that the coastal state has sovereignty rights over its
territorial sea, the airspace above and the seabed and subsoil subjacent
below. This is, of course, in keeping with the core tenets of international
law and other provisions of the convention itself. The territorial sea, thus, is
invariably an important component of the land territory, to which the state is
itself, bound, therefore, a cession of land would automatically be inclusive
of any territorial waters appended to it.[1019] Coastal states are free to
exclude foreign nationals and fishing vessels from entering its territorial
sea, unless it is bound by an agreement to the contrary. It may also prohibit
247

and exclude foreign nationals from dealing with coastal trading or cabotage,
and may subsequently reserve the activities exclusively for its own citizens.
Coastal states are also given the right to exercise control over customs and
security issues. All of these powers, and the general right of a coastal state
in exercising its sovereignty and jurisdictional control, are entirely subject
to the municipal laws of the state, and the international legal realm and all
its restrictions.[1020]
Innocent Passage: An exception to
Sovereignty
As has been explained heretofore, the sole exception to territorial
sovereignty is the right of innocent passage, which allows foreign merchant
ships to pass unhindered through the territorial sea of a coast. This rule does
not extend to warships, and has been accepted as a part of customary
international law. The doctrine is not a watertight compartment of sorts,
since it is open to interpretation and evaluation. What needs to be
ascertained is to what extent the passage itself is innocent.[1021] The right
of innocent passage was explained under Article 14 of the 1958 Convention
on the Territorial Sea, which states that the coastal state must not in anyway,
hamper innocent passage, and, must publicize danger to navigation as may
arise in the territorial seas, of which it is aware. In terms of a definition,
passage itself implies navigation through the territorial waters of the sea.
The idea is to assist the process of crossing the seas, without entering the
internal waters of the state. The process may include temporary stoppages,
only in the event that either, it is in the course of ordinary navigation, or,
there is some hindrance to ordinary navigation, such as by way of a case of
distress or force majeure.[1022] Naturally, a coastal state cannot impose
charges for passage, unless it is a payment to be tendered in the course of
rendering a service. Ships engaged in passage are supposed to comply with
all the regulations of the coastal state, covering obligations such as
navigation in consistency with international law. Innocent passage,
essentially refers to passage that is not antagonistic to the peace, security
and order of the coastal state, and all passage that is in keeping with the
rules, regulations and laws as dictated by the coastal state. Submarines are
also under an obligation to obey these rules, particularly in that they have to
depict their flag besides navigating on the surface. Anything in contravention
of this expected standard indicates the end of innocence in passage.
When such passage ceases to be innocent, the coastal step is fully permitted
to take all the necessary steps to prevent it, or to repel it. Where ships are
seen to proceed towards the internal waters, the coastal state is free to act in
248

a manner that shall put to an end, any conduct that amounts to a breach of the
rules of admission of ships into the territorial waters. In the light of such
security concerns, the state is entitled to suspend all innocent passage, until
the threat to its security lifts. The suspension ought to be published, and
should keep out of all international straits over which it cannot lawfully
extend.
The 1982 Convention elaborates upon the principle under Article 19(2),
where it explains certain examples of prejudicial passage. Among these
examples, are included a few such as the use of, or threat to use force, use
of weapons and indulgence in weapons practice, spying, breach of customs
or fiscal regulations or sanitation and immigration regulations, pollution
undertaken willfully, fishing, research and survey activities and intervention
with coastal communications. It also finishes off with a considerably wide
clause, stating any activity not having a direct bearing on passage. By
indicating a fairly large list, the provision points in the direction of the fact
that it is the violating state that has an obligation to prove that it did not
violate innocent passage, rather than, in fact, the coastal state suggesting that
the passage was not innocent. Article 24 of the 1982 Convention stipulates
that coastal states are not to hamper the right of innocent passage, by coming
down with requirements and rules and clamping them on the state, causing in
the process, the net effect of actually impairing, or sometimes, even denying
the right of innocent passage. Article 17 of the erstwhile 1958 Convention
on the Territorial Sea, subsequently incorporated under Article 21(1) of the
1982 Convention, stated that all foreign ships, in the course of their exercise
of innocent passage, are under an obligation to comply with the rules, laws
and regulations as enacted by the coastal state, specifically those concerning
navigation and transportation. Article 21(1) augmented this rule by
specifying that the coastal state could adopt laws and regulations in relation
to the safety and navigation of maritime traffic; the protection of
navigational aids and facilities and other facilities or installations; the
protection of cables and pipelines; the conservation of living resources of
the sea; the prevention of infringement of the fisheries laws and regulations
of the coastal state; the preservation of the environment of the coastal state
and the prevention, reduction and control of pollution thereof; the marine
scientific research and hydrographic surveys and the prevention of
infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal state. When a breach of such laws and rules
occurs, the offending state is rendered liable to prosecution. However, a
breach of the law does not take away the innocence from the passage, except
where such breach is accompanied by the infringement of article 19.
249

When the ships involved are wartime ships, traversing waters in peacetime,
there is much controversy on the position of law.[1023] The subject was
entirely omitted by the 1958 Convention on the Territorial Sea, and was
brought up for discussion in a series of articles called the Rules applicable
to all ships. Scholars have asserted that warships are included, by pure
inference, under the ambit of this rule, but, myriads of other scholars believe
that the issue cannot be deemed to be covered with omission and inference,
considering how important the principle itself is. Several states had
reservations to the 1958 Convention on the Territorial Sea, in the process
rejecting the principle of innocent passage in its applicability to warships
during peacetime. Most Western states campaigned for applying the innocent
passage rule to warships, considering their powers over the naval side. As
a natural corollary, opposition arrived from the quarters involving states
belonging to the Third World. With the Cold War drawing to an end, in
1989, the United States and the USSR, issued what was called the Uniform
Interpretation of the Rules of International Law Governing Innocent
Passage.[1024] The rules were an affirmation of the extant rules of
international law, as enumerated under the 1982 Convention. The rules
indicate that all ships, inclusive of warships, regardless of cargo, armament,
or means of propulsion, enjoy the right of innocent passage through the
territorial sea in accordance with international law, for which, neither prior
notification nor authorization is required. The rules also explain that the
ships are all in innocent passage, when they are not involved in any activity
as under Article 19(2). In addition, the rules also indicate that all ships in
passage are under an obligation to comply with the laws of the coastal state,
as in line with articles 21, 22, 23 and 25 of the 1982 Convention, provided,
of course, that such laws and regulations have no effect of denying or
impairing the exercise of the right of innocent passage. By stating thus, in
effect, these rules have watered down the expanse of Article 19(2), into
being exhaustive. Therefore, a ship that passes through the territorial sea
that is not involved in any of the activities enumerated therein is fully in
innocent passage. By not segregating the rules as applicable to one kind of
ships and not to another kind, it is ensured that even warships enjoy a right
of innocent passage through the territorial sea, and there is no need for prior
notification or authorization whatsoever.[1025]
Crimes, Jurisdictional Rights and
Foreign Ships
When a ship passes through the territorial seas of a state, the coastal state is
free to exercise criminal jurisdiction in pertinence to effecting the arrest of
any person, or in relation to conducting investigative activities in any issue
250

relating to a crime committed on board the ship, only in specific situations.


Article 27(1) of the 1982 Convention, which was originally Article 19(1) of
the 1958 Convention on the Territorial Sea, provides for these specific
situations, which are four in number: primarily, if the consequences of the
crime extend to the coastal state, or, secondly, if the crime is of a nature that
is likely to disturb the peace of the country or the good order of the
territorial sea, or, thirdly, if the assistance of the local authorities has been
requested by the master of the ship or by any diplomatic agent or consular
officer of the country of the flag state, or, lastly, if such measures are
necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances.
If the ship passes through the territorial sea, after having left the internal
waters of the coastal state, then the state has the authority to act in whatever
manner as prescribed by its laws in relation to arrest or investigation on
board a ship, and is not curbed by the limits enshrined under Article 27(1).
There is, however, a limit on the authorities of the coastal state, in that they
cannot proceed to act where the crime was committed before the ship
entered the territorial sea, providing the ship is neither entering, nor has
already entered the internal waters. Article 28 of the 1982 Convention
further puts a bar through article 28, which stipulates that the coastal state
should not stop or divert a foreign ship, passing through its territorial sea
for the purpose of exercising civil jurisdiction in relation to a person on
board the ship, nor levy execution against or arrest the ship, unless there are
obligations assumed by the ship itself in the course of or for the sake of its
voyage through the coastal states waters, involved, or, unless the ship
passes through the territorial sea on its way from the internal waters. These
rules do not put a spoke in the right of a state to levy any execution against
or to arrest, for the sake of any civil proceedings, a foreign ship lying in the
territorial sea or passing through the territorial sea after leaving the internal
waters, as was explained under Article 20 of the 1958 Convention on the
Territorial Sea and the Contiguous Zone.
When it comes to jurisdiction of a coastal state, warships are immune from
the jurisdictional ambit of the coastal state. This also goes for all
governmental ships operated for non-commercial reasons. However,
Articles 29 to 32 of the 1982 Convention, as a reproduction of Articles 21
tp 23 of the 1958 Convention, create a legal regime, where it is also
possible that they may be asked to leave the territorial seas immediately for
any act of breach of rules governing the passage, and, responsibility will be
clamped down on the flag state, which will consequently bear all charges
for loss or damage suffered as a result of their acts.
251

Maritime Delimitation
The delimitation of the territorial sea, in relation to that portion of the
territorial sea between adjacent or opposite states, is based on the rule of
equidistance, or the rule of special circumstances. This was originally
provided for under Article 12 of the 1958 Convention on the Territorial Sea,
and was brought into Article 15 of the 1982 Convention on the Law of the
Sea. Delimitation of the continental shelf and the delimitation of the
exclusive economic zone share a close relationship between adjacent or
opposite states.[1026]
International Straits
As a rule, there shall be no suspension of the innocent passage as accorded
to foreign ships through international straits, i.e., straits used for
international navigation, between one part of the high seas and another part
of the high seas, or, the territorial seas of a foreign state. This was
enunciated under Article 16(4) of the 1958 Convention, and was also given
a clarifying dimension by the Corfu Channel Case.[1027] The case
involved a couple of British warships that were passing through straits,
when they were fired upon by Albania. A couple of months after that
incident, a force of cruisers set sail through the North Corfu Channel, and
after striking mines, two of these cruisers were destroyed. The British
authorities then swept the Channel, approximately three weeks after the
incident, to clear it of all the mines put to use. The Court observed that
states in peacetime have a right to send their warships through straits used
for international navigation between two parts of the high seas without the
previous authorization of a coastal state, provided that the passage is
innocent. The Court also noted that the minesweeping activities as embarked
upon by the British was a violation of Albanian sovereignty, though the
previous passages by the British naval fleet were legal.
In keeping with the legal issues emanating from the dispute, the 1982
Convention emerged with a new regime for straits put to use for
international navigation. The core principle went on to reaffirm that the
legal status of the waters belonging to the international straits, were
unaffected by the provisions pertaining to passage, as explained under
Articles 34 and 35. Straits were covered by a new right of passage being
granted for states, for the sake of international navigation between a part of
the high seas or an exclusive economic zone, as explained by article 37.
Passage through the strait, to enter or leave a state bordering the state is not
prevented, and, there is room to exercise the freedom of navigation and
overflight for the sake of continuous and speedy transit of the strait itself, as
252

enunciated by Article 38. Article 44 interjects with the rule that states
bordering straits in question are not to hamper or suspend transit passage.
The right over the international straits is not absolute, it is subject to three
exceptions, namely, one, under Article 36, where a route exists through the
strait, through the high seas, or economic zone; two, as under Article 38(1)
in the case of a strait formed by an island of a state bordering the strait and
its mainland where there happens to be seaward of the island, a route
through the high seas or economic zone of similar navigational convenience;
and, lastly, under Article 45, where straits connect an area of the high seas
or economic zone with the territorial sea of the third state. Ships and
aircrafts are obligated to observe the pertinent international regulations. At
the same time, they are under an obligation to abstain from indulging in all
activities aside of those that are incidental to their normal methods of
continuous and expeditious transit, unless otherwise rendered necessary on
account of distress and force majeure, as explained under Article 39. In
principle, there is no formal mandate for innocent transit passage. But,
because of Article 38 and 39 and the effect emanating therein, it seems as
though there is a right of transit passage, subject to the same constraints.
Under article 45, the innocent passage regime will bear application in
relation to straits put to use for international navigation, as excluded from
the transit between a part of the high seas, or the economic zone and the
territorial seas of a foreign state. In all these cases, there will be no right of
suspension of the right to innocent passage.[1028] The transit passage
regime permits the passage of aircraft, and, perhaps for underwater
submarines. There are lesser restrictions on the conduct of ships during
passage, and consequently lesser power for the coastal state to clamp down
on control of passage, as opposed to instances of innocent passage.[1029]
Transit passage cannot be suspended for security, or for any other reasons,
as given under Article 44.
Since state practice is still rather unclear, it is still unclear whether the right
of transit passage has evolved into customary international law. Some states
have asserted explicitly, the rights of passage through international straits,
while some have not been so clear in their actions.[1030] Several
international straits are subject to special regimes, and as a consequence,
these provisions do not apply to such straits.[1031] A case in point is the
Montreux Convention of 1936, dealing with the Bosphorous and
Dardanelles Straits, which provided for the exercise of complete freedom
of transit in respect of merchant vessels during peacetime. It also permitted
freedom of transit during daytime for warships that gave prior notification to
Turkey, before their travel.[1032]
253

Contiguous Zones
Over the years, it has been found that states have asserted claims over
specific zones of the high seas, seeking to exercise control and certain rights
over these parts. With these claims coming into place, considerable issues
came to fore in relation to the extent of freedom of the high seas, because the
jurisdictional control of a couple of coastal states began eating into areas of
the high seas adjoining the territorial sea, of course, only for specified
purposes. This led to the creation of what is known as the contiguous zone,
considering that it comprises the region contiguous with the territorial sea of
the coastal state. The restriction of the freedom of the high seas in these
regions occurs in a bid to pursue varied interests of different states, such as,
the prevention of customs infringements, immigration laws of the coastal
state, conservative measures embarked upon by the coastal states in respect
of different species of marine life, sanitary rules of the coastal state, or even
in pursuit of preserving the coastal states interests in the marine resources
in the zone, as exclusive.[1033]
The purpose of delineating a contiguous zone is to ensure the exercise of a
states interests in the zone concerned, without compromising on the extant
law relating to demarcation of territorial waters by extending it into the high
seas. If such a consequence were to be permitted to exist as it emanates,
there would virtually be no end to impinging upon the high seas, perhaps
leading to an anomalous instance where only coastal states would hold
rights over the seas, claiming large expanses as belonging to them under the
titular head of territorial sea. Therefore, the creation of the contiguous zone
has allowed a finding of an appreciable middle ground between the coastal
states interests in protecting its vital and important interests without
expanding on the territorial seas extent, and, the interests of other sea-faring
nations in maintaining the freedom of the high seas, balancing divergent
claims in the process. While this has been the direct implication of the
contiguous zone and its existence, one cannot ignore the fact that the
extension of sovereign rights to an area outside the territorial sea has in fact,
been deemed as affecting municipal law, and a pursuance of attempts to
maintain and hone economic interests of coastal states in relation to
resources.
Starting out as early as in the 1930s, the idea of creating the contiguous zone
emanated from the hand of Gidel, who suggested the doctrine as practicable.
[1034] The principle was then incorporated under Article 24 of the
Convention on the Territorial Sea, which spoke of the fact that in the zone of
the high sea contiguous with the territorial sea, the coastal state may
254

exercise control necessary to prevent infringement of customs, fiscal,


immigration or sanitary regulations within its territorial sea, and to punish
infringement of the aforementioned regulations committed within its territory
or territorial sea. The provision markedly differentiated claims of full
sovereign rights from rights enunciated above, by referring to the zone as a
part of the high seas, and by explicitly limiting the extent of use for the two
above listed purposes. Contiguous zones are not automatically appended to
the territorial sea. They have to be specifically claimed, as opposed to the
territorial sea which naturally appends to the coast.
With the 1958 Convention laying down specifics, there emanated a new
trend since. Before the 1958 convention, the importance attached to sanitary
and immigration laws as reasons for the enjoyment of rights over the zones
of the high seas were not practically enforceable. Customs zones, however,
have had relevance and considerable importance in History, and constitute
customary international law. State practice also supports this trend,
considering how several states have legislated on the issue, passing laws
seeking to enforce customs regulations over several years, well outside the
ambit of their territorial waters and within certain areas, in a bid to
suppress smuggling and black-marketing, when the territorial seas were
restrictively limited to 4 miles.[1035] At that juncture, contiguous zones
were limited to 12 nautical miles from the baselines, which, at present, is
the measurement for the territorial sea. This led to the conclusion that if a
state had already laid claims to the territorial sea as extending up to 12
miles, they would not have any right to lay claims over a contiguous zone.
As a consequence of this restriction, and in addition to restricting
jurisdictional control only to the issues as enunciated under Article 24 of the
1958 Convention on the Territorial Sea, the importance of the contiguous
zone went downhill in contemporary international relations.
The concept was salvaged with the onslaught of Article 33 of the 1982
Convention on the Law of the Sea, which allowed a state to claim a
contiguous zone extending up to as much as 24 nautical miles from the
baseline. Though the expanse was increased, the grounds for laying those
claims were retained, as were enunciated under the 1958 Convention on the
Territorial Sea. Another point of difference between the provision as it
existed under the 1958 Convention and the prevalent one as under the 1982
Convention on the Law of the Sea is the fact that the former construed the
contiguous zone as part of the high seas. The latter convention construes the
contiguous zone as constituting a part of the exclusive economic zone,
considering that Article 55 of the 1982 Convention asserts that the exclusive
economic zone is the area beyond and adjacent to the territorial seas.
255

