International Law: Nature, Scope and Subjects: A Bird’s Eye View

Meaning: The expression ‘International Law’ was coined for the first time by Jeremy
Bentham in 1780. The term International Law is synonymous with the term law of nations. It
is a body of rules and principles which regulate the conduct and relations of the members of
the international community. International law is the set of rules generally regarded and
accepted as binding in relations between states and nations. It serves as the indispensable
framework for the practice of stable and organized international relations. International law
differs from national legal systems in that it primarily concerns nations rather than private
citizens.

Aim Of International Law: International law aims to achieve:-

· International peace and security and
· Promotion of friendly relations among the member states (the members of International
Community i.e. United Nations).

Definition: It is very difficult to define International Law. There are many definitions given
by the scholars, subject experts and international jurists. Prominent among them are given
below:

• Prof. L. Oppenheim- Law of Nations or International Law is the name for the body of
customary and conventional rules which are considered legally binding by the civilized
states in their intercourse with each other.

• J.L. Brierly- The Law of Nations or International Law may be defined as the body of rules
and principles of action, which are binding upon civilized states in their relations with one
another.

• Torsten Gihl- The term International Law means the body of rules of law, which apply
within the International Community or society of Sates.

· In the Queen v. Keyn, 2 Ex. D. 63, 153, 154 (1876). LORD COLERIDGE, C.J., defined
International law in the following words: “The law of nations is that collection of usages
which civilized States have agreed to observe in their dealings with one another.”

· Gray says, International law or the Law of Nations is the name of a body of rules which
according to their usual definitions regulate the conduct of states in their intercourse with
each other.

Public And Private International Law: International law may further be broken down as
public or private. Public International law covers the rules, laws and customs that govern and
monitor the conduct and dealings between nations and/or their citizens. The UN deals largely
with public international law. Private International law (Conflict of laws) handles disputes
between private citizens of different nations.
Public international law concerns the treaty relationships between the nations and persons
which are considered the subjects of international law. Norms of international law have their
source in either:
· custom, or customary international law (consistent provincial practice accompanied by
opinio juris),
· globally accepted standards of behaviour (peremptory norms known as jus cogens or ius
cogens), or
· codifications contained in conventional agreements, generally termed treaties.

Article 13 of the United Nations Charter obligates the UN General Assembly to initiate studies
and make recommendations which encourage the progressive development of international
law and its codification. Evidence of consensus or state practice can sometimes be derived
from intergovernmental resolutions or academic and expert legal opinions (sometimes
collectively termed soft law). Public International Law is commonly known as International
Law or Law of Nations. As discussed earlier, it regulates the relations among the members of
international community which includes individuals also.

Private International Law on the other hand is that branch of International Law, which
determines or decides law applicable to the disputes or issues involving more than one nation
and determines the court having jurisdiction to decide the issue. Private International Law is
essentially a part of municipal law. Dicey calls it ‘Conflict of Laws’ since it deals with rules
regulating cases in which municipal laws of different states or nations come into conflict. Such
conflicts may arise with regard to domicile, marriage, divorce, wills, contracts etc. Hence, it6
is also called as inter-municipal law.

Is International Law A True Law….?

There had been a great controversy as to the question, whether international law is a law or
not. Some answered the question in affirmative while others in negative. These two views
can be explained as under-

Not A Law- Supporters of this view are-

• John Austin- a leading English writer on Jurisprudence answered the question in negative.
According to him, International Law is not true law, but a code of rules and conduct of moral
force only. He holds that International Law is no law as it does not emanate from a law
giving authority and has no sanction behind it. Austin described International Law as
positive international morality consisting of opinion or sentiments current among nations
generally.

• Hobbes And Pufendorff- also answered the question in negative by saying that there is no
positive law of nations properly invested with true legal force and binding as the command
of a superior.

· Holland- observed that International Law differed from ordinary law and not supported by
the authority of a state. According to him, the law of nations is but private law ‘writ large’.
In this view of the matter, he called “International Law as the vanishing point of
Jurisprudence”. According to him, rules of International Law cannot be kept into the
category of law because it lacks sanction, which is an essential element of municipal law.

• Jeremy Bentham And Jethro Brown are the other prominent jurists who also deny the
legal character International Law.

International Law Is A Law- supports of this view are-

• Hall And Lawrence on the other hand answered the question in affirmative. According to
them, International Law is habitually treated and enforced as law, like certain kind of
positive law, it is derived from custom and precedent which form a source of International
Law.

• Pitt Cobbett observed that International Law must rank with law and not with morality.

• Sir Frederick Pollock writes the only essential conditions for the existence of law are the
existence of political community and the recognition by its members of settled rules binding
upon them in that capacity. International Law seems on the whole to satisfy these
conditions.

Thus it is clear from the above discussion that the solution for the above question depends
upon the definition of law, which one may choose to adopt.

Sources of International Law

There is no central international body that creates public international law; it is created by several
sources.

The Charter of the United Nations is the establishing document for the International Court of
Justice (ICJ) as the principal judicial organ of the UN. Article 38(1) of the Statute of the International
Court of Justice lists the sources that the ICJ uses to resolve disputes as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:

a) international conventions, whether general or particular, establishing rules expressly recognized

by the contesting states;

b) international custom, as evidence of a general practice accepted as law;

c) the general principles of law recognized by civilized nations;

d) subject to the provisions of Article 59, 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.
E. INTERNATIONAL OBLIGATIONS (SOURCES OF LAW)
It is generally accepted that the sources of international law are listed in the Article 38(1) of the Statute
of the International Court of Justice, which provides that the Court shall apply:
a) international conventions, whether general or particular, establishing rules expressly recognized by
the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, 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.

1. Treaties
International conventions are generally referred to as treaties. Treaties are written agreements between
States that are governed by international law. Treaties are referred to by different names, including
agreements, conventions, covenants, protocols and exchanges of notes. If States want to enter into a
written agreement that is not intended to be a treaty, they often refer to it as a Memorandum of
Understanding and provide that it is not governed by international law. Treaties can be bilateral,
multilateral, regional and global. The law of treaties is now set out in the 1969 Vienna Convention on
the Law of Treaties which contains the basic principles of treaty law, the procedures for how treaties
becoming binding and enter into force, the consequences of a breach of treaty, and principles for
interpreting treaties.

