An Introduction To Public International Law by S K Verma 2nd Edition PDF

https://t.
me/LawCollegeNotes_Stuffs
An Introduction to Public International Law

S.K. VERMA
Director
Indian Society of International Law
SATYAM LAW
INTERNATIONAL
Downloded From Telegram: Law College Notes & Stuffs

https://t.me/LawCollegeNotes_Stuffs
Law College Notes & Stuffs
Exclusive group for Law Students
Join Us Here for More Materials

This book is under copyright. Subject to statutory exception and to the provisions of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of the Author.
© S.K. Verma
ISBN: 978-81-921204-1-6
Second Edition: 2012
Published by: Satish Upadhyay, Satyam Law International

2/13, Ansari Road, Daryaganj, New Delhi-110 002, India
Phones: 0091 -11 -23242686, 23245698
Fax: 0091-11-23267131
Email: satyambooks@vsnl.net
Web: www.satyambooks.net
Printed in India

Preface to the Second Edition
Since the first edition of this book, many new developments and changes have occurred
in international law. In this new edition, care has been taken to enhance the treatment of a
number of topics, including jurisdictional immunities, the law of environment, human
rights, extradition, law of the sea, judicial settlement of disputes, and the scope of the
self-defense against terrorist attacks. Institutional changes that have taken place in the
UN human rights system, with the replacement of the UN Commission on Human Rights
by the Human Rights Council find a fair treatment in the text. Taking into account the
pioneering work done by the International law Commission (ILC), including Draft
Articles on State responsibility as also the Draft Articles on Diplomatic Protection, a new
chapter on State responsibility has been added. Similarly, with the coming into force of
the International Criminal Court, and further developments in the area of international
criminal law, the establishment of the International Tribunals for Former Yugoslavia and
Rwanda are seminal in their approach towards individual’s liability under international
law. These developments have brought the individual to the centre of international
relations. These issues, as well as the crime of torture are discussed in a new chapter on
international criminal law.
The new edition takes into account developments in the field as recent as July 2011. It
discusses substantial case law of the International Court of Justice, decisions rendered by
Tribunals, as well as the Indian State practice on international law as reflected by judicial
decisions rendered by Indian courts. The judicial practices of other countries have also
been relied upon to elaborate the law points. The recent work of the ILC has also being
included in dealing with different topics. The book is confined mainly to the analysis of
the principles of public international law, applied in the framework of normality. Because
of this, detailed treatment of certain recent developments, like the invasion of Iraq,
NATO action in Libya, its tacit support in Tunisia and Egypt, the legality of these actions
under international law, has been restricted. These events, nevertheless, have highlighted
the pitfalls of unilateralism, verging on the law-breaking rather than the development of
law.
In bringing out this new text, I have been greatly assisted by many; to whom I owe my
gratitude. I thank the research staff of the Indian Society of International Law,
particularly Vinai and Shridhar, for their active help, and the Library Staff of the Indian
Society of International Law for rendering help. I also acknowledge the willing assistance
of Dr. Raman Mittal, Law Faculty of Delhi University in going through the final draft of
the text. I also thank Neena and

Page viii PREFACE
Rama for their meticulous help in typing significant parts of the text. I also thank the
publishers, Satyam Books International, for their care in processing the manuscript.
Finally, many thanks go to my children -Amit and Abhilasha, Tejal, and little Manan and
Riya- whose love kept me motivated.
S.K. Verma

Contents
Preface vii
Table of Cases xvii
Chapter 1 INTRODUCTION 1
I. Nature of International Law 1
A. Public International Law and Private International Law 4
B. Is International Law “True Law”? 5
II. Basis of International Law 11
A. Naturalist School 11
B. Positivist School and Consent Theory 13
III. Evolution and Development of International Law 16
IV. New States and International Law 19
V. Codification of International Law 22
Chapter 2 SOURCES OF MODERN INTERNATIONAL LAW 25
I. General 25
II. Custom 27
A. State Practice 28
B. Opinio Juris Sive Necessitatis 34
III. Treaties 37
A. General and Particular Treaties 38
B. Treaty and Custom 39
IV. The General Principles of Law 40
V. Judicial Decisions 46
A. Decisions of International Tribunals 46
B. Decisions of Municipal Tribunals 48
VI. Juristic Work on International Law 49
VII. General Assembly Resolutions and Declarations 51
Chapter 3 INTERNATIONAL LAW AND MUNICIPAL LAW 54
I. Introductory 54
II. Theories on Relationship 54
A. Monism 54
B. Dualism 55
C. Question of Primacy 56
III. Theories on the Application of International Law within
Municipal Law 57

Page x CONTENTS
A. Transformation or Specific Adoption Theory 58

B. Delegation Theory 58
IV. Municipal Law before International Tribunals 59
V. International Law within Municipal Sphere 61
A. The United Kingdom 61
B. The United States 67
C. European States - Germany and France 70
D. Russia 71
E. Indian Practice 72
Chapter 4 SUBJECTS OF INTERNATIONAL LAW 81
I. General 81
II. State as a Subject of International Law 81
A. Population and Territory 82
B. Government 83
C. Capable of Entering into Relations with Other States 83
III. Non-Self-Governing Territories 87
A. Protected Territories 91
B. Mandates and Trust Territories 93
IV. Public International Organisations 96
V. Individual as Subject of International Law 99
Chapter 5 RECOGNITION OF STATES AND GOVERNMENTS 105
I. Recognition in General 105
A. Manner of Recognition 108
B. Theories of Recognition 110
C. Absence of Duty to Recognise 112
D. Collective Recognition 113
E. Recognition of Governments 115
F. Conditional Recognition 119
G. Withdrawal of Recognition 119
II. De jure and de facto Recognition 120
III. Retroactive Effect of Recognition 124
IV. Legal Consequences of Recognition 126
A. The Position of Unrecognised Entity under Municipal Law 127
V. Doctrine of Non-recognition 128
VI. Recognition of Insurgency and Belligerency 130
Chapter 6 STATE TERRITORY 133
I. General 133
II. Modes of Acquisition of State Territory 133
A. Occupation 134
B. Accretion 137
C. Cession 138
D. Annexation 139

Page xi CONTENTS
E. Prescription 140
III. Polar Regions 143
IV. External Territorial Rights of States 145
A. Servitudes 145
B. Leases 148
V. Air Space 149
A. Sovereignty in the Air Space 149
B. Chicago Convention on Air Law 152
C. Bilateral Agreements 153
D. Aerial Intrusion 154
VI. Outer Space 157
A. Outer Space Treaty 159
B. The Liability Convention 162
C. The Moon Agreement 163
VII. National Waters and Rivers 164
A. Internal Waters 164
B. International Rivers 167
Chapter 7 STATE JURISDICTION 172
I. Jurisdiction in General 172
A. Civil Jurisdiction 172
B. Criminal Jurisdiction 173
II. Basis of Jurisdiction 173
A. Territorial Jurisdiction 173
B. Jurisdiction according to Nationality Principle 177
C. Jurisdiction according to Protective Principle 178
D. Jurisdiction according to Universality Principle 180
III. Exemptions from Territorial Jurisdiction 182
A. Foreign Sovereigns and Foreign States 182
B. Diplomatic Representatives and Consuls 192
C. Foreign Public Ships 192
D. Foreign Armed Forces 194
E. International Institutions 196
IV. Hijacking and Jurisdiction With Regard to Aircraft 196
A. The Tokyo Convention 196
B. The Hague Convention 197
C. The Montreal Convention 199
D. Protocol to Montreal Convention 201
E. Aircraft Hijacking and India 202
Chapter 8 DIPLOMATIC AND CONSULAR RELATIONS 204
I. Introductory 204
II. Diplomatic relations 205
A. Legal Aspects of Diplomatic Relations 205

Page xii CONTENTS
B. Rights, Privileges and Immunities of Missions and Diplomatic

Agents 207
C. Waiver of Immunity 219
D. Termination of the Mission 220
III. Consular Relations 221
A. Immunities, Privileges and Rights of Consuls 222
IV. Special Missions 223
V. Representatives Appointed to International Organisations 223
VI. Prevention and Punishment of Crimes against Diplomats 224
VII. Protection of United Nations and Associated Personnel 225
Chapter 9 THE STATE AND THE INDIVIDUAL 227
I. Introductory 227
II. Nationality 227
A. Acquisition of Nationality 229
B. Loss of Nationality 235
C. Double Nationality 236
D. Statelessness 237
E. Refugees 238
III. Extradition 239
A. Procedure and Law on Extradition 241
B. Law on Extradition in India 246
IV. Asylum 247
A. Kinds of Asylum 248
B. Right of Asylum 252
Chapter 10 HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS 254
I. General 254
II. Human Rights: The United Nations Approach 257
A. Enforcement of Human Rights: United Nations Machinery 259
B. Procedure and Practice under the Covenants 262
C. General Conventions on Human Rights 265
D. Protection and Enforcement of Women’s Rights 266
III. Protection of Human Rights: Regional Approaches
A. European Convention for the Protection of Human Rights and 268
Fundamental Freedoms 268
B. American Convention on Human Rights, 1969 274
C. African Charter on Human Rights and Peoples’ Rights, 1981 276
IV. Enforcement of Human Rights in India 277
Chapter 11 STATE RESPONSIBILITY 281
I. Introductory 281
II. Scope of International Responsibility 283
III. Elements of State Responsibility 285
A. Conduct Attributable to the State 285

Page xiii CONTENTS
B. Breach of an International Obligation 289

C. Legal Excuses or Defences for Breaches of International Law 293
IV. Content of international Responsibility of a State 297
A. Cessation and non-repetition 297
B. Reparation 298
V. Invocation and Issues of Admissibility of International Responsibility
of a State 302
A. Invocation of State Responsibility 302
B. Admissibility of claims 304
VI. Bases of Diplomatic protection 305
A. Nationality of Claims Rule 306
B. Rule on Exhaustion of Local Remedies 310
Chapter 12 INTERNATIONAL PROTECTION OF
ENVIRONMENT 312
I. General 312
II. General Principles of International Law and Environment 312
III. International Efforts to Protect Environment 315
A. Stockholm Conference on Human Environment 317
B. UNEP during 1972-82 and Other Environmental
Developments 321
C. Nairobi Declaration 1982 and Subsequent Developments 324
D. Developments after 1990 327
E. United Nations Commission on Sustainable Development 334
F. Hazardous Substances and Activities 335
IV. Environment and Nuclear Safety 337
V. Implementation and Enforcement of Environmental Norms 338
Chapter 13 LAW AND PRACTICE OF TREATIES 340
I. General Introduction 340
II. What is a “Treaty” 342
A. A Written Instrument between the Parties 343
B. Entities Endowed with International Personality 345
C. Agreement Creates or Intends to Create Legal Relationship 347
D. Agreement should be Governed by International Law 347
III. The Making of Treaties 348
A. Negotiation and Adoption of the Text 350
B. Commencement of the Treaty 351
C. Entry into Force of a Treaty 354
IV. Reservations 355
V. Treaties and Third Parties 360
VI. Observance and Validity of Treaties 363
A. Violation of Domestic Law on Treaty-Making 363
B. Error 364
C. Fraud and Corruption of the State Representative 365
D. Coercion 365

Page xiv CONTENTS
E. Conflict with a Norm of Jus Cogens 366

VII. Termination and Suspension of Treaties 368
A. Termination and Suspension by the Will of Parties 368
B. Termination and Suspension by Operation of Law 370
VIII. Treaty interpretation 375
A. The Plain Meaning or “Textual Approach” 375
B. The Principle of Effectiveness 377
C. Multilingual Treaties 380
IX. Amendment and Modification of Treaties 380
A. Procedure for Amending Multilateral Treaties 381
B. Modification of Multilateral Treaties 382
Chapter 14 THE LAW OF THE SEA 383
I. Introduction 383
II. Maritime Belt or Territorial Sea 387
A. Breadth of the Territorial Sea 387
B. Delimitation of the Territorial Sea 391
C. Rights of other States in Territorial Sea 392
D. Rights and Duties of the Coastal State in Territorial Sea 395
E. Criminal and Civil Jurisdiction of the Coastal State 395
F. Indian Position on Territorial Waters 397
III. Contiguous Zone 398
IV. The Exclusive Economic zone 398
A. Rights of the Coastal State in the Exclusive Economic Zone 399
B. Delimitation of the Exclusive Economic Zone 401
C. Indian Position 401
V. Continental Shelf 402
A. Definition of the Continental Shelf 403
B. Delineation of the Continental Shelf 404
C. Rights of the Coastal State in the Continental Shelf 405
D. Delimitation of Continental Shelf Boundaries between States 405
E. Islands 410
F. Indian Position 410
G. Continental Shelf and Exclusive Economic Zone
Distinguished 410
VI. High Seas 411
A. Freedoms of the High Seas 411
B. Jurisdiction in Collision Cases 412
C. Rights and Duties of States on the High Seas 413
D. Indian Position 417
VII. Enclosed or Semi-Enclosed Sea 417
VIII. Land Locked States 417
IX. Seabed Area 419
A. International Seabed Authority 420
B. Preparatory Commission 421

Page xv CONTENTS
C. Developments after 1982 421

X. Protection and Preservation of the Marine Environment 424
Chapter 15 INTERNATIONAL CRIMINAL LAW 246
A. History 246
B. Sources 428
II. International Criminal Tribunals 429
A. Establishment of ad hoc Tribunals for Former
Yugoslavia and Rwanda 429
B. International Criminal Court 432
III. Categories of International Crimes 441
A. Terrorism 441
Chapter 16 SETTLEMENT OF INTERNATIONAL DISPUTES 447
I. General 447
II. Legal and Political Disputes 447
III. Amicable Means of Settlement 448
A. Diplomatic Means 449
B. Arbitration 453
C. Judicial Settlement (ICJ) 458
D. Settlement of Disputes under the Auspices of United
Nations Organisation 477
IV. Compulsive or Coercive Means of Settlement 479
A. Retorsion 479
B. Reprisals 480
C. Embargo 482
D. Pacific Blockade 483
E. Intervention 484
Chapter 17 WAR AND THE USE OF FORCE BY STATES 489
I. General 489
II. Attempts to Limit the Right to Wage War 491
A. War and the Covenant of the League of Nations 492
B. The Pact of Paris and State Practice on War 492
C. United Nations Charter and the Use of Force 493
III. State of War 502
A. Commencement of War 502
B. Effects of Outbreak of War 503
IV. Laws of War (International Humanitarian Law) 507
A. Laws of Land Warfare 508
B. Laws of Maritime Warfare 515
C. Laws of Aerial Warfare 517
D. Legality of Atomic or Nuclear Warfare 518
V. Treatment of Civilian Persons in Time of War 525

Page xvi CONTENTS
A. Belligerent Occupation of Enemy Territory 526

B. Treatment of Civilians in Civil War 529
VI. War Crimes 530
VII. Termination of War and Armed Hostilities 534
18 LAW OF NEUTRALITY AND ECONOMIC WARFARE 537
I. Neutrality in General 537
II. Development of the Law of Neutrality 538
A. Neutrality and the Covenant of the League of Nations 540
B. Neutrality and the United Nations Charter 540
III. Rights and Duties of Neutral and Belligerent States 542
A. Duties of Neutrals 542
B. Duties of Belligerents 544
C. Un-neutral Service 544
D. Rights of Belligerents 545
IV. Economic Warfare Contraband 545
A. Contraband 546
B. Doctrine of Continuous Voyage or Continuous
Transportation 547
C. Blockade 549
19 INTERNATIONAL ORGANISATIONS 554
A. Status and Role of International Organisations 555
B. Legal Capacity: Extent and Scope 557
C. Privileges and Immunities
D. Law-Making and Regulatory Functions of International 559
Organizations 562
II. League of Nations 563
A. Principal Organs of the League of Nations 564
B. Functioning of the League and Reasons of its Failure 564
III. The United Nations 566
A. Origin 566
B. Purposes and Principles 567
C. Membership 571
D. Organs of the United Nations 574
IV. Specialised Agencies and the ILO 603
Index 607

Table of Cases
Aaland Islands case, 146, 147, 361, 362 Abu Dhabi Arbitration, 402 Adams v. Adams,
124, 128 ADM Jabalpur v. Shukla, 73, 278 Administrative Tribunal Case, 43
Administrative Tribunal of the ILO case, 273,
377, 379, 475, 603 Admissibility of Hearings, 95 Aegean Sea Continental Shelf case
(Greece v. Turkey), 343, 376, 467, 471, 477 Aegean Sea Continental Shelf case (Interim
Protection Order), 471 Aerial Incident of 10 August 1999 (Pakistan v. India) case, 464,
467 Aerial Incidents cases (US v. Czechoslovakia), 465 Aerovias Interamericanas. de
Panama v. Dade Commissioners, 69 Air Services Agreement (France v. US), 9, 295, 482
Ajaib Singh v. State of Rajasthan, 80 Alabama Claims Arbitration, 57, 454, 539, 543
Alcom v. Republic of Colombia, 188 Al-fin Corporation’s Patent, 128 Alfred Dunhill of
London Inc. v. Republic of Cuba, 185
Aloeboetoe case, 367 Ambatielos case, 378, 470 Anglo-French Continental Shelf case,
408, 410, 457
Anglo-Iranian Oil Co. case (Interim Measures), 350
Anglo-Iranian Oil Co. case, 346, 378, 463, 464, 471
Anglo-Norwegian Fisheries case, 15, 29, 31,
47, 135, 166, 387, 388, 390 Antarctica cases, 465
Apparel Export Promotion Council v. A.K.Chopa 79, 279 Application of Art. VI, Sec.
22, of the Convention on the Privileges and Immunities of the UN, 560 Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, 303, 437, 464,
471 Arantzazu Mendi, The, 123 Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Rwanda) (Provisional Measures), 303, 359, 368
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium),
(Preliminary Objections and Merits), 470 Asakura v. City of Seattle, 68 Asylum case, 3,
15, 27, 28, 30, 34, 36, 48, 209, 248, 249, 250, 464 Attorney General for Canada v.
Attorney General for Ontario, 65, 75, 349 Attorney General of the Government of Israel
v. Eichmann, 180, 532 Aumeeruddy-Czifra v. Mauritus (The Mauritian Women case),
263 Austro-German Customs Union case, 83 Avena and Other Mexican Nationals case,
69, 302, 364

Page xviii TABLE OF CASES
Baby Boy case, 276

Baccus v. S.R.L. Servicid Nacionel del Trigo, 184
Bank of Ethiopia v. National Bank of Egypt and Ligouri, 123, 125 Berbacke v. Smith, 64
Barcelona Traction case (Preliminary Objection), 470, 472
Barcelona Traction Power and Light Co.
case, 45, 60, 303, 304, 306, 308, 309, 339 Barrios Altos case, 275 Beagle Channel
Arbitration, 455 Bennett v. Horseferry Magistrate’s Court, 64 Berubari Union case, 77,
78, 138, 350 Birendra Bahadur Pandey v. Gramophone Company of India, 73, 74 Birma
v. State of Rajasthan, 76 Brazilian Loans case, 44, 60, 296 Breard v. Pruett, 70 Brind
case, 66 Buck v. A.G., 184 Burnt v. Barbuit, 62
Caire Case, 288, 291 Canevaro case (Italy v. Peru), 307 Carl Zeiss Stifung v. Rayner and
Keeler Ltd., 124
Caroline case, 486
Case Concerning Avena and Other Mexican Nationals, 69, 70, 302 Case Concerning
Questions of Interpretation and Application of the 1971 Convention Arising from the
Aerial Incident at Lockerbie, Scotland (Libyan Arab Jamahirayat v. U.K.), (Preliminary
Objections), 201 Case Concerning Questions of Interpretation and Application of the
1971 Convention Arising from the Aerial Incident at Lockerbie, Scotland (Libyan Arab
Jamahirayat v. U.K.), (Provisional Measures), 200
Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v.
Belgium), 181, 284, 439 Case Concerning Maritime Delimitation and Territorial
Questions between Qatar and Bahrain, 409 Case of Exchange of Greek and Turkish
Populations, 60, 379 Central Bank of India v. Ram Narain, 172, 177
Century Twenty-One (P) Ltd. v. Union of India, 190, 214 Certain Criminal Proceedings
in France (Republic of Congo v. France), 181 Certain Expenses of UN, 32, 378, 475, 578,
579, 595
Certain German Interests in Polish Upper Silesia (Merits), 286 Certain Phosphate Lands
in Nauru (Preliminary Objections), 289, 292, 315, 470
Charles Shobraj v. Supdt., Central Jail, 277 Charzow Factory case, 42, 284, 299, 300
Cheng v. Governor of Pentoville Prison, 243 Chung Chi Cheng v. The King, 62, 192, 193
Civil Air Transport Incorporation v. Central Air Transport Corporation, 125 Civil Rights
Vigilance Committee v. Union of India, 79
Claim Against the Empire of Iran, 185, 186, 188
Clipperton Island Arbitration, 135 Compania Naviera Vascongado v. S.S.
Christina, 183 Companies Merchantil Argentina v. U.S.
Shipping Board, 184 Competence of International Labour Organisation, 33, 376
Competence of the General Assembly case, 376, 379, 572 Conditions of a State to
Membership in the United Nations (Admissions case), 376, 379, 475, 571, 572

Page xix TABLE OF CASES
Continental Shelf (Tunisia v. Libya) case, 399, 407, 410 Continental Shelf between Libya
v. Malta case, 386, 399, 408, 411 Cook v. US, 68
Corfu Channel case (Preliminary Objection), 463, 464
Corfu Channel case, 42, 257, 285, 289, 291, 301, 314, 394, 395, 476 Costa Rica v.
Nicaragua, 100, 291 Cutting case, 178
D. P.P. v. Doot, 174

Daimler Co. Ltd. v. Continental Tyre and Rubber Co. (GB) Ltd., 506 Damodhar Gordhan
v. Deoram Kanji, 77 De Becker’s case (Commission), 273, 293 Democratic Republic of
the Congo v. Uganda Case, 211
Deutsche Continental Gas-Gesellschaft v. Polish State, 82 Dharam Teja Case, 245
Dickson Car Wheel Company, 285 Difference Relating to Immunity from Legal Process
of a Special Rapporteur of the Commission of the Human Rights, 283, 286, 560, 561
Diversion of Water from the Meuse, 44 Dogger Bank case, 452 Donnelly et al. v. The
UK, 270 Duff Development Co. v. Kelantan Government, 127, 183, 184
East Timor Case, 91, 303 Eastern Carelia case, 42, 47, 361, 448, 474 Eastern Greenland
case, 43, 134, 135, 137, 344, 364 Edye v. Robertson, 68 Effect of Awards by the UN
Administrative Tribunal, 558 Effect of Reservations case, 358, 532 El Oro Mining and
Railway Co. Case (Great Britain v. Mexico), 310
Electricity Company of Sofia, 464, 469 Electtronica Sicula S.p.A., 290, 461 El-Salavador
v. Nicaragua, 390 El-Slavador v. Honduras case, 473 Emin v. Yeldag, 128
Emperor of Austria v. Day and Kissuth, 62 Employment of Women at Night, 376, 379
English Channel Arbitration, 455 Eritrea v. Yemen, 136
European Commission of the Danube, 379 Exchange of Greek and Turkish Populations,
60, 379
Ex Parte Pinochet Ugarte, 284 Ex v. Pinochet Ugarte (No. 3), 63
Factor v. Lubenheimer240, 244 Falkland Islands case, 91 Finnish Ships Arbitration, 59,
310 Fisheries Jurisdiction case (Jurisdiction), 346, 366, 464 Fisheries Jurisdiction cases
(Interim Measures), 471 Fisheries Jurisdiction cases, 29, 45, 297, 340, 346, 366, 375,
399, 476, 477 Fisheries Jurisdiction cases, 29, 45, 297, 340, 346, 366, 375, 399, 476, All
Flegenheimer Claim, 307 Francis Coralie Mullin v. The Adm. Union Territory of Delhi,
278 Franciska, The, 551, 552 Free City of Danzig and the ILO case, 377 Free Zones of
Upper Savoy and the District of Gex, 360, 374, 376 Frontier between Turkey and Iraq
case, 379, 474
Frontier Disputes case (Burkino Faso v. Mali), 88, 461 Frontier Dispute case (Benin v.
Niger), 461 Frontier Lands case (Belgium v. Netherlands), 140, 463
G. B. Singh v. Government of India, 180

Page xx TABLE OF CASES
Gabcikovo-Nagymaros Project, 285, 290, 291, 294, 295, 297, 300, 315, 339, 371, 373,
374, 375, 464 Garcia-Mir v. Meese, 67 Geipel v. Smith, 557 German Settlers in Poland,
286 Glenroy, The, 506 Golder case, 257
Gramophone Company of India v. Birendra Bahadur Pandey, 73, 74 Grisbidarna case,
387 Guinea-Guinea Bissau Arbitration, 45, 407 Gulf of Maine case, 44, 386, 408, 410,
461 Gur Corp. v. Trust Bank of Africa Ltd., 124 Gut Dam Arbitration, 313 Gydnia
Ameryka Linie v. Boguslawski, 125
Haile Salassie v. Cable and Wireless Ltd., 124, 125

Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Cat. and Others, 241, 247
Harbhajan Singh v. Union of India, 190, 214 Harris v. Secy. Gen. of the U.N., 603
Hatfield v. Guay, 175 Hawaii v. Ho, 70
de la Torre case, 28, 249, 250, 473 Heaney v. Government of Spain, 185 Heathfield v.
Chilton, 62 High Commission for India v. Ghosh, 219 Hilton v. Guyot, 4 Hostages case
(US v. list), 292, 528 Hussainara Khatoon v. Home Secretary, State of Bihar, 277
I Congreso del Partido case, 186, 187, 188 I’m Alone case, 300, 395, 416 ICAO
Jurisdiction case, 203, 371, 470 Indonesian case, 334 Institute Indo-Portuguese v. Broges,
191 Interhandel case (Preliminary objections), 310, 311, 467, 468, 469 Interpretation of
the Agreement of 25 March 1951 between the WHO and Egypt, 556, 560
Ireland v. U.K., 269, 270 Isbrandtsen Tankers Inc. v. President of India, 185
Island of Palmes Arbitration, 92, 133, 134, 136, 137, 140, 292, 361
J.H. Rayner (Mining Lane) Ltd. v. Department of Trade and Industry, 63, 65 James
Buchanan and Co. Ltd. v. Babco Forwarding and Shipping (UK) Ltd., 64 Janes Case (US
v. Mexico), 288 Janson v. Driefontein Consolidated Mines, 506
Jayantilal v. Rana, 76, 78, 251, 278 Jolly George Vergese v. Bank of Cochin, 76, 78, 257,
267, 278 Joyce v. D.P.P., 179
K.T.M.S. Abdul Coder v. Union of India, 179 Kahan v. Pak Federation, 183, 184 Kahane
v. Parisi and the Austrian State, 229 Kardic v. Karardzic, 284 Kenneth P. Yeager v. The
Islamic Republic of Iran, 289
Keshavananda Bharti v. State of Kerala, 278 Kim, The, 548 Kolezynski case, 243 Krajina
v. Toss Agency, 184 Krishna Sharma v. The State of West Bengal, 73
La Grand Case (Merits), 60, 70, 286, 298, 301, 364

La Grand case (Provisional Measures), 60, 286, 298, 301 Lake Lanoux Arbitration, 168,
170, 291, 314 Land, Island and Maritime Boundary Dispute (El Salvador v. Honduras),
45, 461, 473 Lativan State Cargo Lines v. McGrath, 128 Land and Maritime Boundary

between Cameroon and Nigeria, 136, 409, 410, 466, 470, 473 Lawless case, 271, 272,
273

Page xxi TABLE OF CASES
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South-West Africa), 33, 94, 103, 130, 284, 340,474, 475, 583, 585, 587 Legal
Consequences of the Construction of a Wall in the Occupied Palestine Territory, 284,
303, 472, 500, 527 Legality of the Threat or Use of Nuclear Weapons, 27, 294, 525, 558
Legality of the Use of force cases between Yugoslavia and the NATO States, eg.
Yugoslavia v. Belgium (Provisional Measures), 289, 487, 500 Lehigh Valley Rail Co. v.
Russia, 126 Lehigh Valley Railroad Co. v. Germany, 457 Libyan Arab Jamahiraya v.
U.K., 200, 208 Llandovery Castle case, 533 Loizido v. Turkey, 293 Lusitani case, 300
M.H. Hoskot v. State of Maharashtra, 277 M/V. SAIGA case, 412, 416 Maclaine Watson
v. Department of Trade, 63, 65
Maganbhai Ishwarbhai Patel v. Union of India, 77, 78 Maharaja Sahib Shiv Bhagwat
Singh Bahadur of Udaipur v. State of Rajasthan, 191
Maharaja Sikram Kishore of Tripura v. Province of Assam, 73 Mantoo Mazumdar v.
State of Bihar, 277 Maria, The, 547 Maritime Delimitation (Eritrea v. Yemen), 457
Maritime Delimitation in the Black Sea case (Romania v. Ukraine), 389, 409 Maritime
Dispute (Spain v. Chile), 409 Martini (Italy v. Venezuela) case, 300 Mavrommatis
Palestine Concessions case, 43, 306, 365, 380, 447 Medelliene v. Texas, 69, 302
Mellenger v. New Brunswick Development Corp., 186
Menaka Gandhi v. Union of India, 277 Meret, The, 128
Mighell v. Sultan of Johore, 184 Military and Para-military Activities in and against
Nicaragua (Interim Measures), 8, 31, 35, 40, 51, 471, 472 Military and Para-military
Activities in and against Nicaragua (Jurisdiction and Admissibility), 346, 386, 466, 471,
473 Military and Para-military Activities in and against Nicaragua (Merits), 340, 347,
392, 449, 468, 470, 476, 477, 486, 487, 493, 497
Minquiers and Ecrehos case, 134, 135, 463 Mirza Ali Akbar Kashani v. United Arab
Republic, 74, 191 Missouri v. Holland, 68 Monetary Gold case, 464, 465 Mortensen v.
Peters, 63 Motilal v. U.P. Government, 76, 80 Mubarak Ali Ahmad v. The State of
Bombay, 174, 246
Municipality of Saint John v. Fraser Brace Overseas Corp., 192
Nabob of Carnatic v. East India Co, 80 Nanka v. Government of Rajasthan, 76

Nationality Decrees in Tunis and Morocco case (Advisory Opinion), 92, 228, 569
Naulilaa case (Portugal v. Germany), 9, 293,
295, 480, 481 Nawab Usmanali Khan v. Sagar Mal, 191 New Chile Gold Mining Co.
v. Blanco, 218 Nirmal Bose v. Union of India, 76 North Atlantic Fisheries Arbitration,
48, 145, 166, 503
North Sea Continental Shelf cases, 22, 30, 31, 35, 36, 39, 44, 137, 290, 352, 361, 368,
402, 403, 406, 407, 408 Northern Cameroons case, 43, 292, 464, 472 Norwegian Loans
case, 467, 468 Nottebohm case (Second Phase), 61, 199, 227, 233, 234, 235

Page xxii TABLE OF CASES
Nottebohm case, 86, 228, 307, 471 Nuclear Tests Ban cases (Australia v. France) and
(New Zealand v. France), 41, 315, 344, 345, 370, 464, 466, 471 Nuclear Tests cases
(Interim Measures), 43, 290, 315, 344, 370, 464, 466, 471, 477, 520, 521
Oil Platforms Case (Islamic Republic of Iran v. United States), 309, 497 Os timer v.
Australian Mutual Provident Society, 66 Other Treaties case, 275 Over the Top, The, 67
Owners of the Ship Philippine Admiral v. Wallem Shipping (Hong Kong) Lid. and
Others, 185
Pakistani prisoners of war case, 513 Paquette Habana, The, 49, 50, 67 Parlement Beige,
65, 184, 192 Peace Treaties case, 47, 377, 474 Peoples Union for Civil Liberties v. Union
of India, 80, 279 Permanent Mission of India v. City of New York, 188
Philipine Admiral, The, 185, 194 Phosphates in Morocco case, 284, 469 Pianka v. The
Queen, 396 Planmount Ltd. v. Republic of Zaire, 185, 191 PLO Observer Mission case,
560 Polish Postal Service in Danzig, 376 Polites v. Commonwealth, 64 Pratap Singh v.
State of Jharkhand & Ors., 74
Prosecutor v. Dusko Tadic, 287 Province of West Bengal v. Midnapore Zamindary Co.
Ltd., 74 PUCL v. Union of India, 74, 79, 279 Pueblo case, 110
Pulp Mills Our River Uruguay, 168
R. v. Anderson, 396
R. v. Bow Street Magistrates ex-parte Pinochet, 181, 439 R. v. Chief Immigration
Officer, Heathrow Airport, 64 R. v. Corrigan, 245 R. v. Guildhall Magistrate Court, 218
R. v. Jones (Margaret), 63 R. v. Kent, 219
R. v. Keyn (The Franconia’s case), 62 R. v. Madan, 219
R. v. Pentonville Prison Governor, ex-parte Teja, 218
R. v. Secretary of State for Home Department, ex-parte Brind, 66 Rahimtoola v. Nizam
of Hyderabad, 183, 185, 186, 218
Rainbow Warrior Case, 281, 285, 287, 292,
296, 301
Raja Harinder Singh v. Commissioner of Income Tax, 74, 191 Rakesh Kumar Vij. case,
278 Rambabu Saxena v. State, 242, 247 Ramjawaya Kapur v. State of Punjab, 76
Ramesh Kaushik v. B.L. Vig, Supdt., Central Jail, New Delhi, 277 Ram Kishore Sen and
Others v. Union of India, 78
Rann of Kutch Arbitration, 142, 455 Re-Arton, 239 Re-Castioni, 242 Re-Extradition of
Locatelli, 243 Re-Kutir, 243 Re-Lynch, 227 Re-Meunier, 242 Reel v. Holder, 128
Reparation for Injuries Suffered in the Service of the United Nations, 32, 47, 81, 97, 98,
283, 361, 377, 462, 508, 556, 557, 558, 569
Republic of China v. Merchant’s Fire Assn. Corp., 109

Page xxiii TABLE OF CASES
Republic of Somalia v. Woodhouse Drake Carey Suisse, S.A., 127 Reservations to the
Genocide Convention, 33, 48,53, 357, 358, 474 Right of Passage over Indian Territory
(Preliminary Objections), 466, 468, 471 Right of Passage over Indian Territory, 30, 146
Rights of Minorities in Polish Upper Silesia, 464
Rights of US Nationals in Morocco case, 92, 93
River Older case, 361, 379 Robert E. Brown case, 310 Rosaline George v. Union of
India, 77
Sagarmull Agarwala v. Union of India, 190 Saks hi v. Union of India, 80 Salem case, 273
Salimoff and Co. v. Standard Oil Co. of New York, 107, 128 Salomon v. Commissioners
of Custom and Excise, 67 Sanchez- Llamas v. Oregon, 302 Satwant Singh v. Assistant
Passport Officer, 277
Saudi Arabia v. Aramco, 392 Savarkar case, 180, 240, 294, 456 Schooner Exchange v.
McFaddon, 49, 183, 184, 192, 195 Schtraks v. Government of Israel, 243 Scotia, The, 34,
49 Seery v. US, 70
Sei Fujii v. State of California, 69 Sengupta v. Republic of India, 188 Serbian Loans case,
4, 44, 60, 296 Shimoda v. Japanese State, 518 Shiv Kumar Sharma and Others v. Union
of India, 76
Sierra Leone Telecommunications Co. Ltd. v.
Barclays Bank PLC, 127 Soering v. UK, 244
South West Africa cases (Preliminary Objections), 40, 346, 379, 470, 476 South West
Africa cases (Merits), 45, 52, 53, 95, 304, 378, 471, 472, 476 Sovereignty over Pulau
Ligitan and Pulau Sipadan, 135 Sovfracht V/o v. Van Udens Scheepvaart, 506 Spanish
Zones of Morocco Claims, 364 State of Kerala v. K. Cheru Babu, 192 State of Madras v.
G.G. Menon, 77, 247 State of Punjab cases of Disappearance and Mass Graves, 278 State
of West Bengal v. Jugal, 80 Status of South West Africa, 40, 95, 361, 378 Stegeman v.
U.S., 179 Steiner and Gross v. Polish State, 100 Sukh Das v. Union Territory of
Arunachal Pradesh, 277 Sunday Times (Thalidomide) case, 274 Surinder Kaur Sandhu v.
Harbax Singh Sandhu, 173
T.K. Varred v. State of Travancore Cochin, 73 Tacna-Arica Arbitration, 371 Tag v.

Rogers, 68
Tarashov Extradition case, 240, 245 Temple of Preah Vihear (Preliminary objections),
470 Temple of Preah Vihear, 43, 50, 142, 364, 382 Texaco v. Libya, 45
Thai-Europe Tapioca Service v. Government of Pakistan, 186, 187 Thakrar v. Secretary
of State for the Home Office, 63
Tinoco Concessions Arbitration, 110, 116 Trail Smelter Arbitration, 313, 315
Transmission Corporation of Andhra Pradesh v. Ch. Prabhaker & Ors., 74 Treatment in
Hungary of Aircraft of the USA,
465
Trendtex Trading Corporation v. Central Bank of Nigeria, 63, 185, 186 Triquet v. Bath,
62

Page xxiv TABLE OF CASES
Tunis-Morocco Nationality Decrees case, 228 Turkey-Iraq Frontier, 379

Uganda Co. (Holdings) v. Government of Uganda, 187 UN Administrative Tribunal case,
581 UN Headquarters Agreement case, 68 Union of India v. Manmull Jain, 75 Union of
India v. Sudhansu, 78 Union of India v. Sukumar Sengupta, 78, 138, 145, 147, 148, 370
United Arab Republic v. Mirza Ali Akbar Kashani, 74, 191 United Nations Membership
case, 114 United States v. Malekh, 67 United States v. Rauscher, 245 Upright v. Mercury
Business Machines Co. Inc., 122,
U.S. Diplomatic and Consular Staff in Tehran, 204, 209, 211, 257, 285, 286, 288,
378, 472, 476 U.S. Diplomatic and Consular Staff in Tehran (Provisional Measures),
471, 472 U.S. Nationals in Morocco case, 15 U.S. v. Alvarez - Machain, 70, 178 U.S. v.
Belmont, 69, 126 U.S. v. Capps, 70 U.S. v. Dolfus Mieg, 183 U.S. v. Palestine Liberation
Organisation, 68,
U.S. v. Pink, 69, 126 U.S. v. Yunis, 178
Uttam Singh Duggal v. United States of America, 191
Velasquez v. Honduras, 275 Vervaeke v. Smith, 64

Victory Transport Inc. v. Comisaria General de Abasteciementos Transporte, 185, 186
Vienna Convention on Consular Relations (Paraguay v. United States of America)
(Provisional Measures), 301 Visakha v. State of Rajasthan, 79, 279 Voting Procedures
case, 95
West Rand Central Gold-Mining Co. Ltd. v.

King, 1, 35, 50, 62 Western Sahara case, 51, 89, 90, 134, 135, 137, 462, 474 Wildenhaus
case, 193, 396 Wimbeldon case, 39, 83, 146, 345, 473 Wright v. Cantrell, 184
Yamashita Trial case, 533 Youmens Case, 288 Young, James and Webster, 273 Yun
Duyn v. Home Office, 100
Zamora case, 64, 549

Page 1
CHAPTER 1
Introduction
I. NATURE OF INTERNATIONAL LAW
Law is a tool to regulate interactions amongst the members of a society. There can be no
society without a system of law to regulate the mutual relations of its members.
International law, so to speak, assumes a society of nations primarily and it governs the
relationship of the members of this society.
The majority of the earlier standard works on international law define it as a system
composed solely of legal rules and principles binding upon civilised nations only in their
mutual relations. For example, according to Oppenheim, “Law of Nations, or
International Law is the name for the body of customary and conventional rules which
are considered binding by civilised States in their intercourse with each other”.1 Brierly
says, “Law of Nations or International Law may be defined as the body of rules and
principles of action which are binding upon civilised States in their relations with one
another”.2 According to Hall, “International Law consists of certain rules of conduct
which modem civilised States regard as being binding on them in their relations with one
another, with a force comparable in nature and degree to that binding the conscientious
person to obey the laws of his country and which they also regard as being enforceable by
appropriate means in case of infringement”.3 In Sir Cecil Hurst’s view, “International
Law is the aggregate of rules which determines the rights which one State is entitled to
claim on behalf of itself, or its nationals against another State”.4 Kelsen states,
“International Law or the Law of Nations is the name of a body of rules which according
to the usual definition regulate the conduct of States in their intercourse with one
another”.5 Such an approach towards international law was adopted by the courts too.6
But like all living laws, international law is also not static. It is constantly developing and
restructured in the very process of its application to the new situations, sometimes
undergoing
__________________
1 L. Oppenheim, International Law, Vol. I, 8th ed. (Lauterpacht (Ed.), Longman
London), 1955, p.6.
2 J.L. Brierly, The Law of Nations, 6th ed. (Humphrey Wadlock (Ed.), Oxford
University Press, London), 1963, p.1.
3 W.E. Hall, A Treatise on International Law, 8th ed. (A.P. Higgins (Ed.), Oxford
University Press, Oxford), 1924, p.1.
4 Cecil Hurst, International Law (Stevens and Sons Ltd., London), 1950, p.8.
5 H. Kelsen, Principles of International Law, 2nd ed. (Tucker (Ed.) Holt, Reinhart
and Winston Inc.), 1966, p.1.
6 See, for example, West and Central Gold Mining Co. Ltd. v. King (1905) 2 KB
91, in which international law was defined as “the form of the rules accepted by civilised
States as determining their conduct towards each other and towards each other’s

subjects”; and in the S.S. Lotus case, PCIJ Series A, No. 10 (1927), it was defined as “the
principles which are in force between all independent nations”.

Page 2 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW
qualitative changes. Significant developments have taken place since the Second World
War, which have made the traditional definition inadequate. Those developments relate
to the establishment of a large number of international institutions or organisations, such
as the United Nations Organisation (UNO), the World Health Organisation (WHO),
International Bank for Reconstruction and Development (IBRD), etc. These international
organisations and institutions are regarded as international legal entities and subjects of
international law. This was confirmed by the International Court of Justice (ICJ) in its
advisory opinion in Reparation for Injuries Suffered in the Service of the United
Nations.7
There has also been increase in the subject-matter of international law. Due to
developments in science and technology, rules to regulate environment, outer space and
deep sea have been adopted. The new developments are increasingly revolving around
the individual. There is an active and continuous concern about such divergent and vital
matters related to individuals, like human rights, which for the first time were
conceptualised in the United Nations Charter, and subsequently found their content in the
Universal Declaration of Human Rights of December 10, 1948,8 and health regulations
and treatment of labour under various conventions of the International Labour
Organisation. An individual has also been subjected to duties, and can be held liable for
committing the crime of genocide,9 crimes against peace, crimes against humanity, and
conspiracy to commit these crimes, as implicit in the judgment of the International
Military Tribunal of Nuremberg, 1946.10 Thus, it is no longer possible to regard
international law as governing relations solely among States.11
It is now generally recognised that public international organisations, and in certain
circumstances individuals, are also endowed with rights and duties. Modern international
law is said to govern the relations between States and international organisations,
between international organisations inter-se, and private persons. Schwarzenberger
defines it as the “body of legal rules which apply between sovereign States and such
other entities as have been granted
____________________
7 (1949) ICJ Rep., p. 174.
8 Subsequent to this, numerous human rights instruments have been adopted by the
United Nations and other regional groupings of States.
9 The UN General Assembly adopted the Genocide Convention on Dec.9, 1948.
The Convention came into force on Dec. 12, 1957.
10 Principle I. The judgment of the Nuremberg Tribunal became the basis of the
Draft Code of Principles Recognised in the Tribunal’s judgment formulated by the
International Law Commission (ILC) in 1950. The United Nations General Assembly, by
its Res. 177 (II) of Nov. 21, 1947, directed the ILC to (a) formulate the principles of
international law recognized in the Charter of the Nuremberg Tribunal and in the
judgment of the Tribunal, and (b) prepare a draft code of offences against the peace and
security of mankind. On the basis of this mandate, the ILC, after 1954, restarted work on
the draft code in 1988, and drafted a Code of Crimes Against the Peace and Security of
Mankind, and a Draft Statute on the Establishment of an International Criminal Court to
try the offenders. The General Assembly in 1995 accepted the Draft Statute on the Court

and formed a Preparatory Committee to adopt a Convention. This led to the adoption of
the Rome Statute establishing the International Criminal Court, which is a permanent
tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and
the crime of aggression. The Court came into being on 1 July 2002. See also Dominie
McGoldrick and Colin Warbick, International Criminal Law, 44 ICLQ 466 (April 1995).
11 The scholars like Oppenheim, op. cit. 1 (1st ed., 1905) earlier opined that “States
solely and exclusively are the subjects of International Law”, in his latest work reads,
“States are the principal subjects of international law.” Vol. I, 9th ed. (Jennings & Watts
(Ed.), Pearson Education), 1996, p. 16.

Page 3 INTRODUCTION
international personality”.12 Starke similarly defines it as that body of law “which is

composed for its greater part of the principles and rules of conduct which States feel
themselves bound to observe, and therefore, do commonly observe in their relations with
each other and which also includes: (a) the rules of law relating to the functioning of
international institutions or organisations, their relations with States and individuals and
(b) certain rules of law relating to individuals and non-State entities so far as the rights
and duties of such individuals and non- State entities are the concern of the international
community”.13 In other words, international law is the body of legal rules to regulate the
conduct of States and other international entities. Nevertheless, it is predominantly
concerned with the regulation of rights and duties of States inter-se.
However, the very concept that international law is a “body of legal rules” now stands
challenged as static and inadequate.14 Law is a process, and this is equally true for
international law. It is now well established that the principal component of international
law is no more confined to binding customary and conventional rules but also consists of
“general principles of law” which are constantly enriching the international
jurisprudence. There is increasing evidence of international law in the form of
declarations and guidelines adopted at international conferences, setting the standards in a
non-binding form though the States generally feel compelled to observe them. Some
examples are the 1972 Stockholm Declaration on the Human Environment; numerous
United Nations General Assembly declarations and resolutions on human rights, new
international economic order, economic charter, non-intervention, sovereignty over
natural resources, rights and duties of States; recommendations of the International
Labour Organisation on conditions of labour; international safety regulations set by the
World Health Organisation (WHO); International Civil Aviation Organisation (ICAO)
setting the international standards and recommending practices for international civil
aviation.
The emergence of a large number of new States after the Second World War has
profoundly affected the nature and orientation of international law in a big way, and
helped in the adoption of rules of universal character.15 Their contribution, based on
their number in the international conferences, on the resolutions of the United Nations
General Assembly has helped in the growth of international law. Further, this has
underlined the significance of international political and economic order on the legal
order. There are also discernible trends towards the growth of international law on a
regional basis, developed between the nations located in a particular region, such as the
regional law of Latin American States and the European Union (EU). These regional
rules have been duly recognised by the international tribunals between States in a
particular region.16 However, they do not negate the rules of universal international law
but are rather correlated or complementary to, and surrender to the supremacy of the
general international law.17
____________________
12 G. Schwarzenberger, International Law, Vol. I, 3rd ed. (Stevens and Sons Ltd.,
London), 1957, p.3.
13 J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London),
1989, p.3.

14 Oliver J. Lissitzyn, International Law Today and Tomorrow (Oceana Publications

Inc., New York), 1965, p.40.
15 See infra, pp. 19-22.
16 See Asylum case (Columbia v. Peru) (1950) ICJ Rep. p. 266.
17 Starke, op.cit. 13, pp. 6-8; L. Oppenheim, International Law, Vol. I, 9th ed.
(Jennings & Watts (Ed.), Pearson Education), 1996, p. 13.

Nevertheless, the main object of international law has been to evolve an ordered rather
than a just system to regulate international relations, though it has been increasingly
understood to ensure that justice is done between States objectively. In striving for
justice, international law is akin to municipal law.
A. Public International Law and Private International Law

Public international law differs significantly in its nature from private international law.
Public international law is uniform for all the States and regulates the conduct of States in
their mutual intercourse; private international law, on the other hand, deals with the acts
of individuals and not of States. It prescribes the conditions under which a case with
foreign element can be entertained by the State courts and determines the system of law
which will govern the rights of the parties to a case. Every State enacts its own laws to
regulate these matters. Thus, this branch of law is essentially a part of municipal law and
seeks to reconcile the conflict of laws in matters like domicile, marriage, divorce,
inheritance, contracts, etc. Hence, it is more commonly known as “conflict of laws”.
Broadly speaking, private international law is a collection of rules or principles which
guide the municipal courts in determining the questions related to: (a) their jurisdiction
and competence to entertain a suit; (b) the particular territorial system of law by reference
to which the rights of the parties are to be ascertained; and (c) the circumstances in which
a foreign judgment can be recognised and enforced.18
Sir Robert Phillimore opines that rights arising under public international law are called
absolute and their breach constitutes a casus belli and justifies recourse to war. The rules
of private international law are founded upon convenience and intended to facilitate
intercourse between the subjects of different States. They confer no absolute rights.19
Their basis is the comity of nations towards the individual subjects of a foreign State and
not the extra-territorial validity of the law of the foreign State. However, comity is neither
a matter of absolute obligation nor of mere courtesy or goodwill. But it is the recognition
of legislative, executive or judicial acts of another State which a State allows within its
territory, having due regard both to international obligation and convenience, and to the
rights of its own citizens or of other persons who are under the protection of its laws.20 If
there is a want of comity shown towards the individual subjects of a foreign State, the
reciprocity of treatment is the only legitimate remedy available to the State whose
nationals have been injured.
The Permanent Court of International Justice in the Serbian Loans case21 pointed out
that the rules of private international law may be common to several States and may even
be established by international conventions or customs. In the latter case, it may possess
the character of
____________________
18 Robert Phillimore, Commentaries upon International Law (1879-89), Vol. IV, p.1.
See also, P.E. Corbett, The Study of International Law (Princeton University Press),
1955; P.E. Corbett, Cases on International Law, 5th ed. (1931), pp. 224-225 and 239-240.
19 Ibid.
20 Hilton v. Guyot, 159 US 113 (1895).
21 PCIJ Rep., Series A, No.20, p. 46 (1929).

Page 5 INTRODUCTION
true international law, governing relations between States. However, apart from that the
rules of private international law form a part of municipal law.22
B. Is International Law “True Law”?

There has always been a controversy regarding the nature of international law. Critics of
international law always draw a parallel with municipal law and are wary about the
absence of a legislative body, the hierarchy of courts, and enforcement machinery under
the international law. They deny its legal character and do not consider it to be “true
law”. The breaches of international law leading to wars or armed conflicts, non-
observance of treaty obligations and other blatant violations of international law are
quoted as examples of total absence of an international legal system. But the scholars of
international law reject this narrow approach and are quick to point out its binding force
among the nations. The law remains binding even during war time as some of the rules
affecting the relations of belligerents inter-se and with neutrals are observed by the States
strictly.
Nevertheless, the answer to the question whether international law is “true law” or not
depends entirely on how one defines law and what its object is. John Austin (1790-1859),
was a strong critic of international law and the chief protagonist of the view that
international law is not true law. Austin’s opposition to international law stems from his
definition of law. According to him, law “properly so called” is the command of the
sovereign, backed by a superior political authority, that is, it is the edict issued from a
determinate sovereign legislative authority, which must be backed by the authority of the
State. Austin called such commands as “positive law” which he regarded as the
“appropriate matter of jurisprudence”.23 A sovereign was defined as a person who
received the habitual obedience of the members of an independent political society and
who did not owe such obedience to anybody. If the concerned rules were not issued by
the sovereign authority, then they cannot be legal rules. According to this test, rules of
international law do not qualify as rules of “positive law”. Austin categorised them as
“laws improperly so called”. He tried to adjudge international law against the municipal
law and did not find international law of the same order as municipal law. There is a total
absence of sovereign political authority over and above the States to enforce the rules of
international law. Further, in his opinion, there are three parties to a legal right: the
person entitled, the person bound, and the arbiter. Due to the inability of international law
to satisfy this test, Austin described international law as “positive international morality”
which consists of “opinions or sentiments current among nations generally”. It is
analogous to the rules binding the members of a club or a society. Other protagonists of
this view were Bentham, Hobbes and Pufendorf who also questioned the legal character
of international law and termed it as merely moral ethical rules.
____________________
22 The Hague Academy of International Law has been engaged in the codification of
such laws in the areas of marriage and divorce, inter-country adoption, international sales
and shipping, etc. They are sometime referred as “transnational laws”.
23 See H.L.A. Hart (Ed.), The Province of Jurisprudence, Lectures 1, V and VI
(Clarendon Press, Oxford), 1954.

Sir Thomas Holland, like Austin, also denies international law the legal character and
calls it as the “vanishing point of jurisprudence”. He observes that rules of international
law are followed by courtesy. In international matters, both parties are judges of their
own cause, there is no arbiter above the parties. Without an arbiter, law is contradiction in
terms. The rules of international law are, in reality, no more than the moral code for
nations. It is law by analogy.24
But these views have been severely criticised by a large number of jurists. The definition
of Austin that law is the command of the sovereign backed by a coercive enforcement
agency was not accepted fully even during his time. The historical school of
jurisprudence has discounted his general theory of law by stating that Austin disregarded
law in its various phases of development. For example, in primitive communities, without
a formal legislative authority a system of law prevalent therein is no less binding than
that of a State with a formal legislative authority. Most international lawyers have
disputed Austin’s definition as the only test to adjudge international law as “law”.
Oppenheim remarks that Austin’s definition does not cover that part of municipal law
which is unwritten or is only customary.25 Hart views that Austin’s definition is true for
penal laws only.26 According to Brierly, to classify international law as a branch of
ethics is merely pedantic.27
Sir Frederick Pollock writes that “the only essential conditions for the existence of law
are the existence of a 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”.28 Pollock’s view reflects the generally held view of most jurists of
today. Also, in the constitutions of certain countries, international law is placed at par
with municipal law, binding their citizens, such as in the constitutions of the United
States of America (Art. VI, Para 2), France (Art. 55 of the 1955 Constitution), and
Germany (Art. 25 of the Basic Law).
Austin’s views do not apply to the modern international law whose binding force cannot
be doubted. Even in the absence of a centralised legislative authority, a substantial
amount of international legislation in the form of treaties and conventions has come into
existence since the beginning of this century. International law is no more exclusively
consisting of customary rules. The procedure and technicalities for the adoption of this
legislation through international conferences or international institutions are well defined.
Further, the States consider themselves bound by it as members of international society,
irrespective of their individual will.29 It is treated as law by the international community
and by those who conduct international business in various capacities. Even the State
which wishes to escape from an inconvenient rule of international law would not deny the
existence of international law as such, but would justify its action either by challenging
the existence of such a rule or
____________________
24 Sir Thomas E. Holland, Lectures on International Law (Clarendon Press, Oxford),
1933.
25 Oppenheim, op.cit., 1, p.7.
26 H.L.A. Hart, The Concept of Law (Oxford University Press, Oxford), 1961, p.24.

27 J.L. Brierly, op. cit. 2, pp. 69-70. Similar views have been expressed by Sir
Frederick Pollock, Oxford Lectures and Other Discourses (Macmillan, London), 1890, p.
18.
28 F. Pollock, The Outlook for International Law (1944), p.5.
29 Gerald Fitzmaurice, The Foundations of the Authority of International Law and
the Problem of Enforcement,
19 Modern Law Review, pp. 8-9, 1956.

Page 7 INTRODUCTION
by invoking another rule applicable to its case or claiming that the rule should be
modified to meet a new situation.30 When Indian forces took over Goa in 1961, India
justified its action under Art. 1(2) of the United Nations Charter, i.e., the right of self-
determination, though it arguably violated Art. 2(4), i.e., the prohibition of use of
force.31 The United Kingdom justified its invasion of Suez Canal in 1956, under Art. 51
(the right of self-defence), i.e., to protect its nationals, shipping and canal installations.32
The Argentinean justification for its invasion of Falkland Islands in 1982 was its claim of
sovereignty over these islands.33 Since the States look upon international law as
governing their relations inter-se, and ipso facto binding upon them, it would be pedantic
not to consider such a body of rules as “true law”.
Although not blurring the legal force of international law, it has been termed as weak
law. There are opinions that it differs remarkably from municipal law in many respects,
viz., the absence of legislature to frame new laws, the absence of courts with compulsory
jurisdiction over all disputes or of an independent third-party dispute-settlement, and the
lack of effective sanction for the punishment of the law breakers, or forcing States to
observe it or making recalcitrant States to act according to law.34 It has also been
generally stated that rules of international law suffer from great uncertainty. It cannot
intervene in the matters within the domestic jurisdiction of the States, and it has failed to
maintain order and peace. It is observed more in violation than in adherence. The
institutions which exist for the making and application of the law are of a rudimentary
character. There is absence of executive power to enforce the law. Brierly remarks that
there exists “convenient machinery for the arbitration of disputes and a standing court of
justice, but the range of action of these is limited because resort to them is not
compulsory”.35 However, these limitations of international law stems from the claims of
sovereignty by States for their actions.
There is no denial of the fact that the existing legislative machinery in the form of
international conferences or international institutions for the adoption of law-making
treaties or conventions is not comparable to the State legislature. Many of the rules of
international law can be formulated with great difficulty and quite often they are merely
the collection of inconsistent State practices. The procedure for the negotiation and
adoption of these conventions is very tardy and even after that, States may refuse to be
party to them. For example, the negotiations for the United Nations Convention on the
Law of the Sea, started in 1973 and it was adopted on December 10, 1982, but was not
signed by many countries, including the United States of America and the United
Kingdom. The Convention could come into force
____________________
30 States may often violate international law like individuals violate municipal law;
and similarly defend their actions under the law as individuals do, without claiming as
being above the law.
31 In this case, Portugal had retained Goa and other dependent territories on the
Indian subcontinent long after other colonial powers had withdrawn. The use of force by
India to liberate them had the tacit approval of many UN members, who were motivated
by their anti-colonial ideas and partly there seemed little likelihood the dispute being

settled by peaceful means. The seizure of Goa by India was not branded as aggression
either by the Security Council or the General Assembly.
32 Quincy Wright, 51 AJIL 257 (1957).
33 Thomas M. Franck, 77 AJIL 109 (1983).
34 D.W. Greig, International Law, 2nd ed. (Butterworths, London), 1976, p. 1.
35 J.L. Brierly, op.cit. 2, p. 73.

on November 16, 1994, after 60 States, mainly from Africa, Asia and Latin America had
ratified it.36 Similar difficulties are quite often faced by the International Law
Commission since it commenced functioning in 1949, as in the case of the 1969 Vienna
Convention on the Law of Treaties, where the most contentious issues were the rules as
to the grounds of invalidity of treaties and the doctrine of jus cogens.
The International Court of Justice, the only international court to adjudicate inter-State
disputes, lacks universal compulsory jurisdiction for settling disputes. The jurisdiction of
the Court is consensual and it lacks real power to enforce its decisions. But the defenders
of the system are quick to point that decisions of the Court are binding in nature and can
be enforced under certain circumstances. According to Art. 59 of the Statute of the
International Court of Justice, decisions of the Court are binding upon the parties to the
dispute and only in respect of that particular dispute. Under Art. 94 of the Charter of the
United Nations, each member of the United Nations undertakes to comply with the
decision of the Court in any case to which it is a party. If the party fails to comply with
the decision, at the instance of the other party, the Security Council may give effect to the
judgment against a recalcitrant State by making recommendations or deciding upon
measures. However, it may be stated that the Security Council has not remained very
effective in the past in discharging its obligations under the Charter. Also, apart from the
Nicaragua case,37 there has been hardly any case when the aggrieved State has
approached the Security Council under Art. 94.
Further, the argument of lack of sanctions or ineffective sanctions and non-enforceability
of international law has been countered by pointing out towards Chapter VII
(Enforcement Action) of the United Nations Charter, which endorses sanctions for any
violation of the rules of international law, enshrined in the Charter, and supported by Art.
94 of the Charter. However, these instances cannot really be treated as of general
enforceability of international law. Kelsen, who gives primacy to State law (i.e., the
municipal law), earlier held the view that international law cannot be equated with State
law because behind the true law stands the State, i.e., it should be strong enough to
enforce the law against opposition,38 subsequently came out clearly in favour of
accepting the authority of international law. He points out that in decentralised societies
(the international society is such a society), enforcement of law is accomplished through
the application of the principles of self-help. On this basis, in his opinion, international
law is true law because broadly speaking, it provides sanctions, such as reprisals, war and
the use of force, and makes the employment of these sanctions lawful as a counter-
measure against a legal wrong, but unlawful in all other cases.39
____________________
36 After the signing of the “Agreement relating to the Implementation of Part XI of
the UN Convention on The Law of the Sea of December 10, 1982’,” adopted by the
General Assembly in July 1994, GA Res. 48/263, July 28, 1994, the way was paved for
industrialized countries, including the US and UK, to ratify the Law of the Sea
Convention 1982. The US has not yet ratified the Convention though it has signed it.
37 Military and Para-military activities in and against Nicaragua (Nicaragua v. USA)
(Merits) ICJ Rep. 1986, p. 14.
38 H. Kelsen, General Theory of Law and State, 1946, p. 328.

39 Kelsen, op. cit. 5, pp. 5-39.

Page 9 INTRODUCTION
War and use of force did constitute the legal means till recent times for enforcing
international law or to settle disputes between States. But with the coming into existence
of the United Nations Charter, use of force has been made illegal, with the exceptions to
combat armed aggression, breach of the peace or self-defence under Chapter VII of the
Charter. The process to outlaw war was initiated by the Kellog-Briand Pact of 1928,
without, however, putting anything certain or definite in its place for the enforcement of
international rights and obligations generally, or of international law as such. As regards
the legal methods of enforcing international law, diplomatic protests by a victim or
offended State against the illegal acts, are significant. These protests are generally
accompanied with the demand that the wrong should be set right in an appropriate
manner. If disagreement persists, the matter can be resolved through negotiation,
mediation, conciliation, reference to commission of enquiry, judicial settlement through
arbitration or by the International Court of Justice (Art. 33 of the Charter). If they fail to
settle their dispute, sanctions can be resorted to so as to force the offending State to
observe the relevant rules of international law. Sanction chosen, however, should be
technically feasible and politically advisable. A State refusing to abide by its international
commitments can be suspended from membership of an international organisation. For
example, in 1962, Cuba was expelled from the Organisation of American States. Under
the Charter of the United Nations, a member against whom preventive or enforcement
action has been taken by the Security Council, may be suspended from the exercise of its
rights and privileges of membership by the General Assembly upon the recommendation
of the Security Council (Art. 5). Further, a member which has persistently violated the
principles contained in the United Nations Charter may be expelled from the
Organisation by the General Assembly upon the recommendation of the Security Council
(Art. 6). After the disintegration of the Socialist Federal Republic of Yugoslavia, the new
federation of Yugoslavia, consisting of Serbia and Montenegro was expelled in
September 1992, for its continuing violation of the Charter principles.40 Sometimes, by
the intervention of third State the rule of international law is enforced against the
recalcitrant State.
Another way to enforce international law is through “self-help”. The “counter-measure”,
which has replaced reprisals (since they generally involve the use of force which is
prohibited under the United Nations Charter), is increasingly becoming as a form of self-
help. A countermeasure (bereft of use of force) is essentially an illegal act which
becomes lawful as a response to a prior illegal act.41 In the arbitral award concerning Air
Services Agreement between France and the United States (1978), it was observed that a
counter-measure should be in proportion to a prior illegal act in terms of the damage it
causes, and the act undertaken to counter the prior illegal act need not be of the same
kind.42 This is now the accepted position on countermeasure.
__________________
40 In June 2006, Serbia and Montenegro became two separate independent States.
41 See, for example, Air Services Agreement (France v. US) 18 RIAA 416 (1978
Arbitral Award); see also, Damrosch, 74 AJIL 795 (1980).
42 The same requirements existed earlier for reprisals, see Naulilaa case (Portugal v.
Germany) 2 RIAA 1012 (1928).

Apart from the above sanctions, the fear of admonition by adverse public opinion, the
possibility of imposition of economic sanctions, fear of suspension and breaking of
diplomatic ties, fear of punishment for war crimes or crimes against humanity also
operate as sanctions.43 Adverse public opinion is the strongest fear, even though it is
without any organised force behind it. For example, no State would like to be branded as
the violator of human rights even by the non-governmental organisations such as Asia
Watch, Amnesty International, Green Peace etc., which act in the field of human rights
and environment. They make the States to adhere to international standards as laid down
in the treaties.
The world public opinion may be a factor not likely to be ignored but it is always hard to
deal with a nation that is a law-breaker. Now, a pertinent question arises whether
international law can exist without a strong coercive mechanism. It may be answered that
international law has never, in practice, been more than partly dependent for its authority
on the possibility of its physical enforcement and for that matter, no system of law
depends, or can depend, for its authority solely on the chances of its enforcement. Under
the municipal system, law does not have to be enforced mainly because it commands in
practice the general assent or tolerance of the community. Similarly, the authority of
international law is founded on the premise that States recognise it as binding upon them,
and it binds all States as a system, irrespective of their individual wills. States observe
international law because there is a “law habit”.44 Brierly, while accepting the
rudimentary character of international institutions for the making and application of
international law, and the narrow restrictions on its range, remarks that it is more
honoured in the observance than in the breaches.45 However, it is this small number of
breaches which get prominence and put under shadow the vitality of international law as
a legal system, such as the unlawful intervention by USSR and the US in Afghanistan and
Grenada in 1979 and 1983 respectively, for which they were not arraigned. At the same
time, international law should not be measured to the standards of municipal law. It
should not be forgotten that legal institutions can never guarantee lasting peace and
security. Even within the nation, law is not able to dissolve all conflicts of interests.
International law regulates the international relations of the States, which is invariably
dictated by politics. International law cannot exist in isolation from the political factors
operating in the sphere of international relations and get affected by them. Ubi societas
ibi jus (as the society, so is the law), if international society itself is not coherent, one can
only expect a fragmentary system of international law. States from different geo-political
groupings have widely different interests in certain respects and thereby affect the
enforcement of international law.
__________________
43 The Security Council had established an International Tribunal for the Persons
Responsible for Serious Violations of International Humanitarian Law Committed in the
Territory of Former Yugoslavia, see SC Res. 827 of May 25, 1993, which was adopted
pursuant to the Secretary General’s Report, UN Doc. SI 25704, May 3, 1993; see also
J.C. O’Brien, The International tribunal for violations of international humanitarian law
in the former Yugoslavia 87 AJIL 639 (1993); 87 AJIL 521 (1993). A similar Tribunal
was also constituted for Rwanda to try persons responsible for massacres in that country,

see SC Res. 955 of Nov. 8, 1994. Political pressure may sometime prevent the Security
Council to apply such sanctions, such as in the Certain Expenses case, ICJ Rep. 1962, p.
151.
44 Fitzmaurice, op.cit. 29.
45 Brierly, op. cit. 2, p. 72.

Page 11 INTRODUCTION
It is true that international law is not as effective as national law, nevertheless it is wrong
to assert that the role of international law in most cases is negligible. It is also wrong to
say that to maintain peace and order is the only purpose of international law. Even in the
best of legal systems, crimes or other violations cannot be eradicated. One cannot speak
of international law in its ideal form which the nations must obey absolutely; there are
bound to be conflicting values and interests. What matters is that the law responds and
corresponds to the changing needs of the society; it is observed by nations in their mutual
behaviour, and disputes are resolved in an orderly and peaceful manner. International law
has been measuring up to these needs. The frequent violations of its rules by the States do
not affect the vitality or validity of the system as such. Although the ideal of international
law must be a perfect legal system in which war is entirely eliminated, any deviation is
quickly remedied, but one can strive for such ideals, and lapses for such ideals should not
put under suspect the whole legal system.
II. BASIS OF INTERNATIONAL LAW

The jurists have struggled for a long time to identify the basis of obligation in
international law, i.e., from where does it derive its binding authority. There are two main
schools of thought about its foundation: the naturalist school and the positivist school.
The adherents of each school are not in agreement on every point.
A. Naturalist School
The jurists belonging to this thought are of the view that the “law of nature” is the
foundation of all law and international law is a part of it. Several theories of the nature of
international law are founded upon it.
In the beginning, the law of nature had the “semi-theological association”, i.e., it was
considered to be divine law, ordained by God to the dictates of natural reason of human
beings, and thus acquired its sanctity or binding force. The “law of nature” had inspired
the Greeks, the Stoics, the Church and Grotius, and later the Grotians. In fact, the “law of
nature” or jus naturale seeks its origin from Greeks and was developed further by
Romans. In the Republican era of Rome, jus gentium, the law of universal application,
was reinforced by jus naturale, by which they meant that those principles which ought to
control human conduct, were founded in the very nature of man as a rational and social
being. The jus gentium, having the contents of, or synonymous with, natural law was
applicable to those persons coming to Rome from other territories for short visits,46 as
against jus civile, which was applicable to residents of Rome. By the fifteenth and
sixteenth centuries, when the modern international law started getting its form and
content, the natural law had made heavy inroads and assumed strong ideological
moorings as is amply reflected in the writings of Vittoria (1480-1546), Suarez (1548-
1617) and Gentilis (1552-1608). International law was binding on the States because it
was part of the law of nature. It was, however, Grotius (1583-1645) who secularised the
concept of natural law while making a distinction between jus naturale and jus gentium.
He based the law of nations
__________________
46 Brierly. ibid., 17, pp. 10-13.

on customs and treaties in addition to law of nature. Law of nature, according to him, was
the dictate of right and reason instead of divine prescriptions.
After Grotius, writers in international law came to be identified into one of three schools:
the “naturalists”, like Pufendorf (1632-94), who based international law on natural law
exclusively; the “positivists”, such as Bynkershoek (1673-1743), who based it on the
consent of States evidenced in State practice, and the “Grotians” (followers of Grotius),
including Wolff (1679- 1754) and Vattel (1714-67), who like Grotius relied on both and
reiterated that international law was binding on the States. Vattel in his work stated:47
We use the term “necessary Law of Nations” for that law which results from applying the
natural law to nations. It is necessary, because nations are absolutely bound to observe it.
It contains those precepts which the natural law dictates to States, and it is no less binding
upon them than it is upon individuals.
Since States are composed of men and their policies are laid down by men, these men are
subject to natural law in whatever capacity they act. He held the view that to overview
and control the conduct of another State by one or more States would be contrary to the
law of nature. This viewpoint has the genesis of the theory of fundamental rights.
The Doctrine of Fundamental Rights

According to this doctrine, the principles of international law can be deduced from the
essential nature of the State. Every State, like man, is endowed with certain fundamental
or natural rights, viz., self-preservation, independence, equality, respect and intercourse.
Brierly states that the doctrine of fundamental rights is merely the old doctrine of natural
rights of man transferred to the State as a part of the contract. This contractual nature of
sovereignty played a great part in history. The Great English Revolution of 1686, which
subsequently inspired the Declaration of Independence of America, justified by Locke
that by breaking his duty to the subject, the sovereign could forfeit his right of
obedience.48
The doctrine has been severely criticised. It emphasises more on the individuality of man
than on the State. It overlooks the fact that attribution of fundamental rights is merely a
stage in a historical process. The doctrine assumes that the legal system is formed out of
these inherent rights which an individual or State brings with it into society, but fails to
see that a legal right has no meaning unless there exists a legal system from which these
rights get their validity. Further, there is nothing like a fixed order of nature and the
possibility of growth is always there, which is denied by the doctrine of fundamental
rights.
By analysing the work of proponents of naturalist school, one may arrive at the
conclusion that there is no unanimity amongst them regarding the very basis of law. The
law of nature has been used merely as a metaphor to identify it with some other more
concrete concepts, such as religion, general interest of international community, justice,
reason etc. Furthermore, it has kept itself aloof from the actual practice of States and does
not take account of the historical process in the evolution of a State as such. It tended to
remain a subjective doctrine. Because of this its significance declined in the later years.
__________________
47 Quoted by Starke, op.cit. 13, p. 22.

48 Brierly, op.cit. 2, pp. 49-50.

However, the concept of natural law, developed from time to time, greatly influenced the
growth of international law. Natural law created respect for international law and gave it
a humanistic approach. According to Sir Henry Maine “the greatest function of the ‘law
of nature’ was discharged in giving birth to modern International Law”.49 The twentieth
century saw the revival of the law of nature in a modified and profound manner. The
tremendous growth of international law in the field of human rights, which started after
the Second World War, is influenced by this. The development and the growth of the
international criminal law, i.e., punishing the offenders of humanitarian law or war
criminals, which started with the Nuremberg and Tokyo trials in 1946, is the outcome of
this law. Reason and justice, associated with the “law of nature”, are considered to be
fundamental to the growth and development of international law.
B. Positivist School and Consent Theory

The theory known as “positivism” or “consent” theory has found wide support with
jurists. It emphasises the consensual nature of international law. The chief exponent of
this theory was Bynkershoek, which was later followed with more refinements by other
jurists, such as Zorn, Triepel and Anzilotti. They attach primacy to customary and treaty
rules. According to them, the rules of international law and municipal law are equally
binding, since both are issued by the will of the State, which is the source of the validity
of law. It is the will of the State that commands obedience both in municipal law and
international law. Zorn goes to the extent of treating it as a branch of State law (i.e.,
municipal law). According to Triepel, the obligatory force of international law stems
from the agreements between States.50 International law is binding on States because
they have expressly or impliedly consented to be bound by it. The common consent is
meant to express or tacit consent of States to the body of rules comprising international
law as a whole at any particular time. The States’ will is manifested in the form of
conventional and customary rules and since they have consented to them, the rules are
binding upon them, and nothing can be law to which they have not consented. Consent
theory, however, presupposes certain variables. It attributes the State with a value
(sovereignty) and significance (authority), and endows it with a will of its own. The
concept of the State will was first propounded by the German philosopher Hegel.
Positivists start from the premise of the State’s sovereignty, which is paramount without
any limitation. The rules of international law are adopted to the extent to which the States
have voluntarily restricted their sovereignty. This is known as “auto limitation” or “self-
limitation” theory, i.e., the sovereignty is absolute in so far as a State agrees to its
limitation. Thus, a State has absolute freedom of action, except in so far as it has agreed
to the rules restricting that freedom. The will of the State is supreme and it cannot be
restricted by any external force. According to Jellinek, the rules of international law
derive their binding force because the State consents to the limitations on its sovereignty.
However, though consent can easily be discerned for conventional rules, it is difficult to
do so with customary rules. To this, positivists attribute
__________________
49 H.O. Maine, International Law (1915) quoted in S.K. Kapoor, International Law,
8th ed. (Central Law Agency), 1990, p. 62.

50 Consent theory was also adopted and supported by Soviet jurists. Oppenheim is
also of the view that common consent of the States is the basis of international law, see L.
Oppenheim, op.cit. 17, p. 14.

“tacit” or “implied” consent, i.e., the State acquiescing to customary rules. They observe
that the membership of the society of States involves an implied consent to the
established rules of customary international law.
According to Anzilotti, a prominent positivist, the principle of pacta sunt servanda (i.e.,
that agreements between States are to be respected) is the fundamental norm and an
absolute postulate of international legal system from which the international law derives
its binding force and authority. He holds that like treaties, consent is present in customary
rules of international law which manifests itself by way of an implied pactum
(agreement). This, to say, is no way different from the “tacit” consent argument advanced
by other positivists.
Criticism
The positivism or consent theory even at its best is a descriptive generalisation, too broad
to be applied to many of the problems concerning the binding nature of international law.
Several objections have been raised against it, which can be formulated as follows:
1. The concept of the State will is purely metaphorical. Brierly views that the idea of
the State as a personality with a life and will of its own is false, both analytically and
historically. Further, a self-imposed limitation is no limitation at all. The State functions
through individuals and the only will that matters is that of the individuals who handle
the affairs of the State.51
2. The consent as the basis of international law cannot be reconciled on all aspects.
The fiction of implied consent to explain the acceptance of customary rules of
international law is not supported by the facts. If consent is the basis of international law,
there is always a possibility that a State may refuse to give its consent to be bound by the
rules of international law or may withdraw the consent later on. However, withdrawal is
not permissible except in treaties. Further, in practice, while invoking a particular rule, it
is never ascertained whether a State has consented to that rule or not. It is enough to
establish that the rule is generally recognised by States. Moreover, it is difficult to
determine, how does a State “agree” to rules of international law. To this, the possible
answer by positivists could be that it is not necessary for a State to agree to every
principle. It is enough that consent is given to international law as a system rather than to
each principle contained therein. However, the theory does not clarify in what
circumstances, if at all, can a State dissent from an established or developing rule of
international law. Further, pacta sunt servanda cannot be accepted as the basis of
international law. At the most, it is a rule of customary international law. According to
Brierly, “consent cannot of itself create an obligation. It can do so only within a system of
law which declares that consent duly given as in a treaty or a contract, shall be binding on
the party consenting. To say that the rule pacta sunt servanda is itself founded on consent
is to argue in a circle. A consistently consensus theory would have to admit that if the
consent is withdrawn the obligation created by it comes to an end”.52 Critics are also
quick to point out that the theory fails in the case of recognition. Recognition is granted
by the recognising States despite the consent of the State to be recognised.
__________________
51 Brierly, op.cit. 2, pp. 53-54.

52 Ibid.

3. The theory breaks down in the case of a new State admitted to the family of
nations, which becomes bound by the body of rules without expressing its consent
thereto. Also, the theory fails to explain the position of a new State which declares that it
will not consider itself bound by certain rules of international law. The new State may not
be bound by the conventional law already in force, without its express consent, but in the
matter of customary law, the society of nations expects the new State to comply with the
existing rules, thus leaving no choice for the State. Conversely, international custom
constitutes general international law for the community of nations, which is binding on
all States.
4. The theory is also not fully applicable in the case of treaties. There are examples
under international law when treaties or conventions are binding on States without their
consent, such as dispositive treaties. The non-members of the United Nations are bound
by the principles enshrined in the Charter, so far as may be necessary for the maintenance
of international peace and security (Art. 2(6)).
5. To consider treaties and customs as the only sources of international law is not in
conformity with the contemporary trends. The Statute of the International Court of
Justice (and earlier the Statute of the Permanent Court of International Justice) accepts
the “General Principles of law recognised by civilised nations” as a source of
international law (Art. 381 )(c)), which provides a wide freedom of choice to the Court to
develop the content of international law. This, in a sense, is a severe blow to the
positivism and highlights the fallacy of the premise that some consensual manifestation is
necessary before international law becomes operative.
Nevertheless, positivism has its merits. It is based on the actual practice of States and
illustrates the practical limitations on the role of law in international relations. As a
political reality, international law can only develop in so far as States acknowledge its
existence and make use of its rules in the regulation of their affairs. Only those rules are
the rules of international law, which States have accepted. It is because of its consensual
basis, and the general acceptance of the community, that international law can be equated
with State law, and that is the main reason that some of its rules are challenged. Without
any community interest in, and general consent of, the application of its rules,
international law would have no function. The theory has also found favour with the
International Court of Justice as reflected in the Asylum case,53 the Anglo-Norwegian
Fisheries case,54 and in the US Nationals in Morocco case.55
Doctrinal considerations apart, the true basis of international law lies neither exclusively
in natural law nor solely in the consent of States, but in variety of factors which impel
States to obey the law. It is realised on the whole, that it is better to obey a rule of
international law than to lose all the advantages by not doing so. A nation will hesitate to
infringe the rules of international law where it has identical interests with other nations,
such as the rule relating to the protection of foreign diplomats or the observance of a
commercial treaty which is based on reciprocal benefits. Most rules of international law,
formulated in legal terms, are based on
__________________
53 (1950), ICJ Rep., p. 266.
54 (1951), ICJ Rep., p. 116.

55 (1952), ICJ Rep., p. 176.

identical and complementary interests of nations. The “self-interest” appears to be the

basic reason for compliance, and voluntary compliance generally does not need specific
enforcement. Compliance becomes a problem only in a few important and politically
sensitive cases, where enforcement has a direct bearing upon the relative power of the
nations concerned. In such a case, it is the power rather than the law that determines
compliance and enforcement.56 In Lisstzyn’s view, there are three reasons for obeying
the law: self-interest, sense of moral obligation and habit. Of these three, self-interest is
probably the most basic reason for the observance of international law. Man as a
reasonable being, has to believe that order and not chaos is the governing principle of the
world in which he has to live.37
III. EVOLUTION AND DEVELOPMENT OF INTERNATIONAL LAW

Modern international law has its origin in the Europe of the fifteenth and sixteenth
centuries, after the disintegration of the Holy Roman Empire. It grew out of the usages
and customary practices of European States in their mutual intercourse, and was affected
by the political theories prevalent in Europe during this time. In fact, international law
was a by-product of the gradual increase in the power of nation States which emerged
from European feudalism. Nevertheless, throughout its course of development, it
remained predominantly European, and in the earlier stages was confined only to
Christian States. Thus, it may safely be stated that modem international law is European,
Christian, imperialist and capitalist in origin.
Although modem international law is the outcome of the developments of the last over
500 years, it existed in all climes and ages to regulate the relations between independent
nations existing since ancient times. The ancient civilisations of India, Egypt, Greece and
Rome had advanced notions of what forms a major part of international law today. For
example, laws and usages concerning conduct of war, treaties, privileges and immunities
of ambassadors were very much in evidence in ancient India.58 There are historical
evidence of recourse to arbitration and meditation in ancient China and in the early
Islamic world. Greek city States also evolved rules to regulate their small but independent
existence with each other, such as the need for a prior declaration of war, and the
enslavement of prisoners of war. But these rules were deeply influenced by religion and
morality. Similarly, early Rome, whose empire extended throughout Europe, devised
rules to govern its relations with other sovereign nations on the basis of equality. These
rules were legal in nature. But the influence of Rome on the growth of international law
became profound in the era of renaissance, when these rules were redefined to regulate
the relations between European nations. However, the conditions conducive to the growth
of modern law of nations became pronounced only after the fifteenth century, with the
emergence of number of independent States from feudalism. More frequent intercourse
among nations and resulting conflicts of interest led to the mutual acceptance of rules
applicable to variety of situations, such as diplomatic, commercial, military and other
relations among these nations. It is during this time that the concept of the modern
sovereign State and an independent sovereign
__________________

56 Marganthen, Politics Among Nations (1956), pp. 15-16; Friedmann, The

Changing Structure of International Law (1964), p. 88.
57 V.D. Mahajan, International Law (Eastern Book Company, Lucknow), 1979,
p.20.
58 See H. Chatterjee, International Law and Inter-state Relations in Ancient India
(K.L. Mukhopadhay, Calcutta), 1958.

found expression in the work of writers, such as Bodin (1530-96) in France and Hobbes
(1588- 1697) in England.
These jurists recorded this evolutionary process and started consolidating such customary
practices, propounding their own views and doctrines by resorting to reason, analogy and
law of nature where none existed before and in the process inventing new customs.59
The most profound impact on the growth of international law during this time was of the
writings of the Dutch scholar, Hugo Grotius who was greatly influenced by his
predecessor Gentilis. His most acclaimed work De Jure Belli ac Pacis (Law of War and
Peace), published in 1625, was the first systematic comprehensive framework of the
modern science of international law and for which he is described as the “father of the
law of nations”. His work, though frequently criticised, had been continually relied upon
and is considered authoritative. Certain doctrines propounded by him, such as just and
unjust war, doctrine of qualified neutrality, freedom of the oceans, restitution of harm
done by a State and the value of periodic conferences among the rulers, and promises to
be respected by the States have remained as a part of modem international law.
The development of international law was effected mainly through usages, practices and
writings of jurists even after Grotius, and continued even into the nineteenth century.60 It
is only in the nineteenth century that the law started looking beyond these sources and
many international conferences took place, which led to the emergence of new rules of
international law and put international law at a firm pedestal. In 1815, the Congress of
Vienna, the first European Assembly, adopted rules for navigation of international rivers.
A series of treaties were adopted during this period, related to the neutrality of
Switzerland (1815) and Belgium (1831), specific regulations for the rivers Rhine (1831)
and Danube (1856), codified law of maritime warfare (Paris Declaration, 1856), creating
special regimes for the Suez Canal (1888) and Panama Canal (1901). However, the
second half of the century saw the marked development of international law largely
because of the emergence of powerful States both within and outside Europe, the
expansion of European civilisation in other parts of the world mainly through
colonisation, new and faster means of transport and increasingly destructive nature of
warfare. War had become a part of national policy. These developments impelled States
to devise new rules of international law, particularly relating to war. As a consequence, a
number of treaties with humanitarian approach were adopted relating to war to mitigate
the brutality and destruction brought in its wake. The Declaration of Paris (1856) on the
regulation of maritime warfare, Geneva Convention (1864) of Red Cross aimed at the
amelioration of the conditions of the sick and wounded in armies in land warfare, and the
Declaration of St. Petersburg (1868) prohibiting the use of explosive bullets in war, were
some of the significant achievements in this regard. Subsequently, two Hague
Conventions of 1899 and 1907, on the regulation of land warfare and prohibition of
bombardment of undefended towns were adopted. The Hague Conventions also
emphasised on the pacific settlement of disputes with elaborate provisions on arbitration
(Arts. 37-90 of the 1907 Convention). Arbitration, as a means of pacific settlement had
come to stay with the 1872 Alabama
__________________

59 The other writers of prominence were: Machiavelli (1469-1527), Vittoria (1480-

1546), Belli (1502-75), Brunos (1491-1563), Ayala (1548-84), Suarez (1548-1617) and
Gentilis (1552-1608).
60 Prominent jurists of this time were: Zouche (1590-1660), Pufendorf (1632-94),
Bynkershoek (1673- 1743), Wolff (1679-1754), Moser (1701-95), Vattel (1714-67) and
von Martens (1756-1821).

claims award between the United States and the Great Britain.61 The Hague Conventions
of 1899 and 1907, made provision for a Permanent Court of Arbitration which started
functioning from the year 1900. Contributions of certain publicists, like De Martens,
Kent, Wheaton, Phillimore, Calvo, Hall and Bluntschli, to name only few, during this
period were also remarkable. Nevertheless, the law could still be described as European
Public Law applicable among the Christian nations of that time.
International law was first extended beyond Europe at the end of eighteenth century and
at the beginning of nineteenth century, when new independent States emerged in North
and South America out of rebellion from their European colonial masters. Turkey became
the first non-European subject of international law in the mid-nineteenth century.62 But,
it is only after the First World War that the modern international law was made
applicable to the non-Europeans, mainly from Asia, Africa and Latin America. In fact,
prior to this period, western nations even applied the “system of capitulation” by which
their nationals were subject to their national consular courts rather than to the national
law of the capitulating State, such as in China, Iran, Turkey, etc. However, creation of the
League of Nations in 1920, pursuant to the 1919 Treaty of Versailles, marked the
beginning of a new era, whereby international law was applied to all nations irrespective
of their character or location. Membership of the League was open to “any” State (Art. 1
of the Covenant). This trend continued with the United Nations, which was created in
1945, after the demise of the League of Nations, whose membership is confined to all
“peace- loving” States (Art. 4) and presently has 193 members.
The twentieth century saw the tremendous growth of international law affected by the
overall political scenario in the world. The creation of the League of Nations was the
hallmark. In its form, the international community got its first international organisation
designed to maintain international peace and promote cooperation among nations. Along
with it came the Permanent Court of International Justice in 1921, which was later
succeeded by the present International Court of Justice in 1946. In their wake came other
institutions, such as the International Labour Organisation (originally created under Part
XIII of the Treaty of Versailles 1919, which later became a specialised agency of the
United Nations by a special relationship agreement),63 the International
Telecommunication Union (originally established in 1865) adopted International Radio
Telegraph Convention in 1927 on modern communication, and International Civil
Aviation Organisation in 1944, to regulate the international civil aviation. They have a
tremendous impact on the peaceful co-existence among States. The resort to war was
made illegal, first through the adoption of the Kellog-Briand Pact, 1928, and later by the
United Nations Charter (Art. 2 (4)), and in place of self-help a system of collective
enforcement of peace and security had been propounded through the United Nations
(Chapter VII of the Charter), though not displacing the self-help (Art. 51 of the Charter)
totally. The trials of war criminals by International Military Tribunals at Nuremberg and
Tokyo after the Second World War, creation of the International Criminal Court and
increasing focus on the enforcement of human rights have made individual the focal point
of international relations.
__________________
61 J.B. Moore, I International Arbitrations, p. 495.

62 D.J. Harris, Cases and Materials on International Law, 6th ed. (Sweet and
Maxwell), 2004, p. 12.
63 On the history of the ILO, see L. Henkin, et.al., International Law: Cases and
Materials, 2nd ed. (West Publishing Co., Minnesota), 1987, p. 18.

These developments have brought the doctrinal changes among the jurists who always
considered States as the sole subjects of international law.
There is a lessening impact of jurists and an increasing regard for State practices on the
shaping and framing of the rules of international law. The law is no more confined to
usages and customs, but international conventions are concluded on every important area.
The new scientific developments have also affected the growth of international law
immensely, such as in outer space and sea-bed beyond the national boundaries. The
environmental law has crossed the national frontiers and given a community based
approach to international law. The growth and proliferation of nuclear weapons,
increasing use of ballistic missiles have revised the thinking about the existing rules on
warfare. The increased membership of the international society, demise of colonialism,
the resurgence and subsequently, near extinction of communism have also brought
changes in the balance of interests and values in the international community, and have
had an impact on constructing new rules and modifying some existing rules of
international law. These developments have profoundly impacted in shaping the modern
international law, which has become universal in its application to all the nations in equal
measure.
IV. NEW STATES AND INTERNATIONAL LAW

The decline of European dominance and the resurgence of new nations from Africa and
Asia after the Second World War on the world scene had significant influence on
international law.64 These nations which were freed from the shackles of colonialism
after a long struggle raised serious doubts about the efficacy of the norms of international
law set by western powers.65 They, however, did not reject the whole fabric of
international law propounded by western powers for that would have implied a denial of
their own right to participate as an independent equal State along with other States under
international law, and provided respectability to their struggle for independence. In fact,
at the nascent stage of their independence, they resolved their international disputes by
applying the existing rules of international law. But their approach towards the rules of
international law has always remained very selective. They were reluctant to observe
those rules which did not serve their interests, such as the principle of “prompt, effective
and adequate” compensation for the expropriation of alien’s property.
While making appraisal of the established norms of international law in accordance with
their views and practices, these nations contributed positively to the development of
international
__________________
64 On this subject, see U. Baxi, Some remarks on eurocentrism and the law of
nations, and J.J.G. Syatauw, “The relationship between the newness of States and their
practice of international law, in Asian States and the Development of Universal
International Law, R.P. Anand (Ed.) (Vikas Publishing House), 1972, pp. 3 and 10
respectively. See also R.P. Anand, New States and International Law (Hope India
Publications), 2008; J.J. Syatauw, Some Newly Established Asian States and
Development of International Law (Martinus Nijhoff, The Hague), 1961, p. 234.

65 The term “new States” is considered to be a misnomer; they have been termed as
“dissatisfied States”, see R.L. Friedheim, The satisfied and dissatisfied States negotiate
international law, World Politics (1965); J.J.G. Syatauw and U. Baxi, Asian States and
the Development of Universal International Law, R.P. Anand (Ed.) (1972), op. cit. 64,
pp. 12-18, and pp. 6-7 respectively; also, J.J. G Syatauw, Old and New States: A
misleading distinction for future international law and international relationship, 15 IJIL,
p. 153, (1975).

law. They are closely associated in the codification and formulation of new norms of
international conduct for States by their participation in the deliberations of the
International Law Commission (ILC).66 They have similarly helped in giving new
directions to the law on State responsibility by not confining it only to the treatment of
aliens,67 but also to other breaches of international law as well as affecting the rules
concerning the use of force.68 Their support to the principle of self-determination saw
the end of colonialism.69 Their solidarity on economic issues resulted in the General
Assembly resolution declaring States’ inalienable right to dispose of their natural wealth
and resources freely70 and in the adoption of a resolution on the New International
Economic Order.71 They are also closely associated in the dispensation of justice. There
is an equitable representation of principal civilisations of the world on the International
Court of Justice.72
In bringing out these changes in international law, the new nations often used their
“number power” and were backed initially by the communist bloc led by the then Soviet
Union. However, they never followed the Soviet approach fully towards international
law, which challenged the whole fabric of existing international law.73 They have been
successful in highlighting the need for reconstruction and reorientation of international
law so that it can cater to the needs of the majority. These nations also challenged the
Bretton Woods Agreement, which has the provision for weighted voting in the
International Monetary Fund. They are also demanding an increase in the permanent
membership of the Security Council, reflecting the present realities of international
community, by appointing third world countries such as India, Brazil and Nigeria as new
permanent members.74 They emphasise more on cooperation rather than on reciprocity
and co-existence to fulfil their just aspirations in the new international legal order.
__________________
66 The Vienna Convention on the Law of Treaties, 1969, was the first of the “law
making” treaties prepared by the ILC, in the drafting of which the “new nations”
participated fully, and subsequently in the 1982 Convention on the Law of the Sea.
67 See Draft Articles on the Responsibility of States for Internationally Wrongful
Acts, Report of the ILC on the Work of its Fifty-third Session, UN GAOR, 56th Sess,
Supp No 10, p 43, UN Doc A/56/10 (2001).
68 See R.B. Lillich (Ed.), Economic Coercion and the New International Economic
Order (University Press of Virginia, VA) (1976).
69 GA Res. 1514 (XV), Dec. 14, 1960, GAOR.
70 GA Res. 1803 (XVII), 1962; GAOR, 17th Sess. Supp. 17, p. 15; see also, GA
Res. 3171 (XXVIII) of 1973, on the Permanent Sovereignty over Natural Resources.
71 See GA Res. 3201 (S-VI), May 14, 1974; and Charter on Economic Rights and
Duties of States, GA Res. 3281 (XXIX), Dec. 1974.
72 Out of the 15 judges on the Court, Africa has 3, Asia 3, Latin America 2, Eastern
Europe 2, and Western Europe and others 5.
73 G.I. Tunkin, The contemporary Soviet theory of international law, 31 CLP 177
(1978). After the disintegration of USSR and fall of communism in Europe, there has
been a perceptible change in the Russian attitude (Russia has succeeded the USSR). It has

also accepted the compulsory jurisdiction of the ICJ for several human rights treaties. See
R.A. Mullerson, 83 AJIL 494 (1989) for the later Soviet thinking on international law.
74 The matter of expansion of the Security Council’s permanent membership has
been under the active consideration of the United Nations for some time, and a Working
Group was established in this regard, which prepared a draft package, see UN Newsletter,
Vol. 51, No. 39 (27 Sept. 1997). But no progress has been registered since then.