The Exclusive Economic Zone


As article 55 of the 1982 Convention defines the term, an exclusive
economic zone simply refers to the area beyond and adjacent to the
territorial seas. The zone has evolved as a consequence of a considerably
pursued set of tentative claims in pertinence to fishing zones.[1036] The
process crystallized finally in the drafting of the 1982 Convention, and
stands out as marking a compromise between states that demand a 200-mile
long territorial sea and the states that wish to have restricted coastal
sovereignty over the seas.[1037] The 200 nautical mile limit for the
exclusive economic zone came to be on account of several states clamouring
for exclusive fishing zones.
While the 1958 Convention on the Territorial Sea loosely left the issue
allowing the exercise of sovereignty in restricted instances in the contiguous
zone, as under Article 24, virtually nothing was done in order to explain and
lay down the expanse of the region. The Convention did not permit
exclusive fishing rights in the contiguous zone. Since as early 1960, states
began claining exclusive fishery zones, well beyond the expanse of their
territorial seas.[1038] Despite this, a couple of states did assert their claims
over the sea, seeking fishing rights over large expanses of the sea. The
European Unions assertion of its claims came to light through their
European Fisheries Convention, 1964, which was implemented by enacting
the Fishing Limits Act, 1964, in the United Kingdom. Both pieces of
legislation provided for the right to fish and to permit exclusive jurisdiction
in issues relating to fisheries, extending into a 6-mile wide belt, from the
baseline of the territorial sea. They also stated that within the belt extending
from 6 miles and 12 miles from the baseline, other states privy to the 1958
Convention on the Territorial Sea were entitled to fish, with the proviso that
they should have habitually pursued fishing interests between January, 1953
and December, 1962. The underlying idea was to ensure a balance between
the interests of coastal states and other states who enjoyed customary fishing
operations in the relevant area. Eventually, since states came to accept the
fact that a 12-mile expanse for the exclusive fishing zone, either for
themselves or other states, the rule emerged as a part of international law.
In the Fisheries Jurisdiction Cases,[1039] the meaning of the concept of
the fishing zone was explained as being the area in which a state may assert
a claim of exclusive jurisdiction, independent of its territorial sea for the
purpose. The court identified that the norm had attained the status of
customary international law, specifically after the 1960 Geneva Conference,
and also stated that the extension of that fishing zone up to a 12 mile limit
256

starting from the baselines, was now a generally accepted norm. While this
is still a norm accepted without any doubt, there is still an unanswered
question as to whether the zone beyond the 12 mile expanse exists or not.
Several proposals began making their appearance, where states submitted
their issues relating to the long-term effects of the depletion of fish stocks in
and around their coastal states. Of these claims, in 1972, the claim raised by
Iceland indicated that it asserted its rights over an expanse of 50-miles into
the sea, under the guise of an exclusive fishing zone. This led to the case
where the UK and the erstwhile Federal Republic of Germany made a
reference to the ICJ, asking the court to specifically adjudicate upon the
status of Icelands claim, in keeping with the requirements of international
law. In dealing with the dispute, the court did not address the question.
Instead, it went on to hold that Icelands fishing regulations that extended to
the zone, did not bind the UK and the Federal Republic of Germany. This
was essentially on account of the fact that neither state acquiesced in the
regulations and their applicability. Nevertheless despite there being no
explicit ruling on the issue raised, by implication, the decision of the ICJ
came across as being based on the factual notion that there was no rule in
international law that allowed for the establishment of a 50-mile fishing
zone. On the other end of the spectrum, it appeared clearly that there was no
prohibition on claims extending beyond 12 nautical miles, and if anything,
the validity of these claims would hinge upon the factual aspects of the case,
and the extent of recognition offered by other states. The Court also
emphatically mentioned the importance of the rule of preferential rights,
which constituted a part of customary international law. Preferential rights
were explained as arising where the coastal state was in a situation
involving special dependence on the coastal fisheries and fishing resources
as they existed in the coastal waters of the state.[1040] Though the concept
was given much value by the ICJ, it was overtaken by developments that
emerged in the courses of the UN Conferences, and the final product in the
form of the 1982 Convention on the Law of Sea. The subject as it stands, is
now dealt with under Article 55 of the 1982 Convention, which states that
the exclusive economic zone is an area that is beyond, and adjacent to the
territorial sea, but subject to the specific legal regime as is established
under the Convention. Following at its heels is Article 56, which states that
coastal states, inter alia, enjoy certain rights in relation to the exclusive
economic zone. Clause (a) states that it can enjoy sovereign rights for the
sake of exploring and exploiting, conserving and managing natural
resources, whether living or non-living, of the waters superjacent to the
seabed and of the seabed and its subsoil and with regard to other activities
257

for the economic exploitation and exploration of the zone, such as the
production of energy from the water, current and winds. Clause (b) permits
the exercise of jurisdiction in relation to the architecture and use of artificial
islands, installations and structures, marine scientific research and in
relation to the protection and preservation of the marine environment.
As for the expanse of the exclusive economic zone, Article 55 states that the
zone commences from the outer limit of the territorial sea and Article 57
restricts the maximum extent by establishing that the exclusive economic
zone shall not extend beyond 200 nautical miles from the baselines, from
which the expanse of the territorial sea is measured. That leaves a
calculated expanse of 188 nautical miles as being the expanse of the
exclusive economic zone, in all cases where the territorial sea extends up to
12 nautical miles. Delimitation of the expanse is important in all cases
where the expanse of the relevant waters as between neighbouring states fall
less than 400 nautical miles. Article 121 (3) ensures that islands also have
access to an exclusive economic zone, except in cases where they comprise
of nothing more than a couple of rocks, and are unfit for human habitation.
In the exclusive economic zone of a state, other states have certain rights
and duties as under Article 58. The rights permit the freedom of navigation
as it is in the case of the high seas, and the freedoms of over-flight and to lay
submarine cables and pipelines. Article 58 dictates that while exercising
their rights it is necessary that states respect the rights, duties and laws of
the coastal state. In the event of a conflict in relation to the question of the
attribution of rights and jurisdictional competence in the zone, the dispute is
resolved entirely on the basis of equity, and in keeping with the factual
circumstances. Article 60(2) elaborates on the fact that in the exclusive
economic zone, the coastal state is entitled to exercise jurisdictional control
in respect of applying customs laws, orders and regulations in pertinence to
artificial islands, installations and structures. Where other parts of the
exclusive economic zone are concerned, this right does not exist, as was
explained in the M/V Saiga (No.2) (Admissibility and Merits) case.[1041]
The International Tribunal for the Law of the Sea, in pursuance of this line
of law, explained that Guinea was on the wrong side of the law by seeking
to apply its customs law outside the ambit of the permissible extent of the
exclusive economic zone.
States world over, for a considerable amount of time, have claimed
exclusive economic zones that extend up to 200 miles.[1042] Several other
states that have not raised a claim, have instead asserted certain fishing
zones as belonging to them.[1043] With such claims, the exclusive economic
258

zones and the claims of states in relation to them have led to the creation of
a place in customary international law, for the inclusion of the existence of
the exclusive economic zone. In the Libya Malta Continental Shelf Case,
[1044] the ICJ laid down in no uncertain terms, that the institution of the
exclusive economic zone, by practice, has entered the domain of customary
international law. In addition, states have laid claims to other zones of the
seas. Some of these claims include the Canadian claim over a 100-mile
zone, expanding along the Arctic Coastline, as being a special, pollution
free area.[1045] Security and neutrality zones, though few and far between,
have also evolved with time, at the behest of several states buttressing their
claims with their own assertions, but havent quite been welcomed.[1046]
Bilateral agreements have also emerged between states, in a bid to ensure
no room for disputes. A case in point is the agreement entered into between
the United States and erstwhile USSR, titled the US-USSR Maritime
Boundary Agreement, in the year 1990. The agreement is a clear delineator
of rights, where in keeping with equality as the basis of the agreement, each
state is permitted to exercise sovereign rights and jurisdiction in a special
part of the other states exclusive economic zone, in a bid to see to it that all
waters within the expanse of 200 nautical miles inevitably remain within the
resource pool of both states.[1047]
Nevertheless, the expanse of the exclusive economic zone has always been
a bone of contention between the states.[1048] The infamous Cod Wars
between the United Kingdom and Iceland between the 1950s and the 1970s,
relating to fishing rights in the North Atlantic are an example. In 1972,
Iceland unilaterally declared its claim over an exclusive economic zone as
extending beyond its territorial waters, and then announced plans to cut
down on over-fishing with a quota system and a coast guard, which resulted
in a couple of net-cutting events with British trawlers fishing in those areas.
This then led to the deployment of Royal Naval warships and a series of
tug-boats to function as a deterrent to any future harassment of British
fishing crews. Finally, the dispute ended in 1976, after Iceland raised a
threat to close a NATO base, in a bid to retaliate against Britains act of
using naval vessels within the 200 nautical mile range. After 1976, the
British government conceded, agreeing that British vessels would not fish in
the disputed zone. The dispute raised by both Norway and Russia in respect
of an exclusive economic zone in relation to the Spitsbergen archipelago,
since it adversely impacts the Russian exclusive economic zone due to the
treaty status is another example. Eventually, in September 2010, a treaty
was signed in Murmansk, where both states endeavoured to settle the
boundary issue.[1049] Presently, plenty of ongoing disputes relating to
259

exclusive economic zones have come to be, such as the issue over the South
China Sea, with competing claims from Indonesia, China, Taiwan,
Philippines, Vietnam, Malaysia, Cambodia and Singapore; between Turkey
and Greece over the expanse of the continental shelf and the exclusive
economic zone; between Italy and Slovenia over Croatias ecological and
fisheries protection zone, that threatened Croatias accession to the
European Union; between the United States and Canada in respect of the
Beaufort Sea which has been touted to be a considerably resourceful oil
reserve and the French claim over a part of the Canadian exclusive
economic zone for Saint Pierre-et-Miquelon, on the basis of a new
definition of the continental shelf and the exclusive economic zone as
between both countries, given that Saint Pierre-et-Miquelon is surrounded
entirely by the Canadian exclusive economic zone. Permanent ice shelves
extending beyond the coast lines have also raised many a question in this
regard.[1050]
The Continental Shelf
The continental shelf refers to the extended perimeter of each continental
landmass. It also includes associated coastal plains, and was a part of the
continent during the original glacial period, and was undersea during the
interglacial periods. It essentially refers to the ledges that extend from the
continental land, into the seas, covered by a comparably shallower layer of
water, and eventually fall away into the depths of the ocean.[1051] These
ledges constitute approximately 7 or 8% of the total ocean expanse. The
width of the continental shelf varies considerably. Some areas may have no
shelf at all, as is the case particularly where the forward edge of advancing
oceanic plates dive beneath the continental crust in an offshore sub-duction
zone. This is a common facet off the coast of Chile and the West coast of
Sumatra. The largest shelf is the Siberian Shelf, found in the Arctic Ocean,
stretching over an expanse of 1500 kilometers in width. The South China
Sea lies over another extensive area of continental shelf called the Sunda
Shelf, which also joins Borneo, Sumatra, and Java to the Asian mainland. In
the case of the North Sea and the Persian Gulf, the entire area underwater
comprises the shelf. However, in the United States, the continental shelf is
less than five miles wide. The most important facet of the continental
shelves is that they are extremely rich in oil and gas resources, and are also
considerably rich in term of marine resources such as fish and the like.
As a consequence of the value attached to the continental shelf, in terms of
the benefits a state may derive from deploying it to its advantage, several
states lay claims to considerable expanses of the sea, with the end of the
260

Second World War. Slowly, the continental shelf was drawn out of being a
continued part of the high seas that was open for access by all states for the
sake of exploitation, and became a part of state owned portions of the sea,
exclusive to the needs of the coastal state. The earliest of these attempts was
the Truman Proclamation, 1945,[1052] which indicated the technological
abilities that allowed the exploitation of the resources of the continental
shelf, and the requirement to establish a recognized jurisdictional regime
over the resources. The proclamation also declared that coastal states were
entitled to have such jurisdictional control for various reasons, namely, the
extent of utilization and conservation of subsoil and seabed resources of the
continental shelf zone hinged heavily upon the cooperation from the shore
itself; the fact that the shelf itself, may rightfully be construed as an
extension of the continental land of the coastal state and therefore, the
resources therein were an obvious extension of the deposits within the
territorial waters itself; and, that since the coastal state has its own band of
security considerations, it would definitely be interested in activities
happening off its shores in connection with the access and utilization of the
resources themselves.[1053] The proclamation led to the subsequent
announcement by the US government, which indicated that it construed the
natural resources of the subsoil and seabed of the continental shelf beneath
the high seas, but contiguous to the coasts of the United States as
appertaining to the United States, subject to its jurisdiction and control.
[1054] It also asserted that it would not affect the status of the waters above
the continental shelf as they were the high seas.
Spurred into action by the proclamation, a whole lot of other states also
came forth with claims to continental shelves. Argentina claimed the
continental shelf along with the waters and airspace above, which was also
a course followed by El Salvador. Chile having no continental shelf of its
own, as was also the case with Peru, both states sought to claim sovereignty
over the seabed, subsoil and all waters around their coasts extending up to
200 miles. The claims, however, were protested against by other states.
[1055] With debates running rife amongst states, the 1958 Geneva
Convention on the Continental Shelf emerged as the law on the position.
[1056] The rights of the coastal state, in relation to the area of the
continental shelf that constitutes a natural prolongation of its land territory
into and under the sea exist ipso facto and ab initio, on account of its
sovereign control over the land and as an extension of it in an exercise of
sovereignty for the purpose of exploring the seabed and exploiting its
natural resources, which, is an inherent right.[1057]
In a way, with the creation of the exclusive economic zone as a regime,
261

where article 56 of the 1982 Convention on the Law of the Sea permits the
exercise of sovereignty over the natural resources of its exclusive economic
zone inclusive of seabed resources, there has been a considerable amount
confusion in relation to the concept of the continental shelves. The concepts
have been considered as being linked together, as was laid down in the
Libya/Malta Continental Shelf case.[1058] The only difference lies in the
fact that claims relating to the economic zone have to be specifically made,
as opposed to instances pertaining to the continental shelf.
The 1958 Convention on the Continental Shelf, under Article 1 defined the
continental shelf with due consideration of its exploitability, instead of
considering the geographical definition. The expression is defined under the
convention as meaning the seabed and subsoil of the submarine areas
adjacent to the coast but outside the area of the territorial sea, to a depth of
200 meters or, beyond that limit, to where the depth of the superjacent
waters admits of the exploitation of the natural resources of the said areas,
and to the seabed and subsoil of similar submarine areas adjacent to the
coasts of islands. However, with the evolution of technology by leaps and
bounds, there were plenty of loopholes in the general scheme of things,
since resources soon began to be extracted from depths greater than 200
meters, which extended to limits outside of the continental shelf, subject to
the jurisdictional control of the coastal state. There were several
ambiguities that needed addressing. Nevertheless, in the North Sea
Continental Shelf Cases,[1059] the ICJ stated that Article 1 of the 1958
Convention on the Continental Shelf reflected customary international law.
A pertinent fact is that the basis of title of a coastal state to the continental
shelf bears geographical overtones, as opposed to reliance upon the
occupation or effective control test. The submarine areas involved may in
effect, be deemed as being part of the territory over which the coastal state
already has dominion, in the sense that although covered with water, they
are a prolongation or continuation of that territory, by being an extension of
the same under the sea.[1060]
The approach has been changed with the advent of Article 76 of the 1982
Convention on the Law of the Sea. Article 76(1) specifically mentions that
the continental shelf of a coastal state comprises the seabed and subsoil of
the submarine areas that stretch beyond its territorial sea, throughout the
natural prolongation of its land territory to the outer edge of the continental
margin, or, to a distance of 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured where the outer edge of
the continental margin does not extend up to that distance. Clause 3 of the
same article explains that the continental margin comprises the submerged
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prolongation of the land mass of the coastal State, and consists of the seabed
and subsoil of the shelf, the slope and the rise. It does not include the deep
ocean floor with its oceanic ridges or the subsoil thereof. The subsequent
clauses emphasize that where the continental margin stretches beyond 200
miles, certain geographical considerations are to be studied in the process
of establishing the limit, which shall not go beyond 350 miles from the
baselines, or, 100 miles from a 2,500 meter isobath.[1061] In addition, in
the Libya/Malta Continental Shelf case,[1062] it was held that where the
shelf does not stretch as far as 200 miles from the coast, the concept of
natural prolongation is deemed a guiding principle of the distance. In a bid
to pursue means to resolve disputes, the Convention provided for a
Commission on the Limits of the Continental Shelf, comprising 24 experts,
all elected by the states party to the Convention. Annex II to the Convention
stipulates, under Article 4 specifically, that a coastal state that intends to
establish the outer limits to its continental shelf as beyond 200 nautical
miles is under an obligation to submit details and particulars of the limits to
the Commission, along with supporting data of scientific and technical
character, as soon as possible, within ten years of the entry into force of the
Convention, with respect to the state. Article 76(8) explains that the limits
of the shelf as established by the coastal state, based on the
recommendations are final and binding. Article 121(3) speaks of continental
shelves in the context of islands, indicating that islands do indeed generate
continental shelves, unless the island itself comprises of nothing more than
rocks that render it incapable of sustaining human habitation.[1063]
In relation to the continental shelf, the coastal state is entitled to exercise
sovereign rights for exploration and exploitation. This is provided for under
Article 77 of the 1982 Convention. These rights are exclusive without the
express consent of the coastal state no other state can undertake any
activities within the continental shelves. The sovereignty flows naturally,
without a proclamation of any sort. The Truman proclamation relating to
resources originally covered only resources of a mineral nature, but in
principle, it has been extended to include all other forms of resources,
including those belonging to sedentary species.[1064] Disputes arose by the
dozen, considering the extent of vagueness and ambiguity couched in these
provisions. France and Brazil had conflicts in relation to the lobster as a
resource. The United States and Japan had issues over the Alaskan King
Crab.[1065] Considering that the regime is an exclusive for natural
resources, wrecks on the shelf do not come within the ambit of
jurisdictional powers.[1066]
The rights of the coastal states do not hamper the status of the above-lying
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waters, such as the high seas, and the airspace above the waters, as under
Article 78. Article 79 asserts that subject to the right of the coastal state to
take reasonable measures for the exploration and exploitation of the
continental shelf, the coastal state may not hamper the process of laying and
maintaining cables and pipelines on the continental shelf. There must not be
any unjustifiable interference with navigation, fishing or the conservation of
the living resources of the sea, in the course of exploration and exploitation,
according to both articles. Article 80 of the Convention explains that the
coastal state is permitted to construct and maintain installations and other
devices necessary for the purpose of exploration on the continental shelf,
and, is permitted to establish safety zones around the installations to a
permissible extent of 500 meters. This is to be respected by all other states.
States are also permitted to take up any measures in pursuit of their security
and protection. Despite being under the jurisdictional control of the coastal
state, these regions and installations will not be deemed as islands, which
implies that they do not have a territorial sea to call their own, and owing to
their presence, there is no adverse impact on the determination of the
territorial waters of the coastal state itself. Article 82 covers instances
where the continental shelf extends beyond 200 miles, and states that the
coastal state must make payments, or contributions in kind, for the
exploitation of non-living resources of the continental shelf, beyond the 200
mile limit. Payments should be made on an annual basis after the first five
years of production at the site involved at rates based on a sliding scale up
to the twelfth year of production. After this point, the rate stabilizes itself at
7%. Payments so made shall be directed to the International Seabed
Authority, which in turn, shall distribute the amount amongst the state parties
based on an equitable sharing regime, in keeping with the interests of the
states involved, particularly the developing and least developed states, and
landlocked states. As explained by Article 82(3), a developing state that
functions as a net importer of mineral resources involved is exempted from
making such payments. Article 83 explains the procedure involved in
delimitation of the continental shelf between States with opposite or
adjacent coasts. Clause 1 suggests that the delimitation of the continental
shelf between States with opposite or adjacent coasts shall be effected by
agreement on the basis of international law, as referred to in Article 38 of
the Statute of the International Court of Justice, in order to achieve an
equitable solution. Failing which, States concerned shall resort to the
procedures provided for in Part XV of the UNCLOS. The part of the
Convention dealing with the Continental Shelves does not prejudice the
right of the coastal State to exploit the subsoil by means of tunneling,
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irrespective of the depth of water above the subsoil, as put forth by Article
85.
Maritime Delimitation
Delimitation of the continental shelf paved the way for several debates,
which manifested themselves in the form of cases and treaties. Conceptually
speaking, delimitation per se is a tenet of territorial sovereignty where it
involves other states, and requires an agreement. Considering the extent of
ambiguity in the sphere, there has been ample use for agreements in order to
settle difficulties, in keeping with the basics of equity.[1067]
Article 6 of the 1958 Convention on the Continental Shelf stated that in the
absence of an agreement, and unless another boundary line was justified by
special circumstances, the boundary delimiting the continental shelf should
be determined in keeping with the principle of equidistance from the nearest
points of the baselines from which the breadth of the territorial sea of each
state is measured. The equidistant line, or the median line, would operate in
such cases in the context of the bends and meanders on the seas. In the
North Sea Continental Shelf Cases,[1068] the issue related to the
application of the equidistance principle as under Article 6. The application
therein, would have entitled Germany to access only a small share of the
North Sea Continental Shelf, in its concave northern shoreline as it existed
between Holland and Denmark. The issue before the court was in relation to
whether the article was binding upon the Federal Republic of Germany,
since it had not ratified the 1958 Convention on the Continental Shelf. In its
decision, the Court held that the principles mentioned under Article 6 did
not constitute customary international law, and therefore, did not bind the
Federal Republic of Germany. The Court asserted that delimitation should
be put in place by an agreement in keeping with equitable principles,
considering all relevant circumstances, such that as much as possible is left
to the states involved, all the parts of the continental shelf constituting a
natural prolongation of its land into and under the seas, without eating into
the natural prolongation of the land of other states into the sea. While
mentioning a couple of factors to be considered, the court asserted that a
reasonable degree of proportionality as between the expanse of the
coastline, and the expanse of the continental shelf itself.[1069] Article 6
however found its applicability in the Anglo-French Continental Shelf
Case,[1070] since states privy to the dispute were both parties to the 1958
Convention on the Continental Shelf. The ICJ noted that article contained an
overall rule that combined the equidistance and special circumstances rule,
in effect giving particular expression to a general norm that, failing
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agreement, the boundary between states abutting on the same continental