The basic principle underlying the law of treaties is pacta sunt servanda which means every treaty in
force is binding upon the parties to it and must be performed by them in good faith. The other important
principle is that treaties are binding only on States parties. They are not binding on third States without
their consent. However, it may be possible for some or even most of the provisions of a multilateral,
regional or global treaty to become binding on all States as rules of customary international law. There
are now global conventions covering most major topics of international law. They are usually adopted
at an international conference and opened for signature. Treaties are sometimes referred to by the
place and year of adoption, e.g. the 1969 Vienna Convention. If a State becomes a signatory to such a
treaty, it is not bound by the treaty, but it undertakes an obligation to refrain from acts which would
defeat the object and purpose of the treaty.
A State expresses its consent to be bound by the provisions of a treaty when it deposits an instrument
of accession or ratification to the official depository of the treaty. If a State is a signatory to an
international convention it sends an instrument of ratification. If a State is not a signatory to an
international convention but decides to become a party, it sends an instrument of accession. The legal
effect of the two documents is the same. A treaty usually enters into force after a certain number of
States have expressed their consent to be bound through accession or ratification. Once a State has
expressed its consent to be bound and the treaty is in force, it is referred to as a party to the treaty. The
general rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in light of its object and purpose. The
preparatory work of the treaty and the circumstances of its conclusion, often called the travaux
preparatoires, are a supplementary means of interpretation in the event of ambiguity.

2. Custom
International custom – or customary law – is evidence of a general practice accepted as law through a
constant and virtually uniform usage among States over a period of time. Rules of customary
international law bind all States. The State alleging the existence of a rule of customary law has the
burden of proving its existence by showing a consistent and virtually uniform practice among States,
including those States specially affected by the rule or having the greatest interest in the matter. For
example, to examine the practice of States on military uses of outer space, one would look in particular
at the practice of States that have activities in space.
Most ICJ cases also require that the States who engage in the alleged customary practice do so out of
a sense of legal obligation or opinio juris rather than out of comity or for political reasons. In theory,
opinio juris is a serious obstacle to establishing a rule as custom because it is extremely difficult to find
evidence of the reason why a State followed a particular practice. In practice, however, if a particular
practice or usage is widespread, and there is no contrary State practice proven by the other side, the
Court often finds the existence of a rule of customary law. It sometimes seems to assume that opinio
juris was satisfied, and it sometimes fails to mention it.
Therefore, it would appear that finding consistent State practice, especially among the States with the
most interest in the issue, with minimal or no State practice to the contrary, is most important.
Undisputed examples of rules of customary law are
(a) giving foreign diplomats criminal immunity;
(b) treating foreign diplomatic premises as inviolable;
(c) recognizing the right of innocent passage of foreign ships in the territorial sea;
(d) recognizing the exclusive jurisdiction of
the flag State on the high seas;
(e) ordering military authorities to respect the territorial
boundaries of neighboring States; and
(f) protecting non-combatants such as civilians and sick or wounded soldiers during international armed
conflict.

3. General Principles of Law

General principles of law recognized by civilized nations are often cited as a third source of law. These
are general principles that apply in all major legal systems. An example is the principle that persons
who intentionally harm others should have to pay compensation or make reparation. General principles
of law are usually used when no treaty provision or clear rule of customary law exists.

4. Subsidiary means for the determination of rules of law

Subsidiary means are not sources of law, instead they are subsidiary means or evidence that can be
used to prove the existence of a rule of custom or a general principle of law. Article 38 lists only two
subsidiary means - the teaching (writings) of the most highly qualified publicists (international law
scholars) and judicial decisions of both international and national tribunals if they are ruling on issues
of international law. Writings of highly qualified publicists do not include law student articles or notes or
doctoral theses.
Resolutions of the UN General Assembly or resolutions adopted at major international conferences are
only recommendations and are not legally binding. However, in some cases, although not specifically
listed in article 38, they may be subsidiary means for determining custom. If the resolution purports to
declare a set of legal principles governing a particular area, if it is worded in norm creating language,
and if is adopted without any negative votes, it can be evidence of rules of custom, especially if States
have in practice acted in compliance with its terms. Examples of UN General Assembly Resolutions
which have been treated as strong evidence of rules of customary international law include the
following:
GAR 217A Universal Declaration of Human Rights (1948)
GAR 2131 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the
Protection of their Sovereignty (1965) [Declaration on Non-Intervention]
GAR 2625 Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation among States in Accordance with the Charter of the United Nations (1970) [Declaration
on Friendly Relations]
GAR 3314 Resolution on the Definition of Aggression
Some of these resolutions have also been treated as subsequent agreement or practice of States on
how the principles and provisions of the UN Charter should be interpreted. In addition, Article 38 fails
to take into account the norm-creating effect of modern global conventions. Once the international
community has spent several years drafting a major international convention, States often begin in
practice to refer to that convention when a problem arises which is governed by the convention - in
effect treating the rules in the Convention as customary. Furthermore, if the Convention becomes
universally accepted the provisions in the Convention may become very strong evidence of the rules of
custom, especially if States which are not parties have also acted in conformity with the Convention.
Examples of such conventions would be the 1959 Vienna Convention on Diplomatic Relations and the
1969 Vienna Convention on the Law of Treaties.

5. Hierarchy of norms

In theory there is no hierarchy among the three sources of law listed in Article 38 of the ICJ Statute. In
practice, however, international lawyers usually look first to any applicable treaty rules, then to custom,
and last to general principles.
There are two types of norms or rules – not previously discussed - which do have a higher status. First,
peremptory norms or principles of jus cogens are norms that have been accepted and recognized by
the international community of States as so fundamental and so important that no derogation is
permitted from them. Examples of jus cogens principles are the prohibitions against wars of aggression
and genocide. A war of aggression is the use of armed force to take over another State or part of its
territory. Genocide is the killing or other acts intended to destroy, in whole or in part, of a national,
ethnical, racial or religious group.
Second, members of the United Nations are bound by the Article 103 of the United Nations Charter,
which provides that in the event of a conflict between the obligations of members under the Charter –
including obligations created by binding decisions of the Security Council – the Charter obligations
prevail over conflicting obligations in all other international agreements.