These nations, however, never made any serious attempt to devise a common legal
system of their own and are mainly motivated by the exigencies of the situation, while
accepting the existing norms. India’s approach towards the existing fabric of international
law is reflective of the attitude of new nations towards modern international law, which
India’s representatives, L.K. Jha, took in the Security Council on its debate on Goa’s
annexation to India:
... we accept many tenets of international law .... But the tenet which says, and which is
quoted in support of colonial Powers having sovereign rights over territories which they
won by conquest in Asia and Africa is no longer acceptable.
India justified its action in Goa on the basis of the General Assembly Resolution
1514(XV) of 1960 (granting independence to colonial people), “there can be no question
of aggression against your own frontier, or against your own people, whom you want to
keep liberate”.75 India’s contribution in the codification of international law through ILC
on colonial issues, peaceful co-existence and non-alignment has been very significant.76
Nevertheless, the explosion of new States and their unified stand on many issues at
different foras of the United Nations and outside is making it increasingly difficult to
adopt new rules. The western countries are wary of the “terror of majority” unleashed by
new nations and they are very apprehensive about the new rules laid down with the
majority support of the new nations, and many a time, western nations do not subscribe to
such principles at all. For example, the Charter of Economic Rights and Duties was
adopted by the General Assembly in 1974, with 120 nations voting in favour, six against
and ten abstaining. The countries which voted against and abstained were mainly the west
European nations, and the United States.77 The first major casualty of this new
phenomenon is the principle of unanimity for the adoption of the rules of international
law. It has long been established that law of universal applicability can be made only by
universal agreement or acquiescence. With the increase in number of nations, the chance
of such an agreement decreases. It not only makes difficult new customary rules to be
evolved, but also the adoption and implementation of multilateral treaties. In this
scenario, it may be possible only to have a general agreement on already accepted rules
or to adopt some general, imprecise or ambiguous norms.78 Opinions have also been
expressed that universality will be replaced by regional law and one should not desire or
expect for universality.79 Regional law is better shaped in responding to the needs of
States belonging to a particular region.
However, it may be mentioned that as States engage in varied transnational activities,
some commonality of interest, howsoever limited, will always remain and that can
become the basis for framing and evolving international law with universal application.
With increasing interdependence among nations and the global effects of new
technological developments affecting
__________________
75 UN Doc. S/5030, SCOR (Dec. 18, 1961); see also, Wright, 56 AJIL 617 (1962).
76 See Nagendra Singh, India and International Law (S. Chand & Co., New Delhi),
1969, pp. 73-86; M.K. Nawaz, International law in the contemporary practice of India:
some perspectives”, Proc. of ASIL, p. 275 (1963).
77 GA Res. 3281 (XXIX), Dec. 1974; 14 ILM 251 (1975).

78 Cf. the adoption of the Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, for which the work started by the ILC and final draft was
adopted only in 2001.
79 See L. Henkin, How Nations Behave, 2nd ed. (Pall Mall Press, London), 1979, p.
123. Such a trend is already present in Latin America and the EU.

outer space, sea-bed and the environment, there has been a growing awareness about the
need for universal law or the “common law of mankind”, which should transcend the
national borders and should have within its ambit individuals, corporations, international
institutions, States and other groups. In such circumstances, the job of the creation of new
rules of international law becomes very challenging.
V. CODIFICATION OF INTERNATIONAL LAW

The codification of international law aims at putting together the rules of law on a given
subject in a systematic manner making its provisions clearer by removing all lacunas, and
also modifying the rules in accordance with the changed conditions.
The attempts to codify international law had been underway since the late nineteenth
century at different levels, and the most notable achievement before the First World War
was the Hague Conventions of 1899 and 1907, relating to the laws of war and neutrality.
However, not much was done in this regard during the two world wars, although the
League of Nations convened a Codification Conference at Hague in 1930. It had three
subjects for codification before it: the law of nationality, territorial waters and State
responsibility. The Conference was a big disappointment. Agreements were reached on
only a few minor points of the law of nationality, and even those were ratified later only
by very few States. On all other matters, the Conference brought out sharp disagreements
amongst the States, even on those matters which, till then were generally regarded as
established rules of international law.
The attempts to codify international law got a fillip with the establishment of the United
Nations. The United Nations Charter delegated this task to the General Assembly. Article
13, Para. 1 of the Charter states:
The General Assembly shall initiate studies and make recommendations for the purpose
of: (a)
... encouraging the progressive development of international law and its codification.
Acting under this provision, the General Assembly in November 1947, established the
International Law Commission by a Statute for the “promotion of the progressive
development of international law and its codification”.80 “Codification” means “the
more precise formulation and systematisation of rules of international law in fields where
there already has been extensive State practice, precedent and doctrine”.81 “Progressive
development” is the “preparation of draft conventions on subjects which have not yet
been regulated by international law or in regard to which the law has not yet been
sufficiently developed in the practice of States”.82
But in actual practice, the relationship between codification and progressive development
is blurred and most of the time they overlap. Judge Sorensen, in his dissenting opinion in
the North Sea Continental Shelf cases remarked: “Although theoretically clear and
distinguishable, the two notions tend in practice to overlap or to leave between them an
intermediate area in
__________________
80 GA Res. 174 (II) of Nov. 21, 1947. The Statute of the International Law
Commission, the work of International Law Commission (1980), p. 103; see also, L.

Sohn, Basic Documents of the United Nations (Foundation Press Inc., Brooklyn), 1956,
p. 31.
81 Article 15 of the Statute of the ILC.
82 Ibid.

which it is not possible to indicate precisely where codification ends and progressive
development begins”.83
The Commission follows a set procedure for the adoption of international rules through
multilateral treaties or conventions, irrespective whether it is codification or progressive
development. It first prepares a set of draft articles on the basis of reports prepared by its
member appointed as special rapporteur. This draft is sent to the States for their
comments. After receiving the comments, the final draft on the subject is prepared and
sent to the General Assembly, which may decide to convene an international conference
for the adoption of a convention, based on the draft. The Commission, which originally
drew up a provisional list of 14 subjects for codification in 1949,84 by following this
procedure, has been able to help in the adoption of a number of multilateral conventions,
which are also in force, viz., the four Geneva Conventions of 1958 on the Law of the Sea,
the 1961 Convention on the Reduction of Statelessness, the 1961 Vienna Convention on
Diplomatic Relations, the 1963 Vienna Convention on Consular Immunities, the 1969
Vienna Convention on the Law of Treaties, the 1978 Vienna Convention on Succession
of States in Respect of Treaties,85 the 1986 Vienna Convention on the Law of Treaties
between States and International Organisations or between International Organisations
(not in force yet), the 1997 Convention on the law of the Non-Navigational Uses of
International Water Courses (adopted by the GA. on 21 May 1997) and the Rome Statute
of the International Criminal Court, 1998, the 1983 Vienna Convention on Succession of
States in respect of State Property, Archives and Debts, the 2004 United Nations
Convention on Jurisdictional Immunities of States and their property.
The Commission has also prepared the Draft Articles on Responsibility of States for
Internationally Wrongful Acts, 2001, Draft Articles on Prevention of Trans-boundary
Harm from Hazardous Activities, 2001, and Draft Articles on Diplomatic Protection,
2006. It is currently working on the status of the diplomatic courier and the diplomatic,
jurisdictional immunities of States; Shared natural resources (oil and gas); Responsibility
of international organisations; and the Expulsion of aliens. In the past, the Commission
has also dealt with a number of matters assigned to it by the General Assembly, which
led to the formulation of (a) the 1949 Draft Declaration on Rights and Duties of States;86
(b) the 1950 Principles of International Law recognised in the Charter of the Nuremberg
Tribunal and in the Judgment of the Tribunal;87 (c) the 1952 Reservations to Multilateral
Convention;88 (d) the 1954 Draft Code of Offences against the Peace and Security of
Mankind;89 (e) the 1958 Model Rules on Arbitral Procedure;90 and (f) the 1974
Definition of Aggression.91
The Commission is composed of 34 members elected by the General Assembly, having
competence in international law, and representing the main forms of civilisation and the
principal
__________________
83 (1969) ICJ Rep., p. 3, at pp. 242-43.
84 The ILC Rep., 1949, II, p. 281.
85 The work of the International Law Commission (1980), pp. 77-99.
86 The ILC Rep., 1949, II, p. 286.
87 The ILC Rep., 1950, II, p. 195.

88 The ILC Rep., 1952, II, p. 69.

89 GAOR, 9th Session, Supplementary, p. 11.
90 The ILC Rep., 1958, II, p. 83.
91 GA Res. 314 (XXIX), Dec. 14, 1974.

legal systems of the world.92 Members sit as individuals and not as representatives of
their governments, but increasingly the professional diplomats from the respective States
now are donning the Commission, which belies the apolitical character of the
Commission.
Apart from the International Law Commission, there are a number of other United
Nations bodies, whose work has led to the adoption of multilateral conventions on varied
subjects. For example, the numerous treaties on human rights are based on the work of
the Untied Nations Commission of Human Rights (incorporated under the Charter and
from 2006, has been replaced by the Human Rights Council), the Committee on Peaceful
Uses of Outer Space is looking into the instruments on outer space; and the 1982 Law of
the Sea Convention was based on the work of the III United Nations Conference on the
Law of the Sea (UNCLOS). Since the task of codification is enormous and the
Commission is already saddled with too many subjects and is confining itself mainly to
traditional subjects where there exists considerable amount of non-controversial State
practice, the trend for the future seems to be the codification through special bodies to be
set up by the General Assembly to look into the new and specific subjects.
__________________
92 Articles 2, 3 and 8, Statute of the ILC. The ILC’s membership was raised from 25
to 34 in 1981. The membership is distributed as follows: Africa 8; Latin America 6; Asia
7; Eastern Europe 3; Western Europe and other States 8; also one national by rotation
from Africa or Eastern Europe States and one national by rotation from Asian or Latin
American States.

Page 25
CHAPTER 2
Sources of Modern International Law

I. GENERAL
The identification of the sources of international law is riddled with many difficulties
since there is a controversy among the jurists of international law about the very word
“sources”. It is often coloured by their doctrinal predisposition regarding the basis of
international legal obligation, i.e., law of nature or positivism, rather than the procedures
for creating rules of international law. A distinction has also been drawn between formal
and material sources of international law. According to Salmond:
A formal source is that from which a rule of law derives its force and validity.... The
material sources, on the other hand, are those from which is derived the matter, not the
validity of the law.
The material source supplies the substance of the rule to which the formal source gives
the force and nature of law.1
From formal sources, the law derives its authority or sanction; and from material sources,
the law derives its content or subject matter. Thus, a rule will be legally binding if it
fulfils the requirements of a custom, which is a formal source of international law, whose
substance will be indicated by State practice, which is the material source of custom. The
diplomatic correspondence, for example, is evidence of State practice.2
The sources of international law are not as explicit and accessible as those of municipal
law, nor the machinery for their identification comparable to municipal law. However, in
a dispute before the International Court of Justice between the parties, Art. 38 of the
Statute of the Court direct it to refer to:
a. international conventions, whether general or particular, establishing rules
expressly recognised by the contesting States;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognised by civilised nations; and
__________________
1 Salmond, Jurisprudence, 7th ed. (Sweet and Maxwell, London), 1924, para 44,
cited in Harris, Cases and Materials on International Law, 6th ed. (Sweet and Maxwell,
London), 2004, p. 19. G. Schwarzenberger makes a distinction between law-creating
processes and law-determining agencies of international law, see, A Manual of
International Law, 5th ed. (Stevens and Sons Ltd., London), 1967, p. 26.
2 Harris, Cases and Materials on International Law, 7th ed. (Sweet and Maxwell,
London), 2010, p. 19.

d. subject to the provisions of Art. 59,3 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.4
Thus, Art. 38 is a direction to the Court as to where to look for law and offers a guide to
anybody who is discovering the rules of international law. But the decisions or
determinations of the international organs or institutions, particularly the resolutions of
the United Nations General Assembly which have become an important source of modern
international law, do not find a mention in Art. 38; it is probably for the reason that when
the Statute was drafted, the importance of these organs in law-making was not
contemplated. Nevertheless, Art. 38 classifies the sources into two categories: sub-
paragraphs (a) to (c) incorporate the law-creating process, which means that in any
asserted rule of international law, it must be shown that it is the product of one or more of
the three law-creating processes treaties, customs, and general principles of law. In other
words, they are concerned with the pedigree of the rules of international law. Sub-
paragraph (d) enumerates some of the means for the determination of alleged rules of
international law. In the case of the law creating process, the emphasis lies on the forms
by which any particular rule of international law is created. This is being done through
the law - determining agencies (those stated in sub-para (d)), which verify an alleged
rule.5
Article 38 lays down the hierarchy of the sources of international law for the court. In a
particular dispute before the court, its search for relevant rules takes it to the treaties,
which are expressly recognised by the parties, or to general practice accepted as law (by
States), or to general principles of law (recognised by States). If the conventions,
practices and principles are not found relevant or clear, the court may resort to “judicial
decisions and the teachings of the most highly qualified publicists” as “subsidiary means
for the determination of rules of law”, and also to the decisions of the international
organs. In order to avoid a situation of non- liquet, i.e., no law exists or law is silent on
the issue, Art. 38 para. (2) empowers the court “to decide a case ex aequo et bono if the
parties agree thereto”.
Thus, broadly speaking, the following are the sources of international law:
1. Custom
2. Treaties
3. General principles of law recognised by civilised nations
4. Judicial decisions
5. Juristic work on international law
6. General Assembly resolutions and declarations
__________________
3 Article 59 reads, “The decision of the Court has no binding force except between
the parties and in respect of that particular case”.
4 Article 38 follows the wording of the same Article in the Statute of the PCIJ
except the words “whose function is to decide in accordance with international law such
disputes as are submitted to it”, are inserted in Para. 1.
5 G. Schwarzenberger, op. cit. 1.

Page 27 SOURCES OF MODERN INTERNATIONAL LAW
II. CUSTOM
“Custom” has played a significant part in building the present fabric of the international
legal system. Though its importance has lessened in the modern times due to the
increasing use of treaties and conventions as a law-creating method, but it still remains a
vital source of international law.
Custom is a habitual course of conduct. Rules are evolved after a long historical process
culminating in their recognition by the community. A customary rule of international law
may be defined as a rule which the community of States has since long recognised as the
right rule of conduct, and which has the force of law. In the Asylum case, the
International Court of Justice described custom as a “constant and uniform usage,
accepted as law”.6 By “usage” the court means a usage that is to be found in the practice
of States.
The terms “custom” and “usage” are often used as synonyms, but they are distinguished.
Usages are habits, often repeated but conflicting and vary amongst States. On the other
hand, custom is self-consistent and unified. Usage represents the twilight stage of custom.
Custom begins where usage ends.7 Usage is an international habit of action that has not
yet received full legal attestation. However, it is not always necessary that a usage should
precede a custom or that a usage becomes a custom. Similarly, there is no international
rule which determines when usage shall culminate into a custom.8
There is a dual requirement for an international custom to be accepted as such: (a)
“general practice accepted as law” (Art. 38, para. (1)(b) of the International Court of
Justice), i.e., there should be sufficiently uniform practice, and (b) the belief that such a
practice is obligatory. Consequently, for a practice or usage to become a customary rule
of international law, the following two factors are essential.
1. A material fact, i.e., in similar circumstances States act similarly, in other words,
usage has been constantly and uniformally practised by States.
2. A psychological element, i.e., the opinio juris sive necessitate - the feeling on the
part of States that in acting as they act they are fulfilling a legal obligation.9
The two are often referred to as the objective (material) and subjective elements of
custom respectively.
Generally speaking, it is the material factor that is significant in the establishment of a
customary rule, but where the State practice establishing the contended rule is lacking or
ambiguous, the psychological element assumes greater significance. However, it is by
examining
__________________
6 Columbia v. Peru, (1950) ICJ Rep., p. 266, at p. 277; see also D’Amato, The
Concept of Custom in International Law (Cornell University Press, Ithaca), 1971.
7 J.G. Starke, An Introduction to International Law, 10th ed. (Butterworths,
London), 1989, p. 36.
8 Torsten Gihl, The Legal Character and Sources of International Law (Alonqvist &
Wiksell, Stockholm) 1957, pp. 82-83. According to Oppenheim, a usage turns into
custom, “whenever and as soon as a line of international conduct frequently adopted by
States is considered legally obligatory or legally binding”. L. Oppenheim, International
Law, 9th ed., vol. 1 (Jennings & Watts (Ed.), Pearson Education), 1996, p.30.

9 In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons
case (1996) ICJ Rep. p. 226, Para. 64, the court observed that the substance of customary
rules must be “looked for primarily in the actual practice and opinion juris of States.”

the actual practice of States that the comparative relevance of these elements can be
established. In fact, opinio juris is not an essential element of custom, but its presence
helps in distinguishing custom from a course of action followed as a matter of choice or
for other reasons.10 Recurrence of the usage or practice tends to develop an expectation
that in similar future situations, the same conduct or abstention there from, will be
repeated. When this expectation evolves further into a general acknowledgement by
States that the conduct or abstention therefrom is a matter both of right and obligation,
the transition from usage to custom may be regarded as complete.
In the Asylum case, Haya de la Torre, who had been declared a fugitive by the Peruvian
authorities after an unsuccessful rebellion led by him in Peru, was granted asylum by the
Columbian Embassy in Peru. Columbia sought from Peru a safe conduct to allow Haya
de la Torre to leave the country, but Peru refused to grant this. Under the 1928 Havana
Convention on Political Asylum, to which both the countries were parties, a political
fugitive, if granted diplomatic asylum, was entitled to a safe conduct. However, Peru
refused to accept the Columbian contention that it is for the State granting the asylum to
determine the nature of the crime, which would be binding on the territorial State, and
this rule is accepted as a customary rule among the Latin American countries. Peru
considered Haya de la Torre merely a common criminal under its laws. The International
Court of Justice, to whom the dispute was referred for adjudication, refused to accept the
Columbian contention that such a custom exists among the Latin American States, since
it failed to establish any clear evidence in support of its contention. The Court observed:
The Columbian Government must prove that this rule invoked by it is in accordance with
a constant anti uniform usage practised by the States in question, and that this usage is the
expression of a right appertaining to the State granting asylum, and a duty incumbent on
the territorial State.11 (emphasis added).
A. State Practice
State practice is fundamental to the formation of a custom, but what amounts to a State
practice and what constitutes a State practice may cover every activity of the State organs
or officials in an international context. It may include treaties, diplomatic correspondence
and relations, opinions of national legal advisers, national legislation, policy statements,
press releases, official manual on legal questions, executive decisions and practices,
decisions of international and national courts, and the practices of international
organisations.12 Broadly speaking, State practices can be categorised into three groups—
as evidenced in the mutual relations among States, in the practice of international
organisations, and the unilateral practices of States.
1. Mutual relations among States
Practices of States with other nations in the form of diplomatic correspondence, press
releases, bilateral treaties, memorandum of understanding, acts or declarations by
statesmen, etc. constitute evidence of practices of States followed in the sphere of
international relations. Uniform practice
__________________
10 H. Kelsen, General Theory of Law and State (Russell & Russell, New York),
1961, p. 114.

11 See op. cit. 6, at p. 276.

12 See YblLC, 1950, vol. II, pp. 368-372.

among nations on a particular aspect leads to the formation of a customary rule. Rules
may also be evolved as a result of positive statements, interaction of the rival claims, or
the acquiescence in or tolerance of the other’s claim. The development of the law of the
sea is the case in point of the interaction of rival claims, and an example of compromises
and mutual tolerances. In the Fisheries Jurisdiction case (UK v. Iceland),13 the United
Kingdom protested against the legality of the extension by Iceland of its fishery limits
from 12 to 50 miles, on the ground that customary international law did not recognise the
right of a State to establish an exclusive fishery zone beyond 12 miles from the baselines
of its territorial waters. The International Court of Justice recognised the validity of the
12 miles zone developed out of State practice but opined that it did not amount to
crystallising any rule which will make invalid more extensive claims. For this, the Court
referred to a number of proposals and claims for extensive economic zone at the Third
Law of the Sea Conference made by large number of States. The five judges, in their joint
opinion, observed:
There is, at the moment, great uncertainty as to the existing customary law on account of
the conflicting and discordant practice of States. Once the uncertainty of such a practice
is admitted, the impact of the official pronouncements, declarations and proposals must
undoubtedly have an unsettling effect on the crystallisation of a still evolving customary
law on the subject. Furthermore, the law on fishery limits has always been and must by
its very essence be a compromise between the claims and counter-claims of coastal and
distant water fishing States.14
Acquiescence and mutual tolerance became the basis of the decision in the Anglo-
Norwegian Fisheries case (UK v. Norway) by the International Court of Justice. In this
case, the Norwegian decree of 1935, delimited Norway’s “Fishery Zone” along almost
1000 miles of coastline north of latitude 66° 28.8' North, by following the straight
baseline joining the foords, sunds (sounds) and skjaegaard (rocks), because its coastline
was highly indented. This method of a straight baseline was adopted by Norway in its
earlier decrees of 1869 and 1889, to delimit its territorial sea in the southern coastline,
measuring only 89 miles, and no one protested against it including the United Kingdom.
By using this straight baseline method, Norway enclosed waters within its territorial sea
that would otherwise have been high seas. The length of the baselines extended as far as
30 to 44 nautical miles in the sea. The United Kingdom, which had the fishing interest in
the region, challenged the legality of Norway’s straight baseline system. The Court after
referring to the 1869 and 1889 decrees observed:
The general toleration of foreign States with regard to the Norwegian practice is an
unchallenged fact. For a period of more than 60 years, the United Kingdom itself in no
way contested it.... The notoriety of the facts, the general toleration of the international
community, Great Britain’s position in the North sea, her own interest in the question, her
prolonged absentation in any case warrant Norway’s enforcement of her system against
the United Kingdom.15
Acquiescence, however, cannot be established unless a State has actual or constructive
knowledge of the claim being made.16 Further, it is not necessary that a new rule
emerges only out of
__________________

13 (1974) ICJ Rep., p. 3.

14 See the joint opinion of five judges, ibid. at p. 48.
15 (1951) ICJ Rep., p. 116, at pp. 138-139.
16 For example, in the satellite launching, the acquiescence of all, but the satellite
launching States, has resulted in the change of airspace law.

compromises or mutual tolerances; it may also be evolved by consensus, rather in a short

span of period, such as in the case of law relating to outer space.17
A custom can be general or local (regional). A local custom can come into existence
between a group of States or even amongst two States, which can derogate or supplement
the general custom. The Asylum case has clarified that a local custom which is observed
amongst a group of States in their relations inter-se, is within the purview of Art. 38 (1)
(b) of the Statute of the International Court of Justice.18 In the Right of Passage over
Indian Territory (India v. Portugal)19 India suspended the right of passage to Portugal
through the Indian territory, which was in between the enclaves of Dadra, Nagar Haveli
and Daman after a revolt in Dadra in July 1954. Before the International Court of Justice,
Portugal claimed this right based on the Treaty of 1779 concluded between Portugal and
the then Maratha ruler. The right of passage granted in favour of Portugal was
subsequently allowed by the British Government also as the sovereign of that part of the
country which was earlier with the Marathas. This right was confined to private persons,
civil officials and goods in general, to the extent necessary to exercise sovereignty by
Portugal over these enclaves, but armed forces did not enjoy this right. For them special
permission was sought and granted by British authorities. After independence, India also
allowed this right. The Court ruled that India did not act contrary to its international
obligations, and the right was suspended in July 1954, because of the repercussions and
tension created by the events in Dadra in the border territory of India. The Court also
decided that Portugal was not entitled to send its armed forces through the Indian
territory.
In rendering its judgment, the Court relied on the Treaty of 1779. The Court also
accepted the validity of the claim of Portugal based on custom, because the right existed
continuously for a long period of time. In reply to India’s objection that no local custom
could be established only between two States, the Court observed:
It is difficult to see why the number of States between which a local custom may be
established on the basis of long practice must necessarily be larger than two. The Court
sees no reason why long continued practice between two States accepted by them as
regulating their relations should not form the basis of mutual rights and obligations
between the two States.20
For a practice to crystallise as a custom, it is not practicable to show that every State has
recognised or accepted a certain practice, and the test of general recognition is basically
vague. It is enough to show that the majority of States have accepted a particular practice
for a custom to evolve. In the North Sea Continental Shelf cases, Judge Lachs in his
dissenting opinion stated that “to become binding, a rule or principle of international law
need not pass the test of universal acceptance.... Not all States have ... an opportunity or
possibility of applying a given rule. The evidence should be sought in the behaviour of a
great number of States, possibly the majority of States, in any case the great majority of
the interested States”.21 For example, in the matters related to maritime law, the practice
of the United Kingdom and the United States is of special
__________________

17 See UNGA Res. 1963 (XVII) of December 24, 1963, “Declaration of Legal
Principles Governing Activities of States in the Exploration and Use of Outer Space”. See
Harris, op. cit. 2, p. 40.
18 Supra note 6, at p. 266.
19 (1960) ICJ Rep., p. 6.
20 Ibid. at p. 37.
21 (1969), ICJ Rep., p. 3, at p. 230.

importance, just like in the law relating to outer space, the practice of the United States
and Russia is significant.
Further, for a practice to get the force of law as a customary rule the precise length of
time required for its existence is immaterial, it is enough that it must be followed long
enough to show that the other requirements, i.e., uniformity and consistency, are also
met. In the North Sea Continental Shelf cases, the International Court of Justice
observed:
Although the passage of only a short period of time is not necessarily, or of itself, a bar to
the formation of a new rule of customary international law ... an indispensable
requirement would be that within the period in question, short though it might be, State
practice, including that of States whose interests are specially affected, should have been
both extensive and virtually uniform and should have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved.22
In the Nicaragua case (Merits), the Court, while referring to the occasional violations of
the principle of non-intervention, stated: “The court does not consider that for a rule to be
established as customary, the corresponding practice must be in absolutely rigorous
conformity with the rule. In order to deduce the existence of customary rules ... the
conduct of States should, in general, be consistent with such rules and that instances of
State conduct inconsistent with a given rule should generally have been treated as
breaches of that rule and not as indication of the recognition of a new rule”.23
Thus, the conduct creative of customary rule must be regular, repeated and also uniform.
Material departure from a practice may negate the existence of a customary rule, but
minor deviation may not necessarily negate the rule. Apart from recurrence, the antiquity
of an act (usage) may be an important element in its acceptance as a customary rule. In
the face of inconsistency, the length of time over which a particular practice has been
followed will become a relevant, though not a determining factor. It has, however, been
suggested that a rule will not be binding on a State which has maintained its dissent
throughout the rule’s formative period. In the Anglo-Norwegian Fisheries case, the
United Kingdom argued unsuccessfully that the 10 mile rule in the cases of bays was an
established principle of customary international law. The Court, while rejecting this
contention, stated that even if it had acquired the authority of general international law, it
“would appear to be inapplicable as against Norway in as much as she has always
opposed any attempt to apply it to the Norwegian coast”.24 The United States
Restatement also similarly observes:
In principle, a State that indicates its dissent from a practice while the law is still in the
process of development is not bound by that rule even after it matures. Historically, such
dissent and consequent exemption from a principle that became a general customary law
has been rare.25
__________________
22 Ibid. at p. 44.
23 (198 6) ICJ Rep., p. 14, at p. 98.
24 Op. cit. 15, at p. 131.
25 Restatement of the Foreign Relations Law of the US, Third, vol. 1, para. 102
(1987), p. 26, see Harris, supra note 2, p.39. Some scholars opine that a persistent

objector will be bound by a new rule of customary international law that has the character
of jus cogens, see, e.g., Henkin, International Law: Politics and Values (1995), p. 39.

But once a custom has been established, the subsequent dissent by a State would not
affect the sanctity of the rule unless, either by following the same process through which
the earlier rule was created or through any other law-creating process, the new rule is laid
down. This invariably is a slow process with an interim period of uncertainty.26
2. Practice of international organisations

International organisations also contribute to the development of customary international
law by providing a clear and concentrated form of State practice. The statements made
and the votes cast at these forums by State representatives on legal matters provide strong
evidence of existing or emerging rules of customary international law. The actions and
decisions of the international organisations help in achieving general standard of
behaviour by individual States in the development of rules concerning the internal law of
these organisations, their powers, responsibilities and status affecting their relations inter-
se and with States, and also developing new rules of international law.
The practice and attitude of permanent members of the Security Council towards the
application of Art. 27, paragraph (3)27 of the Charter has led to the acceptance of
practice, whereby the abstention from voting by one of the permanent members does not
amount to negative voting.28 Similarly, the Charter entrusts the “primary responsibility”
to maintain international peace and security to the Security Council, but by its becoming
ineffective due to the “veto power” of the permanent members, over a period of time, the
General Assembly has assumed a vital role in this matter, particularly in the creation and
control of the United Nations peace-keeping operations. This has become possible under
Arts. 11 and 24 of the Charter, which assign the secondary or residual responsibility of
maintaining international peace and security to the General Assembly. In pursuance of
this power, the General Assembly adopted the Uniting for Peace Resolution29 and also
set up the United Nations Emergency Force in 1956, to supervise the withdrawal of
forces from Egypt. In furtherance of this role, it has acted in many crisis situations, for
example, in Korea (1950), Hungary (1956), Congo (1960), the Middle-East (1967),
Afghanistan (1980), the Palestine situation (1980, 1982), Namibia (1981), and on the
question of occupied Arab Territories (1982).
The International Court of Justice in its advisory opinion in the Reparations case30
affirmed the legal personality of the United Nations and consequently created the
international personality
__________________
26 The same may be stated about certain norms of customary international law
challenged by the new nations, see Ch. I, supra, pp. 19-22.
27 Article 27(3) requires that on non-procedural matters, the decision can only be
adopted by a qualified majority of nine members “including the concurring votes of the
permanent members”.
28 This practice was initiated at the time of the Korean crisis in 1950, when the
USSR abstained from voting. Since then it has been followed quite often, viz., in the Gulf
Crisis (1990) China abstained from voting many times, and Russia in the case of Bosnia-
Herzegovina in 1995.

29 GA Res. 37(V), Nov. 3, 1950. On the role of the General Assembly under Arts.
11 and 24 of the Charter, see also the Advisory Opinion of the ICJ in the Certain
Expenses of the United Nations case (1962) ICJ Rep., p. 151.
30 Advisory Opinion on Reparation for Injuries Suffered in the Service of the United
Nations (1949) ICJ Rep. p. 174.

for these organisations as such. In discharging their responsibilities and obligations, these
organisations can sue and be sued. The United Nations and its specialised agencies’ treaty
relationship with member nations provide an evidence of customary international law
with reference to States’ relations with the international organisations.31
The actions of international organisations may also lead to the alteration of the existing
rules or situations and in the creation of new rules of international law. In the
Competence of International Labour Organisation case32 in 1922, the Permanent Court
of International Justice was asked to advise on whether the International Labour
Organisation (ILO) had the competence to draft regulations dealing with agricultural
workers or whether its competence was restricted only to the manufacturing industry.
Basing its opinion primarily on the practice of the organisation, the Court concluded that
the competence of the ILO extends to agricultural workers as well. Similarly, in the
Namibia case33 the International Court of Justice, while rendering its opinion concerning
the legal consequences of the Security Council Resolution 276 for non-members, stated
that, “the termination of the mandate and the declaration of the illegality of South
Africa’s presence in Namibia are opposable to all States in the sense of barring ergo
omnes (valid against “all the world”), the legality of a situation which is maintained in
violation of international law”, and non-member States are to act in accordance with this
situation. In the Reservations case,34 the International Court of Justice preferred the rule
of “compatibility with the object and purpose of the treaty” for making a reservation and
acceptance of reserving State as a party to a multilateral treaty over the existing rule of
consensus, which means that a reserving State will be accepted as a party to the treaty if
the reservation had been accepted by all other signatories to the treaty. This rule on
reservations to multilateral treaties subsequently became part of the 1969 Vienna
Convention on the Law of Treaties (Arts. 19-24).
The proceedings of the international organisations have their solitary effect in the
creation of new rules of customary international law. The paper positions or resolutions
moved by the member nations in the international conferences along with their
statements, and their participation in the debates may lead to the emergence of such rules.
The decisions and declaration of these organisations may also have a law-making effect,
as it has happened in the case of Outer Space Law, people’s right over natural resources,
and decolonisation.35
3. Unilateral acts of States

The legislative acts, decisions of State courts, opinions of law officers (especially when
they are published), military and administrative practices of various States are of great
evidentiary value in the development of international custom. A comparison of these
indicates the existence
__________________
31 The 1986 Vienna Convention on the Law of Treaties between States and
International Organisations or between International Organisations embodies the treaty
rules as applicable to the International Organisations, which have developed out of this
practice.
32 PCIJ Rep., Series B., No. 2, pp. 40-41 (1922).

33 Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa), (1971) ICJ Rep., p. 16, at p. 56.
34 Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide case, (1951) ICJ Rep., p. 15.
35 For more details on the decisions and declarations of the General Assembly, sec
infra, pp. 51-53.

of a practice uniformally followed by all States, which may be of some evidence that a
custom does or does not exist. Nevertheless, what is required for the existence of a
custom is the concurrence and not mere parallelism of such practices which may be
indicative of the general recognition of a broad principle of law. The Scotia s case is in
point. The Scotia (British steamer) collided in mid-ocean with Berkshire (US sailing
ship), which sank. As the collision took place on the high sea, the law applicable to the
case before the United States Supreme Court was the international maritime law. In 1863,
some changes were made by the Great Britain with the adoption of new regulations to
avoid collision on the high seas. The United States adopted practically the similar
regulations in 1864, and other major maritime powers, including France, also did the
same shortly thereafter. The Berkshire was carrying wrong navigational lights at the time
of the collision, according to these regulations. The crew of Scotia mistook it for a
steamer and Berkshire sank. The Court accepted the applicability of the new regulations,
the particular system of warning lights to determine the rights and duties of the parties to
the dispute, as the new regulations were accepted by nearly all the maritime nations of the
world making them “in part at least... the law of the sea”.36 The Court did not hold
Scotia liable for the sinking of Berkshire.
Apart from concurrence, there should be a sufficient degree of consistency in the practice
of States in favour of the rule alleged to exist. In the Asylum case, the International Court
of Justice refused to accept the Columbian contention that a customary rule exists among
the Latin American countries that a political fugitive if granted diplomatic asylum was
entitled to safe conduct, because Columbia failed to establish any clear evidence in
support of this contention. The Court observed:
The facts brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum
and in the official views expressed on various occasions ... and the practice has been so
much influenced by considerations of political expediency in the various cases, that it is
not possible to discern in all this any constant and uniform usage, accepted as law, with
regard to the alleged rule of unilateral and definitive qualification of the offence.37
For evidence of State practice, it is required to refer to official books or documents (such
as Digests of International Law of different States), parliamentary papers, law reports,
newspapers, internal regulations of each State’s diplomatic and consular services.
Diplomatic correspondence is also an evidence of State practice, but it is not readily
available since such correspondence belongs to classified documents. On the other hand,
decisions of domestic courts, referring to habitual practices, are generally indicative of
the existence of a customary rule.
B. Opinio Juris Sive Necessitatis

The State practice, even though general and consistent, is not customary law unless an
opinio juris or “psychological element” is present, i.e., the practice is recognised as
obligatory and there is the conviction that its repetition is the result of a compulsory rule.
In the North Sea Continental Shelf cases, the Court observed:
__________________
36 (1871) 14 Wallace 170; 81 US 170 at p. 188 (1872).

37 Op. cit. 6, at p. 277.

Not only must the acts concerned amount to a settled practice, but they must also be such,
or be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e.,
the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency or even habitual character of the acts is not
in itself enough.38
In the S.S. Lotus case,39 a stricter requirement was laid down by the Court for a
customary rule to evolve. In that case, the French ship S.S. Lotus had collided on the high
sea with the Turkish vessel Boz Kourt, killing thereby eight Turkish nationals. When the
Lotus arrived in Turkish waters, criminal proceedings were instituted in the Turkish
courts against the captain of Lotus alongwith the captain of Boz Kourt for manslaughter,
and sentenced. The French Government protested against the Turkish action, and by an
agreement between the parties, the dispute was submitted to the Permanent Court of
International Justice. The French Government argued that under the customary
international law, criminal jurisdiction pertains to the flag State of the vessel in which the
crime is committed. Evidence for this alleged rule existed in the State practice where the
courts had generally abstained from exercising criminal jurisdiction in deference to the
flag State, thereby giving rise to the assumption that there had been a tacit acceptance by
States of the rule that in criminal matters, the flag State was entitled to exclusive
jurisdiction. The Court rejected the French contention and observed that:
the circumstances alleged by ... the French Government... merely show that States had
often, in practice, abstained from instituting criminal proceedings, and not that they
recognised themselves as being obliged to do so; for only if such abstention were based
on their being conscious of having a duty to abstain would it be possible to speak of an
international custom. The alleged fact does not allow one to infer that States have been
conscious of having such a duty....40
This line of reasoning of the Lotus case was adopted by the International Court of Justice
in the North Sea Continental Shelf cases, where Denmark and the Netherlands in their
case against the Federal Republic of Germany for the delimitation of the continental shelf
between them, attempted to show that the 1958 Geneva Convention on Continental Shelf
in general, and Art. 6(2) of that Convention, dealing with the “equidistance-special-
circumstances” rule of delimitation of continental shelf among the adjoining States, in
particular, had become a part of customary international law. The Court found the
absence of the psychological element required for the creation of such a new rule, and
observed that in certain cases where the States concerned agreed to draw or did draw the
boundaries concerned according to the principle of equidistance, “there is no evidence
that they so acted because they felt legally compelled to draw them in this way by reason
of a rule of customary law obliging them to do so - especially considering that they might
have been motivated by other obvious factors....”41
In the West Rand Central Gold Mining Co. Ltd. v. R,42 the test laid down for the opinio
juris was that the alleged rule must be proved by satisfactory evidence “of such a nature,
and
__________________

38 Op. cit. 21, at p. 44, Para. 77; see also, Nicaragua case, op. cit. 23, at pp. 108-109.
39 PCIJ Rep., Series A, No. 10 (1927).
40 Ibid. at p. 28.
41 Op. cit. 21, at pp. 44-45, Para. 78.
42 (1905) 2 KB 391 at p. 407.

has been so widely and generally accepted that it can hardly be supposed that any
civilised State would repudiate it”. Thus, the rule should be one of “general recognition”.
However, in practice, it is a delicate and difficult matter to decide whether or not these
two factors—usage and opinio juris—actually exist in the formation of custom. The
recurrence, the number of examples of State practice, and the duration of time required
for the generation of customary rule cannot be decided uniformally or with mathematical
precision in the case of usage. Similarly, for opinio juris, it is extremely difficult to get
evidence of its existence in concrete cases. Being one of motivation and of psychological
nature, this subjective factor cannot be easily established, particularly when many organs
of the state - legislative and executive, participate in the decision-making. In such a
situation, the only way to ascertain the existence of opinio juris can be from the external
existence of a certain custom and its necessity felt in the international community.43 It
may also be inferred from the conduct of a group of States that a certain conduct has been
regarded by them as a matter of duty, which may become a general rule of international
law, if a sufficient number of States start considering it as binding on them and there is no
effective protest by others.44
There has been a marked decline in the importance of custom in present times. It is
because of certain drawbacks in the evolution of the rules of customary international law.
1. The growth of a new custom is always a slow process and the character of
international society presently makes it particularly slow, where States from different
political, economic and legal systems from all continents participate in the law-creating
process and not merely confined to few, as it was earlier when they were evolved by the
consensus of the European States with Western values only. It is unable to keep pace with
the changes in international relations amongst almost 200 countries.
2. The question of whether a particular usage has or has not crytallised into a custom
and has become obligatory has many difficulties, particularly when there is no agreement
about its existence. It is for the courts to extract and ascertain the rule from the mass of
heterogeneous documents, State practices, State judicial decisions, etc. and accord it legal
authenticity.
3. It is an unsuitable vehicle for international “welfare” or “cooperative” law as also
to meet the new scientific challenges, such as Outer Space Law, law to regulate deep
seabed exploitation and the law related to environment’.45
For these reasons, the law-creating process is now more often done through treaties. But
even in this scenario, it is possible for new customs to develop and become a general rule
when the need is sufficiently perceptible and urgent, as it has happened in the case of
satellite launching
__________________
43 See the dissenting opinion of Judge Tanaka in North Sea Continental Shelf cases,
op. cit. 21, p. 176.
44 Cf. Asylum case, op. cit. 6.
45 W. Friedmann, Changing Structure of International Law (Columbia University
Press, New York),
1964, p. 123; A. Cassese w (Oxford University Press, New York), 2001, pp. 124-
125.

without the specific permission of the States whose air space is transgressed. Custom
reflects a deeply-felt community need of law and it is always spontaneous.46
III. TREATIES
The growing interdependence of nations and the quick changes in international relations
make it imperative to develop international law to keep pace with the needs of modem
international society. This can be done only through treaties and not by the slow process
of custom. In international society, where there is no equivalent to State legislation, the
treaties are the closest to it, though not as perfect. The first constructive step in
developing the law through treaties was the Declaration of Congress of Paris in 1814, in
favour of freedom of navigation on international rivers, followed by the Declaration of
Paris 1856 on the laws of maritime warfare. The frequency of adopting treaties increased
steadily thereafter. The importance of treaties is self-evident, as under Art. 38(1) (a) of
the Statute of the International Court of Justice, treaties have been put as the first recourse
which the Court is directed to resort in the settlement of a dispute between the parties. In
the Soviet theory also, the main sources of international law were international treaties
and international custom, of which the former is the most important.47
Nonetheless, treaty as such is akin to a private law contract, creating rights and
obligations for the parties who have adopted the treaty. Since treaty is contractual in
nature, its being a source of law is debatable, as it primarily creates obligations for the
parties thereto. It does not ipso facto bind the non-signatories except the treaties which
are “constitutive” or “dispositive” in nature, i.e., treaties establishing a special regime,
international boundaries, or an international institution, and do create rights and
obligation for third parties. In the past, great powers had legislated for other States, such
as the Final Act of the Congress of Vienna of 1815 made Switzerland a neutral country
and declared certain rivers as international waterways; the Declaration of London
established the Belgium’s independence in 1831 and of Luxembourg in 1867. But these
instances are mere exceptions to the general rule that the treaties, irrespective of the
number of parties, are basically a source of obligation between the parties. It is inaccurate
to treat international convention as a source of international law akin to a statute as a
source of municipal law, because treaties, being contractual in nature, do not normally
have any legal effect on the non-parties. In fact, Art. 38(1) (a) of the Statute of the
International Court of Justice does not refer international conventions as a source of law,
but as sources of “rules expressly recognised by the contesting States”. Consequently,
__________________
46 The importance of custom in international law is self-evident and in 1949, the
International Law Commission was asked under its Statute (Art. 24) “to consider ways
and means for making the evidence of customary international law more readily
available”. The Commission subsequently reported on the matter to the General
Assembly and one of the recommendations was that the General Assembly should call
the attention of governments to the desirability of publishing Digests of their diplomatic
correspondence. For the Commission’s recommendation, see. Report on the work of its
Second Session (1950).

47 F.I. Kozhevikov (Ed.) International Law (Gosiurizdat, Moscow), 1961. The

Soviet Union always regarded custom as an inadequate means for the development of
international law, and rules of customary law are binding only on those States who have
given their consent, see G.I. Tunkin, “Remarks on the juridical nature of customary
norms of international law”, Cal.L.R. vol. 49 (1969), p. 421; ibid. Contemporary Soviet
Theory of International Law, 31 CLP (1978).

treaties are formally a source of obligation rather than a source of law. Treaty may lead to
or reflect law, but is not a law in itself, particularly in its inception.48 According to
Brierly, the only classes of treaties which can be treated as a source of general law are
those concluded by a large number of States for declaring their understanding of what the
law is on a particular subject, or of laying down a new general rule for future conduct, or
of creating some international institution. Such treaties are “the substitute in the
international system for legislation, and they are conveniently referred to as ‘law
making’”.49
But a “law-making” treaty is also subject to the limitation that the treaty binds only the
parties. There is no treaty which binds all the States or their people, i.e., one of a
universal character. Some jurists, however, have tried to categorise these treaties into two
types: those which lay down rules of universal international law such as the United
Nations Charter, and treaties creating general rules of international law, such as Genocide
Convention, 1949; Single Narcotic Drugs Convention, 1961; ILO conventions which lay
down the international norms for the States. Such treaties have also been termed as
“normative” treaties.
A. General and Particular Treaties

Treaties have been classified into “general” and “particular”, as is done in Art. 38(1) (a)
of the Statute of the International Court of Justice.50 A convention may be “general”
either because of the number of parties (as being accepted by a large number of States) or
because of the nature of its contents (which is of universal importance); it may be
“particular” because of the limited number of parties or because of the limited character
of its subject-matter. On this basis, some jurists have further classified the treaties into
“law-making” treaties and “treaty contracts.” Whereas the “law-making” treaties are a
source of law, the “treaty contracts” merely purport to lay down special obligations
between the parties and are not directly a source of law. They are the agreements between
two (or only limited number of) States on a special matter concerning those States
exclusively. Such treaties create obligations which would not have existed under the
general international law or modify the existing rules as applicable to their mutual
relations. Though such treaties are not directly a source of law, they may crystallise into a
general rule through the operation of the principles governing the development of
customary rules, particularly when there is a recurrence of treaties embodying the similar
law. In the past, such treaties have led to the development of the rules of international law
on varied subjects, such as the law on extradition, accentuated through extradition treaties
between nation States; the rules relating to the diplomatic and consular privileges and
immunities as embodied in 1961 and 1963 Vienna Conventions, based on great number
of treaties on the diplomatic and consular privileges and immunities between States. Such
treaties may also be of evidentiary value for an emerging rule of
__________________
48 Gerald Fitzmaurice, Some Problems regarding the formal sources of International
law, (1958) Symbolae Verzijl, p. 153, see in Harris, op. cit.2, pp. 42-43.
49 J.L. Brierly, The Law of Nations, 6th ed., Waldock (Ed.), 1963, p. 50.

50 Fitzmaurice rejects this classification and views that ascribing treaties as creating
‘particular’ and ‘general’ international law is of extremely dubious validity, see op.cit.48.

international law. In cases before any international tribunal, if such a rule is quoted, the
treaty may be invoked in support of the rule.51
The treaty, even if of universal or normative nature, will not bind the non-parties unless
expressly or by their conduct, they manifest their intention to be bound by the provisions
of the treaty as general rules of international law. In the North Sea Continental Shelf
cases, one of the arguments advanced by Denmark and the Netherlands was that the
“equidistance rule” incorporated in Art. 6(2) of the 1958 Geneva Convention on
Continental Shelf for the delimitation of the continental shelf has been recognised by the
Federal Republic of Germany by its conduct generally, and for the delimitation of the
continental shelf areas in particular (Germany was not a party to the Continental Shelf
Convention). The Court, in rejecting this contention, observed that only “a very definite,
very consistent course of conduct” on the part of a State could be the basis of finding that
it was bound by the provisions in a treaty to which it was not a party. Furthermore, by not
ratifying the treaty, though being a signatory, Germany manifested its intention not to be
bound by the provisions of the Convention.52 However, where a treaty reflects existing
law, non-parties may conform to the same rules as their being a part of general law and
not by virtue of the treaty itself, thereby accepting the treaty as of evidentiary value. On
the other hand, where a treaty matures into the general law and becomes a material source
of law, the non-parties will adhere to the treaty rule because it has become part of general
law. But the parties to the treaty have to apply the treaty even though they would also be
bound by those rules irrespective of treaty also.53
B. Treaty and Custom

Treaty is an express manifestation of the States’ intention to be bound by a particular
rule, and it can modify or reject the existing customary rules. Hence, the treaty law takes
priority over international customary law. Thus, in those situations, where there is a
conflict between a treaty rule and a customary rule, the judicial bodies have to give effect
to treaty provision; though there are always attempts to give a harmonious construction,
unless the language of the relevant provision of the treaty is unambiguous and the
intention is clear.
In the S.S. Wimbeldon case,54 Art. 380 of the Treaty of Versailles, by which Kiel Canal
was made “free and open” to vessels of all nations at peace with Germany, was in issue
before the Permanent Court of International Justice. In a war between Poland and Russia,
German officials stopped S.S. Wimbeldon, a British ship carrying munition through the
canal to Poland, on the ground that by allowing the passage of munition through its
territory to a belligerent State, Germany would be compromising its neutrality under the
customary international law. The Court, while accepting the obligatory force of such a
rule, nevertheless held that Art. 380 of the Treaty must take precedence over such a rule.
The stopping of a vessel of a State,
__________________
51 The value of the treaty would be lessened if, instead of containing absolute rule,
the treaty is subject to reservation or revision, see Starke, op. cit 7, pp. 45-46.
52 Op. cit 21, at pp. 25-26.
53 Fitzmaurice op. cit. 48.


at peace with Germany, amounted to a breach of Germany’s obligation under the Treaty
of Versailles.
Where a treaty has identical rules to those of customary international law, the treaty does
not override the customary law, but, on the contrary, together they would strengthen a
particular rule of international law. In the Nicaragua case (Merit),55 the United States
argued that by virtue of reservation in its declaration that excluded “disputes arising
under a multilateral treaty” from the Court’s jurisdiction under the “optional clause” (Art.
36(2) of the Statute of the Court), the Court is precluded from considering whether the
United States had infringed Art. 2(4) of the United Nations Charter, and by virtue of this
treaty (Charter Provision), the equivalent customary rule prohibiting the use of force is
superseded. The Court rejected the United States contention and observed that “there are
no grounds for holding that when customary international law is comprised of rules
identical to those of treaty law, the latter ‘supervenes’ the former so that the customary
international law has no further existence of its own”. The Court ruled that the United
States “optional clause” reservation to multilateral conventions, does not affect the
Court’s jurisdiction in deciding whether the United States stands in violation of the
equivalent customary rule prohibiting the use of force.56
IV. THE GENERAL PRINCIPLES OF LAW57

The term “general principles of law recognised by civilised nations” in Art. 38(1) (c) of
the Statute of the International Court of Justice is very wide and vague. It includes,
though not confined to, the principles of private law administered by municipal courts, as
applicable to international relations. The private law principles, however, are not
imported “lock, stock and barrel” in the international law but, as Judge McNair has
observed, “the true view of the duty of international tribunals in this matter is to regard
any features or terminology which are reminiscent of the rules and institutions of private
law as an indication of policy and principles rather than as directly importing these rules
and institutions”.58 The phrase applies to fundamental principles of justice which have
been accepted and adopted by civilised nations generally. The Court can have recourse to
this source if there is no convention or any clear rule of customary law in a case before it.
This is also considered necessary to avoid any situation of non-liquet, i.e., the possibility
that a court or tribunal would be unable
__________________
55 Op. cit. 23.
56 Ibid. at p. 95.
57 On the subject, see B. Cheng, General principles of law as a subject of
international codification, IV CLP. p. 35; 1951; B. Cheng, General Principles of Law
Applied by International Courts and Tribunals (Stevens & Sons Ltd., London), 1953; W.
Friedman, The Changing Structure of International Law (Columbia University Press,
New York), 1964, Ch. 12; C.W. Jenks. The Prospects of International Adjudication
(Stevens & Sons Ltd., London), 1964, Ch. 6; C.H. Alexandrowicz, The Law-making
Functions of the Specialized Agencies of the United Kingdom (1973), p. 38; H. Waldock,
General course on public international law 106 Hague Recueil 54 (1962 II); R.B.
Schlesinger, 51 AJIL 734-753 (1957).

58 See the Status of South West Africa case (1950) ICJ Rep., p. 148.

to decide a case because of a “gap” in the law.59 An international judicial body is under a
duty to adjudicate and should not refrain from giving judgment on the ground that the law
is silent or obscure.
However, there is a difficulty in identifying and evaluating the role of these principles,
since Art. 38(1 )(c) of the Statute does not specify whether the term refers to general
principles of international law which are recognised by civilised nations as a part of
customary law, or to general principles of law in the most general sense, including
principles of private international law found in most of the legal systems. According to
Mr. Root (USA) and Lord Phillimore (Great Britain), who drafted this provision, “the
general principles referred to ... were those which were accepted by all nations in foro
demestico, such as certain principles of procedure, the principle of good faith, and the
principle of res judicata, etc”.60
The very rationale of it is that a principle which has been accepted by civilised legal
systems generally would be so reasonable as to be considered nccessary for the
maintenance of justice under any legal system. Certain principles which qualify this
criterion and have become part and parcel of the modern internat ional law, such as
prescription, res judicata, estoppel, substitution etc., are drawn from Roman private law.
However, the practice of international tribunals, particularly that of Permanent Court of
International Justice (PCIJ) and the International Court of Justice (ICJ), has not thrown
any light on the processes for reaching to the conclusion that a particular rule is a rule of
international law “recognised by civilised nations”. Does it mean then that before a
principle is accepted as a “general principle”, it should be accepted in each of the legal
systems, bordering at around 200 presently? The answer seems to be that certain legal
principles are common to all the systems, which can be introduced in international law.
The retention of the phrase “civilised” has, however, become controversial, particularly
in the context that present corpus of international law is predominantly European and the
new nations’ sensitivities towards it. But the practice of the Court indicates that the
phrase relates to the general principles in the legal systems of independent nations,
leaving out the tribal law which may not be sufficiently developed in the modern sense of
the term.
There has also been a controversy about the basis as well as acceptance of these
principles as a source of international law. Some jurists, like Verdross, opine that Art.
38(1 )(c) has the effect of incorporating natural law in international law and any rule of
international law if in conflict with natural law, is invalid. Fitzmaurice also states that this
provision involves necessary principles of natural law, “at any rate in that aspect of it that
relates to these principles, to be a formal, not merely a material source of law”, and cites
many examples including the
__________________
59 Such a situation could have arisen in the Nuclear Tests Ban cases (1974) ICJ Rep., pp.
253 and 457, where the Court avoided giving judgment by accepting France’s unilateral
declaration against testing in the South Pacific and that in future it would conduct nuclear
tests underground only. France also declared that there were no sufficiently developed
principles of general international law that could have prevented it from carrying out a
further series of atmospheric nuclear tests. Subsequently, in 1983, France indulged in

such tests in its “national interest”. Again it started these tests (underground) in the South
Pacific in Sept. 1995, against stiff opposition world-wide. It declared to stop these tests
on Jan. 30, 1996, which, otherwise, were to be conducted unto May 1996. See The Times
of India, Jan. 31, 1996, p.1.
60 PCIJ. Advisory Committee of Jurists, Proces Verbaux of the Proceedings of the
Committee (1920), p. 335. Lord Phillimore later said that by “general principles” he
meant “Maxims of law”. Ibid, Harris, op. cit.
2, p. 50.

one that a State cannot put the deficiencies of its internal law to be excused from
performing its international obligations or impossibility of performance arising out of a
situation brought about by the State itself.61 On the other hand, positivists contest the
validity of this source since, according to them, consent is the basis of international law.
Jurists like Tunkin maintain that para, (c) of Art. 38(1) adds nothing new to the existing
sources of international law, i.e., custom and treaties. The main apprehension of
positivists seems to be development of international law through judicial action instead of
exclusively by States. Others hold that these principles are already there as a part of
international law. The correct position, however, has been stated by Waldock, who basing
his observations on the practice of the World Court (PCIJ and ICJ) opines:
It [court] treats the ‘common law’ which it is authorised to apply under Art. 38, paras, (b)
and (c). very much as a single corpus of law. In this corpus customary law enormously
predominates and most of the law applied by the court falls within it. But para, (c) adds to
this corpus a flexible element which enables the court to give greater completeness to
customary law and in some degree to extend it.62
But despite these controversies, the preponderant opinion is that general principles
recognised in national tribunals constitute an inexhaustible reservoir of principles, which
an international tribunal is authorised by Art. 38 to apply in an international dispute.
The International Court (PCIJ and ICJ), while relying on this source, have frequently
either referred to the customary law or left it ambiguous as to whether they were speaking
of general principles of national or international law.
In the Charzow Factory case,63 Germany brought a claim against Poland for the seizure
of two companies in Upper Silesia, contrary to Poland’s international obligation. The
Court laid down that a party cannot take advantage of its own wrong, as a principle
“generally accepted in the jurisprudence of international arbitration, as well as by
municipal courts”. At a later stage of the same case, the Court observed that “it is a
general conception of law that every violation of an engagement involves an obligation to
make reparation”64 and spoke of restitution and damages (municipal law concepts). In
the Eastern Carelia case,65 the Court was asked for an advisory opinion on the
competence of the Council of the League of Nations to adjudicate in a dispute involving a
non-member of the League (USSR), which refused to accept the competency of the
Council in the matter. The Court accepted the “independence of States” as a
“fundamental principle of international law” and ruled that no State, without its consent,
could be compelled to submit its dispute for pacific settlement. In the Corfu Channel
case, Britain claimed against Albania for the substantial damage suffered by two of its
warships while passing through the Corfu Channel which, at the time, was heavily mined.
The Court took into account the circumstantial evidence to arrive at a conclusion. It
stated that “this indirect evidence is admitted in all systems of law, and its use is
recognised by international decisions”.66 It held Albania
__________________
61 G. Fitzmaurice, Symbolae Veizijl (1958), p. 153, at pp. 154-165; Harris, op. cit. 2,
p. 50.
62 H. Waldock, General course on public international law, 106, Hague Recueil 54 at
p. 68 (1962-11).


64 PCIJ Rep., Series A, No. 17. p. 29 (1928).
65 PCIJ Rep., Series B, No. 5, p. 27 (1923).
66 (1949) ICJ Rep., p. 4, at p. 18.

liable towards the United Kingdom, for the loss suffered by its warships by Albania’s
violation of its international obligations to inform all shipping of the presence of mines in
the Corfu Channel “on certain general and well recognised principles, namely:
elementary considerations of humanity, even more exacting in peace than in war; the
principle of the freedom of maritime communication; and every State’s obligation not to
allow knowingly its territory to be used by acts contrary to the rights of other States”.67
In spite of the differences existing amongst the municipal systems, certain principles have
been transported under the rubric of “general principles” and became the basis of
judgments rendered by the Court. The International Court of Justice, while rendering the
advisory opinion in the Administrative Tribunal case referred to the “well-established and
generally recognised principle of law” that “a judgment rendered by a judicial body is res
judicata and has binding force between the parties to the dispute”.68 In the Nuclear Tests
cases,69 where Australia and New Zealand sought injunction against French nuclear
testing in the South Pacific, the Court declined to adjudicate “without object”,
particularly where the object of the claim is achieved by other means. Similarly, in the
Northern Cameroons case, the Court was clearly applying a general principle inherent in
the judicial function, in refusing to adjudicate over a dispute, the substance of which had
disappeared with Cameroon’s independence by the termination of Trusteeship
Agreement. Cameroon, after attaining independence, sought a declaration from the Court
that Britain failed to carry out its obligations under the Trusteeship Agreement under
which it had administered the territory of Cameroon. The Court observed that the
“Court’s judgment must have some practical consequence in the sense that it can affect
existing legal rights or obligations of the parties, thus removing uncertainty from their
legal relations. No judgment on the merits in this case could satisfy these essentials of
judicial function”.70 In the Mavrommatis Palestine Concessions case,71 the Court
referred to the “general principle of subrogation” and held that the concessions made by
the Ottoman Empire in favour of Mavrommatis were enforceable against the United
Kingdom, as being the successor State to Ottoman Empire in Palestine.
Likewise, the rule of estoppel of private law became the basis of the Court’s judgments in
the Eastern Greenland case,72 and Temple of Preah Vihear case.73 In the former case,
the acceptance of numerous treaties by Norway, containing reference of Danish
sovereignty over Eastern Greenland debarred Norway contesting Danish sovereignty. In
the latter case, the conduct of Thailand (erstwhile Siam) amounted to its acquiescence by
accepting the map prepared by French authorities in 1908 (the map was not approved by
the Joint Commission), showing the Temple area as part of Indo-China, and ordering for
15 more copies. Further, the subsequent visit by the Siamese Prince in 1930, to the
temple site, where he was accorded welcome of a foreign dignitary at which the French
flag was flown, precluded Thailand to contest the
__________________
67 Ibid. at p. 22.
68 (1954) ICJ Rep., p. 47, at p. 53.
69 (19 74) ICJ Rep., p. 253 (Australia v. France); (1974) ICJ Rep., p. 457 (New
Zealand v. France).
70 (1963) ICJ Rep., p. 15, at pp. 33-34.

71 PCIJ Rep., Series A, No. 2, p. 28 (1924).

72 PCIJ Rep., Series A/B, No. 53, p. 69 (1933).
73 (1962) ICJ Rep., p. 6.

sovereignty of Cambodia over the Temple area. However, the doctrine of estoppel was
held to be inapplicable in Serbian and Brazilian Loans case,74 as there was no denial of
obligation by the parties to pay the French bond holders, only the payment offered by
them was less than what was due to the bond holders.
The doctrine of estoppel, though widely used by the Court, has not been defined with any
degree of precision. Whereas in the above mentioned eases, it was applied when a State
has “slept over its rights”, estoppel may also arise out of some positive activity by a State
which suggests that it accepts or acknowledges certain situation, and in consequence of
that, it has detrimentally changed its position.75 The doctrine has become a part of the
general requirement that States should act in goodfaith.
The concept of “equity” similarly finds a place of pride in the jurisprudence of
international law as developed by the Court. The duty of States to act in good faith is a
part of the wider concept of equity. In the Diversion of Water from the Meuse case,76
Judge Hudson in his separate opinion stated that “what are widely known as principles of
equity have long been considered to constitute a part of international law, and as such
they have often been applied by international tribunals”. In this case, the Netherlands
claimed that Belgium had violated its treaty obligation by building canals that altered the
flow of water in the River Meuse. Judge Hudson opined that the Netherlands had lost its
right to object to Belgium action because it acted similarly earlier. It is an important
principle of equity that where two parties have assumed similar obligation, the continuing
non-performance by one precludes it to contest the other’s non-performance. Further, he
observed that the rule of “equity” as part of Art. 38(1) (c) is part of law, i.e., a legal
principle, whose scope is in no way restricted by Art. 38(2), conferring special power
upon the court “to decide a case ex aequo et bono, if the parties agree thereto”, which
may not be confined to the strict rules of international law.77 Accordingly, a distinction
is possible between a decision based on rule of equity and the one decided on the basis of
ex aequo et bono.78 Equity can auger, but does not alter the application of a rule of
international law.
In recent years, the International Court of Justice has increasingly referred to “equity” in
its pronouncements. In the Gulf of Maine case, it stated that the concepts of acquiescence
and estoppel in international law “follow from the fundamental principles of goodfaith
and equity”.79 In the North Sea Continental Shelf cases, the Court rejected the
Netherlands and Denmark’s contention for the application of the “equidistance” rule as
the only appropriate principle for the delimitation of their continental shelf with the
Federal Republic of Germany. In the Court’s view that would lead to unreasonable
consequences because of the peculiar coastline of Germany which is concave in nature. It
emphasised on the rule of equity to achieve an “equitable result”, which the court
followed with great conviction in subsequent maritime boundary cases, such
__________________
74 PCIJ Rep., Scries A. Nos. 20-21, pp. 38-39 (1929).
75 Cf. North Sea Continental Shelf cases, op. cit. 21.
76 PCIJ Rep., Series A/B, No. 70 (1937).
77 Ibid. at pp. 76-77.
78 Cf. North Sea Continental Shelf cases, op. cit. 21, at p. 48.

79 (1984) ICJ Rep., p. 246, at p. 305.

as in Tunisia v. Libya80 and Libya v. Malta.81 It was also followed in Guinea-Guinea

Bissau Arbitration.82 In the Fisheries Jurisdiction case, to reach a decision, the Court
relied on an “equitable solution derived from the applicable law”.83 The concept of
‘equity’ has also found its place in the United Nations documents and General Assembly
resolutions, such as the resolution on the New International Economic Order,84 law-
making treaties, for example, 1982 Law of the Sea Convention, particularly Arts. 59, 74
and 140 bring in this concept.85
But the application of the principle of ‘equity’ is generally tinted with an element of
subjectivity, which brings in uncertainty in its emergence or crystallisation as a new rule
of international law. Its claim to the title of “general principle”, thus, is not always
accepted. In South-West Africa cases (II Phase),86 the maxim of actio popularis was not
accepted as a general principle. Similarly, in Texaco case87 the French law of
administrative contracts was not found of wider acceptance.
The Court is not always confined to the drawing of analogies from municipal law under
the rubric of “general principles”, but sometime resorts to the rules and institutions,
which are entirely the creation of municipal law. In the Barcelona Traction Power and
Light Co. case,88 the Court had to decide whether Belgium could exercise its right of
diplomatic protection in respect of its nationals, who were shareholders in the company,
registered in Canada and operating in Spain, against Spain who declared it bankrupt and
took certain other measures injurious to the company. The Court, applying the municipal
law doctrine of “corporate personally”, held that the alleged wrongful acts were
committed against the company and though shareholders suffered indirectly, Belgium
had no cause of action. The corporate personality is distinct from shareholders under
municipal law and separation of property rights was an important manifestation of this
corporate personality. The court observed:
In this Held international law is called upon to recognise institutions of municipal law
that have an important and extensive role in the international field ... All it means is that
international law has had to recognise the corporate entity as an institution created by
States in a domain essentially within their domestic jurisdiction. This, in turn, requires
that, whenever legal issues arise concerning the right of States with regard to the
treatment of companies and shareholders, as to which international law has not
established its own rules, it has to refer to the relevant rules of municipal law ... If the
Court were to decide the case in disregard of the relevant institutions of municipal law it
would ... invite serious legal difficulties ... for there are no corresponding institutions of
__________________
80 (1982) ICJ Rep., p. 18, at p. 59.
81 (1985) ICJ Rep., p. 13, at p. 57. See also the Land, Island and Maritime Boundary
Dispute case (El Salvador v. Honduras) (1992) ICJ Rep., p. 376
82 77 ILR 635 (1985), Guinea Bissau and Sierra Leone were on cither sides of
Guinea.
83 See, op. cit. 12, at p. 33.
84 1974 Charter on the Economic Rights and Duties in its Preamble states, “mindful
of the need to establish a just and equitable economic and social order”, GA Res. 3281
(XXIX) of Dec. 12, 1974.

85 “Equity” has been invoked here as a part of “distributive justice”, consonant to the
needs of developing countries.
86 (1966) ICJ Rep., p. 6.
87 Texaco v. Libya, 17 ILR, p. 389 (1977); 17 ILM 1 (1979).
88 (1970) ICJ Rep., p. 3.

international law to which the Court could resort ... the Court has ... not only to take
cognizance of municipal law but also to refer to it.89
Broadly speaking, the general principles, which have been recognised in the
jurisprudence of the Court as reflected in its judgments are: goodfaith, international
responsibility of State, prescription, right of the Court to determine its own jurisdiction,
res judicata, estoppel, substitution, and the rule of natural justice, i.e., both parties must
be heard before the judgment is rendered. The main areas where these principles have
pertained are the general principles of legal liability, administration of international
justice, procedure, evidence or other aspects of judicial systems, and the Court is
reluctant to import substantive doctrines or institutions of national law into international
law. The resort to “general principles” is, thus, not new. On the other hand, frequent
resort by the Court to this source indicates the long established practice of international
tribunals, which has prompted a suggestion that they should be codified.90 But the
opinion has also been expressed that Art. 38(1) (c) of the Statute relating to “general
principles” has sounded “death- knell” to positivism,91 which, however, may not be
absolutely true in close analysis because by being common principles in the national legal
systems, they reflect a consensus of nations. However, there is no denial of the fact that
this provision has introduced dynamic element in international jurisprudence and ensured
the creative function of the international tribunal.
V. JUDICIAL DECISIONS
Article 38(1) (d) of the Statute of the Court puts “judicial decisions ... as subsidiary
means for the determination of rules of law”, which invariably refers to international
judicial decisions, State judicial decisions and decisions of international arbitral tribunals.
They are called “subsidiary means” because in the normal conduct of international
relations, it is the State practice which creates the rules and which is the primary means
of determination of those rules. Although in theory, the decisions do not constitute the
formal source of law, but in practice, they play a larger part in the development of
international law, particularly when the State practice is either ambiguous, non-existent,
sparse or contradictory, the Court gets involved in determining the rules of law to decide
a legal issue and in the process creates new rules. In such a situation, the Court applies
existing rules either directly or by analogy. More extensive is the analogy drawn, the
more creative the Court’s role becomes, and in spite of the view that Judges do not make
law but only apply the existing principles, the decisions reached by the Court are of
immense value and in those cases where there is no pre-existing rule, they will be a direct
source of law.
A. Decisions of International Tribunals

The only international judicial tribunal existing at present is the International Court of
Justice (ICJ) which succeeded, in 1946, the Permanent Court of International Justice
(PCIJ), created in 1921. The Statute of the PCIJ was adopted by the ICJ. The PCIJ and
ICJ together have rendered
__________________
89 Ibid. pp. 33-34 (paras. 38 and 50).

90 B. Cheng, op. cit. 57 in IV CLP 53 (1951).

91 J.G. Starke, op.cit. 7, p. 35.

many valuable decisions and advisory opinions which have enriched the international
jurisprudence.
Article 38(1) (d) of the Statute is subject to the provision of Art. 59 of the Statute which
provides that the “decision of the Court has no binding force except between the parties
and in respect of that particular case”. This means that the judgments of the Court have
no precedential value. It also relegates the judicial decisions to the status of a “subsidiary
means” by imposing a limitation in the adoption of judgments, but in practice, the
decisions of the Court have attained the highest authority, even though they are only
persuasive in nature. They play a formidable part in the development of international law.
This is quite evident from the pleadings presented before the Court by State parties to a
case where the decisions of the Court are frequently referred. In the Aerial Incidents
case92 which arose out of the shooting down of an Israeli civil aircraft by a Bulgarian
fighter aircraft when the aircraft strayed into the Bulgarian air space, Israel relied heavily,
in support of its claim, on the authority mainly drawn from previous decisions of the PCIJ
and ICJ in its written pleadings submitted before the Court. The Court, however, did not
decide the case for want of its jurisdiction.
The Court has equally been making use of its prior decisions while deciding a case
notwithstanding Art. 59. It has quite often made use of those decisions either by
following them or “distinguishing” them. In Peace Treaties case,93 the Court was asked
to give advisory opinion in a dispute over the issue of the constitution of arbitral tribunals
to look into the alleged violations of human rights under the Peace Treaties with
Bulgaria, Hungary and Rumania within the terms of those treaties. The three States did
not cooperate in constituting the arbitral tribunals, nor did they participate in the
proceedings of the Court, by arguing that the Court should adhere to the ruling of the
PCIJ in Eastern Carelia case94 as they have not consented to the Court’s jurisdiction. The
Court, while upholding the principle laid down in Eastern Carelia case that a State could
not be forced to submit its disputes to arbitration or judicial settlement without its
consent, rejected the objection of these States, by distinguishing the two cases. Whereas
the Eastern Carelia case was related to the investigation of the merits of a dispute, the
case before the Court was solely concerned with the procedure for settlement, i.e., the
formation of the tribunals, and not with the substance of the dispute.
In spite of its protestations that it is not a legislative organ, and its duty is “to apply the
law as it finds it, not to make it”,95 the Court’s judgments have sometimes resulted in the
formulation of altogether the new rules of international law. In the Anglo-Norwegian
Fisheries case,96 the Court created a new rule (the straight baseline method) for the
delimitation of maritime boundaries in those parts of the world where unusual economic
and geographical factors are present. In the Reparation case91 the Court created the legal
personality for international organisations by inferring from the provisions of the United
Nations Charter that to carry out its functions effectively assigned to the United Nations
under its Charter, it must be endowed
__________________
92 (1959) CJ Rep., p. 127.
93 (1950) ICJ Rep., p. 65.
94 Op. cit. 65.

95 South-West Africa case (II Phase), op.cit. 86, at p. 48.

96 See op.cit. 15.
97 See op.cit. 30.

with a personality to sue and be sued under the international law. Similarly, in the
Reservations cave,98 the Court, in derogation of the rule of consensus came out clearly
with the right of a State to make reservations to a multilateral treaty, if it is in consonance
with the object and purpose of the treaty. About the law-creating role of the Court, Judge
Azevedo aptly remarked in the Asylum case99 that “the decision in a particular case has
deep repercussions .. because views which have been confirmed by that decision acquire
quasi-legislative value”, in spite of the legal principle that the decision is binding only
between the parties to a particular ease.
It is not only the decisions of the Court which have great evidentiary and persuasive
value, but the opinions of the dissenting judges also provide direction to the future
growth of international law, which manifest in State practice, and indicate the stage of
development of an emerging rule of international law.100 Further, the International
Court’s decisions and opinions have generally great persuasive value for other
international tribunals and courts, but it mainly depends upon the “intrinsic merits” of
these judgments.101
The role of the decisions of the arbitral tribunals is generally not considered very
important in judicial law-making. It is mainly due to the fundamental difference existing
between arbitral and judicial decisions, as arbitrators mostly act as mediators or
conciliators rather than as judges. They act more as amiable compositeurs and are not
strictly bound by the legal rules or established procedure. However, this is not true in
every case. By and large, they are guided by legal principles and rules rather than the
exigencies of compromise. Further, acting in this manner, they do not act differently than
the judges of the Court when they are authorised to decide according to ex aequo et bono
under Art. 38(2). The main difference between an arbitral award and the judicial decision,
however, lies in the freedom the parties enjoy in the composition of the tribunal and the
choice of law in the ease of arbitration.
In spite of the doubts expressed about the significance of the judgments of the arbitral
tribunals, the important awards have been rendered by the Permanent Court of
Arbitration and many other Mixed Claims Tribunals which together added to or clarified
the law on territorial sovereignty, State jurisdiction, State responsibility, neutrality and
State servitudes. Some of the important awards are Alabama Claims Arbitration (1872),
Behring Sea Fisheries Arbitration (1893), North Atlantic Fisheries case (1910), Savarkar
case (1911), etc.
B. Decisions of Municipal Tribunals

The decisions of municipal courts are relevant to international law in two ways. In the
first place, the decisions manifest an insight into the attitude of various countries towards
a particular rule of international law, and how it is applied and interpreted by municipal
courts. These decisions may have the strong evidentiary value before an international
tribunal, relating to the existence and scope of a particular rule, which helps in the
development of a new rule. Further, when
__________________
98 See op.cit. 34.
99 Sec op.cit. 6.

100 Cf. S.S. Lotus case, op.cit. 39, the dissenting opinion expressed in that case on the
State’s jurisdiction in criminal matters was upheld in the 1982 Law of the Sea
Convention, Art. 97; also Art. 11 of the 1958 Geneva Convention on the Territorial Sea.
101 See Schwarzenberger, op. cit. 1, pp. 30 et seq.

the existing authorities are few, or evidence in favour of a particular rule is uncertain or
ambiguous, the role of municipal decisions becomes more significant. But in the
performance of this function, the court’s “standing” and the “intrinsic merits” of the case
are very vital. Generally, decisions rendered by the United States Supreme Court and of
British courts on matters of international law have considerable weight. In Paquette
Habana102 where two small fishing boats were captured by the blocking forces of the
United States during the American-Spanish war, the United States Supreme Court laid
down the rule relating to the exemption of fishing boats from the application of the laws
of war, i.e., they are absolved from being treated as prize of the war. In the Scotia,13 the
Court’s pronouncement helped in clarifying the nature of customary rules relating to the
prevention of collisions at sea. Similarly, the judgments of the British Prize courts,
particularly those rendered by Lord Stowell, helped in the formulation of the laws of war,
specifically relating to blockade.
In the second place, these decisions of municipal courts become relevant in the
emergence of a new customary rule. The concurrence of judicial decisions in fairly a
large number of countries is indicative of the uniformity in practice, which may lead to
the formulation of a new customary rule. In the S.S. Lotus case, the Court, while rejecting
the French contention that on the question of criminal jurisdiction in cases of collision on
the high seas, only the flag State is competent to exercise jurisdiction, referred to a
number of municipal decisions and found no uniformity on the matter. It observed that it
was “hardly possible to see in it an indication of the existence of the restrictive rule of
international law which alone could serve as a basis for the contention of the French
Government”.104 Thus, the judicial decisions are important in influencing the State
practice and in the determination of new rules. Their role thus cannot be described merely
as subsidiary but of great significance in the absence of any centralised legislative body
under international law.
VI. JURISTIC WORK ON INTERNATIONAL LAW

In Art. 38 of the Court's Statute, “the teachings of the most highly qualified publicists”
are assigned the same “subsidiary” status as judicial decisions. However, the juristic work
is an important source of international law. Juristic writings had contributed significantly
in the formative period of international law. They were largely responsible for
establishing the basic idea about international law when it was little known. Their work
was based on deduction drawn mainly from natural law principles, analogies from
Roman law, and generalisation of State practice that they could find. The writings of
Gentilis, Pufendorf, Grotius, Bynkershoek, Van Martens and Vattel, among the few, had
solitary influence in the development of international law, and their works are
occasionally referred before the international tribunals even today. But the creative role
and influence exerted by publicists in the formative years of international law has
declined in the present time, with the judicial bodies, like the ICJ. taking over an active
role in pronouncing the law. Their main task is to unveil the law from State practice. The
International Court, apart
__________________

102 (1900) 17-5 US 677; the rule of immunity of foreign public ships from the
jurisdiction of the territorial State was laid down in Schooner Exchange (1812).
103 See op. cit. 36.
104 See op. cit. 39, at p. 29.

from paying lip-service to “the writing of publicists” or “all or nearly all writers” has
otherwise refrained from making specific mention of these writings. The Court normally
refrains from disclosing in its judgments the secondary means of determining the relevant
rules of international law, though in the pleadings and the separate opinions of the judges,
sometimes their work is regarded.105 However, these writings suffer from subjective
element, which affect their value as a source of international law. The writers, while
drawing analogies from existing rules and by deducing from the generality of State
practice are guided by what according to them is the rule of international law in a
particular field. Quite often their views are influenced by their political considerations
and displays national bias.106
Even though they are not the law, the juristic writings, nevertheless, are of immense
value. They are useful evidence of the existing rules of international law. Since
international law is largely unwritten, being primarily dependent upon the uncertainties
and vicissitudes of State practice, the existence of a particular rule is more important than
its source. The jurists, after sifting through the usages and practices, deduce the
customary rules and provide evidence of law. In this process, they also assist the
transition from usage to custom and thus influence its further development. On the
evidentiary function of the juristic writings. Justice Gray of the United States Supreme
Court remarked:107
... where there is no treaty, no controlling executive or legislative act or judicial decision,
resort must be had to the customs and usages of civilised nations, and as evidence of
these, to the works of jurists and commentators ... Such works are resorted to by judicial
tribunals, not for the speculation of their authors concerning what the law ought to be, but
for trustworthy evidence of what the law really is.
In West Rand Central Gold Mining Co. v. R,108 it was stated that the “mere opinions of
jurists, however, eminent or learned, are not in themselves sufficient... They [rules] must
have received the express sanction of international agreement by their practical and
frequent recognition in dealings between various nations....”
However, in exceptional cases, the juristic work may become an independent “source” of
law, when there is no customary or conventional law or a “general principle”, and there is
no decided case or State practice. For example, in the Re Piracy Jure Gentium, the Privy
Council relied upon the juristic work to decide the question whether actual robbery was
an essential element to constitute the crime of piracy at international law, and ruled that
robbery is not an essential element but frustrated attempt is equally piracy jure
gentium.109 Further, if generally relied upon and no contrary opinion is propagated
against it, the juristic work may emerge as a strong evidence of a rule over a period of
time, by acquiring a prescriptive authority.
__________________
105 See separate opinions of Judge Alfaro and Fitzmaurice in the Temple of Preah
Vihear case (1962), ICJ Rep., p. 6, at pp. 39 and 52 respectively; see also Manfred Lachs
(Judge), Teachings and teaching of international law, 3 Recueil des Cours 163-252
(1976).
106 C. Parry, The Sources and Evidences of International Law (Manchester
University Press), 1965, p. 105.

107 See Paquette Hahana, op. cit. 102, at p. 700.

109 (1934) AC 586 at pp. 588-589; see J.G. Starke, op. cit. 7, p. 51.

VII. GENERAL ASSEMBLY RESOLUTIONS AND DECLARATIONS

Article 38 of the Court’s Statute does not list the determinations or decisions of the
international organisations among its sources, though they are increasingly becoming
important in the development of international law. The General Assembly has adopted
numerous resolutions since its inception on areas as wide as from human rights to
consumer’s rights,110 Though they are not legally binding per se, but can spell out, and
to some extent, elaborate existing customary rules or contribute to the rapid formation of
new ones. In this sense, they have great evidentiary value and proved to be very valuable
when it comes to the interpretation of the provisions of the Charter or developing a new
law for areas made accessible by modern science and technology, such as outer space or
deep sea-bed.111 The resolutions dealing with the internal functioning of an organisation
are generally binding on the States and the organisation with full legal effect. The
resolution concerning the limits of the jurisdiction of the organisation has the law
creating effect for member States.
The international judicial tribunals have accorded considerable weight to these
resolutions as evidence of State practice underlying a customary rule, in the Nicaragua
case,112 the International Court of Justice relied heavily on Resolution 2625 (XXV) of
October 24, 1970, on Friendly Relations and Cooperation among States for the law on the
use of force and intervention under international law. In the Western Sahara case,113 and
the Namibia case,114 the Court took the help of General Assembly Resolutions 1514
(XV) and 1541 (XV) of I960, on self-determination and rights of people of non-self-
governing territories, and Resolution 2625 (XXV). A significant number of General
Assembly resolutions have matured into conventions on the same subject-matter, such as
the 1963 Declaration on the Elimination of All Forms of Racial Discrimination led to the
adoption of the 1965 Convention on the Elimination of All Forms of Racial
Discrimination; the 1963 Declaration of Legal Principles Governing Activities of States
in the Exploration and Use of Outer Space paved the way for 1967 Outer Space Treaty.
Some of these resolutions in the form of Declarations are relevant in the authentic
interpretation of the United Nations Charter or of existing customary rules, such as the
1970 Declaration on Friendly Relations among States (Resolution 2625 (XXV)).
__________________
110 On UNGA resolutions, see, O. Y. Asamoah, The Legal Significance of
Declarations of the General Assembly of the United Nations (Martinus Nijhoff, the
Hague) 1966; J. Castaneda, Legal Effects of United Nations Resolutions (Columbia
University Press, New York) 1969; L MacGibbon. International Law: Teachings and
Practice (B. Cheng (Ed.), Stevens & Sons Ltd., London, 1982), Ch. 2; B. Sloan, United
Nations General Assembly Resolutions in Our Changing World (Transnational
Publishers, New York) 1991; id.. General Assembly resolutions revisited, 58 BYbiL 39
(1987); G.I. Tunkin, Theory' of International Law (Harvard University Press,
Cambridge), 1974, p. 165.
111 Louis B. Sohn in The Present Status of International Law and Other Essays (in M.
Bos (Ed.) Kluwer, Netherlands), 1973, p. 39, at pp. 52-53.
112 Case Concerning Military and Paramilitary Activities in and Against Nicaragua,
op. cit. 23, 188.

113 (1975) ICJ Rep., p. 12.


These resolutions, which expressly or impliedly state rules of international law in abstract
terms,115 or apply such rules to particular cases,116 have now become an important
feature of international relations, though their legal status is very controversial.
According to some jurists they have no legal importance, others are of the view that
under certain special circumstances they may have legal implications and some of them
may even have binding effects. This uncertainty or controversy stems mainly from their
non-inclusion in Art. 38 of the Statute of the Court.
Nonetheless, these resolutions which are collective pronouncements of States, manifest
the strong evidence of State practice and help in the formulation of new rules of
international law. But the evidentiary or precedential value of these resolutions depends
to a great extent on the language and the pattern of voting in their adoption and the
statements made by the member nations at the time of their adoption and subsequently. If
the resolution is framed in precise legal language, it will carry a considerable weight.
Resolutions adopted unanimously or near unanimously or by consensus (not
accompanied by reservations) would lead to the emergence of new customary rules. They
may be in the nature of quasi-judicial determination. But, in this process, the affirmative
votes of the States whose support for the effective implementation may be necessary, are
vital; their negative vote would tantamount the rejection of the rule. However, abstention
from voting, in the United Nations practice, does not amount to negative vote, but as
acquiescence.117 But abstention by important nations may affect its enforceability.
Repetition or recitation of a resolution in subsequent resolution adds further weight and
helps in the formation of the new rule. Repetition demonstrates the continuity,
consistency and uniformity of the States’ conduct and practice in conformity with the
rules stated therein. This may lead to formulation of the “'instant customary international
law”.118 In the South West Africa cases, Judge Jessup found the resolutions of the
General Assembly devoid of true legislative character, but if on a particular subject there
is recurrence and repetition of similar resolutions (as on apartheid), then they indicate the
contemporary international standard and the Court is bound to take them into account in
delivering its judgment.119 The subsequent conduct of States, after the adoption of the
resolution, is similarly important in the formulation of a new' rule. Subsequent conduct
provides it with the requisite evidentiary value to mould it into a customary rule, by
giving it the requisite opinio juris for the creation of the rule. This opinio juris will be
evidenced in the statements made by States prior or after the adoption of the resolution or
later as an explanation. The State practice is particularly relevant where
__________________
115 For example, the 1960 Declaration on the Granting of Independence to Colonial
Territories and Peoples; the 1962 Resolution on Permanent Sovereignty over Natural
Resources; the 1963 Declaration of Legal Principles Governing Activities of States in the
Exploration and Use of Outer Space; 1970 Declaration of Principles Governing the Sea-
Bed; 1970 Declaration on the Principles of Friendly Relations and Cooperation among
States; and 1974 Declarations on the Establishment of the New International Economic
Order, and the Charter on the Economic Rights and Duties of States.
116 Viz., General Assembly resolution on the USSR intervention in Afghanistan, or
non-recognition of South African homelands.

117 D.W. Bowett, United Nations Forces (Fredrick A. Praeger. New York), 1964, pp.
31-32; W.M. Reisman, The legal effect of vetoed resolutions, 74 AJIL 904-907 (1980).
118 The term is coined by B. Cheng, 5 1 JIL 23 (1965).
119 (1966) ICJ Rep., p. 34, at p. 292.

the resolutions are in the nature of de lege ferenda. For a resolution in the nature of lex
lata, the State practice enhances its normative effect. The gestation period for the
emergence of a customary rule is less in case of resolution than in case of traditional
process of custom formation.
The International Court of Justice has also accepted their importance in the generation of
international law rules. In the South West Africa cases,120 Judge Tanaka, in his
dissenting opinion, remarked:
Of course, we cannot admit that individual resolutions, declarations, judgments,
decisions, etc. have binding force upon the members of the organisation. What is required
for customary international law is the repetition of the same practice; accordingly, in this
case resolutions, declarations, etc....
This collective, cumulative and organic process of custom generation can be
characterised as the middle way between legislation by convention and the traditional
process of custom making, and can be seen to have an important role from the viewpoint
of the development of international law.121
In the Reservations case, Judge Alvarez remarked that the resolutions of the General
Assembly do not have a binding character, which they may acquire if they receive the
support of public opinion.122
Prima facie such resolutions are mere recommendations to the members of the United
Nations. Sometimes, they are declaratory of international law, and if adopted by all
members, they are evidence of customary international law on a particular subject-matter.
Some resolutions are of law-making character and serve as a conduit in the development
of new principles of international law. They are sometimes termed as “soft law” since
they cannot be classified as full-fledged rules of international law like custom, treaties or
general principles of law, but they fulfil to a great extent the criteria to be termed as
law.123
Strictly speaking, resolutions of the General Assembly are not binding as such. In 1974,
when the Sixth Committee of the General Assembly reviewed the work of the
International Court of Justice, the role of General Assembly resolutions was considered.
There was a general agreement against their being seen as a new source of international
law, in addition to those listed in Art. 38 of the Statute of the Court, but they were
generally accepted as evidence of custom.124 However, with tremendous horizontal and
vertical expansion of international law, and keeping in view the present-day status of
international law, it is difficult to deny the effective legislative force behind these
resolutions, which manifest the consensus of nations on particular rules.
__________________
120 Ibid.
121 Also cited by R. Higgins, International Law: Teachings and Practice, B. Cheng
(Ed.) 1982, p.27, at pp. 28-29.
122 See op.cit. 34, at p. 59.
123 Van Hoof, Rethinking the Sources of International Law: (Kluwer Publishing,
Deventer) 1983, pp. 187- 189.
124 Harris, op. cit. 2, pp. 42-43.


Page 54
CHAPTER 3
International Law and Municipal Law
I. INTRODUCTORY
Very often, municipal courts have to face situations calling for the application of the rules
of international law, both where such rules are and where they are not at variance with
municipal law. Similarly, international tribunals may be called upon to determine the
precise status and effect of a rule of municipal law, if the party to the case has relied upon
the rule, or the case has some connotations of municipal law. There may also be
situations which require theoretical analysis and determination of the limits between
international law and municipal law. In those cases in which there is a conflict between
municipal law and international law, the question of primacy, whether international law
takes precedence over municipal law or vice-versa, becomes important for the decision.
Beside this, the question of primacy before municipal courts is determined mainly by the
constitutional law of the State. But the pertinent questions in this regard are: Is the
international rule directly applicable and effective under domestic law? Does a treaty
prevail over conflicting domestic law? International law does not prescribe any rule on
how it should be applied or enforced at the national level. National constitutions can
choose how to give effect to rules of international law or treaties. Nevertheless, this
makes it imperative for an international lawyer to know the jural relationship between
municipal law and international law.
II. THEORIES ON RELATIONSHIP

There are two principal theories put forward by scholars on the relationship between
international law and municipal law: monism and dualism. According to monism,
international law and municipal law are the components of one system of law in general.
On the other hand, according to dualism, they represent two entirely distinct and self-
contained legal systems to the extent to which the rules of one are not expressly received
in the other. These two theories also explain how the international law will be received or
made applicable under a municipal legal system of a State.
A. Monism
The theory of monism regards that both international law and municipal law have a
common underlying legal basis and it derives its origin from the law of nature which
binds equally the States and individuals. Thus, they are intrinsically the same and form
part of that science of law which binds all human beings alike. Accordingly, both State
law and international law

Page 55 INTERNATIONAL LAW AND MUNICIPAL LAW
ultimately regulate the conduct of individuals, one immediately and the other mediately,
though in the sphere of international law, the consequences of such conduct are attributed
to the State. They regard law as a single unified field of knowledge, consisting of rules,
whether binding on States, individuals, or on entities other than States and the decisive
point is whether or not international law is true law. Once it is accepted as true law, then
there is no intrinsic difference between the two.
The chief protagonist of this theory is Kelsen. Other supporters of this theory are
Lauterpacht, Fitzmaurice and Starke.1 According to them, since the behaviour of States is
reducible to the behaviour of individuals representing the State, the alleged difference in
subject matter between the two systems cannot be considered a difference. Consequently,
there is no dichotomy between international law and municipal law and they operate
without any conflict in their assigned spheres of action. Therefore, the question of
superiority or primacy of one system over the other does not arise. The fact that national
organs do not act according to the rules of international law is a manifestation of its
weakness, but does not invalidate the theory, since the State will incur international
responsibility for the breach of international legal rules.
B. Dualism
The theory of dualism grew out of nineteenth century positivist philosophy which
emphasised on the “will” of the State as the sole criterion for the creation of rules of
international law. Under the dualist theory, international law and municipal law operate
on different levels. While international law regulates mainly the relations and obligations
between sovereign and independent States, the municipal law operates and regulates the
relations and obligations of individuals within a State. The chief exponents of this theory
are Tripel and Anzilotti.2
According to the supporters of this theory, difference between international law and
municipal law lies in their subject-matter, sources and the juridical origin. Whereas
subjects of international law are States exclusively, those of municipal law are
individuals; the formal sources of international law are mainly customary and treaty
rules, and the municipal law consists for the most part legislative enactments and judge-
made law. The juridical basis of international law is the common will (Gemein wille) of
States, operating between States solely and that of municipal law, “State will”, i.e., will
of the State itself, binds the individuals within its jurisdiction. The non-positivists support
this theory primarily because of the empirical differences in the formal sources of the two
systems. However, doubts have been expressed against this approach. The subjects of
modem international law are not only States but international organisations, individuals
and other non-State entities are also bound by it. Further, to attribute “will” to State and
to say that the “common will” is the source of international law is totally misleading and
fails to provide the answer as to under what circumstances an expression of the “common
will” can become decisive. “Common will” of States is nothing but the w ill of the people
who compose it. Also, there can be certain fundamental principles of international law
and considerations
__________________
1 J.G. Starke, 17 BybIL, 66 (1936).