shelf was to be determined on the principles of equity. When it comes to the
method of delimitation, the choice depends on the circumstances of the case.
Though both customary international law and the 1958 Convention on the
Continental Shelf encouraged the basis to be maintained as equitable
principles, it really ultimately boils down to the factual matrix of the case.
In the case, the court relied on the special circumstances involved,
concerning the Channel Islands, which justified a delimitation aside of the
median line as was proposed by the United Kingdom. The Court also
accorded the Scilly Isles only the half-effect in the course of delimitation
in the Atlantic zone, because what equity called for was an appropriate
abatement of disproportionate effects of a considerable projection on the
Atlantic continental shelf, of a somewhat attenuated projection of the
UKs coast.
When neither state was party to the erstwhile 1958 Convention on the
Continental Shelf, the issue had to be dealt with by custom, as was seen in
the case of Tunisia/Libya Continental Shelf Case,[1071] where the ICJ
held that the satisfaction of equitable principles is of cardinal importance in
the process of delimitation. Natural prolongation also bears considerable
importance, but that hinges heavily on the circumstances involved.
Nevertheless, it is not given the same status as the equitable principles
themselves are.[1072] The half-effect principle was put to use in the context
of the Kerkennah Islands,[1073] while asserting that each continental shelf
dispute had to be given due consideration with importance attached to the
merits of its circumstances. There should, however, be all cautions taken in
preventing an over-conceptualization of the application of the principles and
rules pertaining to the continental shelf.[1074] The Court perceived that
principles were subordinate to the goal, and the principles to be indicated in
the process have to be chosen in the light of their appropriateness for the
sake of arriving at an equitable result.[1075] With this line of thinking, the
earlier decision in the North Sea Continental Shelf Cases,[1076] was
overturned with complete diminution of the importance of the element of
predictability. Judge Gros professed a dissenting opinion, highlighting his
concerns in relation to the dangers of an equitable solution arising out of
subjective considerations and assessments of all the relevant material.
[1077]
The Gulf of Maine Case,[1078] elaborated upon the delimitation of the
continental shelf and the fisheries of Canada and the United States, where
both states sought a single maritime boundary. The ICJ formulated two
principles, in congruence with international law, which deal with
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delimitation of the continental shelf. Primarily, the court stated, there could
not be any unilateral delimitations. If any, delimitations can be made only in
pursuance of an agreement effected by the parties, or, in collaboration with
third parties. The second principle that was highlighted by the court was that
delimitation is to be effected only by applying equitable criteria, and by
deploying practical methods, capable of ensuring an equitable result while
remaining within the ambit of geographical configurations and relevant
circumstances.[1079] Keeping the core notion of considering equal division
of the overlapping and convergent areas as important, the court emphasized
on the intrinsic value in terms of equity, as borne by the principle. Other
ancillary conditions would also go into the process, based on what the
factual circumstances were like. In addition, the court asserted that a couple
of practical methods necessary to give effect to the extant criteria would
have to be taken into consideration too. In delimitation, the method is the
same for exclusive economic zones and for the continental shelves, but the
ensuing results may not necessarily be the same. The Court made it clear
that the criteria deemed equitable in relation to continental shelf
delimitation neednt compulsorily have the same properties in relation to
dual delimitations.[1080]
The principles laid down by the ICJ were also applied in the
Guinea/Guinea-Bissau Maritime Delimitation case,[1081] where the
arbitral award echoed the ICJ in declaring that the underlying aim of any
delimitation process is to arrive at an equitable solution in keeping with the
factual matrix of the case at hand.[1082]
Distance as a criterion saw deployment in the Libya/Malta Continental
Shelf Case,[1083] where the ICJ applied customary international law since
Libya was not party to the 1958 Convention on the Continental Shelf. Since,
at the relevant time, the exclusive economic zone gained position under the
ambit of customary international law, and that such economic zone could not
exist devoid of rights over the seabed and subsoil, to be exercised in a
manner similar to those that could be enjoyed over the continental shelf. As
a consequence, thus, it was necessary to take into consideration the 200 mile
limit of the zone, in keeping with the delimitation of the continental shelf.
Nevertheless, the court explained that this did not immediately imply that the
concept of the continental shelf merged with the principles of the exclusive
economic zone. Instead, greater importance had to be accorded to elements
that are more or less common to both. Since the law allowed claims to be
laid in respect of a continental shelf extending up to 200 nautical miles from
the coast, irrespective of whatever the form of geographical characteristics
were found to exist, it was clear that there wasnt much rhyme or reason to
267

accord any role to the geological or geographical factors within the distance
specified.[1084] Therefore, with the 200 mile limit being the recognized
distance criterion for the basis of the title, it became clear that the most
expedient course of action would be the drawing of the median line between
the opposite states. The principle would have to be tested in keeping with
relevant circumstances and equitable principles whenever it would be put
into action.[1085] In arriving at its decision, ample importance was also
attached to the decision in Tunisia/Libya,[1086] where the concept of
proportionality and its utilization as a test of equitableness was explained.
The comparability of the expanse of the coasts was also taken into account
in arriving at an equitable median. The different coastal lengths were
deployed as the reason for adjusting the median line in a bid to afford a
larger shelf area for Libya. In addition, the geographical structure of Malta
was also looked at, considering how it was a small feature in a semi
enclosed area.[1087] While taking into consideration several principles of
equity, the Libyan argument that a state with a larger landmass would have a
greater claim to the shelf was rejected, and the Maltese argument that the
relative economic position of the states involved was a relevant factor.
[1088]
In sum, the general geographical arrangement of the coasts of the states
involved, their relation with each other and oppositeness, the difference in
lengths of the relevant coasts of the parties and the distance between them
and the need to avert excess disproportion between the extent of the
continental shelf and the length of the relevant portion of the coast in the
process of delimitation, are the core factors to be considered.
Subsequent to this, the St. Pierre and Miquelon case,[1089] served as the
next hallmark in the jurisprudence relating to the delimitation of continental
shelves. The Court of Arbitration was emphatic in its conclusion, holding
that the process of delimitation began with the determination of the
geographical connotation of the dispute involved, and also indicated that
geographical configurations were fundamental to the process of
delimitation. The Court segregated the entire area into two parts, the
southern and the western zones. In the western zone, it was found that any
form of extension of the islands beyond the territorial sea, in the seaward
direction, would result in a considerable extent of encroachment to the
projections in the seaward direction, towards the south from the southern
shore of Newfoundland. In the light of this, it was found that an attempt to
enclave the islands within the territorial sea would result in considerable
inequity, and hence suggested a solution indicating the grant of an additional
12 miles from the limits of the territorial sea as an exclusive economic zone,
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to the island.[1090] Coming to the southern zone, it was found that where
the islands had a coastal opening in the seaward direction unobstructed by
any opposite Canadian coast. The Court held that France was permitted an
outer limit extending up to 200 nautical miles, with the qualification that the
projection was not to encroach upon, nor cut off a parallel frontal projection
of the southern coast of Newfoundland, which were adjacent segments. To
give this effect, the Court stressed on the importance of the breadth of the
coastal opening of the islands towards the southern side, resulting in a 200mile expanse worth of a corridor southwards from the islands themselves,
as the economic zone.[1091] Based on the facts of the case, the court was
able to arrive at a satisfactory conclusion indicating that the delimitation
was not radically inequitable,[1092] having borrowed the phrase from the
Gulf of Maine case.[1093]
In 1993, the Jan Mayen case[1094] was decided, where the question of
delimitation of the continental shelf became a bone of contention between
Denmark and Norway. The issue was dealt with in keeping with Article 6 of
the 1958 Convention on the Continental Shelf. The ICJ asserted that since
the question was one relating to the delimitation between two opposite
coasts, it was necessary to begin by taking into consideration, provisionally,
the median line, and then investigating the existence of special
circumstances as belonging to the same category of relevant circumstances,
which would necessitate another boundary line.[1095] This led to looking at
the disparity in coastal lengths, which revealed that Greenland had a coastal
length equal to more than nine times the length of Jan Mayen. Unqualified
use of the equidistance rule, thus, in the light of these issues, would result in
a disproportionate consequence.[1096] The Court took note of the access to
fish stocks by vulnerable fishing communities. It was a given that the
principle resources available in the area were the capelin species,
specifically found in abundance in the southern portion of the overlapping
claims. If a median line was adopted, it could impinge on Denmarks right
to access the capelin. Ultimately, the median line was adjusted towards the
Norwegian island of Jan Mayen.[1097]
In cases relating to opposite states, there is less difficulty in putting to use
the equidistance method since there would be a clear demarcation. In cases
where the states are adjacent, there is more difficulty in deploying the
equidistance method, especially since there would be a distortion
considering the individual geographical features of the states involved.
Nevertheless, article 83 of the 1982 Convention on the Law of the Sea
merely enunciates the need to arrive at an equitable solution based on
international law, and does not for any purpose, define the distinction
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between opposite and adjacent states. This has led to a presumption in


favour of applying the equidistance rule in scenarios involving opposite
states and adjacent states. Of course, proportionality also has a
considerable bearing in determining the delimitation. Article 74 of the 1982
Convention on the Law of the Sea explains that delimitation of the exclusive
economic zone as between the states with opposite, or adjacent coasts needs
to be arrived at by way of an agreement, in keeping with international law,
so as to settle at an equitable solution. The provision employs the statement
in order to achieve an equitable solution, which is also similar to the rule
governing the delimitation of continental shelves as under Article 83. The
similarity has often times led to states demanding one boundary for both, the
exclusive economic zone and the continental shelf. As a consequence, thus,
there needs to be an assessment of criteria applicable to both, and not just
either.[1098]
The more recent stream of cases in the jurisprudence relating to maritime
delimitation indicate a simplification and clarification of the otherwise
complex set of rules. In Eritrea/Yemen (Phase Two: Maritime
Delimitation),[1099] it was held that the general perception is that between
opposite coasts, the median line is essentially an equitable boundary in
keeping with the rules of the 1982 Convention on the Law of the Sea. While
mentioning that proportionality is not the only mode, the test of
equitableness of delimitation was also considered important in evaluating
delimitations arrived at by other means. Subsequently, in Qatar v. Bahrain,
[1100] the emphasis was largely upon the relation between the continental
shelf and economic zone delimitations. The court pointed out that the
appropriate means to proceed was to first, provisionally draw an
equidistance line and then to consider the existence of circumstances
leading to the adjustment or modification of the line itself. The equidistance
rule as applicable to the territorial sea delimitation, and considering that the
rule developed since 1958 through jurisprudence and state practice in
relation to the exclusive economic zone and the continental shelf, both were
deemed to have shared a close relationship of sorts. The same was
reaffirmed in Cameroon v. Nigeria,[1101] where the court mentioned that
the applicable criteria, principles and rules of delimitation concerning a
line covering several zones of coincident jurisdiction could all be
expressed in the equitable principles method, or the relevant circumstances
method, where the line would be drawn, following which there would be a
stock-taking of the existence of any situation that could possibly lead to the
adjustment of the line so drawn.

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With ample instances indicating a considerably accepted trajectory, one can


clearly infer the existence of a satisfactory realm of law on the subject,
comprising a confluence of customary law and treaty law. The delimitation,
whatever it may be for, is essentially to be undertaken only after determining
the appropriate method for it, and by deploying the same.
The High Seas
The term high seas refers to all those parts of the seas that are not
included within the ambit of the territorial sea, or in the internal waters of a
state.[1102] The Latin term, mare librum, is an oft used term to denote the
high seas, which translates into meaning free seas. Originally, the seas were
deemed closed, especially by Spain and Portugal in the fifteenth century,
and for a considerable part of the sixteenth century. The claims were
buttressed by the Papal Bulls of 1493 and 1506, which divided the seas of
the world between Spain and Portugal. However, the notion was soon
displaced, with the rule of open seas and the associated cache of freedoms
of the high seas, in the eighteenth century. The quintessence of the freedom
of the high seas lies in the fact that it is free from sovereign appropriation,
which implies that no state shall have or exercise sovereign rights over the
high seas in entirety, and over parts of the high seas.[1103] While this is the
generally accepted rule, a considerable number of doctrines operate to
which the rule is subject. Some of these are the rules of recognition of the
rights of other states in respect of certain zones on the high seas, which is an
explicit acceptance and, the process of acquiescence and prescription which
allows the appropriation of certain parts of the high seas in keeping with the
long usage by certain states, which is implicit and inferred from conduct, as
was explained in the Anglo-Norwegian Fisheries Case.[1104]
The High Seas were open to all to use, and this rule found enunciation as
early as during the First World War, by US President Woodrow Wilsons
fourteen points. The document emphasized the right to navigate the oceans,
and also disapproved of war fought on the waters. If for anything at all, the
freedom was to be breached only in pursuance of a necessary international
agreement. These very freedoms have been found couched in Article 87(1)
of the UN Convention on the Law of the Sea, where the high seas are open
to all states, whether coastal or landlocked, exercised in the form of the
non-exhaustive list of freedoms under clauses (a) to (f) therein.
The 1958 Convention on the High Seas dealt with the definition of the High
Seas, as being all parts of the sea that were not included in the territorial
sea, or the internal waters of the state. As a reflection of customary
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international law, the principle has, for the most part remained to a certain
extent, with a couple of modifications and today remains as enunciated
under Article 86 of the 1982 Convention., whereby the high seas are defined
as being all the parts of the sea that are not included in the exclusive
economic zone, in the territorial sea, or, in the internal waters of a state, or
in the archipelagic waters of an archipelagic state. Article 2 of the erstwhile
1958 Convention on the High Seas mentioned the principle of freedom of
the high seas, which, in an augmented form, is found in article 87 of the
1982 Convention on the Law of the Sea, as enunciating that the high seas are
open to all states and that the freedom of the high seas is exercised under the
conditions stipulated in the Convention, in keeping with other rules of
international law. On a general note, the freedoms include, inter alia, the
freedom of navigation, over-flight, the laying of submarine cables and
pipelines, the construction of artificial islands and other installations
permitted under the ambit of international law, fishing and conducting
scientific research, all of which are subject art VI of the Convention which
provides for rules relating to the continental shelves. Of course, the
freedoms are not absolute, but rather, watered down by the obligation to
respect the interests of other states in relation to their rights over the high
seas, and by the obligation to respect the rights under the Convention, in
relation to the International Seabed Area. The freedoms are not restricted to
coastal states, but can also be enjoyed by landlocked states, all of whom
also enjoy the right to sail ships on the high seas, bearing their insignia and
flags, as was explained under Article 4, of the 1958 Convention on the High
Seas, carried forward under Article 90 of the 1982 Convention on the Law
of the Sea. In pursuit therefore, the states lying between landlocked states
and the sea, should ideally negotiate agreements to enable the landlocked
states to access and use their ports and allow transit rights through their
territorial expanse, as was enunciated by article 3 of the 1958 Convention
on the High Seas. The UN General Assembly passed a resolution in 1991,
[1105] reaffirming the right to access landlocked states to, and from the sea,
and explained the existence of the freedom of transit through the territory of
transit states by all modalities of transport. Other freedoms include the
freedom to conduct naval exercises and research studies in the High Seas.
Where fishing rights are concerned in relation to the High Seas, there is no
absolute enjoyment permitted. The 1993 FAO Agreement to Promote
Compliance with International Conservation and Management Measures by
Fishing Vessels on the High Seas,[1106] followed by the 1995 UN
Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Seas of 1982 Relating to the Conservation and
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Management of Straddling Fish Stocks and Highly Migratory Fish Stocks,