6. Role of the International Law Commission (ILC)

The ILC was established by the UN in 1948. The 34 members of the ILC are elected by the General
Assembly after being nominated by member States. They possess recognized competence and
qualifications in both doctrinal and practical aspects of international law and the ILC reflects a broad
spectrum of expertise and practical experience The mandate of the ILC is the progressive development
and codification of international law. The ILC usually spends many years studying areas of international
law before presenting draft articles to the General Assembly for adoption as a draft convention. The
primary written products of the ILC aside from the draft articles themselves are the detailed periodic
reports prepared by the Special Rapporteurs on each subject and the official commentary for each draft
article.
Sometimes the official commentary to an ILC draft article or the Rapporteur’s report will indicate whether
that draft article is intended to codify a rule of customary law or is intended to progressively develop the
law on that point. When the ILC Draft Articles are approved, they are approved together with the official
commentaries.
The official commentaries to ILC draft articles and the reports of the ILC and its rapporteurs can be
considered for two purposes. First, they are part of the travaux préparatoires when interpreting a treaty
related to the subject of the draft article. Second, they are the writings of 34 highly qualified publicists
speaking in unanimity and therefore serve as a subsidiary means for determining rules of customary
law.

Relation between International Law & Municipal Law

The relation has been categorized traditionally been characterized from a monist
or dualist perspective. The role of the states and their functions in the
contemporary world is really complex. According to legal theory enumerated by
Malcolm Nathan Shaw, each state is a sovereign state and are equal. In reality,
with the phenomenal growth in communications and consciousness, and with the
constant reminder of global rivalries, not even the most powerful of states can be
entirely sovereign. Interdependence and the closeknit character of contemporary
International commercial and political society ensures that virtually any action of
a state could well have profound repercussions upon the system as a whole and
the decisions under consideration by other states. The outcome of the prolonged
reflections by writers and jurists on this debate are the various illuminating
theories each seeking to place the relationship between International Law and
Municipal Law in proper perspective. Thus, the theory of Monism, Dualism,
Incorporation and Transformation emerged to elucidate with varying degree of
success the subject matter under study.
The Role played by the state within the International system and concerned with
the relationship between the internal legal order of a particular country and the
rules and principles governing the International community as a whole. Municipal
Law governs the Municipal aspects of government and deals with issues between
individuals, and between individuals and the administrative apparatus, while
International Law focuses primarily upon the relations between states.
INTERNATIONAL LAW AND MUNICIPAL LAW

In principle, International Law operates only at the International level and not
within Municipal legal systems—a perspective consistent with positivism, which
recognizes International Law and Municipal Law as distinct and independent
systems. Conversely, advocates of natural Law maintain that Municipal and
International Law form a single legal system, an approach sometimes referred to
as monism. Such a system, according to monists, may arise either out of a unified
ethical approach emphasizing universal human rights or out of a formalistic,
hierarchical approach positing the existence of one fundamental norm
underpinning both International Law and Municipal Law.
International Law and Municipal Law have traditionally addressed relatively
different issues. International Law is largely but not altogether concerned with
relation among states; whereas Municipal Law controls relations between
individuals within a state and between individuals and the state.
Also, they differ altogether in their judicial processes. Both are usually applied
by National court, which results in complete decentralization of the judicial
function in International Law and effective centralization in Municipal Law.
What is true of the judicial function is also true of the executive function.
As in tort in Municipal Law, traditional International Law always depended for
its enforcement upon the initiative of the injured party. Most Municipal Law, on
the other hand, is enforced by a responsible executive unknown to
International Law.
According to Oppenheim, The Law of Nations and the Municipal Law of the
single States are essentially different from each other. They differ, first, as
regards their sources. Sources of Municipal Law are custom grown up within the
boundaries of the respective State and statutes enacted by the Lawgiving
authority. Sources of International Law are custom grown up within the Family
of Nations and Lawmaking treaties concluded by the members of that family.
The Law of Nations and Municipal Law differ, secondly, regarding the relations
they regulate. Municipal Law regulates relations between the individuals under
the sway of the respective State and the relations between this State and the
respective individuals. International Law, on the other hand, regulates relations
between the member States of the Family of Nations.
The Law of Nations and Municipal Law differ, thirdly, with regard to the
substance of their Law: whereas Municipal Law is a Law of a Sovereign over
individuals subjected to his sway, the Law of Nations is a Law not above, but
between Sovereign States, and therefore a weaker Law.
Even though International Law requires a State to carry out its International
obligations, in general, the processes used by a State to carry out its International
obligations will vary for example, from legislative, executive and/ or judicial
measures. States also follow different practices in internationalizing treaty norms
that is incorporating treaties within the state’s legal structure so that the provisions
can be implemented by state authorities.

In some countries, International (and at times regional) human rights Law

automatically becomes a part of National Law. In other words, as soon as a state
has ratified or acceded to an International agreement, that International Law
becomes National Law. Under such systems treaties are considered to be self-
executing.

In other countries, International human rights Law does not automatically form
part of the National Law of the ratifying state. International Law in these countries
is not self-executing, that is, it does not have the force of Law without the passage
of additional National legislation.
International Law and Municipal Law are similar in their sources, chiefly customs
and express agreements with however substantial differences in legislative
machinery. In fact, in recent times however, it cannot be denied that there is
gradual convergence of interest and the ultimate goal of both is to secure the
wellbeing of individuals. Areas where this common goal manifests itself include
human rights Law, environmental Law and commercial Law, areas where there
is increasing interaction between National Law and International Law. 19

MONISM
Monists hold that International Law and State Law share a common origin
namely Law. And the scholars and followers of this theory is called Monists.
According to Monism, International Law is directly applicable in the National
legal order. There is no need for any Municipal implementing legislation;
International Law is immediately applicable within National legal systems unlike
Dualism, without any incorporation or transformation.
The theory Monism itself has two parts according to Antonio Cassese, one which
says that though the International Law and Municipal Law coexist and is one and
the same, but the Municipal laws principle is put forth as supreme is called
Monism I and another which says though International Law and Municipal Law
coexist and are one and the same, but the International Law principle are put forth
as supreme is called Monism II. Monism I was developed German scholars,
namely Moser, Hegel, Bergbohm, Zorn, Wenzel between the 18th and 19th
centuries. And Monism II is also by German philosopher Kaufmann in 1899. 22
In a pure monist state, International Law does not need to be translated into
National Law it is just incorporated and have effects automatically in National or
Municipal laws. The act of ratifying an International treaty immediately
incorporates the Law into National Law; and customary International Law is
treated as part of National Law as well. International Law can be directly applied
by a National judge, and can be directly invoked by citizens, just as if it were
National Law. A judge can declare a National rule invalid if it contradicts
International rules because, in some states, the latter have priority. In other states,
like in Germany, treaties have the same effect as legislation, and by the principle
of lex posterior, only take precedence over National legislation enacted prior to
their ratification. In its most pure form, monism dictates that National Law that
contradicts International Law is null and void, even if it predates International
Law, and even if it is the constitution.