2 Fitzmaurice considers that Anzilotti has been wrongly labelled as a dualist. See G.
Fitzmaurice, The general principles of international law considered from the standpoint
of the rule of law, 92 Hague Recueil, 70-80 (1957-II).

which make the international law binding on States against their will. It also fails to
explain the existence of general international law which is binding upon States; to
attribute it with “tacit agreement” would be at variance with reality.
Anzilotti tried to explain the differences between the two systems in terms of
fundamental principles by which each system is conditioned. According to him, the
fundamental principle of State law (i.e., municipal law) is that it should be obeyed,
whereas the fundamental principle of international law is pacta sunt servanda, i.e.,
agreements between States are to be observed in good faith. Thus, both are entirely
distinct systems though there may be certain cross references of each other. Although it
cannot be denied that pacta sunt servanda is an important postulate of international law,
but it is only a partial illustration of a much wider principle lying at the root of
international law. It also does not explain the binding force of customary rules of
international law to which the States have not given their consent.
C. Question of Primacy
But where does the primacy lies - in international law or municipal law, in case the
conflict arises between the two? Jurists have laboured themselves in trying to find out as
to which of the two-international law or municipal law - should have primacy. Since
dualists attach significance to the sovereignty of the ‘State will’, they ascribe primacy to
municipal law over international law. The basis of their view is that the State is
independent; it enjoys the widest liberties and exercises almost complete sovereignty. On
the other hand, monists are divided on this issue. Some of them ascribe primacy to
international law. But Kelsen, the chief exponent of the theory, maintains that, in
accordance with his “hierarchical” or Grundnorm doctrine, each rule is conditioned by a
superior rule for its validity and thus, in turn, it derives validity from the fundamental
postulate, i.e., the Grundnorm which might belong either to international law or State
law. But without taking his thesis to its logical conclusion, he has ascribed primacy to
State law because, in his opinion, the choice between them could not be made in a strictly
scientific way.
Kelsen’s views on the relationship between international law and municipal law were
coloured by his philosophical approach towards the law in general and his theory of law
(theory of pure law) in particular. But ascribing primacy to State law has its own set of
problems. It would tantamount to according primacy to legal systems of almost all the
independent nations of the world with its attendant confusion and anarchy. This
proposition also fails in the final analysis on other grounds as well. First, if it is accepted
that international law derives its validity from State law, it would necessarily mean that
with the disappearance of State law (constitution), the rules of international law should
also disappear. But State practice has invariably established that international law
operates independent of internal changes or revolution in a State, or repeal or abolition of
its constitution. On the contrary, international law exerts a definite check upon municipal
law and holds the State responsible internationally for its delinquent behaviour towards
other States.3 Second, when a new State is admitted to the family of nations, the
international law binds it without its consent. Furthermore, State practice has established
the duty of each

__________________
3 Edwin Borchard, “The relation between international law and municipal law”,
Virginia Law Review, Vol. 27, p. 137 (1940).

State to adopt not only its laws, but also its constitution, in accordance with international
law, and most of the States have reiterated this position in their constitutions by accepting
the supremacy of international law.
According to Starke, a monist, primacy lies with international law. In his view, the State
sovereignty, the basic logic for according primacy to State law, represents no more than
the competence, however wide, which States enjoy within the limits of international law.
He has drawn the analogy with a federal State. The individual member States of a
federation may enjoy a wide measure of independence, but legal primacy nonetheless
resides in the federal constitution. There is thus an international constitutional law which
conditions both State law and international law just like the constitutional instrument in a
federal State conditions both provincial law and federal statutes.4 But this view also begs
certain questions: Has the international law attained the maturity of a federal
constitution? What are the contents of this constitution? What is the authority and
procedure to determine the contents of such a constitution and resolve the disputes?
In fact, the controversy between monism and dualism is more academic than real, as there
is no indication that cither theory has had a significant impact in the development at the
national levels on questions of international law. They merely indicate general approach
towards the implementation of international law at the national level. In fact, international
law and municipal law are not comparable since both have their own sphere of operation
and neither can be termed as subordinate to the other. The supremacy of international law
in the international sphere is unchallenged in the same way as of municipal law in the
State matters. They are mutually independent and normally do not come into conflict
with each other. But, at times, a conflict of obligation may occur, or the State is not able
to act on the domestic plane in the manner required by international law. In such a
situation, whether the municipal court would apply the international law by overriding
the municipal law depends on the provisions of the municipal law itself The supremacy
of international law in municipal sphere simply requires that if a State is in breach of its
international obligations for which it is internationally responsible, it cannot shelter itself
behind domestic law by way of absolution.5 International law simply does not purport to
govern the contents of national law in the national sphere.
III. THEORIES ON THE APPLICATION OF INTERNATIONAL LAW

WITHIN MUNICIPAL LAW
Germinating from the above two theories on the jural relationship between international
law and municipal law and on the question whether international law may be applied ex
proprio vigore within the municipal sphere, two theories have been propounded: (I)
“Transformation” or “Specific Adoption” Theory, and (2) Delegation Theory. These
theories are, in fact, the manifestation of the theories of dualism and monism.
__________________
1989, pp. 75-76.
5 See Arts. 27 and 46 of the Vienna Convention on the Law of Treaties, 1969;
Fitzmaurice, op. cit.2, at p. 71; see also Art. 13 of the 1949 Draft Declaration on Rights

and Duties of States; the Alabama Claims Arbitration, J.B. Moore, International
Arbitrations, Vol. 1 (Govt. Printing Press, USA), p. 653 (1872).

A. Transformation or Specific Adoption Theory

According to positivists, the municipal law is logically a complete system. The rules of
international law cannot impinge upon State law unless they undergo the process of
transformation and be specifically adopted by, or incorporated into the State law, there
being no automatic application. To make a rule effective at the national level, each State
will determine its own mechanism. The national legislature may ‘'transform’ it into a rule
of national law, which will be applied by the courts as a rule of national or municipal law.
It is argued that unless there is a ‘transformation’ of the treaty into municipal law (i.e.,
legislation for implementing the treaty), it cannot be enforced in the municipal field.
Positivists perceive treaties as promises and municipal statutes as commands. To make
treaties binding municipally, their transformation into statute is formally and
substantively necessary.
But the theory has been criticized by monists on the ground that it presupposes the
consensual character of international law in contrast to the non-consensual nature of
municipal law. The distinction between treaties and statutes is merely of form and
procedure, but the real object of both is the same, i.e., to stipulate certain determinate
legal consequences for certain situations and in this sense treaties are commands in the
same way as are statutes. Hence, it is not correct to say that every treaty needs
transformation to be binding internally.
B. Delegation Theory
The critics of the transformation theory, who favour monism, maintain that there is no
need for international obligations to be transformed into rules of national law, and in case
of any apparent conflict between the two, the international rule prevails. The application
of rules of international law to the municipal sphere is a continuation of one single
process which starts with the creation and acceptance of international law rule by the
State. The constitutional rules of international law delegate to each State constitution the
right to determine the procedure and manner to make treaties effective at the municipal
level. The constitutional requirements of the State law are merely a part of the unitary
process of creating rules of law. In this respect, State enjoys complete sovereignty and
widest liberty of action and this process docs not impinge upon the sovereignty of the
State. The fact that national organs do not behave according to such rules indicates the
weakness of international law, but docs not invalidate the theory, since the State will
incur international responsibility where it permits violations of international legal rules to
occur.
However, there is no indication that either theory is perfect to encompass all the aspects
of doctrinal controversy surrounding the relationship between international law and
municipal law or has had a significant input on the national laws. Except as a shorthand
indication of the general approach of a particular State on the implementation or
application of international rules, these theories do not throw any light on the relationship
between international law and the municipal law. Practice of international tribunals and
municipal courts suggests that it is a mixture of international law supremacy, municipal
law supremacy and coordination of legal systems that exist.6 It is not correct to
compartmentalise States into ‘monist’ or ‘dualist’ groups,

__________________
6 Edward Collins (Ed.), International Law in a Changing World (Random House,
New York), 1970, p. 45; see also, S.K. Kapoor, International Law, 8th ed. (Central Book
Agency. Allahabad), 1990, p. 112.

since there are as many ways of giving effect to international law as there are national
legal systems. The constitution of a nation is the starting point that how the rules of
international law will be applied at the domestic level. Hence, the practice varies among
nations. Nevertheless, to get an exact view, each situation must be analysed by itself to
determine whether there will be primacy of international law or that of municipal law and
for that purpose, a consideration of the practice of the international tribunals and of State
courts becomes vital.
IV. MUNICIPAL LAW BEFORE INTERNATIONAL TRIBUNALS

Whenever a dispute comes before an international tribunal concerning the issue whether a
State is in breach of international law, it is normally expected that preference would be
given to the rules of international law over the municipal laws of the States involved in
the litigation. A State cannot give the municipal law as an excuse for its failure to observe
its international obligations. Article 13 of the Draft Declaration on Rights and Duties of
States lays down: ‘"Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke
provisions in its constitution, or its laws as an excuse for failure to perform this duty”.7
Arts. 27 and 46 of the 1969 Vienna Convention on Law of Treaties reaffirm this rule that
a State cannot invoke its municipal law for non-observance of treaty obligations.8
There is ample judicial and arbitral authority for the rule that a State cannot shelter
behind its municipal law to avoid its international obligations. The Alabama Claims
Arbitration (United State v. Great Britain)9 of 1872 is a well-known authority on this
matter. During the American civil war, a number of ships were built in England for
private buyers and it was well known that they were to be used as warships to attack the
federal maritime trade of the United States. These raiders, of which Alabama was the
most famous, did considerable damage to American shipping for which the United States
brought a claim for compensation before the Arbitral Tribunal alleging that Great Britain
had violated its obligations as a neutral State by allowing the construction and sailing to
occur within its jurisdiction for which it is liable under the so called “Three Rules of
Washington” that set out the duties for neutrals and were accepted by both the parties. In
its defence, Britain contended that it was constrained by its constitutional law to interfere
with the private construction concerned. The Tribunal rejected the British plea and
upheld the supremacy of international law. It observed that “the Government of Her
Britannic Majesty cannot justify itself for a failure in due diligence on the plea of
insufficiency of the legal means of action which it possessed”. In order to escape liability,
“a neutral government must take care ... that its municipal law shall prohibit acts
contravening neutrality”.10
__________________
7 II YhILC, 286 (1949).
8 Art. 27 of the Vienna Convention: “Internal law and observance of treaties - A
party may not invoke the provisions of its internal law as justification for its failure to
perform a treaty. This rule is without prejudice to Article 46.” Art. 46 states that a State
cannot invoke the “violation of a provision of its internal law” as a ground to invalidate

its consent to a treaty, unless “that violation was manifest and concerned a rule of its
internal law of fundamental importance.”
9 J.B. Moore, op. cit. 5.
10 Ibid., at p. 656; see also the Finnish Ships Arbitration, UN RIAA, Vol. 3, p. 1484.

It is only to be expected that a State which has contracted valid international obligations
would make such modification in its legislation or enact a new legislation as may be
necessary to carry out those obligations.11 A State quite often invokes municipal law
provisions as an excuse not so much to avoid international obligations but to counteract
its breach of duty complained by other States. International tribunals generally do not
declare national laws invalid merely because these laws or the way in which they have
been applied are inconsistent with international law. In the LaGrand case,12 the issue
before the International Court of Justice was the violation of Art. 36 of the Vienna
Convention on Consular Relations by the United States, which failed to give timely
notification to two German nationals of their right to consular protection.13 Despite the
Court’s provisional order asking the United States to “take all measures at its disposal” to
stay LaGrand’s execution until the case had been decided,14 he was executed as
scheduled. Later, arguing on the merits, Germany, inter alia, stated that the United States
constitutional rule of ‘procedural default’ (under which a procedural failing which had
not been raised in trial at the State level cannot be argued at the federal level) pleaded by
the United States, violated its international obligation under Art. 36 of the Vienna
Convention, which required the United States to give effect to the purposes for which the
rights of notification and consular access are intended. The Court, in rejecting the United
States contention that by pronouncing on the application of Art. 36, the Court was acting
as a ‘court of appeal of national criminal proceedings’, observed that the rule of
‘procedural default’ in itself does not violate Art. 36 of the Vienna Convention.
Occasionally, the tribunals come across cases which are either related to the
interpretation of municipal law15 or based totally on the municipal law concept.16 The
international tribunal in such cases may also take into account the rules of municipal law
to decide a dispute between States on the basis of international law. In the Serbian Loans
case17 and the Brazilian Loans case,18 the Permanent Court of International Justice
observed that while its main function was
__________________
11 See the Case of Exchange of Greek and Turkish Populations, PCIJ Rep., Series B,
No. 10, p. 20 (1925).
12 Germany y. United States of America, (Merits) (2001) ICJ Rep., p. 466.
13 Art. 36(1) provides that consular officers of the sending State shall be free to
communicate with its nationals and to have access to them; the competent authorities of
the receiving State shall, without delay, inform the consular post of the sending State if,
within its consular district, a national of that State is arrested or committed to prison or to
custody pending trial or is detained in any other manner; and consular officers shall have
the right to visit its national who is in prison, custody or detention, to converse and
correspond with him and to arrange for his legal representation.
14 LaGrand, (Provisional Measures), Order of 3 March 1999, (1999) ICJ Rep., p. 9.
15 For example, Brazilian Loans case (France v. Brazil) PCIJ Rep., Series A, No. 21, pp.
124-125 (1929).
16 For example, in Barcelona Traction Power and Light Co. case (Belgium v. Spain),
(1970) ICJ Rep., p.3, reliance was placed on the municipal law concept of a company,
i.e., that a company has a distinct personality from its shareholders, and in case of the

claim for loss suffered due to the international wrong done to the company, only the
company can bring an action and not the State of nationality of the shareholders.
17 Judgement No. 14, PCIJ Rep., Ser. A, No. 20 (1929).
18 Op. cit. 15. The question in this case was one of interpretation of certain Brazilian
Government loans, some bonds of which were held by French nationals. The loans were
governed by Brazilian law. The Court ruled that it had jurisdiction under Art. 38 to
decide such cases, related to the interpretation of municipal law rather than based on
international law.

to decide disputes between States on the basis of international law, it also has the
jurisdiction to determine the existence of any fact which, if established, would constitute
a breach of an international obligation. This jurisdiction includes questions of municipal
law. In such cases, the tribunal is obliged to obtain knowledge of the municipal law,
including the constitutional provisions or other State legislation and the decisions of the
State municipal courts, which will enable the tribunal to decide about the applicable rules
and their precise limits in the given case. The Court, however, made clear that it was not
entitled to undertake its own construction of national laws, with the danger of
contradicting rulings of national tribunals.19 The international tribunals also quite often
resort to municipal laws to ascertain whether a customary rule of international law has
evolved by concurrent and cumulative State practice.20
According primacy to international law in case of conflict between a State’s municipal
law and its international obligations, does not necessarily amount to invalidation of
municipal law rule, whose internal validity nevertheless remains intact though it may be
in breach of international obligation. But the municipal rule, in breach of a State’s
international obligations, does not impose a duty on other States to recognise the external
effects of an act under that rule, which is not in conformity with international law.21
V. NTERNATIONAL LAW WITHIN MUNICIPAL SPHERE

State practice regarding the implementation or application of the rules of international
law in the context of monism and dualism, i.e., whether they are automatically operative
or specific adoption is necessary, as well as the resolution of conflicts between
international law and municipal law by State courts, i.e., to what extent the rules of
international law are applied by them, would give an insight into the relationship between
the two systems. However, to have a vivid account of the State practice, distinction has
been made between customary and treaty rules of international law. For this, the State
practice of six states, i.e., the United Kingdom, the United States, France, Germany,
Russia and India, is discussed.
A. The United Kingdom

The United Kingdom docs not have a written constitution, but the Parliament enjoys the
supremacy in making or changing the law of the United Kingdom. The conclusion and
termination of treaties, and the conduct of foreign affairs is the prerogative of the Crown,
i.e., it is carried out by the government, which is accountable to the Parliament for the
conduct of foreign affairs.
__________________
19 Ibid.
20 Cf. S.S. Lotus case, PCIJ Rep., Series A, No. 10 (1927).
21 Cf. the Nottebohm case (Liechtenstein v. Guatemala) (1955) ICJ Rep., p. 4. The
Court upheld the right of Liechtenstein to grant nationality to Nottebohm, but this act of
Liechtenstein, which was not according to the general requirements of international law.
was not binding on Guatemala where Nottebohm had spent most of his li fe as opposed to
Liechtenstein with whom he had most tenuous connections. Liechtenstein action was in
contravention of the international requirement of “individual’s genuine connection with

the State”. The Court emphasized that the issue in the case was not dependent on the
legal system of Liechtenstein or on the domestic validity of Nottebohm’s naturalization.
The question was whether the grant of nationality by Liechtenstein produced
international legal effects which must be recognized by Guatemala. Ibid., p. 23.

1. Customary international law

The practice of British courts regarding the customary international law has undergone an
evolution since the eighteenth century when Sir William Blackstone propounded the
“Blackstonian” doctrine, generally known as the incorporation doctrine. According to
him, the law of nations ... is here adopted in its full extent by the common law, and is
held to be part of the law of the land”.22 The doctrine was applied by British courts in the
eighteenth century23 and the subsequent decisions clarified the position that the courts
would give effect to settled rules of international law as part of English law.24
However, the latter part of the nineteenth century saw a departure from the doctrine of
incorporation to the doctrine of transformation. In R v. Keyn (The Franconia's case),25 a
German ship collided with a British vessel less than three miles from the English coast,
thereby sinking the British vessel with the loss of one life. The German master of the
Franconia was charged for manslaughter. The question before the court was whether the
English Court had jurisdiction over such an incident occurring within the British
territorial waters. In its judgement, the court did not follow the incorporation doctrine and
held that English courts had no jurisdiction over crimes committed by foreigners within
the maritime belt extending to three miles from the British coast, although such a right
existed under customary international law. The rule was not applicable ex proprio vigore,
but it was for the Parliament to legislate. This decision of the court was subsequently
reversed by the Territorial Waters Jurisdiction Act, passed by the Parliament in 1878.
There was a partial return of the incorporation doctrine in the West Rand Gold Mining
Co. v. R,26 in which the court observed:
It is quite true that whatever has received the common consent of civilised nations must
have received the assent of our country ... and as such will be acknowledged and applied
by our municipal tribunals. But the expression ... that the law of nations forms part of the
law of England, ought not to be construed so as to include ... as to which there is no
evidence that Great Britain has ever assented, and a fortiori if they are contrary to the
principles of her laws as declared by her courts.27 (Italics added)
In the Chung Chi Cheng v. The King28 the Privy Council carved important qualifications
in incorporation doctrine. Lord Atkin observed:
[s]o far ... the courts of this country are concerned, international law has no validity save
in so far as its principles are accepted and adopted by our domestic law...
__________________
22 Commentaries, Book IV, Ch. 5, quoted in D.W. Greig, International Law, 2nd ed.
(Butterworths, London), 1976, p. 55.
23 Burnt v. Barbuit (1737) cases temp. Talbot 281; Triquet v. Bath (1764) 3 Burr.
1478, Lord Mensfield remarked that the “law of nations, in its full extent, was part of the
law of England”; Heathfield v. Chilton (1767) 4 Burr. 2015.
24 Emperor of Austria v. Day and Kissuth (1861) 2 Giff. 628.
25 (1876) 2 Ex. D. 63.
26 (1905 ) 2 KB 391.
27 Ibid., at p. 407.
28 (1939) AC 160.

On any judicial issue they seek to ascertain what the relevant rule is and having found it,
they will treat it as incorporated into the domestic law, so far as it is not inconsistent with
rules enacted by statutes or finally declared by their tribunals.29 (Italics added)
Under the current judicial practice on customary international law, the incorporation
doctrine does not find a blanket application.30 In a more recent case of R. v. Jones
(Margaret), once again the House of Lords reiterated that even if a crime is recognised in
customary international law and will be assimilated into the domestic law, but that will
not be automatically binding on the courts.31
Once a rule has been generally accepted by the international community, it will be
deemed to be part of the British law subject to the qualifications that:
1. Such a rule is not inconsistent with any British statute whether the statute was
earlier or later than the customary rule.32
2. If the highest court once determines the scope of such a rule, then it will be
binding on all the courts in Britain even though a new rule has emerged in its place
(doctrine of precedent or stare-decisis).
However, the scope of the latter qualification, i.e., the doctrine of stare decisis, has been
restricted by the later judicial decisions. In Trendtex Trading Corporations case, Shaw
L.J., in the majority view observed: “What is immutable is the principle of English law
that the law of nations (not what was the law of nations) must be applied in the courts of
England. The rule of stare decisis operates to preclude a court from overriding a decision
which binds it in regard to a particular rule of [international] law, it does not prevent a
court from applying a rule which did not exist when the earlier decision was made if the
new rule has had the effect in international law of extinguishing the old rule”.33 Lord
Denning found the ‘incorporation’ doctrine as correct and stated that when the rules of
customary international law change, English law also change and courts are justified in
applying the modern rules of international law.34
__________________
29 Ibid., at pp. 167-168.
30 In Thakrar v. Secretary of State for the Home Office (1974) QB 684 (C.A.), Lord
Denning clearly followed the transformation approach, but adopted the incorporation
approach in Trendtex Trading Corporation v. Central Bank of Nigeria (1977) QB 529
(C.A.). The doctrine of incorporation was also followed in J.H. Rayner (Mining Lane)
Ltd. v. Department of Trade and Industry, (1990) 2 AC 418, at p. 500.
31 [2007] lac 136 [HL], In Ex. v. Pinochet Ugarte (No. 3) [2003] 1 AC 147, the court
held that although State torture had long been an international crime in the highest sense
and therefore a crime universally in whatever territory it occurred, it was only with the
passing of Sec. 134 of the Criminal Justice Act 1988 that the English criminal courts
acquired jurisdiction over ‘international, that is to say, extra territorial torture.’
32 In Mortensen v. Peters (1906) 8 E (J) 93, the Court of Judiciary of Scotland gave
effect to Sea Fisheries Regulation (Scotland) Act, 1895, in contravention of the 10-mile
limit of the territorial waters in bays and estuaries under the customary international law,
where the Statute covered the distance of more than 70 miles in Moray Firth, and held the
appellant, a Danish subject, liable for contravening the Statute by otter trawling in the
area.

33 Trendtex Trading Corporation case, op. cit 30 at p. 578.

34 This approach was reaffirmed in Maclaine Watson v. Department of Trade and
Industry (1988) 3 WLR 1033.

In the application of these qualifications, if a rule of international law is violated, that

would be the concern of the executive in the domain of its international relations.
Apart from these two qualifications to the automatic adoption of customary international
law by British courts, the courts also deny the direct application of international law in
the matters pertaining to the following:
1. Acts of State, such as declaration of war or cessation of territory, irrespective of
the violation of international law.
2. The Crown’s prerogative, such as granting of recognition to States or
governments, or diplomatic status or immunity to certain persons, cannot be questioned
in courts, which are bound by a certificate or authoritative statement on behalf of the
executive, even if they are in contravention of the rules of international law.35
Notwithstanding the above exceptions, the British courts are generally inclined towards
giving effect to international law. This is evident in the practice of the courts through:
Harmonious Construction of the Statute: Where there is a conflict between the British
statute and the rule of international law, the courts construe the statute in such a way so as
not to go against the international law.36 But if the statute is otherwise clear and
unambiguous, it will be given effect, although the court may rule that the statute is in
breach of international law.37
Rule of Evidence: The courts take judicial notice of the rules of international law and
they need not to be proved through expert evidence.
The position of Prize courts, in the matter of application of international law is somewhat
different. Though they are municipal courts, they are not bound to give effect to
executive order if it conflicts with international law. These courts administer the
international law of prize. In the Zomora case,38 the Swedish vessel carrying a cargo of
copper from New York to Stockholm was stopped on April 8, 1915, by the British cruiser
and referred to the Prize Court as the Prize catch. Before the case was decided by the
Prize Court, interlocutory order was sought for the delivery of the copper (designated as
contraband) under Order XXIX, rule 1 of the Prize Court Rules 1914. The appellants
alleged that these rules are in violation of the law of nations. The Judicial Committee of
the Privy Council held that British Prize Court had to apply the international law
(customary and conventional) of prize even though it conflicted with an executive order
in Council. The Prize Court would, however, be bound by a British Statute.39
Whether a rule of international law is directly effective [in contrast with direct
applicability], so that an individual may rely on it as a source of rights at national level,
has been a moot question. In Bennett v. Horseferry Magistrates' Court, the accused was
abducted from South
__________________
35 On request from the court or from a party to litigation, on these matters, the
Foreign and Commonwealth Office issues certificates.
36 R v. Chief Immigration Officer, Heathrow Airport (1976) 3 All E.R. 843 at p.
847; James Buchanan and Co. Ltd. v. Babco Forwarding and Shipping (UK) Ltd. (1978)
AC 141; Vervaeke v. Smith (1981) 1 All E.R. 55.
37 Cf. Polites v. Commonwealth (1945) 70 CL 1 60 (decision of the High Court of
Australia).

38 (1916) 2 AC 77.
39 Ibid., at p. 93.

Africa with the collusion of its police. The House of Lords declined to exercise criminal
jurisdiction and stated that, “where the law enforcement agency responsible for bringing
a prosecution has only been enabled to do so by participating in violations of
international law and of the laws of another state to secure the presence of the accused
within the territorial jurisdiction of the court”, the court should take cognizance of that.40
2. Treaty practice
While it is possible to regard customary international law as part of English law, subject
to certain limitations, the position of treaty rules is quite different. The making of a treaty
(negotiation, signature and ratification) is the prerogative of the Crown and a treaty duly
ratified by the Crown is binding on Britain internationally; but to have internal effect, in
the sense of changing the existing law or to be a source of rights or obligations in
domestic law, the treaty requires enabling legislation by Parliament. This position on
treaties has been clarified by the House of Lords in Maclaine Watson v. Department of
Trade:
Treaties... are not self-executing. [A] treaty is not part of English law unless and until it
has been incorporated into the law by legislation. So far as individuals are concerned, it is
res inter aliosacta from which they cannot derive rights and by which they cannot be
deprived of rights or subjected to obligations....”41
Earlier in The Parlement Beige41 it was clearly established that a treaty cannot affect
private rights unless it has been made a part of British law by an Act of Parliament. In
this case, the steamship Parlement Beige, a Belgian ship carrying mail and commerce,
collided with steam-tug Daring, a British vessel, off Dover. It sought immunity against its
prosecution under the Anglo-Belgian Convention Regulating Communications by Post,
1876 between the two countries, claiming the Parlement Beige as a public ship of war.
The treaty was not legislated by Britain. The court at the first instance, did not grant
immunity, as the treaty on its own could not affect the private rights, and to do so, it
required to be legislated. The decision, though was reversed by the Court of Appeal on
the ground that the immunity sought was available at customary international law and
hence at common law, the decision of the court at the first instance, is still significant for
the proposition that the Crown, by entering into a treaty, cannot alter the law of
England.43
The point was further clarified in Attorney General for Canada v. Attorney General for
Ontario44 “that making of a treaty is an executive act, while the performance of its
obligations, if they entail alteration of the existing domestic law, requires legislative
action... Once the [obligations] are created, while they bind the State as against the other
contracting parties, Parliament may refuse to perform them and so leave the State in
default”. In JH Rayner v. Department of Trade and Industry,45 Lord Templeman stated:
__________________
40 (1993 ) 3 All ER 138 at 155.
41 (1989) 3 All E.R. 523 at pp. 544-545 (H.L.).
42 (187 8-79) UPD 129.
43 Ibid, at p. 154.
44 (193 7) AC 326.

45 J.H. Rayner (Mincing Lane) Ltd. v. Department of Trade and Industry (1990) 2
AC 418.

A treaty may be incorporated into or alter the laws of the United Kingdom by means of
legislation. Except to the extent that a treaty becomes incorporated into the laws of the
United Kingdom by statute, the courts of the United Kingdom have no power to enforce
treaty rights and obligations at the behest of a sovereign government or at the behest of a
private individual.
On the basis of judicial precedents as to treaty practice, the position can be summed up as
follows:
I . Treaties do not bind the British courts ipso facto. Legislation is required for creating
internal effects.
2. Treaties which (i) affect the private rights of the British subject, or (ii) involve
any modification of common law or statute law of England, or (iii) create additional
financial burden on the government exchequer for their implementation, or (iv) invest the
Crown with additional powers,46 should receive parliamentary approval through an Act
of Parliament and, if necessary, to bring legislative changes in the existing law.
3. Treaties, made subject to the approval of Parliament, for their application are
usually so approved in the form of a statute.
4. Treaties involving the cession of British territory must be approved by Parliament
through a statute.
5. Treaties relating to the belligerent rights of the Crown or informal, administrative
agreements, not involving the alteration of municipal law, do not require any legislation.
Where a treaty has been legislated, it will prevail over an earlier conflicting statute.47 But
where the treaty has not been legislated, it may be referred for the purposes of
interpretation of a conflicting statute. According to the decision in R v. Secretary of State
for Home Department, Ex-Parte Brind,48 it is an established law in England that a treaty
to which Britain is a party should be referred to and followed in the interpretation of an
ambiguous statute. However, in accordance with the dualist approach, it cannot prevail
over a clearly worded statute that contradicts it. The Brind case was concerned with the
conflict between Sec. 29(3), (British) Broadcasting Act, 1981, and Art. 10 of the 1950
European Convention on Human Rights that was not embodied in a British statute. The
appeal was dismissed and the court observed that the Convention does not have the effect
of law in England, but it has persuasive force in resolving ambiguities in the Act.49 This
position thus does not differ substantially from the British practice on customary
international law.
Where an Act is enacted by the Parliament in its own language to give effect to a treaty,
but the legislation is ambiguous, the treaty may be referred for construing the Act in a
manner which, in so far as possible, should comply with the terms of the treaty because
the prima facie
__________________
46 Cf. The Parlement Beige, op. cit. 42.
47 Ostimer v. Australian Mutual Provident Society (1959) 3 All E.R. 245 at p. 248.
4S (1991) 2 WLR 588 (H.L).
49 Before the enactment of the Human Rights Act 1998, a number of cases were
related to the United Kingdom’s obligations under the European Convention on Human
Rights (ECHR), which is still not incorporated by the Human Rights Act; hence

inconsistent legislation (whether earlier or later than the Act) remain valid. The courts
nevertheless tiy to interpret the Act to make it compatible with the Convention rights.

assumption is that Parliament does not intend to act in breach of its treaty obligations and
of international law.50
B. The United States

In the matter of customary international law, the United States practice is similar to the
British practice, and no specific incorporation is required by the Congress. The statement
made by Gray J. in the Paquett Habana case51 reflects the United States position on the
matter:
International law is part of our law, and must be ascertained and administered by the
Courts of Justice of appropriate jurisdiction.... For this purpose, where there is no treaty
and no controlling executive or legislative act or judicial decision, resort must be had to
the customs and usages of civilised nations....
In this case, the Supreme Court of the United States exempted the two small fishing
boats, Lola and Paquette Habana, from capture as prize of war by applying the customary
rule of international law. The boats were seized for violating the blockade off the coast of
Havana during the American-Spanish war. The Court stated:
This rule of international law is one which Prize Courts, administering the law of nations,
are bound to take judicial notice of, and to give effect to, in the absence of any treaty or
other public act of their own government in relation to the matter.52
The customary international law is applicable in the United States53 in the absence of (a)
executive or legislative act, or (b) judicial decision. Determination of international law by
the Supreme Court, including review of State laws on grounds of inconsistency with
international law, are binding on states and state courts. The courts would also be bound
by the Executive certificates in certain matters, such as recognition of governments or
States, or granting immunity from jurisdiction to governments or individuals.54 Where a
conflict arises between customary- rule of international law and a statute, in case of clear
and unambiguous language, the statute prevails, otherwise harmonious construction is
accorded.55 Under US judicial practice, courts give great weight to the views expressed
by the US government on questions of international law.
The modern view, however, is that customary international law in the United States is
federal law and its determination by the federal courts is binding on the state courts.56
International
____________________
50 See Salomon v. Commissioners of Customs and Excise (1967) 2 QB 116 (C.A.); the
court, in this case, was required to interpret an ambiguous provision in the Customs and
Excise Act. 1952, enacted by the Parliament in its own language, which intended to
implement the 1950 Convention on the Valuation of Goods for Customs Purposes.
51 175 US 677 at p. 700 (1900).
52 Ibid., at p. 708.
53 See United States v. Malekh, 190 F. Supp. 67 (1960).
54 In the Garcia-Miry. Meese (1986) 788 F. 2d 1446, because of the Attorney-
General’s decision (“controlling executive act”), the lengthy detention of illegal
immigrants was held not contrary to the US law although contrary to customary

international law.
55 See The Over the Top (1925) 5 F (2d) 842.
56 See Restatement of the Foreign Relations Law of the United States, Third (1987),
Vol. I, p. 91.

law is regarded as subject to the Constitution and the courts will not give effect to a rule
of international law which conflicts with the United States Constitution.57
2. Treaty practice
The United States treaty practice differs significantly from the British practice. According
to the American Constitution, the President has the power to make treaties with the
advice and consent of the Senate, provided two-thirds of the Senators present concur
(Art. II, Sec. 2). The Constitution also lays down (Art. VI, para. 2) that “all Treaties made
or which shall be made, under the Authority of the United States, shall be the Supreme
law of the land; and the Judges in every State shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding''. Thus, the Constitution
places treaties on an equal footing with federal statutes. In situations where an Act of
Congress and a treaty are in conflict, the later instrument will repeal the earlier so far as
the two are inconsistent.58 However, in Cook v. US,59 the United States Supreme Court
noted that “a treaty will not abrogate or modified by a later [federal] statute unless such
purpose on the part of the Congress has been clearly expressed”. If there is a conflict
between the Constitution and an international treaty, the former will prevail. But a treaty
will take precedence over state laws.60
In the case of US v. Palestine Liberation Organisation,61 the federal district court held
that statutes and treaties are the supreme law of the land and conflict between them must
be reconciled whenever possible. Where it cannot be resolved, the statute takes
precedence (which is later to the treaty) if the court can discern “the clearest of
expressions on the part of Congress to override the treaty obligation”. In this case, the
United States Government, on the basis of the Anti-Terrorism Act, 1987, closed down the
Observer Mission of the PLO in New York (The PLO was granted this status by the
United Nations General Assembly in 1974). This was found to be contrary to the United
States obligations under the United Nations Headquarters Agreement, 1947. The General
Assembly also termed the 1987 Act as inconsistent with the Headquarters Agreement.62
The United Nations Secretary General held that Headquarters Agreement takes
precedence over the United States domestic law on the basis that international law
prevails over municipal law. The International Court of Justice, in its advisory opinion of
April 26, 1988, ruled against the United States’ unilateral act to close down the
Mission.63 The district court Judge conceded that under the Anti-Terrorism Act, the
Congress had found the PLO to be a terrorist organisation and had prohibited its activities
within the United States. However, he also opined that the Congress had not meant to
supersede the United States’ international obligations under the Headquarters Agreement,
as there is always a presumption that Congress does not intend to override its treaty
obligations. However, in March 2008, in the matter related to Avena case, the Supreme
Court ruled that the decision
__________________
57 Tag v. Rogers (1959) 267 F (2d) 664.
58 Edye v. Robertson (1884) 112 US 580.
59 (193 3 ) 288 US 102 at pp. 119-120.

60 Missouri v. Holland (1920) 252 US 416; Asakura v. City of Seattle (1924) 265
US 332.
61 (1988) 695 F. Supp. 1456. at p. 1468.
62 UN G.A. Res. 42/230 of March 23, 1988.
63 The UN Headquarters Agreement case (1988) ICJ Rep., p. 12.

of the International Court of Justice64 directing the United States to give “review and
reconsideration” to the cases of 51 Mexican convicts on death row, while deserving
‘respectful consideration’, was not a binding domestic law and therefore could not be
used to overcome state procedural default rules that barred further post-conviction
challenges.65
In the United States practice, not all international agreements are the law of the land. A
distinction has been drawn by the courts between “self-executing” and “non-self-
executing” treaties. A self-executing treaty is one which, in the view of the court, does
not expressly or by its nature requires legislation to make it operative within the
municipal field. The non-self-executing treaties become applicable only after the consent
of the Congress through its adoption by a specific statute. Where an agreement is given
effect by a statute, such implementing legislation is regarded as US law rather than the
agreement. But it is not always easy to make a distinction between a self-executing treaty
and one which is not. In Sei Fujii v. State of California,66 the Supreme Court of
California laid down the intention of the parties as the judicial test to determine the nature
of the treaty. According to the Court:
A treaty ... does not automatically supersede local laws which are inconsistent with it
unless the treaty provisions are self-executing.... In determining whether a treaty is self-
executing, courts look to the intent of the signatory parties as manifested by the language
of the instrument, and if the instrument is uncertain, recourse may be had to the
circumstances surrounding its execution....
The issue is this case was whether the United Nations Charter provisions on human rights
and fundamental freedoms are self-executing. The Court observed that provisions relied
upon by the plaintiff, i.e., the Preamble and Arts. 1, 55 and 56 of the Charter, are non-
self-executing, and legislation would be necessary to give them the declared effect.
To avoid the problem of distinguishing between self-executing and non-self-executing
treaties, in 1952, the Bricker Amendment was proposed to prevent treaties having internal
effects in the absence of enabling legislation (i.e., making all treaties non-self-executing).
The Amendment, however, did not succeed, but there is a well-entrenched judicial
practice that a treaty requiring the appropriation of money for its enforcement would not
be internally effective without enabling legislation.67
In addition to treaties, there are “executive agreements”, made by the President under his
constitutional power to regulate foreign affairs or with the approval of the Congress as
expressed in the Statute (e.g., under the Trade Act). These agreements are endowed with
all the attributes of formal treaties and bind the United States internationally.
Constitutionally also, they have been treated at par with treaties by the courts, i.e., they
are the law of the land.68 Nevertheless,
__________________
64 Case Concerning Avena and Other Mexican Nationals (Mexico v. United States
of America), (2004) ICJ Rep., p. 12. The Court noted that the ‘procedural default’ rule
has not been revised to prevent its application in cases involving the breaches of the
Vienna Convention on Consular Relations, 1963.
65 Medellin v. Texas, 552 US (2008). After Arenas case, in March 2005, the United
States pulled out of the Optional Protocol to the Convention, which allows the ICJ to

have compulsory jurisdiction over disputes arising under the Convention. The withdrawal
from the Protocol is at variance with the long-established practices followed by nations.
66 242 P. 2d 617 at p. 620 (1952).
67 Aerovias Interamericanas de Panama v. Dade Commissioners, 197 F. Supp. 230
(1961).
68 US v. Pink, 315 US 203 (1942); US v. Belmont, 301 US 324 (1937).

whereas subsequent federal legislation will override an executive agreement, it is

doubtful whether an executive agreement will supersede the prior federal legislation.69
The US v. Capps70 and Seery v. US71 support the proposition that an executive
agreement cannot alter a prior inconsistent statutory provision. But in Hawaii v. Hop,72
the Hawaiian court applied a subsequent executive agreement in preference to a previous
inconsistent law of the territory.
With a view to restricting the President’s power to enter into “executive agreements”,
without resorting to the constitutional treaty-making procedure (Art. II, Sec. 2), and
thereby bypassing the hostile Senate, the Congress passed a legislation in 1972, requiring
the transmission of all international agreements other than treaties to Congress within 60
days of their execution.73
It has, however, remains doubtful that whether an individual rely on a rule of
international law as a source of right before national courts. In Breard v. Pruett, which
was identical to LaGrand and Avena cases above, involving a national of Paraguay
convicted of murder by a Virgina court in the United States, the Paraguay brought the
case before the ICJ for the violation of Article 36 of the Vienna Convention on the
Consular Relations. To the Interim order of the ICJ to stay the execution of Breard, the
Supreme Court of the US held on the petition of the convict that, “neither the text nor the
history of the Vienna convention clearly provides a foreign nation a private right of
action in the United States courts to set aside a criminal conviction and sentence for
violations of consular notification provisions”.74 In US v. Alvarez-Machain, the Mexican
national Alvarez-Machain was forcibly abducted from Mexico by the US Drugs
Enforcement Agency, which he challenged as in violation of customary international law.
The US Supreme Court held that the abduction was in violation of general international
law but this does not give the defendant a free-standing right to contest the jurisdiction.75
C. European States - Germany and France

Like the United Kingdom and the United States practice, customary rules of international
law are part of internal law in many European countries and judicially applied provided
they do not conflict with the existing municipal law.76 Only in a few States, the
municipal courts apply customary rules of international law to the extent of overriding
the municipal statute or judge- made law in case of conflict. An increasing number of
States have incorporated provisions about the implementation of international law in their
constitutions. Article 25 of the German Basic Law lays down that general rules of public
international law shall form part of the federal law
__________________
London), 2010. p. 86
70 2 04 F. 2d 655 (1953).
71 127 F. Supp. 60 i (1955).
72 41 Hawaii 565 (1957).
73 AJIL pp. 125-126 (1973).
4 134 F.3d 615; 1 i8 ILR 23. The petition was rejected by a majority of six to three and
Breard was executed despite the ICJ's order.

75 (1992) 112 S C 2188.

76 I. Brownlie, Principles of Public International Law, 4th ed. (Oxford University
Press, The Oxford), 1990, p. 50. The countries are France, Belgium, Switzerland and
Germany.

and shall take precedence over the municipal laws and directly create rights and duties for
inhabitants. However, Art. 25 does not enable international law to prevail over
fundamental provisions of the Basic Law.
So far as treaties are concerned, many constitutions have clearly laid down that treaties
made in accordance with the constitutional provisions are binding internally without any
specific act of incorporation. Under the French Constitution, 1958, the international law
is treated as part of the law of France. Article 52 enables the President to negotiate and
ratify treaties. Article 53 names treaties which require ratification by law; and a treaty of
cession can validly be concluded with the consent of the population affected.77 Treaties
have been accorded authority superior to that of laws both in judicial and administrative
tribunals (Art. 55) and they will be applied even if in conflict with municipal law prior or
later in time.78 But if a treaty is in conflict with the Constitution, the Constitution will
prevail. Authorisation to ratify such a treaty may be accorded only after the revision of
the Constitution (Art. 54).
Art. 25 of the German Basic Law, on the other hand, does not confer supremacy to
treaties over municipal law. Germany also maintains the difference between self-
executing and non-self-executing treaties. Treaties which regulate the political relations
of Germany or refer to German law shall require the consent in the form of federal law
(Art. 59). In the Netherlands, Article 66 of the Constitution provides for the supremacy of
treaties to which the Netherlands is a party over prior or subsequent national law, if the
treaty has been approved by the States —general and the Council of State. The treaties
and resolutions of international organisations become binding only after they are
published (Art. 93). Under the Greek Constitution (of June 11, 1975), however,
customary rules of international law as well as conventions are the integral part of the
Greek Law and prevail over any contrary provisions of law (Art. 28(1)). But treaties
relating to commerce, taxation, economic cooperation, and participation in international
organisations shall have no force without a sanction by a law of Parliament.79
Thus, it can generally be stated that the European nations accord supremacy to
international law through constitutional provisions. Nevertheless, they support the
positivist approach that to be binding municipally the international law need to be
specifically adopted by the municipal law as laid down in their constitutions.
D. Russia
Under Art. 15.4 of the 1993 Constitution of Russia, the generally recognised principles
and norms of international law and treaties of the Russian Federation constitute part of
Russian
__________________
77 Article 53 provides: “(1) Peace treaties, commercial treaties, treaties or
agreements relating to international organisation, those that imply a commitment for the
finances of the State, those that modify provisions of a legal nature, those relating to the
status of persons, those that call for the cession, exchange or addition of territory may be
ratified or approved only by a law..., (3) No cession, no exchange and no addition of
territory shall be valid without the consent of the population concerned

78 Art. 55 provides that treaties duly ratified have, after publication, an authority
superior to legislation, not only earlier but later in time.
79 Kapoor, op. cit. 6, p.115; A.A. Fatouros, International law in the new Greek
Constitution, 70 AJIL 492 (1976).

legal system. If an international treaty of Russia conflicts with any law, the rules of
international treaty will apply. Thus, the Constitution gives clear priority to both
customary international law and treaties in force for Russia over both earlier and later
national laws. Russian courts are increasingly applying principles of international law
directly, particularly on human rights. But the international law does not get priority over
the Russian Constitution. The Constitutional Court can review the compatibility with the
Constitution of any treaty not yet in force for Russia.
Power to conclude treaties rests with the President of Russia (Art. 86). Article 106
provides for both Chambers of Parliament (the Duma and the Federal Council) to give
consent to treaties by federal law. The meaning of this provision is not very clear. But to
have the binding force in Russian law, a treaty needs to be published.80
E. Indian Practice
The Constitution of India, adopted on January 26, 1950, have certain provisions with
direct bearing on international law. The important provision is Art. 51(c) which reads:
“The state shall endeavour to ... (c) foster respect for international law and treaty
obligations in the dealings of organised people with one another....” Reference of the
words “international law” and “treaty obligations” implies that the former refers to
customary international law.81 But this interpretation does not make international law
(nor the treaties) part of internal law in the sense of “incorporation” or “Blackstonian”
doctrine. Since Art. 51 falls under part IV of the Constitution (Directive Principles of
State Policy), the provision is not: binding on the courts or enforceable by any court,
though the directive principles are fundamental in the governance of the country (Art.
37). The government is thus committed to foster respect for international law and make
laws in furtherance of that.82 But Art. 51(c) is too general and no conclusion can be
drawn from the provision itself as to how far rules of international law shall be applied by
the courts. Article 372(1), on the other hand, provides:
Notwithstanding the repeal by this Constitution of the enactments referred to in Art. 395
but subject to other provisions of the Constitution all the laws in force in the territory of
India immediately before the commencement of this Constitution shall continue in force
therein until altered or repealed or amended by a competent Legislature or other
competent authority.
__________________
80 Eileen Denza, The Relationship Between International and National Law, in
Malcolm D. Evans (Ed.) International Law 423 at 432 (2nd edn., Oxford University
Press) 2006.
81 This interpretation is given by C.H. Alexandrowicz, International law in India,
ICLQ, p. 252 (1952); M.K. Nawaz, International law in the contemporary practice of
India: some perspectives. Proc. ASIL, 275 at p. 278 (1963).
82 The view has been expressed that calling upon the State to foster respect for
international law and treaties has strengthened the common law principle that
international law is a part of the law’ of the land, S.K. Agarwala, India’s contribution to
the development of international law - role of Indian Courts, in Asian States and

Development of International Law (R.P. Anand (Ed.), Vikas Publishing House, Delhi), p.
73, 1977.

Before the adoption of the Constitution, the British doctrine of incorporation with certain
qualifications as prevailing in Britain was followed in India. This practice still continues
in India by virtue of Art. 372(1) of the Constitution83 as is evident in the judicial
practice.
The case of Krishna Sharma v. The State of West Bengal84 reflects the true Indian
position regarding the enforceability of international law at the municipal level. The
Calcutta High Court stated that the Indian courts would apply rules of internal law which
include: (a) the Constitution of India, (b) the statutes enacted by the Parliament, and (c)
statutes enacted by state legislatures (thus, leaving outside the judge-made law). It
observed:
If the [Indian statutes are] in conflict with any principle of international law ... municipal
courts of India have got to obey the laws passed by the Legislature of the country to
which they owe their allegiance. In interpreting and applying municipal law, the courts
will try to adopt such a construction as will not bring into conflict with rights and
obligations deducible from rules of international law. If such rules or rights and
obligations are inconsistent with the positive regulations of municipal law; the municipal
courts cannot override the latter.85
In A.D.M. Jabalpur v. Shukla,86 the issue before the Supreme Court was that since the
Universal Declaration of Human Rights has acquired the force of customary international
law is binding on India and thus enforceable by the Court. The Court rejected the
argument and held, “Nothing which conflicts with the provisions of our Constitution
could be enforced here under any disguise”.87
In Gramophone Company of India v. Birendra Bahadur Pandey,88 the Supreme Court
accepted the binding force of customary international law, but observed:
The Comity of Nations requires that rules of international law may be accommodated in
the municipal law even without express legislative sanction with Acts of Parliament. But
when they do run into ... conflict, the sovereignty and the integrity of the Republic and
the supremacy of the constituted legislatures in making the laws may not be subjected to
external rules ... The doctrine of incorporation also recognises the position that the rules
of international law are incorporated into national law and considered to be part of the
national law unless they are in conflict with an Act of Parliament. Comity of Nations or
no, municipal law must prevail in case of conflict. National courts cannot say “yes’" if
Parliament has said no to a principle of international law. National courts will endorse
international law but not if it conflicts with national law... But the [national] courts are
under an obligation within legitimate limits, so to interpret the municipal statute as to
avoid confrontation with the comity of nations or the well established principles of
international law. But if conflict is inevitable, the latter must yield.89
The case was related to the importation of pirated audio cassettes from Singapore
destined for Kathmandu, which landed at Calcutta port and were awaiting dispatch to
Nepal when
__________________
83 T.K. Varred v. State of Travancore-Cochin, AIR 1956 SC 142.
84 AIR 1954 Cal. 591.

S5 Ibid. The Assam High Court held similarly in Maharaja Sikrani Kishore of
Tripura v. Province of Assam, AIR 1976 SC 1207.
86 AIR 1976 SC 1207.
87 Ibid., at p. 1291. Justice H.R. Khanna, in his dissenting judgement also remarked
that if there is a conflict between municipal law and international law, the courts shall
give effect to municipal law.
88 AIR 1984 SC 667.
89 Ibid., at p. 671.

it was found that they were pirated. On an application by the appellant to the Registrar of
Copyrights under Sec. 53 of the Copyright Act, 1957, and Sec. 11 of the Customs Act,
1962, cassettes were confiscated. The appellant company brought the case to restrain
their onward transmission to Nepal. Defendants contended, among others, that there is no
infringement of the Copyright Act, because there was no importation in the local market,
as envisaged by the Act. The Court, by giving the liberal construction to the word
“import” in Art. 53 of the Copyright Act, which incorporated the Berne Convention on
Copyright, 1886, gave the judgment in favour of the appellant. The High Court earlier, on
the basis of treaties with Nepal, did not find that there was any infringement of the said
Acts when the goods entered India en-route to Nepal. The High Court, however,
observed: “Though treaty may not be binding for construction of statute, it may be used
to clarify the expression in statute in case of doubt or two meanings”.90
In PUCL v. Union of India,91 the Court observed: ‘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 be incorporated in the domestic law.’ In Vellore Citizens’ Welfare
Forum v. Union of India, the Court came very close to accepting the ‘incorporation
doctrine’ in the matter of environmental law - ‘Precautionary Principle’ and ‘Polluter
Pays Principle’ as part of domestic law by stating that, “once these principles are
accepted as part of Customary International law there would be no difficulty in accepting
them as part of the domestic law”.92
Thus, it is a well-settled practice in India that the courts apply international law rules to
the extent they are not inconsistent with the municipal law and are not overridden by
clear rules of the domestic law.93 Generally, the tendency is to give a harmonious
construction to the domestic law so as to make the rule of international law effective,
because the presumption is that the legislature does not intend to violate its international
obligation.94 The courts are bound by the executive statements in matters of conflict
between the customary rules of international law, the extent of national territory and
recognition of a foreign power or a State.95 There is no support for the doctrine of
incorporation in the Constitution of India, except finding its basis in Art. 372, though
Article has not been referred by the Court in its judgements. There is also no judicial
authority on the issue that whether the customary international law will be binding where
there is no controlling statute, executive decision or a treaty.
__________________
90 Birendra Bahadur Pandey v. Gramophone Company of India, AIR 1984 Cal. 69 at
p. 77.
91 AIR 1997 SC 568. In Pratap Singh v. State of Jharkhand & Another, (2005) 3
SCC 551, the issue was the reference to the UN Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 in the interpretation of the Juvenile Justice Act,
2000. The Court stated that “principles of international law whenever applicable operate
as a statutory implication”.
92 (1996) 5 SCC 547.
93 D.D. Basu, Shorter Constitution of India, (12th ed., Prentice-Hall of India, New
Delhi), 1996, p. 327.

94 Transmission Corporation of A. P. v. Ch. Prahhakar & Ors. 26 May 2004 [ if two

construction of the municipal statute are possible, the court will lean towards
‘harmonious construction’]; Mirza Ali Akbar Kashani v. United Arab Republic, AIR
1966 SC 230; Raja Harminder Singh v. Commissioner of Income Tax, AIR 1972 SC 202.
95 Province of West Bengal v. Midnapore Zamindary Co. Ltd. (1949) 54 C.W.N. p.
677.

2. Treaty practice
The Constitution of India does not include any clear direction on treaties as found in the
United States and French Constitutions. It, however, follows the British approach,
namely, that treaties are not a part of internal law unless specifically so adopted. But
unlike Britain, India has a written constitution and it contains numerous provisions which
have bearing on treaty making and treaty implementation in India. The relevant
provisions are Arts. 51, 53, 73, 77, 246 read along with Entries 10, 13 and particularly 14
of List I of the Seventh Schedule (The Union List), as well as Art. 253. In accordance
with these provisions, the Parliament has the exclusive power to legislate in the realm of
treaties, i.e., the making of treaties and their implementation. But the Parliament has not
yet legislated; it is instructive, therefore, to refer to the Indian practice, as reflected in the
constitutional provisions and the judicial precedents.
Treaty making is an “executive act”, exercised by the President by virtue of Art. 53(1) of
the Constitution, which lays down: “The executive power of the Union shall be vested in
the President and shall be exercised by him cither directly or through officers subordinate
to him in accordance with this Constitution”. Art. 73(1) states: “Subject to the provisions
of this Constitution, the executive power of the Union shall extend: (a) to the matters with
respect to which Parliament has power to make laws; and (b) to the exercise of such
rights, authority and jurisdiction as are exercisable by the Government of India by virtue
of any agreement or treaty....”
It is not clause (b), but clause (a), read along with Entries 10 and 14 of the Union List,
which sets the limits of the treaty-making power of the Executive. Entry 14 relates to
“entering into treaties and agreements with foreign countries and implementing of
treaties, agreements and conventions with foreign countries”. Entry 10 is concerned with
“foreign affairs: all matters which bring the Union into relation with any foreign
country”. But the treaty-making power has to be exercised “in accordance with the
Constitution” (Art. 53). Article 246 empowers the Parliament to legislate on Entry 14 (of
the Union List), and until it does so, the President’s treaty-making power remains
unfettered by any “internal constitutional restrictions”.96 Hence, the executive will be
very much within its power to bind India internationally under a valid treaty, without
referring to the Parliament, or require legislation sanctioning money expenditure, or
require a change in existing laws for the implementation of the treaty obligations of the
Union. Thus, the Parliament has no share in treaty making comparable to the United
States Senate. The British Constitutional position in the realm of treaty law and
procedure, as described in the Privy Council judgment in Attorney General for Canada v.
Attorney General for Ontario is reflective of the Indian position: “Parliament, no doubt,
has a constitutional control over the executive but it cannot be disputed that the creation
of the obligations undertaken in treaties and the assent to their form and quality are the
function of the executive alone”.97 (Italics added)
The President can validly exercise his treaty-making power without an authorising
legislation of the Parliament. In Union of India v. Manmull Jain,98 where the validity of
the treaty relating
__________________

96 Kaye Holloway, Modern Trends in Treaty Law (Oceana Publications. Dobbs

Ferry), 1967, pp. 195-196.
97 Op. cit 44.
98 AIR 1954 Cal., p. 615.

to the transfer of the Chandemagore. a former French possession, without the prior
parliamentary legislation was questioned, the court observed:
Making a treaty is an executive act and not a legislative act. Legislation may he and is
often required to give effect to the terms of a treaty. Thus, if a treaty, say, provides for
payment of a foreign power, legislation may be necessary before the money can be spent,
but the treaty is complete without the legislation.... The President makes a treaty in
exercise of his executive power and no Court of law in India can question its validity.99
The Supreme Court has clearly laid down that for the exercise of the executive power (of
which treaty making is one), under Art. 73, the Union legislation is not a pre-
requisite.100 In Nirmal Bose v. Union of India,101 the Court held that the Union
Government has the right by executive action to enter into treaties and agreements with
foreign countries.
On the other hand, in the matter of implementation of treaties, the Parliament has the
exclusive power to legislate in order to give effect to international agreements internally,
even though the subject matter of the treaty pertains to the State List of the Seventh
Schedule (Art. 245). Article 253 reads:
... Parliament has power to make any law for the whole or any part of the territory of
India for implementing any treaty, agreement or convention with any other country or
countries or any decision made at any international conference, association or other body.
But despite this provision, two views are in current about the enforcement of treaties at
the municipal level. According to one view, treaties shall not be binding upon courts
unless implemented by legislation.102 On the other hand, it has been contended that not
all treaties require legislation for implementation and it is only treaties affecting private
rights that must be enacted by legislation to become enforceable.103
However, judicial authority predominantly supports the first viewpoint. In Jolly George
Vergese v. Bank of Cochin,104 Krishna Iyer J. asserted that “the positive commitment of
the States Parties ignites legislative action at home but does not automatically make the
Covenant (International Covenant on Civil and Political Rights) an enforceable part of
the corpus juris of India”. In Birma v. State of Rajasthan,105 the Court made a general
statement supportive of the former point of view, “Treaties which are part of international
law do not form part of the law of the land unless expressly made so by the legislative
authority”. In Shiv Kumar Sharma and others v. Union of India,106 the Delhi High Court
observed: “In India, treaties do not have the force of law and consequently obligations
arising therefrom will not be enforceable in municipal courts unless backed by
legislation”.
__________________
99 Ibid., at p. 616.
100 Ramjawaya Kapur v. State of Punjab, AIR 1955 SC 549; Jayantilal v. Rana, AIR
1964 SC 648.
101 AIR 1959 Cal. 506.
102 This view has been advanced by Basu who states: ‘'No treaty which has not been
implemented by legislation shall be binding on municipal courts”, see op. cit. 93.
103 C.H. Alexandrowicz, op. cit. 81.
104 AIR 1980 SC 470 at p. 474.

105 AIR 1951 Raj. 127; see also, Nanka v. Government of Rajasthan, AIR 1951 Raj.,
153.
106 AIR 1968 Delhi 643; see also Motilal v. U.P Government, AIR 1951 All 257;
Nirmal v. Union of India, AIR 1959 Cal. 506.

In State of Madras v. G.G. Menon,107 the Supreme Court had gone to the extent of
holding that the Indian Extradition Act, 1903, based on Fugitive Offenders Act, 1881 of
British Parliament has no force under Art. 372 of the Indian Constitution. The British Act
can be binding on India if appropriate changes are incorporated into an Act of Indian
Parliament, by enacting an Indian Fugitive Offenders Act. After the coming into force of
the Indian Constitution, extradition arrangements based on the 1881 Act will not justify
an extradition unless appropriate legislation is passed by the Indian Parliament.108 In this
case, Mr. and Mrs. Menon were advocates in Singapore (then a British colony). Mrs.
Menon had also served as a member of the Legislative Council of Singapore. They came
to India in 1952. The Colonial Secretary sought their extradition for the alleged breach of
trust and certain other charges against them according to the law of Singapore. The Court
rejected the application for extradition on the grounds already specified.
On the other hand, in Maganbhai Ishwarbhai Patel v. Union of India,109 Shah, J., in his
separate opinion observed that:
The obligations arising under the agreements or treaties are not by their own force
binding on Indian nationals. The power to legislate in respect of treaties lies with the
Parliament under Entries 10 and 14 of the Union List. But making of law under that
authority is necessary when (he treaty or agreement operates to restrict the rights of
citizens or others or modifies the laws of the Stale. If the rights of the citizens or others
which are justiciable are not affected, no legislative measure is needed to give effect to
the agreement or treaty”. (Italics added)
This approach of Shah, J. has put the treaties into two categories: self-executing and non-
self- executing, akin to the American approach. But preponderance of judicial authority
upholds the other approach.
The cession of Indian territory, under a treaty, cannot be effected by simple legislation of
the Parliament alone, but an amendment of the Constitution under Art. 368 is required. In
the In re. Berubari Union case (called as the first Berubari case),110 the issue was related
to the legislative measures required to give effect to the Indo-Pakistan Agreement of
November 10, 1958, involving the division of Berubari Union No. 12 and exchange of
old Cooch-Bihar enclaves under the sovereignty of India. The Supreme Court, in its
advisory opinion (matter was referred to it under Art. 143(1) of the Constitution)
observed that the Agreement amounted to cession of Indian territory, which can be
effected by an amendment of the Constitution.111 This point was further strengthened in
the second Berubari Union case, where the territory involved was de jure Pakistan’s
territory awarded to it under the Radcliffe Award, but de facto was with
________________________
107 AIR 1954 SC 517.
108 But in Rosaline George v. Union of India, (1994) 2 SCC 80, the absence of
legislation of the treaty did not come in the way as the court observed that India is
unequivocally committed to honour its international obligations arising out of the 1931
treaty with the United States under the India Independence (International Agreements)
order, 1947.
109 AIR 1969 SC 783 at p. 807.
110 AIR I960 SC S45.

111 Parliament passed the IX Amendment Act, I960, to give effect to the transfer of
Berubari and other enclaves as suggested by the Supreme Court in its advisory opinion.
However, the Privy Council in 1876, in Damodhar (Gordhan v. Deoram Kanji (63 IA 102
(PC)) held the cession of territory by the Crown without the assent of Parliament as valid.

India. The Court observed that in this case no cession of Indian territory is involved but it
is only to restore Pakistan what belonged to it and hence no legislation was needed.112
In Maganbhai Ishwarbhai Patel,113 the petitioners sought to restrain the Indian
Government from transferring some territory of Rann of Kutch to Pakistan, by giving
effect to arbitral award, without the approval of Parliament. The Supreme Court, in the
course of its judgment, distinguished this case from the Berubari Union. The Maganbhai
case was concerned with disputed boundaries, but Berubari Union ease dealt with the
transfer of de facto and de jure Indian territory. According to the Court, the Kutch Award,
rendered by the arbitral tribunal (in 1968), was an operative treaty which did not require
legislation. M. Hidayatullah, CJ observed:
Ordinarily an adjustment of a boundary which International Law regards as valid between
two nations should be recognised by the courts and the implementation thereof can
always be with the Executive unless a clear case of cession is involved when
Parliamentary intercession can be expected and should be held....114
About the self-executive nature of the award, the Court observed:
When a treaty or award after arbitration comes into existence it has to be implemented
and this can only be if all the three branches of the Government to wit the legislature, the
Executive and the Judiciary, or any one of them, possesses the power to implement it....
In some jurisdictions, the treaty or the compromise read with the Award acquires full
effect automatically in the municipal law... Such treaties and awards are self-executing.
Legislation may nevertheless be passed in aid of implementation but is usually not
necessary.115
In Union of India v. Sukumar Sengupta, the Government of India leased in perpetuity
“Teen Bigha” connecting Bangladesh enclaves of Dahagram and Angerpota, surrounded
by Indian territory, with Panbari Monza of Bangladesh in accordance with 1974 and 1982
agreements between India and Bangladesh, so as to enable Bangladesh to exercise her
sovereignty over those enclaves. The Court held that the implementation of these
agreements, as far as “Teen Bigha” was concerned, did not amount to cession of the said
territory or transfer of sovereignty in respect of the same and did not require any
constitutional amendment.116
If a treaty which has not been implemented internally through legislation conflicts with a
municipal statute, the statute will prevail. In Jolly George Vergese v. Bank of Cochin,
there was a conflict between Art. 11 of the International Covenant on Civil and Political
Rights to which India was a party (but did not legislate) and Sec. 51 (Proviso), Order 21,
Rule 39 of the Civil Procedure Code. It was held that no right in favour of a private
person can flow from the treaty or agreement between the two high contracting parties.
International conventional
__________________
112 Ram Kishore Sen and others v. Union of India, AIR 1966 SC 644. The writ
petitions challenging the transfer of Berubari Union for the alleged violation of
right of property under Art. 32, were dismissed by the Supreme Court in Union of
India v. Sudhansu, AIR 1971 SC 1594. The Court held cession of Indian territory
to a foreign State does not bring about a transfer of ownership rights so as to
attract the operation of Art. 32(2) of the Constitution.

113 See op. cit. 109.

114 Ibid., at p. 798.
115 Ibid., at p. 794.
116 AIR 1990 SC 1692 at pp. 1698, 1702 and 1704.

law must go through the process of transformation into the municipal law before the
international treaty can become an internal law in India.117
In Civil Rights Vigilance Committee v. Union of India,118 it was held similarly. The
issue before the court was to ban the scheduled visit of M.C.C. Cricket team, consisting
of two players, Boycott and Cook who were alleged to have links with South Africa
which practised the policy of Apartheid. The Civil Rights Committee contended that
permission granted to them was in violation of India’s obligations under the Gleneagles
Accord of 1977, between Commonwealth countries. While dismissing the petitions, the
court stated that India’s:
... obligations under the Gleneagles Accord and obligations attached to its membership of
the United Nations, cannot be enforced at the instance of citizens of this country or
associations of such citizens, by courts in India, unless such obligations are made part of
the law of this country by means of appropriate legislation.
The Court also observed that “in the absence of such law, the Court cannot also enforce
obedience of the Government of India to its treaty obligations with foreign countries”.119
But more recently, the Supreme Court has resorted to international treaties, which are
ratified by India but not legislated, in the interpretation of the constitutional and statutory
provisions, or in the absence of contrary legislative provisions, and thus making them
part of the domestic law. This trend is particularly evident in the human rights treaties. In
Vishaka v. State of Rajasthan,120 the issue before the Supreme Court was regarding
‘sexual harassment’ of women at the workplace. The Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW) and the Resolution of the Fourth
World Conference on Women were relied upon by the court to construe the nature and
ambit of constitutional guarantee of gender equality. The Court observed:121
In the absence of domestic law occupying the field ... the international conventions and
norms are significant for the purpose of interpretation of the guarantee of gender equality
in the Constitution.... [a]ny international convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into these provisions to
enlarge the meaning and content thereof, to promote the object of the constitutional
guarantee.
The Court stated that because of the ratification of these conventions, they create
‘legitimate expectations’ of their observance in the absence of contrary legislative
provisions.
This approach of the Supreme Court has diminished the distinction between the rules of
customary international law and international conventions to which India is a party. The
courts in India may enforce treaties which are not inconsistent with the Indian law or
when there is a gap in the law.
However, principles of international law, treaties, conventions will be used in the
interpretation of municipal law where the terms of any legislation are not clear or capable
of
__________________
117 Op. cit. 104, at p. 473.
118 AIR 1983 Karn. 85.
119 Ibid., at p. 89.

120 (1997) 6 SCC 241. In Apparel Export Promotion Council v. A.K. Chopa, (1999) 3
SCC 759, it was similarly held.
121 Ibid, at 248-9, 251. The court relied on the concept of ‘legitimate expectations’.
The same approach was taken in many subsequent cases - PUCL v. Union of India,
(1997) 3 SCC 433, Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC
759.

having more than one meaning; courts will rely upon the meaning which is in consonance
with international treaties or instruments.122 A subsequent ratification of international
treaties will not render the existing municipal laws ultra vires of those treaties in case of
inconsistency.123
Thus, the treaty practice in India can be summed up as follows:
1. The Union Executive has the unfettered authority to enter into treaties and agreements
with foreign countries, but the power is to be exercised in accordance with the
Constitution.
2. For the implementation of a treaty, parliamentary assent through an enabling Act
is necessary where treaty: (i) affects the rights of Indian citizens, or (ii) modifies the laws
of the State (Maganbhai s case), or (iii) creates financial obligations for the
Government.124
3. Treaties involving the cession of Indian territory can only be effected through a
constitutional amendment. However, no parliamentary sanction in the form of legislation
is required to give effect to treaties relating to boundary settlement.
4. Treaties in conflict with Part III of the Constitution (Fundamental Rights) shall be
“null and void” (inferred from Art. 13 of the Constitution) and hence cannot be enforced.
Similarly, assurances contained in international agreements will not be justiciable in the
municipal courts unless made part of the law of the land by legislative incorporation.125
5. If a treaty conflicts with a municipal statute, the statute will prevail.
The practice of States on the relationship between international law and municipal law, as
revealed in the above discussion, is divergent. Whereas the customary international law is
generally considered to be part of the municipal law with few qualifications, the treaty
practice is quite varied. It does not clearly support the monist or dualist approach. It has
been revealed that some transformation is required in every case before they become
operative at the municipal level, though they can bind the State without such a
requirement at the international level. In certain jurisdictions, however, they are operative
without such a requirement under their constitutions.126 Further, States have generally
made a distinction between self-executing and non-self-executing treaties depending on
the subject matter of the treaty.
Slates, through their legislature and judiciary, are expected to honour their international
commitments. There is no doubt that municipal law in violation of international law will
have the legal effects within the State, but will create international responsibility for the
State. Municipal courts are bound to give effect to the State-will as reflected in statutes.
But a State cannot take the defence of its constitution to escape its international
responsibility. State courts invariably strive to resolve the conflict between the two and
give effect to international law unless they are constrained by the unequivocal language
of the statute to do so.
__________________
122 People's Union for Civil liberties v. Union of India (2005) 2 SCC 436.
123 Sakshi v. Union of India (2004) 5 SCC 518.
124 Sec Motilal v. State of U.P., AIR 1951 AIL 257 (F.B.); State of West Bengal v.
Jugal, AIR 1969 SC 783.

125 Nabob of Carnatic v. East India Co. (1793) AIR 1924 PC 216; Ajaib Singh v.
State of Raj., AIR 1952 Punj. 309.
126 Positivists argue that the constitutional provision amounts to granting validity to
treaties at the municipal level without which they would not have been operative
internally.

Page 81
CHAPTER 4
Subjects of International Law
I. GENERAL
The term ‘subjects of international law’ refers to entities endowed with legal personality,
capable of exercising certain rights and duties on their own account under the
international legal system.1 Capacity implinnnes personality, but always it is capacity to
do particular acts. Therefore, personality as a term is only a short-hand for the proposition
that an entity is endowed by international law with legal capacity. But all the entities may
not have the similar capacity, such as entity A may have the capacity to perform acts X
and Y but not act Z, entity B to perform acts Y and Z but not act X, and entity C to
perform all three acts. In the Reparation case, the court stated: “the subjects of law in any
legal system are not necessarily identical in their nature, or in the extent of their rights,
and their nature depends upon the needs of the Community”.2
Under municipal law, the individual is the typical subject of law, but certain entities, such
as companies, public corporations, institutions, and idols are granted a personality distinct
from the individuals who create them, and are empowered to enter into legal and
economic transactions on their own. The typical legal subject of international law is the
State. Ordinarily, international law deals with the rights and duties of States and its rules
bind the States, but other entities may also be considered as the subjects of international
law to the extent they can enter into legal relations and exercise certain rights on the
international plane. The practice of the last half-a-century has clearly discarded the old
dogmatic approach that the State is the only subject of international law and has
recognised the independent existence of a variety of international institutions, and in
numerous situations, has imposed obligations and granted rights to individuals. As a
consequence, it is now generally accepted that international organisations and other non-
State entities, together with individuals in certain situations, are the subjects of the
international legal system.
II. STATE AS A SUBJECT OF INTERNATIONAL LAW

Despite the momentous growth of international law, which has made a dent in the
traditional theories of international law that States are the exclusive subjects of
international rights and
__________________
1 According to Starke, the term “subject of international law" means: (a) an
incumbent of rights and duties under international law; (b) the holder of procedural
privilege of prosecuting a claim before an international tribunal; (c) the possessor of
interests for which provision is made by international law; and (d) the capacity to
conclude treaties with States and international organisations; J.G. Starke. Introduction to
International Law, 10th ed. (Butterworths, London). 1989, p. 58, n. 2.
2 Reparation for Injuries Suffered in the Service of the United Nations (1949) ICJ
Rep., p. 174 at p. 179.

duties, the State is still the typical and most obvious example of an international person.
To be considered as a State, an entity must have certain characteristics, such as territory,
population, government sovereignty etc. The often quoted attributes of a State are
provided in Art. 1 of the Montevedio Convention3 of 1933:
The State as a person of international law should possess the following qualifications: (a)
permanent population; (b) defined territory: (c) a government; and (d) capacity to enter
into relations with other States.4
However, this criterion of Statehood has not been strictly adhered to in international
practice particularly so in the United Nations practice. The two republics of erstwhile
Soviet Union - Byelorussia and Ukraine, were the original members of the United
Nations, but they did not enjoy the capacity to carry on their commitments with other
States at the international level or conduct their own external relations. Their position was
in no way different from that of States of the United States of America or of the
Commonwealth of Australia or of India.5 Such federal units are not States, but
international persons sui generis.6 The federal units may or may not be allowed to
conduct their own foreign affairs by their federal constitutions. If, and to the extent, they
are allowed to do so, such units are regarded by international law as having international
personality.
A. Population and Territory

The lack of permanent population (i.e., the shifting element in population such as the
nomad tribes on the Kenyan-Ethiopian border), or non-existence of fixed boundaries are
not enough to affect the existence of a State. The State practice as well as the judicial and
arbitral decisions clearly establish that it is not necessary for an entity to have exactly
defined or undisputed boundaries to be a State either at the time when it comes into
existence or subsequently. For example, the State of Israel had been admitted to the
United Nations and was recognised by many nations without its borders being fixed and
they still remain unsettled. Similarly, many of the States created after the First World
War were recognised by the Allied Powers although their boundaries were drawn later
only by Peace Treaties.
For the existence of a State, it is enough that its territory has a sufficient consistency,
even though its boundaries may not have been precisely defined or accurately delimited.7
Uncertainty about the boundaries has little effect on the corpus of a State. Similarly,
international law does
__________________
3 28 AJIL Supp., p. 75 (1935). The United States and 15 American States are
parties to it.
4 Few other requirements added now are independence achieved: (a) not in
pursuance of racist policies, e.g., erstwhile South African Homelands (Bantustans) of
Transkei, Bophuthatswana, Venda and Ciskei, and (b) in accordance with the principle of
self-determination (e.g., the case of Southern Rhodesia). But the term may be given a
different meaning for the purposes of a particular treaty, for example, a dominion or
protectorate may enter into treaty in certain situations.

5 After the dismemberment of the USSR, both Byelorussia (now Belarus) and Ukraine
are now acting as fully independent States. Earlier their case was comparable to
Liechtenstein, which was denied admission to the League of Nations because she
relegated certain sovereign powers to other nations.
London), 2010, p. 98
7 See Deutsche Continental Gas-Gesellschaft v. Polish State, 5 AD 11 at p. 15
(1929).

Page 83 SUBJECTS OF INTERNATIONAL LAW
not prescribe any lower limit of the size of a State’s population or territory. Nauru, a
Pacific Ocean nation has only 12,000 inhabitants and an eight square miles area. The
Vatican City has even fewer permanent residents and only 100 acres of land.
B. Government
The entity to be considered as a State should possess a stable government. However,
State practice suggests that the requirement of a State government in control of the
territory of the State is not absolute during a civil war, once a State has established itself.
It may be necessary that when an entity is at the threshold of emerging as a State, it
should not be subject to the control of another State. Complete breakdown of law and
order in the Republic of Congo (now Zaire) in July 1960, immediately following its
independence did not affect its status as a State under international law.
The continuous civil-war situation in Somalia since 1991, has not affected its
membership of the United Nations and it continues to be recognised as a State by the
international community. Somalia is an example of what is sometimes known as ‘Failed
State’. From a legal point of view, a ‘failed State’ is one which, though retaining legal
capacity, has for all practical purposes lost the ability to exercise it. A key element in this
respect is that there is nobody who can commit the State in an effective and legally
binding manner, like concluding an agreement.8 On the contrary, the Republic of Kosovo
declared its independence from Serbia in 2008 and recognised as an independent State by
65 State (not recognised by China, India and Russia and many UN members) is yet to be
admitted as a UN member.
C. Capable of Entering into Relations with Other States

In order to have a claim over Statehood, an entity should have the capacity to enter into
relations with other States and must be accepted so by others. This requirement is also the
most important determinant in according recognition to a new entity. A State cannot fulfil
this requirement unless it has independence. Independence, considered to be a normal
characteristic of a State as subject of international law, means independence de jure (in
law) from the authority of any other State (and hence the capacity to carry relations
independently with other States).9 Restrictions upon a State’s liberty, arising either out of
customary international law or contractual engagements (i.e., treaties) do not affect its
independence. As long as these restrictions do not place a State under the legal authority
of another State, the former remains an independent State. In the S.S. Wimbledon case,10
the Permanent Court of International Justice observed: “No doubt any convention
creating an obligation places a restriction upon the exercise of the sovereign rights of the
State, in the sense that it requires them to be exercised in a certain way. But the right of
entering into international engagements is an attribute of State sovereignty”.
__________________
8 Daniel Thurer, International Review of the Red Cross, No. 836 (1999), p. 731, cited in
Harris, op. cit. 6, at p. 102. Other ‘failed States’ in the last four decades have been
Afghanistan, Bosnia-Herzegovina, Cambodia, Lebanon, Liberia and Sierra Leone. Like
Somalia and Democratic Republic of Congo, all these States continued to be recognised
as States by international community.

9 See Austro-German Customs Union case, PCIJ Rep., Series A/B, No. 41 (1931).
10 PCIJ Rep., Series A, No. 1 at p.25, (1923).

States which are subject to the authority of one or more States are known as “dependent
States”. The notion of dependence necessarily implies a relation between a superior State
(e.g., protector etc.) and an inferior or subject State (e.g., protege etc.); the relation
between the State which can legally impose its will and the State which is legally
compelled to submit to that will. Sometimes the extent of factual dependency of one State
upon another is so great that it is no more than a “puppet” State and would not be meeting
the requirement of independence, necessary for Statehood. Lauterpacht opines:
The first condition of Statehood is that there must exist a government actually
independent of that of any other Stare... If a community, after having detached itself from
the parent State, were to become, legally or actually, a satellite of another state, it would
not be fulfilling the primary condition of independence....11
One of the notorious examples of a ‘puppet State was the Chinese province of
Manchuria, conquered by Japan in 1931. Japan had put a government of its own
nomination and in early 1932, recognised it as the “new State of Manchukuo”. Based on
the United States Secretary of State Stimson’s Doctrine of Non-Recognition (of January
7, 1932), the Assembly of the League of Nations and the United States independently
adopted the principle of non-recognition.12 Subsequently, on the basis of Lytton
Commission’s report, the Assembly of the League, on February 24, 1933. resolved that
the sovereignty over Manchuria belongs to China.
A similar situation arose out of the Turkish invasion of Northern Cyprus in 1974. Turkey
occupied 36 per cent of land, administered by the Turkish Federated State of Cyprus, as
an interim measure, till the establishment of federal State of Cyprus. In 1983, Turkey
declared the establishment of an independent State of the Turkish Republic of Northern
Cyprus, with its own constitution in the same area. The United Nations Security Council
deplored this action and termed the declaration as “legally invalid”, and called upon “all
States not to recognise any Cypriot State other than the Republic of Cyprus”.13
The status of entities in the form of Bantustans or homelands, created by South Africa,
for black Africans since 1976, in pursuance of its policy of apartheid was similarly
doubtful under international law. South Africa granted independence to Transkei (1976),
Bophuthatswana (1977), Venda (1979) and Ciskei (1981). They were not granted
recognition by any State except South Africa. The United Nations General Assembly in
October 1976 condemned this step of South Africa, creating homelands in furtherance of
its policy of apartheid.14 Though in law, these home lands gained full legal control over
their internal and external affairs, South Africa exercised major control on economic
matters. On 17 November 1993, South Africa decided to abolish these independent
homelands and
__________________
11 H. Lauterpacht, Recognition in International Law (Cambridge University Press.
Cambridge), 1948. pp. 26-29.
12 The Stimson Doctrine of Non-Recognition, I Hackworth 334; reproduced in
Harris, op. cit. 6, pp. 188. n Security Council Resolution 541 (1983) SCOR, 38th year.
Resolution and Decisions, p. 15. Except

Turkey, no other State recognised the Turkish Republic of Northern Cyprus. In 2003 and
again in 2004, unsuccessful efforts were made by the United Nations for a new
constitutional settlement for a single federal State of Cyprus.
14 Res. 31/6 (XXXI) of Oct. 26, 1976, GAOR, 31st Session, Supp. 39, p. 10.

reincorporatcd them into South Africa. It discarded the policy of apartheid and set up an
All-Race Transitional Executive Council.15
The Southern Rhodesia case created one additional requirement of Statehood, viz., that
independence be achieved in accordance with the principle of self-determination.
Although it fulfilled all the requirements of Statehood according to Montevideo
Convention, it was not recognised as an independent State. Southern Rhodesia, which
was a British self-governing colony, declared its independence from Britain in 1965 by
the Ian Smith led White regime, which blocked the rule of the black majority that would
have come into power in accordance with the principle of self-determination. The United
Nations Security Council imposed economic sanctions upon the White regime and called
upon all States not to recognise the illegal racist government.16 The General Assembly
also similarly called for non-recognition.17 The case of independence of Guinea-Bissau
from Portugal in September 1973, and subsequent General Assembly Resolution 3061
(XXVIII) of November 1973, firmly laid the principle of self- determination as the
manifestation of sovereignty, and a determinant for recognition by other States.18
This clearly raises the question of legality of intervention by other States in aid of
independence movements. Based on these resolutions of the General Assembly,
Crawford suggests that, whereas States are under a legal duty not to intervene or not to
recognise the illegal intervention in another State to foment secession, but intervention in
aid of a local unit fighting for independence according to the principle of self-
determination is not illegal.19 Thus, the Indian assistance to Bangladesh, though arguably
questionable under Art. 2(4) of the Charter, was perfectly justified, given that Bangladesh
was a unit (in control of substantial territory and supported by the population) to which
the principle of self-determination applied.20 Bangladesh, until 1971 was known as East
Pakistan. Pakistan consisted till then of East and West Pakistan, situated at the Eastern
and Western borders of India respectively. Aggrieved by the biased attitude and treatment
of the Pakistan administration towards East Pakistan, on 26 March 1971 East Pakistan
declared itself independent by the name of Bangladesh. The Pakistani forces initially
suppressed the uprising, but in November 1971, rebel guerilla forces from East Pakistan
launched an offensive with considerable success. It was alleged that the offensive was
carried out with the help of India who had sheltered over one million refugees from East
Pakistan by then. Pakistani forces also clashed with Indian forces in the border area. On 3
December 1971, Pakistan attacked India on its western border, which led to a war
between the two countries. On 17 December
__________________
15 Decision to this affect was taken by 21 South African political parties and
endorsed by Pretoria on Dec.
7, 1993. The elections on non-racial basis were held in South Africa from April 26-
28, 1994, under the supervision of United Nations Observer Mission in South Africa
(UNOMSA). The ANC won the elections.
16 SC Res. 216 (1965) of April 9, 1966.
17 GA Resolution 2379 (XXVI), GAOR, 26th Session Supp. 18, p. 57 (1968); 7 ILM
1401 (1968). In April 1980, Southern Rhodesia, under the name of Zimbabwe, was

granted independence in accordance with the principle of self-determination; thereupon

the sanctions against it were terminated.
18 GA Res. 3061 (XXVIII), GAOR, 28th Session, Supp. 30, p. 2. About this requirement
for recognition of a new State, sec, J.E.S. Fawcett, Security council resolutions on
Rhodesia, BYhIL. p. 112 (1965-66).
19 James Crawford, The Creation of States in international Law (Clarendon Press,
Oxford), 1979, p. 118.
20 Ibid., at p. 117.

1971, Pakistani troops surrendered on both fronts and were taken as prisoners of war.
East Pakistan was declared as an independent State of Bangladesh and was given
recognition as an independent State (by Pakistan as well).
It is not the size of the territory but the independence which is crucial for Statehood. In
recent years, many new mini or micro States have emerged, claiming for Statehood. It is
not a new phenomenon because entities like Andorra (under the joint protection of France
and Spain), Monaco (France looks after its defence and a guarantor of its sovereignty),
San Marino and Liechtenstein of feudal origin have survived on the European scene, and
it was never their size, but display of sovereignty that came in the way of determining
their Statehood. In 1920, the League of Nations rejected Liechtenstein’s application for
membership,21 on the basis of the report of its Committee which found that though
juridically it was a sovereign State, “but by reason of her limited area, small population
and her geographical position, she has chosen to depute to others some of the attributes of
sovereignty”, such as the control of her customs, the administration of her posts,
telegraphs and telephone services, for the diplomatic representation of her subjects in
“foreign countries” and “has no army”.22 Liechtenstein became a member of the United
Nations in 1990.23 In 1949, it acceded to the Statute of the International Court of Justice
and was a party to the Nottebohm case24 San Marino, which is under the protection of
Italy, likewise was a party to the Statute of the Court under Art. 93(2) of the United
Nations Charter.
The mini or micro States quite often are unable to conduct their international relations in
a normal manner due to paucity of resources—manual and material, which may as well
affect their sovereignty. At the time of Maldives Islands’ admission to the United Nations
in 1965, the United States representative in the Security Council raised the issue, as the
Charter “provides that applicants for United Nations Membership must not be only
willing but also able to carry out their Charter obligations” and many of the small
emerging entities, though willing, probably do not have the human or economic resources
to fulfil this requirement. He urged to evolve some agreed standards, some lower limits,
to be applied in the case of future applicants for the United Nations membership.25 But,
apart from some suggestions, like the associate membership for such entities and the
examination of this issue from other angles, no serious attempt has been made in this
direction and the new aspirants are allowed the membership of the United Nations
because of the pre-ponderant anti-colonist feeling in the United Nations and for other
political reasons rather than the capacity of the new entrant to fulfil its international
obligations. Further, “associate” membership also casts doubt on the
__________________
21 Under Art. 1(2) of the League of Nations (LN) Covenant, the membership was
open to “any fully self- governing State, Dominion or Colony ... provided that it shall
give effective guarantees of its sincere intention to observe its international obligations,
and shall accept such regulations as may be prescribed by the League in regard to its
military, naval and air forces and armaments”.
22 Report of the 5th Committee to the First Assembly of the L.N., Dec. 6, 1920, 1
Hackworth, pp. 48-49; W.S.G. Kohn, 61 AJIL 547 (1967).

23 Byelorussia opposed its membership to the UN, terming it as a dependent State

because its diplomatic relations, and post and telegraph services were looked after by
Switzerland with whom it formed a customs union, GAOR, 4th Session, 6th Comm.,
174th Meeting, p. 215.
24 (1953) ICJ Rep., p. 122; (1955) ICJ Rep., p. 4 (II Phase).
25 S/PV. 1243, SCOR, Sept. 20, 1965.

Statehood of the new entity. Nauru is the only country which has been accorded the
associate member’s status.
III. NON-SELF-GOVERNING TERRITORIES

There are difficulties in applying the requisites of Statehood to non-self-governing
territories— colonies, protectorates, trusteeship and mandate territories. Capacity to
conduct international relations is significant in deciding the international personality of
an entity, but this requirement puts under suspect the claims of many non-self-governing
territories, though their number has fast shrinked in the last three decades. Such
arrangements, to different degrees, limit these territories’ power over their foreign
relations, and sometimes there is a total exclusion of such powers, with the consequence
that they would be devoid of international personality. However, in furtherance of
Charter provisions of Arts. 1, 55 and 56, numerous resolutions adopted by the United
Nations General Assembly have greatly enhanced their status at international law. The
General Assembly resolution 1514 (XV) of December 14, 1960, Declaration on the
Granting of Independence to Colonial Territories and Peoples ,26 expressed the
conviction that “all peoples have the right to self-determination” and “subjection of
peoples to alien subjugation, domination and exploitation constitutes a denial of
fundamental human rights”. Further it stated:
Immediate steps shall be taken, in Trust and Non-self-Governing Territories or all other
territories which have not yet attained independence, to transfer all powers to the peoples
of those territories, without any conditions or reservations, in accordance with their freely
expressed will or desire, without any distinction as to race, creed or colour, in order to
enable them to enjoy complete independence and freedom.
In 1963, the General Assembly established a committee, commonly known as the
Decolonisation Committee or the Special Committee of 24, to assist in the
implementation of resolution 1514. Resolution 1514 was later supplemented by the 1970
Programme of Action for the Full Implementation of the Declaration27 and the 1970
Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States.28
The endorsement of the right of self-determination set a pace for self-governance and
independence of many non-self-governing territories, which were earlier either colonies
or trust or mandate territories. The ambit of the principle of self-determination was
extended even to “freedom movements” targeted against foreign subjugation, by the 1972
General Assembly resolution 2908 (XXVII). The General Assembly expressed its
satisfaction therein with the arrangements made by Angola, Mozambique, Guinea-Bissau,
Namibia and Southern Rhodesia, to allow the representatives of national liberation
movements to participate in the work of the General Assembly’s special commission
charged with investigating the implementation of the
__________________
26 The resolution was adopted by 89 votes to zero, with nine abstentions. The
abstaining States were Australia, Belgium, Dominican Republic, France, Portugal, South
Africa. Spain, the United Kingdom and the United States, see GAOR, 15th Session,
Supp., 16, p. 66.

27 GA Res. 2621 (XXV), GAOR, 25th Session, Supp. 16, p. 10 (1970).

28 GA Res. 2625 (XXV), Oct. 24. 1970. The resolution was adopted by the General
Assembly without a vote. One of the principles contained in the Declaration was “The
principle of equal rights and self- determination of peoples”.

1960 Declaration. The resolution urged all States and the specialised agencies and other
organs of the United Nations to provide “moral and material assistance to all peoples
struggling for their freedom and independence in the Colonial Territories” in
consultation, if appropriate, with the Organisation of African Unity (OAU).29 This
provided the legal ground for the recognition of liberation movements, which implied an
international personality on the part of the “freedom movements” as well. In the United
Nations practice, this resolution was put into effect in the cases of liberation of Guinea-
Bissau in 1973, when it was yet considered by the colonial power Portugal as its territory,
and Palestine Liberation Organisation (PLO) in 1974.
In September 1973, the Party for the Liberation of Guinea and Cape Verde Islands,
PAIGC, fighting for independence, proclaimed the State of Guinea-Bissau (by joining the
two Portuguese territories). The new State was soon recognised by many nations. In
November 1973, the General Assembly also welcomed the independence of the people of
Guinea-Bissau and asked Portugal to desist from violating the sovereignty and territorial
integrity of the Republic of Guinea-Bissau.30
The PLO, fighting for the independent State of Palestine, was accorded the “observer
status” by the General Assembly in 1974.31 This made PLO a non-voting member, since
it did not have a “national territory” of its own. The “observer status” accorded some
degree of international personality and entitled the PLO leader to some functional
immunity in the United States. As the PLO was not a State, it could reasonably be
classified ?s a governmental authority with claims to represent a people not yet
established as a territorial unit to which resolution 2908 (XXVII) is applicable. The PLO
has since opened its consulate offices in many Arab and Asian countries including India.
It is recognised as the “sole legitimate representative of the Palestinian people” by over
100 states with which it holds diplomatic relations. It is a member of the Arab League,
the Non-Aligned-Movement and the Group of 77. Its authority to represent Palestinian
people is further confirmed by the Peace Treaty signed between Israel and the PLO on 13
September 1993, whereby the PLO has been allowed to form an interim government over
the territorial area of Gaza strip and Jericho in the West Bank, and is in charge of the
local administration.32
The resolution 1514, however, proposes the application of the right of self-determination
within the existing colonial boundaries. The Frontier Disputes case33 between Burkino
Faso
__________________
29 GA Res. 2908 (XXVII), 1972.
30 GA Res. 3061 (XXVIII), op. cit. 18. Over 90 members voted in favour of the
resolution, 7 (including UK and USA) voted against and 30 (comprising largely
European and South American States) abstained. The western governments accorded
recognition only after the change of government in Portugal when it decided to withdraw
Portuguese troops from any active role against independence forces, PAIGC, in mid-
1974. Arguably, PAIGC could legitimately have been granted recognition on the basis of
GA Res. 2908 (XXVII) if Guinea-Bissau had not been a State in 1973.
31 GA Res. 3237 (XXIX) of Nov. 22, 1974.

32 In order to have a democratically elected authority for self rule, elections were held on
Jan. 21, 1996 for Palestine Council and its Presidency. Yasser Arafat won the election for
Presidency. Arafat died in 2004. In the election held in 2006, Hamas won almost two-
thirds of the seats in the legislative council, but it has been widely criticised over the lack
of Mamas presence in the Organisation, and for that reason not recognised by many
Palestinians as a true representative of Palestinians’ views. See, en.wikipedia.org/
wiki/Palestine Liberation Organization
33 (1986) ICJ Rep., p. 554.

and Mali confirms that the principle of self-determination now forms part of the
customary international law and in Africa particularly, it is subject to the principle of uti
possidetis in accordance with para 6 of the resolution, which states, “Any attempt aimed
at the partial or total disruption of the national unity and the territorial integrity of a
country is incompatible with the Purposes and Principles of the Charter of the United
Nations”. The principle of uti possidetis was developed in the nineteenth century when
the Spanish America was decolonised and extended to Africa in the twentieth century.
The International Court of Justice observed: “The essence of the principle lies in its
primary aim of securing respect for the territorial boundaries at the moment when
independence is achieved”.34
Further, the principle, as enshrined in resolution 1514, has not been extended beyond the
then existing colonies under the minority White regimes. The post-colonial States are
reluctant to allow their minorities to exercise the right of self-determination, as it is
disruptive to national integrity and international security. Thus, the Biafrans (in Nigeria),
the Kurds (in Iran, Iraq and Turkey), the Somalis (in Kenya) and the Tamilians (in Sri
Lanka) have been denied this right so far. However, the General Assembly has in certain
cases accepted this right of peoples specifically, such as in Palestine and South Africa.35
The principle was not being upheld by the Arbitration Commission [known as Badinter
Commission] of the EC Peace Conference on Yugoslavia in the cases of Serbian
Republic of Krajina (declared in December 1991 consisting of Serbian enclaves in
Croatia) and the Republic of the Serbian People of Bosnia-Herzegovina declared by
Serbs living there in January 1992. Croatia and Bosnia-Herzegovina were two of the six
republics of the Socialist Federal Republic of Yugoslavia (SFRY) before 1991. Serbs
were in minority in both the republics. Slovenia and Croatia justified their declarations of
independence by reference to the principle of self-determination. Instead the Commission
found the principle of uti possidetis applicable in non-colonial context, as the principle of
self- determination had been developed in the United Nations in the colonial context.
State practice has established that minorities as such do not have the right of self-
determination.36
The principle has also not been adhered to in the cases of Western Sahara, Gibraltar and
for some time in East Timor. Western Sahara (known also as Spanish Sahara) was
colonised in 1884 by Spain and remained so till 1976. It is rich in phosphates, with a
population, mostly nomads, of less than 100,000. In 1966, the General Assembly desired
the colony to be freed on the basis of the right of self-determination and called upon
Spain to consult with the
__________________
34 Ibid., at p. 566.
35 GA Res. ES-7/2, GAOR, 7th Emergency Session, Supp. I, p. 3 (1980); and GA
Res. 33/24, GAOR, 33rd Session, Supp. 45. p. 139 (1978) respectively. The Government
of India, at the time of acceding to the two international covenants on Human Rights on
March 27, 1979, put the following reservation with reference to Art. 1 of the international
Covenant on Economic, Social and Cultural Rights and Art. 1 of the International
Covenant on Civil and Political Rights, that the “words ‘the rights of self-determination’
appearing in those articles apply only to the peoples under foreign domination and that

these words do not apply to sovereign independent States or to a section of a people or

nation which is the essence of national integrity”. On the right of self-determination, see
A. Rigo Sureda, The Evolution of the Right of Self-Determination (A.W. Sijthoff.
Leiden), 1973, p. 353; Antonio Cassese, Self-Determination of Peoples (Cambridge
University Press) 1995.
36 Harris, op. cit. 6, p. 105; Rosalyn Higgins, Problems and Process (Oxford
University Press, 1994), p. 124.

neighbouring States of Morocco and Mauritania to evolve the procedure for holding of a
referendum in the territory under the United Nations auspices, to enable the indigenous
population to exercise their right of self-determination at the earliest possible date.37
Spain agreed to hold a referendum only in 1975. During this time, King Hassan of
Morocco (who earlier favoured the United Nations stand) claimed the territory on the
basis of “historic title” predating Spain’s colonisation of the territory. Mauritania made a
similar claim. On the initiative of both the States, the General Assembly sought the
advisory opinion of the International Court of Justice, which, on the basis of materials
and information presented to it, found “the existence at the time of Spanish colonisation,
of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in
the territory of Western Sahara. They equally show the existence of rights, including
some rights relating to the land, which constituted legal ties between the Mauritanian
entity38 ... and the territory of Western Sahara”.39
Morocco considered the opinion in its favour and held a “Green (i.e., peaceful) March”
into Western Sahara on November 4, 1975. The United Nations Security Council on
November 6, 1975, deplored the March and called for its termination, which was not
heeded to.40 A week later, tripartite talks between Spain, Morocco and Mauritania led to
an agreement under which Western Sahara was to be divided between Morocco (two-
third) and Mauritania (one-third), and Spain would retain 35 per cent interest in the
phosphate industry. In December 1975, the General Assembly adopted two apparently
conflicting resolutions,41 in one, asking Spain to take immediate steps to realise the right
of self-determination of the inhabitants without making reference to tripartite agreement,
and another, asking the interim administration established by Spain to take necessary
steps to realise the right of self-determination, by making reference to tripartite
agreement. In 1976, Spain withdrew from the territory and Morocco and Mauritania took
over in accordance with the tripartite agreement. In the same year, Polisario, the
independent movement of the Saharans (which was all through backed by Algeria),
proclaimed the Saharwi Arab Democratic Republic (SADR), which has been recognised
by more than 70 nations and is admitted as a member to the OAU.42 In 1979, Mauritania
renounced its claim over Western Sahara and since then Morocco controls the whole
territory although Polisario continued to wage a guerilla war. In 1991 Morocco and the
Polisario Front agreed on a UN-backed ceasefire in the Settlement Plan.43 In the 2003
proposed Plan of James Baker, the Personal Envoy of the United Nations Secretary
General, self-determination has been provided after a transitional period, following a
referendum in which voters would have the choices of independence,
__________________
37 GA Res. 2229 (XXI), GAOR, 21st Session, Supp. 16, p. 72 (1966).
38 It was not then a State.
39 Western Sahara case (Advisory opinion) (1975) ICJ Rep., p. 12, para. 162.
40 SC Res. 380 (1975), Security Council’s Resolutions and Decisions, p. 9.
41 GA Res. 3458 A and Res. 3458 B (XXX), GAOR, 30th Session, Supp. 34, pp.
116 and 117 respectively (1975).
42 On the Statehood of the SADR, see G.J. Naldi 25 IJlL 448 (1985).