[1107] are principles that raise concerns in relation to conservation of the
fishing resources, to avoid a destruction of marine biodiversity.
In the Nuclear Tests case,[1108] the ICJ had to deal with the question of
nuclear testing in the Pacific Ocean by France, an issue which was raised by
Australia and New Zealand. The core contention of Australia and New
Zealand was that Frances activity infringed upon the freedom of the high
seas, but the ICJ did not touch the issue. The 1963 Nuclear Test Ban Treaty
by itself prohibited the testing nuclear weapons in the high seas and on land.
But, since France was not privy to the Treaty, and the rule did not amount to
a manifestation of customary international law, it was not binding on France
to follow. Article 88 of the 1982 Convention on the Law of the Sea,
however, is better equipped to deal with such issues considering that it
emphasizes upon peaceful use of the high seas.
Another prominent freedom is that of navigation, which has been oft quoted
and well-recognized as bearing a considerable traditional value.[1109] The
principle found reinforcement in the Fisheries Jurisdiction case,[1110]
where it was held that Icelands extension of its fishing zones from 12
nautical miles to 50 nautical miles was a violation of Article 2 of the 1958
Convention on the High seas, considering that the said article was a
reflection of the established principles of international law. Freedom of
navigation during times of war and armed conflict came up during the IranIraq war, where, in the latter part, there were attacks on civilian shipping by
belligerents. In keeping with the UN Charter, the incident was denounced by
the United Kingdom, which asserted that the freedom of navigation on the
high seas is by all means an existent principle, and all violations of the law
of armed conflicts, inclusive of wanton attacks on merchant shipping.
Keeping with Article 51 of the UN Charter, it was mentioned that a state
involved in an armed conflict is permitted a right to self defense, to stop and
search a foreign merchant vessel in the event of reasonable suspicions of the
likelihood of arms being ferried across the waters.[1111]
Jurisdictional Rights and the High
Seas
Maintaining peace, security and order on the high seas largely hinges upon
determining the nationality of the ship, as a consequence of which the
subsequent question on jurisdictional control is answered. When each ship
sails out to sea, the nationality of the ship is determined by the flag and
insignia it bears. Therefore, each such flag state, shall be the one to enforce
the necessary laws of municipal law and international law, in relation to the
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ship. Hence, a ship without a flag would be deprived of the rights available
under international law.
States are under an obligation under international law, to stipulate requisite
conditions to be followed in order to grant nationality to its ships, and in
order to register ships in its territory so as to enable them to fly the flag of
such state.[1112] Although the nationality of the ship essentially depends on
the flag as borne by the ship, by and large, it is necessary as under Article
91 of the 1982 Convention on the Law of the Sea, that there is a genuine link
between the state, and the ship itself. This provision is a reflection of
customary international law, and is a reiteration of the erstwhile Article 5 of
the 1958 Convention on the High Seas. The principle was deployed in M/V
Saiga (No.2), [1113] in order to check the use of flags of convenience, as
operated by Liberia and Panama which would grant their nationality to ships
requesting the same, due to low taxation and other economic considerations
such as the lack of application of wage and social security agreements. As a
consequence, ships were operating cheaper. In the case, the ITLOS
explained that the determination of the criteria and establishment of
procedures for granting and withdrawing nationality to ships lie within the
ambit of the exclusive jurisdictional powers of the flag state. Nevertheless,
disputes concerning the same could be settled in keeping with the 1982
Convention on the Law of the Sea. Nationality as a factor, the ITLOS
explained, would be determined in keeping with the evidence tendered.
[1114] It was ruled that the conduct of the flag state at all times material to
the dispute was an important consideration in determining the nationality or
registration of a ship.[1115]
Understanding the term genuine link involves a considerable amount of
doubt, as does the issue as to how states may keep in check, any form of
misuse of article 5. In general, the idea of what the genuine link is has often
been subject to different views. While the United States perceives it to be a
duty to exercise jurisdiction over the ship in an efficient manner and not a
prerequisite for the grant or acceptance of such grant of nationality by other
states, most other states do not concur.[1116] Many a time, though, the issue
has been subject to plenty of judicial analysis. Starting from the IMCO
case,[1117] where the ICJ had to deal with the definition of the largest shipowning nations, in order to constitute a committee of the Intergovernmental
Maritime Consultative Organization. In pursuance of its duty, the court
asserted that the term implied registered tonnage, which in turn permitted
Liberia and Panama to be elected to the committee. Despite the issue having
been brought up, nothing was done to address the question of genuine link,
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which led to ample doubt.


Subsequently, in 1984, the UN Conference on Conditions of Registration of
Ships was held under the UNCTAD. The conference culminated in an
agreement that was signed in 1986. The agreement addresses specific
questions, such as the flags of convenience, while keeping in mind the fact
that most states merchant fleets flew flags of convenience in 1985. Flag
states, as per the agreement, are to provide in their laws and regulations,
provisions for the ownership of all the vessels flying their flags, and,
facilitate participation by nationals and ship owners, allowing the state to
exercise jurisdiction and control over the ship itself.[1118] Further, during
the Iran-Iraq war, the same question came to fore, in dealing with Irans
attacks on Kuwaits ships. The United States and the United Kingdom
embarked upon a reflagging process in relation to some of the ships in the
Gulf in a bid to protect them. Both states contended that the genuine link
requirement was satisfied, since the satisfaction of the Department of Trade
and Industry requirements sufficed.[1119] There wasnt much available to
assert that the conduct of the UK and the US was in violation of international
law.
In M/V Saiga (No.2), the ITLOS explained that the requirement of a genuine
link is essentially to secure efficient discharge of the flag states duties. It is
not undertaken with a view to establish criteria by reference to which the
validity of the registration of ships in a flag state may be challenged by other
states.[1120]
The sum and substance of the rules involved boil down to the fact that ships
are under an obligation to sail under the flag of only one state, and
consequently are subject to its exclusive jurisdiction of that state alone.
However, where a ship sails under the flags of different states, in keeping
with convenience, the ship may be deemed as one without nationality, and
will not be permitted to claim the nationality of any of the states whose flags
it holds.[1121] A stateless ship, i.e., a ship flying no flag, is essentially free
to be boarded and seized on the high seas, as was explained in Naim
Molvan v. Attorney General for Palestine,[1122] where the British navy
seized a stateless ship in a bid to convey immigrants into Palestine. Thus, it
stands clear that it is only the flag state alone that can exercise rights over a
ship. The Lotus case,[1123] witnessed the enunciation of the rule that all
vessels on the high seas are subject to no authority, except that of the state
whose flags they fly. The rule applies irrespective of the nature of the
vessels, whether warships or ships owned or operated by a state, or where
the ships are used for non-commercial, governmental services. These ships,
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as a natural corollary, have complete immunity from the jurisdiction of any


other state aside of the flag state.[1124]
While the rule applies such, there are exceptions aplenty to the exclusive
exercise of jurisdiction. The exceptions are herein explained.

Exception 1: Fish Stocks


The high seas permit the enjoyment of the fundamental freedom to fish.
However, this is neither absolute, nor completely restricted, as was
explained by article 2 of the 1958 Convention on the High Seas. Exclusive
economic zones have evolved as part of the territorial rights of sovereign
control. With this having taken place, a fairly large amount of these fish
stocks came under the wing of coastal sovereign rights, which in turn
encouraged the expansion of the rights of coastal states into the high seas.
However, in keeping with the increments in leaps and bounds, caution came
to be in the form of law.
Article 56(1) of the 1982 Convention on the Law of the Sea explains that
coastal states have sovereignty over their economic zones, in relation to
exploiting, exploring, conserving and managing their fish stocks in those
zones. In addition to these rights, are a couple of appended duties which
require the states to see to it that these resources remain conserved and
managed in such a way that the fish stocks are not endangered, and do not
bear the brunt of over-harvesting and over exploitation. The stocks need to
be sustained at those levels that allow them to produce the maximum
sustainable yield, as under article 62 and 62 of the 1982 Convention on the
Law of the Sea. Article 63(1) works on an equitable level, to avoid any
form of prejudice, by stating that where the same stock or stocks of species
that are associated are found to occur within the exclusive economic zones
of two or more coastal states, these states shall seek directly or through
regional organizations, to agree upon necessary measures to be taken to
coordinate and ensure conservation and development of the stocks.
The freedom to fish in the high seas is no doubt subject to the rights and
duties and interests of other coastal states as explained herein, as under
article 116(b) of the 1982 Convention on the Law of the Sea. The
convention also, between articles 117 and 120, requires that states
cooperate with one another in undertaking such measures as necessary for
their respective nationals, in a bid to conserve living resources on the high
seas. The convention stipulates a large number of criteria to be followed in
determining the permissible catch, and in establishing conservation
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measures.
Amongst the myriads of species of fish stocks, the biggest question is often
times posed by straddling stocks. Straddling stocks essentially refer to those
species of fish that traverse distances of both, the exclusive economic zone
and the high seas, straddling between the two. If the high seas remain
unregulated, it is likely that the stocks of these species of fish may suffer
depletion on account of unrestricted fishing of those stocks in the high seas.
Where the same stock or stock of associated species are found occurring
within the exclusive economic zone and in the area beyond and adjacent to
the zone, the coastal state and the states that fish for such stocks in the
adjacent area shall cooperate through agreements or through any regional
arrangements, to agree upon measures necessary to conserve these
resources, as was enunciated under article 63(2).
While the 1982 Convention did provide for the issue, the law was deemed
insufficient considering how there were pressing concerns with the rising
problems posed by straddling stocks, which in turn demanded a more
comprehensive regime.[1125] In keeping with these concerns, in 1993, a
Straddling Stocks Conference was set up with a view to come out with a
solution related to the issue. Subsequently, in 1995, the Straddling Stocks
Agreement emerged, with strong emphasis upon the need to conserve and
manage straddling fish stocks and species of a highly migratory disposition,
and encouraged states dabbling with the fishing of such stocks to exercise
the precautionary approach under Articles 5 and 6. Article 8 emphasizes
that coastal states and states that fish in the high seas, shall cooperate with
one another in relation to straddling and highly migratory stocks of fish,
either directly, or, in pursuance of any regional or sub-regional
arrangements or organizations, in pursuance of which they shall enter into
consultations in good faith without any delay, at the behest of any interested
states in relation to establishing arrangements to safeguard conservation and
management of the stocks. The Agreement accords a lot of importance to
regional and sub-regional cooperation, especially under Article 10 which
indicates that states in fulfilling their obligations, ought to cooperate through
such organizations and arrangements, and, such states shall, inter alia, agree
to upon measures that shall ensure long-term stability and sustainability of
straddling stocks and highly migratory fish-stocks, and agree as is
appropriate upon the rights of participation by allocating allowable catch
levels. Cooperation is encouraged at all levels, in relation to monitoring,
controlling, surveillance and enforcement processes, dispute redressing,
decision making in relation to the adoption of conservation and management
measures as are necessary. Policy making, thus, has clearly remained within
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the domain of international law, while implementation rests on the shoulders


of the states individually. Flag states are to take such measures as are
necessary to ensure that their vessels comply with requisite sub-regional
and regional conservation and management measures as under article 18.
Article 19 mandates that flag states are under an obligation to enforce such
measures, irrespective of where the violation occurs, and to investigate such
violations. Further, article 21 encourages regional and sub-regional
cooperation in the process of enforcement of the law, and stipulates that in
any area of the high seas as is covered by such arrangements or
organizations, a state party to the agreement which is also a member of such
organization or arrangement, may board and inspect fishing vessels that fly
the flag of any other state that is also party to the agreement, irrespective of
whether the state is part of the organization or the arrangement, for the sake
of enforcing compliance with the conservation and management measures as
established by the organization.
After boarding and inspecting, if it is clear that there are grounds to believe
that a vessel is involved in activities that are contrary to the relevant
conservation and management measures, the state inspecting such vessel
should obtain evidence and notify the flag state of the same. Within three
working days, the flag state is under an obligation to either fulfill its
investigation and allied enforcement as under article 19, or, as an
alternative, must authorize the inspecting state to investigate. When the flag
state authorizes the inspecting state, then, the flag state is under an obligation
to either to embark upon enforcement action, or, must allow the investigating
state to take enforcement action. Where there is sufficient reason to believe
that the vessel has committed a serious violation, and, the flag state has
either failed to take action or has failed to respond as necessary, the
investigating inspectors are permitted to stay on board and secure evidence
and may also require the master to take the vessel to the nearest port as
appropriate, as per article 22. According to article 23, a port state is given
the right and duty to take necessary measures in keeping with international
law, in a bid to promote the effectiveness of sub-regional, regional and
global conservation and management measures.
Plenty of regional and sub-regional conservation and management
arrangements and organizations have burgeoned over the years. The North
Atlantic Fisheries Organization, the Asia Pacific Fishery Commission, the
Australian Fisheries Management Authority, the International Council for the
Exploration of the Sea, the Pacific Whiting Conservation Cooperative, the
South East Atlantic Fisheries Organization are some of the Regional
Fisheries Management Organizations. Functionally, they are essentially
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responsible for managing fish stocks on the high seas and fish stocks which
migrate through the waters of more than just a single State. Per se, they have
a duty to conserve all species associated or affected by their fisheries.
Exception 2: Right of Visit
The law of sea hinges upon the nationality of ships. Customary international
law accords warships a right to approach ships on the high seas, in a bid to
determine their nationality. But, the right does not accord the authority to
board these ships, or to visit these ships. When there are no hostilities
between the flag states of the warship and the vessel on the high seas, and
when there are no treaty provisions dictating the opposite, or where the
vessel dabbles in piracy or slave trade, or, is of the same nationality of the
warship or bears no nationality though it flies a certain flag, the aforesaid
right may be exercised.
Needless to say, while embarking upon such activity, it is of ample necessity
that such warships remain cautious to say the very least, considering that any
damage or loss emanating from its conduct could lead to pinning of liability
and eliciting damages or compensation therein. International law has made
the practical applicability of these rules rather parochial, despite state
tendencies to expand them, by bringing them under Article 22 of the 1958
Convention on the High Seas. Subsequently, in the 1982 Convention on the
Law of the Sea, under Article 110, it was expanded a little, by allowing a
right of visit in the event that the ship deals with any unauthorized
broadcasts, and, the flag state of the warship has the jurisdictional prowess
to prosecute the perpetrator under article 109 of the 1982 Convention on the
Law of the Sea.
Considering that the high seas are open to the vessels of all states, it is
lawful for a ship to seize another, on the high seas, when the latter is
stateless. This was enunciated in the Asya Case.[1126] Nevertheless, the
right is not absolute, because arbitrary confiscations and unreasonable
destructions need to be accounted for under international law.
Exception 3: Piracy
Piracy is defined under article 101 of the 1982 Convention on the Law of
the Sea, as comprising of either any illegal acts of violence, detention or any
act of depredation, committed for private ends by the crew or the
passengers of a private ship or private aircraft and directed on the high
seas, against another ship or aircraft or against persons on board such ship
or aircraft, or against ship or aircraft or persons or property in a place
outside the jurisdiction of any state; or, any act of voluntary participation in
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the operation of a ship or an aircraft with the knowledge of facts making it a