MONISM I

Monism I put forth the idea that supremacy of Municipal (National) Law in the
system. Monism I is of ideology that though both International and Municipal
laws are laws and are applicable, Municipal Law principle are somewhat superior
when compared to International Law. For illustration purpose, consider
Municipal Law as Constitution and International Law as other laws in a state,
thus it is like Constitution (Municipal Law) of a state having superiority over all
other laws (International Law) in a state.
Monistic I Theory was developed by German scholars namely Moser, Hegel,
Bergbohm, Zorn, Wenzel in late 18th and early 19th centuries. Monistic I thinkers
believe that National Law subsume and prevail over International legal rules.
Therefore, International Law proper does not exist on its own, it’s just the
‘external Law’ of National legal systems. This is the reflection of the extreme
nationalism and authoritarianism of a few great powers.
This theory says, there exist only one set of legal system or the doctrine of legal
order and International and Municipal are two branches of a single tree serving
the needs of human community in one way or the other. Both laws emanate from
a unified knowledge of Law and are the species of same genus Law.

MONISM II

Monism II slightly different and is the latest and widely accepted theory of
Monism. It emphasis on supremacy of International Law in the system. Though
both International and Municipal laws are laws and are applicable, Monism II
advances the idea that International Law principle are somewhat superior when
compared to Municipal Law. If we take into account the above illustration, here
International Law is like Constitution of a state having superiority over all other
laws (Municipal Law) in a state.

Monism II theory was found by Kaufmann, a German philosopher, in the year

1899.This theory is born from the assumption of states self-interest clashing
against common interests of the individuals. Rights and obligations enumerated
in the International Law, accrue to and are imposed on not only States but also on
individuals. Thus the argument of Individual not being the subject matter has
become absolutely absurd now. This theory supports the superiority of
International Law rules over National legal systems.
Immediate applicability of International rules within National legal systems of
states, without need for transformation of those rules from International Law to
National or Municipal legal system. It stresses on the fact that the International
rules, takes precedence over National legislation, and automatically repeal any
National laws contrary to them. This theory got squashed by the more
sophisticated and realistic theory of Triepel (Founder of the Theory of Dualism).
This theory according to Antonio Cassese, looked more like aspiration than a
description of reality.
Nonetheless, the importance for this theory was further strengthened after the
World War I by Austrian philosopher Kelsen, Austrian jurist Verdoss and French
scholar Scelle. According to them, there exists a unitary legal system, embracing
all the various legal orders at all levels (i.e.) both International and National legal
system. International Law is at the top of the pyramid and validates or invalidates
all legal acts of any other legal system.
Therefore, Municipal Law must conform to International Law to exist.
Transformation of International Law into Municipal Law is not necessary
because they are part of one normative system.
According to Kelsen, Verdoss and Scelle, the subjects of International Law are
not radically different from those of National Law, in both the legal system,
individuals is seen as principal subjects, and in int’l Law taken into account in
their roles as state officials. Because International Law is superior to Municipal
Law, it can be applied as such by Municipal courts, without any need for
transformation. But, if Constitution forbids this, they allowed some need for
National application, provided that it was a question of National Law, not
affecting the legitimacy of International Law. National courts can be made to
apply National laws that are contrary to International rules, but they would incur
International state responsibility for doing so. Therefore, International legal
system controls, imperfectly, all National systems.
DUALISM

The important principle of Dualism is that, International Law and Municipal Law
are two separate and distinct orders, in their objects and spheres of operation, such
that the norms of one would not operate within the realm of the other without a
positive act of reception or transformation, as the case may be. The International
Law and Municipal Law are two entirely different things and the International
Law can never be applied in the state without incorporating or transforming it
into Municipal Law. In Dualism, at no circumstances, the International Law can
prevail over the Municipal Law, and it is the Municipal Law which is always
supreme.
Dualists emphasize the difference between National and International Law, and
require the translation of the latter into the former. Without this translation,
International Law does not exist as Law. International Law has to be National
Law as well, or it is no Law at all. If a state accepts a treaty but does not adapt its
National Law in order to conform to the treaty or does not create a National Law
explicitly incorporating the treaty, then it violates International Law. But one
cannot claim that the treaty has become part of National Law. Citizens cannot
rely on it and judges cannot apply it. National laws that contradict it remain in
force. According to dualists, National judges never apply International Law, only
International Law that has been translated into National Law.
Dualistic Theory is based on the belief of the existence of two distinct sets of
legal orders, International & Municipal legal systems. This theory was developed
by a German scholar Triepel and an Italian scholar Anzilotti.
Britain and US favoured this theory in their case Law and in constitution
respectively. This theory recognized the authority of International customary
rules and ratified treaties approved by competent constitutional authorities.
Therefore, International rules are only considered binding to the extent that they
had been approved or accepted by the country’s foreign policymakers.

Dualism concept starts from the assumption that International Law and Municipal
legal systems are two distinct and formally separate categories of legal orders and
these two systems differ as to their subjects, sources and functions according to
Anzilotti.
➢ The subject of the Municipal Law is primarily individuals and groups, and
that of International Law is states.
➢ The Sources of Municipal laws are parliamentary enactments and courts
decision, and for International it is treaties, customs and general principles of
Law recognised by the civilized nations.
➢ The main function of Municipal Law is regulating internal functioning of the
state, relation between the state and the individual, and function of International
Law is to supervise the relations between states.
Therefore, this theory holds that International Law cannot directly address itself
to individuals; it must be transformed from International Law to National Law in
order to have any effect on individuals.
Municipal Law is conditioned by the norm that legislation is to be obeyed,
whereas International Law is conditioned by the pacta sunt servanda principle.
The latter principle commands that agreements between states are to be respected.
This principle is at the heart of modern International Law, especially treaty Law,
and underlies the basis for performance of treaty obligations.
Because of this consensual factor, Anzilotti concludes that the two systems are so
distinct that no possible conflict is possible. In case of any conflict, National Law
prevails; this is predicated on state sovereignty, which gives the right to the state
to determine which rules of International Law are to have effect in a Municipal
sphere.
DIFFERENCES BETWEEN MONISM AND DUALISM
➢ In philosophical terms, monism is that talks of oneness of the soul and dualism
is that talks of two entities, individual and supreme soul.
➢ When monism speaks of the oneness of existence, the term dualism does not
endorse this view.
➢ Monism believes in the fusing of the self into supreme self. On the contrary,
the term dualism does not believe that the individual self unites with the supreme
self.
➢ In International Law, monism believes that International and National legal
systems can become a unity. Dualism states that there is a difference between
internal and International Law.
➢ There is no need for translating the International Law into a National Law in a
monist state. Unlike monism, there is a need for the translation of International
Law into National Law. Unless the translation takes place, the International Law
is not accepted.