43 In order to restore peace and to hold free, fair and impartial referendum for the
self-determination of the people of Western Sahara, the United Nations peace-keeping
forces are stationed there. The United Nations Mission for the Referendum in Western
Sahara (MINURSO) have to fulfil this task under the Settlement Plan reached between
the Moroccan Government and Polisario, see the SC Res. 1017 of Nov. 25, 1995; SC
Res. 1033 of Dec. 19, 1995; SC Res. 1131, Sept. 1997.

integration with Morocco, self-government or autonomy within Morocco. Plan was

accepted by Polisario but not by Morocco, which had by then reneged on its promise to
hold a referendum, declaring it “unnecessary”.44
The issue about the status of Gibraltar was raised by Spain in 1964, upon which the
Committee of 24 and the General Assembly took the view that the wishes of the current
population cannot be decisive since it is imported colonial population; the earlier, largely
Spanish population left the territory when it was captured by Britain in the early
eighteenth century.4- Instead, Spain and Britain should find out a negotiated solution,
taking into account the interests of the population of the territory and the views expressed
by the members of the Committee to resolve the issue. Paragraph 6 of resolution 1514
was emphasised, which was viewed as having retroactive effect, back to the time when
Gibraltar was captured from Spain.46 In a referendum held in 2003 by the Gibraltar
Government, inhabitants rejected by an overwhelming majority (99%) a proposal of
shared sovereignty on which Spain and Britain were said to have reached “broad
agreement”, and overwhelmingly favoured remaining British.47
The East Timor case similarly shows disrespect for a time for the principle of self-
determination. East Timor, which was a Portuguese colony, was to join Indonesia after
independence from Portugal, in accordance with an agreement between Australia and
Indonesia. An independence movement within East Timor, Fretilin, opposed it and in
August 1975, it declared itself independent from Portugal by use of force. Indonesia
invaded East Timor in December 1975, and defeated Fretilin forces and claimed
sovereignty over the territory. In spite of the calls of the General Assembly and the
Security Council to withdraw and allow the people of East Timor to decide their own
future, in accordance with the principle of self-determination.48 Indonesia did not act on
these resolutions for many years, but in 1999, it allowed a UN supervised referendum in
which the people voted for independence. This was, however, opposed by anti-
independence militia, backed by the Indonesian army. Finally, with the efforts of the
United Nations, East Timor became a sovereign State of Timor Leste on May 20, 2002
and admitted to the membership of the United Nations.
A. Protected Territories
When the European nations entered into Asia and Africa, beside colonisation, they also
created “protectorates” to have an access to the resources of these territories. Protectorate
is always the creation of a treaty, involved a certain measure of control, and a total or
partial loss of sovereignty. In many cases, it involved the loss of control of foreign
relations and disappearance
__________________
44 The Plan has been supported by the General Assembly, GA Res. 58/109 (2003),
and the Security Council, SC Res. 1495 (2003). See also GA Resolutions 59/131 [2004],
60/114 [2005], 61/125 [2006], 62/116 [2007] and SC Res. 1720 (31 October 2006).
45 The current population consists mainly of Genoese, Maltese, Moroccans, British
and others.

46 GA Res. 2065 (XX), GAOR, 20th Session, Supp. 14, p. 57 (1965); also GA Res.
2070 (XX) GAOR, 20th Session, Supp. 14, p. 58 (1965). In the Falkland Islands case, the
Committee of 24 adopted the similar approach of “negotiated solution”.
47 See the 2003 Special Committee of 24 Report, UN Doc. A/58/23, Pt II, pp. 8-9.
48 GA Res. 3485 (XXX), GAOR. 30th Session, Supp. 34. p. 118 (1975); SC Res.
384 (1975), Resolutions and Decisions, p. 10.

of the protected State from the community of nations. In spite of common features
possessed by “protectorates” under international law they had individual legal
characteristics resulting from the special conditions under which they were created, and
the stage of their development. The European nations evolved different modes of
protection to serve their purpose.
The European nations generally created protectorates of territories which even did not
possess the international personality to enter into treaty of protection. They entered into
treaties with the local rulers of tribes of Africa in underdeveloped areas, who relegated all
their powers and independence to these European nations, keeping with them only the
internal affairs to be conducted with the consent of the local “resident” of the foreign
power. However, these arrangements cannot be termed as treaties, since the local rulers
did not enjoy at any point of time, an international personality necessary to conclude a
treaty.49 In such a case, the protectorate does not enjoy any international personality as
such, unless it has been allowed to operate at the international plane and its competency
as a State is recognised by other States. Mere recognition by the protecting State would
not suffice.50
But in some cases, the territory already existed as a State, and entering into an agreement
for protection, does not extinguish the international personality of the protected entity,
and the treaty between the two, protecting power and protectorate, is enforceable at the
international plane (since it has been entered between two international persons). The
extent of the powers of a protecting State in the territory of a protected State depends,
firstly, upon the treaty establishing the protectorate between the two, and secondly, upon
the conditions under which the protectorate has been recognised by ‘third’ States as
against whom there is an intention to rely upon the provisions of these treaties.51 As
such, whether the protectorate has an international personality depends upon its
independent actions at the international plane and is being recognised as having the
capacity to do so by other nations. The case in point is that of Morocco which existed as
an independent State before it was divided into three units at the beginning of twentieth
century—the city of Tangier (whose international status was guaranteed), and the French
and Spanish zones. The treaties creating these two protectorates vested complete charge
of the territory’s foreign affairs in the protecting State. In the Rights of US Nationals in
Morocco case,52 the International Court of Justice held that Morocco retained its
personality as a State under international law despite the overall control exercised by the
protecting State (in this case, France). Whether the independent status of an entity which
it enjoyed prior to entering into treaty, will survive the treaty depends on the
interpretation of its terms. Similarly, the capacity of the protectorate to regulate its
international obligations depends entirely on the terms of the treaties.
__________________
49 The point was made by Max Huber in the Island of Palmes case (Arbitration) that
contracts made between a State or a company and the chiefs of people or native princes
not recognised as members of community of nations “are not, in the international law
sense, treaties or conventions capable of creating rights and obligations such as may in
international law arise out of treaties” (1928) 2 UNRIAA 829 at p. 858.

50 The case in point is that of Kuwait, which became a British protectorate in 1899. and
was gradually allowed to conduct its international relations and formally recognised as an
independent State in 1961 by Britain by an Exchange of Notes between the two.
51 See Nationality Decrees in Tunis and Morocco case (Advisory Opinion), PCI.) Rep.,
Series B, No. 4, p.(1923).
52 (1952) ICI Rep., p. 176 (US v. France).

A protected State may be allowed to enter into treaties and conduct its foreign relations
with substantial measure of independence. For example, Cyprus had been accepted as a
State and is a member of the United Nations since 1960, in spite of the right of
intervention of the guaranteeing powers (Greece, Turkey and Great Britain) in its affairs.
In the Indian protected State of Bhutan, Art. 2 of the 1949 Treaty of Friendship between
India and Bhutan reads, “The Government of India undertakes to exercise no interference
in the internal administration of Bhutan. On its part, the Government of Bhutan agrees to
be guided by the advice of the Government of India in regard to its external relations”.53
Bhutan became a member of the United Nations in 1971.
In certain cases, because of the smallness of their size, certain States accept the protection
of other States without destroying their position as sovereign States. Such arrangements
exist for Liechtenstein (as stated above), Monaco and San Marino. The status of Monaco
stems from a treaty of 1918 between Monaco and France, whereby France assured the
principality of Monaco to defend its independence and sovereignty and guaranteed its
territory. If the Monaco Prince will not have an heir, the territory will come directly
under the French protection. Thus, Monaco retains an independent status although for
political and economic necessity is largely dependent upon French goodwill. Similarly,
San Marino is under the general protection of Italy, but accedes to treaties in its own
name and was a party to the Statute of the International Court of Justice under Art. 93(2)
of the United Nations Charter. The States in this category, though under the protection of
other States, are not “protectorates” in the sense the term is associated with the
underdeveloped and exploited territories.
Where the protecting State has overall control to conduct the foreign relations of the
protectorate, even though the protectorate can enter into treaties in its own name, the
protecting State is bound by international obligations relating to the protectorate if it has
concluded treaties on its behalf, because it is within the scope of its authority to bind the
protected State.54
B. Mandates and Trust Territories

Like the protectorate which is now a dying species, the mandate system of the League of
Nations no longer applies to any territory. The system was created after the First World
War to deal with the future administration of the overseas possessions of the “Axis”
States of Germany and Turkey, and which were inhabited by people not able to govern
themselves. Three categories of mandates: A, B and C, were devised for the territories
“according to the stage of their development” (Art. 22 of the Covenant of the League).
Class A comprised territories which were formerly part of the Turkish Empire and were
sufficiently advanced for their independence to be “provisionally recognised”, subject to
the administrative advice and assistance of the Mandatory, “until such time as they were
able to stand alone”. Except Iraq (Mandatory—Great Britain), which achieved early
independence, all the territories under this category—Palestine and Transjordon
(Mandatory—Great Britain), Syria and Lebanon (Mandatory—France) became
independent only after the Second World War.
__________________
53 157 BFSP, p. 214. The treaty has to remain in force in perpetuity (Art. 10).

54 Rights of US Nationals in Morocco case, op. cit 52.

Class B consisted mainly of territories of Central Africa which were still at a stage of
development. The Mandatory was responsible for their administration, subject to a
variety of guarantees and was under obligation to allow trading opportunities to other
League members. These territories were: British and French Cameroons, British and
French Togoland, Tanganyika (Mandatory—Great Britain), and Ruanda-Burundi
(Mandatory—Belgium). All these territories are now free, independent countries. Class C
mandates were the least-developed and “owing to the sparseness of their population, or
their small size, or their remoteness from the centres of civilisation, or their geographical
continuity to the territory of the Mandatory”, they were “best administered under the laws
of the Mandatory as integral portions of its territory, subject to the safeguards ... in the
interests of the indigenous population”. The territories concerned were: Nauru
(Mandatory powers were Great Britain, Australia and New Zealand), New Guinea
(Mandatory—Australia), Western Samoa (Mandatory—New Zealand), Pacific Islands
north of the Equator (Mandatory—Japan), South-West Africa (Mandatory—South
Africa).
In none of these cases sovereignty was transferred to the Mandatory. But the mandates in
category C gave rise to many problems. The ambivalent status accorded to these
mandates, the nature of the territories (least-developed, but rich in natural resources) and
the integration with the Mandatory (by the application of its laws, etc.) allowed under the
Covenant of the League, made the Mandatory powers to claim sovereignty over them,
particularly in the case of South Africa, which was wary of its security interests from the
German population of the South-West Africa. Except Great Britain, all other Mandatory
Powers, viz., Australia, New Zealand and South Africa, read the mandate agreement as
an authorisation for annexation of mandate territories in accordance with the expression
“as integral portions of its territory” used in Art. 22 of the Covenant. But this view was
not accepted by the International Court of Justice and mandate was considered to be a
“sacred trust”. In the Namibia case55 the Court refused to give class C mandates an
object and purpose different from those of A and B mandates. “To hold otherwise would
mean that territories under C mandate belonged to the family of mandates only in name,
being in fact the objects of disguised cessions as if the affirmation that they could be best
administered under the laws of the Mandatory as integral portions of its territory ...
conferred upon the administering power a special title not vested in States entrusted with
A or B mandates.” Thus, the Mandatories under all the categories were given only the
administrative powers and responsibilities that varied according to the category of
mandate.
The United Nations Trusteeship Council

Under the Charter of the United Nations, the Trusteeship Council was created as one of
its principal organs to help ensure that trust territories were administered in the best
interests of their inhabitants After the coming into force of the United Nations, the
mandate system was replaced by the “trusteeship system”. Art. 77 of the Charter
provides:
The trusteeship system shall apply to such territories in the following categories as may
be placed there under by means of trusteeship agreements:

__________________
55 Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South-West Africa), (1971) ICJ Rep., p. 16 at p. 32.

a. territories now held under mandate;

b. territories which may be detached from enemy States as a result of the Sccond
World War; and
c. territories voluntarily placed under the system by States responsible for their
administration.
Following this, all the former mandated territories were placed under the trusteeship
system by their mandatories (who were then appointed as the administering authorities in
the same territories) except territories under category A, the Pacific Islands which were
taken away from Japan, the former mandatory, after the war and made into a “strategic
trust area” administered by the United States, and South-West Africa.
South Africa refused to negotiate a trusteeship agreement and place South-West Africa
under the supervision of the United Nations. South Africa claimed that it was entitled to
incorporate South-West Africa into its territory in accordance with Art. 22 of the
Covenant of the League (as an “integral part of its territory”). This claim was not
acceptable to the United Nations. In its advisory opinion, sought by the General
Assembly, the International Court of Justice rejected the South African argument that
with the dissolution of the League of Nations in 1946, mandate had also lapsed. The
Court opined that if the mandate had lapsed so did the South Africa’s authority over
South-West Africa, it was not possible for South Africa to alter its relationship with
South-West Africa without the authorisation of the United Nations General Assembly.
However, there is no duty on the mandatory to effect the change by negotiating a
trusteeship agreement and place such territory under the United Nations’ Trusteeship
System as embodied in Art. 77(1) of the Charter.56 After a protracted conflict between
South Africa, on the one hand, and the United Nations and the South-West Africa
Peoples Organisation (SWAPO), the national independence movement of South-West
Africa, on the other hand,57 South-West Africa became an independent State of Namibia
in April, 1990.
The object of the United Nations trusteeship system is to enable dependent territories to
attain self-governance under the guarantee of international supervision, which is aimed to
promote international peace and security by the elimination of wars of independence
(Arts. 73 and 76(a)). It envisages the trusteeship agreements whose terms are to be
“agreed upon by the States directly concerned” (Art. 79) and which are “approved by the
General Assembly” (Art. 85) or the Security Council in the case of trusteeship of a
“strategic area” (Art. 83). Besides the former mandate territories, which were brought
under the trusteeship system in accordance with this procedure, Somaliland was made a
trust territory after the Second World War for a brief period of 10 years
__________________
56 International Status of South-West Africa case, (1950) ICJ Rep, p. 128.
57 The ICJ gave four advisory opinions and one judgment concerning the legal status
of South-West Africa and the United Nations jurisdiction over it: International Status of
South-West Africa case, Ibid; Voting Procedures case, (1955) ICJ Rep., p. 67;
Admissibility of Hearings case, (1956) ICJ Rep., p. 23; and the Namibia case, op. cit. 55.
In the South-West Africa cases (II Phase), (1966) ICJ Rep., p.6, Liberia and Ethiopia
(both were League of Nations members) separately filed a case against South Africa for

the alleged violations of its obligations under the mandate. The Court did not find any
infringement of the “interest” of the applicant States, which would entitle them to have a
locus standi in the case against South Africa. The General Assembly by its Res. 2145
(XXI) of 1966, terminated the mandate of South Africa over South-West Africa and
created the UN Commission for Namibia to look after the interests of the territory. In the
same vain, the Security Council also adopted Res. 276 in 1970.

(from 1950 to 1960).58 In all, the United Nations trusteeship system applied to 11
territories,
10 former mandates and one territory—Somaliland. All these territories have now
become independent. With the independence of the last mandate territory of Palau (i.e.,
Pacific Islands) in November 1994, and with no possibility of bringing any new territory
under the trusteeship arrangement, the mandate and trusteeship system have now become
of academic interest only.59
The mandate and trusteeship systems, as such, are devoid of creating any international
personality for the territories administered under these systems. To this system, “the
doctrine of sovereignty” has no application, which remains in abeyance until “the
inhabitants of the Territory obtain recognition as an independent State”.60 Thus, until
independence is in prospect and there is a degree of internal self-government, a mandate
or trust territory cannot be regarded as having some semblance of international
personality. Conversely, until independence is achieved, such territory cannot be
considered as a State for international law purposes.
IV. PUBLIC INTERNATIONAL ORGANISATIONS

There has been a tremendous growth in the number of public international organisations
since the Second World War. The number of inter-governmental organisations has been
put over 1800,61 of different sizes ranging from near universal to regional membership,
such as European Economic Community (EEC)—now European Union (EU) and
Association of South-East Asian Nations (ASEAN), South Asian Association for
Regional Cooperation (SAARC) etc., and with specialised functions such at North
Atlantic Treaty Organisation (NATO) and now the defunct COMCUOM. While talking
about their status as a subject of international law, one has to look into their constitution,
which is the outcome of a treaty among States. It is, however, rarely that the constitution
of an international organisation would provide and clothe it with international
personality. Consequently, the question of whether an institution possesses an
international personality can only be answered by inference from the type of functions,
powers, privileges and immunities exercised by it, conferred by or to be implied from its
constitution or agreements concluded by it.
The legal capacity of these organisations under the municipal law, many a times, finds an
explicit mention in their constitutions. For example, Art. 104 of the Charter of the United
Nations provides, “the Organisation shall enjoy in the territory of each of its Members
such legal capacity as may be necessary for the exercise of its functions and the
fulfillment of its purposes”. Article 39 of the Constitution of the International Labour
Organisation (ILO) similarly
___________________
58 It was earlier administered by Italy, from whom it was taken away immediately after
the war. The former Dutch colony, West Irian, was also temporarily administered by the
United Nations for few months in 1962-63 before it was transferred to Indonesia in
accordance with the right of self-determination.
59 Palau was admitted to the United Nations in Dec. 1994, and became the 185th
Member State of the UN.

After its mission fulfilled, the Trusteeship Council suspended its operation on I
November 1994, but it continues to exist on paper, though its future role and even
existence remains uncertain. In March 2005, UN Secretary-General Kofi Annan proposed
the complete elimination of the Trusteeship Council as a part of proposed UN reforms.
However, the formal elimination of the Trusteeship Council would require the revision of
the UN Charter.
60 As per Judge McNair in South-West Africa case, op. cit. 56, at p. 150.
61 Yearbook of International Organizations 2005-2006.

says: “the International Labour Organisation shall possess juridical personality and in
particular the capacity: (a) to contract; (b) to acquire and dispose of immovable and
movable property; (c) to institute legal proceedings”. These provisions are generally
coupled with the requirement that the organisation and its officials, as well as
representatives of the member nations should be entitled to such privileges and
immunities under municipal law as are necessary for carrying out their functions. The
1946 Convention on Privileges aid Immunities of the United Nations endows the United
Nations and its officials with legal capacity in the territory of each of its members. In the
Reparation case,62 the Court observed that it is “difficult to see how such a convention
could operate except upon the international plane and as between parties possessing
international personality”.
In this case, the United Nations sent the forces to the Middle-East, after Israel’s unilateral
declaration of independence on May 14, 1948, and subsequent attack by neighbouring
Arab States. On September 17, 1948, Count Bernadotte, a Swedish national, was killed
allegedly by a private gang of terrorists in the new city of Jerusalem, then under the
Israeli possession. Count Bernadotte was the chief United Nations Truce Negotiator in
the area. Israel was not the member of the United Nations and became its member on
May 11. 1949, shortly after the International Court of Justice gave its advisory opinion,
sought by the General Assembly about the action that could be taken for the death of
Count Bernadotte. The Court was asked to determine the capacity of the United Nations,
as an organisation, to bring an international claim for compensation against a State. In
answer to this question, the Court opined that an international organisation (the United
Nations itself in that case) which has been empowered by its constitution to carry many
functions and conclude agreements with its members, enjoying immunities, privileges
and capacity in the territory of each member State, confirm its position as an independent
entity. The Court stated that:
The Organisation was intended to exercise and enjoy, and in fact, exercising and
enjoying, functions and rights which can only be explained on the basis of the possession
of a large measure of international personality and capacity to operate upon an
international plane .... [I]ts Members, by entrusting certain functions to it, with the
attendant duties and responsibilities, have clothed it with the competence required to
enable those functions to be effectively discharged.63
Even though an entity may lack some of the indicia of personality, it does not necessarily
follow that it cannot be considered an international person, because in the Court’s
opinion, the subjects of law need not be identical, they may differ in their nature and
extent of their rights.64 Accordingly, the Court found enough evidence that the entity has
the international personality by observing that:
the Court has come to the conclusion that the Organisation is an international person.
That is not the same thing as saying that it is a State, which it certainly is not.... What it
does mean is that it is a subject of international law and capable of possessing
international rights and duties, and that it has capacity to maintain its rights by bringing
international claims.65
__________________
62 Op. cit. 2.

63 Ibid., at pp. 178-179.

64 Ibid, at p. 179.

The Court advised that “the United Nations has the capacity to bring an international
claim against the State for obtaining reparation when an agent of the United Nations
suffers injury in the performance of his duties in circumstances involving the
responsibility of State”.66 Thus, by implication, the Court rejected the proposition that
only the States are subjects of international law. The objective status of the Organisation
(i.e., the United Nations), which has the capacity to bring a claim against a State who is
not even the signatory to its constituent instrument, however, was very cautiously
asserted by the Court when it remarked:
that fifty States, representing the vast majority of the members of the international
community, had the power, in conformity with international law, to bring into being an
entity possessing objective international personality and not merely personality
recognised by them alone, together with capacity to bring international claims.67
This, however, leaves open the status of organisations with small number of States as
their members. The organisations like European Coal and Steel Community (ECSC),
European Economic Community (EEC, now EU), and European Atomic Energy Agency
(EURATOM) have some degree of international personality, either expressly provided in
their constituent instruments or impliedly, since all of them have made agreements with
third countries and international organisations, which can be classified as treaties and
clothes the entity with international personality. Whereas ECSC has been expressly
accorded legal capacity,68 the Treaty of Rome (incorporating EEC) and EURATOM do
not contain any specific provisions but are allowed to enter into agreements and contracts
with other countries and international organisations (in the case of EURATOM, with
nationals of third States as well).69 These communities are competent to perform
diplomatic relations also and are presently exercising the right of passive legation by
receiving and accrediting representatives from and to States.70 The communities have the
observer status (non-voting member) in the United Nations General Assembly and have
participated in international conferences. All these are pointers to the fact that their
corporate status has been tacitly accepted at the international plane and clothe them with
international personality. There have been many other regional economic organisations,
such as ASEAN, ANDEAN, NAFTA etc. in various areas of the world and the general
attitude of tolerance of international community towards them has well established the
international personality of such institutions.
The most important characteristic of the personality of an entity is its treaty-making
power. In the Reparation case, the Court referred the treaty-making power by citing
specifically the 1946 Convention on Privileges and Immunities of the United Nations.71
The treaty-making power of international governmental organisations is well-entrenched
in the United Nations practice,
__________________
66 Ibid., at p. 174.
67 Ibid., at p. 185.
68 Art. 6 of the ECSC (1951) states, “in international relations ... the legal capacity it
requires to perform its functions and attain its objectives”, 261 UNTS 140.
69 Art. 113(3), Rome Treaty 1957, 298 UNTS 11; and Art. 101, EURATOM Treaty
1957, 298 UNTS 167.

70 About 150 States have missions, usually at ambassadorial level, accredited to EU

(presently consisting of 27 members) in Brussels. Art. 281 of the Rome Treaty
establishing EC provides it with legal personality.
71 Op. cit. 2, at p. 179.

and the 1986 Vienna Convention on the Law of Treaties between States and International
Organisations or between International Organisations72 confirms that they have the
capacity to enter into treaties.
Although privileges and immunities, treaty-making powers, and the right to take part in
international adjudication (or to bring claims) are important indications of the existence
of the international personality of international organisations, they are constrained by
their constituent instruments, resolutions and decisions to determine the limits of their
personality. Thus, the legal personality of international organisations is now an accented
fact, but unlike States, they do not enjoy unlimited power. Typical approach about their
legal personality remains a functional one, i.e., the functions and powers the organisation
perform at the international level rather than the abstract notion of international
personality. Further, the fact that most organisations, created by multilateral inter-
governmental agreements, pose a general problem of dissolution, for in the nature of
things, the personality of all such organisations can be brought to an end by amending or
terminating the constituent instruments.73 It is also important to note that the opinion of
the International Court of Justice in the Reparation case is plagued by the dogma of the
provisions of the Statute of the Court that only States can be parties in cases before the
Court (Art. 34(1)). The result will be that although the United Nations is entitled to bring
an international claim, it is not entitled to do so before its own judicial organ.
V. INDIVIDUAL AS SUBJECT OF INTERNATIONAL LAW

There have been substantial doctrinal differences over the international personality of an
individual. The traditionalists accept States as the only subjects of international law.
According to them, the individuals are incumbents of rights and duties at international
law in so far as they are objects and not subjects of international law. The cases of pirates
jure gentium or slaves who find a specific mention under international law, or the rules
related to the protection of foreign sovereigns and their diplomatic representatives are
explained by terming States as “subjects” and individuals as “objects” of international
law. According to them, in the ultimate analysis, the so called rights or duties of slaves
and pirates jure gentium, and foreign sovereigns are technically those of States only. As
such, in the case of slaves, the States have accepted the obligation to protect their rights
under international conventions,74 without which they would not have possessed any
right under international law. Similarly, the pirates jure gentium, who are considered as
enemies of mankind are punished under the municipal law of the apprehending State.
Thus, no rule of international law operates directly or indirectly upon individuals without
some municipal legislation. The liability of pirates and the rights of slaves and immunity
of foreign sovereigns derive from municipal law.
Against this view of traditionalists, others consider the individuals alone as subjects of
international law; chief among them is the noted jurist Kelsen (1881-1973). A similar
view was
__________________
72 For the text, see 25 ILM 543 (1986).
73 D.W. Bowett, The Law of International Institutions, 4th ed. (Sweet & Maxwell,
London), 1982, p. 339.

74 Article 13 of the Geneva Convention on the High Seas, 1958, provides that any
slave taking refuge on board any ship, whatever its flag, shall ipso facto be free; Art. 99
of the UN Convention on the Law of the Sea, 1982, also provides similarly.

earlier held by Westlake who had remarked: “the duties and rights of States are only the
duties and rights of men who compose them”.75
According to Kelsen, in the ultimate analysis, the concept of State waters down to the
collectivity of individuals living in a definite territorial area, who are subjected to certain
rights and obligations. Accordingly, the duties of States under international law are the
duties of individuals. In his view, there is no real distinction between international law
and municipal law. Both of them bind individuals, though international law does so only
mediately and through the concept of State, the municipal law does so immediately.76
Kelsen’s view, though logically correct, is not supported by State practice which clearly
establishes that the primary concern of international law is the rights, duties and interests
of States. Nonetheless, the State practice points out that the individual is increasingly
becoming the concern of international law, who has been subjected to certain rights and
duties under the conventional rules of international law. Since the First World War, it has
continuously empowered the individual to a substantial extent (mainly in the field of
human rights). However, the fact that certain rules of international law apply to
individuals, or invest them with certain rights and subjecting to certain obligations, does
not necessarily mean that individuals are legal persons in international law, unless they
are endowed with treaty-making power and the procedural capacity to be a party to
international adjudication.
So far as the procedural capacity of an individual is concerned, now there is no strict
adherence to the doctrine that States are the exclusive subjects of international law.
Although before the International Court of Justice, only States can be parties, a number of
other international instruments have recognised the procedural capacity of the
individual.77 In the treaties concluded after the First World War, Treaty of Versailles,
1919 (Arts. 297 and 304), and the Polish-German Convention of 1922 relating to Upper
Silesia, the individual claimants were allowed access to various Mixed Arbitral
Tribunals, set up pursuant to the provisions of these instruments even against the State of
which they were nationals.78 The 1965 Convention on the Settlement of Investment
Disputes between States and Nationals of other States has enabled private foreign
investors to have access to international machinery, set up under the auspices of the
World Bank, for the settlement of their disputes with the investment receiving States. The
procedural capacity of the individual (also of private enterprises and corporate entities)
has been recognised before the European Court of Justice of the Communities.79 The
Iran-United States Claims Tribunal, established in 1981 after the relations between the
two countries became strained over the hostages
__________________
75 Collected Papers, Vol. I (1914), p. 78, quoted in J.G. Starke, Introduction to
International Law, 10th ed. (1989), p. 59.
76 H. Kelsen, 14 Hague Recueil 231 (1926).
77 The early instance of investing individual with procedural capability is that of the
Central American Court of Justice (1907-18), operated only among five nations: Costa
Rica, Guatemala, Honduras, Nicaragua and San Salavador. The Court had jurisdiction to
deal with disputes between States and private individuals. In its brief tenure of 11 years,
only five cases were brought by individuals, which ended without success.

78 For example, see Steiner and Cross v. Polish State. 4 AD, Case No. 188 (1927-
28).
79 The Court in Yun Duyn v. Home Office (No. 2) (1975) 3 All E.R. 1190, held that
the provisions concerning freedom of movement in Art. 48 of the Treaty of Rome
(constituting EEC) and Art. 3 of an EEC Directive as to the movement and residence of
foreign nationals, conferred rights directly on individuals, enforceable in the courts of
EEC member States.

issue, considered claims by the United States and its nationals against Iran and vice-
versa. The claims could be brought directly by the individuals, particularly by
companies.80 In the United Nations practice, the United Nations officials have the right
to bring proceedings before the United Nations’ Administrative Tribunal to decide about
their service matters, viz., alleged non- observance of their contracts of employment or
the terms of their appointment.
In the sphere of substantive law, there are many treaties which have conferred certain
rights on individuals and subjected them to some obligations. Among the many treaties
concluded after the First World War, where individuals were granted rights directly or
indirectly enforceable against foreign States, the Upper Silesian Convention was typical
of such treaties. Article 5 of this Convention stated that “the question of whether or to
what extent, an indemnity for the abolition or diminution of vested rights must be paid by
the State will be settled by the Arbitral Tribunal on the complaint of the person enjoying
the right” (emphasis added). The Permanent Court of International Justice in its advisory
opinion in the case of Jurisdiction of the Courts of Danzig81 recognised that there is
nothing under international law to prevent individuals from acquiring rights directly
under a treaty, if the parties intended to confer such rights which should receive
recognition and effect at international law. It observed that “the very objcct of an
international agreement ... may be the adoption by the parties of some definite rules
creating individual rights and obligations and enforceable by national courts”.82 In this
case, Poland contended that its agreement with Danzig (whom she had taken over) fixing
the conditions of employment of Danzig railway officials conferred no right of action on
these officials. Since this agreement was treaty by nature, enforceable between the parties
only, thereby creating no right for private individuals, it involves Poland’s responsibility
only towards Danzig. The Court, though admitted this as a general rule, did not see any
reason why a treaty cannot grant individuals the right to prosecute a claim against a
foreign State in proceedings before the municipal courts when they are the
“beneficiaries” of the right. The Court held that certain Danzig railway officials could
bring an action before the Danzig courts against the Polish State Railways for the
recovery of compensation payable under an international agreement binding on Poland
and Danzig.
The more recent example of a treaty conferring individuals with rights under international
law is the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts, and
the Return of Objects Launched into Outer Space. State parties are under a duty to rescue
and assist where astronauts land in territory under their jurisdiction, to assist in search
and rescue operations in the event of their landing on the high seas or places not under
the jurisdiction of any State, and assist in the safe and prompt return of the astronauts to
the representatives of the launching authority. Again, the Geneva Convention on
Prisoners of War, 1949, as supplemented by two Protocols of 1977—Protocol I relating
to the Protection of Victims of International Armed Conflicts and Protocol II on the
Protection of Victims of Non-International Armed Conflicts, confer wide range of powers
on the individuals involved in armed conflicts.
The fact that international law binds individuals directly was further confirmed and
strengthened by the war crimes trials following the Second World War, where the

principle of individual responsibility for breach of international obligations was given

extended application.
__________________
80 See R.B. Lillch (Ed.), The Iran-US Claims Tribunals 1981-83 (University Press of
Virginia), 1984.
81 PCIJ Rep., Series B, No. 15 (1928); see also PCIJ Rep., Series B, No. 11 (1925).
82 Ibid., at pp. 17-18.

Two tribunals were set up—the International Military Tribunal at Nuremberg by the
Agreement of August 8, 1945, and the International Military Tribunal at Tokyo by the
Charter of January 19, 1946, for the trial and prosecution of war criminals. The offences
for which charges were laid were (a) crimes against peace, e.g., starting a war of
aggression; (b) crimes against humanity, i.e., murder or persecution of racial or religious
groups; (c) war crimes, i.e., crimes under the laws of war; and (d) the conspiracy to
commit these crimes. The theoretical objections to prosecute heads of State, ministers and
high military and administrative officials responsible for initiating the war and
authorising or committing other inhuman acts were disregarded.83 In rejecting the
defendants’ contention that it was the German State alone which could be liable for acts
contrary to alleged rules of international law, the Nuremberg Tribunal stated that:
... international law imposes duties and liabilities upon individuals as well as upon States
has long been recognised... Crimes against international law are committed by men, not
by abstract entities, and only by punishing individuals who commit such crimes the
provisions of international law be enforced.84
The principles of the Nuremberg Agreement and Judgment were reaffirmed by the
General Assembly in its resolution of December 11, 1946.85 These principles were
subsequently formulated as a Draft Code of Principles Recognised in the Tribunal’s
Judgment by the International Law Commission (ILC) and presented to the General
Assembly in 1950.
The Genocide Convention adopted by the General Assembly on December 9, 1948,
further strengthened this trend by attaching direct responsibility upon individuals for
committing crimes of genocide (i.e., acts committed with intent to destroy in whole or in
part national, ethnical, racial or religious groups) and making them punishable by
national courts or by international criminal tribunal. Reference has been made to persons
as being guilty of crimes (similar to the Draft Code of the ILC). Article IV explicitly
provides that persons committing the acts should be punished regardless of their official
or private position. Thus, international law can now reach over and beyond traditional
technicalities and make the individual directly responsible for his criminal acts.
The Agreements and the judgments of the Nuremberg and Tokyo Tribunals as well as
Genocide Convention, by proclaiming the criminality of offences against humanity or
human groups provided that such offences, which are against the fundamental rights of
man to life and liberty will be punishable even if committed in obedience to the law of
the State. They have clearly established that the individual is endowed with certain rights
under international law and their violation is a criminal act. They, in fact, have set the
pace to protect human rights and fundamental freedoms of the individual, for which the
provisions have also been made in the Charter (Arts. 1, 55 and 56). The United Nations
has adopted numerous instruments
83 The tribunal rejected their plea that they had been subjected to international
crimes under the rules of ex post facto since such crimes as crimes against peace or
crimes against humanity did not exist prior to 1940; defendants must have known that
their actions were illegal and wrong. This ruling was widely criticised. Some writers
criticised the propriety and legality of the tribunals as they were constituted by

Agreement between Four Allied Powers: France, Great Britain, the United States and
Soviet Union, see H. Kelsen, 1 ILQ 153 (1947), G.A. Finch, 41 AJIL 33 (1947).
__________________
84 Official Record, Official Documents, Vol. I, at p. 223; 41 AJIL 221 (1947).
85 GA Res. 95(1), GAOR, Resolutions, First Session, Part II, p. 188 (1946).

and declarations on this matter, including the most notable, the 1948 Universal
Declaration of Human Rights.86 These instruments to a great extent have empowered the
individual to enforce those rights even against their own State. “Peoples as such” have
also been provided certain inalienable rights under international law, such as the right to
self-determination, the right to choose their political, economic and social system, and the
right to dispose off wealth and natural resources of their territory. These rights have been
recognised in the 1970 Declaration on the Principles of Friendly Relations and
Cooperation among Nations,87 and in the Namibia case, the Court referred to the people
of the territory as a “jural entity” and as an “injured entity”.88 Even the ethnic, religious
and linguistic groups now enjoy these rights.89 However, the most notable achievements
in the sphere of human rights have been in Europe under the European Convention for
the Protection of Human Rights and Fundamental Freedoms of 1950. The Convention
governs the relations between the State-parties and all persons under their jurisdiction.
Individuals within the territorial jurisdiction of member States are granted the right to
petition directly to the European Court on Human Rights under Protocol 9 (adopted in
1990), which amended Art. 44 of the Convention, that required the petition to be
submitted to the Commission. The Protocol came into effect in 1992.90 The Protocol has
highly augmented the position of an individual as a subject of international law.
The rights of, or obligations binding, individuals under international law are generally
enforceable at the instance of or against those States only whose nationality such
individuals possess. It is the nationality of the individual that determines who may bring a
claim at the international plane; nationality places him under the domestic jurisdiction of
the State. In other words, an individual cannot sue or be sued to assert his claim before an
international tribunal or be answerable for failing to fulfil his obligations in his own right.
But such procedural incapacity of the individuals before international tribunals has not
prevented the supporters from claiming international personality for them, by equating
their case with minors under municipal law, who can be a party to any litigation before
the municipal courts through their guardian ad litem.
However, there is no denial of the fact that despite the increasing exceptions created in
the traditional international law, subjecting individuals with rights and duties, and
endowing them with legal capacity in certain cases, the position of individual at the
international plane, to a great extent, depends at the express or implied will of the State.
As to this Jessup has stated:
So long ... as the international community is composed of States, it is only through an
exercise of their will, as expressed through treaty or agreement or as laid down by an
international authority deriving its power from States, that a rule of law becomes binding
upon an individual.91
Whether an individual will benefit from treaty guarantees that a State secures for its
nationals, depends on his nationality. The individual enjoys these rights so long as the
State stays as a party to the treaty. Moreover, the treaties bestowing rights on individuals
invariably have the
__________________
86 The subject of Human Rights has been treated separately, infra Ch. 10.
87 GA Res. 2625 (XXV) Oct. 25, 1970.

88 Op. cit. 51, at p. 56.

89 See Art. 27 of the 1966 Covenant on Civil and Political Rights.
90 For a detailed discussion on the European Convention on Human Rights, see Ch. 10
infra.
91 Philip C. Jessup, A Modern Law of Nations, 4th ed. (MacMillan, New York), 1952, p.
17.

withdrawal clauses or can be denounced, and this is so even with the European
Convention, which brings to an end the individuals rights at the international plane
against their own State.
Thus, it can safely be stated that individual is becoming the increasing concern of
international law and many treaties are specifically aimed at the betterment of its
position, such as humanitarian treaties or the large number of conventions adopted by the
International Labour Organisation, and he has been subjected to obligations and enjoys
procedural capacity in a few exceptional cases. But a wide gap still exists before the
international law confers rights on individuals directly and ex proprio vigors without
necessarily operating for this purpose through the medium and under the cover of the
State. The individual’s position is still not equivalent to the States and international
organisations.

Page 105
CHAPTER 5
Recognition of States and Governments
I. RECOGNITION IN GENERAL
The international community often witnesses territorial changes in the political map of
the world. New States are born out of the existing States, or old States disappear by
merging with other States, or splitting into many new States. Revolutions occur and new
governments take over. For example, after the disintegration of the Socialist Federal
Republic of Yugoslavia, starting in 1991, many new states have emerged, viz., Bosnia
and Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia and Kosovo (the
last declared independence in 2008). A new state of South Suden has emerged from
Sudan in July 2011. The members of the international community cannot remain
indifferent to these developments. It is for them to approve or disapprove these changes.
It is through recognition, a State expresses its approval of the change in the State or the
government that has occurred. International community also faces the problem of
recognition of national liberation movements and situations of insurgency and
belligerency, and other territorial changes brought out by States actions.
Recognition is concerned with the status of the new entity (a) on the international scene
and (b) within the municipal legal system of the recognising State. Through recognition,
a State manifests its willingness to maintain necessary international intercourse with the
new entity or the government. Recognition is a unilateral act of cognitive nature of a
recognising State, which is followed by certain legal consequences.
According to the Institute of International Law, the recognition of a new State is:
the free act by which one or more States acknowledge the existence on a definite territory
of a human society politically organised, 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.1
In the opinion of Schwarzenberger, “Recognition is a means by which States express
their willingness to acknowledge vis-a-vis themselves the existence, and legal effect, of a
situation or transaction which, in the absence of such recognition, would not be
opposable to them”.2 Oppenheim states that through recognition, the recognising State
declares that “a foreign community or authority is in possession of necessary
qualifications of Statehood, of governmental capacity, or of belligerency”.3 Different
criteria are applied in the recognition of a State and of a government.
__________________
1 Article I of the Resolution adopted at Brussels on April 23, 1936, in 30 AJIL
Supp., p. 185 (1936).
2 G. Schwarzenberger, A Manual of International Law, 5th ed. (Stevens & Sons
Ltd., London), 1967, p. 69
3 L. Oppenheim, International Law, Vol. I, 9th ed. (Lauterpacht (Ed.), Longmans,
London), 1952, p. 127.

Before a new entity is recognised as a State, it should fulfil the essential attributes of
Statehood as mentioned in the Montevideo Convention,4 i.e., population, defined
territory, a government, and the capacity to conduct its international relations
independently.
In State practice, definiteness of territory is not held as a sine qua non for recognition of a
new entity, as is evident in the case of Israel which was recognised immediately upon its
independence on May 14, 1948, by the United States and many other nations. Similarly,
the requirement of a stable and effective government for Statehood, has not been applied
rigidly.5 There is, however, no criterion for the recognition of a government as such,
except that in the opinion of the recognising State the recognised government is willing to
fulfil its international obligations and capable of representing the State, i.e., it commands
the general support of the population. In other words, the government should have factual
control and sufficient degree of stability. When a new State comes into existence, its
recognition also covers the recognition of its government.
But in spite of possessing the essential attributes of Statehood by a community or a
government endowed with essential qualifications, it may be denied recognition for the
simple reason that recognition is more a political act than the legal obligation which
makes the subject of recognition very difficult. International law does not provide any
machinery for an authoritative declaration; neither does it provide any precise rules or
principles on the issue. Each State decides about whether or not a new State has come
into being. For these reasons, the International Law Commission which in its first
session, held in 1949, included “recognition of States and Governments” as one of the
topics considered suitable for codification, subsequently dropped this topic from its list
on the ground that “the questions of recognition pertain to the province of politics rather
than of law”.6 In the absence of codified rules, the subject of recognition is governed by
State practice which is very fluid, inconsistent and unsystematic, and does not help in
evolving the clear rules. Granting of recognition to national liberation movements and
entities, such as Palestine Liberation Organisation (PLO) and South-West Africa Peoples’
Organisation (SWAPO) has further added confusion to the State practice on recognition.
The practice of most States shows that recognition is more a question of policy than of
law. States, motivated by their self-interest, grant or withhold recognition for political
exigencies, diplomatic considerations or strategic reasons that lack strict legal
justifications. For example, India granted recognition to Israel (established as a sovereign
State on May 14, 1948) on September 17, 1950, but did not establish diplomatic relations
till January 29, 1992. India’s belated recognition of Israel and the non-establishment of
diplomatic ties were due to the attitude of Arab states towards Israel who, except Egypt,
did not recognise Israel for long.7 On the other hand, India
__________________
4 Article 1 of the Convention, see in 28 AJIL Supp., 75 (1935).
5 The former Belgian Congo (later Zaire, and now from June 1997 as Republic of
Congo), Burundi and Ruanda were granted independence when they were without
effective government; see R. Higgins, Development of International Law through the
Political Organs of the United Nations (Oxford University Press. London), 1963, pp. 21-
23.

6 YhlLC, Vol. II, p. 289 (1949).

7 The PLO and Israel had signed an agreement on Sept. 13, 1993, recognising each
other. Jordan and Israel signed a peace treaty on Oct. 26, 1994, which amounts to mutual
recognition. More recently, South Sudan seceded from Sudan on 9 July 2011 as a result
of referendum held in January 2011, without having an effective government.

Page 107 RECOGNITION OF STATES AND GOVERNMENTS
was the first country to grant recognition to Bangladesh on December 6, 1971, mainly
because of political considerations. India granted recognition to People’s Republic of
China’s government on December 30, 1949 (one of the first States out of the communist
bloc to recognise), while the United States granted recognition only on January 1, 1979.
During the First World War, the Allied Powers and other countries recognised Poland
and Czechoslovakia before they actually became as independent States or governments.
Recognition of governments-in-exile and national liberation movements is governed by
the same considerations of diplomacy and self-interest as in the case of recognition of
States and governments. For example, PLO, which was granted the observer status by the
United Nations General Assembly in 1974,8 declared the establishment of the
independent State of Palestine on December 15, 1988 by its Parliament-in-exile or
Palestine National Council.9 The Government-in-exile of Palestine was based in Tunisia
and recognised by a number of States including India,10 which granted recognition to
SWAPO as well.11 During the Second World War, the United Kingdom and the United
States recognised many governments-in-exile even though they lacked effective control
over the territory of the State. Similarly, Algeria’s National Front of Liberation
established Provisional Government of the Algerian Republic on September 19, 1958 in
Cairo, which was recognised by many countries before being granted independence by
France in 1962.
The fact that recognition is a unilateral act whose time and mode is determined by extra
legal considerations was made amply clear in the United States Department’s
communication to the New York Court of Appeal in 1933, on non-recognition of Soviet
Union, which stated:
... refusal of the Government of United States to accord recognition to the Soviet regime
is not based on the ground that the regime does not exercise control and authority in the
territory of the former Russian Empire but on other facts.12
Undoubtedly, apart from the element of discretion left to States in assessing the facts
concerning the existence of a new State and in determining the act of recognition,
political considerations play a vital role. The political character of recognition is very
explicit in the statement made by the United States representative, Mr. W.R. Smith, in the
Security Council at the time of recognition of Israel, who stated:
I should regard it as highly improper for me to admit that any country on earth can
question the sovereignty of the United States of America in the exercise of that high
political act of recognition of the de facto status of a State.13
__________________
8 GA Res. 3237 (XXIX) of Nov. 22, 1974.
9 The General Assembly also acknowledged the proclamation of the State of
Palestine, see GA Res. 43/177,
15 December 1988.
10 On March 26, 1980, the Foreign Minister of India, Mr. P.V. Narasimha Rao.
announced in Parliament that India has decided to accord full diplomatic recognition to
the Office of the PLO in India.
11 The UN General Assembly by its resolution of Dec. 20, 1976, accepted SWAPO
as the “sole and the authentic” representative of the People of Namibia (S.W. Africa). It

amounted to recognition of SWAPO by the UN General Assembly. India accorded full

diplomatic status to SWAPO in April 1985.
12 Salimoff and Co. v. Standard Oil Co. of New York, 262 NY 220 (1933).
13 SCOR, 3rd year, at p. 16; See Whiteman, Digest 2, pp. 5-7, 10.

Despite its being a political act, legal significance of recognition cannot be minimised
because recognition bestows on the new entity certain legal rights under international law
and municipal law vis-a-vis the recognising state, i.e., regularising the relations on the
diplomatic level between recognising State and the entity recognised, and in clarifying its
juridical standing in the courts of the recognising State. Further, once granted, the
recognising State is stopped or precluded from contesting the qualifications for
recognition of the State or government recognised. Thus, recognition in form and
substance remains primarily a unilateral political act with evidential value in law. The
Institute of International Law in 1936 declared that recognition is a “free act”. Granting
of recognition by States is a matter of policy and not of law.
A. Manner of Recognition
International law does not specify any form or manner of granting recognition. But, in the
practice of States, it may be express or implied, that should unequivocally establish the
intention of the recognising State.
1. Express recognition
A State may convey its decision of recognition to the new entity or government through a
formal announcement, which may take the form of public statement or notification or
diplomatic note or a personal message sent to the new entity. Recognition may also be
granted by the conclusion of a bilateral treaty or agreement. Recognition of Bangladesh
by India on December 6, 1971 was through a formal declaration. Similarly, the
recognition of three Baltic Republics, i.e., Estonia, Latvia and Lithuania by India on
September 7, 1991, was through the Prime Minister’s message sent to the Presidents of
the three republics. This method was followed by the United Kingdom in its practice with
its former colonial or other dependent territories. For example, the treaty between the
Government of the United Kingdom and the Provisional Government of Burma of
October 17, 1947 (treaty became operative on January 4, 1948), provided that the
Government of the United Kingdom recognised “the Republic of the Union of Burma as
a fully independent sovereign State”.14
2. Implied recognition
Recognition may be inferred from the conduct of the parties involved. The act must be
such as to clearly indicate that recognition was intended or is inescapable. The crucial
question thus is that of intention.15 Article 7 of the Montevideo Convention, 1933, states
that the tacit or implied recognition “results from any act which implies the intention of
recognising the new State”. Usually, the acts indicating the intention may be bilateral or
multilateral.
__________________
14 D.W. Greig, International Law, 2nd ed. (1976), p. 121.
15 Whiteman, Digest of International Law, Vol. 2, p. 48.

a. Bilateral Acts: If a State concludes or signs a treaty with a new entity, it amounts
to recognition. Mere signature and not ratification is sufficient for this purpose.16 Treaty
between the Federal Republic of Germany and the Democratic Republic of Germany
(GDR) on November 8, 1972 had preambular references to “two German States” and
“both German States” signified mutual recognition of each other’s Statehood.
Establishing diplomatic relations between a State and a new entity, or receiving consuls
of an unrecognised State, or sending representatives to attend ceremonial functions in an
unrecognised State establishes the intention to recognise the new entity. Initiation of
negotiation between the two is also a pointer towards recognition.
b. Multilateral Acts: A State may express its intention of recognition through
common participation in a multilateral treaty or an international conference along with
the unrecognised entity.17 But the significance of this mode in according recognition is
questionable, because recognition is a unilateral and discretionary act of a State.
Participation in an international conference with an unrecognised State or government
will not indicate recognition if it is made clear that it is not intended to have that effect.
The United States and the United Kingdom have quite often entered a caveat against such
a construction. For example, the final paragraph of the Berlin Conference of Foreign
Ministers of France, the United Kingdom, the United States, and the Soviet Union, held
in 1954 in preparation for the holding of the Geneva Conference on Korea and Indo-
China, inviting China, two Koreas and “other interested States”, stated:
It is understood that neither the invitation to, nor the holding of, the above mentioned
conference shall be deemed to imply diplomatic recognition in any case where it has not
already been accorded.18
The United States, which was a party along with People’s Republic of China to the
Geneva Protocols on French Indo-China of 1954 and 1972, declared at the time of
signing that it was not to be construed as according diplomatic recognition to the Red
Chinese regime.19
However, recognition of laws proclaimed by a particular entity, does not necessarily
import recognition of that entity. It is also important to note that non-recognition is not
necessarily accompanied by non-intercourse just like recognition does not always
manifest into intercourse between the two. For example, India recognised Israel in 1950,
but established diplomatic relations in January 1992. States sometimes send special
missions to non-recognising territories for trade and traffic or other purposes and even
consuls are appointed, but States, while making such appointments, are generally careful
not to convey their recognition.20
__________________
16 See US Court of Appeal’s observation in Republic of China v. Merchants’ Fire
Ass. Corp., 30F (2d) 278 (1929) about a treaty of commerce between United States and
the Nationalist Government of China in 1928. The signing of the Treaty between Israel
and Jordon on Oct. 26, 1994, signified recognition of each other.
17 H. Lauterpacht, however, is of the view that these acts do not constitute
recognition, sec Recognition in International Law (Cambridge University Press,
Cambridge), 1948, p. 405.
18 Op. cit. 15, at p. 50.

19 Ibid., at p. 51.
20 President Nixon’s visit to China in 1972, and his meeting with Chairman Mao-
tse-tung, paved the way for the establishment of a liaison office in each other’s capital,
though formal recognition by the United States to Chinese regime was granted only in
1979.

B. Theories of Recognition
The legal significance of recognition under international law remains controversial.
Different theories have been propounded about the nature and actual import of
recognition.
1. Constitutive theory
This theory attaches considerable importance to recognition. According to this theory, it
is through the act of recognition alone that a new State emerges as an international person
or a new government derives the requisite authority or status in the international arena. In
Oppenheim’s view, “a State is, and becomes, an international person through recognition
only and exclusively”.21 This theory has also been advocated by Anzilotti and Holland.
The theory advocates that a new entity cannot become a State ipso facto, but has to be
recognised by other nations to become an international person.
But this theory has serious drawbacks and is not supported by State practice. When a new
entity emerges with all the attributes of Statehood, it is not recognised by all States
simultaneously. This creates an anomalous situation about which Brierly observes: “The
status of a State recognised by State A but not recognised by State B, and therefore,
apparently both an ‘international person’ and not an ‘international person’ at the same
time, would be a legal curiosity”.22 As the timing of recognition in most cases differs
between States, does it mean that a new entity exists as a State for some States but not for
others? This clearly shows that recognition is not a conclusive proof of existence of a
State. On the other hand, the State practice confirms that the non-recognition does not
prima facie entail non-existence of an entity or government. States do not refrain from
bringing claims against unrecognised States or governments under international law. The
Pueblo case23 between the United States and North Korea, which was not recognised as
a State by the United States, and the Tinoco Concessions Arbitration24 between the
United Kingdom and Costa Rica whose government was not recognised by the United
Kingdom clarify this point.
In the Pueblo case, the United States vessel was captured by North Korea on January 23,
1968, for spying in North Korean territorial waters, which was subsequently released
without trial upon the United States signing a document indicating that the Pueblo was
spying. In the Tinoco Concessions case, the Tinoco Government took over power of the
country by force in February 1917, and proclaimed its own constitution. The government
remained in power till August 1919, when it was ousted. The new government revived
the earlier constitution and by passing a decree repudiated certain obligations undertaken
by the Tinoco Government, including towards the British nationals. The Tinoco
Government was not recognised by many nations, including the United Kingdom. The
United Kingdom brought a claim, on behalf of
__________________
21 Op. cit. 3, at p. 125. Oppenheim further states, “International Law does not say
that a State is not in existence as long as it is not recognised, but it takes no notice of it
before its recognition. Through recognition only and exclusively a State becomes an
International Person and a subject of International Law”, at p. 117.
22 J.L. Brierly, The Law of Nations, 6th ed. (Clarendon Press, Oxford), 1963, p. 138.

23 62 AJIL 756 (1968).

24 1 RIAA 369 (1923).

its nationals, against Costa Rica which disputed the claim as inadmissible because of the
nonrecognition of Tinoco Government by the United Kingdom. The arbitrator, while
observing that the United Kingdom can bring a claim against Costa Rica, on the issue of
non-recognition stated:
Undoubtedly recognition ... is an important evidential factor, in establishing proof of the
existence of a government in the society of nations ... non-recognition for any reason,
however, cannot outweigh the evidence ... as to the de facto character of Tinoco’s
Government, according to the standard set by international law.
Similarly, in the incident of shooting down of British aeroplanes over Egypt in January
1949 by Israeli airmen, the British Government, which had not recognised Israel at that
time, informed the Israeli Government that Britain would demand compensation.25
These cases suggest that recognition is simply an evidence that international law
requirements are met.
The theory, if taken to its logical conclusion, means that an unrecognised entity would
neither have rights nor duties under international law, which obviously would lead to
absurd conclusions. For example, People’s Republic Government of China was not
recognised by the United States till 1979, or Bangladesh was recognised sometime after
its creation by Pakistan, Albania and China, but it could not be stated that neither of
them, i.e., the Chinese Government or Bangladesh, had rights or duties under
international law.
The theory is also not plausible for two other reasons. Firstly, recognition is a political act
of a State, which is accorded for political and diplomatic exigencies of the recognising
State. States grant, delay or refuse recognition to a newly formed State or government to
further their national interest,26 which means recognition merely follows the cognition of
the fact of a new entity.27 Secondly, the rule that recognition has retroactive effect,
dating back to the time of the actual inception of the State, when the requirement of
Statehood were in fact fulfilled, and giving effect to all the acts and laws from that date
does not lend credence to “constitutive” theory. In the courts of the recognising State, the
relevant date for taking cognizance of the laws of the recognised entity is the date when
the requirements of Statehood were in fact fulfilled. The basic idea behind the rule of
retroactivity is that there should be continuity in the essence of State sovereignty or
governmental authority, which would otherwise make many transactions entered into by
unrecognised entity with private citizens of a State null and void during the period of
non-recognition.
This theory, in fact, is the extreme manifestation of the concept of State sovereignty, i.e.,
that without the consent of the State, a new entity does not emerge in international law.
__________________
25 J.L. Brierly, at p. 139, n. I. The UK Government also claimed compensation from
the unrecognised Taiwan Government for damage done to its vessels by the Taiwan
forces, see 61 CLQ 507 (1957).
26 In 1903, the United States recognised Panama three days after it had revolted
from Columbia and in 1948, Israel was granted recognition within few hours. On the
other hand. People’s Republic of China’s Government was granted recognition only in
1979, almost 30 years after it came into power.

27 Article 9 of the Charter of the Organisation of American States, 1948 provides,

“The political existence of the State is independent of recognition by other States”.

2. Declaratory theory
In contrast to the constitutive theory, the declaratory theory (also called evidentiary
theory) considers that a new State or a new government exists independent of
recognition. The recognition is merely an evidence of the fact that the new entity fulfils
the essentials of Statehood or of a government. The primary function of recognition is to
formally acknowledge an established fact and recognising the State’s willingness to
accept the consequences of that fact. Hall, Fisher and Brierly are its main advocates.
Brierly says: “A State may exist without being recognised, and if it does exist in fact,
then, whether or not it has been formally recognised by other States, it has a right to be
treated by them as a State”;28 According to these theorists, the recognition is required
only for the reason that it enables the new entity to enter into official intercourse with
other nations.
State practice widely confirms the evidentiary theory because of the political nature of
the act of recognition. Also refusal by a single State or few insignificant States would not
affect the situation if the majority of nations have granted recognition.29 The State
practice and judicial precedents to the effect that a non-recognised entity is bound by its
international obligations further strengthen the declaratory theory.30
However, this theory alone does not convey the exact position. An entity or a government
although would come into existence upon its fulfilling all the necessary requisites, would
not have the legal relationship with other subjects of international law unless recognised.
Further, it is upon recognition that the new entity gets a juridical status under the
municipal law of the recognising State and to that extent, recognition is constitutive in
nature.
To make these theories more plausible, Kelsen has made a distinction between natural
Statehood and juridical Statehood. A State having all the attributes of Statehood acquires
an international personality in the natural sense, where upon it gets all the rights under
international law, i.e., inviolability of its territory, sovereignty or political integrity,
independent of recognition by other States. But upon recognition, it acquires the juridical
Statehood with more specific rights accompanying it. Thus, recognition although
declaratory of the existence of natural Statehood is constitutive of juridical Statehood.31
Kelsen’s theory, in fact, is a modified form of constitutive theory. However, despite
bestowing certain specific rights upon a new entity or a government and thus being
constitutive in nature, recognition is primarily declaratory in effect.
C. Absence of Duty to Recognise
Looking into the constitutive nature of recognition, the varied practice of States about the
timing in granting recognition, and in the absence of any central machinery to regulate
the State conduct,
__________________
28 J.L. Brierly, op. cit. 22, p. 139.
29 The Institute of International Law in its Res. of 1936 stated 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 recognise, see op. cit. 1.
30 The Arbitral Commission of the EC conference on Yugoslavia (Badinter
Commission) was of the opinion that recognition of States is “purely declaratory’ in

effect, although it did confer certain rights and obligations under international law. See
opinions No. 1 and No. 8 in 92 ILR 162 and 92 ILR 199; D.J. Harris, Cases and Materials
on International Law, 7th ed. (Sweet and Maxwell, London), 2010, pp. 131, 135.
31 H. Kelsen, Recognition in international law, 35 AJIL 605 (1941).

some writers have proposed that once an entity fulfils the factual characteristics of
Statehood, there becomes a legal duty of all States to grant recognition to the new entity
becausc without recognition it cannot have legal rights and duties under international law.
Lauterpacht is the chief proponent of this view. He states:
To recognise a community as a State is to declare that it fulfils the conditions of
Statehood as required by international law. If these conditions are present, existing states
are under the duty to grant recognition... Although recognition is ... declaratory of an
existing fact, such declaration, made in the impartial fulfilment of a legal duty, is
constitutive as between the recognising State and the community so recognised....32
But the State practice does not support this proposition and States do not consider
recognition as a duty. In 1976, the United States State Department stated, “In the view of
the United States, international law does not require a State to recognise another entity as
a State, it is a matter for the judgment of each State whether an entity merits recognition
as a State”.33 [emphasis added]. States grant or withhold recognition at their sovereign
discretion and for withholding, they give legal reasons.
Another difficulty in accepting recognition as a State duty is related to the manner and
the party competent to enforce it. If States are under a duty, it logically invests the new
entity with a corresponding right to be recognised. But the supporters of this duty concept
fail to satisfy these quaerers. In fact, there is no evidence of such a duty existing under
international law, or to withdraw recognition if any of the qualifications of Statehood or
of governmental authority cease to exist. It is a “facultative” and not an “obligatory” act,
which the duty concept entails.
However, it is amply clear that though States may withhold recognition on extra-legal
considerations, but once an entity fulfils the necessary requisites, it cannot be ignored by
international community. Generally, while granting recognition, the States satisfy
themselves about the legal requirements, i.e., whether or not the new entity fulfils the
requisite qualifications, and to this extent, “States do treat recognition as a legal act”.34
D. Collective Recognition
International law does not prescribe or prohibit the grant of collective recognition nor
does it preclude derecognition. States may, however, collectively grant recognition. As
recognition is considered to be a unilateral act of a State, collective recognition is not in
practice, although its possibility cannot be ruled out. Rather, it would have an advantage
over the unilateral act by obviating the embarrassment so very characteristic of the
unilateral act of recognition. Collective recognition can be granted by States through
some collective international act or through the medium of an international institution. In
the past, Berlin Congress of 1878 granted recognition to Bulgaria, Serbia, Roumania and
Montenegro; and Allied Powers to Estonia and Albania in
__________________
32 H. Lauterpacht, op. cit. 17, p. 16.
33 72 AJIL 337 (1978). However, where a new State had emerged as a result of
decolonisation, some States considered themselves bound to recognise them.
1989, p. 135.

1921.35 The Eur0pean Commission recognised the three Baltic States of Estonia, Lativia
and Lithuania in August 1991. The recognition of the Balkan States in January 1992 was
the result of EC declaration on Yugoslavia in December 1991, after the disintegration of
the Socialist Federal Republic of Yugoslavia (SFRY). But admission to the membership
of an international institution, such as the United Nations Organisation, raises the
problem whether this act of admission amounts to recognition of the applicant as a State,
and if a new member State has not been recognised as a State, what would be the effect
of the actual voting on its application for membership?
In the United Nations membership case,36 the International Court of Justice stated that
admission of a new entity to the United Nations is merely an acknowledgement by the
organisation that the new member is a State. Admission to the membership may not
amount to collective recognition. This position was further clarified by the United
Nations Secretary General in a Memorandum of March 8, 1950, by stating that:
Since recognition of either State or government is an individual act, and either admission
to membership or acceptance of representation in the organisation are collective acts, it
would appear to be legally inadmissible to condition the latter acts by a requirement that
they be preceded by individual recognition.
Further, it stated that “such a vote did not imply recognition or readiness to assume
diplomatic relations”.37 Thus, it clearly rejected the inference that admission to the
United Nations amounts to recognition.
Nevertheless, it must be stated that under international law recognition plays two
important roles, i.e., as far as the recognising State is concerned, recognition only means
that it proposes to treat the new entity as a State, while for the international community,
recognition is an evidence of Statehood of the new entity. Admission to membership
fulfils the latter function, namely, the organisation purposes to treat the new entity as a
State for its purposes. For individual States, this act of admission is of probative value
about the existence of an entity as a State. Further, since the existence of a State under
international law is independent of individual acts of recognition, collective decisions
taken or views expressed by the member nations at the time of admission, should not
affect the attitude maintained by an individual member on recognition.
Apart from the question of admission of a new member State to the United Nations,
disputes have arisen about the acceptance of the credentials of the government of an
existing member State where the change of government has occurred through revolution.
The credentials of a new representative from an existing member State, following a
change in government, are normally accepted, but in the case of acceptance of the
credentials of a revolutionary government, the problem involved is that whether the same
considerations should be taken into account as in the recognition of a government which
comes into power through constitutional means. This problem arose in the most stark
manner in the case of the Communist Government of China.
__________________
35 Ibid., at p. 137. In December 1991, the European Commission issued guidelines
on the recognition of new States in Eastern Europe and in the Soviet Union. Following
this, 11 of the 15 republics of the former USSR were recognized as independent States.
36 (194 8) ICJ Rep., p. 57.

37 UN Doc. S/1466, SCOR, 51h year Supp. (Jan.-May, 1950), see 44 AJIL 549
(1950).

China, an original member of the United Nations, was represented by the Nationalist
Government of China led by Chiang Kai Shek. In October 1949, Communist Government
of China gained the total control of mainland China and the Nationalist Government was
driven to Formosa (Taiwan). The Communist Government was recognised by many
nations, including the United Kingdom, but not by the United States, which invoked Art.
4 of the Charter stating that the Communist Government was not “peace loving” to
prevent its representation in various organs of the United Nations.38
The United Nations Secretary General termed the connection created between recognition
and representation as “unfortunate from the practical standpoint, and wrong from the
standpoint of legal theory”. He was of the view that the two matters, i.e., recognition and
representation, rested on different considerations, and that the United Nations
representation must rest, inter alia, on the capacity to undertake the obligations of the
membership of the United Nations.39 Linking recognition with representation will
virtually lead to the denial to a member State its due right of participation in the United
Nations for all practical purposes unless the credentials of effective government are
accepted. The controversy centring around the representation of the Communist
Government of China could finally be resolved only in 1971, when the United States
relented.40 However, this failed to resolve the basic issue involved in this controversy
that whether the United Nations can refuse to accept the credentials of a government
which is in effective control of the State. Nonetheless, it is clear from the United Nations
practice, that whatever stand the individual States may take in according recognition, they
are not entitled to accord United Nations representation to a government which is
unstable and not in actual control of the national territory.41
The issue of credentials was also raised by Pakistan after India’s independence, when
India was bifurcated into India and Pakistan. India was the original member of the United
Nations. The Security Council decided to ask Pakistan to apply afresh for membership as
a new member of the United Nations.
E. Recognition of Governments
The government is the sole representative of a State at the international arena.
Recognition granted to a government signifies that the recognising State considers the
government in power as the sole representative of the State. It is governed by the similar
political and diplomatic considerations
__________________
38 Invocation of Art. 4 cannot be justified in such cases because Art. 4 is related to
admission to membership and not to representation. If a government is continuously in
violation of the Charter principles, it can be expelled from the Organisation under Art. 6,
as was done in the case of Yugoslavia, which was expelled from the United Nations
membership on Sept. 21, 1992. There is no provision in the Charter for the refusal to
accept the representation of a government which is in effective control of the State.
39 S/1466, op. cit. 37, pp. 18-23.
40 By Res. 2758 (XXVI) of Oct. 25, 1971, the General Assembly decided “to restore
all its rights to the People’s Republic of China and recognise the representatives of its
Government as the only legitimate representative of the China to the United Nations” and

through this resolution, the representatives of Nationalist Government of China were

expelled from the UN and its related organs.
41 For example, after the fluid situation for some time prior to 1975 in Khmer
Republic (Cambodia), the representation of Prince Norodom Sihanouk government was
accepted.

as in the case of a new State. Nonetheless, recognition accorded to the government is

independent of recognition granted to a State, except in the case of a nascent State where
it is recognised along with the government. Withholding recognition to a new
government does not amount to loss of recognition of an existing State as an international
person. In fact, once a State is recognised, its obligations towards other nations are not
affected because of change in government, which is entirely an internal change.42
However, States are under no legal duty to grant recognition to a new regime. It is a
discretionary act of a State; hence State practice is not uniform.
The subject of recognition of governments is particularly important when a new regime
takes over by revolution, coup d'etat, or by unconstitutional means. Where the change in
the government has taken place in accordance with the constitutional process of the State,
granting of recognition is merely a formality, which can be observed by sending a
congratulatory message to the new Head of the government. But where the change has
come by unconstitutional manner, States generally take into account the stability,
effectiveness and the control over the population of the territory of the new regime before
granting recognition. Otherwise it may amount to a premature act and unwarranted and
illegal intervention in the internal matters of another State, which will be in breach of
international law. Beside the act may be termed unfriendly by the legitimate government
in power.43 Where the recognising State is not satisfied about the effectiveness of the
new regime, it may still grant de facto recognition to test its stability, which may
subsequently be changed to de jure recognition.
A nascent State which has emerged as an independent State through constitutional
manner, such as in the case of a former trust or dependent territory, which was granted
independence by the tutelary or parent State already de jure recognised, the new' entity
would automatically get de jure recognition. This is what had happened precisely in the
case of recognition of a large number of Afro-Asian States which emerged as
independent countries after the Second World War. But where a nascent State comes into
existence through revolutionary means, recognition has a different connotation because
the new State has to be recognised along with its government and one cannot be
recognised without recognising the other. In such situations, States generally adopt the
policy of “wait-and-watch” before granting recognition, and prefer to grant de facto
recognition in the first instance to be followed by de jure recognition, unless there have
been political compulsions or it becomes strategically necessary to grant de jure
__________________
42 Cf. Tinoco Concessions case, op. cit. 24.
43 The first instance of premature recognition, which was also treated as intervention
by Great Britain was the French recognition of the United States Government in 1778. In
the case of the Biafran Government, which declared its independence from Nigeria on
May 30, 1967, it was recognised by five nations— Tanzania, Zambia, Gabon, Haiti and
Ivory Coast, though none of them established diplomatic relations with it. After its
unsuccessful war of independence, it surrendered to the Nigerian Federal forces on Jan.
12, 1970, and became part of Nigeria again. Arguably, the act of recognition by five
nations in the Nigerian civil war may amount to illegal intervention in Nigerian internal
affairs for which Nigeria could claim compensation under international law. However,

the subsequent practice of the United Nations in lending support to national liberation
movements, such as SWAPO or PLO, has discounted the view that such a diplomatic
assistance in granting recognition would amount to intervention. The recognition of
Croatia by the European Community on January 15, 1992 and subsequently of the
Bosnia-Herzegovina on April 6, 1992 and by the United States on April 7, 1992, when
these States were controlling only about one-third of the States’ territory can be termed as
pre-mature.

recognition at the first instance. For example, India was one of the early countries to
grant recognition to the Heng Samrin Government of Kampuchea on July 7, 1980, which
came into power with the help of Vietnamese forces in 1979. The recognition was
withheld by most of the countries.
The practice of granting recognition to governments has not found favour with jurists and
experts in international law. Judge Richard Baxter of the International Court of Justice
(1979-80) found it more problematic than of any help and opined that its partial
withdrawal will help in having smooth relations with States where revolutionary
governments take over.44 The “Estrada doctrine” propounded in 1930, by the then
Mexican foreign minister, laid down that it is the duty of a State to continue diplomatic
relations with States without regard to revolutionary changes. Mr. Estrada declared that
issuing of declarations to grant recognition “is an insulting practice” because it offends
the sovereignty of other nations as well as amounts to passing a judgment upon the
internal affairs of those nations.45 The increasing number of countries including the
United Kingdom and the United States, are taking into account this doctrine in the matter
of recognition of new revolutionary governments, i.e., the governments will not be
recognised at all.
Under the earlier United Kingdom practice adopted in 1951, the “effective control test”
criterion was followed to grant recognition to new revolutionary governments. It was
officially stated, by the then Foreign Secretary, “The conditions under international law'
for the recognition of a new regime as the de facto government of a State are that the new
regime has in fact effective control of the State’s territory and that this control seems
likely to continue”.46 However, since 1980, the United Kingdom, like many other
countries (particularly of Anglo- American system), is following the practice of granting
recognition to States only and not to governments. In 1980, the then Foreign Secretary,
Lord Carrington, stated in the House of Commons: “We shall continue to decide the
nature of our dealings with regimes which came to power unconstitutionally in the light
of our assessment of whether they are able of themselves to exercise effective control of
the territory of the State concerned, and seem likely to continue to do so”.47
Accordingly, the status of the new revolutionary government will be adjudged from the
“dealings” that the United Kingdom will have with it. This new approach, however, does
not basically change the criteria followed by the United Kingdom earlier, except that
there is no suggestion of a duty to recognise, nor it is bogged down by de facto or de jure
recognition, and the words “able of themselves” have been added, which indicates
emphasis on independence of the new regime.
__________________
44 See in L.T. Galloway, Recognising Foreign Governments: The Practice of the
United States (1978), Forward, p. xi.
45 2 Whiteman, pp. 85-86, (1963). On the other hand, “Tobar doctrine” (propounded
by Tobar of Ecuador in 1907) insisted on not granting recognition to any government
coming into existence by revolutionary means. The doctrine was incorporated by the five
Central American Republics in their treaties of 1907 and 1923.
46 485 HCD, Col. 2410, see also Greig, op. cit. 14, at p. 124.

47 H.L. Hansard, Debates of the United Kingdom Parliament, Vol. 408, Cols. 1121-
1122 (April 28, 1980) quoted in D.J. Harris. Cases and Materials on International Law,
6th ed. (Sweet and Maxwell, London), 2004, p. 155-156; C. Warbrick, 30 ICLQ 568
(1981).

The United States, since 1977, has also been following the same practice of not granting
recognition to governments. The United States State Department stated that “United
States practice has been to de-emphasise and avoid the use of recognition of changes of
governments”. The administration’s policy is that establishment of relations does not
involve approval or disapproval but merely demonstrates the willingness to conduct its
relations with other governments and have diplomatic relations with them.48 However,
the qualifying criterion is the display of “effective control” by the new regime. This
clearly indicates the implied acceptance of the “Estrada doctrine”. In 1978, while
recognising the Taraki Government in Afghanistan, the United States Government stated
that the important question is not recognition, but “whether diplomatic relations
continue”.49 Australia had similarly declared in 1988, its policy not to extend formal
recognition, whether de jure or de facto in future, but stated that it would replace
recognition by conduct of relations with new regimes “to the extent and in the manner
which may be required by the circumstances of each case”.50 Though India has not come
out clearly in favour of “Estrada doctrine” but in practice it is also adhering to it. For
example, the Afghan regime which took over in 1991, after the fall of the Najibullah
regime, was not formally recognised by India, though it maintained its diplomatic
relations with that regime. Similarly, with the new Karzai regime, it maintained
diplomatic relations.
Although the present trend is towards de-emphasising the recognition issue and its
importance has lessened, it is, however, doubtful whether this will be completely
eliminated because nations quite often consider political factors strong enough to make
them an issue for recognition.51 Thus, the United Kingdom refused to recognise the
Heng Samrin regime in Kampuchea (Cambodia), which came into power with the help of
the Vietnamese occupation army in 1979, for its continued dependence on the
Vietnamese army, but it recognised the Obote Government in Uganda while the
Tanzanian troops that had brought it to power were still in the country. Further, “Estrada
doctrine” does not lay down the general rule of international law, nor it is complete in
itself. The States at the time of recognition or establishing diplomatic relations invariably
take into account the stability of the regime and its factual control over the territory.
Like recognition of States, recognition of government can also be effected through
several ways, such as sending a formal note to the new' head of the government, by
public announcement, or receiving credentials of the envoy of the new government. It can
also be through an agreement, as India had granted recognition to the South African
Government on November 22, 1993, by entering into an agreement and both countries
have agreed to establish diplomatic relations with each other. Nonetheless, it is also not
uncommon for a State to terminate its diplomatic relations with another State as an act of
retorsion, as India did in 1971 during the Indo-Pak war, and later resumed them after the
Simla Agreement in July 1973.52
__________________
48 77 US State Dept. Bull. 462 (1977); (1977) USD1L, 19; Harris, ibid., p. 159.
49 On the contrary, the US Government and China expressly agreed to recognise
each other and establish diplomatic relations as of 1979. see. Joint Communique, US
Government and the People’s Republic of China’s Government in 73 AJIL 277 (1979).

50 J.G. Starke, Introduction to International Law, op. cit. 34, p. 138.

51 According to Galloway, there are about 30 countries adhering to “Estrada
doctrine” and there are over thirty States, which follow ad hoc policy based on political
considerations, see op. cit. 44, at p. 138.
52 The United Kingdom broke off diplomatic relations with Albania in 1946, Libya
in 1984, with Argentina in 1982 over the Falklands war (re-established in 1990), with
Syria in 1986 (for Syrian involvement in an attempt to blow up an El-Al Airliner) and
Iran in 1989 (over the Salman Rushdie affair).

When a new regime is recognised, officially it is considered to be in continuity of the old

government even if there has been a gap in granting recognition because for international
law purposes, the State’s legal capacity is not affected, hence, recognition is retroactive in
operation. However, so long as the new regime is not recognised, the official intercourse
remains suspended, which may revive when recognition is granted to the new regime. For
example, Col. Rabuka’s Government in Fiji in 1987, which came into power by coup
d’etat was not recognised by India following its racial and discriminatory policies against
Indians, and all trade and technical co-operation with Fiji were suspended, and the
diplomatic relations were snapped.
F. Conditional Recognition
Conditional recognition implies that the granting of recognition is made dependent upon
the fulfilment by the recognised entity of certain stipulations in addition to the normal
requirements. It was quite frequent in the nineteenth century but has disappeared from the
contemporary State practice. Its reference is found in the Berlin Congress of 1878, when
Great Britain, France, Italy and Germany at the time of recognising Bulgaria, Serbia,
Roumania and Montenegro imposed condition that these countries would not impose any
religious disabilities on any of their subjects.
As a legal concept, however, conditional recognition has no real significance. This is
partly for the reason that non-observance of the condition would not annul the
recognition, since recognition once given cannot be withdrawn. Further, recognition is
granted to a new entity, if in the opinion of the recognising State, it fulfils all the
attributes of Statehood and governmental authority and this is not affected by the
subsequent non-observance of the condition.53 Moreover, recognition being a unilateral
act of the recognising State, the recognised entity is clearly not bound to observe the
conditions which were thrusted upon it. Many of these conditions, such as holding the
free elections in future, observing the human rights or fulfilling the international
obligations, are imposed for political reasons and are expressed in political rather than in
legal terms.54 Because of the political nature of conditions, their non-observance would
not terminate the recognition, though it will make the relations unfriendly between the
recognising and recognised States. The recognising State may take any political action
open to it including breaking of diplomatic ties, diplomatic protest or any other form of
sanction.55 Because of these reasons, conditional recognition is now in disuse in
international relations.
G. Withdrawal of Recognition
Whether recognition once granted can be withdrawn, remains a controversial issue.
However, while discussing this issue, one must keep in mind the distinction between de
jure and de-facto
__________________
53 According to Baty, establishing relations with a new State implies recognition of
its Statehood, which implies that it cannot be conditional, either it is a fact or it is not, see
G. Baty, So called de facto recognition, 31 Yale Law Journal 469 (1922).
54 When the US granted recognition to the Government of Soviet Union, many of

the conditions in the Litvinov Agreement were political in nature, such as that the Soviet
Union would refrain from acts likely to cause disorder in the US, and their violation left
the United States with political remedies alone.
55 Great Britain recognised the Soviet Union de jure in 1924, later broke off
relations in 1927, re-established relations, but participated in expelling the Soviet Union
from the League of Nations in 1939. But none of these acts annulled the recognition of
the Soviet Union.

facto recognition as well as the distinction between the recognition of a State and a
government.
Prima facie, de jure recognition once granted cannot be withdrawn from a State or a
government. This holds true even if, in the first instance, recognition was granted with
conditions. Article 6 of the Montevideo Convention, 1933 supports this position, which
declares that de jure recognition is “unconditional and irrevocable”. Institute of
International Law in 1936 also opined that recognition once given is irrevocable.56 But
in practice, de jure recognition may be withdrawn when the State merges into another
State through annexation or conquest (recognition comes to an end in such a situation). In
the case of a government, when recognition is granted to the new governmental authority
which is in effective control of the territory, recognition accorded to the erstwhile
authority which is no more in control of the territory or is in exile, stands withdrawn. This
may even be effected by intimating the representative of the defunct State. Great Britain
withdrew recognition of Abyssinia (Ethiopia) and Haile Salessie’s Government, and
granted de jure recognition to the Italian annexation of Abyssinia and the Italian
authority. The recognising authority, nonetheless, at its discretion may not withdraw
recognition for political reasons even if the State has merged with another State and has
lost all the attributes of an independent State. For example, the United States and the
United Kingdom refused to accept the Soviet annexation of the Baltic States of Latvia,
Estonia and Lithuania in 1940, and had continued to accept diplomatic agents of these
States as accredited representatives of a de jure government.57
The position is different with de facto recognition which is provisional and implies some
degree of uncertainty about the future stability of the recognised entity. Once the stability
of the new entity is in suspect, recognition can be withdrawn. Further, it is operative on
the continued factual existence of the new entity and if the entity has ceased to exist, with
that recognition also comes to an end. De facto recognition does not affect the rights and
powers of a de jure government, which will come to an end only through the grant of de
jure recognition to the successor power.
II. DE JURE AND DE FACTO RECOGNITION

The countries belonging to the Anglo-American system observe the distinction between
the de jure and de facto recognition. Except in the case of nascent States, where the
recognition of Statehood and governmental authority is merged together, this distinction
between de jure and de facto recognition mainly relates to governments. The de jure or de
facto recognition conveys the status of a government which is either de jure or de facto.
The practice was much favoured by the United Kingdom, though it has been largely
discarded since 1980 after the United Kingdom has adopted the new policy of not
recognising the governments.58 The contemporary American practice also does not
adhere to this distinction. It is also not observed by those countries that follow the
“Estrada doctrine”.
__________________
56 Op. cit. 1, p. 1.
However, on Sept. 2, 1991, the United States acknowledged their independence from the
Soviet Union, which they declared on Aug. 21, 1991

58 See op. cit. 47.

In the case of nascent States, the State practice differs. Sometime the recognition is
withheld altogether, as was the case with the German Democratic Republic before 1974,
which was not recognised by most of the countries till then,59 or the practice is to accord
recognition to the government and not to the State. For example, India was not
recognised as an independent State before August 15, 1947, but the United States took
certain steps to recognise the de facto status of the interim government of India prior to
that date and in February 1947, received the Indian Ambassador representing the
Government of India.60
When in the opinion of the recognising State, the new State or government, lacks stability
and permanency, or does not possess all the essentials required under international law
for its effective participation in international affairs, but fulfils these requirements in fact,
it may grant recognition to the latter provisionally with all due reservations for the future.
This is termed as de facto recognition. On the other hand, in de jure recognition, if the
recognising authority considers that the new State or government fulfils all the attributes
essential for its effective participation in the international community, the former may
grant the recognition to the latter formally. However both, de facto and de jure
recognition, are related to the fact that the recognised authority should have effective
control over a given area and it should have a semblance of permanence and stability. It
has generally been the practice to preface de jure recognition with de facto recognition,
particularly when the new government comes into power through unconstitutional means.
In choosing between the two, the recognising State while acknowledging that
circumstances require recognition to be accorded, conveys its disapproval of the new
regime by granting de facto rather than de jure recognition. Distinction between the two
can be described as a de jure government is one “which ought to possess the powders of
sovereignty, though at the time it may be deprived of them. A de facto government is one
which is really in possession of them although the possession may be wrongful or
precarious”.61 The de facto recognition enables the recognising authority to protect its
own economic interests and rights of its citizens in the recognised territory without
committing itself to condoning the illegalities or irregularities in the emergence of the
new regime, and for this reason, it may be considered as a necessary concomitant.
Once the de jure recognition is granted to a State or a government, it cannot be
withdrawn unless the State has ceased to exist or the government has been replaced by
another authority. But the de facto recognition implies some degree of uncertainty as to
the future stability of the recognised entity, hence it may be withdrawn if there is any
doubt about the new regime’s ability or it ceases to exist because it is dependent on the
continuous factual existence of the recognised entity. However, it is misleading to say
that de facto recognition is always tentative or revocable. On the contrary, it can be
substituted by de jure recognition when the recognising government is satisfied about the
stability and permanence of the new regime.62
__________________
59 It was due to the application of “Hallestein doctrine” by the United States, which
envisaged that a State could not have diplomatic relations with both Germanys-East and
West, at the same time.
60 Whiteman, op. cit. 45, at p. 164.

61 As per L.J. Banker, in Luthor v. Sagor (1921) 3 KB at p. 543.

62 The United Kingdom in granting de jure recognition applies the criterion
“whether a government can be held to enjoy with a reasonable prospect of permanence,
the obedience of the mass of the population and the effective control of much of the
greater part of the territory”, see government’s statement of July 4, 1973 in the House of
Commons, in HCD, Vol. 859, para. 521, quoted by D.W. Greig, op. cit. 14, p. 121.

A typical illustration of it was that of the Britain’s de facto recognition of the Soviet
Union on March 16, 1921, and later de jure on February 1, 1924.63 Similarly, the Italian
conquest of Abyssinia in 1936 was recognised by Britain de facto in 1936 and de jure in
1938. On the other hand, in the Spanish Civil War, Britain accorded de facto recognition
to Nationalist forces of General Franco which were increasingly occupying large area of
Spain, while still recognising de jure the Republican Government. Thus, the de facto
recognition is accorded in different circumstances for different reasons.64 In the cases of
Italian regime in Abyssinia and Nationalist Government in Spain, there were still de jure
governments in existence (though in the case of Abyssinia, it was government-in-exile),
recognition was clearly a sign of disapproval of the new regime, while not being totally
ambivalent to the reality of a new government’s coming into power. In the case of the
Soviet Union the original de jure government had ceased to exist; the de jure recognition
was delayed because of Russia’s continuous refusal to fulfil its international obligations.
The United States, however, grants recognition without referring to de facto or de jure
status of the new regime. The genuine disapproval of the new regime is shown by
withholding the recognition as was done in the case of the Soviet Union and the People’s
Republic of China’s Government, which were granted recognition in 1933 and 1979
respectively. Nevertheless, the United States Government acknowledged their de facto
existence, “A foreign government, although not recognised by the political arm of the
United States Government, may nevertheless have de facto existence which is juridically
cognisable. The acts of such a de facto government may affect the private rights and
obligations ... within the territory controlled by it”.65 The United States has repeatedly
paid regard to whether the new regime has shown willingness to discharge its
international obligations. In doing so, it has always used recognition as a tool in the
conduct of its international relations.
The legal distinction between de jure and de facto recognition is more pronounced in the
municipal law of the recognising State than in the sphere of international law. In the
British practice, recognition de facto is conclusively binding like de jure recognition
before the municipal courts. The courts give due recognition to all the legislative acts of
the de facto recognised regime. In Luthor v. Sagor, the court clearly laid down that in
both the cases, “the Government in question acquires the right to be treated by the
recognising State as an independent State”.66 In this case, the defendant bought a
quantity of wood from the new Government of the Soviet Union in 1920. The Plaintiff (a
Russian company) claimed title to the wood on the ground that it had come from the
Plaintiff’s factory which was confiscated under the 1919 decree of the new Government.
Plaintiff’s main argument was that since the Soviet Union had not been recognised by the
British Government, the Soviet Government’s decree should not be recognised. When the
case came up before the court of first instance (King’s Court), the Soviet Government
had not yet been recognised
__________________
63 In the case of the Soviet Union, UK also insisted that the new government should
prove that it is able and willing to fulfil its international obligations.
64 In 1953, Britain granted de facto recognition to the new Government of Egypt
after the monarchy was overthrown, see HCD, Vol. 517, Col. 204 (June 30, 1953).

65 See Upright v. Mercury Business Machines Co. Inc 213 NYS 2d, 417 at p. 419
(1961). In this case the acts of a public institution of the GDR, which was not recognised
by the USA, were in issue.
66 Aksionairnoye Obschestvo A.M. Luthor v. James Sagor and Co. [1921] 3 KB 532
at p. 551.

by the British Government and hence was not entitled to recognition of its sovereign acts.
The court gave the judgment for the plaintiff67 But when the case came up in appeal, the
new Soviet regime was recognised de facto by Great Britain (March 16, 1921). The court
gave judgment for the defendant by reversing the judgment of the court below and
observed:
The Government of the country having ... recognised the Soviet Government as the
Government really in possession of the powers of sovereignty in Russia, the acts of that
Government must be treated by the courts of this country with all the respect due to the
acts of a duly recognised foreign sovereign State.68
It is also evident from the case that even de facto recognition has retroactive operation
and, further, a non-recognised government does not have any locus standi before the
municipal courts.
However, in certain cases, a conflict situation may arise between a newly de facto
recognised regime and a displaced de jure government of the same territory. In such a
case, so far as matters related to the territory under the control of de facto government are
concerned, the laws and rights of the de facto government would prevail. In Arantzazu
Mendi,69 the right of the de facto government headed by General Franco was upheld
over the Republican Government, which was continued to be recognised as de jure
government of Spain. The case was concerned with the claim of possession of Arantzazu
Mendi, a ship registered at the port of Bilbao which was under the effective control of
Nationalist Government during the Spanish civil war (1936-38). The ship was arrested by
the Admiralty Marshal on the writ in rem for possession by the owners of the ship. The
Nationalist Government, with the consent of the owners, requisitioned the vessel. The
Republican Government also applied for a writ in rem for its possession, which was
opposed by the Nationalist Government on the ground that the court had no jurisdiction
to implead a foreign government. The claim of the Nationalist Government was accepted
by the court. The argument put up by the de jure government that the Franco’s
administration was not of a sovereign State as it did not occupy the whole of Spain was
rejected. Similarly, in the case of Bank of Ethiopia v. National Bank of Egypt and
Ligouri,70 the court ruled that in view of the fact that the British Government had granted
recognition to the Italian Government as the de facto Government of Abyssinia, effect
must be given to an Italian decree in Abyssinia dissolving the plaintiff’s bank and
appointing liquidator. These cases have established the jurisdictional immunity of a de
facto government and have done away with the distinction between de facto and de jure
recognition to a great extent.
Nevertheless, there are still discernible distinctions between the two:
1. While de facto recognition is conditional and temporary, de jure recognition is
formal and final. De facto recognition can be withdrawn for many reasons other than
those justifying the withdrawal of de jure recognition.
__________________
67 [1921] I KB 456,
68 See op. cit. 66.
69 [1939] AC 256.
70 [1937] Ch. 513.