pirate ship or aircraft; or, any act or inciting or of intentionally facilitating
an act described above. Piracy, in essence, in international law, ought to be
acts committed in pursuance of private ends. This automatically eliminates
political acts, or hijacking and takeovers in pursuit of political agenda, and
any activity performed by the crew on the ship, that are aimed at the ship
itself, or, on property or persons on board such ship.
Given the nature of the offence of piracy, every state is free to seize a pirate
ship or aircraft, irrespective of whether it occurs on the high seas or on
terra nullius waters. Consequently, once seized, such persons on board the
ship may be arrested, and the goods on the ship may be seized. The state that
seizes such ship automatically enables its own courts to exercise
jurisdictional rights in relation to the ship, and therefore, will allow its
courts to impose penalties and decide the course of action to be followed.
This right is entirely subject to the rights of third states that have acted in
good faith.[1127] The jurisdictional right vested in each state in the wake of
its occurrence, to apprehend a pirate ship stems from the principle of
universal jurisdictional, which is an exception to the generic norms of
sovereignty and jurisdiction of each state within its territorial expanse.
Piracy, though to be kept under control by the actions of all states, is to be
penalized in accordance with municipal law, though international law
governs the high seas.
Exception 4: Unauthorized
Broadcasting
Article 109 of the 1982 Convention on the Law of the Sea is a new addition
in the list of exceptions to the freedom of the high seas. All states, as per the
article, are under an obligation to cooperate in the suppression of all forms
of unauthorized broadcasting, from the high seas. By broadcast from the high
seas, the general meaning is implied television, or sound waves being
transmitted from the high seas, either through ships or installations on the
high seas, intended for reception by the public at large, without following
the mandates of international regulations. This prohibition is not applicable
to the broadcast and transmission of distress calls.
Any individual found to be indulging in such activity mentioned as
prohibited as above is liable to be prosecuted by the flag state of the ship
concerned, or, by the state of registry of the installation concerned, or, the
state of which the person himself is a national, or, any state where the
broadcasted material is received, or, any state where the radio
communication suffers interference. All these states have jurisdictional
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rights, and hence, in pursuance thereof, they may arrest any person or ship
that is engaging in unauthorized broadcasting on the high seas and may also
seize the broadcasting apparatus.[1128]
Exception 5: Collisions
Article 11 of the erstwhile applicable 1958 Convention on the High Seas
explained that where collisions occur on the high seas, penal and
disciplinary proceedings may be embarked upon only against the master or
other people in the service of the ship, by the authorities of the flag state, or
the state of which the particular person is a national. This overruled the
decision in the Lotus Case,[1129] which held that sovereign states are free
to act in any way, as long as there is no contravention of an express
prohibition of such conduct. Further, article 11 also established that neither
arrest nor detention of the ship, even if they be in pursuit of investigative
requirements, can be ordered by anyone other than the flag states
authorities. Article 97 of the 1982 Convention on the Law of the Sea carries
this provision forth to the present legal regime relating to the High Seas.
Exception 6: Slave Trade
As under Article 99 of the 1982 Convention on the Law of the Sea, states
that every state shall take effective steps to prevent and punish the transport
of slaves in ships that are authorized to fly its flag, and, to prevent the
unlawful usage of its flag in pursuance of a purpose to dabble in slave trade.
Article 13 of the 1958 Convention on the High Seas indicated that any slave
seeking refuge on board any ship, irrespective of its flag, shall be free ipso
facto. Article 110 of the 1982 Convention on the Law of the Sea, which
brought forth Article 22 of the 1958 Convention on the High Seas, dictates
that warships may board foreign merchant ships where there exists a
reasonable suspicion of engaging in slave trade, and, the offenders ought to
be handed over to the flag state for trial.
Exception 7: Hot Pursuit
Hot pursuit refers to a right given to the ship of a coastal state, to pursue a
foreign ship that has infringed the laws of the coastal state, in a bid to
prevent it from escaping punishment by escaping into the high seas. By this
right, a state has the authority to extend its jurisdiction onto the high seas,
with a view to pursue and seize a ship that is infringing its laws, in certain
circumstances. Originally, the right existed in a rudimentary form in the
early 19 century, and has now burgeoned into a comprehensive regime, as
explained under article 111 of the 1982 Convention on the Law of the Sea,
which augments the right as it existed under article 23 of the 1958
Convention on the High Seas.
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The right of hot pursuit is said to commence when the coastal states
authorities have reasonable grounds to believe that the foreign ship has
infringed its laws. The pursuit, in effect, begins when the ship or any of its
smaller boats, are within the internal waters or the territorial sea or the
contiguous zone of the coastal state. Subsequently, it may continue outside, if
such pursuit remains uninterrupted. If the pursuit begins while the ships are
in the contiguous zone, it is necessary that such pursuit be undertaken only if
there has been a violation of the rights of the coastal state in respect of the
contiguous zone itself. The right also exists for an archipelagic state in
respect of its archipelagic waters, and applies to all violations that occur in
the exclusive economic zone and the continental shelf, of course, with the
necessary alterations in the legal provisions. There can be hot pursuit only
when the ship conducting the pursuit, is satisfied reasonably that the ship
being pursued is within the territorial sea, or the contiguous zone or
exclusive economic zone, or, even the continental shelf. Before embarking
upon the chase, it is mandatory that there should be a visual or auditory
signal, demanding that the infringement be ceased. Pursuit can be deployed
as a tactic only by warships, military aircrafts and vehicles that have
special authorization from the government. Hot pursuit ceases the moment
the pursued ship enters its own territorial waters, or those of another state.
All conditions as under Article 111 are cumulative, as explained in M/V
Saiga (No.2). [1130] At all points of time, a state is required to obey
international law, and avoid the use, or threat of use of force, except of
course, where it is unavoidable and simply has to be deployed as a means
of action.[1131]
Exception 8: Treaty Rights and Obligations
Although the right over the high seas is indeed absolute, certain states may
allow other states warships to carry out certain acts, or to exercise certain
powers in relation to searching vessels flying the flags of the signatories to
the treaty. This has been oftentimes seen in the cases where in a bid to
suppress slave trade or piracy, warships of states that entered into
agreements began to permit the right to search and detain vessels involved
in such kind of activities. A case in point is the UK-US agreement on
Vessels Trafficking in Drugs, 1981, where the issue of arms trade and
narcotics smuggling permitted the right to wield certain powers relating to
searching certain vessels on sea.[1132]
Exception 9: Protecting the Marine
Environment
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Environmental concerns are of utmost importance, considering that the high


seas may possibly be open to being polluted under the notion that it belongs
to none, and hence no one owes anyone an obligation. In keeping with this
concern, the erstwhile 1958 Convention on the High Seas under Article 24,
explained that states had to draw up regulations to prevent the pollution of
the high seas by the discharge of oil or the dumping of radioactive wastes.
In augmentation of the same, the 1958 Convention on the Fishing and
Conservation of the Living Resources of the High Seas, under Article 1,
stated that states were under a duty to adopt and cooperate with other states
in adopting such measures as necessary for the conservation of living
resources in the high seas. Subsequently, in 1969, the Convention on the
Intervention on the High Seas in Cases of Oil Pollution Casualties also
declared that states ought to have taken such measures on the high seas as
necessary to prevent, mitigate or eliminate grave and imminent danger to
their coastlines, or, related interests from pollution or threat of pollution of
the sea by oil, following a maritime casualty or acts pertaining to such
casualties, which may reasonably be expected to ensue in harmful
consequences. The provision was applied in the Torrey Canyon Case,
[1133] where a Liberian Tanker spilled large amounts of oil over large
expanses of the UK and French coastlines. The tanker was bombed and set
ablaze by the United Kingdom in a bid to avert further pollution and
damage.
The present regime includes other conventions as well, such as the 1954
Convention on the Prevention of Pollution of the Seas by Oil, the 1972
Convention for the Prevention of Marine Pollution by Dumping from Ships
and Aircraft, the 1973 Convention for the Prevention of Pollution from
Ships, and the 1974 Convention for the Prevention of Marine Pollution from
Land-based Sources. The 1982 Convention encompasses a comprehensive
regime, including within its fold plenty of articles for the sake of protecting
and preserving the marine environment. Though flag states remain the ones
to legislate pertaining to their ships, the 1982 Convention imposes certain
minimum standards exclusively to be followed by the ships irrespective of
their nationality as explained by Article 211. States are also under an
obligation to fulfill their obligations under international law, in relation to
protecting and preserving the marine environment and the entire cache of
resources related therein. Article 235 dictates that States are obliged to
provide recourse in accordance with their laws, for the grant of
compensation and other relief, for any damage caused by them by polluting
the marine environment, by their vessels, or by people within their
jurisdiction.
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Underlying all these norms is the fact that states are bound to protect and
preserve the marine environment, as required by article 192.
Landlocked States
It has been a long identified and recognized principle that all states have a
right to enjoy the freedoms of the high seas, and this right extends to all
landlocked states, as well. Article 3 of the 1958 Convention on the High
Seas stated that in order to enjoy freedom of the seas on equal terms with
coastal states, states having no sea-coast should have freedom of access of
the sea. This was also echoed in the subsequently enacted Convention on
Transit Trade of Landlocked States in 1965. The 1982 Convention on the
Law of the Sea, under Article 125 makes it clear that landlocked states shall
have the right of access to and from the sea for the purpose of exercising the
rights as under the convention including the freedoms of the high seas and
the common heritage of mankind. Furthermore, the landlocked states are
afforded a right of transit through the territory of transit states by all means
of transport. The article explains that all arrangements of transit shall be
governed and regulated by agreements entered into by the concerned states.
Further, the transit states are allowed to take all measures necessary to
ensure that the rights and facilities provided for under the article are not
exercised in infringement of their own rights.
There is, thus, no absolute transit right for a landlocked state. The 1982
Convention on the Law of the Sea provides a comprehensive regime on
landlocked states from articles 127 to 130, including details pertaining to
transit arrangements and their operability. Ships bearing the flag of a
landlocked state are allowed equal treatment as that granted to other foreign
ships in maritime ports, as per article 131. Innocent passage as a right is
granted even to the vehicles of the landlocked state, as explained under
Articles 17, 38(1), 52(1), 53(2), 58(1), 87 and 90 of the 1982 Convention
on the Law of the Sea. As a naturally expected corollary, landlocked states
are allowed equal participatory rights in the process of exploiting an
appropriate proportion of living resources in the economic zone of coastal
states in the same region, in keeping with geographical considerations, as
under article 69(1) of the 1982 Convention on the Law of the Sea.
Furthermore, this right is extended to states that are geographically
disadvantaged, in keeping with article 70(1). All such rights are to be
exercised with due importance attached to the agreements entered into by
the states involved, as instructed by articles 69(2) and 70(2). Landlocked
states also enjoy rights in relation to the international seabed in keeping
with article 148 of the 1982 Convention on the Law of the Sea, which says
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that effective participation of developing states in the international seabed


shall be promoted, with due consideration of their special interests and
needs, and with special importance attached to the needs of geographically
disadvantaged states and landlocked states, in a bid to help them overcome
their obstacles as they emanate from their disadvantaged location or
geographical structures, inclusive of remoteness of their area and the
likelihood of difficulty of access to and from such area.
The International Seabed
There are, without doubt, plenty of resources housed in the seabed, and its
value has considerable importance in the present day. The wealth contained
in the high seas, and the treasure trove of the resources found in the
international seabed, have led to a lot of states interests and attention being
focused on them. Technology and science have advanced enough to enable
the exploration and exploitation of these resources. Concerned with the
likelihood of over-appropriation or the possibility of sovereign claims, the
UN General Assembly passed a resolution in 1969, namely, UNGA Res
2574 (XXIV), wherein a moratorium was sought, on all forms of deep
seabed activities. Following this move, in 1970, a Declaration of Principles
Governing the Seabed and Ocean Floor and Subsoil Thereof came into
place, dictating that the area and its resources formed the Common Heritage
of Mankind and was not to be appropriated, nor was there any room for
rights to be acquired over it without conformity with any international
regime set up to govern the exploration and exploitation of the seabed.
With the onslaught of the 1982 Convention, this regime came into play as
explained under Part XI of the same. Article 1 defines the international
seabed as being the seabed and ocean floor and subsoil thereof, beyond
national jurisdiction. In terms of mathematics and distances, the seabed
would commence at the outermost edge of the continental margin or at least
at a distance of 200 nautical miles starting from the baselines. Since the
zone is completely free of sovereign control, as a rule, all activities ought to
be undertaken solely with the objective of serving the benefit of mankind as
a whole, by or on behalf of the International Seabed Authority as
established under the Convention. However, a perusal of Articles 112, 145
and 256 explains that certain activities, such as the acts of pipeline and
cable laying and scientific research that do not concern seabed resources,
do not require prior permission from the authority. Nevertheless, minerals
that are recovered from the seabed are permissibly alienable, as dictated by
articles 136 and 137. Since the authority looks at the upkeep of benefit of all
285

states and mankind as a whole, all activities carried out by or on behalf of


the authority shall be subject to an equitable sharing regime. When activities
are undertaken, thus, there should be conformity with article 153, where
activities are to be taken up only by the enterprise - the organ as established
by the Authority as its operative wing, or, states themselves or state
enterprises, or, any individual possessive of the nationality of the state
parties or individuals effectively controlled by the state enterprises, in
association with the authority. These qualified applicants, thus, will have to
submit a formal written plan of work to be approved by the Council after a
review is undertaken and completed by the Legal and Technical
Commission, in accordance with articles 3 and 4 of Annex III. After this, the
authority may grant its approval to a plan of work in pertinence to one of
these sites, and, designate the other as a reserved site. By labeling it thus, it
implies that only the Authority may exploit the same, either through the
enterprise or in congruence with the states associated, as per articles 8 and
9.
During the process preceding the passage of the 1982 Convention on the
Law of the Sea, two resolutions were passed. The first essentially
established a Preparatory Commission, in a bid to arrange for a mechanism
to enable the operation of the Authority, and also the International Tribunal
for the Law of the Sea.[1134] The second related to the creation of special
provisions for eight pioneer investors, one each from Belgium, Canada,
France, Federal Republic of Germany, India, Italy, Japan, The Netherlands,
UK, US and USSR. These states were granted the pioneer status, and each
invested an approximate amount of about 30 million dollars in order to
prepare for seabed mining, of which a minimum of 10% was to be invested
in a specific site. In order to depict authenticity, the state had to certify the
occurrence of the same. With this, plenty of regions were marked as specific
sites for the sake of mining activities.
Though there was a clear-cut regime provided for, the United States of
America was exceedingly vociferous in its protest against the same, and
therefore it voted against the adoption of the 1982 Convention. The UK
followed suit in action, and demanded a comprehensive and satisfactory
legal regime for the international seabed. Since there was no assurance
given in pertinence to access of the seabed minerals, and there was a
question arising relating to the lack of free play of market forces, along with
the lack of proportionality in decision making in respect of those countries
that were most affected, the regime was not accepted.[1135] With such
vociferous denunciation, states wanted to pursue alternative courses of
action to assure the creation of a regime for the international seabed. This
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sparked off the enactment of several pieces of municipal legislation in the


domestic legal realms of varied states.[1136] Subsequently, an agreement
came about in 1982, between France, Federal Republic of Germany, the UK
and the US, called the 1982 Agreement Concerning Interim Arrangements
relating to Poly-metallic Nodules of the Deep Seabed. The agreement
required consultations in the wake of overlapping claims under the ambit of
domestic law, and provides for arbitration as a means to resolve any
dispute. In 1984, another agreement, titled the Provisional Understanding
Regarding Deep Seabed Mining between Belgium, France, Federal
Republic of Germany, Italy, Japan, Netherlands, UK and the US, provided
that no state was permitted to issue an authorization in respect of an
application or seek registration of an area that falls within the ambit of
another properly filed application which is under consideration by another
party, or, within an area that has been claimed in another application filed in
keeping with the national law, and the agreement prior to 3 April 1984, or
prior to the application or request for registration and is still under
consideration of another party, or, within an authorization granted by another
party which is in conformity with the rules under the agreement. No party by
itself, is allowed to engage in deep seabed operations in areas for which it
shall neither issue authorization nor seek registration in keeping with the
agreement.
A declaration was eventually adopted in 1985 by the Preparatory
Commission under the 1982 Convention on the Law of the Sea, which
indicated that any claim, agreement or action relating to an area and its
resources undertaken outside the purview of the Commission, which is
antagonistic to the dictates of the 1982 Convention on the Law of the Sea,
and the related realm of resolutions will not be recognized. Furthermore, in
1987, the Agreement on the Resolution of Practical Problems with respect
to Deep Sea Mining Areas was signed in 1987 between Belgium, Canada,
Italy, the Netherlands and the USSR. Appended therewith, were a series of
Exchanges of Notes inclusive of the Federal Republic of Germany, the UK
and the USA. The agreement attempted to address the question of
overlapping claims relating to states within the 1982 Convention on the Law
of the Sea, and other states, specifically addressing the Clarion-Clipperton
zone in the North-Eastern Equatorial Pacific.
Following this, in 1994, an agreement on the Implementation of the Seabed
Provisions of the Convention on the Law of the Sea came up. Article 1
stipulates that the state parties undertake to implement Part XI of the 1982
Convention in keeping with the Agreement. Article 2 indicates that the
agreement and the 1982 Convention on the Law of the Sea ought to be read
rd

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together, as a singular document, and in the event of any ambiguity or


inconsistency, the agreement prevails over the convention. The agreement
provided that all entities established under the ambit of the convention and
the agreement itself were to be compulsorily cost effective, in keeping with
an evolutionary approach while considering the functional needs of such
organs or bodies. Section 1 of the Annex enumerates a list of institutional
arrangements in relation to the work of the International Seabed Authority.
Section 2 indicates that the work of the enterprise is to be carried out by the
Secretariat of the Authority initially, and the enterprise shall conduct its
initial deep seabed mining operations through joint ventures that comply
with sound commercial principles Further, section 3 indicates that decision
making in all wings of the authority ought to comply with specific rules, and
section 4 indicates that the Assembly, upon recommendation of the Council,
may conduct a review at any time, of the matters as referred to under Article
155(1) of the 1982 Convention, notwithstanding the provisions of the article
itself, entirely. Transfer of technology to the Enterprise and developing
states needs to be based on fair and reasonable commercial terms on the
open market or through joint-venture arrangements, as under section 5.
The International Seabed Authority itself is an organization established and
organized by states party to the 1982 Convention on the Law of the Sea,
commencing from 1996 when it became fully operational. The principal
organs of the authority include the Assembly, the Council and the
Secretariat. In addition, other subsidiary entities as part of the authority
itself, is the Legal and Technical Commission and the Finance Committee.
The Assembly, as per Article 160, is the supreme organ of the authority, and
elects and appoints the Secretary General and the members of the Governing
Boards of the Enterprise and its Director General. The Council is the
executive wing, and has an Economic Planning Commission and a Legal and
Technical Commission, as explained under articles 162 to 165. As
explained by article 170, the Enterprise carries out the activities in the
International Seabed.
Dispute Resolution
While the 1982 Convention on the Law of the Sea is clear on peaceful
settlement of disputes as the means for dispute resolution,[1137] parties are
free to choose the specific modality to be employed to settle their disputes.
Article 283 simply states that where there is a dispute, parties should
proceed in an expeditious manner to follow an exchange of views relating to
settlement by negotiation or other peaceful means. Article 284 encourages
the deployment of conciliation procedures, which would allow the creation
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of a conciliation commission and the outcome would be non-binding. If no


settlement is arrived at by agreement between the parties, compulsory
procedures as under part XV of the 1982 Convention on the Law of the Sea
comes into operation, as explained under articles 286 and 287. Available
modalities include the International Tribunal for the Law of the Sea, the
International Court of Justice, arbitral tribunal as established under Annex
VII and special arbitral tribunal as established under Annex VIII for specific
disputes relating to fisheries, preservation and protection of the marine
environment, marine scientific research or navigation, pollution from
vessels and dumping.
Article 297 states that disputes relating to the exercise of sovereign rights
by coastal states in the exclusive economic zone would be subject to the
compulsory settlement process only in specific cases, such as where there
are allegations that the coastal state acted in contravention of the Convention
in relation to the freedoms of navigation, over-flight, laying of cables and
pipelines or any other uses of the sea as under article 58. Clause 2 of the
same article indicates that disputes pertaining to marine scientific research
would be settled in keeping with section 2 of the Convention, but, coastal
states are not obliged to accept the submission to compulsory settlement of
any dispute emanating from the exercise by the coastal state of a right or a
discretion to regulate, authorize and conduct scientific research in its
economic zone or continental shelf, or, a decision to order suspension or
cessation of such research. When such cases arise, the issue is to be taken to
the conciliation commission, but, such commission calls in question the
exercise of discretion on part of the coastal state to designate specific areas
or to withhold consent, all under article 246. Clause 3 provides a similar
set of rules in relation to disputes pertaining to fisheries, which, though
settled according to section 2, do not bind the coastal state if such dispute
relates to its sovereign rights in relation to the living resources in its
exclusive economic zone or relates to the exercise of discretionary powers
for determining the permissible catch or the allocation of surpluses to other
states and the terms and conditions it follows for the conservation and
management of the resources.
Another dispute resolution mechanism was established in the form
of the International tribunal for the Law of the Sea, which is an independent
judicial body established by the Convention to adjudicate disputes arising
out of the interpretation and application of the Convention. The Tribunal
comprises 21 independent members, elected from among persons enjoying
the highest reputation for fairness and integrity and of recognized
competence in the field of the law of the sea. The Tribunal has the Chamber
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of Summary Procedure, the Chamber for Fisheries Disputes, the Chamber


for Marine Environment Disputes and the Chamber for Maritime
Delimitation Disputes. Any state that is party to a dispute over which the
Seabed Disputes Chamber has jurisdiction may request it to form an ad-hoc
chamber composed of three members. The Tribunal is open to States that are
party to the Convention and, in certain cases, to entities other than states,
such as international organizations and natural or legal persons. The
jurisdictional competence of the Tribunal extends to all disputes submitted
to it in accordance with the Convention. It also extends to all matters
specifically provided for in any other agreement which confers jurisdiction
on the Tribunal. Unless the parties otherwise agree, the jurisdiction of the
Tribunal is mandatory in cases relating to the prompt release of vessels and
crews under article 292 of the Convention and to provisional measures
pending the constitution of an arbitral tribunal under article 290, paragraph
5, of the Convention. The Seabed Disputes Chamber is competent to give
advisory opinions on legal questions arising within the scope of the
activities of the International Seabed Authority. The Tribunal may also give
advisory opinions in certain cases under international agreements related to
the purposes of the Convention. Disputes before the Tribunal are instituted
either by written application or by notification of a special agreement. The
procedure to be followed for the conduct of cases submitted to the Tribunal
is defined in its Statute and Rules.