CRITICISMS OF MONISM AND DUALISM

➢ The criticism of Monistic Theory I is that, it is devoid of scientific value and
intended to underpin ideological and political positions.
➢ The criticism of Monistic Theory II is that, it is nice in theory, but really
utopian and did not reflect reality. But it had important psychological impact and
helped to introduce idea of responsibility of state officials as individuals.
➢ The criticism of Dualistic Theory is that, it did reflect legal reality of 19th
and 20th century, but couldn’t explain some things, like the fact that some int’l
rules do impose obligations on individuals (e.g. piracy).

British Practice
British practice draws a distinction between (i) customary rules of international law; (ii)
rules laid down by treaties.
(i) The rule as to customary international law according to the current modern judicial
authority is that customary rules of international law are deemed to be part of the law
of the land, and will be applied as such by British municipal courts, subject to two
important qualifications:
a. That such rules are not inconsistent with British Statutes.
b. That once the scope of such customary rules has been determined by British courts
of final authority, all British courts are thereafter bound by that determination.
The rules as stated above is somewhat narrower than which was formerly applicable.
In the eighteenth century, by a doctrine known sometimes as the 'Blackstonian”
doctrine, but more generally as the 'incorporation' doctrine, customary international
law and the two above-mentioned qualifications were not expressly formulated. Thus
Blackstone's statement of the doctrine was in these terms:
'The law of nations is here adopted in its full extent by the common law, and it is held
to be a part of the law of the land.
In terms the courts of law and equity stated that they would give effect to settled rules
of international law as part of English law. This did not mean, however that they would
enforce international law if it conflicted with an English statute or judicial decision.
A customary rule must not be inconsistent with statutes or prior judicial decisions of
final authority, it is also a condition precedent that the rule is one generally accepted
by the international community. Customary rules of international law could never be
applied by British municipal courts unless they had been embodied in a British statute.
A more moderate view is that international law is not a part of British domestic law, but
may be a 'source' of rules applied by a British court; if, however, this meant that a
British judge were free to reject a generally recognised customary rule of international
law, it would be contrary to authority.
There are two important exceptions to the automatic applicability of customary
international law by British municipal courts:
1. Acts of state by the executive, for example a declaration of war, or an annexation
of territory, may not be questioned by British municipal courts, notwithstanding that a
breach of international law may have been involved.
2. British municipal courts regard themselves as bound by a certificate or authoritative
statement on behalf of the executive in regard to certain matters falling peculiarly
within the Crown's prerogative powers. Such certificate or statement may be difficult
to reconcile with existing rules of international law.
Notwithstanding judicial doubts as to its scope, the incorporation doctrine has left its
definite mark in two established rules recognised by British Courts.
a. A Rule of Harmonious construction. Acts of Parliament and statutory instruments
are to be interpreted so as not to conflict with international law. There is indeed a
presumption that Parliament did not intend to commit a breach of international law.
b. A Rule of evidence. International law need not, like foreign law, be proved as a fact
by expert evidence or otherwise. The British courts will take judicial notice of its rules,
and may of their own volition refer to textbooks and other sources for evidence thereof.
In the matter of giving effect to international law, the position of British Prize Courts is
different from that of the courts of common law and equity. Prize Courts are specifically
appointed to apply international law.
(ii) The British practice as to treaties, as distinct from customary international law is
conditioned primarily by the constitutional principles governing the relations between
the executive and Parliament.
The negotiation, signature, and ratification of treaties are matter belonging to the
prerogative powers of the Crown. It has become established that:
a. Treaties which :
(1) affect the private rights of British Subjects, or
(2) involve any modification of the
common or statute law by virtue of their provisions or otherwise, or
(3) require the vesting of additional
powers in the Crown, or
(4) impose additional financial obligations, direct or contingent, upon the government
of Great Britain, must receive parliamentary assent through an enabling Act of
Parliament, and, if necessary, any legislation to effect the requisite changes in the law
must be passes.
b. Treaties made expressly subject to the approval of Parliament require its approval,
which is usually given in the form of a statute, though sometimes by resolution.
c. Treaties involving the cession of British territory require the approval of Parliament
given by a statute.
d. No legislation is required for certain specific classes of treaties, namely, treaties
modifying the belligerent rights of the Crown when engaged in maritime warfare, and
administrative agreements of an informal character needing only signature, but not
ratification, provided they do not involve any alternation of municipal law.
Where under the above-mentioned rules, a British treaty is required to be implemented
by legislation, a mere general or vague allusion to the treaty in a statute is not sufficient
to constitute the necessary legislative implementation.

American Practice

In the matter of customary rules of international law, the American Practice is very
similar to the British Practice. Such rules are administered as part of the law of the
land, and Acts of the United States Congress are construed so as not to conflict
therewith, although a later clear statute will prevail over earlier customary international
law. Also, an American court is entitled to ascertain the rules of international law on a
particular point by referring to textbooks, state practice, and other sources.
Defense is, however, paid to the views of the executive, as in the case of British courts,
to the extent that American courts normally regard themselves as bound by the
certificates or 'suggestions' of the executive regarding such matters as the recognition
of foreign states, the territorial limits of a foreign country, and the immunity of
governments, persons, corporations, or vessels from jurisdiction.
But so far as treaties are concerned, there is a radical difference from the British
practice. The American practice does not depend like the British practice upon any
reconciliation between the prerogative powers of the executive and the legislative
domain of Parliament, but upon the provisions of United States Constitution stipulating
that 'all Treaties made, or which shall be made under the Authority of the United
States', shall be 'the Supreme Law of Land', and upon a distinction drawn by American
courts between 'self-executing' and 'non-self-executing' treaties. A self-executing
treaty is one which does not in the view of American courts expressly or by its nature
require legislation to make it operative within the municipal field.
If a treaty is within the terms of the Constitution, and it is self-executing within the
meaning just referred to, then under the Constitution it is deemed to be operative as
part of the law of the United States, and will prevail, also, over a customary rule of
international law. On the other hand, treaties which are not self-executing, but require
legislation, are not binding upon American courts until the necessary legislation is
enacted. Moreover, if the relevant treaty purports to deal with a particular subject
matter in respect of which the United States Congress has exclusive legislative
powers, the treaty will be considered as prima facie non-self-executing irrespective of
what the intention of the parties is claimed to be.
Self-executing treaties or conventions ratified by the United States, are binding on
American courts, even if in conflict with previous American statutes, provided that
there is no conflict with the United States Constitution. But a statute passed by
Congress overrules previous treaties that have become the law of the land, although
there is a presumption that Congress did not intend to overrule such treaties, and
unless the purpose of Congress to overrule international law has been clearly
expressed, such abrogation or modification will not be deemed to have been carried
out.