2. The diplomatic relations can be established with de jure entities only, and the
representatives of de jure recognised entities alone are entitled to full diplomatic
immunities and privileges.71
3. Only a de jure recognised regime can claim to receive property located in the
territory of recognising State.72
4. Only the de jure State or government is entitled to espouse the cause of its citizens
and exercise diplomatic protection for the injuries suffered by them out of the breach of
international law by the recognising State and can succeed the old State.
5. If a sovereign State grants independence to its dependency or creates a separate
State out of its territory, then the new State can be recognised de jure only. But the acts
done or decisions taken related to that territory by the sovereign State would be attributed
to the new de jure recognised State.73
III. RETROACTIVE EFFECT OF RECOGNITION

State practice on recognition is not uniform and States grant recognition to a new entity
or a regime at different dates. If recognition becomes operative from the date it is granted
this would make all the legislative or administrative acts of the new State prior to
recognition as nullities before the courts of the recognising State. This situation is
avoided by the principle of retroactivity, i.e., recognition relates back from the date of
inception of that entity or government. All the acts of a newly recognised entity done
during the intervening period are given effect by the courts of the recognising State.
Except in the case of nascent States, it is further necessary for the continuity of the
State’s legal capacity for international law purposes. This practice is followed by the
countries belonging to the Anglo-American system, but there is no such rule under
international law to this effect. The extent of the retroactive effect of recognition depends
entirely upon the intention and national policy of the recognising State.
The principle finds wide latitude in British practice, especially in the light of de jure and
de facto recognition, and where two competing authorities have existed for a particular
territory, one recognised de facto and other de jure. The normal effect of recognition is to
validate the
__________________
71 The United States does not maintain this distinction and may have diplomatic
relations with de facto governments, for example, il received the Indian ambassador of
the Interim Government of India in Feb. 1947, though India became independent in Aug.
1947. This also amounted to accepting the de facto status of the Indian Government.
72 Haile Salassie v. Cable and Wireless Ltd. (No. 2) [1938] 54 TLR 1087. The decision,
however, was reversed after the United Kingdom granted de jure recognition to Italian
conquest of Abyssinia. The Soviet Government could get the possession of Tzarist
archives and other property in Britain only after its de jure recognition by the British
Government in Feb. 1924.
73 Gur Corp. v. Trust Bank of Africa Ltd. [ 1987] 1 QB 599 (CA); Carl Zeiss Stifung v.
Rayner and Keeler Ltd. (No. 2) [1967] 1 AC 853 (H.L.); see, decision to the contrary in
Adams v. Adams [1970] 3 All ER 572.

decrees or Acts of the previously unrecognised entity,74 or, in the case of de jure
recognition, to give to the new de jure government the right to enforce its claims
retroactively extra-territorially. The case of Haile Salassie v. Cable and Wireless Ltd.15
when came in appeal, de jure recognition was withdrawn from the Haile Selassie
government and accorded to the King of Italy as sovereign of Abyssinia, which led to the
decision that it was the Italian authorities which became entitled to recover debt from the
company due to the Ethiopian State in England. Thus, a judgment of the court below may
be set aside in appeal if before or at the time of appeal, the British Government grants
recognition to a new government or State. On the other hand, a cause of action filed by a
de jure recognised government may be nullified if at the time of hearing, the British
Government recognises de jure another government which was in de facto control of the
territory (and recognised as such) when the action was initiated.76
However, the withdrawal of de jure recognition from the predecessor and the retroactive
effect of according de jure recognition to the successor do not affect the validity of
transactions already completed by the previous regime. In such matters, generally, the
courts take into account the certificates of the executive which are conclusive about the
extent of recognition and if the certificate clearly establishes that it is not to relate back,
courts will not give it retroactive effect. In Gydnia Ameryka Linie v. Boguslawski,77 the
court was confronted with the issue of the extent of retroactive operation of de jure
recognition granted by Great Britain to the Lublin Government in Poland at mid-night of
July 5-6, 1945, and withdrew recognition from the London based Polish government-in-
exile. The Minister of Shipping of the government-in-exile, on July
3, 1945, entered into an agreement with seamen of the Polish mercantile marine by
which they were given a choice between returning to Poland or of leaving the shipping
line and receiving a gratuity. The two respondents in this case accepted the offer of
gratuity. When their employers refused to pay the promised gratuities, they sought the
intervention of the court. The contention of the defendants was that the Lublin
Government in Poland established itself on June 28, 1945, which had made the
agreement signed on July 3 infractuous, due to the retroactive operation of de jure
recognition granted by Great Britain on July 5-6, 1945.
The Foreign Office left it to the court to decide about the retroactivity of recognition. The
House of Lords upheld the agreement and unanimously decided that the Lublin
Government’s recognition might be retroactive in its effect in Poland where it had an
effective control, but it could not have retroactive operation on events over which it had
no control, i.e., which were outside its territory. Similarly, in Civil Air Transport
Incorporation v. Central Air Transport Corporation,78 40 aircrafts, which were flown to
Hong Kong from Mainland China in October 1949, were sold on December 12, 1949 by
the Nationalist Government of China, recognised
__________________
74 Luthor v. Sagor, op. cit. 66 and 67. In this case by the time it went to the Court of
Appeal, the Soviet regime was recognised de facto by the British Government, with the
result that the court held that it was operative from the time the Soviet regime seized
power and set aside the judgment of the King’s Court.

75 See op. cit. 72; [1939] 1 Ch. 194, in appeal from the judgment of the court of first
instance [1939] 1 Ch. 182.
76 Cf. Bank of Ethiopia v. National Bank of Egypt and Liguori, op. cit. 70.
77 [1953] AC 11.
78 [1953] AC 70.

as the de jure government of China by Great Britain at that time, to two United States
citizens, who then sold them to the appellants. The respondent corporation was an organ
of the Chinese government. Many of the employees of the respondent together with their
chairman in Hong Kong defected to the People’s Republic of China’s Government which
was recognised de jure by Great Britain on January 5-6, 1950. The question in issue
before the Privy Council was whether this recognition will invalidate the sale contract
entered into on December 12, 1949, since the People’s Republic Government came into
power in October 1949. The Privy Council while upholding the sale contract entered into
by the then de jure government who was competent to sell them, observed:
Primarily ... retroactivity of recognition operates to validate acts of de facto government
which has subsequently become the new de jure government and not to invalidate acts of
the previous de jure government.79
These cases clearly establish that de jure recognition does not operate retroactively so as
to affect acts done outside the territory of the recognised State, but then this depends
upon the intention of the recognising State.
In the United States, though does not follow the distinction between de jure and de facto
recognition, the law on retroactivity is essentially similar to that in England, as is evident
in Lehigh Valley Rail Co. v. Russia80 and US v. Belmont.8I Both the cases related to the
recognition of the Soviet regime in Russia, which was not recognised by the United
States, instead it recognised the provisional Government of Russia as the successor to
Tzarist regime in 1917. In the case of Lehigh Valley Rail Co., the court observed that it
was only the acts of an unrecognised regime “performed in its own territory” that could
be “validated by the retroactive effect of recognition”; acts performed outside its own
territory could not be “validated by recognition”. The United States Supreme Court
endorsed this proposition in US v. Belmont case also.82
IV. LEGAL CONSEQUENCES OF RECOGNITION

The act of recognition creates twofold consequences: political and legal, and bestows on
the new State or regime a status under international law and municipal law vis-a-vis the
recognising State. At the political level, it indicates the willingness of the recognising
State to initiate international intercourse with the new territory. It is legally relevant
because it provides an evidence of the Statehood of the new entity, i.e., the new entity
fulfils all the required conditions. Once the State is recognised, it carries with it all the
appended privileges of membership of the society of States. It entitles the new entity to
conclude treaties and establish diplomatic relations with other nations, and creates
corresponding obligations for those nations under international law. It also bestows upon
the new entity or regime certain rights and privileges as a sovereign State under the
municipal law of the recognising State.
__________________
79 Ibid., at p. 94.
80 2 J F (2d) 396 at p. 401 (1927).
81 301 US 324 (1937).
82 But see the decision to the contrary in US v. Pink, 315 US 203 (1942).

The practice followed by Anglo-American courts has established that recognition entitles
a recognised entity to:
a. sue in the courts of law of the recognising State, and courts will give effect to its
past and present legislative and administrative acts;
b. claim sovereign immunity from legal action for its diplomatic representatives and
public property; and
c. demand and receive possession of public property belonging to recognised State.
A. The Position of Unrecognised Entity under Municipal Law
The non-recognition of a State or a government transmutes the consequences of
recognition into its disabilities, which means that an unrecognised entity will not have
any locus standi before the municipal courts of a State, which has not recognised it, nor
are its administrative and legislative acts given any effect. Its representatives are not
entitled to any diplomatic or jurisdictional immunity and it also cannot recover the public
property due to it.83
Granting of recognition is an executive act of a State. In the matters of recognition, courts
invariably seek the opinion of the executive, comment on the factual situation in the State
concerned, and the letters or certificates received by the judiciary from the foreign office
have conclusive force.84 It establishes that recognition is constitutive in its effect at the
municipal level. In the Duff Development Co. v. Kelantan Government,85 the respondent
pleaded sovereign immunity in an action brought by the appellant who contended that the
respondent was not an independent State and by agreeing to arbitrate, it had waived its
immunity, and hence amenable to the court’s jurisdiction. The court went along with the
Foreign Office statement recognising Kelantan as an independent State. On the waiver of
immunity by the Kelantan Government, the court observed that even if a sovereign had
agreed to submit to the jurisdiction, but refuses to do so later when the question arises,
that would not make him amenable to the jurisdiction of the court.
Where the answer of the Foreign Office or the Foreign Secretary is ambiguous or
incomplete or not sufficiently plain, the court is entitled to make its own independent
examination. However, a statement by the executive that a particular regime is not
recognised does not preclude the courts to examine the attributes of a State or
government for purposes other than jurisdictional immunity, i.e., for the acts of private
law nature, which are necessary for peace and good order among citizens. Thus, the
absence of recognition does not affect marriages duly performed, or transfers properly
registered, or acts not relevant to the power
__________________
83 Luthor v. Sagor. op. cit. 66. The principle was upheld even by the Court of
Appeal, though the decision was reversed on Russia’s recognition by Britain by then, see
op. cit. 67.
84 See Sec. 21 of the British State Immunity Act, 1978. see also Republic of Somalia
v. Woodhouse Drake Carey Suisse S.A., [1993] QB 54; Sierra Leone
Telecommunications Co. Ltd. V. Barclays Bank pic., [1998] All.ER 821 (QB).
85 [1924] AC 797 at p. 823 (H.L.).

or stability of the government. This is because there should not be any disruption in the
administration of justice.86
The United States practice is similar to the United Kingdom. The unrecognised State or
government has no locus standi in the United States’ courts. The courts go by the
pronouncements of the State Department on recognition and the extent of the policy of
non-recognition which the government wishes to apply.87 But, in contrast to the United
Kingdom position, the unrecognised government, if exercising authority in its territory in
fact, cannot be sued in an American court, which clearly means that the United States
does not equate non-recognition with non-existence. In Salimoff v. Standard Oil Co.,88
the effectiveness of Soviet decrees expropriating the plaintiff’s oil fields in Russia, and
selling a quantity of oil from the oil fields to the defendant’s company were for
consideration before the court. The court applied the private international law rule of lex
situs for this transaction and gave judgment for the defendant on the basis of the
certificate provided by the State Department, which stated that while the United States
had refused to recognise the Soviet regime, nevertheless it was “cognisant of the fact that
the Soviet regime is exercising control and power in territory of the former Russian
Empire ... has no disposition to ignore that fact”. On this basis, the court observed that the
Soviet regime “is a government in fact, its decrees have force within its borders and over
its nationals”.89
V. DOCTRINE OF NON-RECOGNITION
The doctrine of non-recognition, commonly called the Stimson Doctrine of non-
recognition, implies the withholding of recognition from new territorial titles or territorial
changes brought out by use of force or any other act of doubtful character depriving the
rightful claimant thereto. It is designed as a mark of protest against some international
illegality. The idea behind the doctrine is not to reward a State for its unlawful acts.
Granting of recognition will turn a bad title into a good one. A declaration of non-
recognition is necessary so as to defeat any claim based on acquiescence or prescription.
Nevertheless, the continuance of formal relations with the State that had violated the
international law, does not ipso facto amount to recognition of the new title.
The doctrine was propounded by the United States Secretary of State, Mr. Stimson, in
1932, after Japanese invaded and conquered Manchuria, then legally under the
sovereignty of China. The United States refused to recognise the Japanese conquest or
any treaty between
__________________
86 See Re Al-Fin Corporation's Patent [1970] Ch. 160, in which Plaintiff’s claim
under the Patents Act, 1949 was upheld even though North Korea was not recognised by
Britain de facto or de jure. See also Reel v. Holder [1981] 1 WLR 1226 (CA). But in
Adams v. Adams 11970] 3 All E.R. 572, the Court did not give effect to a divorce decree
granted by a Rhodesian court in 1970 on the ground that the judge who granted divorce
was appointed by the unrecognised Smith Government under its 1965 Constitution, not
recognised by British Court because decree was not valid under the 1961 Constitution
applicable to southern Rhodesia under the United Kingdom law. But Emin v, Yeldag
(2002) 1 F.L.R. 956 [Fam. D.] accepted ‘private rights’ exception for the divorce decree

granted by the court of Turkish Republic of Northern Cyprus (TNRC) with which UK
had no dealings, was supported by the British Court.
87 See The Meret, 145 F (2d) 431 (1944) and Lativan State Cargo Lines v. McGrath,
188 (2d) 1000 (1951).
88 186 NE 679 (1933).
89 Ibid., at p. 682.

Japan and China legalising the conquest. Expressing the United States position, Mr.
Stimson observed:
In view of the present situation ... the American Government deems it to be its duty to
notify both the Imperial Japanese Government and the Government of the Chinese
Republic that it cannot admit the legality of any situation de facto nor does it intend to
recognise any treaty or agreement entered into between those Governments ... which may
impair the treaty rights of the United States ... including those which relate to the
sovereignty, the independence, or the territorial and administrative integrity of the
Republic of China ... and that it does not intend to recognise any situation, treaty or
agreement which may be brought about by means contrary to the Pact of Paris.90
The Stimson declaration was endorsed by the Assembly of the League of Nations in its
resolution of March 11, 1932, which imposed a duty of non-recognition on member-
nations, and stated:
It is incumbent upon the Members of the League of Nations not to recognise any
situation, treaty, or agreement which may be brought about by means contrary to the
Covenant of the League of Nations or to the Pact of Paris.91
The duty of non-recognition was thus said to ensue from the provisions of the Pact of
Paris and from the Covenant of the League of Nations, which in Art. 10 stated, “Members
of the League undertake to respect and preserve as against external aggression the
territorial integrity and existing political independence of all Members of the League”.92
The United Nations Charter, on the other hand, does not have an equivalent provision in
the nature of Art. 10 of the Covenant of the League of Nations for the preservation of
territorial integrity, but prohibits the use of force under Art. 2(4). Hence, any breach of
territorial integrity in violation of Art. 2(4) logically would not be fit for recognition.
Article 25 of the Charter by making decisions of the Security Council binding on all the
members of the United Nations, also implies such a duty. But despite any clear directive
in the Charter, there is a discernible trend towards non-recognition in the United Nations
practice. Article 11 of the Draft Declaration on the Rights and Duties of States 1949,
clearly imposes a duty of non-recognition. The General Assembly Declaration on
Principles of International Law concerning Friendly Relations and Cooperation among
Nations proclaims, “No territorial acquisition resulting from the threat or use of force
shall be recognised as legal”.93 Similarly, Art. 5, para. 3 of the Definition of Aggression,
adopted by the General Assembly in 1974, provides, “No territorial acquisition or special
advantage resulting from aggression is or shall be recognised as lawful”.94 Article
_________________
90 Text in 1 Hackworth 334. The Pact of Paris, 1928 (also known as the Kellog-
Briand Pact for the Renunciation of War) was signed by the US and also by China and
Japan.
91 LNOJ, Special Supp. No. 101, pp. 87, 88 (1932)
92 In spite of this resolution and the provisions in the Covenant, the doctrine was
applied in a haphazard manner even in the period immediately thereafter. Whereas the
Italian invasion and subsequent annexation of Abyssinia in 1936 was generally
recognised, and Austria’s absorption into Germany tacitly accepted, but the annexation of
Baltic States by Russia in 1940 was not recognised by western States.

93 GA Res. 2625 (XXV) Oct. 24, 1970, para. 10 of the Principle against use of force.
94 GA Res. 3314 (XXIX) Dec. 14, 1974; 69 AJIL 480 (1975). Similar provision is
found in the Charter of Bagota of the Organisation of American States, 1948 (Art. 17).

52 of the Vienna Convention on the Law of Treaties, 1969, provides that a treaty is void
if its conclusion has been procured by threat or use of force.95 Thus, there is a clear
obligation of non-recognition on States of all illegal territorial acquisitions and unlawful
treaties.
However, under the United Nations practice, the question of obligatory non-recognition
substantially arose in the matter of South-West Africa (Namibia), which was a South
African mandate.96 The General Assembly terminated South African mandate over
South-West Africa (Namibia) on October 27, 1966 and South-West Africa came under
the direct control of the United Nations. The Security Council by its Resolution 276 of
1970 declared that “the continued presence of the South-African authorities in Namibia is
illegal and consequently all acts taken by the Government of South Africa on behalf of or
concerning Namibia after the termination of the mandate are illegal and invalid” (para. 2)
and called upon “all States, particularly those which have economic and other interests in
Namibia, to refrain from any dealings with the Government of South Africa which are
inconsistent with paragraph 2 ...” (para. 5). In its advisory opinion on the Legal
Consequences for States of the Continued Presence of South Africa in South-West Africa
(Namibia),97 of June 21, 1971, the International Court of Justice held these paragraphs
binding on all the member-nations of the United Nations. In pursuance of these
paragraphs, the member-nations were under a duty not to recognise the legality of South-
African presence in Namibia, were to abstain from sending diplomatic or special
missions in South- Africa, including the territory of Namibia, and to abstain from sending
consular agents to Namibia. The Court further restrained the member-nations from
entering into any economic or other forms of relationship or dealings with South Africa
concerning Namibia, in accordance with para. 5 of the Security Council Resolution 276.
The Court even imposed the duty of non-recognition on non-members of the United
Nations by stating: “the termination of the Mandate and the Declaration of the illegality
of South Africa’s presence in Namibia are opposable to all States in the sense of barring
erga omnes the legality of a situation which is maintained in violation of international
law”.98
After Namibia’s independence in 1990, the matter has become of historical and academic
interest but these pronouncements by different organs of the United Nations (General
Assembly, Security Council and the ICJ) have laid down the general rule of non-
recognition for all territorial changes brought, out in violation of international
obligations.
VI. RECOGNITION OF INSURGENCY AND BELLIGERENCY

Till recently, the subject of recognition of insurgency and belligerency, had become more
or less an academic one, but international situations in many parts of the world, as in
Afghanistan,
__________________
95 UN Doc. A/CONF. 39/27, May 23, 1969, Arts. 51 and 52.
96 The question of obligatory non-recognition also arose in connection with
Rhodesia which unilaterally declared independence from Britain in November 1965. The
Security Council imposed economic sanctions against Rhodesia and the United Kingdom

was asked to enforce these sanctions, SC Res. 221 (1966), SCOR, 21st year. Res. and
Decisions, p. 5. In 1979, the Security Council terminated these sanctions by Res. 460
(1979), following an agreement on Rhodesia’s independence. Rhodesia became an
independent State of Zimbabwe in April 1980, with the establishment of the non-white
majority government.
97 (1971) ICJ Rep., p. 16.
98 Ibid., at pp. 55-56.

erstwhile Yugoslavia (particularly in Bosnia-Herzegovina) and Sri Lanka, have aroused

the interest afresh in the subject. The earlier instance of its application could be found in
the Spanish civil war (1936-39) by the European nations.
Both, insurgency and belligerency are insurrection (i.e., an act or an instance of rising in
arms or open rebellion against civil authority or an established government) against an
existing government by a group for the purposes of obtaining power in whole or part of
the territory. Generally speaking, in such situations, outside powers maintain a policy of
non-interference unless their vital interests are at stake and it is to protect these interests
that recognition may be granted by them. But before they do so, certain conditions must
exist. For the recognition of insurgency, it is essential that: (a) insurgents should be in
effective occupation of a substantial part of the territory; (b) they should enjoy the
support from the majority of the population living in that territory; and (c) they should
have the will and capacity to carry out international obligations. On the other hand, when
the armed rebel against the established government reaches to such dimensions that it
gets the form of actual war between the established government and the insurgent forces,
the situation takes the form of belligerency. Recognition of belligerency is the
acknowledgement of a juridical fact that a state of hostilities between two factions
contending for power or authority exists. However, before belligerency is accorded
recognition, the recognising State must satisfy that: (a) the hostilities must not be local
(as in insurgency) but must be of a general character; (b) the insurgents must be in
occupation and control of a considerable portion of the national territory; (c) insurgents
forces must be properly commanded and they observe the rules of war; and (d) the
hostilities have reached to such a magnitude that outside powers may be compelled to
define their attitude towards belligerency. Recognition of belligerency, in fact, should be
followed by a declaration of neutrality."
The recognition of insurgency and belligerency helps the recognising State in protecting
its commercial interests, sea-borne trade from attacks and confiscation by the warring
groups, public property and the interests of its citizens in the territory under the control of
insurgents. It entitles the recognised forces not to be treated as pirates and rules of war
become applicable to them. Once recognition is granted, the parent government is
exonerated from any responsibility for acts committed in the territory occupied by
insurgents. After belligerency is recognised, the relationship of the belligerents and the
recognising State are governed by the rules of international law. Belligerency may
subsequently lead to the emergence of a new State or government.
But like recognition of States and governments, recognition of belligerency is also
motivated by political considerations, as it was evident during the Spanish civil war.
Because of the declared policy of “non-intervention” by European powers, many nations,
like Great Britain and France, did not recognise belligerency, instead Great Britain
granted de facto recognition to insurgents, Germany recognised belligerency. Further, as
in the matter of new entities or regimes, recognition of belligerency is not a matter of
duty but is merely facultative. Nevertheless, recognition of belligerency is distinct from
recognition of a State or government because it lasts as long the situation of belligerency
exists. After one group empowers the other, the question of recognition of rightful regime
arises.

_________________
99 J.L. Brierly, op. cit. 22, p. 141.

However, recognition of both insurgency and belligerency requires the occupation of

substantial national territory by rebel forces. In the case of insurgency, it is significant to
note that before the recognition is accorded, the length of insurrection and the insurgents’
capability to observe their international obligations must be taken into account. Where
the insurgent forces are not organised and the nature of hostilities is almost localised, the
States should desist from recognising them lest it may amount to unlawful interference in
the domestic affairs of another State. This will be illegal and in violation of the principles
of the United Nations (Art. 2(7)) and the 1970 General Assembly Declaration on Friendly
Relations and Cooperation among Nations.100 States sometime provide support to rebel
forces without according recognition to them, when they consider it to be premature to do
so. For example, the United States appointed a Special Envoy with the rank of an
ambassador in April 1989 for Afghanistan to demonstrate its continuing support to rebel
groups. This act of the United States was short of diplomatic recognition.
_________________
100 See op. cit. 93; see also R.C. Hingorani, Modern International Law, 2nd ed.
(Oxford & IBH Publishing Co., New Delhi), 1982, p. 88.

Page 133
CHAPTER 6
State Territory
I. GENERAL
The territory of a State is an important attribute of Statehood. It conveys its factual
existence and the basis for the exercise of its legal powers. It signifies the State’s title to
its territory and sets the limits of its territorial sovereignty.1 The importance of State
territory lies in the fact that it is the space within which a State exercises its supreme
authority. It exercises jurisdiction over persons and property to the exclusion of others
within this area. Territorial sovereignty is generally held to be indivisible, but there are
numerous instances in international practice of division of sovereignty as well as of
distribution of the components of sovereignty. For instance, in the case of leases and
pledges, the States may restrict their right or transfer territory by treaty. In condominium,
the sovereignty is quite often shared jointly by two or more States. For example, New
Hebridges, before becoming an independent Republic of Vanuatu on July 30, 1980, was
jointly administered by Great Britain and France.
The territory of a State comprises not only the land mass but its national waters, i.e.,
rivers, lakes, bays, estuaries, other enclosed areas and extends to maritime zone
(territorial sea) and the air space above its land and water territory. Beside territorial sea,
the coastal State also exercises certain sovereign rights over its contiguous zone,
continental shelf and Exclusive Economic Zone (EEZ). A State can also acquire
additional territorial rights over dependent territories or by way of leases or servitudes
over the territory of other States.
A State comes into existence with a territory and it may acquire new territories
subsequently. Acquisition of a new territory by a State means the acquisition of
sovereignty over such territory.
II. MODES OF ACQUISITION OF STATE TERRITORY

The modes to acquire territory are now essentially of academic interest until a dispute
arises and competing claims have to be assessed. A State may acquire the territory which
may be under the sovereignty of another State or which may not belong to any State, i.e.,
terra nullius. Whereas in the first case, the State gets a derivative title (i.e., transfer of
ownership from a previous sovereign) over the territory, in the latter case, it is the
original mode, where there is no transfer of ownership, but to establish a superior title, it
must be followed by occupation. The five modes
_________________
1 Max Huber, in the Island of Palmes Arbitration, stated: “Sovereignty in the
relation between States signifies independence. 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”, 22 AJIL 875 (1928).

of acquiring territory, given in many of the standard text books2 and accepted
traditionally are: occupation, accretion, cession, annexation and prescription, whose
terminology and characteristics are drawn from Roman law methods of acquiring private
ownership of land. Whereas occupation and accretion create original title, the cession is
clearly a derivative title. Annexation and acquisitive prescription are only derivative in
the sense that territory acquired by these methods was formerly under the sovereignty of
another State but they imply the destruction of the former title before a new title is
created. Consequently, annexation and acquisitive prescription create new and
independent title. However, their relevance as modes of acquisition under modern
international law cannot be adjudged in isolation from recognition and other rules of
international law, nor can there be a compartmentalised approach in their application to
contentious cases of relative title, i.e., to show a better title to possess. Further, these
modes apply to the acquisition of additional territory by an existing State and not to the
emergence of a new State either out of revolution or by peaceful means, such as
emancipation from colonialism. Their case pertains to the criterion of Statehood and
consequent recognition.
A. Occupation
Occupation gives a State original title to territory. Under international law, occupation is
an act of establishing sovereignty by a State over a terra nullius (i.e., a piece of territory
not under the sovereignty of any State). The term ‘occupation’ is derived from the Latin
word occupatio, which means acquisition of terra nullius, i.e., it is not under the
sovereignty of any other State, whether newly discovered or abandoned by the State
formerly in control. It is different from res communis, i.e., the area which is accessible to
all but legally cannot be acquired by any one, for example, the high seas and outer space.
Similarly, a territory inhabited by tribes or peoples having their own social and political
order cannot be of the nature of terra nullius, and thus, cannot be the subject matter of
occupation. It is through an agreement with the representatives of the local peoples or
tribes, that the territory can be acquired. This would amount to cession and not
occupation.3
In occupation, the principle of effectiveness is applied to acquire title over the territory.
The principle has two components, which must be ascertained to establish the
sovereignty: (a) there should be intention to occupy as sovereign, and (b) it should be
backed by adequate exercise or display of sovereignty.4 The intention to occupy as
sovereign is a matter of inference from
_________________
2 See, for example, J.L. Brierly, Law of Nations, 6th ed. (Clarendon Press, Oxford),
1963, pp. 163-173; J.G. Starke, Introduction to International Law, 10th ed. (Butterworths,
London), 1989, pp. 159-171; L. Oppenheim, International Law, edited by Jennings and
Watts, Vol. II-IV, 9th ed. (Longman, London), 1992, p. 696; M.B. Akehurst, A Modern
Introduction to International Law, 6th ed. (George Allen & Unwin, Sydney), 1987, pp.
143-50. But this classification has been termed as inadequate and unsound, see Brownlie,
Principles of Public International Law, 7th ed. (Oxford University Press. Oxford), 2008,

p. 127; G. Schwarzenberger. A Manual of International Law, 5th ed. (Stevens & Sons
Ltd., London), 1967, pp. 121- 133; D.N.H. Johnson, Cam. LJ. (1955), pp. 215-217.
3 Western Sahara case (1975) ICJ Rep., p. 12.
4 In Minquiers and Ecrehos case (1953) ICJ Rep., p. 47, the ICJ held that the
decisive factors for occupation are direct evidence of possession and the actual exercise
of sovereignty. See also Eastern Greenland case, PCIJ Rep., Sec. A/B, No. 53 (1933). In
the Island of Palmes case (1928) 2 RIAA 829, Judge Huber also emphasised on a
“continuous and peaceful display of State authority”.

Page 135 STATE TERRITORY
the circumstances, but unauthorised acts of the nationals of a State without subsequent
ratification cannot become the basis for a claim of occupation.5 Intention to occupy may
be manifested through certain symbolic acts, such as hoisting the national flag. But they
confer only “inchoate” title and must be accompanied by the continuous display of
sovereignty necessary to confirm the title signifying the “effective occupation” and
control over the territory by the occupying State.6 It may be manifested by overt or
symbolic acts or by legislative or administrative acts for the territory claimed or by
entering into treaties with other States recognising the claimant State’s sovereignty. But
the necessary degree of control or adequate display or exercise of sovereignty varies with
the circumstances.
In the Clipperton Island Arbitration (Mexico v. France), it was observed, “It is beyond
doubt that... besides the animus occupandi, the actual, and not the nominal, taking of
possession is a necessary condition of occupation. This taking of possession consists in
the act or series of acts, by which the occupying State reduces to its possession the
territory in question and takes steps to exercise exclusive authority there”.7 In this case,
sovereignty over the Clipperton Island was disputed. In November 1858, the French crew
landed at the uninhabitated Pacific Ocean island of Clipperton and soon was followed by
a declaration of sovereignty in a Honolulu journal. This was considered to be sufficient to
support the French claim over the island against Mexico which claimed sovereignty as
the successor State to Spain whose army stated to have discovered the island. The
tribunal failed to find any evidence of discovery by Spain, nor was there any proof of
historic right “supported by any manifestation of her sovereignty over the island” by
Mexico.
The consideration of “manifestation of sovereignty” also led the Permanent Court of
International Justice in the Eastern Greenland case8 in deciding that Danish sovereignty
extended over the entire Eastern Greenland and not simply over the colonised areas.
About the amount of authority which is required to establish sovereignty over areas of
thinly populated or unsettled territories, “very little in the way of actual exercise of
sovereign rights” might be sufficient in the absence of competing claim.9 Denmark was
exercising all sovereign acts over Eastern Greenland since 1814. In the Minquiers and
Ecrehos case, the International Court of Justice emphasised on the actual exercise of
“State functions” such as acts of jurisdiction, local administration and legislation, proving
thereby the continuous display of sovereignty required to confirm title. On this basis, the
Court upheld the British claim over the Channel Islets against France.10 Again in the
Sovereignty over Pulau Ligitan and Pulau Sipadan case between Indonesia and Malaysia
regarding sovereignty over two small islands off the coast of Borneo, the Court
_________________
5 Anglo-Norwegian Fisheries case (1951) ICJ Rep., p. 116 at p. 184 as per Judge
McNair.
6 O.G. Lissitzyn and F.A. Mann, however, view such acts sufficient to establish
immediately a right of sovereignty over such a territory, see Creation of Rights of
Sovereignty through Symbolic Acts 1400-1800 (1938), pp. 148-149; see also D.J. Harris,
Cases and Materials on International Law, 7th ed. (Sweet & Maxwell, London), 2010, pp.
167-168.

7 (1931) 6 AD, Case No. 50, at p. 107.

8 See op. cit. 4, p. 43.
9 Ibid., at p. 46. In the Clipperton Islands Arbitration, it was similarly held, see op.
cit. 7.
10 Op. cit. 4, at pp. 68-70. In the Western Sahara case also, the Court applied the
principle of effective display of sovereignty distinct from routine or inconclusive acts not
necessarily manifesting the firm intention of the State to establish territorial sovereignty,
supra note 3, paras. 92-93.

did not find any evidence of Indonesian effectivites (i.e., exercise of government
authority) and held they are Malaysian on the basis of “administrative assertions of
authority” by Malaysia.11 In Rann of Kutch case, the arbitrators considered the exercise
of economic activities and grazing rights by private landholders as evidence of title,
because in an agricultural economy, the criterion of the exercise of State sovereignty
through State functioning cannot be applied with the same firmness as in a modem
industrial economy. On this basis, they upheld the claim of India, and gave a small part of
Rann of Kutch to Pakistan on the ground of administrative convenience.12
Notification to other States for the territory so occupied is not essential to complete the
title. It is enough to show that it is effectively governed by the possessor which exercises
all the administrative, legislative and jurisdictional acts. In a dispute between India and
Bangladesh relating to the sovereignty over New Moore Island (being called South
Talpathy by Bangladesh and Purbasha by India) which is a 12 kilometre uninhabited
island in the estuary of Haribhanga river bordering India and Bangladesh in the Ganga-
Brahmaputra basin of Bay of Bengal and occupied by India, it was contended by India
that it had notified to the United Kingdom and the United States in 1971 about the
occupation, though notification to other States is not an essential condition. This was
done to show India’s intention and to remove any doubts as to its sovereignty. Since no
objection was raised by any country, including Bangladesh, Indian occupation may be
deemed to have been established.13
The mere act of discovery, whether it entitles a State to claim sovereignty over terra
nullius, was considered in the Island of Palmes Arbitration.14 The title over island of
Palmas (or Miangas) was disputed between the United States and the Netherlands. The
island lays halfway between Philippines and Indonesia. The United States laid its claim
as the successor to Spain over the Philippines, which discovered it in the sixteenth
century. On the other hand, the Netherlands based its claim on the long and continuous
display of sovereignty and submitted historical evidence to this effect. Max Huber, as the
sole arbitrator, while deciding in favour of the Netherlands, ruled that a mere act of
discovery by a State without more per se is not sufficient to confer a valid title over terra
nullius by occupation. It merely creates an “inchoate” title without external
manifestation, i.e., there must be a “continuous and peaceful display of territorial
sovereignty” by the State, and that territorial sovereignty has continued to exist in the
period leading up to the “critical date” (the date on which the location of territorial
sovereignty is decisive) relevant for the decision of the dispute. An “inchoate” title could
not prevail over the continuous and peaceful display of authority by another State; for
such a display may prevail even over a prior, definite title put forward by another
State.15 Thus, the effective occupation applies to the actual exercise of sovereignty.
_________________
11 (2002) ICJ Rep., p. 625 at 684. See also, the Land and Maritime Boundary
between Cameroon and Nigeria case (2002) ICJ Rep., p. 303.
12 See 7 ILM 633 at pp. 673-75 (1968).
13 H.O. Agarwal, International Law, 14th ed. (Central Law Publications), 2007, p.
175.
14 2 UNRIAA, p. 829; 22 AJIL 875 (1928); Harris, op. cit. 6, p. 163.

15 Harris, ibid, p. 167. In Eritrea v. Yemen (1998) 114 ILR 1 at 69, it was held that
“continuous and peaceful display of State authority” under modern international law
requires an intentional display of power and authority, by the exercise, of jurisdiction and
State functions, over the territory on a continuous and peaceful basis. These criteria are
tempered to suit the nature of the territory and the size of its population, if any.

Generally, possession of a part of the territory is regarded as the possession of all the
territory. However, certain theories have been advanced by States to determine the extent
of territory covered by an act of occupation, viz., the theory of continuity and the theory
of contiguity. According to the theory of continuity, the act of occupation extends so far
as is necessary for the security or natural development of its area of lodgment; and in the
theory of contiguity, the sovereignty of the occupying State reaches to those
neighbouring territories which are geographically pertinent to the area of lodgment, i.e.,
there is a geographical unity between the mainland and the area claimed. In the North Sea
Continental Shelf cases,16 the Court preferred the theory of continuity to determine the
rights of the coastal State to the continental shelf. In the Island of Palmes case, the United
States based its claim on the theory of contiguity which was rejected by the arbitrator
stating that “this principle would be in conflict with ... territorial sovereignty ... it is
wholly lacking in precision and would in its application lead to arbitrary results”. It was
further observed that it is impossible to show the existence of a rule of positive
international law that islands situated outside territorial waters “should belong to a State
from the mere fact that its territory forms the ... nearest continent or island of
considerable size”.17 In Western Sahara case18 again, the Moroccan claim over Western
Sahara on the ground of contiguity or geographical unity was rejected. Though in
nineteenth century Africa, it was the basis to lay claim to areas of hinterland (areas
claimed for future occupation) as contiguous to their coastal settlements, it is now well-
established that contiguity alone is not a basis of title, but if accompanied with other
geographical considerations, it is relevant to determine the limits of effective
occupation.19 In Eastern Greenland Case, the Court viewed that minimal display of
sovereignty may be sufficient to establish effective occupation over small, uninhabited
territory.20
Occupation as a mode of acquisition of territory does not have much relevance now,
since there is no habitable area in the nature of terra nullius at present. However, its only
importance lies in the settlement of boundary disputes arising out of past occupations,
though such cases may be dealt under acquisitive prescription.
B. Accretion
Accretion is the addition of new land territory to the existing territory of a State through
new formations by operation of nature, as by the drying up of a river or the recession of a
sea or the emergence of an island within territorial sea. Such formations may happen
slowly (i.e., accretion), for example, by the gradual movement of a river bed, or suddenly
(i.e., avulsion), for example, by the creation of an island in the territorial waters by
volcanic action. Both accretion and avulsion are geographical processes. In such cases,
no formal act or assertion of title is necessary. It is also immaterial whether the process of
accretion has been gradual, sudden or imperceptible. If accretion occurs on a boundary
river (i.e., between two States), then the boundary
_________________
16 (1969) ICJ Rep. 3, at pp. 30-31.
17 Op. cit. 14, at p. 854.
18 See op. cit. 3, para. 92.

19 See H. Waldock (1948) 25 BYhIL, p. 342.

20 Eastern Greenland Case, PCIJ Rep., ser. A/B, No. 53 (1933), pp. 22-147, at p. 46.

changes. If the river is navigable, the boundary will follow the thalweg, that is, the centre
of the navigable channel. If the river is non-navigable, the middle of the river stream will
constitute the boundary. This mode of acquisition is of minor importance, and does not
require a detailed treatment.
C. Cession
Cession is the transfer of sovereignty over State territory by the owner-State to another
State. The transfer of territory by one sovereign State to another is the most usual form of
acquiring derivative title to land. A State can cede any part of its territory or merge in
another State. In the case of Berubari Union and Exchange of Enclaves,2] the Supreme
Court of India remarked:
... it is an essential attribute of sovereignty that a sovereign State can acquire territory and
can, in case of necessity, cede a pail of its territory in favour of a sovereign State, and this
can be done in exercise of its treaty making power. Cession of national territory in law
amounts to the transfer of sovereignty over the said territory by the owner-State in favour
of another State.
Cession can be effected by an agreement,22 made either voluntarily (it is more in the
nature of annexation), such as a gift, exchange or sale following peaceful negotiations, or
under compulsion following war when the territory is ceded to the victorious State by the
vanquished State. In fact, cession after war is more common than annexation. There are
numerous instances of compulsory cession. Gibraltar’s cession to Britain in 1704, after it
was captured by a British/Dutch expedition during the war of Spanish succession,
effected by the Treaty of Utrecht 1713 after Spain lost the war.23 Similarly, Alsace-
Lorraine of France was given to Germany in 1871, which was returned to France at the
end of First World War. Cession of Hong Kong by China to Great Britain after the
Opium War was the result of a treaty in 1898.24 Voluntary cession may either be
gratuitous, or for some consideration. Examples are the sale of Danish West Indies by
Denmark to the United States in 1916, Alaska by Russia to the United States in 1867,
exchange of Heligoland for Zanzibar by Germany and Great Britain in 1890, marriage
gift of Bombay by Portuguese King to British Prince at the occasion of his sister’s
marriage in the seventeenth century. By whatever way the cession is brought about, it
should clearly indicate an intention to transfer sovereignty from one State to another.
In the Union of India v. Sukumar Sen Gupta25 the Supreme Court observed that giving
the facility of using “Teen Bigha” to Bangladesh under the 1974 and 1982 agreements to
have access to its two enclaves of Dahagram and Angarpota on lease do not amount to
“cession of the said
_________________
21 AIR 1960 SC 845, at pp. 856-57.
22 L. Oppenheim, op. cit. 2, para. 213.
23 Spain has disputed the status of Gibraltar before the UN Committee of 24 (the
Decolonisation Committee) since 1963. Great Britain has alternatively claimed a
prescriptive title. The negotiations on the issue have so far proved unsuccessful and
matter has remained unresolved. Spain demands the return of Gibraltar, but Great Britain
continues to refuse.

24 Hong Kong and the New Territories were leased to Britain in 1898 under a treaty.
These territories have since been returned to China under the terms of the 1984
agreement between China and the United Kingdom.
25 1990 SC 1692, at p. 1698.

territory or transfer of sovereignty in respect of the same”, and clause 2 of the 1982
agreement clearly provided, “sovereignty over the leased area shall continue to vest in
India”.
The ceded territory takes effect under the rule of Nemo dat quod non habet (no one can
give another a better title than he himself has), i.e., the acquiring sovereign cannot
possess greater rights than those possessed by its predecessor. The new sovereign is
subject to any encumbrance or limitation of sovereignty or sovereign rights by way of
servitude or lease, to which the ceding State was bound.
D. Annexation
Annexation is a mode of acquiring territory by a State through conquest or subjugation
and subsequently formally annexing such territory. Mere conquest is not sufficient to
give title to the territory; it must be accompanied by a formal declaration expressing the
victorious State’s intention to annex. Conversely, the victorious State can disclaim such
an intention, viz., Allied Powers’ disclaimer in 1945 with respect to Germany after its
unconditional surrender.26 Annexation of territory after the war is generally carried out
by a treaty of cession.
In practice, however, annexation is not common, because modern international law does
not recognise military conquest as a basis for title. It is a well-established rule that the
“territory of a State shall not be the object of acquisition by another State resulting from
the threat or use of force” contrary to Art. 2(4) of the United Nations Charter.27 The use
of force was also outlawed by the 1928 Kellog-Briand Pact and the 1932 Stimson
Doctrine of Non-Recognition, which was endorsed by the League of Nations as well.28
The rule is still followed, for example, the territorial captures by Israel in June 1967 of
Egypt, Jordon and Syria after the “Six-Day War” were not recognised by the Security
Council Resolutions 242 (XXII) of 1967 and 338 (XXVIII) of 197 3.29 The Iraqi
invasion of Kuwait and subsequent annexation of that territory in August 1990
culminated in the Security Council Resolutions 660 and 662 calling upon Iraq for
immediate and unconditional withdrawal from Kuwait.30
It is, however, a debatable issue whether a State, acting in self-defence under Art. 51, can
annex the captured territory during hostilities, or can give effect to the principle of self-
determination of people and anti-colonialism.31 This situation arose in the case of Goa,
which was then under Portuguese occupation. India captured Goa, Daman and Diu on
December
_________________
26 In contrast, there is so called “peaceful annexation”, i.e., taking over of territory,
without use of force, in the name of a State following a settlement, e.g., colonisation of
Australia by Great Britain.
27 See the 1970 Declaration on Principles of Friendly Relations and Cooperation
among States, GA Res. 2625 (XXV), Oct. 24. 1970, para X.
28 LNOJ, Special Supp. No. 101, pp. 87-88 (1932).
29 These captured areas are still termed as “occupied territories”. Following the
Camp David Agreement in 1979, Israel returned Sinai Peninsula (but not the Gaza strip)
to Egypt. Israel and Jordon have also entered into an agreement on Oct. 26, 1994, about

the West Bank. Israel’s annexation of East Jerusalem in 1980 and the Golan Heights in
1981 has not been recognised by any other country. See, en.wikipedia.org/ wiki/Israeli-
occupied_territories
30 For text of Resolutions see 29 I.L.M. 1323 and 1327 (1990).
31 GA Res. 1514 (XV) GAOR Supp. 16 (A/4684) of Dec. 14, 1960, p. 66. On the
significance of self-defence, see R. Jennings, The Acquisition of Territory in
International Law (Manchester University Press, Manchester), 1963, p. 55.

17-18, 1961, against which Portugal requested the Security Council to put a stop to this
act of aggression of India, ordering an immediate ceasefire and the withdrawal of all the
invading forces of the Indian Union from these territories.32 The Indian representative,
Mr. L.K. Jha, justified the Indian action and stated:
Portugal has no sovereign right over this territory ... whole occupation [by Portugal] is
illegal as an issue - it started in an illegal manner, it continues to be illegal today and it is
even more illegal in the light Resolution 1514 (XV) there can be no question of
aggression against your own frontier or against your own people, whom you want to keep
liberate.33
The resolution on this matter, moved by France, Turkey, the United Kingdom and the
United States, asking India to withdraw its forces and for ceasefire, was vetoed by the
Soviet Union. However, India remains in control of these territories, and Portugal
recognised Indian title to them in 1974. There is also an acquiescence of the international
community to India’s title to them and the process has achieved the status of legal
prescription.
E. Prescription
In contrast to occupation, which applies to a terra nullius, prescription applies to a
territory that had a sovereign. It is the long occupation and the implied acquiescence of
the dispossessed sovereign that are the basis of prescriptive right. Principle of
prescription may also be invoked to consolidate the title to a territory initially based on
discovery (terra nullius) or occupation. The underlying rule for prescriptive title is that of
“estoppel”, i.e., if a State has “slept upon its rights”, it cannot be allowed to revive
against a State that has been in long continued enjoyment to those rights. International
law does not fix a time limit for prescriptive title to ripen, nor is there any requirement of
“animus” for acquiring prescriptive title. The de facto control and exercise of sovereignty
are sufficient to constitute prescriptive title to the territory. However, in the Frontier
Lands case34 between Belgium and the Netherlands, the International Court of Justice
held that the Netherlands acts of sovereignty in the area at different times in derogation of
the Boundary Convention of 1843, which vested the land in Belgian, could not extinguish
Belgian sovereignty in land. The Court, nevertheless, seemed to be accepting that the title
may be established by prescription. Same conclusion was implied in the Island of Palmes
case.35
Distinction has been made between extinctive and acquisitive prescription in international
law. As to the extinctive prescription, a claim must be brought within a reasonable period
of time. In acquisitive prescription, which is dealt here, the title arises out of a long
continued possession, provided that there is no formal protest or that all other interested
and affected States have acquiesced in this exercise of authority.36 However, the protest
should be “effective”, i.e., mere diplomatic
_________________
32 UN Doc. S/5030.
33 SCOR 16th yr., 987th and 988th Meetings, Dec. 1961.
34 (1959) ICJ Rep., p. 209.
35 Op. cit. 14.

16 J.L. Brierly, op. cit. 2, p. 167; W.E. Hall, International Law, 8th ed. (Clarendon
Press, Oxford), 1924, p. 143; D.H.N. Johnson, 27 BYbIL 332 at pp. 353-354 (1950).
Consolidation by Historic Titles is also raised as an alternative to acquisitive prescription
as a basis of title to land, which was argued by Nigeria in the Land and Maritime
Boundary between Cameroon and Nigeria case, op. cit. 11.

protest is not sufficient. It must be followed by a reference to an appropriate international

organisation or international tribunal unless it is not possible to do so. But the length of
time to establish the prescriptive title on the one hand, and the extent of action required to
prevent its fructification on the other hand, are invariably matters of fact to be decided by
the international tribunal seized with the task of adjudication.37
In the Chamizol Arbitration38 between the United States and Mexico, the United States
claimed and joined an area, the “El Chamizol” Tract of about 600 acres after Rio Grande
changed its course. Rio Grande for part of its length made a boundary between the two
countries by a treaty of 1848. The United States justified its action upon prescription on
the ground of undisturbed, uninterrupted and unchallenged possession. The United States
claim was rejected since Mexico had made a number of protests leading to the 1884
Convention between the two countries to settle their rights in respect to the changes
brought about by the waters of Rio Grande. These actions of Mexico amounted to
effective protest, which made the United States agree to refer the dispute to a competent
tribunal in 1895. The tribunal observed that part of the Tract which resulted from a
gradual process of accretion belonged to the United States but the part of it that had
resulted from a Hood in 1864 belonged to Mexico.39
In the dispute between Argentina and the United Kingdom over the Falkland Islands (or
Malvinas), Britain stakes its claim on prescription and the principle of self-determination.
It contends that it has an open, continuous, effective and peaceful possession, occupation
and administration since 1833 (except for a brief period of 10 weeks of forcible
occupation by Argentina in 1982). Further, it is exercising its authority in accordance
with the washes of the islanders, expressed through their democratically elected
representatives.40 On the other hand, Argentina claimed the islands as the successor to
Spain on the principle of uti possidentis, made a number of formal protests since 1833 to
the British Government and later at the United Nations and other international fora. In
this context, it is difficult to determine claim of the two over the islands, because in
prescription, it is not only the effective control of the territory in question, but it must also
be accompanied by acquiescence of the “losing” State, i.e., in this case, that of Argentina.
There is, however, evidence of acquiescence on the part of other nations.41 Another
suggested mode for British sovereignty over the islands has been stated to be conquest,
which was a recognised mode of acquiring territory in 1833. Being in accordance
_________________
37 Brownlie does not agree with the view that “protest must be followed by steps to
use available machinery for the settlement of international disputes” because if
“acquiescence is the crux of the matter ... one cannot dictate what its content is to be”,
Brownlie, op. cit. 2, p. 149.
38 See 5 AJIL 782 (1911).
39 See Harris, op. cit. 6, p. 178.
40 This argument has not been accepted by the Committee of 24, because the
islanders are mainly immigrant population of about 3000, mainly British nationals,
settled there since 1833, and strongly favour retaining their association with UK. Same is
the position with Gibraltar which is inhabited by Genoese, Maltese, Moroccans, British

and others, replacing the earlier, largely Spanish population who left the territory after its
capture in the early eighteenth century.
41 In 1986, UK declared the Falkland Islands Exclusive Fishing Zone, which was
protested by Argentina, but more than 15 nations’ vessels applied for licences to the
Falklands.

with the doctrine of inter-temporal law, the British conquest of the islands was stated to
be unaffected by protests.42
In addition to these modes, the territory may be acquired by a State through multilateral
or judicial acts of State. A State may be awarded a territory at an international conference
through the multilateral act of States, for example, the territorial redistribution of Europe
at the Versailles Peace Conference in 1919. Territory may accrue by reason of boundary
delimitation under an award or as a result of a treaty of compromise or settlement of a
disputed land. In the Temple of Preah Vihear case,43 the area, where the temple was
situated, was awarded to Thailand under the 1904 boundary treaty. The Court awarded
the territory to Cambodia by applying the rule of estoppel, because by her conduct
Thailand had acquiesced to the frontier line contended by Cambodia, as shown in the
map. In the case of Rann of Kutch arbitration44 of 1968 between India and Pakistan,
India claimed the Rann area as successor to the Indian native State of Kutch, whereas
Pakistan claimed that part or whole of the Rann fell within the district of Sind, which
formerly was a part of British India and now constituted a part of Pakistan. However, the
tribunal observed that because of the inhospitable nature of the terrain, which made the
Rann virtually incapable of permanent occupation, the requirement of possession cannot
play a role in determining sovereign rights in this case. Consequently, the tribunal
accorded special significance to other State activities and on that basis, ruled that India
had made a better claim through maps and statements made by the British colonial
authorities, but awarded Dhara Benni and Chhad Bet to Pakistan because of the
topography of the region which could be effectively administered by Sind in the
circumstances.45
Loss of territory
Modes of loss of territory are the anti-thesis of the methods of acquisition. For example,
treaty of cession transfers the territory from one State to another State and similarly
prescription creates a new title by extinguishing the previously existing sovereignty. In
such a case, however, there should not only be a factum of relinquishment of sovereignty
by the owner State, but there should also be animus to divest itself of effective control.
The loss of territory is thus converse of acquisition of territory, except in the case of
revolt. The emergence of a new State out of revolution results from the Secession of a
part of the territory of the State concerned. For example, emergence of Bangladesh out of
a. revolution in erstwhile East Pakistan was a loss of territory by Pakistan. Grant of
independence by the metropolitan State also results in the loss of territory, though the
severed territory becomes a new international entity.
_________________
42 See Jennings, op. cit. 31, at p. 53. Britain has not relied upon it because of the political
delicacy of the notion of conquest, nor has it raised it in its dispute with Spain over
Gibraltar. Argentina and the UK re-established diplomatic relations in 1990 without
prejudiced to their sovereignty claims. They also established two separate commissions to
conserve fishing stocks and development of oil and gas in the disputed area.
In 1994, constituent assembly of Argentina added a new provision in its constitution
ratifying the claim of sovereignty over the Malvinas.

43 (1962) ICJ Rep., p. 6.

44 See op. cit. 12.
45 Ibid., at p. 689.

III. POLAR REGIONS

In the acquisition of territory in polar regions,46 the normal principles relating to
discovery (terra nullius), annexation and prescription should apply, but because of the
inaccessible climatic conditions, the physical assumption of control implicit in these
principles virtually becomes non-applicable. In the case of the North Pole (Arctic region),
the situation is further complicated because the region is mostly ‘ice territory’ (e.g., ice-
shelves, those of Ellesmere Island, similar to Ross Ice Shelf in the Antarctic, and ice
islands) with what must be considered as high seas capable of being navigated by
submarines, and not land. The States have made claims to polar regions according to
“sector principle”. A sector is established by enclosing an area, i.e., all land or frozen sea,
from the coastline of a State, bordering polar region and the Pole, and within the line of
latitude and the two lines of longitude to the point at which the latter lines converge at the
North or South Pole as the case may be. Contiguity principle is hard to apply because of
the “flattening out” of the earth towards the pole.
Sector is considered to be contiguous of the State sovereignty to the pole. These claims
have been made both in the Arctic (by the Soviet Union [now Russian Federation] and
Canada, in particular)47 and in the Antarctic regions (by Argentina, Australia, Chile,
France, Great Britain, New Zealand and Norway) 48 Other States bordering the Arctic
Ocean, viz., Denmark, Norway and the United States have opposed the sector approach.
The major argument against claims in this region is that beneath the frozen waters is high
seas and not land and therefore is not capable of national appropriation. In the Antarctica
region, the United States and the Soviet Union (now Russian Federation) do not
recognise the claims of other States nor have they advanced specific claims of their own.
The claimant States, however, recognise each other’s claims, except that the British claim
conflicts with the claims of Argentina and Chile, which themselves overlap.49 The
British claim is based on the theory of “continuity”, i.e., on the “historic British
discoveries followed by the long continued and peaceful display of British sovereignty
from the date of those discoveries onwards in, and in regard to, the territories
concerned”.50 On the other hand, the claims of Argentina and Chile are based principally
on the contiguity of the tip of South America to
_________________
46 Donald Rothwell, The Polar Region and the Development of International law,
(Cambridge University Press, London) 1996.
47 The USSR by its Decree of April 15, 1926, claimed “Sovereignty over all lands and
islands ... in the Arctic Ocean North of the Coast of the Soviet Union to the North Pole,
between Meridian 32c4’ 35” East of Greenwich and Meridian 168° 49' 30" West of
Greenwich, see 1 Hackworth 461. Canada, till 1985, also made sector claim, but in 1985
it drew straight baselines around the outer limits of the islands constituting the Canadian
archipelago, claiming the waters as “historic internal waters" on the landward side of the
island, which has made the sector claim redundant, see D. Pharand, 25 CYbIL 234
(1987). Unde the US-Canadian Agreement on Arctic Co-operation, the US, while
objecting to the baselines, agreed to seek Canadian consent before US vessels navigated
the North West Passage. See Pharand, ibid.

48 For these claims, see Hackworth 456. No official sector claim has been made by any
nation over the Marie Byrd Land in Antarctica.
49 In 1955, UK instituted proceedings before the ICJ, asking the Court to rule on the
disputes between UK on the one hand, and Argentina and Chile on the other. Argentina
and Chile did not respond and the Court struck the disputes off its list in 1956.
50 See op. cit. 48; also see International Law Docs (1948-49), pp. 217-245.

Antarctica, namely, the sector principle. Thus, the “sector principle”, as such is not
materially different from other modes of acquisition of territory, and it represents the
application of the principle of effective occupation and prescription.
Developments in relation to South Pole have put the sovereignty claims in jeopardy. In
order to avoid the rush of claims over Antarctica, the Antarctica Convention was adopted
in 1959, which entered into force in June 1961. The Treaty designates Antarctica area
exclusively for peaceful purposes and prohibits measures of “military nature” (Art. 1).
The Treaty has frozen all the existing territorial claims and prohibits new claims or
enlargement of existing claims to territorial sovereignty while the treaty is in force (Art.
4). It has created a “nuclear free” and “demilitarised zone” (Art. 5), and emphasises
freedom of scientific investigation in the region and exchange of information regarding
Antarctic scientific programmes. It has the provision ( Art. 9) for periodic meetings (now
held annually) of the consultative (voting) parties, who are 12 named in the Convention,
i.e., the States with territorial claims (listed above) and Belgium, Japan, South Africa, the
United States and Russia, and the 16 other acceding parties (India acceded to the Treaty
in August 1983) that at present conduct “substantial scientific research activity” in
Antarctica (Art. 9(3)).51 The Treaty creates an international regime binding even on non-
parties, by stating that “no one engages in any activity in Antarctica contrary to the
principles or purposes of the present treaty” (Art. 10) (emphasis added). Currently, there
are 46 treaty member nations: 28 consultative and 18 acceding. Consultative (voting)
members include the seven nations that claim portions of Antarctica as national territory.
The 21 non-claimant nations either do not recognise the claims of others, or have not
stated their position.
The Antarctica Treaty Consultative Meetings have adopted about 200 recommendations
(nonbinding) concerning activities in Antarctica. The meetings have led to the adoption
of the 1972 Convention for the Conservation of Antarctica Seals52 and the 1980
Convention for the Conservation of Antarctica Marine Living Resources.53 With a view
to conserve the environment and to halt unreasonable exploitation of the Antarctica
region (which is rich in mineral resources), the 1988 Convention on the Regulation of
Antarctica Mineral Resources Activities was adopted, which provides for permit system
to explore and exploit the minerals with stringent environmental safeguards.54 This was
followed by the 1991 Protocol (Madrid Protocol) on Environmental Protection to the
Antarctic Treaty that entered into force in January' 1998.55 It designates Antarctica as “a
natural reserve, devoted to peace and science.” It has established procedures to assess the
environmental impact of all human activities in Antarctica and bans exploration of
minerals and oil in Antarctica for 50 years. The Protocol provides for the protection
of the Antarctic environment
_________________
51 They are Brazil, Bulgaria, China, Ecuador, Finland, Germany (now comprise both
GDR and GFR), India, Italy. Korea, Netherlands, Peru, Poland, Spain, Sweden, Ukraine
and Uruguay. Brazil obtained this status in Sept. 1983, and has been attending the
Consultative Meetings since then. India has already set-up two scientific stations in
Antarctica and the work on the third station, Bharti, is to commence in austral summer -
2010/2011.

52 11 ILM 251 (1972), in force 1978, 13 parties.

53 19 ILM 841 (1980), in force 1982, 27 parties.
54 27 ILM 868 (1988). The Convention is not in force because international opinion
favoured a complete ban on mineral exploitation. The 1959 Treaty has no provision on
exploitation of mineral resources.
55 Text in 30 ILM 1455 (1991).

through five specific annexes on marine pollution, fauna and flora, environmental impact
assessments, waste management, and protected areas. It prohibits all activities relating to
mineral resources except for scientific research. A sixth annex—on liability arising from
environmental emergencies— was adopted in 2005 but is yet to enter into force.
However, international opinion is against any mining in the region. Malaysia and some
non-aligned countries have proposed to replace the present legal regime with the one that
regards Antarctica as the “common heritage of mankind”, which, if accepted, would
make the territorial claims to sovereignty inappropriate.
IV. EXTERNAL TERRITORIAL RIGHTS OF STATES

States under international law enjoy certain territorial rights over the territory of another
State, such as servitudes and leases. These rights have parallel to easement rights in the
municipal legal systems, which are the rights in rem, or real rights. They are attached to
the territory and run with it, i.e., they are enforceable against the territory even if it passes
under the dominion of another State. These rights are normally created by treaty and they
are more than merely treaty obligations.
A. Servitudes
Servitudes are the exceptional restrictions imposed by treaty on the territorial sovereignty
of a particular State whereby the territory of that State is put under conditions or
restrictions or right of user serving the interests of another State or non-State entity. It is a
right in rem enjoyed by the owner of one piece of land—the praedium dominans, not in
his personal capacity, but in his capacity as owner of the land, over land which belongs to
another—the praedium serviens.56 These rights run with the land, i.e., they bind the
successors in title to the territory. Acceptance of servitude, however, does not represent
any negation of sovereignty nor does the grant of servitude amount to cession of
territory.57 It is not uncommon for States to grant rights of one kind or another over their
territory, such as the right of fishing in the maritime belt, or the right of navigation
through a national river, the use of ports, or grant an airfield or aerodrome facilities. But
such rights may be in personam, which can be abrogated by the granting State, hence,
they do not resemble servitudes as understood under the municipal legal systems on the
private law analogy. The test of an international servitude is said to be that the right
should be one that survives the change in the sovereignty of either of the two States
concerned in the transaction. But in that sense, there is no real evidence of such a right
existing under international law and State practice also does not clearly establish such a
right.
In the North Atlantic Fisheries Arbitration,58 the United States claimed that certain
fishery rights created in favour of its inhabitants on the coast of Newfoundland under the
Treaty of 1818 with Great Britain constituted a servitude, and the right was a limitation
on British sovereignty. The arbitrators from the Permanent Court of Arbitration did not
agree with this
_________________
56 See J.L. Brierly, op. cit. 2, p. 191.
57 See Union of India v. Sukumar Sengupta, op. cit. 25, at 1707.

58 11 UN RIAA, p. 167 (1910).

contention and observed that “a servitude in International Law predicates an express

grant of a sovereign right and involves an analogy to the relation of a praedium dominans
and a praedium serviens; whereas by the Treaty of 1818, one State grants a liberty to fish,
which is not a sovereign right but a purely economic right, to the inhabitants of another
State” and the Treaty of 1818 did not prevent Britain from making regulations limiting
the fishing rights of all persons including the United States inhabitants. Thus, the grant of
economic concessions to States would not normally give rise to rights in rem which are
irrevocable by the grantor State. Talking in terms of “intertemporal” law (i.e., a juridical
fact must be appreciated in the light of the law contemporary with it and not of the law in
force when the dispute arose or settled), the arbitrators stated that there was no evidence
that the American or British statesmen were conversant with the doctrine of servitude in
1818, when they concluded the treaty.
In the S. S. Wimbeldon case,59 the United Kingdom claimed that the right of passage
through Kiel Canal guaranteed under Art. 380 of the Treaty of Versailles, which provided
that the canal and its approaches should be maintained “free and open” to the vessels of
commerce and war of all nations at peace with Germany on terms of entire equality, was
a servitude binding upon Germany. The Court ruled that in terms of Art. 380, the canal
“has become an international waterway intended to provide under treaty guarantee easier
access to the Baltic for the benefit of all nations of the world”. But it did not express a
definite view on the question of servitude, and instead found it to be very controversial
that whether, at all, in the domain of international law there exist servitudes analogous to
the servitudes of private law. On the other hand, in the Right of Passage over Indian
Territory case,60 the Court came closer to the acceptance of servitude, though it did not
invoke it to decide the claim of Portugal for a right of passage through Indian territory
between Portuguese enclaves of Daman, Dadra and Nagar Haveli. The right was granted
to Portugal by Maratha rulers and later accepted by British Indian Government by a treaty
and continued by India after independence. The Court, although, accepting the existence
of rights in rem, refused to categorise them as “servitudes” and upheld the claim of
Portugal on the basis of local custom. It further held that such a right was not general as it
was inapplicable to the armed forces, police and armaments, and was subject to the
control and regulation by India, so the right could hardly be in the nature of servitude
stricto sensu.61 The Court demonstrated that the rights of sovereignty can be limited by
prescription or historical consolidation. This raises a quaere whether the transit rights of
land-locked States are in the nature of servitudes or customary rights.
However, sometime States create rights in the nature of servitudes benefiting the
community of States. In the Aaland Islands case62 Sweden argued that Finland, as a
successor to Russia, was bound by the provisions of the General Treaty of Peace of 1856,
between France, Great Britain and Russia on the demilitarization of the islands, because
the provisions created a servitude. The International Commission of Jurists, which
reported on the matter, however, stated that “the existence of international servitude, in
the true technical sense of the term, is not generally admitted”. But, it held that the
demilitarisation provisions “constituted a special international
_________________
59 PCIJ Rep., Series A, No. I (1923).

60 (1960) ICJ Rep. 6.

61 Ibid., at p. 40.
62 LNOJ, Special Supp., No. 3 (1920), p. 3.

status relating to military considerations, for the Aaland Islands. It follows that until these
provisions are duly replaced by others, every State interested has the right to insist upon
compliance with them. It also follows that any State in possession of the Islands must
conform to the obligations binding upon it”.63
Nevertheless, on the basis of judicial authorities, it may be stated that the doctrine of
“servitudes”, as it exists under private law, does not exist in international law. These
rights, at the best, can be described as “territorial facilities” which are contractual in
nature and may lead to prescriptive rights or may accrue by historical consolidation In the
Union of India v. Sukumar Sengupta case,64 the Supreme Court of India, however,
termed the territorial facility given to Bangladesh of using the Indian area known as
“Teen Bigha” as “servitude” in international law. This facility has been provided to
Bangladesh under the 1974 Agreement read with the 1982 Agreement, so that
Bangladesh can have an access to her two enclaves of Dahagram and Angarpota, wholly
encircled and enclosed by Indian territory. By the 1982 agreement, the sovereignty and
administration of the area would continue to vest in India, though Bangladesh would have
the undisturbed possession of the area. This territorial facility may ripen into a
prescriptive right over a period of time.
Nonetheless, authority is lacking on whether a servitude benefiting a single State might
exist in other situations. It is also worth noting the status of “international waterways”,
particularly of canals, which are created and governed by treaties and are benefiting the
international community.
Canals
Generally, canals (including the sea water canals), in the absence of treaty stipulations,
are subject to the sole control of the State in whose territory they lie and ships of other
nations have no right of passage through them though they are normally allowed. But the
regimes established by the inter-oceanic canals of Suez, Panama and Kiel through treaties
are good examples of rights in rem, and have accorded these canals the status of
“international waterways”. The Convention Respecting Free Navigation of the Suez
Canal, 1888, governing the Suez canal,65 the Hay-Pauncefote Treaty of 1901 between
Great Britain and the United States (regarding canal across Central America, connecting
the Pacific Ocean and the Atlantic Ocean), the Hay-Varilla Treaty of 1903 between the
United States and Panama governing the Panama canal, and Art. 380 of the Treaty of
Versailles governing Kiel canal were “constitutive” in nature. These treaties stated that
the canal concerned shall be free and open in peace and war to all vessels. The
subsequent changes in their control have not affected their international status. In 1956,
Egypt nationalised the Suez Canal and took over its control, but it also declared to follow
the terms and spirit of the Constantinople Convention of 1888.66 Similarly, according to
the terms of the 1977 Treaty concerning the Permanent Neutrality and Operation of the
Panama Canal between the United States and Panama, the relinquishment of sovereignty
over the Panama Canal by the United States in favour of Panama would not
_________________
63 Ibid., pp. 16 and 19.
64 See op. cit. 25, at p. 1706.

65 3 AJIL, Supp., p. 123 (1909); the canal became operational in 1869.

66 See the Egyptian Declaration of April 24. 1957 in 51 AJIL 673 (1957).

affect the status of the canal as an international waterway, which will be open to the
vessels of all nations.67
B. Leases
In contrast to servitudes, leases of territory by one State to another closely resemble the
ordinary leases of private law. However, the meaning attributed to “lease” under private
law has no relevance for the construction of a treaty under international law, where
neither of the parties is bound by the private law of the other. In a lease, the lessee
acquires the control and sovereign rights over an area subject to the dominion of another
State without resorting to annexation. After the expiry of the lease, the sovereign rights
over the territory revert to the lessor or grantor State. In the nineteenth century, China
leased several parts of its territory to western powers, while retaining its sovereignty. For
example, the island of Hong Kong was leased by China to Great Britain by the 1842
Treaty of Nanking, Kowloon by the 1860 Treaty of Peking and New Territories on the
Chinese mainland by the 1898 treaty.68 More recently, leases are created for varied
purposes, such as ports for transit purposes, for the establishment of missile tracking
stations, or for the installation of trans-border or trans-national pipelines. The most
common purpose of leasing is for air, naval or military bases, though their terms vary.69
They are also created to grant a right of passage. For example, under the 1974 and 1982
Agreements between India and Bangladesh, India has given Bangladesh the area of
“Teen Bigha” on “lease in perpetuity” to have an easy access to its two enclaves of
Dahagram and Angarpota.70
But some time leases amount to no more than mere annexation, rendering thereby
permanent loss of territory to the lessor State.71 But even if the lessee State intend the
lease as disguised cession, this is generally not the intention of the lessor. International
practice is also clearly against annexation and for the return of the leased land, for
example, the British decision in returning the leased Chinese territory.
Most of the modern leases are granted for perpetuity, i.e., for 99 years, which may raise
the issue that whether they would create a real right under international law surviving the
change in sovereignty.
_________________
67 For the text of the Treaty, see 72 AJIL 225 at 238 (1978). On Oct. 1, 1979, US
control over Panama Canal zone came to an end according to the 1977 Treaty, but it
retained Five military bases (earlier the number was 14) and had the right to defend the
Canal until the termination of the treaty in 1999. Thereupon, Canal has come under the
control of Panama.
68 By the 1984 Agreement between China and the United Kingdom, all these
territories have been reverted to China in 1997. Hong Kong has been handed over to
China on 30 June 1997. On the other hand, Macau, which was a Portuguese colony since
16th century was handed over to China on December 20, 1999.
69 A recent example is the 1960 Treaty concerning the establishment of the Republic
of Cyprus between Greece, Turkey and Great Britain, on the one hand, and Cyprus, on
the other, permitting the present British military bases in Cyprus.

70 Clauses 2 and 3 of the 1982 Agreement. Cf. Sukumar Sengupta’s case, op. cit. 25
at p. 1699.
71 For example, the British bases in Cyprus. In 1985, the British Minister of State for
Armed Forces stated: “The base is sovereign British territory as laid down in the 1960
treaty. It has the full rights of sovereignty that we associate with the use of that word”,
see 56 BYbIL 473 (1985).

V. AIR SPACE
A. Sovereignty in the Air Space
With the start of aviation, the problem of State sovereignty in superjacent air space also
arose. At the turn of the century, various theories were propounded regarding State
sovereignty in air space, and corresponding freedom of air navigation and rights of
overflight. In addition to the theory based on the cujus est solum, ejus est usque ad
coelum et ad inferos (the owner of the land ought to be taken to own right upto sky)
doctrine, i.e., the sovereignty of the subjacent State extends in the air space to an infinite
height, there were three other principle theories:
1. The air space is free, subject only to the rights of States required in the interests of
their self-preservation (championed by Fauchille and was adopted by the Institute of
International Law in 1906);
2. Upon the analogy of the maritime belt, there is over the land and waters of each
State a lower zone of territorial air space, and a higher and unlimited zone of free air
space; and
3. It was the cujus est solum with the addition of a servitude of innocent passage for
foreign non-military aircraft, akin to the right of innocent passage of merchant ships
through territorial waters.72
However, the First World War put at rest this theoretical controversy and States realised
the significance of air transport and potential dangers from the unauthorised use of the air
space to their security. In 1919, the Paris Convention for the Regulation of Aerial
Navigation was concluded, which accepted a State’s “complete and exclusive sovereignty
over the air space above its territory” including its territorial waters. It did not limit this
right only to the High Contracting Parties (Art. 1). The Chicago Convention on
International Civil Aviation, 1944, further reaffirmed this position and reflected the
customary international law rule with regard to rights of subjacent State in the air space.
The State enjoys unfettered sovereign right in its air space, whose height, once thought to
be indeterminable, is now governed by the law on outer space. Notwithstanding the
outward extent of the air space of a State, it is now well- established that no foreign
aircraft can enter into the airspace of a State without the express authorisation or
agreement of the subjacent State.
In practice, through conventions and agreements, States have restricted their power to
exclude foreign aircraft from their superjacent airspace and they are designed for
reciprocal rights in the conduct of air transport operations. But these restrictions are
confined to States, which are parties to these conventions and agreements. The Paris
Convention contained detailed provisions for the regulation of international air
navigation. It made a distinction between scheduled international air services (described
as “regular international air navigation lines” and “international airways” in Art. 15) and
aircrafts not belonging to such scheduled air services. Subject to the observance of the
conditions laid down in the Convention, the aircrafts of a High Contracting Party,
belonging to the category of non-scheduled air services were to have “freedom of
innocent
_________________

72 A.D. McNair, The Law of the Air (Stevens & Sons Ltd., London), 1964, pp. 3-18.

passage” through the air space of other contracting parties.73 The scheduled international
air services could operate only with the prior authorisation of the States flown over (Art.
15). The scheduled air services were conducted on the basis of “line agreements” or “pre-
determination agreements” (bilateral agreement), which were outside the purview of the
Paris Convention. The Convention also contained provisions on registration of aircraft,
certificates of airworthiness, aircrew licences etc.
The Havana Convention on Commercial Aviation of 1928 among American States,
including the United States, contained substantially similar provisions but without any
rules on technical regulations. Thus, the hallmark of the inter-war period was the
complete sovereignty of the State in its airspace. The grant of landing rights for foreign
aircrafts was within the absolute discretion of the State concerned. There were two other
notable conventions concluded during this period in order to limit the liability of the air
carrier: the Warsaw Convention of 1929, i.e., the Convention for the Unification of
Certain Rules Relating to International Transportation by Air, and the Rome Convention
of 1932, i.e., the Convention on Damage Caused by Foreign Aircraft to Third Parties on
the Surface. The Rome Convention was later amended in 1952. A Protocol of
Amendment to the Warsaw Convention was also adopted at The Hague in 1955, by
which the upper limit of liability for passenger’s injury or death, and loss or damage of
cargo was raised.74 However, under the pressure of the United States, the liability limit
was further raised in 1966 by the Montreal Agreement. It provided that any foreign or
United States carrier operating through or into the United States would have to pay a
substantially higher compensation and would be strictly liable. But otherwise the
Montreal Agreement did not raise the liability limit under the Convention. This was done
in 1971, by the Guatemala Protocol, by amending the Warsaw' Convention.75 It also
made liability strict or absolute instead of fault liability and made provision to hold
regular conferences (quinquennial conferences) to increase the upper liability limit at
regular intervals after the entry into force of the Protocol. To deal with the problem of
expressing limits in an appropriate currency, the International Civil Aviation
Organisation (ICAO) convened a conference at Montreal in 1975. It led to the adoption
of three additional Protocols, which further amended the relevant provisions of the
Warsaw Convention as amended by The Hague Protocol of 1955, and Guatemala City
Protocol of 1971.76 Known as the “Montreal Protocol 4”, (the only Protocol to which the
United States is a party), it became operational in 1999. In 1999, the Montreal
Convention was adopted, which intend to replace the Warsaw' Convention of 1929 and
its six Protocols, once it is ratified by all states. The Montreal Convention is primarily
designed to unify the patchwork of private airline rules dealing with passenger injury and
death claim issues.
_________________
73 Article 2 of the Convention provided that “each contracting State undertakes, in
time of peace, to accord freedom of innocent passage above its territory to the aircraft of
the other contracting States, provided that the conditions laid dawn in the present
Convention are observed”.
74 4 7 8 UNTS 371; ICAO Doc. 7632.
75 ICAO Doc. 8932/2; 10 ILM 613 (1971).

76 Additional Protocol 4 of 25 September 1975, known as Montreal Protocol 4,

abolished the concept of “Willful Misconduct” as a basis for disregarding the Warsaw
Convention and provided that: “The damage limit may not be exceeded whatever the
circumstances which gave rise to liability.” In all there are six Protocols to the Warsaw
Convention.

In 1944, the Chicago Convention was adopted by the International Civil Aviation
Conference. The Conference had been convened in November 1944 by the United States
at Chicago and was attended by more than 40 States. It was aimed at the adoption of a
multilateral agreement to regulate the international air transport and set norms for
technical and navigational matters relating to civil aviation. Although an agreement was
reached at the latter issues, but there was much disagreement on the extent of freedoms of
transit and transport of passengers and cargo on a multilateral basis. This led to the
adoption of the Chicago Convention without specific provisions for the regulation of
transportation of passengers and cargo. The United States, which had emerged as the
most powerful operator after the Second World War was the chief proponent of the
theory of “open skies” and proposed five freedoms of the air, viz.,
a. to fly across foreign territory without landing;
b. to land for non-traffic purposes (viz., for refuelling or maintenance);
c. to disembark in a foreign country (i.e., “grantor country”) traffic (i.e., passengers,
mail and cargo) originating in the State of origin (i.e., “flag State”) of the aircraft;
d. to pick up in the grantor country traffic destined for the flag State of the aircraft;
and
e. to carry traffic between two grantor countries.
The first two freedoms were solely transit rights and the other three were transport or
traffic rights. The proposal of the United States for freedoms of the air did not get much
support. Whereas the States were willing to accept the first two freedoms, they were not
much agreeable to the other three freedoms because of their wide ranging economic
ramifications. The European nations particularly were opposed to the idea. It was the fifth
freedom, as perceived by the United States that raised much of the controversy and
serious reservations by States. This freedom has a very wide scope and in fact can cover
three different types of traffic, i.e., “anterior-point” fifth freedom (i.e., place anterior to
the flag State), “intermediate point” fifth freedom (i.e., a place intermediate between the
flag State and the grantor State), and the “beyond point” fifth freedom (i.e., a place
beyond the grantor country). This also involves the grant of transport right by all these
countries, i.e., of anterior point, intermediate point and the beyond point to the flag State.
If accepted, all the parties to the Convention had to provide this freedom on a multilateral
basis, which was not readily acceptable to all the participants.
The profound disagreement on this issue led to the drawing up and adoption of two
separate agreements: the International Air Services Transit Agreement (Air Transit
Agreement) and the International Air Transport Agreement (Air Transport Agreement).
The Transit Agreement, also known as the ‘Two Freedoms’ Agreement, provided for the
grant of first and second freedom transit rights to all the contracting parties (Art. 1(1)).
Further, subject to the provisions of this Agreement, the territorial State might designate
the routes for transit flights and the airports with “reasonable commercial service” for the
airlines of the States parties to the agreement, and could impose charges for the same
(Art. 1(3) & (4)). The territorial State could revoke this permission to an airline of a State
party, if the airline failed to comply with the laws of the territorial State or it was not
satisfied about the substantial control or ownership of the enterprise, vested in the
nationals of a contracting party (Art. 1(5)).

The Air Transport Agreement or “Five Freedoms” Agreement largely followed the form
of the Air Transit Agreement and provided for the reciprocal grant of all five freedoms
among State-parties (Art. 1(1)). They may refuse the right of “cabotage”, i.e., access to
the internal air traffic within their territory to the aircraft of other State-parties. While the
majority of the States represented at the Conference signed the Transit Agreement, only
20 States signed the Transport Agreement, and some abstained from signing both.
However, because of the economic repercussions ensuing from the third, fourth and fifth
freedoms, it soon became clear that the advantages envisaged from the Transport
Agreement were difficult to be realised and the initial support for it rapidly disappeared.
With the withdrawal of the United States in July 1946, the Agreement lost much of its
significance in international civil aviation thereafter. Present practice, however, is limited
to third and fourth freedoms and fifth freedom is of minimal significance.
B. Chicago Convention on Air Law

The Convention on International Civil Aviation (i.e., the Chicago Convention), 1944,
incorporated the general principles of international air law, including the privileges
envisaged in the two Agreements. It laid down the norms of technical, legal and
navigational matters to be followed by States parties. It also established a permanent
organisation, the International Civil Aviation Organisation (ICAO), to look into the
implementation and enforcement of the Convention, and the resolution of disputes arising
thereby.
The Chicago Convention, however, did not depart materially from the already existing air
law. It reinforced the exclusive sovereignty concept (Arts. 1 and 2) of the Paris
Convention as well as maintained the distinction between scheduled and non-scheduled
international air services. It provided transit rights to the States parties for non-scheduled
international air services without the necessity of obtaining prior permission, but subject
to the observance of the other terms of the Convention and the right of the subjacent State
to require landing (Art. 5). However, an aircraft, other than of scheduled international air
services, if engaged in the carriage of passengers, cargo, or mail for remuneration or hire
would have the privilege of embarkation and discharging passengers, cargo or mail,
subject to the provisions of Art. 7 and the power of the State to regulate it.77 For
scheduled international air services, the Convention clearly stipulates that they may be
operated over and into the territory of a contracting State only with its special permission
or authorisation (Art. 6). In 1952, the ICAO Council gave a definition of “scheduled
international air services”, according to which such a service comprises “a series of
flights” with following characteristics:
a. It passes through the air space of more than one State;
b. It is performed by an aircraft for the transport of passengers, mail or cargo for
remuneration, in such a manner that the flight is open to use by members of the public;
_________________
77 Article 7 enables any State party to grant the right of “cabotage”, i.e., to carry
“internal” traffic bound for different points within its territory. By the conjoint effects of
Arts. 2 and 7, it also includes traffic between the mother country and its overseas
territories or dependencies.

c. It is operated so as to serve traffic between the same two or more points, either (i)
according to a published time-table, or (ii) with flights so regular or frequent that they
constitute a recognisably systematic series.78
The later advent of “charter” flights which were technically non-scheduled air services,
nevertheless, created a controversy and States members of the ICAO consistently refused
to allow charter flights to operate through their air space without prior permission, which
was in most cases granted under bilateral agreements. The western European nations
concluded a multilateral agreement amongst themselves.79
The Chicago Convention is applicable to civil aircrafts (Art. 3). State aircrafts, including
military aircrafts, have no right of transit without special authorisation. However, during
the time of war or other notified emergency, States parties are not bound by their
convention obligations. The subjacent State is under obligation to observe equality of
treatment and nondiscrimination towards aircrafts of all States parties, and make
international air navigation smooth and safe.
C. Bilateral Agreements
The Chicago Convention, like the Paris Convention, left unregulated the international air
traffic. The United States found the “pre-determination agreements” or “line-
agreements”, followed during the inter-war period, inconsistent with its policy of liberal
development of international air traffic. Under these agreements, the route to be operated
and the services the route would justify were “pre-determined” by the parties. But the
reservations shown by States for the Transport Agreement and the absence of any
regulatory provision under the Chicago Convention, once again led to the conclusion of
bilateral agreements. The first of its kind was concluded by the United States and the
United Kingdom in February 1946 at Bermuda (later replaced by Bermuda Agreement of
July 1977 - commonly known as ‘Bermuda 2’).
The Bermuda Agreement provided a formula to regulate air transport on bilateral basis
and served as a model for later bilateral agreements on international air transport. Under
such an agreement, the designated airline or airlines of the contracting parties are granted
the “two freedoms” and, subject to certain conditions in individual cases, the third, fourth
and fifth freedoms are granted. The routes to be operated are specified in separate
annexes to the agreement in question. The capacity of the air carrier of a contracting State
is to be determined according to: (a) the traffic requirements between the country of
origin and the countries of destination; (b) the requirement of through airline operation;
and (c) the traffic requirements of the area through which the airline passes after taking
account of local and regional services.
These bilateral agreements with varying conditions, however, failed to meet the avowed
purpose of the Chicago Convention, which was to bring uniformity in law and practice of
international air transport. However, the “Two Freedoms” Agreement (Transit
Agreement) plays a significant part in the operation of international traffic based on
“Bermuda type” agreements.
_________________
78 ICAO Doc. 7278-C/841 (May 10, 1952).

79 See the Agreement on Commercial Rights of Non-scheduled Air Services in

Europe, concluded at Paris on April 30. 1956.

They have certain common features, viz., the dependence of transit and traffic rights upon
reciprocity, the recognition of the principle of orderly development of international air
traffic, and substantial uniformity in the drafting of administrative and technical clauses.
These agreements also work on the premise that fares and freight charges should be
fixed, subject to the approval of the contracting States, by the International Air Transport
Association (IATA), headquartered in Montreal.
The IATA is a non-governmental organisation, with a voluntary membership of around
230 airlines and comprising 93% of scheduled international air traffic. The members
participate in the process of tariff fixing at the IATA Tariff Conferences where all the
members are represented. A new rate or the adjustment of an existing rate can take effect
only with the unanimous agreement, and the rate thus fixed must be approved by the
governments of the member airlines. These rates are binding on the States because of
their acceptance of the rates established by IATA under the bilateral agreements. A
failure to accept a new rate would lead to an “open rate” situation, which may result into
closing down of the airlines from small nations. Such a failure would also amount to a
breach of bilateral agreement, forcing other State to withdraw transport rights. States
generally accept these altered rates rather than jeopardising the interests of their airlines
to operate in the airspace of a particular nation.
Under the prevalent practice of international air law, the subjacent State designates “air
corridors” for an approaching aircraft and the remainder of the area remains under the
absolute control of the subjacent State. Any transgression by the foreign aircraft of the
designated corridors would entitle the State to withdraw the transit rights (Art. 9 of the
Chicago Convention). These developments have clearly established the sovereignty of
the subjacent State in the airspace, but in the matter of the scheduled international air
services, multilaterism still remains a far-cry.
D. Aerial Intrusion
A State enjoys an absolute and exclusive sovereignty over its airspace under international
law and a foreign aircraft can enter into its airspace only under its specific authorisation.
The violation of this principle amounts to unauthorised entry by the aircraft, leading to
serious consequences.
1. Unauthorised Flight by Civil Aircraft

It is unlikely that there would be a deliberate infringement of the airspace of another State
by an aircraft. One possible reason for intrusion/trespass in foreign airspace could be in
distress. Article 25 of the Chicago Convention imposes a duty on each contracting party
“to provide such measures of assistance to aircraft in distress in its territory as it may find
practicable” and also to the owner of aircraft and the State of registration. This provision,
however, is limited to the States parties to the Convention but, on humanitarian grounds,
this provision may equally be applicable to a State that is not a party to the Convention.
But the straying aircraft may not necessarily be in distress or the intrusion may be
criminally motivated, such as espionage or smuggling. In such cases, the flag State may
not be able to protest effectively against the use of force by the territorial State against the

alleged intruders in view of Art. 4 of the Chicago Convention, which prohibits the use of
“civil aviation for any purpose” inconsistent with the

aims of the Convention. On broad premise, the same principle applies to the non-parties
to the Convention.
But cases of shooting down of trespassing civil aircraft are not uncommon, though this
has always remained very controversial issue.80 For example, in July 1955, an Israeli
Airliner, en route from London to Lod (Lydda) via Paris and Vienna, strayed from its
flight plan and entered into Bulgarian airspace. A Bulgarian fighter aircraft attacked and
destroyed the airliner. The airliner was not in distress and had in fact been flying in clear
weather conditions. Bulgarian authorities denied responsibility for the incident which
resulted from the violation of Bulgaria’s territorial sovereignty, though admitted that their
fighter plane might have acted in haste. In a case filed before the International Court of
Justice, the Israeli Government in its written pleadings submitted that shooting down of a
civilian aircraft is an act out of all proportion to the wrong, causing an undue degree of
physical danger to the aircraft and its occupants.81 Intrusion can be brought to an end by
other appropriate acts. The case, however, could not be decided because of lack of
jurisdiction by the Court.82
In another incident a Libyan Airlines aircraft was shoot down by Israeli fighter planes in
February 1973 over the Israeli occupied Sinai area, which killed all the persons on board.
The aircraft was on a scheduled commercial flight from Benghazi to Cairo, when it
strayed into the airspace of the Sinai. The aircraft was provided with a weather chart 24
hours old and had to face a bad weather, putting it off course. It knowingly ignored
instructions to land. The ICAO Council, on the basis of the ICAO report, adopted a
resolution condemning the Israeli action and stated that “such actions constitute a serious
danger against the safety of international civil aviation”.83 Israel apologised and paid
compensation for the loss of 108 lives on an ex gratia basis. The ICAO resolution
strongly implied for the non-use of force against the civilian aircraft.
A tragic case is of the shooting down of the Korean Airlines (KAL) aircraft by the USSR
in September 1, 1983, killing all the 269 persons on board. The KAL Boeing 747 was on
a scheduled flight (KE-007) from Alaska to South Korea, when it strayed 500 kilometres
off course into the airspace of military sensitive area of Sakalin Island in USSR, north of
Japan. The USSR was also sensitive at that time over the presence of United States
reconnaissance aircraft RC- 135 in the area north-east of the Kemchalka Peninsula. The
USSR defence air command assumed it was a RC-135 aircraft and ordered its
destruction. The 14 States, whose nationals died, claimed reparation for loss of life and
damage to property (the USSR did not pay any compensation, but Korea paid the
compensation). The ICAO fact finding investigation report pointed out that before
destruction, the USSR did not try to establish the identity of the aircraft, nor was any
attempt made to contact the crew of KE-007 by radio and thus USSR aircraft failed to
meet ICAO recommended standard and practices. The KE-007 was hit by two air-to-air
missiles. But
_________________
80 See G. Richard, KAL 007: The legal fallout. 9 Annals of Air and Space Law, 147
at p. 148 (1984).
81 (1955) ICJ Rep., Vol. of Pleadings, pp. 86-87. Submissions were also filed by the
US and UK whose nationals were killed.

82 Bulgaria’s Declaration of 1921, accepting the compulsory jurisdiction of the

Court expired with the dissolution of the PCIJ, because Bulgaria was admitted to the
membership of the UN in 1955.
83 ICAO Council Res. of June 4, 1973. ICAO Bull. (July 1973), p. 13; 12 ILM 1180
(1973). The resolution was adopted by 27 affirmative votes; with two abstentions (one
being the USA).

the report also blamed the crew of the 747 for its negligence, leading to the aircraft’s
deviation. On the basis of the report, the ICAO Council condemned the “use of armed
force” by the USSR in its Resolution of March 6, 1984.84
The KAL incident, however, led to the unanimous adoption by the ICAO Assembly of
Art. 3bis of the Chicago Convention.85 Article 3bis prohibits absolutely the use of
weapons against civil aircraft in flight, except where permitted under the United Nations
Charter, on obvious reference to the right of self-defence under Art. 51 of the Charter.
The contracting States recognise “that every State must refrain from resorting to the use
of weapons against civil aircraft in flight and that, in case of interception, the lives of
persons on board and the safety of aircraft must not be endangered” (Art. 3bis(a)).
Further, a State, in the exercise of its sovereignty, is entitled to require the landing of the
intruding aircraft or may give any other instructions to put an end to such violations (Art.
3bis(b)). The Art. has thus made the rule in relation to intruding civil aircrafts very strict
and does not rule out the use of force as a last resort if the aircraft threatens the national
security of a subjacent State. In such a case, it loses its civilian character and deemed to
become a military aircraft against which the use of force may be permissible. But the
Convention does not identify any sanctions against the ‘offending’ State.
2. Military Aircraft
The right to use force against a straying/trespassing military aircraft has been accepted as
a legitimate right of the territorial State. Intrusion of a military aircraft is not only the
violation of State sovereignty but a threat to its security. This position has been made
evidently clear by numerous incidents that arose in the “cold-war” era involving straying
military aircrafts into foreign airspace.86 On a number of occasions, the United States
aircrafts were shot down when found engaged in espionage activities. Most of the time
the dispute between the flag State and the territorial State is not related to the right of
taking military action but to the location of the aircraft and the giving of warning before
shooting, although the requirement of giving a warning to the erring aircraft is a
controversial matter.
In 1952, a Swedish aircraft was shot down by a Soviet aircraft over part of the Baltic Sea,
claimed by the Soviet Union to be within its territorial waters. There was a dispute over
the extent of these waters and also the rights of the territorial State. The Soviet view in
this and other similar cases was that the offending aircraft is required to land failing
which it can be attacked. The United States and Sweden took the position that in such
cases the territorial State has no right to demand landing but the right to “warn off” the
straying aircraft. Impliedly, they agreed that failure to follow the instructions would
entitle the territorial State to shoot down the aircraft.
_________________
84 23 ILM 937 (1984). The investigation in this case again resumed in Dec. 1992,
following the emergence of fresh evidence, including the original tapes of the cockpit
voice recorder and the digital flight recorder, recovered by the USSR in 1983, and turned
over to ICAO in Jan. 1993. On June 14, 1993, the ICAO Council, by a resolution closed
the investigation on the KAL crash.

85 1984 Protocol Relating to an Amendment to the Convention on International Civil

Aviation (1984) 23 ILM 705, in force since 1998, 139 States parties.
86 For details of incidents, see 47 AJIL 559 (1953).

Another important example of great political significance of a straying military aircraft

was of the well-known U-2 Incident.87 The U-2, a high altitude United States
reconnaissance aircraft, on May 1, 1960, was shot down at a height of 20,000 metres over
the Soviet territory. The aircraft had taken off from Pakistan and was scheduled to land in
Finland after taking photographs while over Soviet territory. The pilot of the aircraft was
taken into custody and subsequently put on trial. The United States, however, did not try
to justify its action under international law or protest at the shooting down or the trial of
the pilot. In the RB-47 Incident,88 similarly, the controversy was surrounded about the
exact location of the aircraft and not about the right of the Chinese Government of
shooting down of RB-47 which entered into the Chinese airspace following operations
over North Vietnam.
The lack of protest by the United States over military actions is consistent with the view
that except for straying in distress, aerial intrusion by military aircrafts (with the
exception of military transport aircraft) may be subjected to use of force without warning.
If they fly near the territory or stray into the airspace of a hostile State, they do so at their
own risk. Warning before shooting may be given out of humanitarian considerations
rather than due to legal obligations.
VI. OUTER SPACE

The launching of the first artificial satellite in October 1957 by the Soviet Union opened
up a new vista of outer space. This was soon followed by space activities on a constantly
increasing scale. There has been orbiting of the earth through manned and unmanned
satellites of varying weight and orbital ranges, launched for different functional purposes,
viz., for telecommunication, remote sensing of the earth resources, earth survey,
meteorology, monitoring of pollution, missile detection, espionage, etc. These activities
are being carried out without any effective protest from the territorial States. But they
have raised new questions about the upward extent of the State’s sovereignty, which is no
more considered to be indeterminate and thereby put a strong challenge to the doctrine of
cujus est solum. Further, the use of air space of a State without its authorisation for
launching a satellite to orbit the earth has been accepted as a rule, more in its
acquiescence, leading to the formation of a customary rule of international law.89
The boundary between airspace and outer space has so far remained undefined and for
that matter even the term ‘outer space’ itself. But States, motivated by their security
interests, agree in principle that there should be some upper limit of State sovereignty in
the air space, although there has not been any consensus as to the precise figure for this
height. The suggested figures range from 20 miles to 10,000 miles (at the height of which
traces of air can be found), based on the different theories advanced with respect to fixing
the outer limit of the outer space.90 But none of the theories advanced has got the general
approval. Because of its controversial nature, the question of delimitation of the boundary
was not dealt with by the
_________________
87 Quincy Wright, Legal aspects of U-2 incident, 54 AJIL 836 (1960).
88 C.J. Lissitzn, Some legal implications of the U-2 and RB-47 incidents, 56 AJIL
135 (1962).