Chapter 11- Jurisdiction


Jurisdiction, as a term, has varied connotations. In relation to a court, it
refers to the power or the competence of a court to hear and adjudicate upon
a case, in relation to which its decision is sought. In the context of a state, it
may refer to territorial expanse, such as, by saying that a certain event
occurred within its jurisdiction; it may refer to the powers a state may
exercise over its people, property and circumstances that occur within its
territorial ambit, stemming from the key tenets of sovereignty and legal
status arising out of the position the state holds, with respect to its domestic
or municipal realm.[1138] Jurisdiction plays a rather important role under
international law, since it is an offshoot of sovereign powers, wielding
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which a state may choose to create, modify or do away with legal


obligations and legal relationships.
Jurisdiction of a state, thus, is clearly founded on territorial sovereignty
although it extends well beyond it. However, there lies quite a marked
distinction as between the powers enumerated above, although the
distinctions tend to blur in practice. A simple case in point is the instance of
an offence committed by a man, in State A, and his subsequent escape to
State B. While State B can indeed subject him to a trial, since they do have
jurisdictional competence for the same, the police officials belonging to
State B cannot enter State A to apprehend him. If they do so wish to try the
perpetrator, they should apply and request the authorities of State A to arrest
and hand over the perpetrator, and to surrender him for trial to State B. This
is a practical exposition of the law as it applies, and indicates the existence
of strong overtones of territoriality and sovereignty. This is clearly
indicative of the fact that while prescriptive jurisdiction can be exercised in
relation to anything occurring within its territorial limits irrespective of the
nationality of its perpetrators, enforcement jurisdiction is exercisable only
subject to the restriction that the perpetrator, or the person for whom such
enforcement action is to be taken is found on the territory of the state. A state
cannot exercise or wield its governmental authority in act or omission on the
territory of another state, without the consent of such other state. Sovereignty
in the relations between states signifies independence.[1139] Independence
in regard to a portion of the globe is the right to exercise, therein, to the
exclusion of any other state, the functions of a state.[1140] While this is the
general rule, there are some situations where it is possible to arrest a
suspected offender, with a lacking jurisdictional basis. If an offender is a
national of State A, commits an act in State B, he cannot be subject to a trial
for it in State C even if he is present there, although State A and State B can
apply and request for him to be handed over for a trial, from State C.
Another exception is the case of states and the exercise in pursuance of their
assertion of law enforcement rights abroad.[1141] The abduction of the
Nazi war criminal Eichmann in Argentina by Israel in 1960,[1142] the
kidnapping undertaken by US agents in the Alvarez Machain case,[1143]
and the case of the Rainbow Warrior,[1144] were examples of exercise of
jurisdiction transcending the territorial limits as provided by the law. The
more recent cases of Hamdi v. Rumsfeld,[1145] Hamdan v. Rumsfeld,
[1146] and Rasul v. Bush,[1147] evidenced plenty of questions being
raised in relation to jurisdiction and the competence of courts, and the right
of a state to detain suspects within its hold.
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In principle, although jurisdiction is virtually tied to the notion of


territoriality, there happens to be no such limitation in reality. States have
clearly taken the law into their hands in apprehending perpetrators, or
subjecting offenders to extraordinary rendition, or even taking to detention
and bombing of states where they suspect the criminals to be present,
transcending the limits imposed by the law relating to jurisdiction. There is
also the exception of immunity as accorded to officials and diplomats
representing the country, which allows them to steer clear of any form of
questioning in relation to any of their conduct, and any trials undertaken to
decide their culpability. Jurisdiction, while easy in principle, is a rather
complicated issue in practical application. International law, no doubt, lays
down the core tenets to be followed in dealing with the limits and extent to
which a state may exercise governmental functions. But, the practical
application also involves a considerable application of the conflict of laws,
or private international law, which brings forth a solution to the question as
to whether the state in question has jurisdiction to determine the culpability
of the offender, and if that is so, what laws shall be applied in dealing with
the case. It is indeed clear that there are different grounds for the exercise of
jurisdiction and for the rules of private international law. Private
international law seeks to explore issues in the light of domicile and
residence, while international law does not deal with either as a basis.
[1148] The overlap of both branches of the law find place in most instances
involving questions of jurisdiction, since constitutional law of the state
involved also plays a considerably important role in most cases relating to
jurisdiction. Therefore, it would be fair to conclude that the domain of
private international law covers the exercise of legislative, executive and
judicial powers by the government the domain of international law governs
the extraterritorial applicability of jurisdictional prowess and competence.
Kinds of Jurisdiction: The Three Wings
The three wings of any governmental power are best known as the
legislature, executive and judiciary. The legislature passes the law, while
the executive enforces it. The judiciary expounds the law where there is any
ambiguity, and adjudicates any disputes where it arises in relation to the
law, whether in its theoretical sense, or in its application. The ambit and
reach of a state, as mentioned, is called jurisdiction. Jurisdiction, like a
states generic power, bears overtones of the three wings of every
government, legislative, executive and judiciary, and accordingly, each wing
performs related functions through the appointed and recognized authorities
for the same purpose. The authority to prescribe the law is termed
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prescriptive jurisdiction, while the authority to implement the law so laid


down is termed executive jurisdiction. In essence, prescriptive jurisdiction
relates to the power of a state to prescribe law within and outside its
territory, and enforcement jurisdiction is about the power of the state to
implement the law within its territory.[1149] A third kind is called judicial,
or adjudicative jurisdiction, which refer to the powers of the courts of the
state, to hear and adjudicate upon cases relating to persons, properties and
events occurring within its municipal realm.
Legislative jurisdiction refers to the supremacy of the organs of the state that
derive recognition from the constitution, to make binding laws within the
territorial expanse of the state. However, sometimes, by virtue of being
what is called, a long-arm statute, certain pieces of legislation extend
abroad, or to aliens. States are permitted to enjoy jurisdictional exclusivity
in the legislative sphere, with which it may determine the procedural and
substantive legal set up for its territory and the people on its territory. This,
consequently, is a recognized notion in international law. A state is free to
levy taxes against individuals, who are not within its territory, as long as
there is an acceptable link of nationality or domicile,[1150] a state is also
free to nationalize foreign-owned property which lies within its borders, but
cannot take over any foreign-owned property situated abroad. Albeit vested
with a considerable measure of legislative supremacy, a state cannot adopt a
law contrary to the provisions of international law. There is no room to
plead municipal laws as a justification or as a basis for the breach of an
international obligation.[1151] A state is also not allowed to abuse the
rights it has, in a bid to legislate for its nationals abroad, who may be guilty
of breaching international law.
Executive jurisdiction refers to the capacity of a state to enforce the laws
passed by the legislature, within its borders and within the borders of
another state. States possess sovereignty within their territorial realm, in
that the state is permitted to execute, or to enforce its law within its
territorial expanse.[1152] As a corollary, states may not carry out their
functions on foreign land, nor enforce their laws on foreign land without
express consent of the host state.[1153] A state cannot apprehend or arrest
people abroad, and cannot seize property abroad. The Eichmann case,
[1154] is an example, where Eichmann, a Nazi criminal was apprehended
by Israeli agents in Argentina in 1960. This action was denounced as a
breach of Argentinas territorial sovereignty and was deemed an illegal
exercise of Israeli jurisdiction. States cannot send their military forces into
the territory of another state, except where authorized.
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Judicial jurisdiction refers to the power of the courts of a state to try cases
where a foreign element exists.[1155] States are permitted to exercise
jurisdictional powers in respect of civil and criminal cases, based on
several principles, such as the territoriality, universality, nationality,
passive personality and protective principles. Jurisdictional competence of
states in issues pertaining to jurisdiction has raised the largest number of
debates and has initiated ample discussions.
Domestic Jurisdiction: Conceptual
Framework
Given that a state is a sovereign, it is supreme in relation to its internal
realm, namely, its territorial expanse. Arising from this rule is the fact that a
state cannot intervene in the domestic affairs of another state. Simply put, a
state cannot interfere with another state in respect of its activities
concerning its domestic realm. The rule has come to be known as the
principle of non-intervention, and is essentially laid down to keep state
activities out of the reach of international law. Some of these activities
include the process of determining the criteria for attaining nationality and
the rules to be followed for an alien to enter the state, along with an
enunciation of the circumstances in which the alien may enter the state and
the rights and duties that are permitted to be enjoyed. While the idea is to
retain the aforementioned within the ambit of a states domestic realm,
international law has begun to make its impact on them. The way a state
deals with aliens on its territory is not left to its discretion entirely, any
longer, especially with the advent of international human rights as a means
to keep any unwarranted harm in check. Article 2(7) of the UN Charter
states that nothing contained in the UN Charter shall authorize the UN to
intervene in matters which essentially lie within the domestic jurisdiction of
any state, or, shall require the members to submit such matters to settlement
under the Charter. The article reinforces the notion of domestic jurisdiction
as it stood in international law, and till date, has been subject to ample
interpretation and explanation. Albeit of considerable importance, the
provision has remained a paper tiger throughout, since it hasnt in any way
prevented intervention by states in the affairs of other states, nor the United
Nations from discussing, debating or adopting resolutions on the internal
policies and activities of member states, consequently whittling down the
ambit of the principle of domestic jurisdiction. A case in point is the postwar decolonization move, the biggest European colonial powers had to give
up their colonies in the wake of a wave of resolutions being passed and
adopted, in relation to self-determination and the grant of independence for
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the colonies under their wing. Human rights has been another sphere where
the United Nations has transcended boundaries, into dealing with the nittygritties of state policies.
Domestic jurisdiction is not a constant, conceptually speaking, considering
that there is ample alteration and modification with every change in
International Law.[1156] International law impacts the domestic realm, as
much as the converse does, and therefore, it is absolutely futile to so much
as assume that domestic jurisdiction, in principle, can remain in its high
tower of isolation without the reach of international law. In the Anglo
Norwegian Fisheries Case,[1157] the ICJ pointed out this fact in the
context of territorial water delimitation, mentioning that although it is
correct that the process of delimitation is necessarily an act of unilateral
nature, because only the coastal state is competent to carry it out, the
validity of the delimitation process in relation to other states depends
entirely on international law, and can therefore be tested in congruence with
the demands and criteria as laid down under international law.[1158]
Subsequently, the court also followed suit in the Nottebohm Case,[1159]
where it noted that though a state may determine rules in relation to the
process of acquiring nationality, the actual exercise of diplomatic protection
and diplomatic immunity lies within the ambit of international law proper.
It is a clearly established rule in international law, both in custom and treaty,
that there is no room to plead municipal laws as a justification or as a basis
for the breach of an international obligation.[1160] Therefore, one cannot
fathom a situation where the domestic legal system and the process of the
exercise of its jurisdictional powers remains isolated from international
law. This automatically suggests that there is no real rigid segregation
between issues, as being exclusively within the purview of either branch of
law. Nevertheless, as a principle, the conceptual framework of domestic
jurisdiction has considerable theoretical value and sufficient practical value
given that it recognizes the fact that a state is entirely sovereign within its
own territorial expanse.
Civil Jurisdiction
Jurisdiction, in the civil context, is enforced only as a last resort, by putting
into application the sanctions of criminal law. Despite this similarity, plenty
of differences set both apart. Civil jurisdiction primarily applies in plenty
of cases, in a wider context as opposed to criminal jurisdiction.[1161] The
generally followed basis for jurisdiction in civil cases in common law
countries is the service of a writ upon the defendant within the country,
irrespective of the non-permanent nature of his presence.[1162] The
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practice is different in continental European countries, where the usually