Indian Practice

Before the adoption of Indian Constitution the Indian practice in respect of relation of
international law was similar to the British practice. After the adoption of the
constitution of India everything depended upon the provisions of Constitution. In order
to know the position of International Law in the post constitution period, it is necessary
to examine the relevant provisions of the Constitution of India. The most relevant
provision is contained in Article 51.
But Article 51 does not give any clear guidance regarding the position of international
law in India as well as the relationship of municipal law and International law because
this article is contained in Part IV of the Constitution of India which are non-justiciable.
Both international customary law and treaty law have been treated on the same footing
in Article 51. An analysis of judicial decision shows that in India dualism is followed.
Article 51 of the Constitution of India, in so far as it requires the various organs of
State, to foster respect for international law and treaties would seem to strengthen
rather weaken the legacy of the common law principle that international law is a part
of the law of the land.
Thus, so far as customary rules of international law are concerned, the position
prevailing immediately preceding the commencement of the Constitution continues
even after the coming into force of the Constitution.
In Re-Berubari Union and Exchange of Enclaves, the Supreme Court had to decide
whether any legislation was necessary for the agreement relating to Berubari Union.
Since it involved the cession of Indian territory, the highest tribunal answered in
alternative. The Supreme Court observed that the treaty-making power would have to
be exercised in the manner contemplated by the Constitution and subject to the
limitations imposed by it. Whether the treaty made can be implemented by ordinary
legislation or by the constitutional amendments will naturally depend on the provisions
of the constitution itself.
This was held by the Supreme Court of India in Jolly George Garghese v. Bank of
Cochin, in the judgment of the Court quoted that international conventional law must
go through the process of transformation into the municipal law before the international
treaty can become an internal law.
In Gramophone Company of India Ltd. v. Birendera Bahadur Pandey, the Supreme
Court observed that if in respect of any principle of international law the Parliament
says 'no', the national court cannot say 'Yes'. National court shall approve international
law only when it does not conflict with national law. In case however the conflict is
inevitable, the national law shall prevail.

Subjects of International Law-

The word ‘subject’ literally means ‘under rule, jurisdiction or control’. It is an object, which is
subject to control and governance. In other words, subject is an object (living or non-living)
over which law confers certain rights and duties. Municipal law or state law provides for
certain rights and duties to individuals in the state, so individuals are called subjects of state
law. Similarly, International Law is concerned with the rights and duties of the nations or
states. There are three theories as to the subjects of International Law as explained below-

· States alone are the subjects of International Law

· Individuals alone are the subjects of International Law
· States are the main subjects of International Law but to a lesser extent individuals and
certain non-state entities are also subjects of International Law.

1. States Alone Are The Subjects Of International Law- According to this theory, states
alone are the subjects of International Law. The supporters of this theory opined that
international law regulates the conduct of states and states alone are the subjects of
international law.

· Prof. L. Oppenheim, strong supporter of this theory holds that, since the law of nations is
primarily a law between states, states are, to that extent, the only subjects of the law of
nations.

· Percy E. Corbett opined that, states are the only subjects of international law and
individuals are only incumbents of rights and duties at international law in so far as they are
objects and not subjects.

Criticism- This theory is subject to criticism on the ground that it failed to explain the cases
of slaves and pirates. Under international law, slaves have been conferred some rights by
the community of states. Similarly, pirates are treated as the enemies of mankind and states
may punish them for piracy.
2. Individuals Alone Are The Subjects Of International Law- According to this theory, the
duties and rights of states are only the rights and duties of men who compose them.
According to this theory, state does not mean mud but men.

· Prof. Kelsen is the chief exponent of this theory; he is of the opinion that, in international
law, the duties of the states are ultimately the duties of the individuals. There is no
difference between international law and state/municipal law. Both laws are made to apply
to individuals.

· The Nuremberg Tribunal, too, has held that international law imposing duties and liabilities
upon individuals as well as upon states has long been recognized. Individuals can be
punished for violation of international law. Crimes against international law are committed
by men, not by abstract entities, and only by punishing individuals who commit such crimes
can the provisions of international law be enforced. The orthodox view of the positivists that
the states alone are the subjects of international law did not find support in the 20th
century.

Criticism- Kelsen’s view appears to be logically sound. But so far as the practice of the states
is concerned it is seen that the primary concern of the international law is with the rights
and duties of the states. From time to time certain treaties have been entered into which
have conferred certain rights upon individuals. Although the Statute of the International
Court of Justice adheres to the traditional view that only states can be parties to
international proceedings.

3. States, Individuals And Certain Non-State Entities Are The Subjects Of International
Law- The third view not only combines the first and second views but goes a step ahead to
include international organizations and certain other non-state entities as subjects of
international law. This theory appears to be far better than the first two views. Following
arguments may be put forward in support of this view:

· At present, there are several treaties, which conferred on individuals certain rights and
duties. For example, International Covenants on Human Rights.

· The Permanent Court of International Justice in Danzing Railways Official Case [PCIJ
(11928) Services B, No. 15] laid down that, in any treaty, the intention of the parties is to
confer on some individuals, certain rights, then international law will recognize such rights
and enforce them.

· In 1949, General Convention on the Prisoners of War conferred on the prisoners, certain
rights.

· The Nuremberg and Tokyo Tribunals propounded the principle that international law may
impose obligations directly upon the individuals. As observed by the Nuremberg Tribunal,
“crimes against international law are committed by men, not by abstract entities and only
by punishing individuals who commit such crimes can the provisions of international law be
enforced”.

· The Genocide Convention of 1948 has imposed certain duties directly upon the individuals.
According to this Convention, persons guilty of crime of genocide may be punished, no
matter whether they are the heads of the state, high officials or ordinary individuals.

· By virtue of new trend or movement developed in the international field, certain rights are
conferred on individuals even against the states. The best example on this point is, The
European Convention on Human Rights, 1950.

· It is now generally agreed that international organizations are also subjects of international
law. In this connection the advisory opinion of the International Court of Justice in the case
of “Reparation for Injuries Suffered in the Services of United Nations” may be cited. In this
case the ICJ decided that the United Nations is an international person under international
law.