89 Bin Cheng. UN Resolution on outer space: “instant” international customary

law?, 5 IJIL 23 (1965).
90 J.F. McMohan, Legal aspects of outer space, 38 BYbIL 339 (1962); N.M. Matte,
Aerospace Law (Sweet
& Maxwell, London), 1969, pp. 13-74.

United Nations General Assembly at the time of the adoption of the Outer Space Treaty,
1967. Even the Committee on the Peaceful Uses of Outer Space (COPUOS) has failed to
resolve this issue.91
There is, however, a considerable support for the “perigee” approach, i.e., the limit of the
airspace would be the lowest perigee of an orbiting satellite, without burning into the
thicker parts of the earth’s atmosphere. The recent studies have suggested the lower limit
of this height between 50 to 60 miles. On the other hand, there is a strong move for the
acceptance of functional approach, whereby the nature of the activity is significant rather
than the distance from the surface of the earth at which it takes place. Hence, the
launching or return of the space vehicle through the air space of another State would be
permissible whereas, at the same distance from earth, a flight by a high altitude aircraft
would not be permissible because States have not protested over the passage of satellite
through their territory. This may amount to right of innocent passage for space objects.
Such a State practice regarding outer space activities would lead to the crystallisation of
boundary between the two.
Regardless the upper limit of the airspace, the outer space is outside the purview of the
State sovereignty. The legal principles governing a State’s activities in outer space are
laid down by the United Nations. It is through the efforts of the United States and the
Soviet Union that the international community was quick in agreeing upon the basic
principles governing activities in outer space. The General Assembly, in quick succession
adopted a number of resolutions regarding outer space, the most notable being the
General Assembly Declaration of Legal Principles Governing the Activities of States in
the Exploration and Use of Outer Space, adopted in 1963,92 which later culminated in
the adoption of the Outer Space Treaty in 1967.93 To monitor the activities of the States
in the outer space, the General Assembly created the Committee on the Peaceful Uses of
Outer Space (COPUOS), whose legal sub-committee has been instrumental in the
adoption of the following conventions relevant to outer space:
1. The Agreement on the Rescue of Astronauts, the Return of Astronauts, and the
Return of Objects Launched into Outer Space of April 22, 1968 (referred to as the 1968
Astronauts Agreement);
_________________
91 See the 1987 Report of the COPUOS, GAOR, 42nd Sess., Supp. 20, p. 15. The
COPUOS was first established in 1958 (then as an ad hoc committee) and constituted in
its present form in 1959 with 27 members, GA Res. 1472(X1V). Its present membership
consists of 65 States. The questions presently under consideration of the Committee
include the boundary between air and outer space, control of remote sensing, particularly
of the natural resources of the earth by satellite, the use of nuclear power sources in outer
space, and finding ways and means of maintaining outer space for peaceful purposes,
draft treaty on the concept of the “launching State”, and a draft protocol to the
Convention on International Interests in Mobile Equipment on matters specific to space
assets, see 20 JSL, p. 46 (1992); Nandasiri Jasentuliyana, Space law (1999).
92 The most notable resolutions are: Res. 1721 (XVI), GAOR 16th Sess., Supp. 17,
p. 6 (1961); Res. 1884(XVIII) and Res. 1962(XVIII), GAOR, 18th Sess., Supp. 15, pp.
13 and 15 (1963) respectively.

93 General Assembly adopted the text of the Treaty, GA Res. 2222 (XXI), December
19, 1966. The Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, Including the Moon and Other Celestial Bodies of Jan. 27, 1967
is in force since October 10, 1967. For discussion on the treaty, see H.G. Darwin, 42
BYbIL 278 (1967), D. Goedhuis, 15 Netherlands ILR 17 (1968).

2. The Convention on International Liability for Damage Caused by Space Objects

of March 29, 1972 (Liability Convention of 1972);
3. The Convention on Registration of Objects Launched into Outer Space of January
14, 1975 (Registration Convention of 1975); and
4. The Agreement Governing the Activities of States on Moon and Other Celestial
Bodies of December 5, 1979 (Moon Treaty of 1979).
These conventions together have made the law of outer space predominantly institutional
law. In addition to these conventions, the UN General Assembly has adopted three more
sets of principles based on the work of the Committee on the Peaceful Uses of Outer
Space: (i) The Principles Governing the Use by States of Artificial Earth Satellites for
International Direct Television Broadcasting,94 adopted in 1982, that condition the
establishment of direct-broadcasting satellite services on the prior consent of receiving
States; (ii) The Principles Relating to Remote Sensing of the Earth from Outer Space,
adopted in 1986,95 provide for international cooperation and participation in remote
sensing; the States are required to carry out remote sensing activities for the benefit and
in the interests of all countries, and “not in a manner detrimental to the legitimate rights
and interests of sensed States”. These activities should be used to protect the earth’s
environment and conducted in accordance with international law. Such activities will be
permitted without the consent of the States being sensed but that the latter will have the
right to receive primary and processed data and analysed information concerning its
territory at a reasonable rate and on a non-discriminatory basis. There are also provisions
for dispute resolution and international responsibility for remote sensing; (iii) The
Principles Relevant to the Use of Nuclear Power Sources in Outer Space, adopted in
1992.96 They provide guidelines and criteria for safe use of nuclear power sources in
outer space, including the requirement that a safety review be made prior to launching of
any nuclear power source and that results of such review be made public through the
Secretary-General of the United Nations, who should also be notified of any re-entry of
radioactive materials to the earth. In carrying out the space activities, main emphasis has
been on international cooperation.
A. Outer Space Treaty

The Outer Space Treaty establishes the legal regime of outer space and lays down the
premise of other conventions concluded so far in this area. It is the constitution of the
outer space regime. The Treaty clearly leaves outer space outside the sovereignty of
States and declares that the area of the outer space “is not subject to national
expropriation” (Art. 2). On the other hand, the outer space, including moon and other
celestial bodies, are subject to international law and the United Nations Charter, and are
“free for exploration and use by all States ... on a basis of equality and in accordance with
international law”. Such exploration and use are to be carried out for the benefit and in
the interests of all countries (Art. 1). In order to clarify the ambit of Art.1, the General
Assembly in June 1996 adopted a declaration on international cooperation
_________________
94 GA Res. A/RES/37/92, 10 December 1982.
95 GA Res. 41/66, Dec. 3, 1987.

96 GA Res. 47/68 of 14 December 1992; 32 ILM 917 (1993).

in the exploration and use of outer space for the benefit and in the interests of all States,
taking into account the particular needs of developing countries.97 The III UN
Conference on Exploration and Peaceful Uses of Outer Space (UNISPACE-III), held in
Vienna in July 1999 further emphasised this aspect.98
Parties to the Treaty undertake not to place in orbit round the earth, or install in space,
weapons of mass destruction, and use the moon and other celestial bodies exclusively for
peaceful purposes. The installations and fortifications, the testing of any type of weapons
and the conduct of military manoeuvres on celestial bodies are forbidden (Art. 4). This,
however, does not prohibit the transient use of outer space for weapons, such as passage
of ballistic missiles through outer space. It is also well known that the outer space has
been used for a variety of other military- related purposes, for example, for
reconnaissance satellites, effected for defensive purposes or satellite weapons known as
ASAT weapons, which are not prohibited by Art. 4 of the Treaty. There has been rampant
use of the outer space for espionage and surveillance purposes as well as for testing
weapons with laser beams in the name of scientific research.99 The increased
militarisation of the outer space is due to the inherent deficiencies of Art. 4 as well as of
the Treaty which fail to provide any mechanism to check the violations of the provisions
of the Treaty.100 Taking note of these military activities and to prevent the arms race in
outer space, the General Assembly in 1995 requested the Committee on Disarmament to
re-establish the Ad-hoc Committee on the Prevention of Arms Race in Outer Space,
which was established in 1996. The General Assembly also adopted a resolution in
November 2000 for the prevention of arms race in outer space.101
_________________
97 The General Assembly adopted by consensus Resolution 51/122, containing a
Declaration on international cooperation in space. This Declaration finalised the agenda
item which is known as ‘Space Benefits’ in the COPUOS Legal Subcommittee. It
provides an authoritative interpretation of the cooperation principle in Art. 1 of the Outer
Space Treaty.
98 The primary objectives of III UNISPACE was (a) to promote effective means of
using space technology to assist in the solution of regional and global significance; and
(b) to strengthen the capabilities of Member States of the United nations, in particular
developing countries, to use the applications of space research for economic, social and
cultural development.
99 In 1982 in the UNISPACE II. it was stated by its Secretary-General, Prof. Yashpal,
that 75 per cent of space activities are military-oriented, limited mainly to reconnaissance
and surveillance satellites. Remote sensing, communication and weather observation
activities designed for both military and non-military purposes are totally excluded from
the current regime of the Outer Space Treaty. In March 1983, the US President Reagan
announced the star-war programme, which was later withdrawn by President Clinton in
June 1993.
100 In 1988, the General Assembly recognised this deficiency for not guaranteeing the
prevention of arms race in outer space (GA Res. 47/70, adopted in 1988). Earlier, by its
resolution of December 9, 1981, the General Assembly urged the States to prevent arms
race and refrain from any action contrary to it. The UN Committee on Disarmament has

also been seized with the issue since 1982. It appointed an Ad-hoc Committee on the
Prevention of Arms Race in Outer Space in March 1985, but has not come out with any
workable solution due to differences in perception between space powers on this issue.
The legal subcommittee of the COPUOS, in its 31st session held in March-April, 1992,
discussed the draft principles relevant to the use of nuclear power sources in outer space,
with the aim of finalising the draft set of principles, without any conclusion; see 20 SSL
46 (1992). For the GA Resolutions and Principles relevant to the Use of Nuclear Power
Sources in Outer Space, see op. cit. 96.
101 GA Res. 35/32, Nov. 20, 2000.

The Treaty emphasises on international cooperation in the exploration and use of outer
space and carrying out outer space activities. The States conducting activities in outer
space have to inform the United States Secretary General, as well as the public and the
international community, of the nature, conduct, locations and results of such activities.
The information so provided is to be disseminated by the Secretary General immediately
and effectively (Art. XI). All stations, installations, equipment and space vehicles on
moon and other celestial bodies shall be open to representatives of other States parties on
a reciprocal basis (Art. XII).
On the question of jurisdiction over space objects and satellites, and over any personnel
thereof, the Treaty empowers the State of registry to exercise full control, while the
projectile is in outer space or on a celestial body (Art. 8). In 1961, the General Assembly,
in its Resolution 1721 (XVI), called upon States launching space objects into orbit to
furnish information to the COPUOS through the Secretary General of the United Nations,
who has to maintain a public registry of information furnished. This system has been
formally made a part of the 1975 Registration Convention,102 under which the space
objects, besides being registered nationally, must be registered with the central registry
kept by the Secretary General for this purpose. The launching State must register every
launch, indicating its purpose. The Convention also lays down the additional means and
procedure, and emphasises on cooperation among States for the identification of space
objects and to mitigate the hazards caused by space objects. Article V(4) of the 1968
Astronauts Agreement also provides that a launching State, on receiving notification of
the location of its space object, believed to be of a hazardous or deleterious nature, has to
take immediate steps to eliminate possible danger or harm.
The astronauts have been regarded as envoys of mankind and the States parties shall
provide them all possible assistance in the event of accident, distress, or emergency
landing on the territory of another State party or on the high seas. When astronauts make
such a landing, they will safely and promptly be returned to the State of registry of their
space vehicles (Art. 5 Outer Space Treaty). This requirement is applied and amplified in
Art. IV of the 1968 Astronauts Agreement. Under the Agreement, a contracting State is
required to render all possible assistance to the personnel of a spacecraft landing in its
territory (Art. II). If a space object or its component parts returns to earth in the territory
of a contracting State, that State must notify the United Nations Secretary General and
the launching State, which should take immediate steps, and the contracting State, if
requested, may assist in recovering the space objects or its component parts (Art. V).
Article 6 of the Outer Space Treaty deals with the problem of imputability in respect of
any liability that may arise from space activities. It sets out the international
responsibility of States parties for national activities in outer space. If the activity is
carried out by an international organisation, it will bear the responsibility along with
States parties to the Treaty participating in such organisation. Article 7 further lays down
that each State party “that launches or procures the launching of a space object”, or “from
whose territory or facility an object is launched is internationally liable for damage” to
another State party
_________________
102 See text of the Treaty in 14 ILM 32 (1975).

or to its natural or juridical persons by such objects on earth, in the airspace, or in outer
space. Article 9 imposes a duty of non-contamination and of prevention of harm to the
environment resulting from the introduction of extraterrestrial matter. A State is also
required to consult in advance other States parties if its space activities are believed to be
potentially harmful to their space activities.
B. The Liability Convention

State liability for damage caused by space objects was given a detailed treatment in the
1972 Liability Convention. It imposes absolute liability on a launching State, including
the State whose territory or facility is used in launching as well as the State which
“procures the launching” (Arts. I and V) “for damage caused by its space object on the
surface of the earth or to aircraft in flight” (Art. II). But where the damage is caused
elsewhere than on the surface of the earth to a space object of another launching State or
persons or property on board this object, liability will be based on fault, i.e., the
launching State will be liable if the damage is due to its fault or the fault of the persons
for whom it is responsible (Art. III). Launching State is not liable for damage caused to
its own nationals or foreign nationals participating in the operations of the space object
(Art. VII). It also establishes joint and several liability in the case of a joint launch by two
or more States (Arts. IV and V). Where there has been gross negligence or intention to
cause damage on the part of the claimant State, the launching State would be exempted
from its liability to that extent (Art. VI). Claims can be made either by the State of
nationality of persons, natural or juridical, suffering damage, or by the State on the
territory of which the damage was sustained (Art. VIII). Local remedies need not be
exhausted before a claim is brought (Art. XI). If the claim cannot be settled by
negotiation, it will be determined by a Mixed Claims Commission established at the
request of either party (Art. XIV), which will determine the measure of compensation “in
accordance with international law and the principles of justice and equity” (Art. XII).
Unlike the Warsaw and Rome Conventions on civil aviation, the Liability Convention
does not set any upper limit for the amount of compensation.
It is, however, debatable whether the Liability Convention covers comprehensively all
problems caused by a nuclear powered satellite, particularly in case if it disintegrates and
there is a consequential earth-bound scattering of debris, as had occurred with the Soviet
nuclear powered satellites, Cosmos 954 in February 1978, and Cosmos 1402 in January
19 8 3.103 There may be difficulties in locating all radioactive fragments, which unless
deactivated can harm the environment. Art. XXI of the Convention is limited in its
approach and does not cover the damage resulting from experiments conducted in space
with far reaching consequences, such as affecting the climate or the atmosphere. It is
necessary to regulate this aspect by providing
_________________
103 Cosmos 954, which was powered by a small nuclear reactor weighting about 100
lbs, broke up over the Canadian territory in the north-west. Moderate radiation was
reported from the debris. The USSR reportedly agreed to pay $3 million compensation,
see 18 ILM 899 (1979); B. Cohen, 10 Yale JIL 78 (1984).

for the coordination of emergency action and deactivation measures.104 In 1986, two
conventions were adopted: the Convention on Early Notification of a Nuclear Accident
and the Convention on Assistance in the Case of a Nuclear Accident, both of which were
concluded as a consequence of the Chernobyl nuclear reactor accident in April 1986 in
the USSR. These conventions may become relevant to the consequences on earth of
accidents involving space objects carrying nuclear substances. The Convention on
Nuclear Safety, adopted by the IAEA on Sept. 20, 1994, imposes a responsibility on the
national State having jurisdiction over a nuclear installation for nuclear safety.105
C. The Moon Agreement

The United Nations General Assembly on December 5, 1979 adopted the Agreement
Governing the Activities of States on the Moon and Celestial Bodies (Moon Treaty) to
regulate the activities of States concerning moon and other celestial bodies in a more
precise manner and to clarify the provisions of the Outer Space Treaty in this regard.106
The Treaty’s main concern is the exploration and exploitation of the natural resources of
the moon and celestial bodies for which Art. XI of the Agreement lays down detailed
rules. It proclaims that “the moon”107 is not subject to national appropriation by any
claim of sovereignty, by means of use or occupation, or by any other means” (Art. XI,
para. 2). States parties have the right to explore and use the moon without discrimination
of any kind, on a basis of equality and in accordance with international law and the
provisions of the Agreement. It declares that the moon and its natural resources are the
“common heritage of mankind” (Art. XI, para. 1), and for which States parties “undertake
to establish an international regime, including appropriate procedures, to govern the
exploitation of the natural resources of the moon as such exploitation is about to become
feasible” (para. 5). Accordingly, the natural resources of the moon are to be exploited
when commercially and technically become feasible, in accordance with an international
regime. Although Art. XI(5) imposes a duty to establish an international regime when
exploitation is feasible, but if no such regime can be agreed upon, the Agreement does
not impose any moratorium on unilateral exploitation by contracting parties.
The main purposes of the proposed international regime to facilitate and govern the
exploitation of the moon’s natural resources are: “(a) the orderly and safe development of
the
_________________
104 In the 1978 COPUOS meeting, a 15-power working paper suggested that the
wilful disregard by a launching State of a patent risk of grave injury to the environment
of the earth amounts to crime. The Convention on Environmental Modification, 1976,
also imposes an obligation on States parties not to engage in military or other hostile uses
of environmental modification techniques having wide-spread, long-lasting or severe
effects as the means of destruction, damage or injury to any other State party.
Environmental techniques are defined as techniques for changing, through deliberate
manipulation of natural processes, the dynamic structure of the earth, including its biota,
lithosphere and atmosphere, see S.C. Khare, Use of Force under UN Charter
(Metropolitan Book Co., Delhi), 1985, p. 275.
105 See text in 33 ILM 1514 (1994).

106 For text, see 18 ILM 1434 (1979), in force since 1984. None of the permanent
members of the Security Council is a party to the Treaty.
107 The Convention provisions relating to moon are also applicable “to other celestial
bodies within the solar system, other than the earth”. Art. 1(1) of the Agreement.

natural resources of the moon; (b) the national management of those resources; (c) the
expansion of opportunities in the use of those resources; and (d) an equitable sharing by
all States Parties in the benefits derived from those resources, whereby the interests and
needs of developing countries as well as the efforts of those countries which have
contributed either directly or indirectly to the exploration of the moon, shall be given
special consideration” (Art. XI, para. 7). But neither the States, nor the national, inter-
governmental and non-governmental organisations shall have property rights on the
moon’s surface or sub-surface or over natural resources in place, or placing of personnel
and equipment on moon can create property rights (para. 3). The provisions on ownership
are without prejudice to the contemplated international regime.108 However, to
encourage scientific activity, the Agreement allows States to collect and remove samples
of its minerals and other substances for carrying out scientific investigations (Art. VI (2)).
Article VI does not use the term ‘natural resources’ which finds mention in Art. XI.
Nevertheless, Art. VI lays the foundation for more advanced exploitation of moon
resources as contemplated in Arts. XI and XVIII which oblige States parties to work out a
more detailed international regime for the governance of moon and its resources. A State
party can act through both “governmental agencies” and “non-governmental entities”.
The Agreement neither prohibits exploitation nor imposes a moratorium on such
activities, which have to be carried out in accordance with Arts. XI (7) and VI(2),
pending the establishment of the future international regime. There is also no legal
moratorium over exploration and use of substances of moon for research and
development purpose, which are presently conducted in compliance with Art. 2 of the
Outer Space Treaty. The Moon Agreement, however, does not clarify the position of non-
parties to the Agreement.
VII. NATIONAL WATERS AND RIVERS

State’s sovereignty is not confined only to land territory or airspace but extends to
territorial waters, internal and historic waters. Territorial waters or maritime belt
establishes the limit of a State’s sovereignty over its territory and the airspace above it.
But whereas the territorial sea is subject to the right of innocent passage of foreign ships,
the internal waters are not subject to this limitation. The State also has certain
jurisdictional rights in contiguous zone and enjoys exclusive rights of exploitation with
regard to Exclusive Economic Zone (EEZ) and continental shelf. The extent and rights
over these maritime zones have been dealt with separately in Chapter 14. The discussion
here is confined to internal waters, and international rivers.
A. Internal Waters
The national or internal waters of a State flowing within its boundaries, i.e., rivers, lakes,
canals,109 straits, bays, estuaries and other enclosed areas fall entirely within the
sovereignty of a State as well as waters on the landward side of the baseline of the
territorial sea. These waters are part of a State’s land territory. But where these waters
make boundaries with opposite
_________________

108 See S.K. Verma, The moon: A common heritage of mankind, 8-9 DLR 35 (1979-
80).
109 On canals, see supra, pp. 147-148.

States, the problem is to define the boundary and decide about the extent of a State’s
sovereignty. Boundaries are the most significant external manifestation of a State’s
territorial sovereignty, which separate the territory of one State from that of another, and
they constitute part of a State’s title to territory. Rivers quite often constitute the natural
boundary between opposite or adjoining States. Mountains, seashores, forests, lakes, bays
and deserts are other natural boundaries. On the other hand, “artificial” boundaries
consist of either sign posts erected to indicate the boundary or of parallels of longitude or
latitude. Where the river is non-navigable, in the absence of any provision to the contrary,
the boundary line is generally the “median line” (also adopted by the Peace Treaties of
1919-20), i.e., the line running down the middle of the river or through its principal arm,
and if there are more than one, following all turnings of both banks.
For navigable rivers, the boundary line runs through the middle line of the deepest
navigable channels or the principal navigable channel, known as Thalweg. But, by a
treaty, States may draw the boundary line along one bank of the river, thus putting the
whole bed of the river under the sovereignty of the other riparian State.110 This situation
may also arise out of prescriptive acquisition or peaceful occupation or historic title. But
where the river flows within a single State, Art. 13 of the 1958 Geneva Convention on
Territorial Sea and Contiguous Zone (Territorial Sea Convention) provides that “the
baseline shall be a straight line across the mouth of the river between points on the low-
tide line of its banks”, if the river “flows directly into the sea”. For a river which does not
flow directly into the sea, but flows into an estuary, the coasts of which belong to a single
State, the Convention does not provide any rule, but Art. 7, applicable to bays, can be of
relevance, even though the river does not qualify as a bay. It would entitle the coastal
State to a much greater area of internal waters by enclosing the mouth of the river by
baselines drawn in accordance with Art. 13.
In the case of lakes and other enclosed areas, the boundary line depends on the depth,
configuration, and use of the particular lake or sea concerned. Generally, it is the “median
line”, as in the case of river, of the navigable channel. Any other line is dependent upon a
treaty between the parties.
With respect to straits which join two large zones of the high seas, the rule is that straits
up to six miles breadth are considered within the territory of the littoral State, and those
which are beyond six miles are outside the territory of the littoral State and are open to all
nations without discrimination during war and peace.111 Where they form a boundary, it
is the “median line” that is the boundary, unless there is a historic title or a treaty to the
contrary.
1. Bays
“Bay” has been defined in Art. 7(2) of the 1958 Territorial Sea Convention as a well-
marked indentation whose penetration is in such proportion to the width of its mouth as
to contain land-locked waters and constitute more than a mere curvature of the coast. An
indentation, however, shall not be regarded as a bay “unless its area is as large as, or
larger than, that
_________________
110 States through whose territories such rivers flow are known as riparian States.

111 On Straits, see Arts. 34-45 of the 1982 UN Convention on the Law of the Sea, UN
Doc. No. A/CONF.62/ 122.

of the semi-circle whose diameter is a line drawn across the mouth of that indentation”.
For the purpose of measurement, the area of an indentation is that lying between the low-
water mark of its natural entrance points. Wherever, because of the presence of islands,
an indentation has more than one mouth, the semi-circle shall be drawn on a line as long
as the sum total of the lengths of the lines across the different mouths. Islands within an
indentation are to be included as a part of the water area of the indentation (Art. 7(3)). In
case the distance between the low-water marks of the natural entrance points of a bay
does not exceed 24 nautical miles, a closing line may be drawn between the two marks so
as to render the enclosed waters internal waters (Art. 7(4)). However, if the distance
between the low-water marks of the natural entrance points exceeds 24 nautical miles, a
straight baseline of 24 nautical miles is to be drawn within the bay in such a manner so as
to enclose the maximum area of water within the line of that length (Art. 7(5)). But these
principles are not applicable to “historic bays” or in cases where the straight baseline
method provided in Art. 4 of the Convention is applicable, (Art. 7(6)), over which the
States can claim sovereignty under “historic title”.112 Nevertheless, these rules apply
only to bays, the coasts of which belong to a single State (Art. 7(1)). Article 7 has been
reproduced verbatism in the 1982 Law of the Sea Convention as Art. 10.
Where the coast of a bay belong to two or more States, the delimitation will be in
accordance with the “median line” in the absence of any other factor, viz., prescriptive
(historical) title or geographical factors, by following the “configuration” of the coast.113
2. Historic Waters
The regime of historic waters is an exception to the general rules of law relating to the
delimitation of the maritime domain of a State.114 In the Anglo-Norwegian Fisheries
case115 the “historic waters” are defined as “waters which are treated as internal waters
but which would not have that character, were it not for the existence of an historic title”.
Since historic waters have the status of internal waters, the innocent passage as of right
does not exist thereto. In support of a claim to historic waters, it must be established that
there have been: (a) the exercise of exclusive authority and control by the coastal State
for a long period of time; and (b) acquiescence by other States, particularly of those
affected by the claim in question. A State may buttress its claim by showing that its vital
interests, such as geographical, economic or national security, are at stake. It is for the
State making the claim to prove its existence.
_________________
112 The “historic” bays are those the waters of which have come to be regarded
internal over a long period of acquiescence by non-littoral States, irrespective of the
distance between the headlands.
113 In the Anglo-Norwegian Fisheries case (1951), ICJ Rep., p. 116, at p, 151, the
Court refused to apply the “configuration” test or the 10 miles width, as contended by
Britain, to determine the extent of national sovereignty over bays, as the 10 mile rule was
not a customary rule and was not adopted by the 1930 Hague Codification Conference.
The rule of configuration was, however, adopted in the North Atlantic Fisheries
Arbitration (1910) 11 UNRIAA 167.

114 Donant Pharand, Historic waters in international law with special reference to the
Article, University of Toronto LJ, XXI (1971), p. 1, at p. 2.
115 Op. cit. 113.

However, with the coming into force of the 1958 Territorial Sea Convention, much of the
premise of historic waters has been explained by Art. 7. It permits 24 nautical miles as
closing line for bays and use of straight baselines for deeply indented coasts to enclose
large water areas as internal waters under Art. 4 (corresponding to Art. 7 of the 1982 Law
of the Sea Convention).
3. Indian position
The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime
Zones Act, 1976 (Maritime Zones Act, 1976) proclaims that the sovereignty of India
extends, and has always extended to the historic waters of India and to the seabed and
sub-soil underlying, and the airspace over such waters (sec. 8(2)). The Central
Government is empowered to specify the limits of historic waters adjacent to its land
territory by notifying in the Official Gazette (sec. 8(1)). In accordance with this
provision, the Central Government on January 15, 1977, notified the limits of the historic
waters of India in Palk Strait and Bay, and in Gulf of Mannar. Further, the historic waters
of India in Palk Bay and Palk Strait areas of the sea are internal waters of India; in the
Gulf of Mannar area, the historic waters beyond the appropriate baseline mentioned in
Section 3(2) of the Maritime Zones Act have the status of territorial waters of India.116
B. International Rivers
When the whole course of a river and both its banks lie within the territory of a single
State, that river is exclusively under the sovereignty and control of that State unless
limited by treaty or other prescriptive rights. Rivers which are navigable from the open
sea and pass through several States between their sources and mouths are called
“international rivers”. Each State, through which the river passes, owns that part of the
river which runs through its territory. In contrast to a river which lies wholly within the
territory of one State over which that State enjoys exclusive rights of navigation, in the
case of international rivers, the rights of navigation of riparian and non-riparian States
through the whole length of the river are controversial. Though many writers, starting
with Grotius, hold the view that there is a general right of passage for all States through
these rivers, but no such right is recognised under customary international law. Generally
speaking, the right of navigation is limited only to riparian States, i.e., only those
countries through which an international river passes. For the non-riparian States, the
extent of freedom of navigation is entirely the creation of a treaty. But the treaties may
differ in character and technical problems for various river systems.
The process to establish such a freedom for non-riparian States began with the Treaty of
Paris, 1814, and the Vienna Congress of 1815, and continued with the Peace Treaties of
1919- 20, which internationalised certain European rivers, principal among which was
the River Danube. The League of Nations also attempted to achieve freedom of
navigation on all rivers by adopting two Conventions in 1921: (i) the Convention on
Freedom of Transit and, (ii) the Convention
_________________
116 For Notification, see 16 IJIL (1976), pp. 561-62.

on the Regime of Navigable Waterways of International Concern,117 and subsequently

through its codification conference in 1930. More recent conventions on the same subject
with similar provisions are the Bangkok Convention of July 22, 1956, for facilitating
inland navigation between Asian countries and the Geneva Convention relating to the
unification of certain rules concerning collisions in Inland Navigation of March 15, 1960.
But all conventional attempts to establish a general right of passage along these rivers
have failed. At regional level, it is possible to accord such a right, with each riparian State
having full power to regulate passage over its part of the river, such as the regional
arrangement existing between the United States and Canada for St. Lawrence Seaway,
concluded in 1954, and operative since 1959. They have established an International Joint
Commission under their Boundary Waters Treaty of 1909, to overlook such
arrangements.
In the matters of injurious uses of waters of international rivers, or the diversion of and
interference with the free flow to the disadvantage of other riparian States, there are no
settled rules existing under international law. Nevertheless, a riparian State should refrain
from any use, diversion or interference with the river water to the detriment of co-riparian
States. States are also under a duty not to cause any irreparable damage to other riparian
States by any use or exploitation of the river within their own territories. In the Lake
Lanoux Arbitration (Spain v. France),118 Spain complained that France had violated a
treaty by diverting the waters of river Carol in French territory before it entered Spain.
The Tribunal found no violation of the Treaty, because Spain could not show that the
effect of the diversion had been detrimental to it in any way. Further, it found that there
was no duty on a riparian State under customary international law to consult, or obtain
the prior agreement of a co-riparian, as a condition precedent of its right to begin new
river works, though in executing any such project, it must take into account the interests
of other co-riparian States in a reasonable manner.119 In a more recent case of Pulp Mills
on River Uruguay (Argentina v. Uruguay), the dispute was related to the permission
granted by the Uruguayan government to the Spanish company ENCE to build a pulp
mill in Fray Bentos, on the Uruguay River (which forms the natural border in the north
between Brazil and Argentina and in the south between Uruguay and Argentina) in 2003
and to Finnish company Botnia in 2005. Argentinians residing near Fray Bentos claimed
that ENCE’s pulp mill would pollute the river. Argentina had argued the Uruguayan pulp
mills were Argentina filed suit in 2006 at the International Court of Justice, claiming that
pollution from the mills will cause serious environmental damage by pumping dangerous
waste into the mutual river on the border between the two countries and mill was being
erected in breach of the 1975 border treaty known as the Statute of the River Uruguay
between the two countries which requires both parties to inform the other of any project
that might affect the river. Besides the issue of pollution, Argentina claimed that the
Uruguayan government had not asked for permission to build the mills. Uruguayan
authorities countered that the Treaty does not require that permission be obtained, but
merely that the other party be appropriately informed. Taking into account the World
Bank study on the environmental standards to be followed by the mills, on April
_________________
117 7 LNTS 51. Only few States (23) became parties to these treaties.

118 24 1LR 101 (1957) at p. 123.

119 Ibid., at pp. 128 and 130.

2010, the Court rejected Argentina’s claims that Uruguay’s pulp mills are polluting the
River Uruguay. It also stated that Uruguay failed to negotiate with Argentina over the
plant, but said it would not be appropriate to make Uruguay pay damages or dismantle
the operation.120
In cases related to rivers which form part of a drainage basin, each riparian State is
entitled to a reasonable and equitable share in the beneficial uses of the waters of the
basin. This principle was made applicable to resolve the Indus Water Dispute, continuing
since 1948 between India and Pakistan concerning the Indus, Chenab and Jhelum rivers.
Dispute was related to the alleged misuse of water of these rivers by India that was
interfering with Pakistan’s development, particularly its measures for flood control,
irrigation and developing hydro-electric power. An agreement was concluded on
September 19, 1960, by India, Pakistan and the International Bank for Reconstruction
and Development under which the waters of the Western rivers - Indus, Chenab and
Jhelum were allocated to Pakistan, the lower riparian State, and the waters of the Eastern
rivers - Ravi, Beas and Sutlaj to India after a transitional period of 10 years. During this
time a temporary arrangement for mutual use of the waters of all the rivers had to
continue till Pakistan completed arrangements for water storage and irrigation by using
the waters of the Western rivers. India was also allowed to use waters of Western rivers
for certain purposes, including the generation of hydro-electric power, after
communicating and satisfying Pakistan about the proposed construction and design of
any such project. India, in pursuance of this provision, constructed Salal hydro-electric
project on river Chenab, whose design and capacity was finalised with Pakistan’s
approval in 1978.121
On the basis of State practice and treaties, certain broad principles of law have been
evolved to regulate the interests of riparian and non-riparian States, viz., (a) where a river
drains the territory of many States, each of them has the right to consider that river as a
whole and have its interests taken into account with those of other States; (b) a State,
while using the waters within its territory, must take into account the rights of other
States; (c) where their rights conflict, the benefits of the river system should be equitably
distributed; (d) a State is precluded from making any change in the river system, which
would cause substantial damage to another State, and the State is relieved from obtaining
consent if it offers the proportionate share in the benefits derived from the change; and
(e) if a State does not suffer substantial damage of its enjoyment of the water, it is not
entitled to oppose that development.122
The disputes related to the injurious utilisation of river waters can be solved by mutual
agreement between the parties, either in the form of a treaty, or through conciliation or
arbitration. In a dispute between India and Bangladesh over the Farakka Barrage, the
matter was resolved by an agreement between the parties. The issue was related to the
utilisation and diversion of the waters of the Ganges by India. India built Farakka Barrage
on river Ganga in 1974, to save the port of Calcutta from silting, and to prevent the
consequential hardships it would have caused to people of Eastern India. Bangladesh
alleged that India had made a unilateral withdrawal of
_________________
120 See at www.haguejusticeportal.net/eCache/DEF/11/636.TGFuZzlFTg.html

121 Recently a dispute arose between India and Pakistan over the initial filling of
Baglihar Dam (in Doda district in Jammu and Kashmir) in 2008. Pakistan alleged the
reduction of flows in the Chenab river. Matter has since been mutually resolved.
Reported in The Hindu, June 2, 2010, p. 1.
122 J.L. Brierly, op. cit. 2, pp. 231-32.

water and demanded an uninterrupted flow of Ganga water all the year round and insisted
that India should have obtained prior permission before utilising or diverting the Ganga
waters in its territory. In 1976, Bangladesh brought the matter before the United Nations
General Assembly, which referred it to the Special Political Committee. The matter was
subsequently withdrawn by Bangladesh following a consensus reached between the two
countries to discuss the issue bilaterally. It is important to note that about 90 per cent of
the course of river Ganga is exclusively through Indian territory and the remaining 10 per
cent is common with Bangladesh. It is clear from Lake Lanoux Arbitration that
international law does not impose a duty on a riparian State to consult or obtain prior
permission of a co-riparian as a condition precedent to undertake any work on the river,
though it should pay due regard to the interests of the co-riparian State. But the co-
riparian State does not have the right to veto the proposed development of the common
river. Nonetheless, it is desirable that a State intending to undertake any exploitation of
its part of the river water should notify the other interested States and, if any of them
object, should seek to resolve the difference by amicable means. Hence, though India was
not under an obligation to obtain prior approval for constructing Farakka Barrage, but the
notification to Bangladesh would have saved India from embarrassment.123
In September 1977, an agreement was signed between the two countries after several
rounds of negotiations, for a period of five years, which specified the amount of water
that each of them can withdraw during the lean period. Both the States committed
themselves to augment the flow' of the river and a Joint Rivers Waters Commission was
set up to examine the proposals made by either of them and assess their economic
feasibility. The recommendations of the Commission would be submitted to the
governments for consideration within a five- year time frame. Disputes related to the
interpretation of the Agreement are to be resolved bilaterally by peaceful means. A new
Agreement was concluded in 1982, after the expiry of the 1977 Agreement and
subsequently, a Memorandum of Understanding was signed in November 1985, on the
lines of 1977 Agreement, which remained in force till 1988. Bangladesh did not get any
water except from the natural flow of the river after 1988. In December 1996, a treaty
was signed between the two countries for a period of 30 years, settling this issue finally.
Any difference in this regard will be resolved by the Joint Committee consisting of
representatives of both the countries, failing which the matter will be referred to the Indo-
Bangladesh Joint Rivers Water Commission.
In order to resolve the issues related to the right of passage, injurious uses of the river
waters, regulation of the newer technological uses of rivers, pollution and the systematic
development of river basins, it is necessary to constitute international machinery under an
international legal regime, which should be sensitive to the regional and local variations.
In the past, efforts have been made to have such an International legal regime. The Draft
Helsinki Rules on the Uses of Waters of International Rivers adopted at the 52nd
Conference of the International Law Association at Helsinki in 1966 laid stress on the
equitable utilisation of the waters of international drainage basin and proposed rules to
deal with water pollution, navigation
_________________

123 State practice supports this view, which is generally followed by nations in
similar circumstances. See Eduardo Jumenez de Arechaga, “International Legal Rules
Governing the Use of Waters from International Water Courses”, Inter-American
Review, p. 329 (1960).

and floating timber.124 These rules can become the basis for any future efforts to adopt a
multilateral convention on the international rivers. The subject of non-navigational uses
of “international water courses” (including international rivers, dams, canals,
underground waters, surface waters and reservoirs) had been under consideration of the
International Law Commission (ILC) since 1971, to iron out inequalities in resources
between States and to contribute to the solution of questions of the sovereign control of
States over their natural territorial resources. On the basis of the draft articles prepared by
the ILC, the United Nations General Assembly on 21 May 1997 adopted the Convention
on the Law of the Non-Navigational Uses of International Watercourses. Besides
governing the non-navigational uses of international watercourses, the Convention
provides measures to protect, preserve and manage them. It is designed to serve as a
framework agreement between or among watercourse States to address issues such as
flood control, water quality, erosion, sedimentation, saltwater intrusion and living
resources as well as equitable and reasonable utilisation of such an international
watercourse.125
_________________
124 See particularly Arts. XXIX, XXX and XXXIV of the Helsinki Rules, cited in V.
Ramaswami, Inter State water disputes-problems of submergence of territory, 19 IJIL, p.
1, at p. 7 (1979).
125 For the text of the Convention, see 36 ILM 700 (1997). The Convention was open
for signature until May 20, 2000. It has not yet come into force.

Page 172
CHAPTER 7
State Jurisdiction
I. JURISDICTION IN GENERAL
The exercise of jurisdiction by a State is an essential attribute of State sovereignty. The
State jurisdiction signifies the power of a State to exercise control over persons, property,
acts and events under its national law. It “concerns essentially the extent of each State’s
right to regulate conduct or consequences of events”.1 This includes the power to
prescribe (prescriptive jurisdiction) and enforce (enforcement jurisdiction) legislative,
executive and judicial rules. It may be civil and criminal, it may be concurrent with other
States or it may be exclusive. “Jurisdiction” also connotes the competence of the court of
law to try a particular dispute.
Generally, every State exercises exclusive jurisdiction within its territory. But
International law does not put any limitation on the State’s power to exercise jurisdiction
beyond its territorial limits. Restrictions upon the independence of States cannot be
presumed. The Permanent Court of International Justice, in the S.S. Lotus case2 laid
down that there is no restriction on the exercise of jurisdiction by any State unless that
restriction can be shown by the most conclusive evidence to exist as a principle of
international law. Although it is true that there is no restriction on a State’s jurisdiction,
nonetheless States generally refrain from exercising their jurisdiction over acts with
which they have absolutely no concern.3 The territorial basis of jurisdiction normally is
the starting point in this matter.
A. Civil Jurisdiction
In matters of civil jurisdiction, the municipal courts apply private international law in
those cases where a foreign element is involved. But the courts in normal circumstances
are reluctant to exercise jurisdiction unless there is a “substantial connection” between
the foreign element
_________________
1 Oppenheim’s International Law, Vol. 1, 9th ed. (Longman, London and New
York), 1992, p. 456.
2 PCIJ, Series A, No. 10 (1927).
3 See J.K.S. Fawcett, The Law of Malians (Penguin Press, London), 1968, p. 55. In
Central Bank of India v. Ram Narain, AIR 1975 SC 361 at pp. 38-39, the Supreme Court
of India laid down that a foreigner cannot be made liable in India for a crime committed
abroad regardless of the fact that after committing the crime, the person becomes a
citizen of India or acquires domicile there.

Page 173 STATE JURISDICTION
and the forum either by allegiance or by domicile,4 i.e., that the defendant or the facts of
the case should have some connection with the forum State. The exercise of jurisdiction
without such a connection may be an ultra vires act, which could lead to international
responsibility of the State. The matters related to the enforcement of civil jurisdiction,
involving criminal sanctions, do not differ substantially from criminal jurisdiction over
aliens.
B. Criminal Jurisdiction
In criminal matters also, the “substantial connection” between the alleged offender or the
offence with the State exercising jurisdiction is necessary. The State practice discloses
four general principles on the basis of which States generally claim penal jurisdiction.
First, the territorial principle which determines jurisdiction by reference to the place
where the offence is committed. Second, the nationality principle which determines
jurisdiction by reference to the nationality either of the person committing the offence
even with respect to events occurring entirely abroad or with reference to the nationality
of the person injured by the offence. Third, the protective principle which refers to
jurisdiction according to the national interest of the State injured by the offence. Fourth,
the universality principle which provides jurisdiction by reference to the nature of the
crime (e.g., piracy).
The jurisdiction based on these principles may give rise to concurrent jurisdiction by two
or more States leading to conflicting claims. This may lead to a situation where neither
State is willing to give the other precedence and where international law may provide no
satisfactory solution because in such cases it is not the competence of the State that is at
issue, but the relative rights of other States. Further, though it cannot be doubted that
there should be some link between the offence or the offender and the State claiming
jurisdiction, nevertheless, it is difficult to state precisely how close that link should be to
satisfy the requirements of international law.
II. BASIS OF JURISDICTION

A. Territorial Jurisdiction
The power of a State to exercise jurisdiction over persons, property or events occurring
within its territory is conceded by international law. All persons present, even transiently,
and incidents occurring therein are amenable to State’s jurisdiction. It is generally
presumed that the laws and statutes of a country are limited to its territory unless a
contrary intention appears and an extra-territorial application is established. In the Lotus
case, the Court observed that:
Jurisdiction is certainly territorial, it cannot be exercised by a State outside its territory
except by virtue of a permissive rule derived from international custom or from a
convention.5
_________________
4 F.A. Mann, Hague Recueil (1964-1), at pp. 49-51; 1. Brownlie, Principles of
Public International Law, 7th ed. (Oxford University Press, Oxford), 2008, p. 299. To the
contrary, M.B. Akehurst holds that assumption of jurisdiction by a State does not seem to
subject to any requirements, 46 BybIL 145 (1972- 73) at p. 176. In Surinder Kaur Sandhu

v. Harbax Singh Sandhu, AIR 1984 SC 1224, the Supreme Court of India also held that
modern theory of conflict of laws prefers the jurisdiction of the State which has the most
intimate contact with the issues of the case.
5 See op. cit. 2, at pp. 18-19.

There are obvious reasons for this close connection between a State’s territory and its
jurisdictional competence, particularly relating to criminal law, i.e., (i) the State where
the crime is committed generally has the strongest interest in punishing the criminal; (ii)
the local forum is the most convenient one, since the witnesses and other facilities are
most probably available there; (iii) the offender is most likely to be found there, and (iv)
to avoid the element of double jeopardy, i. e., subjecting the persons to two legal systems
at the same time. In general, a State has exclusive jurisdiction within its own territory,
subject to certain extensions and exceptions laid down by international law. Because of
them, in practice, the State may exercise jurisdiction outside its territory.
Normally, no problem will arise for an offence if it is either exclusively committed within
the State territory or outside that territory. But it becomes problematic if the crime has
been planned and set in motion in one State and has its effects in the territory of another
State. For example, if A in State X shoots and kills B in State Y, or if A obtains money
by false pretences by means of a letter posted in State X to B in State Y,6 an offence is
probably committed in both the States, depending upon the constituent elements of
murder and related offences in the criminal law of each of them. In such circumstances,
States arrogate to themselves jurisdiction by technically extending the territorial
jurisdiction on the basis of subjective territorial principle and objective territorial
principle.
According to subjective territorial principle, a State has jurisdiction over a crime when it
is commenced within the State but completed or consummated abroad. The objective
territorial principle applies in reverse order, i.e., when a crime commenced in another
State but is completed or consummated within its territory. The State concerned in such a
case can take action against the offender. The objective territorial principle is generally
accepted and applied, according to which jurisdiction can be exercised when any
essential constituent element of a crime is consummated in State territory.7
In D.P.P. v. Doot,8 the respondents were aliens convicted of conspiracy to import
cannabis resin into the United Kingdom. They were arrested in England while executing
the agreement amounting to conspiracy was made abroad. The House of Lords held that
the English courts had jurisdiction in the case because the offence continued to occur in
England. Lord Wilberforce stated, “the present case involves international elements—the
accused are aliens and the conspiracy was initiated abroad—but there can be no question
here of any breach of any rules of international law if they are prosecuted in this
country”, on the basis of objective territorial principle.
In Mubarak Ali Ahmad v. The State of Bombay,9 the Supreme Court of India observed:
“The fastening of criminal liability on a foreigner in respect of culpable acts or omissions
in
_________________
6 On criminal competence of States in respect of offences committed outside their
territory, see the report of Sub-committee of League of Nations Committee of Experts for
the Progressive Codification of International Law (1926).
7 The Harvard Research Draft Convention on Jurisdiction with Respect to Crime,
1935, also proposed a State territorial jurisdiction when a crime is committed in whole or
in part within the territory of a State (Art. 3). A crime is committed “in part” within the

territory, “when any essential element is consummated there”, 29 AJIL Supp. 443 (1935)
at p. 495.
8 [1973] AC 807 (H.L.).
9 AIR 1957 SC 857.

India which are juridically attributable to him notwithstanding that he is corporeally

present outside India at the time, is not to give any extra-territorial operation to the law;
for it is in respect of an offence whose locality is in India, that the liability is fastened on
the person and the punishment is awarded by the law, if his presence in India for the trial
can be secured”.10 Thus, in such cases though the offence is committed outside, but by
reason of the principle of constructive presence of the offender treated as being
committed within the territory and the fact that the offender is outside the territory of the
State at the time of commission of the offence is not an obstacle to the exercise of the
jurisdiction.
The principle also received a fillip from the Permanent Court of International Justice in
the Lotus case.11 The case originated in a collision on the high seas between the French
ship, the Lotus, and the Turkish vessel Boz-Kourt, resulting in the sinking of the latter
and the death of eight Turkish nationals. On reaching Constantinople, the French officer
of the watch and the Captain of the Boz-Kourt were arrested and convicted with
manslaughter by a Turkish Court. France protested and challenged the legality of Turkish
action. By an agreement between the parties, the dispute was submitted to the Permanent
Court of International Justice. Before the Court, France raised two main contentions: (i)
international law does not allow a State to take proceedings with regard to offences
committed by foreigners abroad simply by reason of the nationality of the victim, and (ii)
international law recognises the exclusive jurisdiction of the flag State over events
occurring on board a ship on the high seas.
The judgment of the Court was rendered by the casting vote of the President. On the first
contention regarding criminal jurisdiction, the judgment was vague and full of generality.
It did not say clearly whether jurisdiction could be exercised on the basis of the
nationality of the victim. But it held that “the offence produced its effects on the Turkish
vessel and consequently in a place assimilated to Turkish territory in which the
application of Turkish criminal law cannot be challenged, even in regard to offences
committed there by foreigners”.12
The second French contention was similarly rejected. The French government, although
able to show that jurisdiction normally followed the flag, was unable to establish that
international law recognises the exclusive jurisdiction of the flag State over incidents
occurring on the high seas. The Court observed that if “a guilty act committed on the high
seas produces its effects on a vessel flying another flag or in foreign territory, the same
principles must be applied as if the territories of two different States were concerned, and
the conclusion must therefore be drawn that there is no rule of international law
prohibiting the State to which the ship on which the effects of the offence have taken
place belongs, from regarding the offence as having been committed in its territory and
prosecuting, accordingly, the delinquent”.13
_________________
10 Ibid., at p. 868. In the United States also, a similar approach is taken, see G.H.
Hackworth, Digest of International Law, Vol. II, p. 188 (1941); US ex. rel. Hatfield v.
Guay, 11F. Supp. 806 (1935), on appeal,
87 F (2d) 358.
11 Op. cit. 2.

12 Ibid., pp. 20-21.

13 Ibid., at p. 21.

The majority opinion of the Court, thus, clearly brought the case under the principle of
the “objective, territorial jurisdiction”.14 On the territorial jurisdiction, the Court
remarked:
Though it is true that in all systems of law the territorial character of criminal law is
fundamental, it is equally true that all or nearly all of these systems of law extend their
action to offences committed outside the territory of the State which adopts them, and
they do so in ways which vary from State to State. The territoriality of criminal law,
therefore, is not an absolute principle of international law and by no means coincides
with territorial sovereignty.15
However, failing any permissive rule, international law contains a general prohibition
that the States cannot extend the application of their laws and the jurisdiction of their
courts to persons, property and acts outside their territory. It leaves the States in this
respect, a wide measure of discretion to decide for themselves about their jurisdiction,
which is limited in certain cases by prohibitive rules. The Court, however, opined that the
onus lay on the State challenging the jurisdiction, to show that it was prohibited by
international law.16
On the question of competence of Turkey to exercise jurisdiction on territorial basis,
Judge Moore (in his dissenting opinion in Lotus case) remarked:
It appears to be now universally admitted that when a crime is committed in the territorial
jurisdiction of one State as the direct result of the act of a person at the time corporally
present in another State, international law, by reason of the principle of constructive
presence of the offender at the place where this act took effect, does not forbid the
prosecution of the offender by the former Stale, should he come within its territorial
jurisdiction”.17
The objective territorial principle has also been supported by many international
conventions and international studies,18 though under few conventions, such as the
Geneva Convention for the Suppression of Counterfeiting Currency, 1929, and the
Geneva Convention for the Suppression of the Illicit Drug Traffic, 1936,19 the objective
as well as subjective territorial principles have been incorporated. Thus, States parties are
bound to punish crimes related to counterfeiting and drug traffic if any conspiracy or
attempts to commit these offences take place within their territory.
Territorial jurisdiction is as much applicable to aliens as to citizens. An alien can be
exempted from this jurisdiction only if he is able to show that (a) by reason of some
special immunity, he is not subject to the operation of the local law, or (b) the local law is
not in conformity
_________________
14 The rule laid down by the Court in the Lotus case was set aside by the 1952
Brussels Convention on Collision or other Incidents of Navigation and subsequently by
the 1958 Geneva Convention on High Seas in Art. 11 and also by the 1982 Law of the
Sea Convention, Art. 97, whereby the flag State has the exclusive penal jurisdiction in
maritime collision cases.
15 Op. cit. 2, at p. 20. The judgment has been criticised by J.L. Brierly, The Law of
Nations, 6th ed. (Clarendon Press, Oxford), 1963, pp. 301-302; G. Fitzmaurice, 92 Hague
Recueit (1957-11), 56-57.

16 S.S. Lotus case, op. cit. 2, at pp. 19-20.

17 Ibid., at p. 73.
18 Viz., Multinational Corporations in World Development (prepared by the UN)
and the Multinational Enterprises and Social Policy (prepared by the ILO) in 1973, which
make the multinational corporations amenable to the local laws of the host State in
certain respects.
19 The Single Narcotic Drugs Convention 1961, has been concluded on the same
subject matter, but the 1936 Convention has remained in force between its parties.

with international law. Though there is a close connection between territory and criminal
jurisdiction which can be extra-territorial only if permitted by agreement or custom, civil
jurisdiction is less dependent on the territorial principle. A civil court, adjudicating a
dispute involving a foreign element, can apply the law of the place with which the
transaction has the most real connection or where the events giving rise to the litigation
occurred.
B. Jurisdiction according to Nationality Principle

Distinct from territorial jurisdiction, a State may exercise jurisdiction or. the basis of the
nationality of the person involved in a particular legal situation. The person concerned is
its national who is either the one which has committed the crime or, is the one who is the
victim of the crime. In such a case, the State may exercise the jurisdiction against the
alleged offender as and when he enters the territory of the State voluntarily, or in
consequence of legal proceedings leading to his extradition. The jurisdiction may be
exercised on either of the two grounds: active nationality principle and the passive
nationality principle (also known as passive personality principle).
1. Active nationality principle

It is indisputable that nothing in international law precludes a State from prosecuting and
punishing its juristic persons for a crime committed outside its territory. A State may
exercise civil or criminal jurisdiction over its nationals on the basis that the nationality is
a mark of allegiance which the person, charged with the crime, owes to his State of
nationality.20 For this allegiance, the State provides diplomatic protection to its nationals.
This jurisdiction can be exercised even by ignoring the changes of nationality, if the
evidence of allegiance is clear enough.21 However, the territorial and nationality
principles together may create the incidence of concurrent jurisdiction and possible
double jeopardy unless resolved by clear rules about the priority between them.
2. Passive nationality/personality principle

A State may assume extra-territorial jurisdiction over aliens if the person suffering injury
or a civil damage is its national. But the rule has not always been accepted without any
qualifications. In the Lotus case, although the Court upheld the Turkish jurisdiction on
this ground, it did not delve on the extent of the right of the State to protect its citizens
abroad. The principle was rejected by all the six dissenting judges. Judge Moore of the
United States found Art. 6 of the Turkish Penal Code, which enabled Turkey to exercise
jurisdiction over aliens for crimes committed abroad to the prejudice of any Turkish
subject, contrary to international law.22
_________________
20 Harvard Research Draft Convention, op. cit. 7 at p. 519.
21 See Ram Narain v. Central Bank of India, 18 1LR 49 (1951).
22 See op. cit. 2, at p. 75. Article 6 of the Turkish Penal Code reads: “Any foreigner
who ... commits an offence abroad to the prejudice of Turkey or of a Turkish subject, for
which offence Turkish law prescribes a penalty involving loss of freedom for a minimum

period of not less than one year, shall be punished with the Turkish Penal Code provided
he is arrested in Turkey...”

The provisions similar to Turkish Penal Code are found in the penal codes of several
countries, such as Mexico, Brazil, Italy, etc. The Harvard Draft Convention, 1935, lists
over 20 States making use of passive personality principle. But it has been explicitly
opposed by the Anglo-American countries, which adhere to the territorial theory of
criminal competence if a crime is “committed and consummated” within their territories.
They go to the extent of denying to States the right to assume criminal jurisdiction which
is not properly territorial over non-nationals. In the Cutting case,23 the United States
Government protested the exercise of jurisdiction by a Mexican Court over Cutting, an
American citizen, for an alleged offence of defamation of a Mexican national in Texas,
when he visited Mexico. There was no evidence that the alleged libelous article,
published in Texas, was circulated in Mexico. The United States maintained that Mexico
cannot try Cutting for a crime committed and consummated entirely abroad earlier,
merely because the person suffering injury happened to be a Mexican citizen. The trial
court convicted Cutting by applying the passive personality principle.24 The objection of
the United States against extra-territorial application of the State jurisdiction in such
cases finds wide support in State practice.25 However, there are now increasing evidence
of the acceptance of this principle by many of these States, particularly in treaties related
to terrorists acts and other matters of general international law, such as hijacking and
hostage taking. Such cases may also fall under the protective principle.
The rationale for the exercise of passive personality or nationality jurisdiction is that a
State is entitled to protect its nationals for the injury suffered by them abroad if the
territorial State fails to punish the offender and the State of the forum may get hold of
him, if he comes there voluntarily or through extradition.
C. Jurisdiction according to Protective Principle

A State can assume jurisdiction over aliens for the acts done abroad affecting its security,
integrity and independence, including its vital economic interests. International law
recognises such a right which is embodied in the criminal codes of many countries.
Oppenheim holds that the penal jurisdiction of a State includes serious crimes against its
own safety.26 Penal jurisdiction requires a “linking point”, i.e., a legal connection linking
the State and the offender. The acts that concern a State’s “vital interests” can be tried by
the State under the protective principle.
The rational behind its application is the concern of the State against whom these acts are
directed and the grave nature of the offences, which may go unpunished simply because
_________________
23 J.B. Moore, Digest of International Law, Vol. III, pp. 228-242 (1906).
24 The case in fact could be resolved only by diplomatic negotiation between the two
States subsequently, but technically, Cutting was discharged on appeal because the
offended party had withdrawn from the action.
25 In the US v. Yunis (No. 2) (1988) 82 ILR 344, the US Federal District Court
convicted a Lebanese national for hostage taking and air piracy for hijacking a Jordanian
airliner at Beirut Airport and later blowing it up, wherein two US nationals died. He was
arrested by FBI agents on board a vessel in international waters in the Mediterranean. See
also US v. Alvarez-Machain (1992) 119 L.Ed. 2de. 441.

26 L. Oppenheim, International Law, op. cit. 1, p. 470, Sec. 139.

they do not violate the law of the land where they were committed. Such acts include
high treason or counterfeiting of currency etc. In such cases, extradition may be refused
because of the political nature of such offences. On the other hand, it may vest a State
with arbitrary power to decide about its jurisdiction, and it is another instance of extra-
territorial application of State’s laws.
The Anglo-American countries, which generally oppose the passive personality principle,
quite often resort to protective principle to exercise jurisdiction over crimes committed by
aliens abroad. In England, the House of Lords upheld the principle in Joyce v. D.P.P.,27
by holding that an alien owing allegiance to the Crown can be tried by British courts for
the crime of treason committed abroad. The Court stated that no principle of international
law demands “that a State should ignore the crime of treason committed against it outside
its territory. On the contrary, a proper regard for its own security requires that all those
who commit that crime, whether they commit it within or without the realm, should be
amenable to its laws”. The accused, in this case, was born to Irish parents in the United
States and was a naturalised citizen of Britain. He was charged with treason under the
British law for having made propaganda broadcasts during the war against Britain from
Germany, an enemy country where he was working for the German Government. As he
was holding a British passport at the time of broadcasts and was entitled to protection by
the Crown, he therefore, owed an allegiance to the Crown. Hence, the British courts had
the jurisdiction even though the passport was obtained by fraud.28
In K.T.M.S. Abdul Cader and others v. Union of India,29 the petitioners (one of them
was a foreign citizen) were alleged to have been dealing with smuggled goods. The State
of Madras apprehended threat to the safety and security of the country unless they were
detained forthwith. Detention orders were first passed against them under the
Maintenance of Internal Security (Amendment) Ordinance, 1974, and the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The warrant of
arrest could not be served since they were residing abroad, and subsequently the State
government issued two proclamations under Secs. 82(1) and 7(1)(c) of the Criminal
Procedure Code and passed orders for their detention. These proclamations were
challenged by the petitioners on the ground that the Act does not have extra-territorial
application and, therefore, the State government had no power to issue detention orders
against persons who were not in India at the time of issuance of orders. The Madras High
Court, while rejecting their contention, observed that:
... though a State’s jurisdiction is mainly territorial, its jurisdiction can extend in respect
of things or acts done by its nationals, even outside its territories. It has also jurisdiction
which may properly be called protective jurisdiction to deal with a foreign national
whose acts have jeopardised or are to jeopardise its safety or public order.... If such a
protective jurisdiction is not given to a sovereign State, its stability and existence itself
can be shaken by acts or things done by foreigners outside its territory.... It may be that
any action taken by the State government against a foreigner sometimes is ineffective so
long as the foreigner is outside its territory. But ... the
_________________
27 [1946] AC 347.

28 H. Lauterpacht, 9 CLJ 330 (1947). See also the US decision in Stegeman v. US,
425 F (2d) 984 (1970) on the protective principle.
29 AIR 1977 Mad. 386 (F.B.).

action taken cannot be said to be invalid as the jurisdiction of the State to take action
against a foreigner mainly depends upon its competency and not upon its effective
execution.30
D. Jurisdiction according to Universality Principle

States generally exercise jurisdiction over certain offences regardless of the nationality of
the offender or the place of commission of crime. These offences are considered to be
against international public policy (jus cogens) and they are treated as delicts jure
gentium. Any State may arrest persons committing these crimes and try them under its
domestic law. Examples of such crimes are piracy,31 war crimes32 and slave trade.33
The principle of universality of war crimes has also been embodied in the four Geneva
Conventions, 1949, i.e., on prisoners of war, protection of civilians, sick, and wounded
personnel, and the ship wrecked, as supplemented by Protocols I and II of 1977.
In Attorney General of the Government of Israel v. Eichmann (Eichmann case), the
principle of universal jurisdiction was relied in part by the Supreme Court of Israel to
uphold Eichmann’s conviction for war crimes and crimes against humanity committed by
him as the Head of the Jewish Office of the German Gestapo, whose actions led to the
death of millions of Jews during the Second World War.34 The Court overruled the
objection of the defendant that his actions occurred in Europe before the State of Israel
was founded and offences were committed against people who were not its citizens.
These objections were dismissed by the District Court of Jerusalem, which stated: ‘The
State of Israel’s ‘right to punish’ the accused derives ... from two cumulative sources: a
universal source ... which vests the right to prosecute and punish crimes of this order in
every State within the family of nations; and a specific or national source, which gives
the victim nation the right to try any who assault its existence”.35
Universality principle finds expression in a limited way in a number of treaties on matters
concerning the international community, such as genocide,36 drug traffic,37 trafficking
in women
_____________________
30 Ibid., at p. 396. In G.B. Singh v. Government of India, AIR 1973 SC 2667, also the
Supreme Court recognised the protective principle by stating that the first duty of a State
is to survive.
31 The subject of piracy has been discussed in Ch. 14 on the Law of the Sea, see
infra, pp. 414-415.
32 Brownlie does not accept the view that the universality principle is applicable to
cases of war crimes, because what is punished is not the violation of national law, but
breaches of international law, see op. cit. 4, p. 305.
33 Arts. 13 and 22 of the 1958 High Seas Convention, and Art. 110 of the 1982 Law
of the Sea Convention authorise a State to exercise jurisdiction against ships flying its
flag or unlawfully using the flag while engaged in slave trade.
34 Eichmann was abducted to Israel from Argentina where he took refuge under an
assumed name of Ricardo Klement. In Israel, he was tried under the Israeli Nazi and Nazi
Collaborators (Punishment) Law of 1951. On the illegally obtained custody, see the

decision of the Permanent Court of Arbitration in Savarkar case (1911) (France v. Great
Britain), Hague Court Reports, p. 275.
35 36 ILR 5 (1961), para. 30. The judgment, in part reproduced in D.J. Harris, Cases
and Materials on International Law, 7th ed. (Sweet and Maxwell. London), 2010, p. 241.
36 Article VI, Genocide Convention, 1948.
37 Article 36(2)(iv), Single Convention on Narcotic Drugs, 1961.

and children, counterfeiting of currency, taking of hostages,38 torture,39 apartheid,40

attacks on diplomats41 and hijacking 42 Although such acts are increasingly viewed as
crimes permitting any country to assert universal jurisdiction over the perpetrator, but
contrary to their being delicts jure gentium (which can be tried by all States), these crimes
are dealt on the principle of aut punire, aut dedere, i.e., the offenders are either to be
punished by the State where they are found or to be surrendered to the State competent
and desirous to exercising jurisdiction over them. They are the cases of concurrent
jurisdiction and sometime remain controversial. The universality principle in these cases
can serve as a basis only for auxiliary competence.
In the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v. Belgium),43 an arrest warrant was issued in 2000 by Belgium against
Abdoulaye Yerodia Ndombasi, the then Minister of Foreign Affairs of the Democratic
People’s Republic of the Congo in absentia, along with three other Rwandans, charged
for their involvement in 1994 Rwandan genocide of Tutsi civilians and committing
crimes against humanity, and sentenced from 12 to 20 years’ imprisonment. Belgium
acted under its 1993 law of universal jurisdiction over people accused of war crimes,
crimes against humanity or genocide “wheresoever they may have been committed.” No
Belgian national was the victim of the alleged crimes nor was there any link between
Belgium and the accused. The warrant was both sent to the Congo Government and
Interpol. The issue of arrest warrant was challenged before the International Court of
Justice. The Court limited the scope of its judgment to the immunity from criminal
jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs and found
that Belgium failed to respect the inviolability and immunity of the incumbent minister
under international law and decided that Belgium must cancel the arrest warrant. But the
Court did not examine the question of Belgian jurisdiction, though Belgian claimed that
in the absence of any prohibitive rule, it was entitled to confer itself a universal
jurisdiction in absentia,44
However, jurisdiction of the State cannot be compartmentalised in different categories or
forms, such as legislative or executive, or civil or criminal, because the exercise of the
jurisdiction is essentially dependent upon the competence of the State, and not on any
inherent
_________________
38 Article 8, 1979 International Convention against the Taking of Hostages.
39 Article 5(2), 1984 UN Convention on Torture. See the House of Lords judgement
in R. v. Bow Street Magistrates Ex p Pinochet [2000] 1 AC 147.
40 Articles II-1V, Convention on the Suppression and Punishment of the Crime of
Apartheid, 1973.
41 Article 2, Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons including Diplomats, 1973.
42 Article 4, Hague Convention for the Suppression of Unlawful Seizure of Aircraft,
1970, and Art. 5, Montreal Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation, 1971.
43 (2002) ICJ Rep., p. 3; 41 ILM 563 (2002).

44 On similar facts, a case presently pending before the International Court of Justice
(ICJ), Congo brought a case based on France’s assertion of universal jurisdiction over
several Congolese high officials, including the Denis Sassou Nguesso, President of the
Republic of the Congo, for “crimes against humanity and torture allegedly committed in
the Congo against individuals having Congolese nationality,” Congo challenged the
criminal jurisdiction of France. The Court rejected Congo’s request for the indication of a
provisional measure to avoid a risk of irreparable prejudice to the Congolese sitting head
of state, see Certain Criminal Proceedings in France (Republic of the Congo v. France)
(Provisional Measures) (2003) ICJ Rep., p. 102.

distinction between them. The two most commonly accepted bases of jurisdiction are:
territorial and active nationality principle, which are resorted by States if there is
substantial link between the subject matter and the source of jurisdiction. Further,
jurisdiction is not always based upon the principle of exclusiveness. There are bound to
be conflicts of jurisdiction between States having concurrent jurisdiction in certain
situations, unless the situation is governed by a treaty or an agreement.
III. EXEMPTIONS FROM TERRITORIAL JURISDICTION

As a general principle, the municipal law of a State is applicable throughout the territory
of a State. However, under international law, certain degree of exemption and immunity
from local jurisdiction is enjoyed by the following:
a. Foreign sovereigns and foreign States,
b. Diplomatic representatives and consuls of foreign States,
c. Foreign public ships,
d. Foreign armed forces, and
e. International institutions.
A. Foreign Sovereigns and Foreign States

The concept of “sovereign immunity” or “State immunity” is imbibed in the customary
international law, according to which a foreign sovereign or State is not amenable to the
jurisdiction of the State of the forum unless voluntarily submitting to the jurisdiction of
the local courts and the law enforcement agencies. However, there is no bar against the
foreign sovereign initiating the proceedings in territorial State. The concept was earlier
attached to the person of the sovereign but later extended to the State and its organs. The
two terms “State immunity” and “sovereign immunity” have become interchangeable.45
The concept finds its expression in the exemption of the person of the sovereign from
arrest or detention within a foreign territory and extends to the foreign troops (under
licence) and the diplomatic agents or other representatives of the foreign sovereign.46
The legislative, administrative and executive acts of a foreign State and its agents cannot
be called into question by the territorial State.47 It also extends to property within the
territory of the State of the forum, and public ships belonging to the foreign State or
foreign sovereign are immune from seizure
_________________
45 Sinclair points out that “sovereign immunity” in the strict sense of the term “should be
taken to refer to the immunity which a personal sovereign or Head of State enjoys when
present in the territory of another State”. See I. Sinclair, The law of sovereign immunity:
recent developments, 167, Hague Recueil 113 at p. 197 (1980-11).
46 The former ruler or sovereign of a foreign country would be entitled to immunity
only if the territorial State, where the suit has been filed, regards him as a foreign
sovereign. This rule is similarly applicable to diplomatic representatives, see Art. 39 of
the Vienna Convention on Diplomatic Relations, 1961.
47 However, it is highly controversial whether the courts may refuse to recognise if
the acts of a foreign State are in contradiction of international law, or public policy, see
Brownlie, op. cit. 4, p. 323.

or detention or judicial disposition. If the foreign sovereign has no title to the property
claimed, it should at least show right to possession or control in order to claim immunity.
To succeed in its claim of immunity, the foreign government is not bound to give
complete proof of its proprietary or possessory title.48 Immunity is referable to the entire
judicial process and the execution of the judgment rendered.
The immunity, nevertheless, is not confined to proceedings in rem but to proceedings in
personam, and if successful, would have the indirect effect of depriving the foreign State
or foreign sovereign of proprietary or possessory rights, or any rights of control. A
sovereign could not be impleaded even indirectly in a suit.49
The immunity might be waived by express or implied consent. If express, the waiver had
to be made with full knowledge of the consequences and the authority of the foreign
sovereign. The implied waiver depends on all the circumstances of the case. But a mere
clause in a contract for the submission to the jurisdiction has not always been accepted as
amounting to waiver.50 Waiver of immunity from jurisdiction does not automatically
include waiver from execution, for which a separate waiver has to be accorded. If a
foreign State opts to sue in the territorial State, it would be bound by the ordinary
incidents of the suit, such as set-offs or counter-claims by the opposite party.51
1. Rationale of jurisdictional immunity

In The Schooner Exchange v. McFaddon, Marshall C.J. of the Supreme Court of America
laid down the rationale of jurisdictional immunity, by stating that the jurisdiction of the
nation within its own territory is “necessarily exclusive and absolute”.52 He observed:
One sovereign being in no respect amenable to another ... can be supposed to enter a
foreign territory only under an express licence, or in the confidence that the immunities
belonging to his independent sovereign station, though not expressly stipulated ... will be
extended to him.
The perfect equality and absolute independence of sovereigns ... have given rise to a class
of cases in which every sovereign is understood to waive the exercise of a part of that
complete exclusive territorial jurisdiction which has been stated to be the attribute of
every nation.
In Christina case,53 Lord Wright observed, “there are general principles of international
law according to which a sovereign State is held to be immune from the jurisdiction of
another sovereign State ... the rule may be said to be based on the principle of par in
parent non habet imperium
_________________
48 Compania Naviera Vascongado v. S.S. Christina (Christina case) [1938] AC 485.
49 US v. Dolfus Mieg [1952] AC 582 (H.L.), Rahimtoola v. Nizam of Hyderabad
[1957] 3 All ER 441 (PC); [1958] AC 379.
50 Kahan v. Pak Federation [1959] 3 All E.R. 659; Duff Development Co. v.
Kelantan Government [1924] AC 797. Sec. 2 of the State Immunity Act, 1978 (Britain),
negativates this position. See also Sec. 1605(a)(1) of the Foreign Sovereign Immunities
Act, 1976 (US) and Arts. 8 and 11 of the ILC Draft Articles on jurisdictional Immunities
of States and their Property, YblLC 1986, Vol. II, p. 8; Harris, op. cit. 35, p. 271.

51 Cf. Art. 32(3) of the 1961 Convention on Diplomatic Relations, applicable to

diplomatic agents.
52 7 Cranch 116 (1812); reproduced in Harris, op. cit. 35, p. 259, at 259-260.
53 See op. cit. 48.

The immunity also rests on the functional need to leave the foreign State, its organs and
representatives unencumbered in the pursuit of their mission. Several principles are
quoted as the basis of jurisdictional immunity:
a. Par in parem non habet imperium, i.e., an equal has no authority over an equal.54
b. The principle of non-intervention, i.e., the matters related to the acts, policy and
transactions of a foreign State should not stand to scrutiny by the forum State, lest it
would amount to intervention in the internal matters of another State.55
c. Rule of comity or reciprocity, i.e., the accepted rules of mutual conduct as
between States, which each State adopts in relation to other States and expects other
States to adopt in relation to itself.56 It may otherwise be considered as an unfriendly act.
d. Implied grant of licence to a foreign sovereign or State to visit or function within
its territory, signifies immunity and imposes an implied obligation on the territorial State
not to derogate from such a grant.57
2. Extent of State immunity

Historically, a foreign State could not be subjected to the jurisdiction of the territorial
courts than could the State itself. The foreign State enjoyed the absolute immunity for all
its acts, whether of public nature (acts jure imperii) or private nature, for example,
trading, and non-public functions (acts jure gestionis).58 The absolute immunity
extended to State organs as well.59 In Britain, immunity was held to be available in spite
of the clause for the submission to jurisdiction of English courts, unless the submission
was made before the court.60
_________________
54 Ibid., see also The Schooner Exchange case, op. cit. 52.
55 See F.A. Mann, 42 BYbIL (1967), pp. 1-2.
56 See Buck v. A.G. [1965] Ch. 745; 42 ILR II; see also Mann, 14 1CLQ (1965),
985-987.
57 See Wright v. Cantrell [1943] 44 SRNSW 45 at p. 52.
58 For example, the doctrine of absolute immunity was followed in numerous cases
in Great Britain, viz., Mighell v. Sultan of Johore (1894) 1 QB 149 (sovereign cannot be
sued for breach of marriage promise); Companies Merchantil Argentina v. US Shipping
Board [1924] 40 TLR 601 (action in personam,, a sovereign by entering into a trading
contract does not lose its immunity from legal process); Parlement Beige [1880] 5 PD
197 (Belgium mail vessel used for commercial purposes, held that British courts had no
jurisdiction over the person and property of the foreign sovereign).
59 See Krajina v. Toss Agency [1949] 2 All E.R. 274 (CA), in a suit by plaintiff for
alleged libel, the plea of sovereign immunity was accepted for the defendant as the
central information organ of the USSR; Baccus v. S.R.L Servicid Nacionel del Trigo
[1957] I QB 438 (CA), the defendant, a Spanish State organ, formed as a separate organ,
held to be entitled to immunity in a commercial contract with the plaintiffs, an Italian
company.
60 See Duff Development Co. Ltd. v. Government of Kelantan [1924] AC 797 (a
garnishee order for the enforcement of an arbitral award against an independent sovereign
State cannot be issued); Kahan v. Pakistan Federation [1951] 2 KB 1003 (CA), the case

was related to the supply of Sherman tanks to Pakistan Government. The UK State
Immunity Act, 1978, Sec. 2(3) however, has now reversed this position.

Nevertheless, with the increasing involvement of States in trading activities and other
non-governmental functions, not many States are now willing to apply the doctrine of
absolute immunity in granting exemptions from legal process to foreign sovereigns and
States. Even those States which were applying the doctrine in its full rigour, have tried to
create certain exemptions in the matters of private nature undertaken by a foreign State.
The great prominence given to the public sector or State-owned organs and corporations
in national economies by many countries, particularly those belonging to the erstwhile
communist bloc and many developing countries, such as India, to develop a modern
economy and conduct their business has further raised doubts about the rationale of the
rule of absolute immunity, and in many jurisdictions it has been replaced by restrictive or
relative doctrine.61
In the Anglo-American practice, the doctrine of restrictive immunity has been applied to
suits relating to title to land (not to land on which legation premises are established)
within the territorial State, having vital interest in the land; or a trust fund if a foreign
state or sovereign is interested in it, but not being the trustee;62 representative actions,
such as debenture holders’ actions; or the winding up of a company in whose assets the
foreign State or sovereign has claimed an interest.63
The doctrine of restrictive immunity has been consciously developed by introducing the
concept of implied waiver and the activities of private law have been kept outside the
scope of State immunity. Thus, the immunity was not granted in a case related to the
payment of bills for the repair of legation premises, done at the request of the
ambassador,64 or the official residence of the ambassador.65 In the United Kingdom, the
doctrine of absolute immunity was clearly abandoned for commercial transactions in The
Philipine Admiral case66 (action in rein) and The Trendex Trading Corporation67 (action
in personam) just before the 1978 State Immunity Act was enacted, giving effect to the
restrictive immunity rule.
In the United States, the “Tate Letter” issued way back in May 1952, by the State
Department, laid down the restrictive immunity theory in considering requests from
foreign governments for a grant of immunity. A foreign State might even present a claim
directly before the court, in which case the court is to adjudge about the immunity by
taking into account whether the State act pertains to the categories of political or public
acts.68 Political or public acts are generally
_________________
61 Brownlie lists about 20 countries (mostly western States) which now follow the
restrictive immunity doctrine, another seven support the doctrine in principle. See
Brownlie, op. cit. 4, pp. 327-328.
62 Rahimtoola v. Nizam of Hyderabad [1958] AC 379 at p. 401.
63 See J.G. Starke, Introduction to International Law, 10th ed. (Butterworths,
London), 1989, p. 212.
64 See the Claim Against the Empire of Iran, 45 ILR 57 (1963) decidcd by the
Federal Constitutional Court of Germany.
65 Planmount Ltd. v. Republic of Zaire [1981] I All E.R. 1110 (QB); [1980] 2
Lloyd’s Rep. 393.

66 Owners of the Ship Philippine Admiral v. Wallem Shipping (Hong Kong) Lid.
and Others [1976] I All ER 71 (PC). It was held that the State-owned vessels, engaged in
commercial activities are not immuned. For the contrary view, see the US decision in
Heaney v. Government of Spain, 445 F (2d) 501 (1971) at pp. 503-504.
67 Trendex Trading Corp. v. Central Bank of Nigeria [1977] QB 529 (AC), the issue
of a letter of credit in favour of the plaintiffs was held to be a non-governmental function.
68 See, for example. Victory Transport Inc. v. Comisaria General de Abasteciementos
Transporte 35 ILR 110 (1964), 336 F. Rep. (2d) 354 (1964); Isbrandtsen Tankers
Inc. v. President of India 10 ILM 1046 (1971); Alfred Dunhill of London. Inc. v.
Republic of Cuba 15 ILM 735 (1976).

limited to internal administrative acts, such as expulsion of an alien; legislative acts, such
as nationalisation; acts concerning the armed forces; acts concerning diplomatic activity;
and public
loans.69
However, the restrictive approach manifested in judicial practice has created difficulties,
such as of classifying the acts as jure imperii and jure gestionis, the governmental entities
which are entitled to immunity, and whether a State can be impleaded indirectly.
In the case of Claim Against the Empire of Iran,70 the West German Federal
Constitutional Court rejected the plea of State immunity in respect of a contract claim by
a local firm for the cost of repairs made to the heating system of the Iranian Embassy in
Cologne, by holding that the conclusion of such a contract “does not fall within the core
of the State’s political authority”. It observed that “for determining the distinction
between acts jure imperii and jure gestionis, one should rather refer to the nature of the
State transaction or the resulting legal relationships, and not to the motive or purpose of
the State activity. It thus depends on whether the foreign State has acted in exercise of its
sovereign authority, that is in public law, or like a private person, that is in private
law”.71
Thus, it is the “nature” rather than the “purpose” test that distinguishes the acts jure
imperili and acts jure gestionis and followed by the English and American courts. In
Trendtex Trading Corporation, Lord Denning M.R. stated:
If a government department goes into the market places of the world and buys boots or
cement, as a commercial transaction that government department should be subject to all
the rules of the market place. The seller is not concerned with the purpose to which the
purchaser intends to put the goods.72
In the I Congreso del Partido case,13 it was held that the court must look not only to the
nature of the contract, but also to the nature of breach. If a contract is in the nature of act
jure imperii, there is immunity, if it is an act jure gestionis, a defence of immunity may
still succeed if the act in breach of contract is an act jure imperii.
There is, however, no clear State practice regarding the immunity of foreign
governmental agencies or instrumentalities, and of semi-public corporations. A separate,
incorporated legal entity might, by reason of the degree of governmental control over it,
nonetheless be an organ of the State. A decisive criterion, however, is whether the
corporate entity was an alter ego of the government.74 In Thai-Europe Tapioca Service
_________________
69 See Victory Transport Inc. case, op. cit. 68.
70 Op. cit. 64.
71 Ibid, quoted in I Congreso Del Partido [1983] 1AC 244 (HL).
72 See op. cit, 67, at p. 558. Lord Denning had taken a similar position in
Rahimtoola v. Nizam of Hyderabad, op. cit. 62, at p. 422 where he stated: “it seems to me
that at the present time, sovereign immunity should not depend on whether a foreign
government is impleaded directly or indirectly, but rather on the nature of the dispute”.
73 [1983] I AC 244 (HL).
74 Mellenger v. New Brunswick Development Corp. [1971] 2 All ER 593 at p. 596.
See also, Trendex Trading Corp., op. cit. 67. Under Sec. 14 of the British State Immunity

Act, 1978, a “separate entity” (one that is not a department of State but is capable of
being sued) is not entitled to State immunity unless it is acting “in the exercise of
sovereign authority”.

v. Government of Pakistan,15 the West Pakistan Agricultural Development Corporation

entered into a charter party contract with the German company to carry Polish fertilizers
to Karachi. Any dispute between the parties was to be decided under English law. The
ship was extensively damaged at Karachi by Indian air raids. Before the writ was served
on the defendants, the Corporation was dissolved and the Pakistan’s Ministry of Food and
Agriculture started looking into its work. The plea of sovereign immunity was upheld.
But in Trendex Trading Corporation, the court held that the Bank of Nigeria was not a
government department but a “legal entity” in its own right, and was not entitled to
jurisdictional immunity in an action brought by the plaintiffs for honouring the letter of
credit, a transaction which was commercial in nature.76
3. Current legal position

The developments in the field of sovereign immunity in many jurisdictions have made a
dent in the customary rule of absolute immunity, and the modem trend is towards
restricted sovereign immunity from the judicial process to only in respect of
governmental activities pertaining to public administration and not to other activities
which are truly commercial.77 But some countries, mainly developing countries, still
adhere to the rule of absolute immunity.78 The Soviet Union also till its dismemberment
had held the view that the restrictive immunity doctrine cannot apply to socialist States
since in the political theory of such States all governmental acts are sovereign so that the
distinction between acts jure imperii and acts jure gestonis has no meaning, even though
it agreed to restrictive approach in many bilateral treaties. The problem of other socialist
countries regarding State immunity in their transnational commercial transactions was
overcome by the formation of trading corporations with distinct legal personality, and has
thus avoided any dispute of sovereign immunity.79
In some countries, rule of relative immunity has found legislative embodiment, such as
USA,80 UK,81 Australia,82 Canada,83 or through judicial practice in some countries.84
The 1972
_________________
75 [1975] 2 WLR 1485.
76 See op. cit. 67. In Uganda Co. (Holdings) v. Government of Uganda [1979] 1
Lloyds Rep., p. 481, however, the court followed the Thai-Europe case.
77 D.P. O’Connell, International Law, Vol. II, 2nd ed. (Stevens & Sons Ltd.,
London), 1970, p. 841.
78 Materials on Jurisdictional Immunities of States and Their Property, UN
legislative Series, UN Doc.ST/ LEG/SER.B/20 (1982); YblLC II (1982). See CM. Badr,
State Immunity: An Analytical and Prognostic View (1984), p. 40; C.H. Schreuer, State
Immunity. Some Recent Developments (Grotius Publications Ltd., Cambridge), (1988).
79 For example, in I Congreso Del Partido, op. cit. 73, Cubazucer, a Cuban State
trading enterprise, had entered into contract.
80 United States Foreign Sovereign Immunities Act, 1976, 15 ILM 1388 (1979).
81 United Kingdom State Immunity Act, 1978; see I. Sinclair, 167 Hague Recueil
113 (1980-11), pp. 257- 265.
82 Australian Foreign States Immunities Act, 1985.

83 Canadian State Immunity Act, 1982. The other countries which have enacted
legislation are Pakistan, Singapore and South Africa, see Brownlie, op. cit. 4, p. 328.
84 For example, Austria, Belgium, Denmark, France, Germany, Italy, Lebanon, New
Zealand, Senegal, and Spain, see Brownlie, op. cit. 4. p. 327, n. 25.

European Convention on State Immunity85 and the 1926 Brussels Convention for the
Unification of Certain Rules Relating to the Immunity of State-owned Vessels86 also
incorporated the restrictive immunity doctrine. Balance has now shifted in favour of
restrictive immunity approach.
These legislations and judicial practice, however, have not effectively dealt with all the
problems involved in the application of the restrictive immunity rule. The distinction
between jure imperii and jure gestionis has not been drawn precisely in the judicial
practice of different States. The State immunity statues similarly differ in much of their
details. As stated in the Claim Against the Empire of Iran*1 determination of the nature
of transaction by national courts would hinder the uniformity of the rule. This problem
can be met if the international law lays down qualifications of a State activity as an act
jure gestionis. Further, these statutes also fail to solve the problem in cases where the
transaction was determined as jure gestionis, but becomes jure imperii at a later stage as
had happened in I Congreso del Partido where it was held that the plea of immunity will
be available if at any stage the State has acted as a sovereign.88
These statutes in certain cases conflict with the other international obligations of the
territorial State like the diplomatic and consular immunities, by enacting provisions on
dismissal from employment by the mission.89 But the most striking lacuna in all these is
related to the general unwillingness to apply the doctrine of restrictive immunity at the
level of enforcement, by means of issuing any process against the property or seizure of
assets of the debtor State. For example, Sec. 1609 of the United States Foreign Sovereign
Immunities Act, 1976, incorporates the customary international law rule, also followed in
common law, that the property of a foreign sovereign shall be immune from attachment
and execution, unless this immunity has been waived by the foreign sovereign expressly
or impliedly (Sec. 1610).90 On the other hand, Sec. 13(4) of the 1978 United Kingdom
Act allows attachment only against property used “for commercial purposes”.91 This
half-hearted approach by the adherents to the restrictive immunity rule at the critical
stage of the judicial process has failed to carry the rule to its logical conclusion.
_________________
85 11 ILM 470 (1972) (in force 1976).
86 176 LNTS 199.
87 Op. cit. 64.
88 Op. cit. 73. In this case, one of the two ships, Marble Islands, chartered by
Mambisa (a Cuban State enterprise) to carry sugar under a contract with Cubazucer
(another Cuban State agency) to Chile, was asked to proceed to North Vietnam while on
high seas on orders from the Cuban Government following the death of President Allende
of Chile, where its cargo was discharged. I Congreso, another vessel, was arrested in
British waters on the application of the plaintiffs, the owners of cargo. The Cuban
Government entered the plea of sovereign immunity which was rejected.
89 In Sengupta v. Republic of India [1983] 1 CR 221, the Employment Appeal
Tribunal accepted the plea of State immunity at common law, but Sec. 4 of the 1978 State
Immunity Act (UK) gives jurisdiction to local courts in such matters.
90 In Permanent Mission of India v. City of New York, 551 U.S. (2007), the
Supreme Court construed the Foreign Sovereign Immunities Act to allow a federal court

to hear a lawsuit brought by the City of New York to recover unpaid property taxes
levied against India and Mongolia, both of which own real estate in New York. See at
caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000
91 But execution cannot be enforced against an embassy bank account, see Alcom v.
Republic of Colombia [1984] AC 580 (HL), see also J. Crawford, 54 BYbIL 75 (1983).

In order to bring uniformity in State practice, in December 2004, the United Nations
General Assembly adopted the UN Convention on Jurisdictional Immunities of States
and Their Property,92 which was based on the text prepared by an Ad Hoc Committee
established by the General Assembly in 2000.93 The draft articles on jurisdictional
immunities of States and their property were prepared by the International Law
Commission in 1991.94 Article 5 of the Convention states the general rule of immunity
that “A State enjoys immunity, in respect of itself and its property, from the jurisdiction
of the courts of another State”. It is followed by certain exceptions and limitations to the
rule (Arts. 10-16). Articles 11-15 specifically exclude immunity in cases related to
employment contracts, personal injuries or damage to property, property claims,
intellectual and industrial property, and participation in companies or other collective
bodies. Convention docs not cover criminal proceedings, nor docs it allow civil actions
for human rights abuses against State agents if the abuse has occurred in another country.
In determining whether a contract or transaction is “commercial”, reference should be
made primarily to the nature of the contract, but its purpose can also be taken into
account if the parties to the contact so agree, or if, in the practice of the State of the
forum, that purpose is relevant to determine the non-commercial character of the contract
or transaction, i.e., the national courts decisions to spell out the distinction between them
will also be taken into account (Art. 2(2)). State property is similarly exempted from any
measures of constraint, including attachment, unless it is specifically in use or intended
for use for commercial purposes, or earmarked by the State for the satisfaction of the
claim (Art. 21).
The Convention takes a compromise approach between the absolute immunity and
restrictive immunity rules. It follows the pattern of the 1972 European Convention on
State Immunity and the national legislations brought out recently and thus suffers from
all those lacunas left in those legislations. It has also left the position unclear on cases
like I Congreso del Partido.
4. Sovereign immunity and India

India does not have any specific legislation on the subject, and the matter of sovereign
immunity is governed by Secs. 86 and 87 of the Civil Procedure Code. Section 86(1)
incorporates the general rule that “No foreign State may be sued in any Court... except
with the Central Government certified in writing by a Secretary to that Government”.
Such consent shall generally be withheld except when it appears to the Central
Government that the foreign State:
a. has instituted a suit in the Court against the person desiring to sue it, or
b. by itself or another, trades within the local limits of the jurisdiction of the Court,
or
_________________
92 See General Assembly Resolution 59/38, December 2, 2004.
93 General Assembly Resolution 55/150 of 12 December 2000. The Convention was
opened for signature from 17 January 2005 to 17 January 2007. As of 15 June 2009, there
are 28 signatories to the Convention and 6 instruments of ratification have been
deposited. According to its Article 30, the Convention requires

30 States parties to come into force.

94 See the Report of the International Law Commission on the work of the 43rd
Sess., GAOR, 46th Sess., Supp. 10, at II, UN Doc. A/46/10 (1991).

c. is in possession of immovable property situated within those limits and is to be

sued with reference to such property or for money charged thereon, or
d. has expressly or impliedly waived the privilege accorded to it by this section (Sec.
86(2)).
It also provides for the non-execution of decree against the property of any foreign State
without the consent of the Central Government in writing (Sec. 86(3)).
These provisions are applicable to any ruler of a foreign State; any ambassador or envoy
of a foreign State; any High Commissioner of a Commonwealth country; and such
members of the staff of these persons, so specified by the Central Government in a
general or special order, as they apply in relation to a foreign State (Sec. 86(4)). These
persons cannot be arrested.
These provisions give effect to absolute immunity approach with exceptions and
limitations stated in Sec. 86(2), which are very close to those mentioned in the UN
Convention on Jurisdictional Immunities of States and Their Property. The suits against
foreign States can be brought only with the consent of the Central Government, which is
not always forthcoming, thereby denying any relief against the foreign State even for its
non-public or commercial acts,95 or where the foreign sovereign has waived the
immunity expressly or impliedly.96 However, the recent judicial pronouncements have
eased the rigour of government consent to sue a foreign sovereign or State.
In Harbhajan Singh v. Union of India,97 the petitioner had done some work of building
maintenance and renovation at the Algerian Embassy and the residence of the then
Algerian Ambassador in New Delhi in 1976. After the petitioner’s failure to get his dues,
he requested the Ministry of External Affairs to grant permission to sue the Algerian
Embassy. On the Ministry’s refusal to grant permission on “political grounds”, the
petitioner filed a suit. The Government of India contended that it “has discretion to refuse
consent” as required under Sec. 86, and the petitioner failed to make a case. The Supreme
Court rejected this contention and held that it is not for the government to decide whether
there was a prima facie case or not. The Court also did not accept the plea of “political
grounds” for refusal to grant permission. As the claim of the petitioner was related to
Sub-sec. (c) of Sec. 86(2), i.e., related to immovable property situated within the limits of
India, the petitioner is liable to be sued in this country. The Court directed the
government to reconsider the matter “[k]eeping in view the trend and development of
international law” and further directed to “explore the possibilities with Algerian
authority of mutual settlement either by arbitration or by other accepted legal norms”.98
However, the Delhi High Court was more direct in ordering the Central Government to
“accord permission to the petitioner to sue the Ambassador of the Government of
Afghanistan” in Century Twenty One (P) Ltd. v. Union of India.99The case related to the
recovery of rent of the house occupied by the Ambassador of Afghanistan and the
permission from the Ministry
_________________
95 M.K. Nawaz, The problem of jurisdictional immunities of foreign States with
particular reference to Indian State practice, 2 IJIL 164 (1962).
96 See Sagarmull Agarwala v. Union of India, AIR 1980 Sikkim 22.
97 AIR 1987 SC 9.

98 Ibid., at p. 15.
99 AIR 1987 Delhi 124.

of External Affairs to sue the Ambassador or his successor. The Court took judicial
cognizance of the distinction regarding liabilities arising out of sovereign acts of foreign
States (acts jure imperii) and liabilities arising out of commercial activities (acts jure
gestionis). The Court followed the English Court decision in Planmount Ltd. v. Republic
of Zaire,100 wherein the contract for repairs of a building was regarded an act of private
or commercial nature.101 Seeking permission from the government before suing the
foreign State is reminiscent of the American practice before the passing of the 1976
Foreign Sovereign immunities Act.
Nevertheless, the restrictive immunity rule finds judicial support under Sec. 86(2) in
certain cases. In Raja Sir Harinder Singh v. The Commissioner of Income Tax,102 the
ruler of the erstwhile Indian State was held liable to pay income tax for his personal
income accrued in India. The Supreme Court observed that Sec. 86 does not impose an
absolute prohibition against a ruler of a foreign State being sued in India. Even in the
matters of trust created by a foreign sovereign, the plea of sovereign immunity was not
accepted. In the Institute Indo-Portuguese v. Broges, Datar J. of Bombay High Court
stated:
If there has been a trust, and if that trust is created by a foreign sovereign, it does not
mean that the foreign sovereign has created this trust in the exercise of his foreign
powers. In my view, when a trust is created by a sovereign, the sovereign would be no
better than a settler amenable to the law of the country in which the charity is created and
is to be conducted.103
The Supreme Court had the occasion to consider the relationship between Sec. 86(1) of
the Civil Procedure Code before its amendment in 1976, and the rule of general
international law in Mirza Ali Akbar Kashani v. United Arab Republic,104 and observed
that the rule stated therein is applicable to a foreign State also.105
Immunity to foreign States or sovereigns is available only in suits and not to disputes
decided by the Industrial Tribunal under the Industrial Disputes Act106 or arbitration
proceedings.107 However, in the case of M/s Uttam Singh Duggal and Co. Pvt. Ltd. v.
United States of America Agency for International Development,108 (USAID) the
appellants entered into a contract with the defendants to construct staff houses and
apartments, and the contract contained a clause for arbitration by the contracting officer
of the USAID mission in India. On the refusal of the defendants to refer the dispute to
arbitration, the appellants approached the Court which rejected the defendants contention
that in view of arbitration clause, Sec. 86 will not be applicable. The Court also rejected
their contention that a building contract is not a commercial or trading activity, hence
restrictive immunity theory is not applicable. The Court stated that:
_________________
101 See also Art. 31(1)(a) of the 1961 Vienna Convention on Diplomatic Immunity,
allowing real action relating to private immovable property.
102 AIR 1972 SC 202.
103 27 ILR 111 (1960) at p. 114.
104 AIR 1966 SC 230.