accepted basis for jurisdiction is the habitual residence of the defendant in
the state involved. Certain other states permit the exercise of jurisdiction
where the defendant possesses assets in the state, such as Denmark and the
Netherlands. The ambit of civil jurisdiction does not extend to include
instances of diplomatic protests or collective public opinion, as it occurs in
the case of criminal jurisdiction. Considering such a fact, it has been
generally professed that international law per se, does not quite prescribe
any specific regulations in relation to the restriction of courts jurisdiction in
civil issues.[1163] Jurisdiction in civil cases is not restricted much by
international law, except in cases involving sovereign and diplomatic
immunities as vested in the personnel representing states.
Criminal Jurisdiction
Criminal law and the exercise of jurisdiction under international law has
sparked off debates many a time. It is usually in a rare turn of events when
international law requires the exercise of jurisdiction of municipal courts.
Most relevant rules under international law comprise restrictions and
prohibitions on the ambit and extent of applicability of international law.
Therefore, if a municipal court is found to be exercising jurisdiction in
violation of any of the prohibitions imposed, the state of the individual
injured by the exercise of jurisdiction is allowed to make an international
claim. The defending state cannot plead that the exercise of jurisdiction
derives validity under the ambit of municipal law, and that the trial itself
was carried out in a manner befitting the requirements imposed by natural
justice, fairness and equity. Nevertheless, in practical application of
international law and the notion of judicial jurisdiction, it is found that in
certain instances, international law neither imposes a restriction nor a
requirement that municipal courts hear cases. What it does, instead, is to
offer the municipal court a chance to exercise jurisdiction, which then puts
the municipal court in a position to decide whether it wishes to exercise
jurisdiction, or leave it. Municipal law is then left to decide the
jurisdictional expanse of the municipal courts, and international law merely
takes a step back and imposes a couple of limitations on the discretionary
powers of the states. When it comes to criminal jurisdiction, international
law dictates a number of defined rules upon which jurisdiction may be
exercised. Each principle has a different standing under the present legal
system, some of which derive support from state practice, while some have
gained historical value.
The Territoriality Principle
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The territoriality principle stems from the fact that every state has the
jurisdictional competence over crimes that are committed on its own
territory, even if they have been committed by foreigners on their soil. The
fount of the notion is the fact that the state has the right to exercise sovereign
rights over its territorial expanse, which in turn permits the state to exercise
a series of legal rights that it possesses.[1164] A state should be able to
prosecute the perpetrators of offences that are committed upon its soil, in
keeping with the notion of equality of independent state, and the right of
sovereign control over its domestic realm. It is also a matter of
convenience, considering that the witnesses to the crime, and in many
instances, the offender himself, will be on the soil of the state.[1165]
It is also a possibility that an offence may begin in one state, and continue
into another, finally being completed there. In such cases, both states have
jurisdictional rights- namely, the state where the act was committed, and the
act where the act commenced. The difference in the nature of the
jurisdictional exercise is, however, that the former is a case of objective
territoriality, based on the basics of the effects doctrine, while the latter is
built on the foundations of the subjective territorial principle.[1166] As to
which state will exercise jurisdiction, is left to the being decided based on
where the accused is present. In the Lockerbie case,[1167] it was clear that
Scottish courts had jurisdiction over the alleged bombers of the airplane
which exploded over Lockerbie, which was in Scotland. Immigration
related offences and conspiracy where offences occur in two or more
states[1168] are other instances where this rule applies. The process of
determining which court could further its jurisdictional competence, by
trying its cases, involves the analysis of the substantial part of the crime
committed.[1169] In such cases, some, or even most of the elements of the
offence may occur outside the State. Therefore, the point at issue is just how
much of the offence needs to occur within the territorial ambit of the state
before it can claim territorial jurisdiction. Plenty of tests exist in this regard.
The most popularly applied theory of all, is the doctrine of ubiquity,[1170]
which permits the state to assume jurisdiction over an offence, which
includes even inchoate offences that are connected to the same, if, a part of
the offence is committed outside the state. This doctrine is also stretched to
include another principle of jurisdiction, the passive personality principle.
Per se, the doctrine has utility in both forms of the territoriality principle,
the subjective and the objective sides. In the former, the doctrine of ubiquity
suggests that jurisdictional competence exists if an element of the offence
occurs in the prosecuting State.[1171] The practical explanation of the
doctrine is found in the Canadian decision in Libman v. The Queen,[1172]
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where the accused was charged with fraud, whereby he had telephoned
residents of the United States from Canada, and had induced them to buy
some worthless shares of some Costa Rican gold mines, with a bunch of
false statements in a bid to over-hype their values. The fraud-victims sent in
their money to the accused, in Panama and Costa Rica, which was
eventually received back in Canada. In a dissected analysis, it seems clear
that the crime was committed in Canada, the deception itself occurred in the
USA, and the consequence of the crime ensued in Central America.
By using the territoriality principle, a state is permitted to apply its laws to
ships flying its flag or aircraft registered with it, and persons on board the
ship. A state also has sovereign rights over its airspace, and can therefore
try offences committed on board aircrafts that are registered with it.
However, foreign-registered aircrafts are subject to the jurisdictional
control of the state with which it is registered, in relation to offences
committed when the aircraft is in flight.
The role and importance of territoriality and sovereignty in the context of
criminal acts was explained in the Lotus Case,[1173] where a French
steamer, called the Lotus, collided with the Box Kourt, which was a Turkish
collier. The Turkish authorities arrested the French officer of the watch
during the occurrence of the incident, when the Lotus had just reached a
Turkish port. The French officer was charged with the offence of
manslaughter, at which point France protested vociferously against the
charge, while asserting complete lack of jurisdiction on Turkeys part. In
dealing with the dispute, the PCIJ concluded that there could be no
presumptions in favour of restrictions being imposed on the independence of
states. While this was so, it was not available for a state to act outside the
ambit of its permissive frontiers under international law. However, the
Court asserted that this did not automatically imply a prohibition under
international law, of a state from exercising jurisdiction in its own territory,
in relation to any case relating to acts having occurred abroad and in which
it cannot rely on some permissive rules of international law. Therefore,
states were granted a wide measure of discretion that was limited only in
specific instances, by rules of a prohibitive nature. With this decision,
several states began adopting plenty of rules that extended their jurisdiction
beyond the territorial limits, so that the territoriality of criminal law is not
an absolute principle of international law and by no means coincides with
territorial sovereignty.[1174] With this, the French claim that the flag state
bore exclusive jurisdiction over its ships on the high seas was turned down,
on the ground that no rule to that effect had emerged under international law.
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The court also stated that the damage that occurred to the Turkish ship was
in effect, damage caused to Turkish territory, which gave Turkey the right to
exercise exclusive jurisdiction on the basis of the objective territoriality
principle, without any curbs under international law. The decision has
received ample criticism by several scholars, especially of the fact that the
court construed states as possessing very wide powers of jurisdiction,
which if at all restricted, could only be restricted by proof of a rule of
international law that prohibited the action in question.[1175] Tables have
turned today, and the converse is emphasized upon duly. The principle of
territorial jurisdiction includes within its ambit offences and crimes that
occur not just on land, but also upon the territorial seas, contiguous and
other zones, and on the high seas in respect of the flag state of the ship.
The territoriality rule does not extend to the operation of one states
sovereign control over another, without the latters consent. Therefore, the
officials of a state cannot take steps to take evidence or exercise other forms
of jurisdictional control without the consent of the territorial State. Legal
processes cannot be served directly in another state. If it must be served,
then it should be done in a means as acceptable between the states involved,
in keeping perhaps, with a treaty as has been entered into by both states. A
court should also keep itself within limits when it comes to asking a
defendant to produce documents that have been held in another state. The
exercise of local criminal jurisdiction or even disciplinary jurisdiction over
members of the foreign armed forces hinges entirely on the agreements that
have been entered into with the host state, which usually takes the colour of
a status-of-forces-agreement. Immunity is granted to foreign diplomats, from
the exercise of jurisdiction of domestic courts. This does not automatically
imply that there can be no exercise of jurisdiction over them at all it is just
that it cannot be exercised unless such immunity as granted to them, is
waived.
The Nationality Principle
The jurisdictional competence of every state is evinced in its exercise of
sovereignty over its people and property. A state, as a natural corollary to
its status as a sovereign, is allowed to legislate in order to regulate
activities of its nationals abroad, irrespective of whether they reside there
or are merely visiting. It can prosecute its nationals for crimes committed
anywhere in the world, in pursuit of what is called the active nationality
principle. Being put to extensive use by continental states for a while now,
the principle has moved on to attain universal acceptance.
Therefore, for a state to exercise such jurisdiction there needs to be a link
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between the state and the entity upon which it seeks to exercise such
jurisdiction. This link, at most times, is provided by nationality. Many
states, such as the United Kingdom and the United States accord
jurisdictional prowess based on nationality. In fact, English courts are given
jurisdictional rights relating to specific crimes only, such as treason, murder
and bigamy, and do not adjudicate upon cases requiring the enforcement of
foreign law. The United States allows for a trial by its courts only for the
violation of the United States Law, and not for the violation of penal
strictures of any other foreign state. Whether a person is accorded
nationality of a specific state or not, is left to the municipal laws of the state
involved to determine. International law functions as an overseer of sorts,
by laying down only certain limits for states to prescribe the criteria that
need to be fulfilled to attain the status of a national. Other states tend to
claim jurisdictional control by holding on to links other than nationality,
such as, the question of long residence or domicile. By general practice, it
can be concluded that these means of jurisdictional exercise have not been
protested against, nor questioned, by other states. In the Nationality
Decrees in Tunis and Morocco case,[1176] the PCIJ, whose opinion was
sought by the Council of the League of Nations, in a dispute between Britain
and France in relation to some French nationality decrees which granted
French Nationality to the children of a few British nationals, stated that the
question of whether a certain matter is, or is not within the jurisdiction of a
state is essentially a subjective question, and depends on the evolution of
international relations. Therefore, it would be in the fitness of things if
questions of nationality are reserved within the domain of municipal law.
Such ideology is also inscribed under international treaty law, as is found
under Article 1 of the 1930 Hague Convention on the Conflict of Nationality
Laws, which explained that it is for each state to determine under its own
law who are its nationals, and, such law shall be recognized by other states
in so far as it is found consistent with international conventions, custom and
general principles of law pertaining to nationality.
Nationality grants to an individual a host of rights. As a national, thus, a
person is allowed to enjoy the status of a valid passport-holder, allowing
him to travel abroad bearing the status of belonging to the state whose valid
passport he holds. A national is also permitted to avail of certain job
opportunities which may not ordinarily be open for non-nationals, such as
those of diplomatic cadres and the like. Additionally, nationals are
permitted to avail of certain rights which are exclusive to citizens and are
not offered to aliens, such as the right to vote. The state, however, is under
an obligation not to mistreat aliens on their territory, and not to conscript
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them into their armies. Since aliens do not have a link of nationality to other
states, such other states cannot prosecute aliens for crimes committed by
them outside their territory.
Conceptually, nationality has a lot of value and importance. However, there
is no definition for the term under any legal provision. Descriptions are rife,
theories are aplenty. These distinctions tend to conflict with one another.
Municipal laws all accord the status of nationality considerable importance,
but the implications of nationality, i.e., in the form of rights and duties as
ascribed to a national, vary from state to state. In the Nottebohm case,
[1177] the ICJ explained that nationality is a legal bond, with a social fact
of attachment, a genuine connection of existence, interests and sentiments,
with the existence of reciprocal rights and duties, as its basis. Nationality,
thus, is nothing but the outward manifestation in legal terms, of the link as it
exists between the individual and the state that grants him nationality, and, a
related recognition of the fact that such individual is more closely connected
to that particular state in terms of his standing as a person belonging to a
specific state, than any other. In short, he is an individual of that particular
state, bearing the indelible mark of an identity as belonging to a particular
state. Nationality is ascribed to the individual at the time of his birth, which
is called jus sanguinis, which is essentially a case of acquisition by descent
from parents who are nationals of that particular state, and, by virtue of
being born on that particular territory, which is jus soli. These two
principles essentially function as the fount of the conceptual framework of
nationality, i.e., they are the principles upon which the principle of
nationality is itself founded.
In principle, the general rule is that a child born of nationals of a certain
state should be granted the nationality of that very state by virtue of descent.
The idea has been accepted and put into practice by several states. In many
states the child takes on the nationality of his father, some states stating that
this applies irrespective of legitimacy of the child, while some others
require that illegitimate children be accorded the nationality of the mother.
This happens in most civil law countries. Common law countries tend to
restrict the applicability of jus sanguinis, such that where a father has
acquired nationality by descent, it does not mandate that that singular fact
alone is sufficient to accord the child with the same nationality. Common
law practice leans more towards jus soli, which accords nationality to any
child born within its territorial limits.[1178] The rule is not without
exception. Those children who are born to diplomatic personnel, within the
state, do not automatically acquire its nationality.[1179] The applicability
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and practical utility of the exception varies from state to state.


Another mode of acquiring nationality is by marriage. A woman, upon
marriage, may acquire her husbands nationality. Once again, practice is not
uniform in this regard. In some states, by practice, acquisition of nationality
is automatic. For certain other states, there is a conditional acquisition of
nationality, while, for the remainder, there is no acquisition of nationality by
marriage. The converse has also been an accepted rule for a while, i.e., that
by marrying a foreigner, a woman loses her nationality. The Convention on
the Nationality of Married Women, 1957, states that contracting states
accept that marriage of one of their nationals to an alien shall not
automatically affect the wifes nationality, although it may be true that the
wife may be permitted to acquire her husbands nationality by way of
special procedures, if she may so wish to do.
Given that nationality is in itself a human right,[1180] there is a prohibition
upon discriminating between the genders while dealing with the right itself.
Article 9 of the 1979 Convention on the Elimination of Discrimination
against Women indicates that state parties are to grant equal rights with men,
in the process of acquisition, change or retention of nationality and, in
particular, neither the marriage to an alien nor the change of nationality by
the husband in the course of the marriage would render the wife stateless,
or, force the husbands nationality upon the wife. In relation to the
nationality of children, women and men enjoy equal rights.
Aliens are permitted to apply for nationality by the process of
naturalization, which primarily requires the fulfillment of certain
prerequisites, such as the residence in the state for a stipulated period of
time and that the applicant agrees to uphold and obey the national laws of
the state and other similar requirements, the details of which vary from state
to state.[1181]
The principle of nationality also forms the basis for civil jurisdiction,
especially in issues pertaining to personal status, in several states.
Matrimonial disputes and contractual relations need to be dealt with in
relation to the nationality, which assist in determination of the jurisdictional
status of the states involved. As a practice, however, common law states
base their choice of law on the law of the state where the individual has his
domicile, which, in private international law, refers to the region he intends
as his permanent home.
European continental states, in cases involving criminal jurisdiction,
jurisdiction lies based on nationality, irrespective of where the offence
itself occurs.[1182] On the contrary, common law countries restrict their
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jurisdictional competence over their nationals abroad for very serious


crimes. While this is so, there hasnt quite been any form of protest against
the extensive use of the nationality principle as a basis for jurisdiction in
criminal cases, by other states.
Nationality as a principle is not restricted only to individuals, but also to
ships and aircrafts. Article 91 of the 1982 Convention on the Law of the Sea
indicates that ships have the nationality of the country whose flags they are
entitled to fly. It is, however, left to the state to determine the conditions and
prerequisites to be fulfilled for the grant of nationality to its ships. For
aircrafts, article 17 of the 1944 Chicago Convention on International Civil
Aviation indicates that aircrafts have the nationality of the state which they
are registered with. Once again the conditions to determine the registration
of an aircraft as a national of a state, is left to the state itself to decide. On
all accounts, as it occurs in the context of individuals, it is necessary that
there subsists a link between the state and the ship or aircraft, in order for
such ship or aircraft to be a national of such state.
The Passive Personality Principle
The passive personality principle refers to the basis of jurisdiction, where a
state is allowed to exercise jurisdiction in the event where an offence is
committed abroad, but has either affected or will affect the nationals of the
state itself. As such, the principle received little support in international
law, originally, but presently enjoys a fairly popular position under
domestic judicial practice. The principle is based on the doctrine of effects,
which, in effect is the objective version of the territoriality principle that
indicates that based on the effects felt on the states territory, even if the
offense itself did not occur on the territory of the state itself.
The origins of the principle date back to the Cutting Case,[1183] where a
defamatory statement was published in Texas, of a Mexican by a citizen of
America, who was then arrested in Mexico, and convicted of the offense
under the laws of Mexico. Mexico asserted that it had jurisdictional rights,
under the passive personality principle. The United States, on the other
hand, protested the exercise of jurisdiction. However, due to there being no
conclusive end to the incident itself, there was a subsequent withdrawal of
the charges against the accused. The principle met with ample criticism in
the Lotus Case,[1184] as part of the dissenting opinion as delivered by
Judge Moore, where a French steamer, called the Lotus, collided with the
Box Kourt, which was a Turkish collier. The Turkish authorities arrested the
French officer of the watch during the occurrence of the incident, when the
Lotus had just reached a Turkish port. The French officer was charged with
303

the offence of manslaughter, at which point France protested vociferously


against the charge, while asserting complete lack of jurisdiction on Turkeys
part. In dealing with the dispute, the PCIJ concluded that there could be no
presumptions in favour of restrictions being imposed on the independence of
states. However, Judge Moore noted that the Turkish criminal code
provided for jurisdiction where a Turkish national was harmed.
Nevertheless, the final outcome of the dispute did not settle the question,
and instead decided the case in keeping with the objective territoriality
principle.
In practice, many states have voiced their opinions in pursuance of deeming
the passive personality as an improper ground for the exercise of
jurisdiction, especially the United States and the United Kingdom. In both,
the Lotus Case and the Cutting Case, the states whose nationality the
accused possessed, namely, France and USA respectively, protested the
exercise of jurisdiction on the basis of the passive personality principle.
Subsequently, in Romania v. Cheng,[1185] it was held by the Canadian
court, that Canada could not extradite nationals of Taiwan to Romania, in
pertinence to a crime that had occurred on the High seas, even though the
victims were Romanians. It is, however, true that the court interpreted the
term jurisdiction with parochial overtones. The principle has been put to
use in the context of international terrorism by France, in 1975,[1186] under
Article 689, section 1 of their Penal Code. In United States v. Layton,
[1187] a US Congressman was murdered in Guyana. The circumstances
implicated the accused, and the killing of a Congressman was an offence of
specific nature under the penal laws of the United States. The Court held
that it also covered deaths occurring abroad, particularly because the
incident sparked harmful consequences in the United States. The District
Court was apprehensive about putting the principle to use. It was accorded
acceptance only because there were other principles that were more
acceptable, and the passive personality principle stood along with them.
The main fears shrouding the application of the passive personality
principle are that it is believed that the principle supports powerful states,
at the cost of the interests of the weaker states.[1188] In addition, it has been
expressed on different accounts that the passive personality principle could
cause the subjection of people to the laws of different states, which, in the
process, would include prohibitions and regulations of which such accused
were possible, and reasonably, unaware.[1189] Ignorance of law being no
excuse for an individual to seek acquittal or justification for his actions,
ultimately, it is the individual who suffers unjustifiably especially since in
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criminal law, it is a necessary prerequisite for the individual to know of the


grounds of his arrest, and for that to be in his knowledge, he would
definitely need to understand the working of the law itself. Of these, the
latter problem comes into play when there is a difference between the laws
of the states. Nevertheless, the importance of the passive personality
principle has been emphasized most in issues relating to war crimes,[1190]
as a consequence of which states are free to prosecute war crimes
committed against their nationals. The Washio Awochi trial,[1191] where a
Japanese national was prosecuted by the Court Martial of the Netherlands,
for his act of forcing Dutch women into prostitution in a Batavian club. The
basis, of course, was the passive personality principle of jurisdiction.
A further additive in this field, by international law proper, is the
permission to prosecute offences committed against the nationals of cobelligerent states, as was examined in the Velpke Baby Home case,[1192]
where the United Kingdom prosecuted the nationals of Germany for their act
of neglect and mistreatment of Polish children, which occurred in Germany.
In pursuance of an exercise of jurisdiction based on the passive personality
principle in the context of war crimes, the same questions that emerge in the
application of the nationality principle relating to jurisdiction emerge. The
time of the offense is the time at which the nationality needs to be
determined. This was particularly relevant in the Israeli context, where,
Israel sought to apply the passive personality principle in pursuit of
exercising jurisdiction over Eichmann on behalf of the Jewish victims of the
crimes perpetrated by him, in the famous Eichmann case.[1193] Israels
claims were buttressed by the supposition that in relation to the victims,
who, though were not citizens of Israel at the time of the offence, they could
still be acted on behalf of, by Israel, against Eichmann. The basis of these
claims was criticized, since one cannot quite seek to rebuild bridges where
there were none in the first place. Nevertheless, the universality principle
came into play in helping Israels cause.
Another area where the passive personality principle has been put to use, is
in the counter-terrorism efforts that have taken shape in the form of Article
5(1)(c) of the 1984 Convention against Torture, and Other Cruel, Inhuman or
Degrading Treatment or Punishment. Part VII, in its introductory paragraph,
permits a state party to exercise jurisdiction when the victim is a national of
that State if that State considers it appropriate. Article 9 of the 1979
Convention against the taking of Hostages explained in the context of
jurisdictional bases that could be established with regard to the offence, that
even the national state of the hostage could be included as being capable of
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jurisdictional competence, if such state deems it appropriate to exert