In the words of the Court, “…………..what does it mean is that it (U.N.) is a subject of
international law and capable of possessing rights and duties and it has capacity to maintain
its rights by bringing international claims.”

· With regard to international criminal law, the law-making treaties have imposed certain
obligations upon the individuals and the states have consented to it. In this connection,
Narcotic Drugs Convention, 1961, Hague Convention for the Suppression of Unlawful
Seizure of Aircrafts, 1970 etc. deserve special mention.

· There are certain international treaties with regard to minorities. These treaties have
conferred upon minorities certain rights. The example of Articles 297 and 304 of the Treaty
of Versailles, 1919, may be cited.

RECOGNITION : NATURE, FORMS, THEORIES, AND EFFECTS RECOGNITION:

The identity and number of states belonging to the international community are by no means fixed
and invariable. The march of history produces many changes. Old states disappear or unite with other
states to form a new state, or disintegrate and split into several new states, or former colonial or vassal
territories may be process of emancipation themselves attain statehood. Then, also, even in the case
of existing states, revolutions occur or military conquests are effected, and the status of the new
governments becomes a matter of concern to other states, which formerly had relations with the
displaced governments, raising the question of whether or not to engage in formal or informal
relations with the new regimes, either by recognition of new government is not followed, solely by
some kind of intercourse. These transformations raise problems for the international community, of
which one is the matter of recognition of the new state or new government or other change of status
involved. At some time or other, this issue of recognition has to be faced by certain states, particularly
if diplomatic intercourse must necessarily be maintained with the states or governments to be
recognised. The recognition of a state under international law is a declaration of intent by one state
to acknowledge another power as a "state" within the meaning of international law. Recognition
constitutes a unilateral declaration of intent. It is entirely at the discretion of any state to decide to
recognize another as a subject of international law. Recognition also constitutes a declaration by a
state that in its opinion the country it has recognized must be regarded as a "state" within the meaning
of international law, and hence also as a subject of international law.

Express and Implied Recognition: Recognition is essentially a matter of intention. It is founded upon
the will and intention of a State. It may be express or implied. The mode by which recognition is
accomplished is of no special significance. It is essential, however, that the act constituting recognition
must give a clear indication of the intention either to deal with the new State as such, or to accept the
new government as the effective government of the State and to maintain relation with it, or to
recognize in case of insurgents that they are entitled to belligerent rights. Express recognition
indicates the acknowledgment of the recognized State by a formal declaration. In the practice of
States, this formal declaration may happen by either a formal announcement of recognition, a
personal message from the head of a State or the minister of foreign affairs, a diplomatic note, or a
treaty of recognition. Recognition needs not to be express. It may be implied in certain circumstances.
There are circumstances in which it may be possible to declare that in acting in a certain manner, one
State does by implication recognize another State or government. However, because of this possibility,
States may make an express declaration to the effect that a particular action involving another State
is by no means to be regarded as inferring any recognition. This position, for example, was maintained
by Arab States with regard to Israel. Implied recognition is recognition of a State or a government
through actions other than official declarations or actions intended to grant recognition. The required
actions for implied recognition must be unequivocal, leaving no doubt of the intention of the State
performing them to recognize the State or government and to deal with it as such. The practical
purpose of recognition, namely, the initiation of formal relations with the recognising state, must also
always be borne in mind. Once granted, recognition in sense estops or precludes the recognising state
from contesting the qualifications for recognition of the state or government recognised.

There are two principal theories as to the nature, function and effect of recognition:

(i) Constitutive Theory: According to this theory, it is the act of recognition alone which
creates statehood or which clothes a new government with any authority or status in the
international sphere. Anzilloti, Oppenheim, etc. are the chief exponents of constitutive
theory. According to Openheim a state is, and becomes, an international person, through,
recognition only and exclusively.
(ii) Declaratory Theory: According to this theory, statehood or the authority of a new
government exists as such prior to and independently of recognition. The act of
recognition is merely a formal acknowledgment of an established situation of fact. The
chief exponents of this theory are Brierly, fisher etc. Brierly has remarked, the granting or
recognition to a new State is not a 'Constitutive' but a 'Declaratory' act. A state may exist
without being recognized and if it exists in fact, then whether or not, it has been formally
recognized by other States it has a right to be treated by them as a State. Actually, the
two theories are of little assistance in explaining recognition or determining the status of
non-recognized entities in practice. In addition, the practical differences between these
two theories are not significant. Under the declaratory theory, the decision whether an
entity satisfies the criteria of statehood is left to other States, and the granting formal
recognition to another State, which is a unilateral act, is left to the political discretion of
States. On the other hand, the significance of the constitutive theory has diminished
because of the obligation imposed on States to treat an entity that satisfies the criteria of
statehood as a state. Moreover, the States practice regarding recognition shows that
States follow a middle position between these two theories. In practice, however, the
existence of a state is not dependent on whether it has been recognized as such. The sole
determining factor is whether or not the elements of statehood under international law
(state people, state territory, state power) are actually present in the specific case.
Realistically, however, an entity cannot function as a state unless at least a certain number
of states recognize it as such. In recent state practice recognition has often been made
contingent on the fulfilment of certain conditions, for example compliance with the UN
Charter or observance of the rule of law, democracy and human rights. From the
viewpoint of international law, however, these are not criteria for recognition but
conditions of a political nature, formulated in relation to the establishment of diplomatic
relations. It has been urged that states are subject to a duty under international law to
recognise a new state or a new government fulfilling the legal requirements of statehood
or of governmental capacity. There is no general acceptance of the existence of the duty
or the right mentioned.

TYPES OF RECOGNITION

Recognition is of two types, De facto and de jure recognition. The practice of States shows
that in first stage the State generally give de facto recognition. Later on when they are
satisfied that the recognised state is capable of fulfilling International obligations, they
confer de jure recognition on it, that is why sometimes it is said that de facto recognition
of state is a step towards de jure recognition.

DE FACTO RECOGNITION: When an existing State considers that the new State has not
acquired sufficient stability, it may grant recognition to the latter provisionally which is
termed as de facto recognition.

According to Prof. G. Schwarzenberger, “When a state wants to delay the de jure

recognition of any state, it may, in first stage grant de facto recognition.” The reason for
granting de facto recognition is that it is doubted that the state recognized may be stable
or it may be able and willing to fulfil its obligations under International Law. De facto
recognition means that the state recognized possesses the essentials elements of 10
statehood and is fit to be a subject of International Law.