105 Earlier the Calcutta High Court, in the same case, had stated that Sec. 86(1) is
applicable only to a foreign ruler and not to a State which will not be entitled to
immunity, see United Arab Republic v. Mirza Ali Akbar Kashani, AIR 1962 Cal. 387.
106 See Maharaja Sahib Shiv Bhagwat Singh Bahadur of Udaipur v. State of
Rajasthan, AIR 1964 SC 444.
107 See Nawab Usman Ali Khan v. Sagar Mal, AIR 1965 SC 1798.
108 The Delhi High Court decision of May 24, 1982, see ILR (1982) II Delhi 273.

In order to differentiate between a sovereign act and a private act, one will have to look
into the nature or to the purpose of the transaction. The transaction ... was purely a
construction contract and it would ... best be termed a private commercial act.
The court rejected the defendants’ plea of immunity. The court’s approach was very close
to I Congreso del Partido case.109
The rule of absolute immunity in India is now confined to narrow regions, i.e., immunity
of a foreign sovereign is restricted to acts jure imperii a s distinguished from acts jure
gestionis.110 But what constitute acts jure imperii are left to the discretion of the courts
in the absence of any legislation on the lines of British State Immunity Act or Foreign
Sovereign Immunities Act of the United States. The courts in India take into account the
nature or the purpose of the transaction, as evident from the M/s Uttam Singh Duggal and
Co. Pvt. Ltd. Case.111
B. Diplomatic Representatives and Consuls

Diplomatic representatives and consuls of foreign States enjoy certain immunities and
privileges in the receiving States. They enjoy these immunities under international law,
which are codified in the Vienna Convention on Diplomatic Relations, 1961, and the
Vienna Convention on Consular Relations, 1963. The basis of these immunities and
privileges is that they are representatives of the foreign State, and they have to perform
special functions.
The detailed discussion of diplomatic and consular immunities has been done in the
chapter on “Diplomatic and Consular Relations”.112
C. Foreign Public Ships

Under general international law, foreign public ships, including the warships,113 enjoy
immunity to a great measure from the territorial jurisdiction of another State while in its
territorial waters, ports or internal waters.114 Any private vessel, called for public
purposes, such as carrying of troops or war material is considered a public ship, and as
such, attracts sovereign immunity. The ships are immune from the legal process and
cannot be the subject of execution of any degree or damages for collisions. The members
of the crew when on duty or official mission, are immune from local jurisdiction even
while committing breaches of the local law when they are ashore. When not on duty, they
are not protected, though normally they are handed over
_________________
109 Op. cit. 73.
110 State of Kerala v. K. Cheru Babu, AIR 1978 Ker. 43 at pp. 48-49.
111 See op. cit. 108.
112 See Ch. 8, infra.
113 Article 29 of the 1982 Law of the Sea Convention defines “warship” as “a ship
belonging to the armed forces of a State bearing the external marks distinguishing ships
of its nationality, under the command of an officer duly commissioned by the government
of the State and whose name appears in the appropriate service list or its equivalent and
manned by a crew which is under regular armed force discipline”.

114 See Schooner Exchange v. McFaddon, op. cit. 52, the statement of Marshall CJ
laid down the basis of immunity; the Parlement Beige, op. cit. 58; Chung Chi Cheung v.
The King [1939] AC 160; Municipality of Saint John v. Fraser-Brace Overseas Corp., 26
ILR, 165 (1958-11).

to the authorities of the ship. These immunities, however, are available only if the foreign
vessels enter the territory of a State lawfully. In ease they violate the latter’s territorial
sovereignty or its laws, that will attract the international responsibility of the flag
State.11- While in territorial sea, the warships must comply with the laws and regulations
of the coastal State, failing which they may be required to leave the territorial sea.116
The special inviolability which public ships enjoy is stated to be based on the extra-
territorial character of the ship, i.e., the “floating island” theory, considering a public
vessel as a part of the territory of the flag State, and subject to its jurisdiction only.117
But in Chung Chi Cheung v. The King,118 the Privy Council held that the local court of
Hong Kong has the jurisdiction over a crime (in this case, murder) committed on board
the Chinese armed vessel, because the crime was committed in the territorial waters of
Hong Kong. Lord Atkin stated that the correct view is that according to international law
the court grants certain immunities or exemption to the ships and crew of another State.
However, the said immunities of public ships are conditional and if there are serious
breaches of the local law, or if the flag State waives the immunities, the territorial State
can exercise the jurisdiction. Nonetheless, the public ships remain for many purposes an
independent area of competence of the flag State. No local police power can be exercised
on board the public vessel even if the local fugitives have taken refuse or any act of
violence has happened there unless requested by the captain of the ship or the ambassador
of the flag State, or it affects the peace and good order of the territorial State. This may,
however, give rise to an area of concurrent jurisdiction of the flag State and the coastal
State. But preponderant opinion and judicial practice in Anglo-American countries and in
France accepts the local jurisdiction over offences where they affect the peace and good
order of the port.119
The immunity to foreign public vessels is granted to enable them to discharge their State
functions efficiently. However, the entitlement of jurisdictional immunity of government
ships used for commercial purposes is surrounded by controversy. The use of government
ships or private ships by government for commercial purpose has raised the similar
problems as the government engaged in trade or non-governmental activities and States
are increasingly resorting
_________________
115 Ships entering under disguise or false pretences, termed as “spy” ships loose their
immunity and are liable to confiscation and legal process. See Ingrid Delupis, Foreign
warships and immunity for espionage, 78 AJIL (1984).
116 See Art. 23 of the 1958 Territorial Sea Convention and Art. 30 of the 1982 Law of
the Sea Convention. Article 31 of the 1982 Convention imposes international
responsibility On the flag State for the loss resulting from the non-compliance with these
laws and regulations.
117 The theory finds its expression in Art. 11(1) of the 1958 High Seas Convention
and Art. 97(1) of the 1982 Law of the Sea Convention.
118 See op. cit. 114.
119 In Wildenhus’s case 120 US I (1887), the US Supreme Court took the view that a
murder by one crew member of another (both were Belgian nationals in this case) on
board the foreign public ship (Belgian ship) while in dock in Jersey City, ipso facto

disturbed the peace of the port, and thus was subjected to local jurisdiction. The French
law had been more explicit on the matter of jurisdiction, i.e., the matters affecting the
interest of the State, matters of police, and offences by members of the crew against
strangers even on board, were subject to local jurisdiction. But local jurisdiction would
not apply in matters of internal discipline or offences not affecting strangers, except when
the peace and good order of the port is affected, or specific assistance of local authorities
was sought. See Brownlie, op. cit. 4, pp. 318-319.

to restrictive immunity rule, which is incorporated by many States in their statutes on

sovereign immunities and in judicial practice.120
There are certain international conventions which do not exempt the State-owned
commercial ships from local jurisdiction of the territorial State. The 1926 Brussels
Convention for the Unification of Certain Rules relating to the Immunity of State-Owned
vessels (as supplemented by a Protocol of 1934) places sea-going vessels owned or
operated by States, cargoes owned by them, and cargoes and passengers carried on
government vessels on the same footing as private vessels (Arts. 1 and 2). But the ships
of war, government yachts, patrol vessels, hospital ships, auxiliary vessels, supply ships,
and other crafts owned or operated by a State, and used at the time a cause of action
arises exclusively on governmental and non-commercial service are exempted from these
provisions (Art. 3). Article 21 of the 1958 Territorial Sea Convention and Art. 28 of the
1982 Law of the Sea Convention make them subject to the criminal and civil jurisdiction
of the coastal State while traversing the territorial sea. Article 30 of the 1972 European
Convention on State Immunity also provides that the Convention “shall not apply to
proceedings in respect of claims relating to the operation of sea-going vessels owned or
operated by a contracting State or to the carriage of cargoes and of passengers by such
vessels or to the carriage of cargoes owned by a contracting State and carried on board
merchant vessels”.
Article 16 of the United Nations Convention on Jurisdictional Immunities of State and
their Property incorporates the similar rule. It provides:
1. ... a State which owns or operates a ship cannot invoke immunity from
jurisdiction before a court of another State... if, at the time the cause of action arose, the
ship was used for other than government non-commercial purposes.
2. Paragraph 1 does not apply to warships and naval auxiliaries nor does it apply to
other vessels owned or operated by a State and used, for the time being, only on
government noncommercial service.121
A State also cannot invoke immunity from jurisdiction related to cargo on board a ship if
it is being used for other than governmental non-commercial purposes (para 3). State is
allowed to plead all measures of defence, prescription and limitation of liability which are
available to private ships and cargoes and their owners (para 5). Thus, the restrictive
approach towards the government commercial ships is more evident than in the matter of
a foreign State or sovereign engaged in economic or non-governmental activities.
D. Foreign Armed Forces

Generally, matters related to armed forces between States are governed by agreements or
treaties and the circumstances under which they were admitted. In the absence of any
express agreement, they enjoy certain measure of immunity under general international
law. In the Schooner
_________________
120 See The Philippine Admiral, op. cit. 66. See also Sec. 10 of the British State
Immunity Act, 1978.
121 YblLC, Vol. 11-2(1986), p. 8.

Exchange,122 Marshall CJ observed that “a sovereign is understood to cede a portion of

his territorial jurisdiction where he allows the troops of a foreign prince to pass through
his dominions”. In such a case if the sovereign exercises jurisdiction he “would certainly
be considered as violating his faith.... The grant of a free passage, therefore implies a
waiver of all jurisdiction over the troops during their passage, and permits the foreign
general to use that discipline and to inflict those punishments which the government of
his army require”.
In other words, the foreign armed forces entering into the territory of a State under
licence are not subject to its jurisdiction unless the immunity has been waived by the
foreign State. In principle, the visiting force has exclusive jurisdiction over matters of
discipline and internal organisation, over offences committed while on duty. But if the
crime is committed by a member of the force outside the base area and/or while not on
duty, it has been strongly argued that the territorial State can exercise jurisdiction because
it has an interest and substantial connection with the matter.123 This seems to be more
plausible if the foreign forces are stationed there and are not merely passing through. The
immunity is granted to preserve the integrity and efficiency of the force. This is also
being done on grounds of courtesy and comity between the nations. But in civil matters
where the harm has been caused to a local citizen, the territorial State has good reasons to
exercise jurisdiction because in such cases it is not affecting the discipline of the armed
forces nor it is in conflict with the laws of the sending State.
Because of the uncertainty of the customary law, the States generally enter into special
agreement to govern the questions of jurisdiction. Thus, in the case of NATO Status of
Forces Agreement, 1951 (a multilateral agreement), the sending State has exclusive
jurisdiction over all persons subject to its military law and committing offences against
that law while in the receiving State. The receiving State has exclusive jurisdiction over
any breach of its law which is not a breach of the law of the sending State also. But there
is a wide area of concurrent jurisdiction when the breach is the violation of the laws of
both the States, in which case, the sending State has the primary jurisdiction if the
offence is committed while discharging official duty. In other matters, a treaty provides
detailed rules to determine jurisdiction. In civil matters, no claim of immunity is to be
pressed by the sending State except where members of the force act within their official
duty. The scheme set under the NATO Agreement has been followed in many bilateral
agreements.
The exemption from jurisdiction is accorded only to visiting armed forces and not to a
visiting armed band, unconnected with military operations, even though they might be
taking orders from persons of military rank. The armed forces, invited by a territorial
State to help in expelling hostile forces from its territory or suppress the uprising, enjoy
the similar immunities as the forces visiting in other circumstances. Generally, in such
cases, their position is regulated by a treaty, such as, India-Sri Lanka Accord of 1987 to
send the Indian Peace-Keeping Forces to Sri Lanka to fight the secessionist forces there.
The United Nations Peace-Keeping Forces
_________________
122 Op. cit. 52, at pp. 139-140.

123 See O’Connell, International Law. op. cit. 77, Vol. II (1970), pp. 879-886; L.
Oppenheim, op. cit.1, Vol. I, p.461; Starke, op. cit. 60, pp. 229-230; Guggenheim,
International Law, Vol. I, pp. 518-519; Brownlie, op. cit. 4, p. 373.

are similarly deployed under an agreement with the receiving State, regulating the powers
and immunities of the armed forces, and the establishment of their bases.124
E. International Institutions
International institutions, such as the United Nations, International Atomic Energy
Agency, and the International Monetary Fund also enjoy certain measure of privileges
and immunities from the jurisdiction of the territorial State. These immunities are
conceded to them under international agreements, as in the ease of United Nations and its
specialised agencies by the Conventions on the Privileges and Immunities of the United
Nations, and of the Specialised Agencies of 1946 and 1947 respectively. To concede
immunity under the municipal law, the States have taken legislative measures, viz., the
United Nations (Privileges and Immunities) Act, 1947 of India, and the Federal
International Organisations Immunities Act, 1945 of the United States. The subject has
been dealt with in detail in Chapter 19.
IV. HIJACKING AND JURISDICTION WITH REGARD TO AIRCRAFT

Any crime committed on board an aircraft in flight can always give rise to problems of
jurisdiction among nations. With the addition of hijacking and other unlawful
interference with civil aviation, such as placing the bomb on board the aircraft, the
runway or the aircraft on ground, the roster of international and national crimes has
become more serious. The customary international law does not provide any clear rules
on jurisdiction to deal with the offenders. The extradition rules are equally inadequate to
tackle the menace of these crimes.125 The international attempts in the form of
conventions, however, have been made to control the crimes related to civil aviation.
A. The Tokyo Convention

The 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board
Aircraft126 was the first major attempt to deal with the problem of jurisdiction over all
crimes committed aboard a civil aircraft. The aircrafts used in military, customs or police
services are kept out of the purview of the Convention. It applies in respect of
offences127 committed or acts done by a person on board any aircraft registered in a
contracting State, while that aircraft is in flight128 or on the surface of the high seas or of
any other area outside the territory of any State (Art. 1(2)). The Convention does not lay
down the concept of exclusive jurisdiction of any State,
_________________
124 On the UN Peace-keeping forces, see generally, D.W. Bowett, United Nations
Forces (Stevens & Sons Ltd., London), 1964, pp. 428A67; D.S. Wijewardane, 41 BYblL
122 (1965-66).
125 B. Cheng, 11 CLP pp. 225-257 (1958); L. Oppenheim, op. cit. 1, Vol. L, pp. 521
and 851; J.L. Brierly, op. cit. 14, p. 269.
126 704 UNTS 219, came in force in 1969.
127 Offences covered under the Convention are against penal law, or acts which may
or do jeopardise the safety of the aircraft or of persons or property therein, or which
jeopardise good order and discipline on board (Art. 1(1)).

128 For the purpose of the Convention, an aircraft is considered to be “in flight” from
the moment power is applied for the purpose of take-off until the moment when the
landing run ends (Art. 1(3)).

nor does it lay down a priority list among States competent to exercise jurisdiction. The
State of registration of the aircraft has been accorded jurisdiction over crimes or acts
committed on board. Other contracting States may also take such measures as may be
necessary to establish their jurisdiction (Art. 3). However, a contracting State other than
State of registration may not interfere with an aircraft in flight in order to exercise its
criminal jurisdiction over an offence committed on board except when:
a. the offence has effect on the territory of such a State;
b. the offence has been committed by or against a national or permanent resident of
such a State;
c. the offence is against the security of such a State;
d. the offence consists of a breach of any rules or regulations relating to the flight or
manoeuvre of aircraft in force in such a State;
e. the exercise of jurisdiction is necessary to ensure the observance of any obligation
of such a State under a multilateral international agreement (Art. 4).
Thus, the Convention gives effect to the principles of objective territorial, passive
personality, and protective principle of jurisdiction to vest the State other than the State
of registration to exercise its criminal jurisdiction over offenders. This is also an instance
of concurrent jurisdiction.
The aircraft commander enjoys special authority and powers to protect the safety of the
aircraft, persons and property, and to maintain good order and discipline on board (Arts.
5 and 10). The Convention, however, does not contain any elaborate provisions on
hijacking, except Art. 11 (unlawful seizure of aircraft), which obliges contracting States
to take all appropriate measures to restore control of the aircraft to its lawful commander
or to preserve his control of the aircraft. The contracting State where the hijacked aircraft
lands has to permit its passengers and crew to continue their journey and return the
aircraft and its cargo to the persons lawfully entitled to possession. Coupled with this, the
Convention imposes no obligation to extradite the offenders, but offences committed on
board an aircraft, for the purpose of extradition, are to be treated as if they had been
committed not only in the place in which they have occurred but also in the territory of
the State of registration of the aircraft (Art. 16).
B. The Hague Convention

The spate of hijacking in the late sixties129 made the States to act conceitedly to curb the
menace of this new form of international terrorism that had threatened the international
civil aviation. The United Nations General Assembly in its Resolution 2645 (XXV),130
condemned all acts of aerial hijacking or other interference with civil aviation, whether
originally national or
_________________
129 There were about 30 successful hijackings in 1968 and 89 in 1969. The most
famous incident of the Dawson’s Field Hijacking took place in Sept. 1970, in which
Palestinian guerillas hijacked three civilian aircrafts belonging to Swissair, BOAC and
TWA of Switzerland, the United Kingdom and the United States respectively. The
aircrafts were blown up. The passengers and crew, over 400 in number, were released in
stages in return for the release of a number of Palestinian guerillas.

130 Res. of Nov. 25, 1970, GAOR, 25th Sess. Supp. 28, p. 126; 9 ILM 1258 (1970).
The Resolution was adopted by 105 to zero, with eight abstentions.

international. It called upon States to take all appropriate measures to deter, prevent or
suppress such acts within their jurisdiction, and to provide for prosecution and
punishment of persons who perpetrate such acts. The Security Council also asked States
to take all possible legal steps to prevent further hijackings or any other interference with
international civil air travel.131
Closely at the heels of these resolutions, the International Civil Aviation Organisation
(ICAO) adopted a Convention for the Suppression of Unlawful Seizure of Aircraft
(commonly known as the Hague Convention) on December 16, 1970. Like the Tokyo
Convention, this Convention was also not applicable to military, police or customs
services. The Hague Convention, which is in force, is applicable only if the place of take-
off or the place of actual landing of the aircraft, on board which the offence is committed,
is situated outside the territory of the State of registration of that aircraft,132 and it is
immaterial whether the aircraft is engaged in an international or domestic flight (Art. 3(2)
and (3)).
The Convention deals exclusively with the crime of hijacking, though the word
“hijacking” does not find a mention in the Convention. Instead, an offence will be
committed under the Convention by any person who on board an aircraft in flight (a)
unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or
exercises control of that aircraft, or attempts to perform any such act, or (b) is an
accomplice of a person who performs or attempts to perform such an act (Art. 1). An
aircraft is considered to be “in flight” from the moment when all its external doors are
closed following embarkation, until the moment when any such door is opened for
disembarkation. In the case of forced landing, the flight shall be deemed to continue until
the competent authorities take over the responsibility for the aircraft and for persons and
property on board (Art. 3).133 The State parties are obliged to make the offence
punishable by severe penalties (Art. 2).
In the matter of jurisdiction, non-registration State can also claim jurisdiction. Article 4
requires each State party to take such measures as may be necessary (i.e., by
incorporating the crime of hijacking and its prosecution in its criminal law) to establish
its jurisdiction over the alleged offender in the following cases:
a. when the offence is committed on board an aircraft registered in that State;
b. when the aircraft on board in which the offence is committed lands in its territory
with the alleged offender still on board;
c. when the offence is committed on board an aircraft leased without crew to a
lessee who has his principal place of business or, if the lessee has no such place of
business, his permanent residence, in that State.134
_________________
131 See SC Res. 286, of Sept. 9, 1970, which was adopted by consensus.
132 Under the Anglo-American system, an aircraft has the nationality of the State
where it is registered. In some countries, mainly the European countries, nationality of an
aircraft is generally determined by the principal place of business.
133 This is an improvement over the Tokyo Convention. Compare Art. 3(1) of the
Hague Convention with Art. 1(3) of the Tokyo Convention.

134 On “dry leasing” situation incorporated in Art. 4(1)(c), see G. White, 6 Rev. ICJ
38 (1971). In such a case, the State of registration may not have any direct interest in
exercising jurisdiction over the act of hijacking or any other act of violence (i.e., assault
or killing), see S.K. Agarwala, Aircraft Hijacking and International Law (N.M. Tripathi,
Bombay), 1973, pp. 40-45.

If the alleged offender is present in any State other than the State of registration, the State
of landing or the State of the lessee, that State should take measures to establish its
jurisdiction, if it does not extradite the offender (Art. 4(2)).135 It is obliged to submit the
case to its competent authorities for the purpose of prosecution. Those authorities shall
take their decision in the same manner as in the case of any ordinary offence of a serious
nature under the law of that State. Thus, the Convention has given effect to the principle
of aut punire aut dedere (i.e., prosecute the offender or extradite him) to some extent,
though the State is not obliged to extradite the offender.
The Convention makes hijacking an extraditable offence and States parties are under a
duty to include it in every extradition treaty to be concluded between them. If an
extradition treaty already exists, hijacking is deemed to be included in that treaty. In case
a contracting State receives a request from another contracting State for extradition when
no extradition treaty exists between them, that State may consider the Hague Convention
as the basis for extradition, which will be subject to other conditions provided by the law
of the requested State. However, extradition treaties generally make exceptions for
“political offences” and the nationals of the requested State. It is, therefore, doubtful
whether a State would extradite an alleged offender since in majority of the cases,
hijacking is motivated by political factors though in a few cases, it has been committed
for private ends as well. Similarly, a State is not obliged to surrender its own national
under customary international law.
The contracting States are also to take all appropriate measures to restore control of the
aircraft to its commander, and facilitate the continuation of the journey of the passengers
and the crew, when it becomes practicable and return the aircraft and cargo to their lawful
owners.
C. The Montreal Contention

The Hague Convention, though a big achievement, was limited in its scope. It dealt solely
with hijacking, and all other act of interference with civil aviation, such as sabotage,
armed attack and other violent acts directed against the civil aviation were left outside its
purview. It was, however, no less an important matter as numerous cases with grave
consequences had taken place between 1949 to 1970, involving 22 aircraft and caused
death of more than 400 passengers and crew.136 To address this problem, the ICAO
adopted the Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation at Montreal on September 23, 1971 (commonly known as the Montreal
Convention).137
_________________
135 The provision is akin to universality principle of jurisdiction.
136 See Agarwala, op. cit. 134, at p. 80. For example, on Feb. 21, 1970, a Swissair
Coronado crashed in Switzerland after an explosion within 15 minutes of its take-off, 47
persons on board the aircraft died. On the same day, an explosion occurred in the mail
compartment of an Austrian Caravelle shortly after take-off. The more recent example is
of Aerial Incident at Lockerbie (Scotland) on Dec. 21 1988, when a bomb exploded on
Pan-Am flight 103, causing the aircraft to crash. In 1985, Air India Flight 182 (Kanishka)

was blown up on 23 June 1985 while in flight from Montreal to Delhi, killing all the 329
persons on board.
137 10 ILM 1151 (1971), in force 1973.

The Convention extended the area of the Hague Convention to cover the crimes
committed against the safety of civil aviation committed while the aircraft is “in service”
in addition to “in flight”. For the purposes of the Convention, five categories of acts were
enlisted as crimes, if committed by a person or his accomplice unlawfully and
intentionally, viz.,
a. an act of violence against a person on board an aircraft ‘in flight’ if that act is
likely to endanger the safety of that aircraft;
b. destroying or causing damage to an aircraft ‘in service’, which rendered it
incapable of flight or which is likely to endanger its safety in flight;
c. placing or causing to be placed on an aircraft ‘in service’, a device or substance
which is likely to destroy that aircraft or endanger its safety in flight;138
d. destroying or damaging air navigation facilities or interfering with their operation,
if any such act is likely to endanger the safety of an aircraft in flight;
e. communicating the information known to be false, and thereby endangering the
safety of an aircraft in flight139 (Art. 1).
An aircraft is considered to be “in service” from the beginning of the pre-flight
preparation of the aircraft by ground personnel or by the crew for a specific flight until 24
hours after any landing and it extends to the entire period during which the aircraft is “in
flight” (Art. 2(2)).140 On the matters of jurisdiction and extradition, the Convention
provides the similar rules as provided in the Hague Convention. A contracting State in
whose territory any of the acts amounting to an offence listed in the Convention takes
place, has to report to the Council of the ICAO about the circumstances of the offence,
and measures taken in relation to the alleged offender, particularly extradition or other
legal proceedings (Art. 13), and follows the principle of aut punire aut dedere. In the case
Concerning Questions of Interpretation and Application of the 1971 Convention Arising
from the Aerial Incident at Lockerbie, the Libyan Arab Jamahiriya asserted its right to try
two Libyans under the Montreal Convention, who were indicted by the UK and the USA
for their alleged involvement in the crash of Pan-Am flight 103 over Lockerbie, Scotland
that killed 207 people in December 1988, and pressurising Libya to hand over those
offenders. Libya prosecuted and imprisoned the two nationals in question. Libya filed
two separate cases against the UK and the USA in the International Court of Justice in
March 1992, requesting the Court to indicate provisional measures to prevent further
action by the United Kingdom and the United States to compel it to surrender the alleged
offenders before any examination of the merits of the cases. However, the Court, in April
1992, referring to the Security Council resolution 748 adopted under Chapter VII of the
United Nations Charter, found that the circumstances do not mandate the exercise of its
power to indicate such measures.141 The United Kingdom and the United States raised
objections to the Court’s jurisdiction
_________________
138 On this aspect, see the case Concerning Questions of Interpretation and
Application of the 1971 Convention Arising from the Aerial Incident at Lockerbie,
Scotland (Libyan Arab Jamahiraya v. UK), (1992) ICJ Rep., p. 3 (Provisional Measures).
139 This obviously covers the bomb hoaxes.

140 The “in flight'’ period starts from the moment when all the external doors are
closed following embarkation until such doors are opened for disembarkation (Art. 2).
141 Op. cit. 138.

and to the admissibility of the Libyan claims, contending that Libya’s claims under the
Montreal Convention were “superseded” by the Security Council resolutions which take
precedence over all rights and obligations arising out of the Convention. In February
1998, the Court, however, ruled that it did in fact have jurisdiction on the basis of Article
14, para. 1, of the Montreal Convention to hear Libya’s case on its merits, thereby
rejecting the US and UK claim that only the Security Council could decide on the
matter.142
D. Protocol to Montreal Convention

In February 1988, a Protocol on Unlawful Acts of Violence in Airports Serving
International Civil Aviation, supplementary to the Montreal Convention, was adopted at
the International Conference on Air Law convened by the ICAO at Montreal.143 It
widened the ambit of the 1971 Montreal Convention by including attacks against people
at airports within the Convention. The adoption of the Protocol was necessitated due to
the terrorist attacks at Rome and Vienna airports in 1986. The protocol adds to the
definition of “offence” given in the Montreal Convention, including actions that are
likely to endanger airport safety. It establishes universal jurisdiction over the offender
and applies the Montreal Convention’s rules of custody, extradition, and prosecution. On
the lines of the Montreal Convention, the Protocol stipulates severe penalties for unlawful
acts of violence against persons at an airport serving or using international civil aviation,
causing serious injury or death or causing destruction or damage to civil aviation
facilities. The State where the alleged offender is found has the choice to prosecute or
extradite him.
With a view to further curb the crimes against civil aviation, the International Conference
on Air Law held in February-March 1991 at Montreal, adopted the Convention on the
Marking of Plastic Explosives for the Purpose of Detection. It requires States parties to
prevent and prohibit the manufacture of unmarked explosives in their territory as well as
movement of such explosives into or out of their territory. All explosives are to be
marked by manufacturers with any one of the four “detection agents” agreed upon at the
Conference. All unmarked explosives, not held for military purposes, are to be destroyed
within a three-year period and
_________________
142 See case Concerning Questions of Interpretation and Application of the 1971
Montreal Convention Arising from the Aerial Incident at Lockerbie, [Preliminary
Objections] (1998) ICJ Rep., p. 4. The case is yet to be decided on merits. In the
meantime, diplomatic efforts have overtaken the Court’s proceedings, with the US and
UK agreeing to an arrangement that they had refused earlier: the extradition of the
suspects to a “neutral” third country to be tried by a neutral court. In April 1999 Libya
transferred the two suspects to a US Airbase in the Netherlands to be tried by a three-
judge Scottish court applying Scottish law. Libya also received assurances that the trials
will not be used as a means to implicate the Government of Libya. If found guilty, the
suspects were to serve prison sentences in Glasgow, in the UK, under the UN
supervision. The case, however, has raised crucial questions about the relationship
between the ICJ and the Security Council, though the Court made it clear that it did not in

any way seek to negate the applicability of Security Council resolutions. However,
having decided that there was a legal dispute, the Court as the “primary” judicial organ of
the UN was simply fulfilling its obligations under the UN Charter without coming into
conflict with the Security Council.
143 The Protocol came into force on Aug. 6, 1989.

those for military or police functions, within 15 years. An International Explosives

Technical Commission, set up under the Convention, monitors the implementation of the
provisions of the Convention.144
In spite of these instruments, including the three conventions of the Tokyo, the Hague
and Montreal on hijacking and other violent acts against the safety of civil aviation, these
unlawful acts have not been eradicated totally and are committed unabated. The reasons
for this state of affairs are manifold. Many nations have yet to ratify these conventions.
The strict adherence to the provisions on extradition or prosecution has not been very
successful because of the “political nature” of these acts. The Hague and Montreal
Conventions provide only severe penalties without prescribing the minimum punishment
and the time frame within which the prosecution should take place, with the result that
most of the time such crimes go unpunished. Trial and prosecution have been left to the
jurisdiction of the national law. There is absence of any sanction against the State where
the offender is found if it fails to extradite or prosecute the offender.145 The situation can
be salvaged by providing a minimum punishment for these heinous crimes and the
speedy trial within a specified time frame. There should be strict adherence to the
principle of aut punire aut dedere. States should return the aircraft at the earliest to its
lawful owners and the passengers should be helped in continuing their journey. Failure to
abide by these provisions should be met with effective sanctions.146
In the absence of an effective multilateral framework, the States may conclude bilateral
treaties or take unilateral action under its laws, not to allow a country to operate within its
territory which shelters the hijackers or other offenders against the safety of civil
aviation. The unilateral action may, however, come into conflict with a State’s
international treaty obligations.
E. Aircraft Hijacking and India

India is a party to all the three international conventions on hijacking, viz., the Tokyo, the
Hague and the Montreal Conventions.147 It, however, did not ratify these conventions
till it became subject to series of hijacking incidents in which the Indian airliners were
taken to Pakistan, a country sympathetic to the demands of the hijackers. In the first
incident which took place in January 1970, the hijacked Indian aircraft was taken to
Lahore (Pakistan) and after the hostages were released by the hijackers, the plane was
blown up. The authorities in Pakistan remained
_________________
144 The Convention entered into force on 21 June 1998. Currently, there are 135
parties to the Convention.
145 In the Pan-Am crash over Lockerbie, the Security council imposed sanctions
against Libya, see SC Res. No 748 of March 31, 1992; SC Res. 731 on 21 January 1992.
146 In 1978, the seven chief industrial countries—Canada, France. FRG, Italy, Japan, UK
and the US, at their Summit Meeting in Bonn, adopted a Declaration on International
Terrorism (17 ILM 1285 (1978)), in which they agreed that “in cases where a country
refuses to the extradition or prosecution of those who have hijacked an aircraft and/or
does not return such aircraft”, action would be taken to cease all flights to and from that
country and its airlines, see S.C. Chaturvedi, “Hijacking and the Law”, 11 UIL 89 at p.

101 (1971); M. Akehurst, “Hijacking” 14 UIL 81 at p. 85 (1974). See also the

European Convention on the Suppression of Terrorism, 1976, in 15 ILM 1272 (1976).
147 These conventions are effected by the Tokyo Convention Act, 1975, the Anti-
Hijacking Act, 1982 (to give effect to the Hague Convention and the Montreal
Convention).

merely mute spectators to this incident. The hijackers were later granted asylum by
Pakistan. They were neither extradited, nor were they prosecuted. This led India to
suspend all rights of over-flight to Pakistani aircraft through Indian airspace with
immediate effect, against which Pakistan made a complaint to the Council of the ICAO,
which found the Indian action not in consonance with its obligation under the Chicago
Convention, 1944, and the Transit Agreement, 1944. India appealed to the International
Court of Justice (ICJ) against the said decision of the Council of the ICAO. The ICJ also
observed that India does not have a right to suspend a multilateral treaty unilaterally and
the ICAO Council has the jurisdiction in such cases.148
In subsequent hijacking incidents of Indian aircrafts, however, Pakistan returned the
aircraft and sent back the passengers, but in no case the hijackers were extradited. In the
September 10, 1976 incident, the hijackers were arrested by Pakistani authorities, but no
further action was taken.
The five hijackers involved in the September 29-30, 1981 incident, were tried by a
Special Court constituted by the Pakistan Government in March 1984, under the Anti-
Terrorists Act. The nine hijackers involved in the July 1984 incident were also tried, out
of whom three were awarded death sentence, two were given life imprisonment and four
were acquitted. All the convicted hijackers in the 1981 and 1984 incidents have appealed
to the Lahore High Court against their conviction, alleging that their trial by the Pakistan
Court is illegal since the crime was committed in the Indian airspace. The appeals have
yet to be decided finally.149
The latest hijacking incident involving an Indian aircraft is the Indian Airlines Flight 814
en route from Kathmandu, (Nepal) to Delhi, (India) when it was hijacked by five
Pakistani nationals on 24 December 1999. Harkat-ul-Mujahideen, a Pakistan-based
terrorist group, was held responsible for the hijacking. After touching down in Amritsar,
Lahore and Dubai, the hijackers forced the aircraft to land in Kandahar, Afghanistan. The
hijackers released 27 of 176 passengers in Dubai but fatally stabbed one and wounded
several others. The hijacking lasted for seven days and ended after India released three
Islamic militants. Instead of arresting and trying the hijackers, the five hijackers and the
three released militants were provided a safe passage by the Taliban.1'0
_________________
148 See the ICAO Jurisdiction case (1972) ICJ Rep., p. 46.
149 See H.O. Agarwal, International Law, 2nd ed. (Allahabad Law Agency), 1992, p.
514.
150 en.wikipedia.org/wiki/Indian_Airlines_Flight_814

Page 204
CHAPTER 8
Diplomatic and Consular Relations
I. INTRODUCTORY
Mutual relations among States at international level are normally conducted through
diplomatic missions, which are invariably accredited permanently by a State to other
countries. There are also semi-permanent or regular representation to international
organisations, such as the United Nations and other inter-governmental organisations,
special missions to represent States at international conferences, or to conduct ad hoc
diplomacy. They provide an important link between the country which sends them and
the country to which they are accredited. Diplomatic envoys are the authorised agents to
help States in performing the acts of diplomacy, maintaining mutual relations,
communicating with each other, or carrying out political or legislative transactions.
State’s representation in the territory of foreign States is a very old practice.1 But it was
neither uniform nor permanent. The permanent appointments of diplomatic envoys began
only from the seventeenth century. However, the rights, duties, privileges, and duties of
diplomatic staff were mainly based on reciprocity. In 1815, the Congress of Vienna
clarified and codified the law relating to classification, order and precedence of
diplomatic envoys. Its efforts led to “Regulation of Vienna”. However, it failed to bring
the desired uniformity in their rights, duties, privileges and immunities. But in 1961, this
was done by an International Conference at Vienna which adopted the Vienna
Convention on Diplomatic Relations (the 1961 Vienna Convention). The Convention, in
most part, is declaratory of the customary law and in other parts constitutes a progressive
development of the law by filling in gaps or by spelling out rules where the State practice
was uncertain or inconsistent. The Convention has made it clear that “questions not
expressly regulated by the provisions” of the Vienna Convention will continue to be
governed by customary international law.2 India gave effect to the Convention and
matters related therewith through the Diplomatic Relations (Vienna Convention) Act,
1972.
_________________
1 References of granting exemptions to diplomatic representatives in India are
found even in the epic sagas of Ramayana and Mahabharata, see S.S. Dhawan,
International law in the age of Ramayana, National Herald, Jan. 28, 1973, p. 1.
2 Preamble to the Vienna Convention. See the text in 500 UNTS 95; 55 AJIL 1064
(1961). The Convention came into force in April 1964. It has become almost universal in
membership, with 186 States as members in March 2010. In the case concerning United
States Diplomatic and Consular Staff in Tehran (1980) ICJ Rep., p. 3, the ICJ observed
that the Convention is the evidence of generally accepted rules of international law, see at
p. 31, para. 62 and pp. 30-43.

Page 205 DIPLOMATIC AND CONSULAR RELATIONS
To regulate other aspects of diplomatic intercourse among States, the Vienna Convention
on Consular Relations, 1963 was adopted under the auspices of the United Nations.3 In
1969, the Convention on Special Missions was adopted by the United Nations General
Assembly.4 The Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons, including Diplomats was adopted in 1973.5 This was
followed by the adoption of the Convention on the Representation of States in their
Relations with International Organisations of Universal Character on March 14, 1975, at
Vienna.6
II. DIPLOMATIC RELATIONS

A. Legal Aspects of Diplomatic Relations
The Vienna Convention in Art. 2 declares that “the establishment of diplomatic relations
between States, and of permanent diplomatic missions, takes place by mutual consent”
which may be expressed informally. Though every independent State has the capacity to
establish diplomatic relations, there is no such right of legation vested in a State under
international law. The establishment of diplomatic relations need not be accompanied by
the establishment of permanent missions, just like recognition of a State need not always
be followed by the establishment and maintenance of diplomatic relations. Normally the
establishment of diplomatic relations is manifested in the establishment of permanent
missions.
1. Functions of a diplomatic mission

Article 3 of the Vienna Convention is very comprehensive which states:
1. The functions of diplomatic mission consist, inter alia, in:
(a) representing the sending State in the receiving State;
(b) protecting in the receiving State the interests of the sending State and of its
nationals, within the limits permitted by international law;
(c) negotiating with the government of the receiving State;
(d) ascertaining by all lawful means conditions and developments in the receiving
State, and reporting thereon to the government of the sending State;
(e) promoting friendly relations between the sending State and the receiving State,
and developing their economic, cultural and scientific relations.
2. Nothing in the present Convention shall be construed as preventing the
performance of consular relations by a diplomatic mission.
Under customary international law, diplomatic missions have three functions to perform,
viz., to protect the interests of the sending State and its nationals, to negotiate with the
government of the receiving State, and to report about the conditions of the receiving
State to their States.
_________________
3 For the text of the Convention, see 57 AJIL 993 (1963). The Convention came
into effect in March 1967.
4 GA Res. 2530 (XXIV), Dec. 8, 1969.
5 GA Res. 3166 (XXVIII), Dec. 14, 1973.
6 J.G. Fennessy, 10 AJIL, pp. 62-72 (1976).

2. Classification and precedence of diplomatic agents

The Vienna Convention (Art. 14) classifies heads of mission into three categories,
namely: (i) ambassadors or nuncios (or legates appointed by the Pope) accredited to
heads of State, and other heads of mission of equivalent rank; (ii) ministers, envoys and
internuncios, accredited to heads of State; (iii) charges d'affairs accredited to ministers for
foreign affairs. Whereas ambassadors and legates are the diplomatic agents of the first
category and considered to be representing the person of their sovereign, charges d'affairs
are diplomatic agents of the last category. The Convention provides that except for
precedence and etiquette, there is hardly any distinction between diplomatic agents and
their privileges and immunities (Art. 14(2)). Heads of mission take precedence in their
respective classes in the order of the date and time of taking up their functions (Art.
16(1)).
There are ministers or envoys that may be sent on temporary assignment, which were
earlier designated as “Extraordinary” and “Plenipotentiary” with full powers to transact
business on behalf of the head of the State. But now the terms are used for temporary as
well as resident envoys. There are also envoys on ad hoc missions, usually carrying “full
powers”, stating the extent of their authority in any negotiations with the receiving State
or at an international conference.
3. Accredition of heads of mission and appointment of other members

Since diplomatic relations between States and establishment of permanent missions is a
matter of mutual agreement, it is the States concerned which decide about the category of
diplomatic representation they want to have. Before an individual is appointed as Head of
the mission, the consent of the receiving State is obtained, which may refuse to accept the
appointment without specifying the reason (Art. 4). It is for this reason, generally that the
accrediting State ascertains the acceptance of a particular person as the diplomatic envoy
from the receiving State. The head of mission has to present Letters de Creance (letter of
credence) about his appointment to the receiving State at a formal ceremony.
The sending State may freely appoint the other members of the staff of the mission,
except the military, naval or air attaches who may be appointed after their names have
been approved by the receiving State (Art.7).7 Further, in the absence of a specific
agreement as to the size of the mission, the receiving State may require that the size of
the mission be kept within limits considered by it to be reasonable and normal, by taking
into account the circumstances and conditions in the receiving State and the needs of the
particular mission (Art. 11). However, to check the subjectivity in any such decision, and
avoid any discriminatory action, it is required that “the receiving State may equally,
within similar bounds and on a non-discriminatory basis, refuse to accept officials of a
particular category” (Art. 11(2)).
Nevertheless, the receiving State may at any time and without explaining its decision,
notify the sending State that the head of the mission or any member of diplomatic rank
accredited
_________________
7 This provision is, however, qualified by Art. 10 and failure to notify the receiving
State destroys the appointee’s immunity.

to the mission is persona non grata (person no longer acceptable) or that any other
member of the staff of the mission is not acceptable. In such a case, the sending State is
obliged to recall that person or terminate his functions with the mission. If the sending
State refuses or fails to act within a reasonable time, the receiving State may refuse to
recognise the concerned person as a member of the mission, and thus his immunities and
privileges will come to an end. A person may be declared non grata or not acceptable
before arriving in the territory of the receiving State (Art. 9).
B. Rights, Privileges and Immunities of Missions and Diplomatic Agents

1. Rationale of privileges and immunities
Diplomatic relations of the States are conducted in the territory of the receiving State
with its specific permission, which entitle diplomatic missions and their staff to certain
privileges and immunities, and enable them to function smoothly.
Numerous theories are in vogue regarding the basis for diplomatic immunities and
privileges. The International Law Commission (ILC) has listed a few of them: (i) The
“exterritoriality theory”, which regards the premises of the mission representing an
extension of the territory of the sending State. This theory is almost discarded now.8 (ii)
The “representative character” theory, that considers the diplomatic mission as
personifying the sending State and the diplomat as representative of the foreign
sovereign, hence there are privileges, (iii) The ''functional necessity theory”, which
justifies the privileges and immunities as being necessary to enable the mission to
perform its functions. The Vienna Convention is the sum total of all the three theories and
the last one has been generally followed where the customary international law had failed
to give any clear pointer.9 It is based on the principle that diplomatic agent should be free
to perform official business on behalf of his country without any disturbance, interference
or interruption.
2. Inviolability of the mission

a. Premises: The Vienna Convention in Art. 22 set out the basic proposition in this
regard and states:
l. The premises of the mission10 shall be inviolable. The agents of the receiving
State may not enter them, except with the consent of the head of the mission.
_________________
8 See the decision of the Supreme Court of Australia in R. v. Turnbull, ex-parte
Petroff 16 FLR 438 (1971); J.G. Starke, Introduction to International Law, 10th ed.
9 See II YblLC, pp. 94-95 (1958). According to Brownlie, the immunities are
related to the double aspect of diplomatic representation: the sovereign immunity
attaching to official acts of foreign States and more significantly, elements of
“functional” privileges and immunities of the diplomatic staff and premises, see I.
Brownlie, Principles of International Law, 7th ed. (Oxford University Press, Oxford),
2008, p. 351.

10 The “premises of the mission” are “building or parts of buildings and the land
ancillary thereto used for the purposes of the mission including the residence of the head
of the mission”, Art. 1 (i) of the Vienna Convention.

2. The receiving State is under a special duty to take all appropriate steps to protect
the premises of the mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the
means of transport of the mission shall be immune from search, attachment or execution.
The inviolability of the diplomatic mission, which is a part of the customary international
law, is an absolute rule, which cannot be violated even for serving any writs through
mail. In India, under Sec. 8 of the Diplomatic Relations (Vienna Convention) Act, no
public servant or agent of the Central Government, a State Government or any public
authority can enter the premises of a diplomatic mission for the purpose of serving legal
process, except with the consent of the head of the mission.
However, Art. 22 of the Convention leaves open the issue of waiver of obligations stated
therein to enter the premises under a pressing emergency, such as fire, epidemic, or force
majeure (e.g., earthquake etc.).11 Further, the right to enter in case of “abuse” of the
premises by the staff of the embassy has not been clearly dealt with. Article 41(3) of the
Convention stipulates that the premises of the mission must not be used “in any manner
incompatible with the functions of the mission as laid down in the present Convention or
by other rules of international law or by any general agreements in force between the
sending and the receiving State”.
This provision has clear application to the case which arose between Iraq and Pakistan in
1973. On the suspicion that the arms are smuggled in Pakistan, the Iraqi Ambassador was
called by the Ministry of Foreign Affairs of Pakistan and was told that arms were being
brought into Pakistan under diplomatic immunity and there was evidence that they were
stored in the Iraqi Embassy in Pakistan. On the refusal of permission for a search by the
ambassador, the premises were raided by the armed policemen in his presence, and huge
quantity of arms stored in crates was recovered. Pakistan sent a strong protest to the Iraqi
Government, and declared the Iraqi Ambassador and an attache persona non grata and
recalled their own ambassador. Though this was a clear breach of Art. 41(3), such a
forcible entry can be justified only in an extreme case of abuse, and in this case it could
be justified ex post facto.
In another incident, the United Kingdom severed diplomatic ties with Libya in 1984, after
the Libyan People’s Bureau Incident, when firing from the Libyan Bureau in London
killed one police personnel and injured 11 demonstrators. The demonstrators were
protesting against Colonel Gaddafi’s Government. After the incident, the Bureau building
was evacuated, it was searched and guns were found.12
The Convention does not have any provision on diplomatic asylum because it is doubtful
whether a right to grant diplomatic asylum for political or other offenders exists under
general
_________________
11 In Peru, commandos entered the Japanese embassy which was under siege by the
rebels from Dec. 17, 1996-April 22, 1997, to rescue the hostages, see
en.wikipedia.org/wiki/Japanese_embassy_hostage crisis
12 56 BYbIL 435 (1985): cited in Harris, Cases and Materials on International Law,
7th ed. (Sweet & Maxwell, London), 2010, p. 367.

international law.13 Nonetheless, it may be allowed by bilateral agreements between the

parties under Art. 41(3). In the case of violation of the obligations and “abuse” of the
premises, probably the remedy available to the receiving State is that of severing of
diplomatic relations.
The “special duty” imposed under Art. 22(2) has been stated to be a part of customary
international law, and failure to discharge it entails the international responsibility of the
receiving State. In the United States Diplomatic and Consular Staff in Tehran case,14
thousands of Iranian students attacked the United States Embassy in Tehran on
November 4, 1979, and other consulates at Tabriz and Shiraz were taken over by them
forcibly. Fifty-two United States nationals (50 were diplomatic and consular staff, and
two were private persons) were kept hostages (who were subsequently released in
January 1981, through a negotiated settlement between the two countries), and they also
seized the mission’s archives and documents. The Iranian security forces did not stop the
demonstrators. The International Court of Justice observed that the Iranian Government
failed to ensure the protection of the United States embassy and consulates, which was in
violation of the Vienna Conventions of 1961 and 1963 on Diplomatic and Consular
Relations respectively,15 for which Iran was “under an obligation to make reparation” to
the United States.16
In a similar incident in 1965, the United States Embassy in Moscow was attacked by
students. The Soviet Union expressed regret over the incident and promised to take
stricter measures of protection. It also agreed to pay compensation for property loss.17
In 1990, when Iraqi forces, after annexation of Kuwait, entered the premises of foreign
embassies of France and some other countries, and took away the diplomats and other
nationals who were present on those premises, the United Nations Security Council
considered the action as “a flagrant violation of international obligations” and stated that
Iraq shall be fully responsible for any use of violence against diplomatic missions or their
personnel.18 On the other hand, in 1999, the Chinese embassy in Belgrade was hit by a
United States missile during Kosovo crisis. The United States apologised and agreed to
pay $28 million compensation. China also agreed to pay $2,876 million compensation for
the damage done to the United States embassy in China by rioting as a reaction to
Belgrade incident.19
The receiving State is under a duty to respect and protect the premises of the mission,
together with its property and archives, even in case of armed conflict (Art. 45(1)). The
property of the mission and its means of transport are immuned from search, attachment
or execution.
_________________
13 See the Asylum case (1950), ICJ Rep., p. 266. Such a right is recognised by Latin
American countries, as is evident from the Montevideo Convention on Political Asylum,
1933, see in M.O. Hudson, International Legislation, Vol. VI (West Publishing Co.),
1931, p. 607. Harvard draft (Art. 6) also does not favour diplomatic asylum, see Harvard
Research Draft on Diplomatic Privileges and Immunities, 1932, 26 AJIL Supp. 19
(1932).
14 See op. cit. 2.

15 Iran was found to be in breach of Arts. 22(2), 24, 25, 26, 27 and 29 of the 1961
Convention and Arts.
5 and 36 of the 1963 Convention.
16 Iran did not participate in the proceedings, nor did it comply with the Court’s
judgment.
17 7 Whiteman 387.
18 SC Res. 667, Sept. 16, 1990.
19 See Harris, op. cit. 12, at p. 367.

b. Archives and Documents: The Vienna Convention in Art. 24 establishes the

inviolability of the mission’s archives and documents “at any time and wherever they
may be”. They are not subject to legal process. However, the Convention fails to define
the term “archives”, but the 1963 Convention on Consular Relations provides that
“consular archives” includes all the papers, documents, correspondence, books, films,
tapes and registers of the consular post, together with the ciphers and codes, the card-
indexes and any article of furniture intended for their protection or safe-keeping.
c. Freedom of Communication: The receiving State is under an obligation to “permit
and protect free communication on the part of the mission for all official purposes” (Art.
27(1)). The official correspondence of the mission shall be inviolable (para. 2) and the
diplomatic bag20 shall not be opened or detained (para. 3). The packages constituting the
diplomatic bag must bear visible external marks of their character and may contain only
diplomatic documents intended for official use (para. 4).
Even though now it is a well accepted international practice, but it is doubtful under the
Convention that whether the receiving State can open or demand the right to search the
bag in case there is a doubt about its contents.21 Such a right, however, existed before
1961.22 In 1984, Mr. Dikko, a minister in the deposed Nigerian Government, was
kidnapped in London and found drugged in a crate at Skansted Airport, awaiting to be
airlifted to Nigeria, to face criminal charges there. There was no “visible external mark”
on the crate as required under Art. 27(4), though labelled “diplomatic baggage”. The
customs officials, alerted by emitting odours, opened the crate. It may be stated, ex post
facto, that in this case there was no violation of the provisions of Art. 27, but it is
doubtful if a State can exercise such a right under the Convention, though quite often
resorted to by States in doubtful cases.23
To solve such problems and put the law on a firmer footing, the International Law
Commission, in 1989, adopted the Draft Articles on the Status of the Diplomatic Courier
and the Diplomatic Bag not Accompanied by Diplomatic Courier. It provides in Art.
28(2) that if the receiving or transit States have serious doubts about the contents of the
diplomatic bag, they may request that the bag be opened in their presence by the
representative of the sending
_________________
20 The diplomatic bag consists of packages, sacks, or possibly trunks and is usually
sent in the custody of a diplomatic courier “who shall be provided with an official
document indicating his status and the number of packages constituting the diplomatic
bag”, Art. 27(6) of the Vienna Convention. There is no limit on the size or shape of the
bag.
21 The UK Government which was not conducting any scanning of the diplomatic
bag earlier, has changed its stand since 1985, and stated that it would be ready “to scan
any bag on specific occasions where the grounds for suspicion are sufficiently strong”. At
such an occasion, a member of the relevant mission is invited to be present. Diplomatic
Immunities and Privileges, Misc. 5 (1985), United Kingdom Command Papers, 9497, p.
21.
22 Eileen Denza, Diplomatic Law, 3rd ed. (Oxford University Press), 2008, p. 227.

23 See A. Akinsanya, 34 ICLQ 602 (1985). In 1964, Italy resorted in opening a trunk
marked “diplomatic mail” sent by the Egyptian embassy in Rome to Cairo. It had an
Israeli national, found drugged and gagged inside it. The First Secretary and two other
members of the Egyptian missions were declared persona non grata, but the Egyptian
Ambassador claimed ignorance and deplored the incident, see in Harris, op. cit. 12, p.
339 for other cases.

State. If the request is refused, the bag shall be returned to its place of origin.24 In India,
since 1954, the government has evolved a method for smooth handing of the diplomatic
bag. The missions or their agents collect the bag on producing the katcha bill. The
missions are to cooperate in the proper identification of the diplomatic bag, which should
bear a clear mark of “Diplomatic/ Official” and accompanied by a certificate.25
Like the diplomatic bag, the diplomatic courier is also protected in the performance of his
official functions, and enjoys personal inviolability and is not liable to any form of arrest
or detention by the receiving State (Art. 27(5)). The courier, otherwise, does not enjoy
any personal immunity from local jurisdiction of the receiving State, nor is his personal
bag exempted from search.26 However, he must carry a courier’s passport.
The obligations in relation to diplomatic bag and diplomatic courier are equally binding
on third States. They shall accord the similar freedom and protection to the official
communication and correspondence as are provided by the receiving State. The
diplomatic couriers and diplomatic bags in transit would enjoy the similar inviolability
and protection as the receiving State is bound to accord (Art. 40(3), Vienna Convention).
3. Diplomatic agents
a. Personal Inviolability: Article 29 of the Vienna Convention lays down that:
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of
arrest or detention. The receiving State shall treat him with due respect and shall take all
appropriate steps to prevent any attack on his person, freedom or dignity.
Thus, it is the duty of the receiving State to protect the diplomatic agent and prevent any
action directed against him. The “appropriate steps” required of the receiving State in this
regard must be determined in the light of relevant circumstances. Submitting to the
demands of kidnappers to save a diplomat may not be covered under “appropriate
steps”.27 In Democratic Republic of the Congo v. Uganda case,28 the International Court
of Justice declared admissible the counterclaim of Uganda that Congolese soldiers had
threatened and maltreated members of the Uganda diplomatic mission in Kinshasa in
violation of Article 29 of the Convention. The Court held that the alleged violation
related to rights owed directly to Uganda and thus there was no need for local remedies to
be exhausted by the diplomats who were victims. Similarly, in Hostage case,29 the
International Court of Justice, found the inaction of the Iranian government
_________________
24 GAOR. 44th Sess., Supp. 10, p. 26 et seq. In Art. 28(1) of the Draft it has been
provided that the “diplomatic bag shall be inviolable... it shall not be opened or detained
and shall be exempt from examination directly or through electronic or other technical
devices”.
25 See Arun Chaturvedi, Diplomatic laws and Indian State practice, 25 IJlL, pp. 62-
63 (1985).
26 See Paul G. Booth (Ed.), Satow's Guide to Diplomatic Practice (1979), p. 118.
27 In 1970, the German Ambassador to Guatemala was kidnapped and the
Guatemala Government’s failure to submit to the demands of the kidnappers led to the
murder of the ambassador. The Guatemala Government did not accept the German
accusation that Guatemala had failed to protect the ambassador. The obligation to protect

does not entail to surrender to illegal demands made by kidnappers, see The Times, April
7, 1970.
28 (2005) ICJ Rep. (judgement of 19 Dec. 2005).
29 Case concerning United States Diplomatic and Consular Staff in Tehran, (1980)
ICJ Rep. 3.

in the detention of diplomatic and consular staff in the US embassy by the students as a
‘clear and serious’ violation of Art. 29 and other provisions of the Vienna Convention,
for which Iran was “under an obligation to make reparation” to the United States.
However, in contrast to the case of inviolability of mission premises, there is no provision
against the rule of inviolability of diplomatic agents in grave emergency situations, such
as a drunken diplomat with a leaded gun in a public place.30 In such cases, he may be
detained by the receiving State in the interest of peace and tranquility of the State. But
otherwise, where he abuses his privileges or immunities and his activities are a threat to
the stability and security of the receiving State, he may be declared as persona non grata.
It is doubtful whether he can be arrested for conspiring against the receiving State.31
b. Inviolability of Residence and Property: Article 30 of the Vienna Convention

states:
1. The private residence of a diplomatic agent shall enjoy the same inviolability and
protection as the premises of the mission.
2. His papers, correspondence, and ... his property shall likewise enjoy inviolability.
The principle of inviolability applies even to the temporary residence of the diplomatic
agent. In the case of property, the inviolability does not apply where there is an exception
to his immunity from civil jurisdiction.
c. Immunity from Jurisdiction: Under customary international law, diplomatic

agents enjoy jurisdictional immunity from the local courts of the receiving State.
However, immunity from jurisdiction does not automatically accord immunity from
liability under substantive law, for once the exemption from liability is effectively
waived, liability may arise. Immunity is from suit and not from liability. The Vienna
Convention restates this position.
Article 31(1) of the Vienna Convention provides that a “diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving State”. A diplomatic agent
enjoys total immunity, without any qualification, from the jurisdiction of the local courts
of the receiving State, and even if he is guilty of serious or persistent breaches of the
substantive law he can be declared persona non grata but cannot be subjected to its
criminal jurisdiction. The receiving State may also ask for the waiver of the immunity to
the sending State, and in the case of officers of lower rank, to the head of the mission.
A diplomatic agent also enjoys immunity from civil and administrative jurisdiction,
except in the case of:
(a) a real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of the
mission;
(b) an action relating to succession in which the diplomatic agent is involved as
executor, administrator, heir or legatee as a private person and not on behalf of the
sending State;
(c) an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions (Art. 31(1)).
_________________

30 See Brownlie, op. cit. 9, p. 358; Denza, op. cit. 22, pp. 267-268.
31 In 1712, Ambassador of Sweden in England, George Gyllenborg was arrested on
the charge of conspiring against the King of England.

A diplomatic agent, however, cannot indulge in any professional or commercial activity

in the receiving State (Art. 42) except with the specific permission of the receiving State.
Thus, the exception in Art. 31 (1)(c) applies to: (i) cases in which the receiving State
allows such an activity, except under Art. 42, and (ii) to such activities undertaken by
members of the staff not of diplomatic rank.
A diplomatic agent is not obliged to give evidence as a witness (Art. 31(2)) unless he
waives this immunity and present himself before the court. In that case, he will be
deemed to be within the jurisdiction of the court. He also cannot be subjected to measures
of execution except in cases falling under sub-paras, (a), (b) and (c) of Art. 31(1)
provided that the measures concerned can be taken without infringing the inviolability of
his person or his residence (Art. 31(3)). Article 32(4) further reinforces this rule relating
to execution, which states, “Waiver of immunity from jurisdiction in respect of civil or
administrative proceedings shall not be held to imply waiver of immunity in respect of
the execution of the judgment, for which a separate waiver shall be necessary”.
It is, however, “the duty of all persons enjoying such privileges and immunities to respect
the laws and regulations of the receiving State. They also have a duty not to interfere in
the internal affairs of that State” (Art. 41(1)). They should conduct official business with
or through the Ministry of Foreign Affairs or any other agreed ministry of the receiving
State. They shall not practice for personal profits and profession or commercial activity in
the receiving State (Art. 42). Whether a person qualifies for these privileges and
immunities is generally decided by the State Department of the receiving State whose
decision will be binding on the local courts.32
The immunity of a diplomatic agent for official acts is permanent since it is attributed to
the sending State, but for private acts, the immunity is contingent, which comes to an end
when the person concerned leaves his post. Article 39(2) of the Vienna Convention,
which relates to the duration of immunities, states that “with respect to acts performed by
such a person in the exercise of his functions as a member of the mission, immunity shall
continue to subsist”. These official acts may be described as Acts of State, which make
them non-justiciable, and may include even a road accident involving the car while in the
course of discharging official duties, though such acts may be separated from Acts of
State, and can become amenable to local laws if the relevant immunity is waived.33
IMMUNITY FROM JURISDICTION IN INDIA

In India, Sec. 8 of the 1972 Diplomatic Relations Act provides, “Whether a person is
entitled to any privilege or immunity under the Act, a certificate issued by or under the
authority of the Secretary of the Government of India in the Ministry of External Affairs
will be the conclusive evidence in this regard”.
_________________
32 There is a general practice, followed by most countries, that the mission deposits
periodically with the foreign office of the receiving State the list of personnel for whom
the exemption from territorial jurisdiction is claimed, which may include beside head of
the mission, the secretaries, counsellors, trade attaches etc.
33 Brownlie, op. cit. 9, p. 361.

But to implead a diplomatic agent or mission, normally no writ or summons can be issued
and permission of the government is a pre-requisite in this regard. Article 86 of the Civil
Procedure Code, 1908, governs the suits against the foreign State and diplomatic agents.
For filing a suit, consent of the Government of India, certified in writing by a Secretary to
the Government is a precondition. However, refusal to give consent by the Central
Government to sue a diplomatic agent has become a justiciable issue.
In Century Twenty One (P) Ltd. v. Union of India,34 the Ambassador of Afghanistan had
rented residential premises on lease from a private party and refused to vacate it after the
expiry of the lease. On the Indian Government’s refusal to give consent for filing the suit
for the recovery of the rent, the petitioner filed a writ under Art. 226 of the Constitution
before the Delhi High Court for the enforcement of his fundamental right to hold and
dispose of the property. The Court, after making a distinction between the sovereign acts
and commercial activities of a foreign sovereign government, termed the renting of the
private premises as commercial activity of a foreign sovereign government. The Court
directed the Government of India to accord sanction to the petitioner to sue the Afghan
Ambassador for the recovery of the arrears of the rent.
In Harbhajan Singh v. Union of India,35 the petitioner sought permission of the
Government of India to sue the Algerian Ambassador in Delhi for the recovery of his
dues for the reconditioning and renovation work done at the Algerian Embassy, after his
representation to the ambassador failed to elicit any response. On the refusal of the
Ministry of External Affairs to grant permission on “political grounds”, the petitioner
brought a writ petition before the Supreme Court under Art. 32 of the Constitution of
India. The government pleaded that under Sec. 86(1) and (2) of the Civil Procedure Code,
1908, it has the “discretion to refuse” the permission. The petitioner had failed to make
out a prima facie case under these provisions of the Civil Procedure Code.
The Supreme Court observed that it is for the judiciary to adjudicate whether there is a
prima facie case or not. It further observed that there is a dispute about the petitioner’s
claim which has not been judicially determined. If a foreign State in this country fulfils
the conditions stipulated in Sec. 86(2), it is liable to be sued in this country.36 The Court
directed the Union of India to reconsider the matter and pass a reasoned order in
accordance with the principle of natural justice, keeping in view the trend and
development of international law.37
It has, nevertheless, been remarked that to “frustrate their (i.e., the Indian citizens)
grievances in the name of diplomatic immunities hardly contributes to the dignity of
foreign
_________________
34 AIR 1987 Delhi 124.
35 AIR 1987 SC 9.
36 Section 86(2) of the CPC provides, “consent may be given with respect to a
specified suit or to several specified suits or with respect to all suits of any specified class
or classes, and may specify in the case of any suit or class of suits, the Court in which the
foreign State may be sued, but it shall not be given, unless it appears to the Central
Government that the foreign State:
a) has instituted a suit in the Court against the person desiring to sue it; or

b) by itself or another, trades within the local limits of the jurisdiction of the Court;
or
c) is in possession of immovable property situated within those limits and is to be
sued with reference to such property or for money charged thereon; or has expressly or
impliedly waived the privileges accorded to it by this section”.
37 See op. cit. 35, at p. 15.

missions. The Government of India is therefore well advised to evolve a code to resolve
just claims of Indian citizens in this regard and the foreign missions be persuaded to
adhere to such a course of action”.38 But the fact remains that even after obtaining the
necessary consent from the Central Government to sue the foreign diplomat, the
petitioner may not succeed because the diplomat may claim immunity from the court’s
jurisdiction and further, claim immunity from the execution of the decree of the court. A
code of conduct can be devised by nations to deal with such cases.
d. Immunity from Taxes, Customs Duties and Other Dues: A diplomatic agent is
immuned from the payment of taxes, customs duties and other dues (Arts. 34 and 36,
Vienna Convention). He is exempt from all dues and most forms of taxation whether
national, regional or local but he will be liable to (i) indirect taxes which are normally
incorporated in the price of goods or services, such as sales tax on goods he buys or
service charges taken by hotels; (ii) dues and taxes on private immovable property
situated in the territory of the receiving State, such as house tax and electricity bills; (iii)
estate, succession or inheritance duty, levied by the receiving State, subject to the
provisions of Art. 39(4), i.e., the property he holds in his personal capacity, having no
bearing to his functions as a diplomat; (iv) tax on income having its source in private
investments in commercial undertaking in the receiving State; (v) charges levied for
specific services rendered, such as road tax etc.; (vi) registration, court or record fees,
mortgage dues and stamp duty with respect to immovable property, but the embassy
premises are exempted from these dues under Art. 23 (Art. 34).
Under Art. 36 of the Vienna Convention, the personal baggage, articles for the mission
and the personal use of the diplomat or a member of his family forming part of his
household, including articles intended for his establishment (such as a car or furniture),
shall be admitted to the receiving State free from all customs duties, taxes and related
charges other than charges for storage, cartage and similar services. They are, however,
subject to such laws and regulations of the receiving State as it may adopt in this regard
(Art. 36(1)).39 The personal baggage of a diplomatic agent is also exempt from
inspection, unless there are serious grounds for presuming that it contains articles not
covered by the exemptions mentioned in Para. 1 of Art. 36, or whose import or export is
prohibited by the law or controlled by the quarantine regulations of the receiving State.
Such inspection shall be conducted only in the presence of the diplomatic agent or his
authorised representative (Art. 36(2)). Thus, this provision contains an important
exception to the rule of general inviolability of a diplomat’s property in the receiving
State. Failure to allow the baggage to be inspected by the diplomatic agent will make it
liable to be sent back.40
_________________
38 K. Narayana Rao, Foreign embassies in India: claims for recovery of rents and
repair charges, 27 IJIL 483, at p. 486 (1987).
39 The Diplomatic Relations Act, 1972, of India, in Sec. 6 lays down that “Nothing
contained in Art. 36 of the [Vienna] Convention shall be constructed to entitle a
diplomatic mission or member thereof to import into India goods free of any duty of
customs without any restrictions on their subsequent sale therein”.

40 Article 6 of the 1989 Draft Articles on the Status of the Diplomatic Courier and
the Diplomatic Bag provides that if there are serious doubts about the abuse of this
privilege and the baggage is not for official use, the inspection can be conducted in the
presence of the diplomatic agent or his representatives, see, op. cit. 24.

e. Other Diplomatic immunities: Among the other immunities which a diplomatic

agent enjoys are: the right to travel freely in the territory of the receiving State, subject to
the condition that he cannot go to the prohibited area, important for the national security
of the receiving State (Art. 26); freedom of communication for official purpose (Art. 27);
exemption from social security provisions in force in the receiving State except in case he
employs servants who are not exempt, for which he must comply with the obligations of
the social security legislation as an employer (Art. 33); and immunity from local and
military obligations (Art. 35).
These immunities and privileges, however, are restricted by Art. 38(1) in cases where the
diplomatic agent is a national of or permanently resident in the receiving State. In that
case he shall enjoy immunity only from jurisdiction and inviolability in respect of official
acts “performed in the exercise” of his functions.
The immunity of diplomatic agents is not only confined to their own persons, but extends
to other members of the family forming part of their household. Article 37(1) provides
that the “members of the family of a diplomatic agent forming part of his household shall,
if they are not nationals of the receiving State, enjoy the privileges and immunities
specified in Arts. 29 to 36”. Thus, the family members who happen to be the nationals of
the receiving State are not entitled to these immunities. Further, those family members
who do not form part of his “household”, i.e., who do not reside with him in the same
house and are not dependent would also not have the immunities.
4. Administrative, technical and other staff of the mission

Prior to the Vienna Convention, the State practice on the extent of privileges and
immunities of the administrative, technical and service staff of the mission, who do not
have diplomatic rank and are not in the domestic service, was not uniform. About the
administrative and technical staff,41 the Vienna Convention, in Art. 37(2) states:
Members of the administrative and technical staff of the mission, together with their
families forming part of their respective households, shall, if they are not nationals of or
permanently resident in the receiving State, enjoy the privileges and immunities specified
in Arts. 29 to 35, except that the immunity from civil administrative jurisdiction of the
receiving State specified in para. 1 of Art. 31 shall not extend to acts performed outside
the course of their duties. They shall also enjoy the privileges specified in Art. 36, para. I,
in respect of articles imported at the time of first installation.42
Thus, they enjoy their personal inviolability (Art. 29), inviolability of their residence
(Art. 30(1)), immunity from criminal jurisdiction (Art. 31(1)), exemption from social
security provisions (Art. 33), exemption from taxes, levies and duties (Art. 34). In the
matters of civil and administrative jurisdiction, immunity exists only when they are
performing service duties. The Convention, however, does not define the “acts performed
outside the course of their duties”. The respective immunities of the technical and
administrative staff extend to the members of the family “forming part of their respective
households”.
_________________
41 For example, archivists, typists, clerical staff, translators.
42 It concerns with customs duties.

As to the members of service staff,43 Art. 37(3) of the Vienna Convention provides:
Members of the service staff of the mission who are not nationals of or permanently
resident in the receiving State shall enjoy immunity in respect of acts performed in the
course of their duties, exemption from dues and taxes on the emoluments they receive by
reason of their employment and the exemption contained in Art. 33 [concerning social
security provisions].
The members of the staff of the mission in these categories, who are nationals of or
permanently resident in the receiving State, shall enjoy privileges and immunities only to
the extent admitted by the receiving State. But the receiving State must exercise its
jurisdiction over such persons in a manner as not to interfere unduly with the
performance of the functions of the mission (Art. 38(2)).44
For private servants45 of the members of the mission, Art. 37(4) of the Vienna
Convention provides that they shall be exempted from dues and taxes on the emoluments
received by reason of their employment if they are not nationals or permanent residents
of the receiving State. But in other respects, they may enjoy privileges and immunities
only to the extent admitted by the receiving State. However, the receiving State should
exercise its jurisdiction over them in such a manner as not to interfere unduly with the
performance of the functions of the mission. The provision of Art. 38(2) is applicable in
their case also. Their immunities, for the most part, are based upon the principle of
reciprocity among the sending and the receiving States.46
5. Duration of immunity
The diplomatic immunities and privileges of a person commences from the moment he
enters the territory of the receiving State to take up his post or, if already there, from the
moment when his appointment is notified to the Ministry of Foreign Affairs or other
designated ministry (Art. 39(1)). These immunities and privileges subsist for a reasonable
period even after the termination of the mission. Article 39(2) provides that when “the
functions of a person enjoying privileges and immunities have come to an end, such
privileges and immunities shall normally cease at the moment when he leaves the
country, or on expiry of a reasonable period in which to do so, but shall subsist until that
time, even in respect of armed conflict. However, with respect to acts performed by such
a person in the exercise of his functions as a member of
_________________
43 Service staff is defined as “members of the staff of the mission in the domestic
service of the mission” (Art. 1(g)), such as chauffeurs, porters, kitchen staff
44 For the purposes of Art. 38 of the Vienna Convention, Sec. 7 of the 1972
Diplomatic Relations (Vienna Convention) Act provides that a citizen of India shall be
entitled to such additional privileges and immunities as are granted to him through the
Government Notification in the Official Gazette.
45 A “private servant” is a person who is in the domestic service of a member of the
mission and who is not an employee of the sending State, Art. 1(b), Vienna Convention.
46 A number of States put reservation to Art. 37 of the Convention. In India, sec. 4
of the Diplomatic Relations Act, 1972, provides that if a State party in breach of its
obligations under the Convention or the Indian mission or its member are accorded lesser

privileges and immunities than those provided in the Vienna Convention, the
Government of India may by official notification withdraw such of the privileges or
immunities as it may consider proper. In Britain, the Diplomatic Immunities Restriction
Act, 1955, provides for the withdrawal of immunity for private acts of envoys, their
servants and staff if the accrediting State does not accord the similar immunity.

the mission immunity shall continue to subsist”.47 Impleading such a person for official
acts would otherwise amount to impleading the sovereign on whose behalf the agent
acted.48
6. Diplomatic immunity and third States

If a diplomatic agent passes through or is in the territory of a third State, which has
granted him a passport visa if such a visa was necessary, while proceeding to take up or
to return to his post, or when returning to his own country, the third State shall accord
him inviolability and such other immunities as may be required to ensure his transit or
return. The same principle applies to his family, enjoying privileges and immunities (Art.
40(1)). In the case of administrative, technical or service staff, and members of their
families, their privilege is limited only to passage,
i. e., the third States shall not hinder their passage through their territories (Art. 40(2)).
The official correspondence, diplomatic bag and diplomatic courier in transit shall enjoy
the same inviolability and protection as the receiving State is bound to accord (Art.
40(3)).
Article 40 of the Vienna Convention was invoked in R. v. Pentonville Prison Governor,
ex parte Teja.49 In this case, the Indian Government had sought unsuccessfully the
extradition of Teja from the United States and then from Costa Rica. He had left India
after embezzlement. From Costa Rica he proceeded to Europe on behalf of the Costa
Rican Government. He was carrying a diplomatic passport and a “letter of credence”
stating that he was soon to be accredited as economic counsellor for the Costa Rican
Embassy in Switzerland and was an economic adviser on special mission in Europe for a
while. It was requested that he be granted “the reciprocal privileges, prerogatives and
immunities inherent to his diplomatic condition”.50 While he was on a brief visit to
Britain, he was arrested on an extradition warrant issued on behalf of the Indian
Government. It was argued on behalf of Teja that since he was soon to be accredited to
the Costa Rican Embassy in Switzerland, he is entitled to immunity. The contention was
rejected since there was no Costa Rican Embassy in Switzerland, nor there was any
evidence that his accredition had been accepted by the Swiss Government. Similarly, the
argument that he is already an economic counsellor to the Embassy of El Salvador was
also rejected, thus giving the strict interpretation to Art. 40. The court observed that he is
not entitled to any immunity because he “was not proceeding to take up or return to his
post in El Salvador ... nor was he at that time returning to his own country, namely, Costa
Rica from El Salvador”.51
In another case, R. v. Guildhall Magistrates Court, ex parte Jarret Thorpe,52 the court had
the occasion to interpret Art. 40 in relation to family members of the diplomatic staff.
The applicant was the husband of the counsellor to the Sierra Leone Embassy in Rome.
His wife travelled to London to buy furnishings for the Rome Embassy and the applicant
was to join
_________________
47 This extension of period of immunity does not apply to a dismissed diplomatic
agent or whose immunity has been waived.
48 See Rahimtoola v. Nizam of Hyderabad [1958] AC 379.

49 [1971] 2 QB 274.
50 Ibid., at p. 283.
51 Ibid., at p. 284. See also the case of New Chile Gold Mining Co. v. Blanco [1888]
4 TLR 346, where
the court declined to issue writ on a Venezuelan minister in France, while in England on
his way to France.

her there to help with her luggage. On arrival in the United Kingdom, he was informed
that his wife had already left for Rome. While he was waiting for a flight to Rome, the
applicant was arrested by the police in connection with a criminal case pending against
him in London. The court held that the applicant was entitled to immunity by virtue of
Art. 40 and rejected the argument that the provision is applicable only to diplomatic
agents and members of their families when they are in transit between the sending State
and the receiving State.
C. Waiver of Immunity
The jurisdictional immunities enjoyed by the diplomatic agents and other persons
enjoying immunity under Art. 37, i.e., members of the administrative, technical and
service staff, as also private servants, may be waived by the sending State (Art. 32). The
sending State can do so because the privileges and immunities of diplomatic agents are in
substance the State’s concern, which has accredited them. This is based on the principle
that diplomatic immunity is accorded not for the benefit of the individual in question, but
for the benefit of the sending State, enabling him to fulfil his diplomatic duties with the
necessary independence.
The immunity of the Head of the mission can be waived by the State and the immunity of
other persons of the mission may be waived by or on behalf of the government of the
sending State by the head of the mission. Waiver must be made with full knowledge of
the circumstances and of that person’s rights. When the immunity or privilege of the
subordinate official is waived, it comes to an end irrespective of the desire of the official
to retain his immunity.
In R v. Madan53 the defendant was employed in the passport office of the Indian Mission
in England and was entitled to diplomatic immunity. He was charged and convicted for
obtaining a season ticket and attempting to obtain money by false pretences. The Deputy
High Commission wrote to the Commonwealth Relations Officer that in order not to
impede the course of justice, the High Commissioner was prepared to waive the
applicant’s immunity. Similarly, in R v. Kent,54 the respondent Kent was a code clerk in
the American Embassy in England. He was charged for stealing two documents from the
office and was dismissed from service. The American Ambassador waived his immunity.
He was arrested and tried by the court and sentenced for seven years imprisonment. The
court rejected his contention of diplomatic immunity as that was being waived by the
envoy.
Waiver of the immunity must always be express (Art. 32(2)).55 If a diplomatic agent or
any person entitled to immunity under Art. 37 initiates proceedings, this would amount to
waiver and he shall be precluded from invoking immunity from jurisdiction in respect of
any counter claim directly connected with the principal claim (Art. 32(3)). This principle
was applied in England by the Court of Appeal in High Commission for India v.
Ghosh,56 where the case was filed by the High Commission for the Government of India,
and the Government of West Bengal for the recovery of money lent to the applicant. He
filed a counter-claim for the alleged slander
_________________
53 [1961] 2 QB 1.

54 [1941] 1 KB 454.
55 For example, presenting himself before the court in a case, filing a case in the
court, or appearing as a witness amount to waiver of the immunity.
56 [1960] 1 QB 134 at pp. 140-141; 28 ILR 150 (C.A.).

by their servants and agents. The court held that though the plaintiffs were entitled to
immunities, but by choosing to come before the court, they had waived their immunity to
a certain extent. The claim brought by them had entitled the defendant to file the counter-
claim, but such a counterclaim should be sufficiently connected with or allied to the
subject matter of the claim. The court observed that the counter-claim for damages for
slander had no bearing at all on the subject matter of the plaintiff’s claim to recover the
money lent.
However, as stated earlier, waiver of jurisdictional immunity shall not imply waiver of
immunity in respect of the execution of the judgment, for which a separate waiver shall
be necessary (Art. 32(4)). A diplomatic agent may successfully claim his immunity
against the execution of the judgment of the court.
D. Termination of the Mission

The diplomatic mission may come to an end in the following manner:
1. Recall of the envoy

When the relations between the sending and the receiving States deteriorate, to express its
displeasure and policy differences with the receiving State, the accrediting State may
recall its diplomatic agent. The letter of recall is given to the Head of the State or to the
Minister of Foreign Affairs in solemn audience. The envoy receives a Lettre de
Recreance in return.57 A diplomatic agent may also be recalled at the request of the
receiving State.
2. Through notification
The functions of the diplomatic agent may come to an end through notification.
According to Art. 43 of the Convention such a notification may be sent:
i. by the sending State to the receiving State; or
ii. by the receiving State to the sending State that it refuses to recognise the
diplomatic agent as a member of the mission in accordance with Art. 9(2). This signifies
the rupture of diplomatic relations between the two countries.
3. Persona non grata

It is the right of the receiving State to declare at any time a diplomatic agent persona non
grata, i.e., undesirable person without assigning any reason. A State enjoys this right
under international law and recognised under Art. 9 of the Vienna Convention. Normally
the declaration of persona non grata is based on the gross misconduct on the part of the
diplomatic agent. It may be resorted to as a measure of retortion by the sending State
considering it an unfriendly act of the receiving State.58
_________________
57 In 1981, India recalled its High Commissioner in Zambia, Ravi Tandon, over his
alleged remarks on the book of Kenneth Kaunda (then President of Zambia), to the
displeasure of the latter. In 1985, deputy military attache in the French Embassy in India,
Allan Bolley, was recalled after he was found involved in espionage.

58 The declaration of the Iraqi Ambassador and an attache as persona non grata by
Pakistan in 1973, and thereafter termination of the mission is an example of this mode of
termination.

4. The mission may come to end when the object of the mission has been achieved
or after the expiration of the stipulated time, if it had been established for a specific
purpose or created for a specific time respectively.
5. The armed conflict does not ipso facto terminate the mission, but in war,
sometimes it is difficult to discharge the functions of the mission.59 In such a case,
delivery of the passports to the envoy and the staff of the mission by the receiving State
terminates the mission.
In cases where diplomatic relations are broken or if a mission is permanently or
temporarily recalled, the sending State may entrust custody of the premises of the
mission, together with its property and archives, or the protection of its interest to a third
State acceptable to the receiving State (Art. 45(b) and (c)).
III. CONSULAR RELATIONS

Consuls are the representatives of their State in a foreign country, but they are not
accredited to the receiving State and, therefore, are not entitled to the privileges and
immunities accorded to diplomatic agents. They are often appointed under a commission
issued by the governments, and the receiving State accept them by issuing “exequater”
(“Letter of Permission”). They generally look after the commercial and trade interests of
the sending State and its nationals, but they are quite often entrusted with a great variety
of duties, for example, the granting of passports and visas, execution of notorial acts for
the nationals of the sending State, and the registration of marriages, deaths, births,
supervision and inspection of vessels and aircrafts attributed to the sending State.
Ordinarily, they are conferred special privileges and immunities by bilateral treaties.
Their status under customary international law was regulated by usages, according to
which a consul is not immune from local jurisdiction except in respect of the judicial and
administrative acts performed in the exercise of consular functions. Consular premises
are also not inviolable from entry by the servants or agents of the receiving State. In order
to bring uniformity in the laws and usages as to the functions and immunities of consuls,
the United Nations Conference on Consular Relations adopted the Vienna Convention on
Consular Relations in April 1963. The matters not expressly covered by the Convention
are to be regulated by the customary international law.60 States are also free to conclude
treaties to supplement, confirm, extend or amplify the provisions of the Convention (Art.
73).
The Convention divides the consuls into four classes: (a) Consuls-General, (b) Consuls,
(c) Vice-Consuls, and (d) Consuls-Agent (Art. 9). The Consul-General is often
appointed by the Head of the State and he is the Head of the Consul-Office and appoints
the Consuls and Vice-Consuls. Consul-agents are appointed either by the Consul-General
or the Vice- Consul.
_________________
59 During the 1965 war with Pakistan and 1962 armed conflict with China,
diplomatic relations did not come to an end, but in the 1971 war, India and Pakistan
closed their missions.
60 The Convention came into effect in March 1967. India acceded to it in Nov. 1977.

A. Immunities, Privileges and Rights of Consuls

The 1963 Vienna Convention has brought the status of consuls nearer to that of
diplomatic agents in certain respects, but they do not enjoy complete immunity from local
jurisdiction unless consul acts in a diplomatic capacity on behalf of his State in a country
where his State has no diplomatic representation (Art. 17).61 Article 41 confers certain
limited immunities in respect of his official functions and provides:
1. Consular officers shall not be liable to arrest or detention pending trial, except in
the case of a grave crime and pursuant to a decision by the competent judicial authority.
2. ... consular officers shall not be committed to prison or liable to any other form of
restriction on their personal freedom save in execution of a judicial decision of final
effect.
3. If criminal proceedings are instituted against a consular officer, he must appear
before the competent authorities. Nevertheless, the proceedings shall be conducted ... in a
manner which will hamper the exercise of consular functions as little as possible. When,
in the circumstances mentioned in para. 1 of this article, it has become necessary to
detain a consular officer, the proceedings against him shall be instituted with the
minimum delay.
Thus, in criminal matters, a consular officer can be arrested or detained pending trial in
the case of grave crime and may be sentenced to imprisonment. The consular officers and
consular employees are not amenable to the jurisdiction of the judicial or administrative
authorities of the receiving State in respect of official acts (Art. 43(1)). Generally, consuls
are not amenable to the local jurisdiction for other acts unless their government assents to
the proceedings being taken. A restriction has been imposed in respect of consular
employees, service staff or their families for non-official acts, who carry on “private
gainful occupation” in the receiving State (Art. 57). They are also exempted from local
taxes and customs dues and enjoy inviolability of their official papers and archives.
The inviolability of consular premises, to a substantial degree, has been accepted in Art.
31 of the Convention, i.e., the authorities of the receiving State shall not enter that part of
the consular premises which is used exclusively for the purpose of the work of the
consular post, except by permission which may be assumed in the case of fire or other
disaster requiring prompt protective action.62 The consular premises, furnishings and
other property cannot be requisitioned for the purposes of national defence or public
utility. If that becomes necessary, prompt, adequate and effective compensation shall be
paid to the sending State.
_________________
61 Article 3 of the 1961 Vienna Convention on Diplomatic Relations provides that
consular functions may be performed by a diplomatic mission.
62 In 1948, the New York authorities entered the Soviet Consulate-General to
provide medical assistance, and to investigate the fall of a Soviet national who refused to
go back to the Soviet Union, from a third story window. However, following this,
consular relation between the USA and the USSR were broken off, see L. Preuss, 43
AJIL 37 (1949).

The limited consular immunities from local process are granted by the receiving State to
enable them to perform their consular duties properly, and as a matter of practice, they
are generally recognised by all States.63
The rules applicable to the waiver of consular immunities and privileges (Art. 45), and
the commencement and termination of such privileges and immunities (Art. 53) are
similar to that of the 1961 Vienna Convention on Diplomatic Relations (Arts. 32 and 39).
Thus, the consular officer or any other member of the consular staff may be declared
persona non grata if their conduct is not acceptable to the receiving State (Art. 23), which
may withdraw “exequatur” from the consul.64
IV. SPECIAL MISSIONS

Apart from diplomatic missions and consuls, States quite often make use of ad hoc
diplomacy and send special missions to other States. Sometimes, they are led by the
heads of States or cabinet ministers, to perform specific tasks, such as to attend the
ceremonial occasions like royal marriage, coronation, to attend funerals, or to conduct
important political negotiations.
Although customary international law does not accord them any special status, but the
increased use of special missions and the important tasks performed by them led to the
adoption of the Convention on Special Missions, 1969 by the General Assembly, which
will come into force on the ratification or accession of 22 States.65 The “special mission”
has been defined as a temporary mission of State sent by one State to another, with the
consent of the latter to deal with specific questions or performing a specific task in
relation to it (Art. 1(a)). The Convention does not make a distinction between missions of
technical nature and those of political nature.
The Convention on Special Missions is based on the Conventions on Diplomatic
Relations of 1961 and Consular Relations of 1963 on the matter of privileges and
immunities of the head and members of the special missions. The immunities for special
missions are justified for the efficient performance of the tasks and responsibilities
entrusted to special missions. However, in practice, members of the missions are seldom
declared persona non grata by the receiving State, but the receiving State may notify the
sending State if any member of the mission is not acceptable (Art. 12(1)), in which case
the sending State shall either recall the person concerned or terminate his functions with
the mission.
V. REPRESENTATIVES APPOINTED TO INTERNATIONAL

ORGANISATIONS
The creation of the United Nations in 1945 led to the establishment of many inter-
governmental organisations in the following years and with that the appointment of
representatives or
_________________
63 Brownlie does not consider that the provisions of the 1963 Vienna Convention on
consular relations have become the general international law on the subject, though 173
States are parties to it, op. cit. 9, p. 365.

64 In 1982, India declared the Consul of Israel, Mr. Hassan, as persona non grata for
his statements which India termed as amounting to interference in its domestic affairs.
65 GA Res. 2530 (XXIV), Dec. 8, 1969.

permanent missions to these organisations by the member-nations also became a regular

feature. In order to regulate their conduct and treatment of these representatives
uniformly, the United Nations General Assembly on March 14, 1975, adopted a
Convention on the Representation of States in their Relations with International
Organisations of Universal Character at Vienna.
The Convention governs the status, functions and immunities of the representatives to:
(a) permanent missions or representatives to international organisations; (b)
permanent observer missions of non-member governments to international organisations;
(c) representatives or delegations to conferences of States convened by or under the
auspices of international organisations or their organs. The extent of privileges and
immunities granted to representatives, delegates and observer missions to international
organisations are at par with diplomatic agents as stated in the 1961 Vienna Convention
on Diplomatic Relations.
The Convention, however, has not met with much enthusiasm.66 It is considered to be of
little value, since most of its provisions are already incorporated in other diplomatic
conventions, such as the Headquarters Agreements, the Conventions on privileges and
immunities of the relevant international organisations and specialised agencies, and the
Vienna Convention on Diplomatic Relations, 1961. The prospects of its general
acceptance by States appear to be remote, though it is an accepted fact that these
representatives require special status for the efficient execution of the functions entrusted
to them.
VI. PREVENTION AND PUNISHMENT OF CRIMES AGAINST

DIPLOMATS67
In response to a spate of crimes against diplomatic agents and diplomatic missions, such
as kidnapping and killing of diplomats, and attacks against the premises of the mission,
the United Nations General Assembly adopted a Convention on the Prevention and
Punishment of Crimes against Internationally Protected Parsons, including Diplomatic
Agents on December 14, 1973 (Protection of Diplomats Convention).68 This Convention
closely followed the two conventions on hijacking: the Hague Convention for fee
Suppression of Unlawful Seizure of Aircraft of December 16, 1970, and the Montreal
Convention for the Unlawful Acts Against the Safety of Civil Aviation of September 23,
1971.
For the purposes of the Convention, an “internationally protected person” means: (a)
Head of State or Government, or a Minister of Foreign Affairs, whenever any such
person is in a foreign country, as well as members of his family accompanying him; (b)
any representative or official of a State or any official or other agent of an international
organisation of an intergovernmental character who is subjected to crime, or his official
premises, his private accommodation or his means of transport are targeted, is entitled to
special protection from
_________________
66 It has not come into force as yet, which requires 35 ratifications or accessions for
this purpose.

67 See Franciszek Prazetacznik, Prevention and punishment of crimes against

internationally protected persons,
13 1JIL 65 (1973).
68 GA Res. 3166 (XXVIII) of Dec. 14, 1973. The text of the Convention was based
on the draft articles prepared by the International Law Commission (ILC), see Report of
the ILC on the work of its 24th Sess. (May-June 1972), Doc. A/8710, pp. 232-257. The
Convention came into force on Feb. 20, 1977. India acceded to it on April 11, 1978.

any attack on his person, freedom or dignity, as well as members of his family forming
part of his household (Art. 1 of the Convention).
The crimes envisaged under the Convention are: (a) murder, kidnapping or other attack
upon the person or liberty of as internationally protected person; (b) violent attack upon
the official premises, the private accommodation or the means of transport of an
internationally protected person likely to endanger his person or liberty; (c) any threat or
attempt to commit such attack; and (d) an act constituting participation as an accomplice
in any such attack (Art. 2).
Each State party is to take necessary measures to establish jurisdiction over these crimes
when the alleged offender is present in its territory and has not been extradited by it (Art.
3). It is under an obligation either to extradite the alleged offender or to prosecute under
its internal law without undue delay (Arts. 6 and 7). Crimes under the Convention are
extraditable and the States parties undertake to include these crimes in their extradition
treaties, and these crimes are deemed to be included in them. If no extradition treaty
exists between the State parties, the Convention would be considered as the legal basis
for the same (Art. 8). The States parties are required to cooperate and assist each other in
connection with the criminal proceedings for the alleged offences under the Convention
(Art 10).
VII. PROTECTION OF UNITED NATIONS AND ASSOCIATED PERSONNEL

On December 9, 1994, the United Nations General Assembly adopted the Convention on
the Safety of United Nations and Associated Personnel,69 which is of particular
importance to United Nations peacekeeping operations. The Convention creates a legal
regime for the prosecution or extradition of persons accused of attacking the
peacekeepers and other persons associated with operations under the United Nations
mandates. It also contains provisions concerning the relationship of peacekeepers and
others with host and transit States.
The “United Nations Personnel” includes persons engaged or deployed by the UN
Secretary General as members of the military, police or civilian components of a United
Nations operation. This is the core group comprising the United Nations peacekeepers.
The “associated personnel” described persons assigned by the UN Secretary General or
an inter-governmental organisation with the agreement of the competent organ of the
United Nations (Art. 1). For example, NATO forces that were asked to assist
UNPROFOR or IFOR in Bosnia, Herzegovina, the Multilateral Force that assisted
UNMIH (in Haiti), and the United States assistance under the Unified Task Force in
Somalia (UNITAF) come under the purview of the Convention. “Associated personnel”
also includes persons “engaged” by the Secretary General, a specialised agency or the
IAEA, and persons deployed by a humanitarian non-governmental organisation or agency
under an agreement with the Secretary General.
The Convention does not apply to a United Nations operation authorised by the Security
Council as an enforcement action under Chapter VII of the United Nations Charter (Art.
2(2)). Following the pattern set by the 1973 Protection of Diplomats Convention, and the
International
_________________

69 See GA Res 49/59 (Dec. 9, 1994); text in 34 ILM 482 (1995).

Convention against the Taking of Hostages of 1979,70 the Convention creates a regime
of universal jurisdiction over attacks against United Nations and associated personnel.
Intentional commission of murder, kidnapping or other attacks on the person or liberty of
the protected persons under the Convention or attacks on official premises, private
accommodation or means of transportation of these personnel are offences under the
Convention (Art. 9). A State party is required to take measure to establish its jurisdiction
over these crimes (Art. 10) and they should cooperate in the prevention of crimes set out
in Art. 9 (Art. 11). They are obliged to prosecute or extradite (Art. 14), and the State
party in whose territory the alleged offender is present shall take appropriate measures
under its national law to ensure his prosecution or extradition (Art. 13). The crimes under
the Convention are deemed to be included in any extradition treaty existing between
States parties (Art. 15). Defendents and targets of investigations are guaranteed fair
treatment, fair trial and full protection of their rights (Art. 17). The Secretary General of
the United Nations will be communicated about the outcome of the prosecution, who will
transmit the information to the States.
The transit States are required to facilitate the unimpeded transit of United Nations and
associated personnel and their equipment (Art. 5). The host States and the United Nations
must conclude agreement on the status of the UN operation and all personnel engaged in
the operation (Art. 4). However, it is not possible to conclude such agreements always.
The Convention does not limit the ability of the United Nations and associated personnel
to defend themselves and act in self defence (Art. 21).71
_________________
70 See text in 16 ILM 1456 (1977).
71 S.K. Verma, Protection of the United Nations Peacekeepers, 1 National Capital
LJ, 31 (1996).