jurisdictional rights.[1194] The passive personality principle was deployed
in the 1984 Comprehensive Crimes Control Act, of the US, where the
Convention was implemented among other things, and the passive
personality principle found enunciation in the course of laying down a
provision that would extend the special maritime and territorial jurisdiction
of the US to any place outside the jurisdictional ambit of any nation with
respect to an offence, by or against a national of the United States.
Subsequently, the Achille Lauro incident[1195] occurred, where an
Egyptian civilian aircraft carrying hijackers of the Italian cruise ship, called
Achille Lauro, was intercepted over the Mediterranean Sea, by Navy
Fighters of the US. The aircraft was forced to land in Sicily. The United
States sought to justify its action by referring to the need to combat
international terrorism. The Foreign Secretary of the United Kingdom
asserted that it was relevant to take into account the international
conventions on hijacking and hostage-taking, none of which mentioned
anything that justified the interception of a civilian aircraft over the high
seas, or, over any area other than the territory of the intercepting state.
Though the apprehension of terrorists and the aversion of terrorism is
indeed necessary and needs to be encouraged, the means pursued need to be
legitimate. Following the incident, the United States adopted the Omnibus
Diplomatic Security and Anti-Terrorism Act, where the criminal code was
amended to include a new provision allowing the US to exercise
jurisdiction over homicide and physical violence occurring outside the
territorial ambit of the US, where the victim was a national of the US. The
provision mandates the requirement of a written certification from the
Attorney General before commencing prosecution, certifying that the offence
was intended to coerce, intimidate or retaliate against a government or
civilian population. The decision of US v. Yunis (No.2),[1196] is also of
relevance. A Lebanese citizen was apprehended by US agents in
international waters, and he was subsequently prosecuted in the US for
allegedly being involved in the hijacking of a Jordanian airliner. The
connection between the US and the hijacking was the presence of American
nationals on board the airliner. The Universality principle and the passive
personality principle were deemed as acceptable bases for the exercise of
jurisdiction, despite the fact that the second principle had a controversial
standing under international law. The court asserted that the international
community recognized its legitimacy, which orchestrated the possibility of
its deployment. Despite the US having opposed its applicability at an earlier
date, it was held that the principle still derived validity in the context of
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terrorism and war crimes, and a host of other condemned crimes as well.
The Protective Principle
The protective principle, also known as competence reelle, indicates that
states are entitled to exercise jurisdiction over aliens who have committed
an act abroad that is prejudicial to the security of the state in question. Thus,
a state is vested with the right to reserve for itself, the right to prosecute
people whose crimes threaten, or affect adversely in any way, the interests
of the state. Some of the instances where jurisdiction may be exercised on
the basis of the protective principle include espionage, conspiratorial plots
to overthrow the prevailing gubernatorial regime, plots to violate
immigration rules, perjury and forging and falsifying documents and state
currency. While it is a considerably well-established rule under
international law, oftentimes the question arises as to how far it extends in
terms of practice, and what acts come within the ambit of the claimed
jurisdictional expanse.[1197] The most commonly accepted threat is the
way in which states look at the term security in keeping with their own
interests. A piece of journalistic endeavour that engages in criticism of
another state or its policies cannot be tried for sedition.[1198]
Nevertheless, the principle is justifiable on the basis of protection of
interests vital to a state, given that the alien may not actually be committing
an offence under the laws of the state he resides in, and extradition itself
may be refused under the guise of deeming the acts political offences.
The scope and ambit of the principle indicates the likelihood of an overlap
of the protective principle with the objective territoriality principle. In the
Layton case,[1199] it was mentioned that the crime, namely, the murder of
an American Congressman in Guyana, had an adverse impact on the security
or governmental functions of the state, and therefore provided the basis for
jurisdiction under the protective principle. The charges under which the
accused was brought to trial also indicated that the offences were primarily
intended to produce and did produce harmful effects within the state,
thereby permitting the claim of jurisdiction under the passive personality
principle, or the objective territoriality principle.
In the Espionage Prosecution Case,[1200] the East German intelligence
agencys head was prosecuted after Germany was reunified, for having
spied against the former Federal Republic of Germany. In deciding the case,
the court held that he had violated the laws of erstwhile Federal Republic of
Germany by his conduct, albeit having been carried out at a time when a
separate State has existed. Similarly, in In Re Urios,[1201] decided by a
French judiciary, related to a Spanish National who had been in Spain
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during the First World War, and had been in touch with enemies in France.
After being arrested in 1919, he was sentenced to twenty years
imprisonment on the ground that the substantive offence was not restricted to
the French Nationals or activity occurring within the territorial expanse of
France. Using Article 7 of the erstwhile Code dInstruction Criminelle,
(which spoke of the fact that any alien who is guilty outside French territory
of a crime against the security of the State is liable to prosecution and
sentence under French law if he is arrested in France or if the Government
obtains his extradition), the sentence was passed.[1202] The present legal
provision exhibiting the French incorporation of the protective principle is
found under Article 694, Section 1 of the Code de Procedure Penal.[1203]
In Joyce v. The Director of Public Prosecutions,[1204] the House of
Lords dealt with the question as to whether an alien could be guilty of the
crime of treason in pertinence to acts committed outside the territorial ambit
of the United Kingdom. Pro-Nazi propagandist Lord Haw-Haw Joyce was
originally born in America. In 1933 he fraudulently acquired a British
passport, after declaring that he was born in Ireland. Subsequently, in 1939,
he left Britain, and commenced work with German Radio. In 1940, he
claimed that he had acquired German nationality. He was a resident in the
United Kingdom for a considerable amount of time, and, for some years,
travelled on a British passport while entering into enemy territory, as well.
The House of Lords ruled that jurisdictional rights for Britain did exist.
Joyce claimed to be a British subject and enjoyed the protection of a British
passport. Even if this was in the course of furthering a fraudulent intention,
the status of being a British subject enjoying the benefits of a British
Passport automatically presupposed the fact that there was allegiance to be
owed to the Crown, and if the duty is breached, there would be liability
imposed. It did not matter that the offence of treason itself did not occur on
the territory of the UK, because no state could allow for treason to take
place, and turn a blind eye simply because it occurred outside its territorial
expanse. Joyce was penalized for his conduct.
Subsequently, in Somchai Liangsiriprasert v. The Government of the
USA,[1205] it was stated that courts will pursue a course of action in
keeping with the protective principle as a basis for its jurisdictional
exercise of power, in relation to terrorists, drug offenders and other related
offences that threatened the state. The case, however, was decided based on
the principle of objective territoriality. There is no doubt that the meaning
and import of the language is considerably wide, in that it may even end up
including offences the results of which are directly felt outside the territorial
308

expanse of the State, although technically speaking, the vital interests of the
State must be the ones to be impacted.
In Rocha v. United States,[1206] a conspiracy to violate immigration rules
by following a scheme of sham marriages came to trial. In the charges, inter
alia, it was found that false statements were made to consular officials
abroad. The defendants were quick to assert that the United States had no
competence to hear the issue since it was outside their jurisdiction.
Dismissing their claim, the Court held that though the offence did take place
outside the territory of the United States, it was essentially designed to bear
effects extra-territorially. The Court also ruled that a sovereign state must be
able to protect itself from those that attack its sovereignty. In keeping with
this, therefore, the question of who can enter a state and who cannot is an
integral part of the vital interests of the State. Legislation in the United
States is equally in pursuance of the protective principle. The Omnibus
Diplomatic Security and Anti-Terrorism Act, 1986, indicates that courts in
the US are vested with jurisdiction over the killing of a US national, if it
was done in a bid to pursue the intention to coerce, intimidate or retaliate
against a government or civilian populace. The underlying objective is to
ensure that there is jurisdictional competence accorded to the courts for
offences of purely terrorist nature.[1207]
Israel adopted the protective principle in the process of prosecuting Nazi
War Criminals, particularly in the Eichmann Case.[1208] However, the
District Court of Jerusalem stated that the victims of the Holocaust were not
Israeli citizens, and, it was without doubt that Israel did not exist as a state
during the span of time covered by 1933 and 1945. Jurisdiction under the
protective principle could be exercised only if there is a linking point
between the accused and the state seeking to punish him, in keeping with
international law.[1209] States are free to punish those individuals who
concern the state relatively more that they concern other states, of course,
being subject only to the rules of international law. Keeping to this rule,
Israel had evidently more in terms of a link with the people of Jewish faith,
and given that Eichmann in pursuit of his Nazi allegiance had committed his
crimes against the very same people, Israel had jurisdictional competence.
While the reasoning that has gone into the outcome indicates a roundabout
way, the decision is still accorded plaudits for its enumeration of the tenets
constituting the protective principle. There should be a link of a substantial
character between the State and the accused, and, the offence must concern
the state that wishes to pursue prosecution, more than any other state.
Naturally because it concerns the particular state most, it is likely to relate
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to one or some of the vital interests of the state, and that works as the
pivotal factor in permitting the exercise of jurisdiction.
The Representational
Principle
As the name suggests, this principle accords a state the right to exert
jurisdiction extraterritorially, by allowing the state to virtually step into the
shoes of a State with a more pressing claim to prosecute the offender. The
process may ensue as a consequence of a request made by a State to such
other state that pursues the exercise of jurisdiction accordingly, or, as a
consequence of a refusal to extradite, in keeping with the norm of aut
dedere aut judicare, which implies either extradite or prosecute. In events
bearing overtones of the latter instance, the State agrees to prosecute the
fugitive either out of voluntary compliance with the requests made to it, or,
in the alternative, out of being a signatory to a bilateral or a multilateral
anti-terrorist convention that requires either course of action to be adhered
to. Jurisdiction exercised on the basis of the representative principle is
usually the product of reciprocal legislation. Evidence needs to be supplied
by the State that is deprived of jurisdiction over the offender, and therefore,
the representative principle is not necessarily a consensual assumption of
the right to prosecute.
The Universality Principle
The universality principle, as the name suggests, refers to a situation where
every state is permitted to exercise jurisdiction in relation to trying specific
offences. The basis lies in the fact that the crimes concerned are deemed
offensive to the entire international community, to every state that constitutes
the international anarchy. Most states have been known to have indicated
that the principle is normally forbidden in international law. The earliest
point when the validity of the universality principle knocked at the doors of
the Court was during the Lotus Case,[1210] but there was no discussion on
its validity per se. Furthermore, individual judges went on to assert that it
was normally in contrast to generally accepted notions under international
law. The implications of the doctrine are manifold- one may be punished
anywhere in the world for what is perhaps not an offence under the laws of
the place where it was committed, in the first place, while it is perhaps an
offence in such other part of the world. Universality can acceptably form the
basis of jurisdiction in the event that it is for the purposes of the prosecution
of acts that are deemed crimes in all, or at least, most countries. This has
evolved into a generic notion, having received a general consensus from
most states in the world. The crimes in whose context universality is used as
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a basis for the exercise of jurisdiction are war crimes, piracy, hijacking and
international terrorism in all its different manifestations. Additional
offences may always make their way into the list, with the burgeoning of
international agreements that encourage their inclusion therein. The 1973
Convention on the Suppression and Punishment of the Crime of Apartheid,
or, the 1984 Convention against Torture and other Cruel, Inhuman and
Degrading Treatment or Punishment, for example, have sparked the
inclusion of Apartheid and Torture as being crimes that could be brought to
trial by a state professing the universality principle as a basis.
The principle of universality functions regardless of nationality, country of
residence and any other links that need to be established with the state
prosecuting the concerned offender. The basis thus, lies in the fact that the
crime is a crime against the entire international society, which is far too
serious to accommodate jurisdictional arbitrage and negotiations.
Universality as a basis of jurisdiction, therefore, is related to the world of
erga omnes obligations that are owed to the entire international community,
and to the principles of jus cogens, which comprises those rules from which
no derogation is permitted. The 1993 Law of Universal Jurisdiction, of
Belgium, was instrumental in according the universal principle ample
importance. The scope of the law was subsequently reduced by an
amendment after the Case Concerning the Arrest Warrant of 11 April
2000,[1211] where the said part of Belgian Law was used to try Abdoulaye
Yerodia Ndombasi, the erstwhile Minister of Foreign Affairs of the
Democratic Peoples Republic of Congo, was challenged before the ICJ.
The International Criminal Court was formed in 2002, and this further
accentuated the decline in the need to have laws providing for universal
jurisdiction, although the court was not supposed to handle crimes having
occurred before its creation.
Opposing contentions, particularly those of Henry Kissinger denounce the
theory of universality as a basis for jurisdiction. Primarily contending that
since all states are essentially equal under the ambit of the UN Charter and
that such equal states go into making the international anarchy, the universal
jurisdiction essentially violates this principle of sovereignty. His core
contention, as is that of most others, is that it would defeat the very essence
of anarchy- Widespread agreement that human rights violations and crimes
against humanity must be prosecuted has hindered active consideration of
the proper role of international courts. Universal jurisdiction risks creating
universal tyranny - that of judges.[1212] However, these concerns have
been quelled with the adoption of Resolution 1674 by the UN Security
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Council, on 28 April, 2006, which reaffirmed the responsibility to protect


world populations from genocide, war crimes, ethnic cleansing and crimes
against humanity. The resolution also indicates the commitment of the
Security Council towards protecting civilians in the midst of an armed
conflict.
Universality as a basis of jurisdiction has been consistently used in the
context of piracy, and has burgeoned into a fairly long-established and
widely-accepted principle.[1213] It has now come to be accepted that all
states are free to arrest and penalize pirates, provided that such
apprehension or arrest takes place on the high seas, or, within the territorial
limits of the state concerned.[1214] Offenders are penalized irrespective of
their nationality, wherever the criminal activities took place. Piracy differs
under the ambit of international law, from its meaning under domestic law,
which implies instances of violating copyrights. Under international law,
called piracy jure gentium, it includes any form of illegal violence,
detention or restraint, destruction and damage committed in pursuit of
private interests, by crew members or passengers on board a private ship or
aircraft, directed towards another private ship or aircraft, occurring either
on the high seas or on terra nullius, or within the territorial waters of a
state.[1215] Piracy is also said to occur if the offence was merely
attempted, for, it need not be that the attempt be successful to attract penalty.
[1216]
War crimes are also instances where universality forms the basis for the
exercise of jurisdiction. The laws of war govern issues relating war itself,
having emerged from a cache of war crimes decisions emerging at the end
of the Second World War, along with conventions exclusive to war time.
However, in pertinence to the question on guilt for war crimes, particularly
in the context of Nazi persecutions of Jewish people, [1217]American
personnel connected with the Vietnamese War[1218] and many similar
instances, there was ample controversy in dealing with war criminals and
their trials.
The Charter of the International Military Tribunal of 1945 suggested, under
Article 6 that for crimes against peace, the violations of law and customs of
war and crimes against humanity as offences occurring within the
jurisdiction of the Tribunal, there would be individual responsibility. What
the article put down at that juncture has now evolved into a rather weighty
component in international law. The 1946 Resolution passed by the UN
General Assembly accorded these principles unanimous recognition and
acceptance, in that the Tribunals judgment was recognized and confirmed
th

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explicitly.[1219] In 1949, four conventions, named collectively as the


Geneva Conventions, comprised an enumeration of various crimes,
permitting the exercise of jurisdiction on the basis of the universality
principle, terming them as grave breaches and included offenses like willful
killing, torture, inhuman and degrading treatment, unlawful deportation of
protected persons and the taking of hostages. After nearly two decades, in
1961, the Eichmann Trial[1220] took place, wherein Israeli Law was
invoked to punish Eichmann for his war crimes and crimes against people of
the Jewish Faith, and crimes against humanity itself. In deciding the case,
the District Court of Jerusalem and the Supreme Court of Israel applied the
universality principle to a limited extent. In doing so, the District Court held
that international law needed the legislative and judicial organs of states in
order to bring criminals to trial. Universality as a basis for jurisdictional
powers was applied even though the offences occurred before Israel came
into existence. In 1968, the UN General Assembly adopted a convention,
named the Convention on the Non-Applicability of Statutory Limitations to
War Crimes, and Crimes against Humanity. The convention was a strong
message to indicate to the world that war crimes constituted a separate
segment under the ambit of international law, and could all be tried using the
universality principle as a basis for the exertion of jurisdictional
competence. In 1977, a Protocol was added to the 1949 Conventions, which
in turn expanded the list of offenses, to include more. In most legislation
purporting the exercise of universality as a basis of jurisdiction in
congruence with the universality principle, as it commenced from the
Nuremberg perceptions, most crimes against peace are deemed crimes
committed by the state itself, in pursuit of aggression.[1221] As such, the
attached value of aggression does not theoretically weigh down the
applicability of universality, but this is not to say that practical
consequences are none. A large number of scholars have begun expositing
that the universality principle must necessarily include all crimes against
humanity.
With the burgeoning of a new faction in the form of terrorism and global
terror networks, there has been room to question the likelihood of basing
trials of terrorists on the purport and ambit of the universality principle of
jurisdiction. Before going into the feasibility of including terrorism in the
list, one needs to take stock of the opposing views amongst the acceptors of
the universality principle. The traditional notion, that the universality
principle is a watertight compartment has found favour with scholars and
writers, of which J.G. Starke is one.[1222] The general mindset reflects that
crimes or delicts jure gentium, aside of piracy jure gentium and war
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criminals raise somewhat different considerations. As a consequence,


therefore, in the context of offences such as drug trafficking, trafficking in
women and children and terrorism, conventions have been put to use in a
bid to deal with their treatment purely on the basis of aut punire, aut
dedere, which implies that the offenders are either to be punished by the
State on whose territory they are found or to be extradited to the State which
is competent and desirous of exercising jurisdiction over them. However,
the modern ideology that surrounds international law has changed the ways
in which one looks at the universality principle. The burgeoning catena of
offences in the international realm, each with a different political, social
and economic implication in its own right, there is a necessity to view the
universality principle as increasingly inclusive, as opposed to purely
exhaustive.
The gravity and implications of the term crimes against humanity has been
recognized in the United Nations Secretary General's Report on the
Establishment of an International Tribunal for the Former Yugoslavia.[1223]
The report explained that crimes against humanity are aimed at any civilian
population and are prohibited regardless of whether they are committed in
an armed conflict, international or internal in character and refer to
inhumane acts of a very serious nature, such as willful killing, torture, rape
committed as a part of a widespread or systematic attack against any
civilian population on national, political, ethnic, racial or religious grounds.
Subsequently, the 1998 Rome Statute of the International Criminal Court
also incorporated the universality principle as a basis of jurisdictional
exercise in relation to punishing offenders, accused of crimes against the
international community. Specifically, article 5 lists out the crimes which
fall within the jurisdictional ambit of the International Criminal Court, as
being genocide, crimes against humanity, war crimes and crimes of
aggression. The statute indicates that a crime is one against humanity as
provided for in the statute, if it is found to be a widespread or systematic
attack against any civilian population. Article 25 holds anyone committing a
crime within the courts jurisdiction, individually responsible and liable for
punishment as under the Statute. In addition, the 1996 ILC Draft Code of
Crimes against the Peace and Security of Mankind also speaks of
universality as a basis for jurisdiction for crimes. States are under an
obligation to take such measures as may be necessary to establish their
jurisdiction over the crimes as mentioned under the draft.[1224] Article 9
provides that a state in whose territory an individual alleged to have
committed a crime against peace and security of mankind is present, shall
either extradite or prosecute the individual. The purpose of the article, as
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explained in the commentary,[1225] is to ensure the broadest possible


jurisdictional expanse over crimes, by using the principle of universality. It
is not enough if an act or omission is perceived to be an international crime.
It is necessary to see that they fall within the ambit of the crimes so
mentioned, for there hasnt been any past instance to show that there has
been an expansion of the list itself.

Prosecuting War Criminals: A Practical lesson


Prosecution of war criminals, in pursuance of laws and rules pertaining to
due process and evidence under national and municipal laws in keeping
with the rule of law, bears ramifications of its own cadre, and ample
practical difficulty. John Demjanjuks trial, nicknamed the trial of Ivan the
Terrible, is a classic example. Given the moniker by victims to the operator
of the gas chambers in the process of murdering scores of Jews at Treblinka,
and Sobibor, two extermination camps, during the 1942-1943, in the throes
of the Second World War, John Demjanjuk was tried for one of the most
horrific crimes in the history of mankind. Proceedings began in 1977, in the
United States. Demjanjuk had secured US citizenship, after lying about his
involvement in a spate of wartime activities on his application form for his
visa. Israel had sought for his extradition from the United States based on a
treaty between both states authorizing extradition requests. Deportation
occurred in 1983, where he was sent to Israel, and stood for trial in 1986. In
the outcome of the dispute in 1988, Demjanjuk was given the death sentence
by the District Court of Jerusalem. He appealed against the decision,
submitting that it was a case of mistaken identity. He was kept in solitary
confinement in a cell near Tel Aviv for five years, until his appeal was
decided. In 1993, his conviction was overturned by the Israeli Supreme
Court, on the ground of reasonable doubts