According to Prof.L.Oppenheim, “The de facto recognition of a State or government takes

place when the said State is free state and enjoys control over a certain fixed land but she
is not enjoying the stability at a deserved level and lacking the competence to bear the
responsibility of International Law.” In view of the Judge Phillips C Jessup, “De facto
recognition is a term which has been used without precision when properly used to mean
the recognition of the de facto character of a government; it is objectionable and indeed
could be identical with the practice suggested of extended recognition without resuming
diplomatic relations.” The de facto recognition is conditional and provisional. If the state
to which De Facto recognition is being given is not able to fulfil all conditions of recognition
then that recognition is withdrawn.

DE JURE RECOGNITION: De jure recognition is granted when in the opinion of recognizing

State, the recognized State or its Government possesses all the essential requirements of
statehood and it is capable of being a member of the International Community.
 Recognition de jure results from an expressed declaration or from a positive act indicating
clearly the intention to grant this recognition such as the establishment of diplomatic
relations.
According to Phillips Marshall Brown, “De jure recognition is final and once given cannot
be withdrawn, said intention should be declared expressly and the willingness is
expressed to establish political relations.”

DISTINCTION BETWEEN DE FACTO AND DE JURE RECOGNITION

Whatever the basis for the distinction between de jure and de facto recognition, the
effects of the two types are mostly the same.
Nevertheless, there are certain important differences between these two types, which
are:
1. Only the de jure recognized State or government can claim to receive property locally
situated in the territory of the recognizing State.
2. Only the de jure recognized State or government can represent the old State for the
purposes of State succession or with regard of espousing any claim of its national for injury
done by the recognizing State in breach of International Law.
3. The representatives of the de facto recognized state or government may not be entitled
to full diplomatic immunities and privileges. Whatever the type of recognition, once given
may in certain circumstances be withdrawn. Actually, this is more easily done with regard
to de facto recognition than to de jure recognition, because of the nature of the former
one, which is temporary.

De facto recognition is intended to be a preliminary acceptance of political realities and

may be withdrawn in accordance with a change in political conditions. When a de facto
government loses its effective control over the country, the reason for recognition
disappears and it may be withdrawn. De jure recognition, on the other hand, because it is
intended to be generally a definitive act, it is more difficult to be withdrawn. Because
recognition is essentially a political act, no matter how circumscribed or conditioned by
the law, a State has a discretionary power to determine whether a particular situation
justifies a withdrawal of recognition and to take such action if it serves its national
interests. 11 In Luther v. Sagor,1921 “It was held that there is no distinction between de
facto and de jure recognition for the purpose of giving effect to the internal acts of the
recognized authority.” Bank of Ethopia v. National Bank of Egypt and Liquori, 1937, The
court held that in view of the fact that the British government granted recognition to the
Italian Government as being the de facto government of the area of Abyssinia which was
under Italian control, effect must be given to an Italian decree in Abyssinia dissolving the
plaintiff bank appointing liquidator.”
Is there a duty to grant recognition?

It has been urged that states are subject to a duty under international law to recognise
a new state or a new government fulfilling the legal requirements of statehood or of
governmental capacity. There is no general acceptance of the existence of the duty or
the right mentioned. If there were such a duty under general customary international
law, it would be one observed by all major states, yet no such duty is acknowledged
by states following the Estrada doctrine of non-recognition, nor so far as concerns the
recognition of new governments is the existence of the duty recognised by states such
as the United States, the United Kingdom and Australia, which have abandoned the
policy of such recognition of new regimes.
Legal effects of recognition: The legal effects of recognition differ depending on the
forum. While in international and continental European courts recognition has only
probative value, in English and American courts an official statement of recognition or
non-recognition by the forum government is conclusive evidence as to the legal status of
a foreign authority or entity. The question of recognition may determine access to the
courts (locus standi), privileges and immunities, the legal status of individuals, the right to
recover State property in the forum, and the judicial cognizance of foreign legal acts. The
traditional (English) common law rule of “non-recognition, non-cognizance,” according to
which a State or government that is not recognized as such does not exist in the eyes of
the law, has been mitigated by the courts, inter alia, by giving retroactive effect to
recognition, treating an unrecognized authority as the “subordinate body” of a recognized
State, and by giving effect to the laws and legal acts that regulate the day-to-day affairs
of the people in an unrecognized State or government. Although recognition is essentially
a political act, it is one that entails important legal consequences. Recognition involves
legal effects both in the international level and in the domestic level. If an entity is
recognized as a State, it will be entitled to rights and subjected to duties that would not
be relevant otherwise, and it will enjoy privileges and immunities of a foreign State before
the national courts of other States, which would not be allowed to other entities.

International effects of recognition: Apart of all the theoretical arguments involving the
constitutive and declaratory theories, it is accepted that recognition of a State or
government is a legal acknowledgement of factual situations. Recognition entails the
recognized State the enjoyment of rights and the subjecting to duties prescribed in
International Law for States. Recognition of a State by another State does not lead to any
obligation to establish diplomatic relations or any other specific links between them. Nor
does the termination of diplomatic relations automatically lead to withdrawal of
recognition. These remain a matter of political discretion. It should not be assumed that
non-recognition of a State or government would deprive that entity rights and duties
under International law. It is well established in International Law that the political
existence of a State is independent of recognition by other States, and thus an
unrecognized State must be deemed subject to the rules of International Law.
Unrecognized State is entitled to enjoy certain rights and be subject to many duties. It has
the rights to defend its integrity and independence, to provide for its conservation and
prosperity and consequently to organize itself as it sees fit. The exercise of these rights by
unrecognized 12 State has no other limitation than the exercise of the rights of other
States according to International Law. Moreover, unrecognized State is subject to most of
the rules of International Law, such as those related to the law of wars, and is bound by
its agreements. Non-recognition, with its consequent absence of diplomatic relations,
may affect the unrecognized State in asserting its rights against unrecognizing States, or
before their national courts. However, non-recognition will not affect the existence of
such rights, nor its duties, under International Law.

Internal Effects of Recognition: Recognition entails the recognized State the rights to
enjoy privileges and immunities of a foreign State before the national courts, which would
not be allowed to other entities. However, because recognition is essentially a political act
reserved to the executive branch of government, the judiciary branch must accept the
discretion of the executive branch and give effect to its decisions. The national courts can
only accept and enforce the legal consequences that flow from the act of recognition.
They can accept the rights of a foreign government to sue, to be granted immunities or to
claim other rights of a governmental nature. They can give effect to the legislative and
executive acts of the recognized State. In the case of non-recognition, national courts will
not accept such rights. In this context, recognition is constitutive, because the act of
recognition itself creates the legal effects within the domestic jurisdiction of a State.