Page 227
CHAPTER 9
The State and the Individual
I. INTRODUCTORY
The intimate relation between the individual and the State is being recognised by
international law, which is apparent from the rules on diplomatic protection. This
relationship manifests itself in the most striking form in the concept of nationality, which
has a direct bearing on the concepts of extradition and asylum. These concepts are being
discussed in this chapter.
II. NATIONALITY
Under international law, nationality1 constitutes an important link between the individual
and the State. It establishes a continuing relationship between the sovereign State on the
one hand and the citizen on the other. The fundamental basis of a man’s nationality is his
membership of an independent political community.2 Fenwick defines nationality as “the
bond which unites a person to a given State which constitutes his membership in the
particular State, which gives him a claim to the protection of that State and which
subjects him to the obligation created by the laws of that State”.3 In the Nottebohm case
(second phase),4 the International Court of Justice stated that:
Nationality is a legal bound having as its basis a social fact of attachment, a genuine
connection of existence, interest and sentiments, together with the existence of reciprocal
rights and duties ... Conferred by a State, it only entitles that State to exercise protection
vis-a-vis another State, if it constitutes a transition into juridical terms of the individual’s
connections with the State which has made him its national.
The reciprocal rights and duties created through nationality entitle an individual to the
diplomatic protection of the State of his nationality, and subject him to a duty to owe
allegiance to his State of nationality. It is through nationality that an individual can enjoy
the benefits of
_________________
1 On nationality, see generally, P. Weis, Nationality and Statelessness in
International Law, 2nd ed. (Stevens
& Sons Ltd., London), 1979; H.F. Van Panhuys, The Role of Nationality in
International Law (A.W. Sythoff, Leydon), 1959; N. Bar-Yaacov, Dual Nationality
(1961); Donner, The Regulation of Nationality in International Law (1983); G.
Fitzmaurice, 92 Hague Recueil, 191-207 (1957-II); Max-Planck-Institute, Encyclopaedia
of Public International Law, Vol. VIII (Elsevier Science Publishers B.V., Amsterdam),
416-24; I Brownlie, 39 BYbIL 284-364 (1963).
2 See the decision of British-Mexican Claims Commission in Re-Lynch, Annual Digest
of Public International Law Cases, 1929-30, p. 221 at 223.
3 Charles G. Fenwick, International Law (Vakils, Feffer & Sons, Bombay), 1971, pp.
301-302.
4 (1955) ICJ Rep. 4, at p. 23.

international law.5 Persons not enjoying the protection of the State of their nationality are
known as ‘de facto Stateless’.
Nationality of a person is determined in accordance with the rules of municipal law. In its
Advisory Opinion in the Tunis-Morocco Nationality Decrees case,6 the Permanent Court
of International Justice opined that the questions of nationality are solely within the
domestic jurisdiction of a State. The Hague Convention on Certain Questions relating to
the Conflict of Nationality Laws (Convention on Nationality Laws) adopted in 1930 by
The Hague Codification Conference, also in Art. 2 provided, “Any question as to whether
a person possesses the nationality of a particular State shall be determined in accordance
with the law of the State”.7 Article 1 of the Convention states that while “it is for each
State to determine under its own law who are its nationals”, such law “shall be recognised
by other States only in so far as it is consistent with international conventions,
international custom, and the principles of law generally recognised with regard to
nationality”. Thus, this provision sets limits on the power of a State to confer nationality.
As a general proposition, international law does not limit the right of a State to extend its
nationality to any one, but it is not always binding on other States. Nationality to be
effective against other States must conform to certain general principles recognised by
international law. In the Nottebohm case, the Court expounded the principle that for
nationality to be opposable to other States on the international plane, there must be a real
and effective link, a genuine connection, between the State and the individual
concerned.8
Significance of Nationality
Nationality creates important incidents at international law, and for that matter, it is
necessary to know the nationality of a particular person. Nationality is the basis of a
State’s right to exercise diplomatic protection abroad, whose national has suffered a
wrong at the hands of another State. On the basis of this right under customary
international law, a State is entitled to forcible intervention to protect the life and
property of its nationals. This right is still practised even after the coming into existence
of the United Nations Charter, for example, the United States intervened in Grenada in
1983 allegedly on this ground.9 This is also closely related with the questions of State
responsibility, viz., when the acts of sovereignty by a State within its own territory affect
the aliens or their property, such as the “denial of justice” or “expropriation”.
Aliens may be expelled for sufficient reason and their home State (State of nationality) is
bound to accept them. On the other hand, nationals may not be extradited, but aliens may.
Article 12 of the International Covenant on Civil and Political Rights, 1966, states, “No
one
_________________
5 L. Oppenheim, International Law, Vol. 1, 9th ed. [Jennings and Watts (Ed.).
Longman, London], 1996, p. 512.
6 PCIJ, Series B, No. 4, p. 24 (1923).
7 The Convention entered into force on July 1, 1937. It was signed by 27 States and
ratified by 13, including India. See also Nottebohm case, op. cit. 4, at pp. 20-21.
8 Ibid., at pp. 22-23.

9 See D.W. Bowett, Self-Defence in International Law (Manchester University

Press, Manchester), 1958, pp. 87-105.

Page 229 THE STATE AND THE INDIVIDUAL
shall be arbitrarily deprived of the right to enter his own country”. The enemy status
during war time is decided on the basis of nationality.10 Furthermore, nationality
provides a normal (but not exclusive) basis for the exercise of civil and criminal
jurisdiction by a State, even in respect of acts committed abroad.11 Nationality also
imports allegiance for the nationals, who are obliged to serve their country when the
occasion arises.
Generally, the passport of a person is a prima facie evidence of a person’s nationality, but
it is not always conclusive evidence and other evidences of nationality have to be taken
into account to determine the nationality conclusively.
Nationality and Citizenship

Nationality is different from citizenship, though often used interchangeably. Nationality
is the quality of belongingness to a particular State by which a person is internationally
known, it creates a legal relationship between the State and the individual under
international law. Citizenship, on the other hand, is the sole concern of municipal law. It
bestows a political status upon an individual whereby a citizen enjoys civil and political
rights under municipal law. The concept of citizenship is irrelevant to international law. It
may happen that all the citizens may possess the nationality of a State, but all the
nationals of that State may not necessarily be its citizens. For example, under the
Nationality Act of the United States, the citizens are endowed with full political and
personal rights within the United States, but persons residing in territories and
possessions not forming part of the Union are described as nationals. Although they owe
allegiance to the United States and are United States nationals under international law,
they do not enjoy rights of United States citizens. Thus, the rights of citizenship can be
denied to persons who are nationals. On the other hand, disabilities in citizenship even of
a serious nature, do not involve loss of nationality.12
Nationality also differs from domicile which is merely a de facto residence of an
individual in a State with an intention to permanently settle there, and it may be a factor
for acquiring nationality of a particular State.
A. Acquisition of Nationality
States generally adopt certain rules in their legislation to confer nationality.13 Since each
State is free to frame its own law to confer nationality, the laws on nationality are not
uniform among nations. Nevertheless, on the basis of these laws, broadly speaking, there
are two bases for acquiring nationality: nationality acquired by birth, and nationality
acquired subsequently.
_________________
10 See infra Ch. 17.
11 See supra Ch. 7, pp. 151-52.
12 See Kahane v. Parisi and the Austrian State, Decision of the Austro-German
Mixed Arbitral Tribunal, Annual Digest of Public Int. L. Cases, 1929-30, p. 213 et seq. It
was held that even if a State denies to certain categories of its nationals the full status or
privileges of citizenship does not affect its rights in the matter of claims in respect of the
individuals in question.

13 For the acquisition and termination of Indian nationality, see the Citizenship Act
of Dec. 30, 1955, as amended.

1. Nationality acquired by birth

The nationality laws of every State provide for the acquisition of its nationality by birth,
either according to jus soli, i.e., by being born in the territory of a State; or jus sanguinis,
i.e., by descent— being born to parents who are its nationals; and sometimes, according
to both, or according to alternative principle. Experts commonly regard these two
principles as permissible criteria under international law.14
(a) Jus Soli. The nationality laws of the British Commonwealth and the United States
provide that persons born within their territorial limits acquire their nationality. This
principle of jus soli is also applied in many Latin American countries. It is also extended
in certain countries to ships and aircrafts flying their flag, as by Argentina, or to birth
within territorial waters as productive of nationality as in the United States, Japan and
Italy.15
Relevant Indian legislation in this matter is the Citizenship Act 1955, which has been
amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act
1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment)
Ordinance 2005.16 Earlier, under Sec. 3 of the Citizenship Act, 1955 mere birth in India
on or after January 26, 1950, entitled a person to be a citizen of India even though both
the parents were foreigners. But after the commencement of the 1986 Act on 1 July 1987,
a person born in India on or after 1 July 1987 will be a citizen of India if either parent
was a citizen of India at the time of the birth (Sec. 3(1)(b)). Those born in India on or
after 3 December 2004 are considered citizens of India only if both of their parents are
citizens of India or if one parent is a citizen of India and the other is not an illegal migrant
at the time of their birth. But children born to foreign diplomats and whose father is an
enemy alien and birth took place in enemy occupied territory, would not be entitled to
Indian nationality (Sec. 3(2)).17 Thus, Indian Act combines jus soli with jus sanguinis
rule.18
(b) Jus Sanguinis. It is a reasonable enough rule that a State should bestow
nationality upon persons born of parents who are its nationals, even if they are born out
of the State territory. In practice, in some cases, the father’s nationality is a decisive
factor, in other cases the mother’s nationality is decisive, and in some, the nationality of
unmarried mother as in the United States, in the case of legitimate child (partly because
of the reason that marriage does not always automatically bestow the husband’s
nationality on the wife). An illegitimate child, in most of the jurisdictions, takes the
nationality of its mother. Most of
_________________
14 H.F. Van Panhuys considers these two principles sanctioned by customary
international law, see Panhuys, op. cit. 1, pp. 160-161.
15 See Brownlie, Principles of Public International Law, 7th ed. (Oxford University
Press, Oxford), 2008, p. 389. The texts of the nationality laws of many countries are to be
found in the UN Legislative Series Publications, Laws Concerning Nationality (1954)
and the 1959 Supp. to that volume.
16 The Citizenship (Amendment) Ordinance 2005 came into force on 28 June 2005

17 Article II of the Optional Protocol Concerning Acquisition of Nationality, adopted

at the 1961 UN Conference on Diplomatic Intercourse and Immunities exempts the
members of the mission from the laws of the receiving State regarding the nationality of
that State.
18 Weis opines that in the absence of historical examples, it is a matter of conjecture
whether a nationality law based equally on jus soli and jus sanguinis would be regarded
as inconsistent with international law or the general principles of law, Weis, op. cit. 1, at
pp. 97-98.

the European countries, including Germany and France, offer nationality on the principle
of jus sanguinis. Even the United States and the United Kingdom whose laws are based
on jus soli, allow the children of their nationals, although born abroad, to acquire their
nationality in certain circumstances, i.e., there should be some connection with the
country like being in the service of the government etc. Section 4 of the Citizenship Act
of India also confers nationality by descent if the father is a citizen of India at the time of
birth. By an amendment to this Act in 1992, Indian nationality has been conferred on a
child born to an Indian mother outside India also.19
Many States recognise both the principles for conferring nationality, such as India, or the
alternative principle. Some countries, which follow the jus soli rule, restrict it to the
descendents of their own nationals. Children born to alien parents shall have to make a
declaration opting out of the nationality of one State after attaining majority as in the
United States, or the parents have to make a declaration on behalf of the child denouncing
any other nationality at the time of birth, for example, in Spain.
2. Nationality acquired subsequently

In majority of States, nationality may also be conferred by operation of law, due to the
effect of certain changes in the civil status of an individual, like marriage, adoption,
legitimation, affiliation, and naturalisation.
(a) Marriage
The laws of majority of nations were earlier based on the concept that the wife
automatically gets the nationality of her husband, and a woman marrying a foreigner
would lose her nationality of origin on marriage, and cease to be the citizen of the
country of her birth. The British Nationality and Status of Aliens Act, 1914, in Sec. 10(1)
is declaratory of the contemporary law in stating that “the wife of a British subject shall
be deemed to be a British subject, and the wife of an alien shall be deemed to be an
alien”. This was sometimes leading to certain hard cases of statelessness, as she may not
be conferred the nationality of her husband’s State (under the law of that State). To deal
with this practical problem, the Hague Convention Relating to the Conflict of Nationality
Laws, 1930, enabled women to retain their pre-marital nationality under certain
conditions (Arts. 8-11). It lays down that if the national law of the wife “causes her to
lose her nationality on marriage with a foreigner, this consequence shall be conditional on
her acquiring the nationality of her husband”. It also provided that the naturalisation of
the husband during marriage shall not involve a change in the nationality of the wife
except with her consent.
In order to accord sexual equality in the matter of nationality, the United Nations General
Assembly adopted a Convention on the Nationality of Married Women, 1957.20 Under
the
_________________
19 However, if the father (or mother) of such a person was a citizen of India by
descent, that person shall be the citizen of India if: (a) his birth is registered at an Indian
consulate within one year of the birth or the commencement of this Act, whichever is

later; and (b) his father (or mother) is, at the time of his birth, in service under the
Government of India.
20 GA Res. 1040 (XI), Jan. 29, 1957; for the text of the Convention, see S.K. Kuba,
Status of Women in International Law (Delhi Law Book Co.), 1986, p. 165.

Convention, each State party agreed that neither the celebration nor the dissolution of
marriage between one of its nationals and an alien nor change of nationality by the
husband during marriage, shall affect the wife’s nationality automatically. However, an
alien wife of a national of a State party may acquire her husband’s nationality by
privileged naturalisation procedures. The 1979 Convention on the Elimination of All
Forms of Discrimination against Women provides (Art. 9):
1. States Parties shall grant women equal rights with men to acquire, change or
retain their nationality. They shall ensure in particular that neither marriage to an alien
nor change of nationality by the husband during marriage shall change the nationality of
the wife, render her stateless or force upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with respect to the
nationality of their children.
The Indian Citizenship Act, in Sec. 5(l)(c) provides that “a person who is married to a
citizen of India and is ordinarily resident in India for seven years before making an
application for registration” may become citizen (national) of India by registration with
the prescribed authority. The Citizenship (amendment) Act, 1992, has accorded women
equal rights with men regarding the nationality of their children.
(b) Adoption and Legitimation

The laws of most States accept that a change in the family of an individual, whether by
adoption or by legitimation, will have the effect of creating a new nationality, and the
child acquires the nationality of the adopting parents or of the father through legitimation.
(c) Domicile, Cession, Resumption and Option

Quite often States have legislative provisions for the grant of nationality on the basis of
residence and domicile and immigration animo manendi.
If the natural born subjects have lost their nationality acquired by naturalisation abroad,
they recover their original nationality on fulfilling certain conditions. Similarly, where
the nationality has been conferred by marriage and if the marriage dissolves, the person
may resume his original nationality after completing certain requirements.
Inhabitants of a ceded territory assume the nationality of the State to which the territory is
ceded. When the State is partitioned or exchanged, the nationals of the former State have
the option to become the nationals of any of the States.
In the commonwealth countries, the nationality can be acquired through registration for
which the laws may be different among States. The Indian Citizenship Act in Sec. 5 lists
the categories of persons who can acquire nationality by registration.21
(d) Naturalisation
A State has the discretion to confer nationality by naturalisation, and a person who
wishes to acquire nationality through naturalisation is required to give application and it
will be granted if the conditions laid down by the State are fulfilled (“voluntary”
naturalisation) and the person
_________________

21 Sec. 5(1)(d) of the Citizenship Act provides that minor children of persons who
are citizens of India get nationality through registration.

takes the oath of allegiance to the granting State. Hudson remarks, “Naturalisation must
be based on an explicit voluntary act of the individual or of a person acting on his
behalf”.22
The requirement of prolonged residence or domicile is normally followed by all States
for the purposes of naturalisation. Other conditions may include the requirement of good
character, knowledge of the national language, government service, etc. But from the
international standpoint, the most important are residence and governmental service,
which establish the connection between the State and the applicant. For naturalisation, the
Indian Citizenship Act provides that citizenship by naturalisation can be acquired by a
foreigner (not illegal migrant) who is ordinarily resident in India for twelve years
(throughout the period of twelve months immediately preceding the date of application
and for eleven years in the aggregate in the fourteen years preceding the twelve months)
must first renounce his citizenship of the other country and notify to the Government of
India, and he should not be the subject or citizen of a country where citizens of India are
prevented by law or practice from becoming citizens by naturalisation (Sec. 6). A State
may, in its discretion, relax these conditions in conferring nationality by naturalisation.23
Nevertheless, the nationality granted by naturalisation must establish a “genuine link”
between the individual and the naturalising State. In the notable case of Nottebohm,24
the International Court of Justice elaborated this point.
Nottebohm was born in Hamburg, Germany in 1881. In 1905, he went to Guatemala
where he took up residence and made that country the headquarters of his activities. After
that he went sometimes to Germany and other countries for business and holidays. He
continued to have business connections in Germany. He paid a few visits to his brother in
Liechtenstein since 1931. Some of his brothers, relatives and friends were in Germany
and others in Guatemala. He continued to have his fixed abode in Guatemala until 1943.
At the outbreak of the Second World War in 1939, he still possessed the German
nationality.
On October 9, 1939, Nottebohm applied for admission as a national of Liechtenstein, a
neutral country during war, by naturalisation. Under the Liechtenstein Law of January 4,
1934, for naturalisation, among other conditions, there was the requirement of three years
residence in the territory of the principality, which could be dispensed with in
circumstances deserving special consideration and by way of exception. Nottebohm
sought and received dispensation from residence requirement without specifying special
circumstances warranting such waiver. He was given the certificate of nationality, dated
October 13, 1939, after concluding an agreement with the revenue authorities and paying
naturalisation fees and taking oath of allegiance. As a consequence of naturalisation, he
lost his German nationality. After obtaining the Liechtenstein passport, he got it visaed
by the Counsel General of Guatemala in Zurich on December 1, 1939, and returned to
Guatemala in the beginning of 1940. At his request, Guatemalan authorities made
appropriate changes regarding his nationality in the Registrar of Aliens and in his identity
documents.
_________________
22 YblLC, Vol. II, p. 8 (1952). By naturalisation he means every nationality acquired
subsequent to birth.

23 Sec. 6 of the Indian Citizenship Act provides that these conditions can be waived
if, in the opinion of the Central Government, the applicant is a person who has rendered
distinguished service to the cause of science, philosophy, art, literature, world peace or
human progress generally.
24 Liechtenstein v. Guatemala, op. cit. 4. The extracts here are taken from D.J.
Harris, Cases and Materials on International Law, 7th ed. (Sweet & Maxwell, London),
2010, p. 505 et seq.

On July 17, 1941, the United States blacklisted Nottebohm and froze his assets in the
United States. War broke out between the United States and Germany, and between
Guatemala and Germany on December 11, 1941. Nottebohm was arrested by Guatemalan
authorities in 1943, and deported to the United States where he was interned as an enemy
alien until 1946. After his release, he applied for his readmission to Guatemala, which
was refused. He then took up residence in Liechtenstein, but Guatemala in the meantime
had taken measures against his properties and confiscated them in 1949 under its
legislation. On December 17, 1951, the Government of Liechtenstein instituted
proceedings before the Court asking it to “adjudge and declare that the Government of
Guatemala in arresting, detaining, expelling and refusing to readmit Mr. Nottebohm and
in seizing and retaining his property without compensation acted in breach of their
obligations under international law” and claimed damages from Guatemala.25 Guatemala
contested the claim of Liechtenstein, and the principal objection to the admissibility of
the claim was related to Nottebohm’s nationality. In its counter memorial, Guatemala
stated that “it is the bound of nationality between the State and the individual which alone
confers upon the State the right of diplomatic protection”.
The Court first explained the basic proposition in this regard that “it is for every
sovereign State, to settle by its own legislation the rules relating to the acquisition of its
nationality, and to confer that nationality by naturalisation granted by its own organs in
accordance with that legislation”.26 The Court often pointed out that the issue before it,
however, was not pertaining to the legal system of Liechtenstein alone, but to the
international law. “It is international law which determines whether the State is entitled to
exercise [diplomatic] protection and to seize the Court” of a dispute.27 On this apparent
conflict, the Court stated that:
the diversity of demographic conditions has thus far made it impossible for any general
agreement to be reached on the rules relating to nationality, although the latter by its very
nature affects international relations. It has been considered that the best way of making
such rules accord with the varying demographic conditions in different countries is to
leave the fixing of such rules to the competence of each State. On the other hand, a State
cannot claim that the rules it has thus laid down are entitled to recognition by another
State unless it has acted in conformity with this general aim to making the legal bond
accord with the individual's genuine connection with the State which assumes the defence
of its citizens by means of protection as against other States.28 (emphasis added)
The grant of nationality to be entitled to international recognition, and to be opposable to
other States at the international plane, must at least coincide in manner or conditions with
the circumstances in which States in general bestow their nationality. Further the Court
stated that naturalisation “is not a matter to be taken lightly”. It does not happen
frequently in the life of an individual. “It involves his breaking of bond of allegiance and
his establishment of a new bond of allegiance”.
To determine Liechtenstein’s right of diplomatic protection, it is to be resolved that “[a]t
the time of his naturalisation does Nottebohm appear to have been more closely attached
to
______________________
25 Nottebohm case, ibid., pp. 6-7.

26 Ibid., p. 20.
27 Ibid., pp. 20-21.
28 Ibid., p. 23.

his tradition, his establishment, his interests, his activities, his family tie, his intentions
for the near future to Liechtenstein than to any other State?”
The Court found that on this basis his relations were more strong with Guatemala where
he had settled for 34 years and even after his naturalisation, he stayed there until removed
in 1943. In contrast, his actual connections with Liechtenstein were extremely tenous, no
settled abode, no prolonged residence in that country at the time of his application for
naturalisation, and even after naturalisation he did not stay there. Naturalisation was
obtained only to change his status as a national of a belligerent State to a neutral State,
with the sole aim of coming within the protection of Liechtenstein “but not of becoming
wedded to its traditions, its interests, its way of life, or of assuming the obligations ... and
exercising the rights pertaining to the status thus acquired”.29 He did not possess the
“effective nationality” of Liechtenstein. The facts clearly established, on the one hand,
the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the
other hand, the existence of a long standing and close connection between him and
Guatemala, a link which his naturalisation in no way weakened. The Court ruled that
Guatemala was not obliged to recognise a nationality granted under such circumstances.
The Court propounded the doctrine of “effective link” between the State and the
individual for the purposes of exercising diplomatic protection in cases where nationality
is granted by naturalisation. The “effective nationality” with international consequences,
is the one which is accorded with the facts, and based on stronger factual ties between the
person concerned and one of the States whose nationality is involved.
B. Loss of Nationality
There are different modes, found in State legislations, by which a person may lose his
nationality.
1. Voluntary renunciation
A person may renounce his nationality in a prescribed manner by signing a deed before a
diplomatic or consular officer, or a registering authority,30 or by exercising the right of
renouncing on attaining majority.31
2. Loss by operation of law

An individual may be deprived of nationality due to his voluntary conduct. Legislation of
many countries recognise numerous grounds on the basis of which an individual can lose
his nationality. They are usually the acquisition of a new nationality, taking an oath of
allegiance to another State, desertion from armed forces of which the individual is a
national, entering into foreign military service without permission, etc. Long residence
abroad is also a ground for losing the
______________________
29 Ibid., pp. 25-26.
30 See 8 USC, Sec. 1481 (a) 6 and 7; Sec. 8 of the Indian Citizenship Act.
31 Articles 19 and 24 of the French Nationality Code allow certain children who are
entitled to French nationality to renounce it after coming to age. Sec. 8 of the Indian

Citizenship Act provides that for making a declaration of renunciation the person making
the declaration be “of full age and capacity.”

nationality in many countries. Section 10 of the Indian Citizenship Act provides that a
person may be deprived of his Indian citizenship (nationality) if the Government is
satisfied that:
a. the registration or certificate of naturalisation was obtained by means of fraud,
false representation or the concealment of any material fact;
b. the citizen has been disloyal or disaffected towards the Constitution of India as by
law established; he has, during any war in which India is engaged, unlawfully traded or
communicated with an enemy or associated with any business that is prejudicial to India;
c. the citizen has, within five years after his registration or naturalisation, been
sentenced in any country to imprisonment for a term of not less than two years; or
d. he has been ordinarily resident out of India for a continuous period of seven years
without being a student of any educational institution in a foreign country, or in the
service of the Government of India or of an international organisation of which India is a
member, and registered himself at an Indian consulate annually to retain his citizenship of
India.
3. Involuntary loss of nationality

Compulsory expatriation of individuals from their country leads to loss of nationality,
and in most of the cases, in statelessness. Large number of Jews lost their nationality
during Hitler’s rein; also, refugees from Eastern European countries lost their nationality
at the beginning of the cold-war era by the operation of such measures.32
4. By substitution
A person may lose nationality of a State when he acquires nationality in some other State
by naturalisation. Section 9 of the Indian Citizenship Act provides for the automatic
termination of Indian citizenship when an Indian citizen voluntarily acquires the
citizenship of another country. This is done with a view to avoid the incidence of dual
citizenship. But the provision will not be applicable where a person acquires the
citizenship of another country while India is at war with any country, until the Central
Government otherwise directs.
Article 15(2) of the Universal Declaration of Human Rights states that “no one shall be...
denied the right to change his nationality”. This provision, however, has to operate under
the national laws.
C. Double Nationality
Owing to variance in the nationality laws among States, cases of persons possessing
double or multiple nationality may always occur. The double nationality may occur in
many ways, viz.,
______________________
32 For example, see Art. 17.1 (2) of the Hungarian Nationality Act, 1948, depriving
its nationals of their nationality if on going abroad, they contravene or evade the statutory
provisions relating to departure from the country.

a person born in a foreign country to foreign parents would get the nationality of that
country on the principle of jus soli, and of the country of the parents on the principle of
jus sanguinis. The incidence of double nationality may arise also by marriage. A woman
may acquire the nationality of her husband after marriage and, at the same time,
continues to possess her original nationality. An individual may acquire double
nationality through naturalisation in a foreign country without losing the nationality of his
home State (if provided under the laws of his home State).
Double nationality sometimes leads to undesirable consequences, that is, a person may
not get the diplomatic protection from any of them, or both the States (and in case of
multiple nationality all of them) may claim jurisdiction over the person. For this, Art. 4 of
the Hague Convention on Conflict of Nationality Laws, 1930, states: “A State may not
afford diplomatic protection to one of its nationals against a State whose nationality such
person also possesses”. A different case of dual nationality arises when one of the two
States claims against a third State and the latter pleads that the other nationality of the
individual is the effective or dominant nationality. A substantial jurisprudence supports
the principle of the inopposability of the nationality of a third State in an international
claim.33
The Hague Convention, 1930, dealt with some of the difficulties arising out of double
nationality. Article 5 provides that a person having more than one nationality may be
treated in the third State as if he has only one nationality, and such a third State shall
recognise exclusively either the nationality of the country in which he is habitually and
principally resident, or the nationality of the country with which in the circumstances he
appeared to be most closely connected. This idea has also been incorporated in Art. 2 of
the European Convention on the Reduction of Cases of Multiple Nationality, 1963.
D. Statelessness34
A person becomes Stateless when he does not possess the nationality of any State. This
may be the result of lack of uniformity in the nationality laws of different States, change
of sovereignty over a territory, and through denationalisation by the State of nationality.
In such cases, a person may lose his original nationality without acquiring another
nationality. Statelessness may also arise from gaps in national law or from the absence of
nationality law when a new State comes into being. This may be remedied by reference to
residence or domicile in conjunction with other principles of law concerning State
responsibility and the nature of Statehood and territorial sovereignty.
Statelessness causes great hardship and lack of security for individuals. Stateless persons
do not enjoy the rights conferred by international law upon a national, for example, their
interests
______________________
33 In the Salem case, Annual Digest of PIL Cases 6 (1931-32), no. 98, the tribunal
found that Salem was a Persian national at the time of his American naturalisation, and
held that it was not open to Egypt to invoke the Persian nationality against the claimant
State, the US.
34 The subject of statelessness has been under study for some time by the ILC and
the General Assembly, see the Work of the International Law Commission, 3rd ed.

(1980), pp. 33-36. On the subject of statelessness, see generally, A.P. Mutharika, The
Regulation of Statelessness under International and National Law, 2 Vols. (1980); Weis,
op. cit. 1; A Study of Statelessness (UN, Department of Social Affairs), 1949.

are not protected by any State, they lack diplomatic protection, and are denied enjoyment
of rights based upon reciprocity. So long as his personal status is doubtful, a Stateless
person is also deprived from the enjoyment of many rights in a normal way, such as
family rights and succession to property.35 In recent years, Statelessness has become a
major problem. Attempts are under way since the time of the League of Nations to
control it.
The Hague Convention on Nationality Laws, 1930, in Art. 1 provides that the Contracting
States agree to accord nationality to a person born in their territory who would otherwise
be Stateless. Articles 13-15 of the Convention specifically dealt with this problem. The
Universal Declaration on Human Rights, 1948, in Art. 15 provides that “everyone has the
right to a nationality” and in para. 2, it states: “No one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality” (although in actual practice an
individual does not enjoy this right). Some other international instruments also contain
similar provision, like the freedom to leave any country, including one’s own.36
Based on the work of the International Law Commission, the United Nations adopted a
Convention on the Reduction of Statelessness, on August 30, 1961, which came into
force in 1975.37 The Convention creates obligation for the granting of nationality on the
basis of residence (five to ten years), with disqualifications for nationality, viz., persons
committing offences against national security, sentenced on any criminal charge, or
imprisoned for five years or more. In addition, it contains provisions enabling persons
who would otherwise be Stateless to acquire the nationality by birth, or by descent. Other
provisions control deprivation of nationality. A person who would otherwise lose
nationality under certain circumstances, his loss of nationality will be dependent upon the
acquisition of another nationality (Art. 8). Article 9 prohibits deprivation of nationality on
racial, ethnic, religious, or political grounds. The Conference which adopted the
Convention had also drew up a resolution recommending that persons who are de facto
Stateless should, as far as possible, be treated Stateless de jure to enable them to acquire
an effective nationality. Earlier also, a Convention relating to the Status of Stateless
Persons was adopted on September 28, 1954, which entered into force in 1960.38
E. Refugees
Closely related to the problem of Statelessness is the issue of refugees. Attempts have
been made to provide refugees with a certain status, regardless of the fact that they are
often stateless de facto or de jure. Under the Convention Relating to the International
Status of Refugees of October 28, 1933, the Contracting Parties assumed obligations
towards Russian and Armenian refugees. In 1946, the United Nations General Assembly
adopted the Constitution of the International Refugee Organisation, which functioned
until 1952. Thereafter its main functions were taken over by the Office of the United
Nations High Commissioner for Refugees (UNHCR).
_________________________
35 See Report of the ILC on the Work of its 5th Session (1953), para. 22; S.K. Agarwala,
International law - Indian courts and legislature (N.M. Tripathi, Bombay), 1965, p. 97.

36 See Art. 12 of the International Covenant on Civil and Political Rights, 1966; the
European Convention on Human Rights, Fourth Protocol, 1963, Art. 2, in force since
1968.
37 For the text of the Convention, see 11 ICLQ (1962), p. 1090.
38 360 UNTS 117; UN Doc. No. E/Conf. 17/5 Rev 1.

In 1951, at Geneva, a Convention on the Status of Refugees was adopted by the United
Nations Conference and later in 1967, a Protocol to the Convention conferred certain
important privileges on refugees, viz., allowing the use of identity or travel documents,
privileges of admission, carrying a vocation with right of residence, national treatment
with regard to some rights, such as freedom of religion, most-favoured-nation treatment
in wage-earning employment and the right of association. It stipulates that in other
contexts, including education (other than elementary), refugees are to receive treatment
as favourable as possible, and not less than that accorded to aliens as a class. No refugee
may be expelled to a territory “where his life at freedom would be questioned” (Art.
32(1)). But if he is a security risk or convicted of a serious crime, this rule is not
applicable (Art. 33(2)).
In addition to these, however, clear provisions are required under international law
obliging States not to resort to denationalisation measures unless there are compelling
reasons. It is also necessary that both under international law and municipal law, there
should be a strong presumption against the loss of nationality for all purposes and heavy
onus should be discharged before the loss is recognised. If there is any chance of
resumption of nationality, that must be explored, and it also means onus has not been
discharged beyond doubt.
III. EXTRADITION
The term extradition has been derived from two Latin words ex and traditum, which
means “delivery of criminals”, “surrender of fugitives” or “handover of fugitives”. It is a
well-established principle of international law that a State cannot exercise acts of
sovereignty upon the territory of another State; thereby if a criminal escapes to another
State, he would be immuned from seizure and trial by the former State. On the other
hand, the State where he has taken refuge may find it difficult to punish a person who has
committed a crime elsewhere, primarily for lack of jurisdiction or for any other technical
reason. In such a case, the person may be extradited to the State where the crime is
committed upon its request. When the request is made for the extradition to the State
where the fugitive criminal has taken refuge, it is the courts and executive of the
requested State which decide whether or not to surrender the individual concerned.
Extradition, therefore, is the surrender by one State to another of an alleged or convicted
criminal in respect of a crime over which the latter State has territorial competence to
exercise jurisdiction.39 Crimes committed on ships or aircrafts flying a State’s flags are
considered to be committed on State’s territory.
Extradition is based upon the principle that an individual should not be allowed to escape
responsibility for the common types of crimes (male in se), and no crime should go
unpunished. It is part of the comity of nations that a State should provide every assistance
to another State in bringing the guilty persons of such crimes to justice.40 For the
purposes of evidence to try the offender, the State where the crime has been committed is
in a better position to try him and has the greatest interest in punishing the fugitive.
There exists no duty to extradite under international law except for war crimes.
Extradition usually takes place under a bilateral treaty, creating reciprocal rights to claim
extradition of

______________________
39 D.W. Greig, International Law, 2nd ed. (Butterworths, London), 1976, p. 408.
40 Lord Russell in Re Arton (No. 1) (1896) I QB 108, at p. 111.

fugitives.41 State practice has established that not only is there no duty to extradite in the
absence of a treaty, but also that there is no authority with the State executive to extradite
in the absence of such a treaty nor would the surrender of fugitives be requested in the
absence of such a treaty. The Supreme Court of the United States in Factor v.
Lubenheimer42 stated that international law recognises no right of extradition apart from
treaty. It observed that:
While a government may, if agreeable to its own constitution and laws, voluntarily
exercise the power to surrender a fugitive from justice to the country from which he has
fled, and it is said that it is under a moral duty to do so ... the legal right to demand his
extradition and correlative duty to surrender him to the demanding country exist only
when created by treaty”.
In the absence of treaty or statute, the grant of extradition depends purely on reciprocity
or courtesy. Conditions in the extradition treaty must be generally fulfilled. In the
Savarkar case (1911), Savarkar escaped from the British ship bringing him to India, was
apprehended by the French Police at the port of Marcelese and handed over to the captain
of the British ship. The French Government demanded his return, on the ground that he
was wrongly handed over without the rules of extradition being strictly observed. The
Permanent Court of Arbitration held that though international law does not impose any
obligation to extradite, but if extradited, even in an irregular manner, the receiving State
is not bound to return the fugitive.
1. Rendition
When there is no extradition treaty between two States, an offender may be returned to a
State to stand trial there, by an ad hoc special arrangement. This recourse may be taken
even if there is an extradition treaty and irrespective of the fact that the alleged offence is
an extraditable crime or not.43 In certain cases, deportation or refusal of asylum may
have the effect of rendition.
2. Extradition and expulsion

Extradition is different from expulsion. Every State possesses the absolute and unfettered
power to expel, deport and reconduct aliens.44 It is an incident of a State’s territorial
sovereignty but it must be effected in a reasonable manner and without unnecessary
injury to the alien affected. The expulsion of Ugandan-Asians by the Government of
Uganda in 1970, led to untold miseries and in certain cases led to Statelessness of the
affected people. Article 13 of the Covenant on the Civil and Political Rights, 1966
provides that an alien lawfully in
___________________
41 There are certain multilateral treaties on extradition, e.g., the European
Convention on Extradition, Dec. 13, 1957 (by the Council of Europe); the Arab League
Extradition. Agreement (by the Council of the League of Arab States) of Sept. 14, 1952.
Such regional conventions contribute towards the trend of creating general rules of
extradition.
42 2 90 US 276 (1933).

43 But see the order of the First Class Magistrate, New Delhi, dated March 29, 1963,
in Tarashov Extradition case (1963) 3 IJIL (1963) 323 at 325, where the Indian Court
discharged the fugitive because there was no treaty between India and the USSR, but
only a request for extradition by the USSR. A notification issued by the Government of
India, extending the provisions of Extradition Act, 1962, to the USSR, could in no case
be called a formal treaty.
44 “Reconduction” amounts to a police measure whereby the alien is returned to the
frontier under escort.

the territory of a State may be expelled only pursuant to a decision reached by law.
Article 33 of the Geneva Convention on the Status of Refugees, 1951, also provides that
an alien should not be deported to a country or territory where his person or freedom
would be threatened on account of his race, religion, nationality or political views.
Extradition, on the other hand, deals with criminals and those accused of crimes. It takes
place only under a treaty obligation, and certain persons whose extradition is demanded
under the treaty are handed over to the requesting State for prosecution and punishment.
But despite a treaty, a State may still refuse to extradite.45 Further, once the person is
expelled, it is not the concern of the expelling State where the alien goes, but in
extradition, it is done in the interest of the requesting State and the alien is handed over to
it.
In India, expulsion takes place under the Foreigners’ Act, 1946, and extradition under the
Extradition Act, 1962. Extradition is done by India only when conditions under the Act
are satisfied.
A. Procedure and Law on Extradition

The procedure and grant of extradition primarily depend upon the municipal law rather
than on international law. States generally adopt legislation laying down the conditions
and manner to extradite the fugitive offender. Because of divergence in State practice, the
law on extradition is unsettled and differences exist on matters like extraditability of the
nationals of the State of refuge, evidence of guilt required for extradition and the relative
powers of the executive and judicial organs in the procedure of surrendering the fugitives.
But, in spite of these differences, the bilateral treaties, national laws of States and the
judicial decisions of municipal courts have led to develop certain principles on
extradition, which are now well-entrenched in the corpus of international law. Before the
extradition is effected, it is necessary that there must be an extraditable person, and an
extraditable crime. A request for extradition is made through the diplomatic channel.
1. Extraditable person
It is a well-established practice that a State may seek extradition of its own nationals or of
nationals of a third State. A requested State is not obliged to extradite its own nationals,
though it is not an absolute rule, and a State can extradite its own nationals on the basis of
reciprocity. Many States insist on such a provision in their extradition treaties. It is
because nations insist on their right to exercise criminal jurisdiction over their nationals;
even though the offence is committed abroad.46 Furthermore, refusal to extradition does
not mean non-prosecution of the criminal, and in such a case, the maxim aut punire aut
dedere may be applied, which means the offender must be punished by the State of
refuge, or surrendered to the State which can and will punish him.
______________________
45 See Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Cal. and
others, AIR 1955 SC 367, in which the Supreme Court held that even if there is a
requisition and a good case for extradition, the government is not bound to accede to the
request, because Sec. 3(1) of the Extradition Act gives the government discretionary
power.

46 See supra Ch. 7.

2. Extraditable crime
The crimes for which extradition can be ordered must be listed in the treaty with the
requesting State as well as they must be set in the relevant Act.47 Generally States
extradite only for serious crimes. But as a general rule, States do not extradite persons
charged of political offences, military offences (desertion, etc.) and of religious offences.
3. Extradition of political offenders

Under customary international law, political offenders are not extradited and this rule is
based on considerations of humanity. However, the extradition of political offenders has
always remained controversial because of the difficulty in defining a “political offence”.
Oppenheim says that “many writers consider a crime ‘political’ if committed from a
political motive, others call ‘political’ any crime committed for a political purpose; again
others recognise such a crime only as ‘political’ as was committed both from a political
motive and at the same time for a political purpose ... some writers confine the term ... to
certain offences against the State only such as high treason, lese majeste and the like”.48
Whether or not the offence is political, is entirely a matter for the courts of the requested
State to decide. In the absence of precedents, the courts are bound to draw upon the
approach taken by other States in the matter.
An important test was laid down by the English courts in the cases of Re Castioni and Re
Meunier. In Re Castioni,49 the prisoner was arrested on a warrant for his extradition to
Switzerland. In the course of an uprising in which a number of citizens of the Canton of
Tigno (in Switzerland) had seized weapons and had captured the municipal palace, the
prisoner had shot a member of the Canton Council in the course of seizing the palace.
The court, while holding that the prisoner should be discharged from custody because of
the political nature of the alleged crime of murder committed by him, stated that in order
to avoid extradition “for such an act as murder ... it must at least be shown that the act is
done in furtherance of, done with the intention of assistance, as a sort of overt act in the
course of acting in a political matter, a political rising, or a dispute between two parties in
the State as to which is to have the government in its hands”.50
In Re Meunier,51 extradition was sought of a prisoner who had committed two anarchist
bomb explosions in a Paris cafe and two military barracks in France. The Court refused to
hold his crime as political and stated that “in order to constitute an offence of a political
character, there must be two or more parties in the State, each seeking to impose the
government of their
______________________
47 See Rambabu Saxena v. State, AIR 1950 SC 155, in which the petitioner
contended that he cannot be extradited because the treaty did not mention the crime for
which the extradition was sought. But the Supreme Court held that he can be extradited
when the treaty authorised the Indian Government to grant extradition for some
additional offences, not listed in the treaty, thus giving the other party power to seek
extradition.
48 L. Oppenheim, op. cit. 5, p. 707.
49 [1891] 1 QB 149.
50 Ibid., at p. 156.

51 [1894] 2 QB 415.

own choice on the other, and that, if the offence is committed by one side or the other in
pursuance of that object, it is a political offence, otherwise not”.
These cases confined the notion of “political offence” to inter-party strife within a State.
But the meaning was extended in ex pane Kolezynski,52 in which a group of Polish
seamen seized control of the trawler on which they were serving and sailed the vessel to
an English port where they sought “political asylum”. The request for extradition was
also made. The court held that the offences committed with a political objective (e.g.,
anti-communism) or to avoid political prosecution for political defaults or political
persecution are political crimes, notwithstanding any intention to overthrow the
government. It also pointed out that the words “offence of a political character” “must
always be considered according to the circumstances present at the material time when
the alleged crime was committed”.53 In Cheng v. Governor of Pentoville Prison,54 it was
further laid down that there should be a connection between the offence and politics of
the requesting State; acts committed with the aim to induce the government of the State
to change its policy, or to change the government, or to enable the offender to escape
from the jurisdiction of a government of whose political policies he disapproved but
despaired of altering are political offences.
But there are cases of “relative political crimes” (debits complexes), i.e., those cases in
which the political offence also comprises an ordinary crime at the same time, such as
murder, arson, theft, etc. The act might have been done with a political motive or a
political purpose, but in ordinary circumstances, it ought not to be considered political.55
To deal with such cases, attempts have been made in the past to define the nature of
crime for extradition purposes, viz., the attentat clause, i.e., the attempt on the life of the
head of the State of a foreign country or his family, shall not be considered political
offence.56 War criminals or persons charged with the crime of genocide (Art. VII, the
Genocide Convention, 1948) are not considered political and criminals could be
extradited.
Thus, the political character of the offence, preponderantly is determined by reference to
the circumstances attending its alleged commission. Nevertheless, it is well-established in
the State practice that if the act does not have any close relation with the political aims,
even though committed during the course of a political controversy or by persons
politically opposed to the requesting State, it will be considered as an ordinary crime,
including crime of violence, and will be extraditable. However, because of the different
political systems and ideologies, the differences in tackling crimes for extradition
purposes are not likely to be avoided. The issue
______________________
52 [1955] 1 QB 540.
53 See Schtraks v. Government of Israel [1964] AC 556 esp. at pp. 591-92. See also,
Re Extradition of Locatelli, 468 F. Sup. 568 (1979).
54 [1973] AC 931.
55 In Re Kutir [1961] 56 AJIL 224-227, the Swiss Court refused the French request
to extradite the criminal who killed his fellow countryman from Algeria in France as
being a relative political crime. Both men were the members of the Algerian Front for

National Liberation (the FLN), and the victim was suspected of “treason” against the
cause for which Kutir killed him.
56 The clause was first introduced by Belgium in 1856, in its extradition law (Art. VI
of the Act). The Russian Project of 1881 had also the similar proposal. According to Sec.
10 of the Swiss Solution, 1892, if the chief feature of the act contained more aspects of an
ordinary crime than political, the offender will be extradited.

of “political crime” is closely related to the issue of “political asylum”, which a sovereign
State is empowered to decide under its municipal law.
Even though the States generally do not extradite their own nationals, but in extraditing
the nationals of the requesting State or of the third States, the following principles are
generally followed by States:
(a) Rule of Double Criminality

According to the rule of double criminality, the crime for which extradition is sought
must be punishable under the law of the requested State (where the fugitive has sheltered)
and of the requesting State. In order to fulfil this condition, a list of extraditable crimes is
attached in the extradition laws of some States, and generally a list of extraditable crimes
for which extradition can be affected is attached to the treaty also. The Indian Extradition
Act, 1962, has adopted both these approaches. The Second Schedule to the Act lists the
crimes for the purposes of extradition. This list applies to cases of extradition with
Commonwealth countries and also to those with which India has no treaty, but reciprocity
exists. If there is a treaty with any State, a list is attached to it for the extraditable
offences. Extradition is limited to such offences only. But if the crime does not find
mention in the treaty, it is difficult to extradite. To overcome this difficulty, States
sometimes insert a general clause in the treaty for extraditable crimes with minimum
penalty under the laws of both the States.57
The rule of double criminality, however, is subject to judicial interpretation and can be
deviated.58 Substantial similarity between the alleged extradition crime and the crime
punishable is sufficient to bring into effect the double criminality rule. It is also often
related to the problem of punishment, i.e., that the crime is punishable for man-slaughter
in the State of refuge, but amounts to murder, which is punishable with death sentence in
the requesting State. In such cases, the requested State sometimes refuses to extradite. For
this, generally extradition treaties provide for taking an assurance from the requesting
State not to execute death penalty if it is imposed.59 Abu Salem case is in point.
Abu Salem, along with his girl-friend Monica Bedi, was extradited to India in 2005 from
Portugal, after the Indian government gave a solemn assurance before the Portuguese
court that if convicted they would not be sentenced to death. The assurance was given
since European law prohibits extradition of any accused to such a country where capital
punishment is in
______________________
57 See the French law, prescribing definite minimum penalty. Under Art. 3(1) of the
Indo-Canada Extradition Treaty, 1987, any crime with minimum penalty of one year in
both the countries is extraditable.
58 See Factor v. Lubenheimer. op. cit. 42, where the US Supreme Court allowed
extradition of Factor to Britain on charges of fraudulently obtaining money in London,
which was not a crime in the State of Illinois, where he had taken refuge at that time.
59 See Art. 6 of the Indo-Canada Treaty 1987. See also Soering v. UK, 28 ILM 1063
(1989); 83 AJIL 129 (1989), in which Soering after committing murder in US, for which
the punishment was death sentence, fled to UK, where he was found guilty for
manslaughter. He challenged his extradition, before the Divisional Court, on the basis of

Art. IV of the US-UK Extradition Treaty, incorporating the rule for non-extradition
unless there is an assurance against execution of death penalty. Upon the US giving such
an assurance, Soering was extradited. The European Court on Human Rights in this case
held that Soering’s extradition to US, risking him to death penalty would involve
inhuman or degrading treatment, which is violative of Art. 3 of the European Convention
on Human Rights, particularly his exposure to the so- called “death-row phenomenon”,
see Council of Europe Doc. H (87) 4.

vogue. Abu Salem was accused of Mumbai blasts of 1993 and was trailed by the CBI
from the United States to Portugal. As there was no extradition treaty between India and
Portugal, political considerations played a major role in extradition. Indian government
sought his extradition under the United Nations Convention on Suppression of Terrorism
of 2000 under which all member-nations have to help each other in the war against
terrorism. Portugal and India are both signatories to the Convention. Indeed, a country
does not need a treaty to decide that a fugitive found within its jurisdiction should be
extradited to another country that requests extradition. It can do so even by exercise of
executive discretion.
(b) The Principle of Speciality

Under this principle, the requesting State is under a duty not to try or punish the offender
for any other offence than that for which he was extradited. This principle finds a fair
mention in extradition treaties and laws,60 and is also supported by judicial practice. In
the case of United States v. Rauscher,61 Rauscher was extradited from Britain to the
United States on the ground for murdering a fellow servant on an American ship. In the
United States, Rauscher was tried not for murder but for causing grievous hurt to a man
named Jansen. The United States Supreme Court held that when a person is brought
before the court under the extradition treaty, he may be tried only for such offence for
which his extradition is sought. It was thus clearly implied that the requesting State
cannot exercise jurisdiction with respect to a charge other than that for which the accused
was extradited. But in R. v. Corrigan,62 the appellant had been extradited from France
under the treaty on the charge of obtaining money by false pretenses, but was tried for
fraudulent conversion upon the same facts that had been the basis of the original claim
for extradition. The English Court held that a court has the jurisdiction if the same facts
on which he was extradited are referable to the crime for which he is tried.
(c) Prima Facie Evidence

Before a person is extradited, there should appear to be a prima facie case of crime
against the fugitive.63
(d) The Offence must be of a Non-political Character

To be extraditable, the offence must be of a non-political character, i.e, the extradition
can be granted for common crimes, or those of a purely fiscal nature to safeguard the
public interest. International law does not lay down the nature of crimes for which a
person can be extradited. In the case of Dharm Teja, who was the Managing Director of
the Jayanti Shipping Corporation (a Government of India Undertaking), after embezzling
crores of rupees, fled to Ivory-Coast with which India had no extradition treaty. Later,
while he was in England, on the request of the Government of India, he was taken into
custody and finally was extradited to India in April 1971, and convicted in 1972. He was
freed after three years. But he again left the country it 1978, after evading four crores in
income tax, but no extradition proceedings could be initiated
______________________
60 See Sec. 31(d) of the [Indian] Extradition Act, 1962, for speciality principle.

61 (1886) 119 US 407.

62 [1931] 1 KB 527.
63 See the Tarashov Extradition case (1963), op. cit. 43, where the Court did not find
any prima facie case against the accused; see also AIR 1958 SC 98; and Sec. 7(3) of the
Extradition Act.

against him as there was no criminal charge against him, income tax evasion is not a
crime for extradition purposes.
(e) Time-Barred Crimes

A fugitive criminal is generally not extradited if prosecution for the offence in respect of
which extradition is sought has become time barred in the requesting State.64 He may
also not be extradited if he has been tried and convicted for the same offence in the
requested State.
In the matter of extradition, the governments enjoy unfettered power to refuse extradition,
in spite of the power of the court to look into the nature of the crime. Under Sec. 29 of the
(Indian) Extradition Act, the Central Government may refuse extradition if the
application for extradition is not made in good faith, or in the interest of justice or for
political reasons or if it is unjust or inexpedient to surrender or turn the fugitive criminal.
B. Law on Extradition in India

The Extradition Act, 1962 (Act XXXIV of 1962) lays down the law and procedure on
extradition in India. Prior to that, there existed the 1903 Act, which supplemented the
British Extradition Act, 1870, and the Fugitives Offenders Act of 1881. The 1962 Act
stipulates that all extradition treaties made before August 15, 1947, are binding on India
(Art. 2(d)). A request for extradition is made to the Government of India by a diplomatic
representative of the foreign State and on receiving such a request, the Central
Government may issue an order to any magistrate having jurisdiction to inquire into the
offence. The magistrate then issues an order of arrest against the fugitive criminal and
shall inquire the case on the basis of evidence. If he is satisfied that there is no prima
facie case against the fugitive criminal in support of the requisition of the foreign State,
he shall discharge him. On the other hand, if a prima facie case is made out against him,
the magistrate shall make a report and forward it to Central Government. On receipt of
such a report, the Central Government may issue a warrant for the custody and removal
of the fugitive criminal and for his delivery at a place and to a person to be named in the
warrant (Ch. II). A magistrate may also on his own initiative issue a warrant for the arrest
of a foreign fugitive criminal present within his jurisdiction and report the matter along
with the evidence or certified copies to the Central Government, and on receiving the
order, proceed with the case as stated above (Sec. 9). In the matter of exercising
jurisdiction over a fugitive criminal, the Supreme Court in the case of Mubarak Ali
Ahmad v. State of Bombay stated:
The fastening of criminal liability on a foreigner in respect of culpable acts or omissions
in India which are judicially attributed to him notwithstanding that he is corporeally
present outside India at that time is not to give any extra-territorial operation whose
locality is in India, that the liability is fastened on the person and the punishment is
awarded by the law, if his presence in India for the trial can be secured.65
In this case, the petitioner, while on trial for forgery and fraud in the Sessions Court,
Bombay, fled to Pakistan, and from there he went to England. The Indian Government
got him extradited
______________________

64 See Sec. 31(b), Extradition Act, 1962.

65 AIR 1957 SC 857 at p. 868. See also Ch. 7, p. 149.

under the (British) Fugitive Offender’s Act. He was brought to Bombay to stand trial.
While he was facing trial and lodged in Bombay Jail, a person brought a case against the
petitioner for cheating for which the Presidency Magistrate issued a warrant against him.
He argued that he was a Pakistani national and was out of India during the period when
the offence was alleged to have been committed. But this argument was rejected by the
Supreme Court, which held that the Indian courts would have jurisdiction over a case in
which a person committed an offence although not being present in India at the time of
commission of the offence.66
Other important decisions, relevant on the law of extradition, rendered by courts in India
are Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Cal. and others,67
State of Madras v. G. C. Menon,68 and Rambabu Saxena v. State.69
IV. ASYLUM
Asylum70 means refuge and active protection granted by a State to a person seeking such
a refuge and protection on the territory under its control. Thus, asylum is granted on the
request of the person concerned and it involves more than merely a temporary refuge and
a degree of protection by the authorities of the State of refuge. Asylum is closely
connected with extradition, and both are interdependent in as much as where the asylum
stops extradition begins. If a fugitive is not surrendered or returned by the sheltering State
to the State where he is alleged to have committed the crime, then he may be allowed to
remain in the State and would be granted asylum. Once the territorial State (State of
refuge) decides to extradite him, the question of asylum does not arise at all. Usually,
asylum is relevant in the context of “political asylum” and, if extradited, there is a fear of
political persecution in his own country. Since the late nineteenth century, liberal
tendencies have favoured the practice of granting asylum to political offenders.
The right to grant “asylum” is an aspect of a State’s territorial sovereignty. It has been
recognised in Art. 1 of the Draft Convention on Territorial Asylum emerged from the
discussions in the United Nations General Assembly in 1974-75, that every State has the
right, in the exercise of its sovereignty to admit any person into its territory. A State has
the power to allow an alien to enter or remain in its territory at its discretion, subject to
any duty to extradite the individual to a requesting State with which it has an extradition
treaty, barring a political offender. Thus, States have complete freedom to put restrictions
on their territorial jurisdictional right by concluding treaties, and agreeing to extradite
persons. But the asylum is generally motivated by human considerations and involves an
adjustment between the legal claims of State sovereignty and the demands of humanity.
______________________
66 Ibid., at p. 869.
67 See op. cit. 45.
68 AIR 1954 SC 517, for details, see Ch. 3, p. 77.
69 Op. cit. 47.
70 See generally on the subject V. Bevan, The Development of British Immigration
Law (1986); R.C. Hingorani (Ed.), Humanitarian Law (Oxford & IBH Publications, New
Delhi), 1987, pp. 121-131.

A. Kinds of Asylum
Asylum may be territorial (or internal), granted by a State on its territory, or extra
territorial, which is granted at the legations, consular premises, international institutions,
headquarters and warships (public ships).71
1. Territorial asylum
States have an inherent right, as an attribute of their sovereignty, to grant asylum in their
territory to all kinds of refugees, including the fugitive offenders, but they are not under a
legal obligation to grant asylum to a fugitive. Normally, a State refrains from granting
asylum to aliens held on a foreign vessel within its territorial waters. But it is very
controversial whether a State can grant asylum to prisoners of war detained by it, and
who are unwilling to be repatriated for the fear of persecution, for example as happened
after the Korean conflict in 1953. The territorial asylum has been classified into: (i)
political asylum, i.e., for political defectors; (ii) refugee asylum, i.e., for those who fear
persecution in their own country, and (iii) general asylum, i.e., for persons who have
deserted their country to seek economic betterment but do not enjoy the status of
immigrants.72
2. Extra-territorial asylum
Asylum granted by a State not on its physical territory, but on its notional territory, like in
legation and consular premises in the physical territory of another State, and on warships,
is called the extra-territorial asylum. The grant of such an asylum is not inherent and its
extent and scope is not well-defined under international law.
(a) Diplomatic Asylum

The granting of asylum in the legation premises is known as diplomatic asylum but it is
an exceptional measure and controversial. The Vienna Convention on Diplomatic
Privileges and Immunities, 1961, contains no provision on the subject although in Art.
41, reference to “special agreements” makes room for bilateral recognition of the right to
give asylum to political refugees within the mission premises. But para. (3) of Art. 41 of
the Convention provides that the premises of the mission shall not be used in a manner
“incompatible” with the functions of the missions. It is also doubtful if a right of
diplomatic asylum for either political or other offenders is recognised by general
international law.73 However, a qualified right of diplomatic asylum is accepted under
the Havana Convention on Asylum, 1928, in Art. 2(1),74 and a regional custom on the
subject
______________________
71 It may be extended to State aircrafts flying its flags.
1989, p. 358.
73 See Harvard Research Draft, 26 AJIL Supp. 62-66 (1932), Art. 6; M. Sorensen
(Ed.), Manual of Public International Law (Macmillan, New York), 1968, p. 409; Asylum
case (1950) ICJ Rep. 266, at pp. 282- 86; for contrary view, see Morgenstern, 25 BYblL,
pp. 236-61 (1948); and ibid., 67 LQR 362 at p. 381 (1951).

74 See also the Montevideo Convention on Political Asylum, 1933.

seems to exist in Latin America.75 Generally, a State claiming to have such a right must
expressly establish it. But, on the other hand, in the absence of any clear rule, a territorial
State is not bound to respect such an asylum. It must, by an express consent, agree to do
so.
In the Asylum case (Columbia v. Peru),76 the Court stated:
In the case of extradition (territorial asylum), the refugee is within the territory of the
State of refuge.... In the case of diplomatic asylum, the refugee is within the territory of
the State where the offence was committed. A decision to grant diplomatic asylum
involves a derogation from the sovereignty of that State. It withdraws the offender from
the jurisdiction of the territorial State and constitutes an intervention in matters which are
exclusively within the competence of that State. Such a derogation from territorial
sovereignty cannot be recognised unless its legal basis is established in each particular
case.
The Court also stated that the practice of States in the matter of diplomatic asylum is
laden with uncertainty and contradiction.77 Whereas the power to grant territorial asylum
is an incident of territorial sovereignty itself, but the granting of extra-territorial asylum is
rather a derogation from the sovereignty of the territorial State which has to acquiesce in
the action of State granting asylum by not apprehending the fugitives who enjoy its
protection. Such an asylum, however, is generally granted to political refugees.
Although there exists much uncertainty about the existence of the right of diplomatic
asylum, a number of principles are supported by State practice in this regard:
i. there is no general right of diplomatic asylum existing under international law,
except in the Latin American region;78
ii. where there is a well-established local custom, the diplomatic asylum is
permissible (cf. Asylum case);
iii. under a special treaty between the territorial State and the State of refuge, it is
admissible;
iv. temporary shelter may be provided in the mission premises to individuals whose
lives are in immediate danger (e.g., if pursued by a Violent mob), or where the fugitive is
in peril because of extreme political corruption in the territorial State, in order to tide over
imminent threat temporarily. Because of the inviolability of diplomatic premises
______________________
75 See the Asylum case, op. cit. 73, at p. 295; Haya de la Torre case, (1951) ICJ
Rep., p. 71; see now the Inter-American Convention on Diplomatic Asylum, 1954.
76 Ibid., at pp. 274-75. For the facts of the case, see Ch. 2, pp. 27-28.
77 Ibid., at p. 271.
78 Judge Alvarez (from Latin America) in his dissenting opinion in the Asylum case,
ibid., at p. 295, stated that there is no customary American international law of asylum,
properly speaking. There are certain practices, followed by these States, which are: (1)
Asylum is granted only in cases of political offence and not to common criminals. (2)
Asylum is granted in accordance with the laws and usages of the State of refuge, and it is
for the latter to appreciate whether the offence committed by the refugee is a political
offence or a common crime. (3) The territorial State may request the departure of the
refugee from its territory and the State of refuge may then require the former State to

deliver a safe conduct enabling the refugee to leave the country safely. (4) The State
which has granted asylum sometimes, with the same end in view, requests that a safe
conduct be issued to the refugee.

(Art. 29(1) of the Vienna Convention, 1961), the surrendering of the criminal can be
taken up by the territorial State with the foreign State concerned;
v. asylum may be granted in the consular or diplomatic premises as a matter of
agreement between the host and the sending State.79
Although the right of diplomatic asylum exists among a number of Latin American
States, its precise limits are ill-defined. This right primarily depends upon treaty
provisions, viz., the 1928 Havana Convention on Asylum, and the 1933 Montevideo
Convention on Political Asylum, and to some extent on common unarticulated
understanding. However, it is doubtful whether there exist any customary rules
elaborating the framework established by conventional obligations. In the Asylum case,
the Court observed that:
asylum as practised in Latin America is an institution which, to a very great extent, owes
its development to extra legal factors. The good neighbour relations between the
republics, the different political interests of the governments, have favoured the mutual
recognition of asylum, apart from any clearly defined juridical system. Even if the
Havana Convention, in particular, represents an indisputable reaction against certain
abuses in practice, it no way tends to limit the practice of asylum as it may arise from
agreements between interested governments inspired by mutual feelings of toleration and
goodwill.80
The dissatisfaction and uncertainties raised by the Asylum case on the existence of a legal
right of asylum peculiar to Latin America led to the conclusion of an inter-American
Convention on Diplomatic Asylum, adopted at Caracus in March 1954. The Convention
empowers the asylum granting State to categorise the nature of the offence for which the
fugitive criminal’s arrest is sought, and to decide upon the urgency of the circumstances
required before the asylum can be validly granted.81 However, the Convention has not
been widely ratified, and the United States even refrained from signing the original draft
on the ground that it did not recognise any general right of diplomatic asylum.
Nevertheless, the majority of States in Latin America recognise the inviolability of the
diplomatic premises, which is extended to cover the immunity from arrest for a fugitive
granted asylum in those premises.
The legal framework of the right of diplomatic asylum, nonetheless, still remains unclear.
This lack of clarity was vividly highlighted by the events in Chile when in September
1973, President Allende’s Government was overthrown. Many Chileans were granted
asylum in foreign
______________________
79 For example, in the case of Cardinal Minszenty, by an ad hoc arrangement, he
was granted asylum in the US Embassy, after an unsuccessful Hungarian Uprising in
1956. As long as he remained in the embassy, the Hungarian authorities made it known
that they would not take any step to seize him.
80 Asylum case, op. cit. 73, at p. 286. The Court’s conclusion that asylum is based
on “extra legal factors” left the dispute over the fugitive, Haya de la Torre who had taken
refuge in the Columbian Embassy in Peru after an unsuccessful rebellion, in an impasse.
The only means, suggested by the Court, to resolve their dispute was through an agreed
solution by the parties. In the process, Haya de la Torre spent five years in the Columbian

Embassy before Peru finally agreed to grant him a safe-conduct to leave Peruvian
territory. See also the Haya de la Torre case, op. cit. 75.
81 In the Asylum case, the urgency of granting circumstances was a disputing issue
between Peru and Columbia, because Haya de la Torre, who had been at large for three
months after the rebellion and against whom arrest was ordered by Peruvian authorities,
reappeared in the Columbian Embassy in Lima and was granted asylum. Therefore, it
was difficult to contend that his case was urgent.

embassy premises in Chile, and many of them were allowed to leave the country, but
subsequently, the new regime announced that it would not recognise diplomatic asylum if
granted in contravention of the provisions of treaties to which Chile was a party. This
demonstrated that asylum granted even on humanitarian grounds without the support of
any international convention endorsing such a right is not tenable under international law.
The events in Chile had their impact in the United Nations. At the initiative of Australia
(which refused to grant asylum in its embassy in Chile in 1973), the United Nations
General Assembly in 1974, adopted a resolution (Res. 3321 (XXIX)), inviting member
States to convey their views on diplomatic asylum to the United Nations Secretary-
General who was requested to prepare and circulate a report “containing an analysis of
the question of diplomatic asylum” to be considered in the 30th Session of the General
Assembly (in 1975). The report paved the way for further clarification and development
of the law on diplomatic asylum.
The grant of asylum in legation premises is a question which is difficult to be settled
under international law, mainly for the reason that the practice of States is not uniform.
Political considerations often play a dominating role in granting asylum or in
surrendering refugees. The Government of India does not recognise the right of
diplomatic asylum. It made this clear vide its circular of December 30, 1967, sent to all
diplomatic missions in India. It was further reiterated by the Indian delegate (Dr. Seyid
Mohmad) on November 3, 1975, before the Sixth Committee concerning diplomatic
asylum. He stated, “The practice of temporary refuge is clearly justified on grounds of
humanitarian considerations. What is important is that this practice does not in any way
involve withdrawal of the persons concerned from the jurisdiction of the State. In fact, it
helps the territorial State as much as the refugee if he is returned to it after the cessation
of the imminent danger to his life”.82 The general rules applicable to asylum granted in
the legation premises are also applicable in relation to consular premises.
(b) Asylum in the Premises of International Institutions

There is no general right or practice regarding granting of asylum in the premises of
international institutions and of the specialised agencies, even on humanitarian grounds,
which is clearly evident from the Headquarters Agreements of these institutions.
Although no case as yet has arisen, but theoretically temporary refuge in extreme cases
(e.g., to shelter from mob frenzy) cannot be ruled out.
(c) Asylum on Warships

The warships and public vessels enjoy immunity under international law and because of
the similarity with the rule that diplomatic premises are inviolable, it has been claimed
that there exists an analogous right of asylum on board such ships. The diplomatic
practice has also, to a great extent, assimilated the position of warships with the status of
diplomatic premises in this regard. It is a generally held view that an individual, who is
not a member of the crew and takes refuge on board a vessel after committing a crime on
shore, cannot be arrested by the local authorities and removed from the vessel if the
commander of the ship refuses to hand him over.83 On the other hand, some scholars are
of the view that such an asylum should be

______________________
82 For the text of the statement, see 15 IJIL 534 (1975).
83 About public ships, see Ch. 7, pp. 192-194.

granted only on humanitarian grounds if the life of the individual seeking asylum is
threatened. Asylum may also be granted to political offenders on warships.84
Asylum on merchant ships, however, cannot be granted because merchant vessels do not
enjoy immunity and are not exempted from the local jurisdiction.85
B. Right of Asylum
Under international law, there does not exist any enforceable right of a fugitive criminal
to be granted asylum, although in the constitutions of certain countries, the right of
asylum is expressly recognised for persons fleeing from persecution on political
grounds.86 Efforts have been made to create such a right of asylum for individuals, in
place of discretion which the States enjoy at present. The Universal Declaration of
Human Rights prescribes the right “to seek and to enjoy in other countries asylum from
persecution”, which is not to be invoked in the case of prosecutions “arising from non-
political crimes or from acts contrary to the purposes and principles of the United
Nations” (Art. 14). In 1962, during a discussion on the Draft Covenant on Civil and
Political Rights in the Third Committee of the General Assembly, some States
unsuccessfully supported the inclusion of a new article on the right of asylum, mainly due
to the difficulty in defining a “political offence”. On December 14, 1967, the United
Nations General Assembly adopted a Declaration on Territorial Asylum, which
recommended States to observe certain principles, stated therein, in granting asylum on
their territory.87
The important principles mentioned in the Declaration are: that the asylum granted by a
State to persons seeking refuse from persecution should be respected by all States, but in
principle, asylum should not be granted to persons for whom there are well-founded
reasons that they have committed crimes against peace, humanity or war-crimes (Art. 1);
the principle of non refoulement, i.e., the persons should not be rejected at the border, or
if he has already entered the territory in which he seeks asylum, should not be expelled or
deported. If it is not possible to grant asylum due to national security reasons, the State
should consider granting provisional asylum and should help him in going to another
State (Art. 3). If a State finds it difficult to grant or continue to grant asylum, States
individually, jointly or through the United Nations should consider taking appropriate
measures to lighten the burden of that State (Art. 2). This principle has been put into
practice in the case of Rwandan refugees. In August 1995, Zaire ordered the expulsion of
all refugees from Rwanda, who had fled their country in May-June 1994, due to civil war
and had taken refuge in the neighbouring countries (mainly Tutzi tribe people), but due to
the intervention of the United Nations High Commission for Refugees, and the promise
of increased financial aid to Zaire, it accepted back all the refugees.
______________________
84 The 1928 Havana Convention forbids the grant of asylum on warships to persons
accused of or condemned for a crime.
85 D.P. O’Connell, International Law, Vol.II, 2nd ed. (Stevens & Sons Ltd.,
London), 1970, p. 814.
86 See Preamble to the French Constitution, 1946; Art. 10 of the Italian Constitution,
1947; Art. 16 of the Constitution of the German Federal Republic, 1949.

87 UNGA Res. 2312(XXII) of Dec. 14, 1967; 62 AJIL 822 (1968); P. Weis, 7
Canadian YbIL (1969), 92- 149.

Nevertheless, the Declaration in itself does not create any enforceable right of asylum, as
being merely a declaration. In an attempt to create such a right and binding obligations, a
draft Convention on Territorial Asylum was laid down in 1974-75 and a United Nations
Conference was held for its adoption from January 10, 1977 to February 4, 1977, but no
consensus emerged at the Conference. The prospects of its adoption in future also appear
to be bleak.88 This confirms the unrestricted right of a State in the matter of granting or
withholding asylum, under its own domestic laws, policies and practices.
______________________
88 G.S. Goodwin-Gill, The Refugee in International Law, 2nd ed. (Clarendon Press,
Oxford), 1996, pp. 104-40.


Page 254
CHAPTER 10
Human Rights and Fundamental Freedoms
I. GENERAL
Human rights1 are said to be those fundamental rights which every individual inhabiting
any part of the world should be entitled to merely by virtue of having been born a human
being. They are the basic rights or natural rights, which are inalienable and essential for
the adequate development of human personality and for the happiness and progress of the
human society. Being fundamental rights, they cannot be taken away by any act of the
government or by the legislature of the country. This concept of human rights, imposing a
responsibility on the State to respect and protect these rights is largely a post-1945
phenomenon.
Prior to the Second World War, persons under the jurisdiction of a State were categorised
as nationals and aliens, and not as individuals. As aliens they were protected from State
actions under international law,2 but the treatment of nationals was regarded entirely
within the domain of a State as a part of its domestic jurisdiction and not regulated by
international law. However, in the nineteenth century an exception was created, which
was largely accepted in favour of humanitarian intervention,3 for example, the collective
humanitarian intervention by the great powers in the Turkish empire to prevent large
scale atrocities and the French intervention in Syria (August 1860-June 1861) to prevent
the recurrence of massacres of Maronite Christians. Before coming into force of the
United Nations, there existed few treaty provisions regarding the treatment of minorities.
The Covenant of the League of Nations although did not contain any provision in this
regard but the execution of these treaty provisions were put under the guarantee of the
League and could not be modified without the consent of the League Council. In some
cases, clauses were included to bring the action for violation of treaty obligations before
special tribunals, such as the Upper Silesian Tribunal. These treaties, however, were
limited
______________________
1 On the international law of human rights, generally see T. Meron (Ed.), Human
Rights in International Law (Clarendon Press, Oxford), 1984, 2 Vols; T. Meron, Human
Rights Law Making in the UN (Clarendon Press, Oxford), 1986; A.H. Robertson, Human
Rights in the World, 3rd ed. (Robertson and Merrills), 1989; P. Sieghart, The Lawful
Rights of Mankind (1985); P. Sieghart, The International Law of Human Rights
(Clarendon Press, Oxford), 1983; McDoughal, Lasswell and Chen, Human Rights and
World Public Order (Yale University Press), 1980; H. Lauterpacht, International Law and
Human Rights (Praeger, New York), 1950; Vasak and Alston (Eds.), The International
Dimensions of Human Rights (Greenwood Press, Connecticut), 1982, 2 vols. Nagendra
Singh, Human Rights and the Future of Mankind (Variety Books, Delhi), 1981; Steiner
and Alston, International Human Rights in Context 2nd ed. (Oxford University Press)
2000; J. Rehman, International Human Rights Law (Longman) 2003.
2 See J.L. Brierly, Law of Nations, 6th ed. (Waldock (Ed.), Clarendon Press,
Oxford), 1963, pp. 276-291.

3 On humanitarian intervention, see infra Ch. 16, pp. 486-488.

Page 255 HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
in their ambit and related to minorities in question and did not create general obligations
to respect fundamental human rights. The minorities rights covered under these treaties
were the protection of life and liberty and the free exercise of religion without
discrimination on grounds of language, race or religion, equality before law, and the
freedom of organisation for religious and educational purposes. These rights were mainly
civil and political in nature, but there was no protection of individual’s rights generally.
In contrast to the League of Nations, the United Nations has shown a specific interest in
the protection of minorities as such, and Art. 27 of the International Covenant on Civil
and Political Rights, 1966, recognises the rights of the minorities “to enjoy their own
culture, to profess and practice their own religion or to use their own language”.4 The
other instruments which have recognised the minority rights are: the 1966 International
Convention on the Elimination of All Forms of Racial Discrimination,5 and the 1986
Declaration on the Right of Development.6 There is also the 1992 Declaration on the
Rights of the Peoples of Minorities. But the events in 1930s, in which the Jews and other
races were subjected to appalling atrocities led to the increased attention to individual’s
human rights. The Second World War shock the conscience of humanity and bore out the
close relationship between human rights, peace and progress, because without the
protection of human rights, there can be neither lasting security nor sustained economic
and social development.7 Naturally, the promotion and protection of human rights and
fundamental freedoms without any distinction became one of the purposes of the United
Nations (Art. 1(3) of the Charter). It is the duty of the General Assembly to initiate
studies and make recommendations for “the realisation of human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion” (Art. 13).
Similarly, the ECOSOC may also make recommendations for the purpose of promoting
and observance of these rights and freedoms for all (Art. 62).8 It is also the objective of
the Trusteeship System to encourage respect for-human rights and fundamental freedoms
(Art. 76). More importantly, the United Nations is obliged to promote “universal respect”
for and observance of these rights (Art. 55) and the member-nations pledge themselves to
take joint and separate “action” in cooperation with the organisation to that end (Art. 56).
It is, however, doubtful whether these Charter provisions, as such, create any binding
legal obligation on the member-nations in the arena of human rights, apart from imposing
a moral duty not to undermine the human rights, particularly with regard to their own
nationals.9 Nonetheless, South Africa’s racial segregation policies adopted by the earlier
regime were found
______________________
4 See also the UN Commission on Human Rights, 30th Sess., 1977, Res. 5 and 6 (xxx)
and the Report of Capotorti, E/CN.4/Sub. 2/304 and Add. 1-7. There is also a separate
sub-commission on the Prevention of Discrimination and Protection of Minorities.
5 660 UNTS 195; reproduced in 15 ILM 352 (1966).
6 GA Res. 41/126 of Dec. 4, 1986, UN Doc. HR/PUB/91/2, p. 65.
7 This was eloquently declared in the Atlantic Charter of Aug. 14, 1941, between
President Roosevelt (USA) and Prime Minister Churchill (UK). The Dumbarton Oaks
proposals, 1944, also contemplated “to promote respect for human rights and
fundamental freedoms”.

8 The ECOSOC his so far adopted 59 resolutions and decisions on human rights,
including the Right to Development and the Rights of Ethnic, Religious and Linguistic
Minorities.
9 See L. Oppenheim, International Law, Vol. I, 9th ed. (Jennings and Watts (Ed.),
Longman, London), 1996, p. 989; A.M. Robertson, The Law of International Institutions
in Europe (1961), p. 53.

to be out of harmony with her obligations under the Charter.10 It is also controversial
whether the United Nations can intervene in the matters of a State for human rights
violations. The Charter prohibits intervention by the Organisation “in matters which are
essentially within the domestic jurisdiction” of a State and intervention is allowed in
pursuance of a decision of the Security Council under Chapter VII (Art. 2(7)), or by the
General Assembly under its general competence to take “measures” under Arts. 11 and
14. But the United Nations actions in Bosnia-Herzegovina in 1992, and in Rwanda in
1993, under Chapter VII without the consent of the concerned States have established and
justified the humanitarian intervention by the United Nations. In the Congo crisis, the
measures initiated with the consent of the State concerned were also a form of
humanitarian intervention. But humanitarian intervention, without the sanction under
Chapter VII, is not without controversy.
Theoretically, any matter that becomes of “international concern” may invite
intervention, but barring any enforcement action under Chapter VII, intervention cannot
take place without the consent of the State concerned, and the United Nations must
confine itself in such matters to discussion and recommendations. On the other hand,
protection of human rights is the fundamental purpose of the Charter, and violation of
this obligation by a State cannot be considered essentially a matter of domestic
jurisdiction. Gross human rights violations, as in South Africa under the earlier regime,
call for the United Nations action, even without resorting to Chapter VII enforcement
measures. But States have in the past, reacted sharply even to any “discussion” by the
Security Council or the General Assembly on their domestic matters, as South Africa, or
France for its action in Algeria. But barring any specific “recommendation”, mere
discussion and recommendation of a general nature does not amount to intervention
within Art. 2(7) of the Charter and the General Assembly logically can discuss and
consider the breaches of human rights. If the breaches are of a grave nature, as to
endanger international peace and security, it may call such situations to the attention of
the Security Council (Art. 11(3)), which may address dictatorial injunctions.
The United Nations Charter, however, has provided the requisite impetus for the further
protection and improvement of human rights. There are more than 90 international
instruments (declarations, resolutions and conventions) adopted by the United Nations
since its inception to protect these rights,11 in addition to over 100 ILO conventions in
force, out of which some were adopted during the League of Nations time. Apart from
the 1948 Universal Declaration of Human Rights, and two international Covenants on
Civil and Political Rights, and Economic, Social and Cultural Rights, 1966, other notable
instruments brought out under the aegis of the United Nations are: the 1948 Genocide
Convention, 1951 Convention relating to the Status of Refugees, 1973 Convention on the
Crime of Apartheid, 1953 Convention on the Political Rights of Women, 1979
Convention on the Elimination of All Forms of Discrimination against Women, 1966
Convention on the Elimination of All Forms of Racial Discrimination, 1984 Convention
against Torture, 1986 Declaration on the Right to Development, 1989 Convention on the
Rights of Child, 1989 Indigenous and Tribal Peoples Convention (ILO 169), 2006
International Convention for the Protection of All Persons from Enforced disappearance,

and the 2007 Declaration on the Rights of Indigenous Peoples. At the regional level, the
European Convention on Human Rights,
______________________
10 J.L Brierly, op.cit. 2, p. 293.
11 The latest instrument is the 2008 Declaration on Sexual Orientation and Gender
Identity.

1950;12 the European Social Charter, 1961;13 the American Convention on Human
Rights, 1969;14 and the African Charter on Human Rights and Peoples’ Rights, 1981,15
have been adopted. The four Geneva Conventions, 1949, and two additional Protocols to
these “Red Cross” Conventions, 1977, on humanitarian law, and the Final Act of the
Conference on Security and Cooperation in Europe, 1975, (the Helsinki Declaration)16
contain important provisions on human rights. Progress in the evolution of the
international law of human rights has so far been made mainly through treaties. But
international treaties and even declarations can, over time, obtain the status of customary
international law. However, more important than the recognition of these rights, it is their
actual formulation and enforcement which have not yet been perfected.
II. HUMAN RIGHTS: THE UNITED NATIONS APPROACH

The United Nations Charter, which has played the catalyst role in the human rights
movement, however, did not define the fundamental freedoms and human rights, nor did
it provide any machinery to secure their observance. This task was fulfilled by the
subsequent United Nations instruments. The First was the Universal Declaration of
Human Rights, adopted by the General Assembly on December 10, 1948,17 which
elucidated the Charter provisions and defined expressly certain human rights and
fundamental freedoms that need to be protected.
The Declaration is not a legally enforceable instrument and some of the rights mentioned
therein, viz., the right of asylum (Art. 14), could not be said to represent the legal rule,
others are merely general principles of law or represent elementary considerations of
humanity.18 The rights enshrined in the Declaration in its 30 articles are broadly divided
into civil and political rights, and economic, social and cultural rights. Though legally not
binding, the Declaration has gained considerable authority as a general guide of
fundamental rights and freedoms for the member- nations and has affected the subsequent
developments in the field of human rights and shaping the international instruments
adopted in this regard. The Declaration, along with two human rights Covenants, 1966,
has become the backbone of human rights jurisprudence world-over and finds an
appropriate place in the legislations and constitutions of many new nations (e.g., Part III
of Fundamental Rights in the Indian Constitution) and has been relied upon in the
decisions of the courts.19 All this has provided the rules of the Declaration the status of
customary international
______________________
12 213 UNTS 221, in force since Sept. 3, 1953, 23 parties.
13 529 UNTS 89, in force since Feb. 28, 1965, 35 parties; Revised Social Charter
adopted in 1996 came into force in 1999, 30 parties as on 13 Oct. 2010.
14 1144 UNTS 123; 9 ILM 673, in force since 1978, as in 2010, 24 parties.
15 21 ILM 59 (1982), in force since 1986, as of 15 June 2009, 53 parties.
16 The Declaration is legally not binding. For the text, see 14 ILM 1292 (1975); see
also Russell, 70 AJIL 242 (1976).
17 GA Res. 217A (II), GAOR, 3rd Sess., Official Records, Part I, Resolutions, p. 71.
The Declaration was adopted by 48 votes to none with eight abstentions.
18 Cf. Corfu Channel case (Merits) (1949) ICJ Rep. p. 4, at 22.

19 For example, the European Court of Justice invoked it in the Golder case, 57 ILR
201 at 216-217 (1975) for the interpretation of Art. 6 of the European Convention on
Human Rights; the ICJ in the case Concerning United States Diplomatic and Consular
Staff in Tehran (1980) ICJ Rep. 3, at p. 42 (para. 91); referred by the Supreme Court of
India in Jolly George Vergese v. The Bank of Cochin, AIR 1980 SC 470.

law. The rights enshrined in the Declaration are set “as a common standard of
achievement for all peoples and all nations”. States shall “strive by teaching and
education to promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition and
observance” (Preamble).
Among the human rights documents, however, the most important are the two Covenants
adopted by the General Assembly in 1966: the International Covenant on Civil and
Political Rights and its two Optional Protocols,20 and the International Covenant on
Economic, Social and Cultural Rights.21 These two Covenants, Optional Protocols to the
Covenant on Civil and Political Rights and the Universal Declaration on Human Rights
together form the International Bill of Rights. The Covenants impose legal obligations in
respect of these rights and provide machinery for dealing with complaints of violation of
the Covenants obligations.
Over a period, writers have started referring human rights in one of three generations.
The two Covenants together represent the first two generations of human rights. The
“first generation” consists of civil and political rights, mainly based upon natural rights
philosophy of the eighteenth century thinkers, like Locke and Rousseau. The “second
generation” consists of economic, social and cultural rights, which were propagated and
recognised after the advent of socialism in the twentieth century. The emphasis in both
has been on the individual’s rights The Universal Declaration which is the embodiment
of the rights of both these generations gave them equal importance and made them
interdependent. However, as late as in the 1970s, the “third generation” rights emerged
with the predominant support of developing countries. In contrast to the individual’s
rights (i.e., the first two generation rights), these are collective or group rights, such as the
right to development, right to healthy human environment, right to peace and right of
self-determination. They are enshrined in the Declaration on the Right to Development.
Many western scholars are skeptical of labelling such group rights as human rights since
they do not vest in, nor are exercised by, an individual.22 There are also problems in the
realisation of these rights. For example, regarding the right to development, there is no
difficulty in accepting the negative duty not to impede the development of a State, but its
positive duty aspect to help in such a development involves a higher level of commitment
which may not be easily forthcoming, as it has happened with the United Nations General
Assembly Declarations in the realm of New International Economic Order (NIEO). Such
a commitment rests principally on non-legal considerations. Article 27 of the
International Covenant on Civil and Political Rights also provides for such group right
for ethnic, religious or linguistic minorities in a State, and persons belonging to such
minorities, “shall not be denied the right, in community with other members of their
group, to enjoy their own culture, to profess and practice their own religion, or to use
their own language”.
______________________
20 Adopted by 106 votes to none, and Optional Protocol was adopted by 66 votes to
2, with 38 abstentions, see Report of the Third Committee, UN Doc. A/6546, Dec. 13,
1966, entered into force on March 23, 1976, as of October 2009, have 166 parties; as of
September 2009, had 113 parties to the Protocol. The Second Protocol to this Covenant,

aimed at the Abolition of the Death Penalty was adopted in 1989, entered into force on 11
July 1991 and had 72 parties as of October 2009.
21 Adopted by 105 votes to none, entered into force on Jan. 3, 1976, had 160 parties
as of December, 2008. The United States ratified both the Covenants in 1992 with
reservations and declarations.
22 See P. Sieghart, supra note 1. Crawford considers peoples’ rights as a sub-
category of human rights, see J. Crawford (Ed.), The Rights of Peoples (Clarendon Press,
Oxford), 1988, pp. 65-66, 159-166.

The human rights instruments set the human rights standards to regulate most aspects of
the relationship between the government and its people. However, it is the enforcement
of these standards, which is vital for creating the culture of the observance of human
rights and building the corpus of practice on international human rights law. Most of
these instruments provide the machinery and procedure, albeit not so perfect, for the
implementation and monitoring compliance with the standards stated in these
instruments. In some cases, no machinery exists at all, like the Genocide Convention,
1948. Under most of these instruments, an individual does not have any direct recourse to
any international organ to enforce its rights, and in certain cases, where such machinery
exists, after receiving complaints from the individual, non-binding recommendations are
generally made. The net result of all this is that the United Nations so far has not proved
very effective in the prevention of the flagrant violations of human rights. Except under
the European Convention for the Protection of Human Rights, 1950, a similar situation
exists under other regional treaties as well.
A. Enforcement of Human Rights: United Nations Machinery

Under the Charter, the United Nations is obliged to promote “respect for, and observance
of human eights and fundamental freedoms for all without distinction as to race, sex,
language, or religion” (Art. 55(c)). In furtherance of this, the ECOSOC, in February
1946, established the Commission on Human Rights (CHR) under Art. 68 of the Charter
and was assisted in its work by the Office of the United Nations High Commissioner for
Human Rights (UNHCHR). The Commission was considered to be the nearest approach
to permanent machinery for the protection and promotion of human rights. The
Commission has been replaced by the Human Rights Council in 2006.23 The Council is a
subsidiary organ of the General Assembly and unlike CHR, which was reporting to the
ECOSOC, the Council reports to the General Assembly. The CHR had been criticised for
allowing countries with poor human rights records to be members.
Apart from the Human Rights Commission, a Commission on the Status of Women was
also established in 1946, which started first as a sub-commission of the CHR.24 It is
charged with the functions of preparing reports and making recommendations to the
ECOSOC to promote rights of women.25 There is also a Sub-Commission on the
Prevention of Discrimination and Protection of Minorities established by the CHR in
1947, consisting of 26 members selected by the CHR, who work in their individual
capacity. The Sub-Commission is entrusted with the task of prevention of discrimination
and protection of racial, national, religious and linguistic minorities. The Sub-
Commission commits its report on each session to the CHR.
______________________
23 UNGA Res. A/RES/60/251, 15 March 2006. In contrast to the Human Rights
Commission, which had 43 members elected by the ECOSOC, the Human Rights
Council has 47 members elected by the General Assembly: 13 from Africa, 13 from Asia,
6 from Eastern Europe, 8 from Latin America and the Caribbean, and 7 from the Western
European and others States.

24 See ECOSOC Official Records, 1st year, 2nd Sess., p. 405 (1946). The
Commission composed of representatives of the member-States of the UN, has a
membership of 32 now, UN Doc. ST/HR/2/Rev. 2, p. 290 (1983).
25 For the functions of the Commission on the Status of Women, see Res. 11(11) and
48 (IV) in ECOSOC Resolutions, 4th Sess., p. 34 (1947).

The work of the CHR was related to standard-setting, promotion activities and
enforcement of human rights. In the area of standard-setting, the Commission was very
active in the first few years after its coming into force when it prepared the drafts for the
Universal Declaration of Human Rights and two international Covenants, and also the
Convention on the Political Rights of Women, 1954. The promotional activities were
mainly confined to holding regional seminars, advisory services, fellowships, etc. But
later on the Commission’s role became more significant in the enforcement of human
rights standards, for which it established special procedures to monitor human rights
violations by member-nations.26 There are two kinds of procedures: country specific and
thematic. The Sub-Commission on the Promotion and Protection of Human Rights was
the main subsidiary body of the CHR. The Sub-Commission was composed of 26 elected
human rights experts whose mandate was to conduct studies on discriminatory practices
and to make recommendations to ensure that racial, national, religious, and linguistic
minorities are protected by law.
Under the special procedures, private complaints from individuals were received by the
CHR (complainant’s identity was not divulged), and after ascertaining the nature of the
complaint, the government concerned could be invited to give its observation, and if need
be, the Commission would investigate the alleged human rights violations. Special
procedures also included special Working Groups constituted of legal experts to ascertain
violations on the complaints received from States.27 In pursuance of this, in 1967 the
Commission constituted an Ad-hoc Working Group of Experts to investigate various
aspects of human rights, including the situation of prisoners and detainees, in South
Africa and Southern Africa under the apartheid policy of South Africa. In 1969, similar
groups were established to ascertain the alleged violation of the 1948 Geneva Convention
Relative to the Protection of Civilian Persons in Time of War by Israel, and in 1975 for
Chile to control the opposition.28 In each of these cases, the State concerned was
severely criticised.
The communication received from individuals and Non-Governmental Organisations
(NGOs) by the Secretary General of the United Nations was referred to the Sub-
Commission on Prevention of Discrimination and Protection of Minorities,29 which was
examined in private and in cases of gross violations, the Commission could appoint an ad
hoc committee to undertake investigation with the express consent of the State
concerned. Based on the report of the ad hoc committee, the Commission would submit a
report and recommendations to the ECOSOC. But the procedure did not prove very
successful because of the confidential nature of the proceedings and the intervention of
bloc-politics in them.
In order to overcome this drawback, in the 1980s, the Commission established a Working
Group on Enforced or Involuntary Disappearances, and Special Rapporteurs on Summary
or
_________________
26 The ECOSOC is empowered lo obtain reports from members on the progress in
the field of human rights: Art. 64 of the Charter.
27 See ECOSOC Res. 1235 adopted in 1967 for receiving the complaints from
States, ESCOR, 42nd Sess., Supp. (1967). It authorised the Commission to “examine

information relevant to gross violations of human rights” and to “make a thorough study
of situations which reveal a consistent pattern of violations of human rights”.
28 See United Nations Action in the Field of Human Rights, UN Doc. ST/HR/2/Rev.
2 (1983).
29 ECOSOC Res. 1503 of 1970 established the procedure for receiving the private
communication from individuals and NGOs, and for its consideration, see ESCOR, 48th
Sess., Supp. 1 (1970).

Arbitrary Executions, Torture, Religious Intolerance and Mercenaries. The Working

Group and Special Rapporteurs would prepare public reports on State practice, based on
the thematic approach, rather than singling out a particular country, in their areas of
concern and collect evidence in respect of human rights violations in all States. These
reports were discussed by the Commission at public meetings, in which the concerned
States were allowed to defend themselves. However, these meetings could be influenced
by politics thereby affecting the choice and treatment of particular cases. The
Commission was also without power to hear witnesses or enter territory to conduct
investigations. The Commission had no power to impose legally binding sanctions in
cases of the human rights violations and its actions were restricted to pursuance, public
criticism and, in serious cases, isolation of the offending State.30
The ‘special procedures’ mechanism adopted by the CHR has been continued by the
Human Rights Council (HRC). Under it, various activities are undertaken by special
procedures, including responding to individual complaints, conducting studies, providing
advice on technical cooperation, and engaging in promotional activities. The special
mechanisms are categorised according to thematic mandates and country mandates.
Currently, there are 29 thematic and 13 country mandates under special procedures.31
Special procedures also include working groups made up of legal experts who monitor
and investigate specific human rights concerns.32 The Sub-Commission on the
Promotion and Protection of Human Rights of the CHR has been replaced by an
Advisory Committee in September 2007 with 18 members.33 The Advisory Committee
should be implementation-oriented. The scope of its advice should be limited to thematic
issues pertaining to the mandate of the Council; namely, promotion and protection of all
human rights. In the performance of its mandate, the Advisory Committee is urged to
establish interaction with States, national human rights institutions, non-governmental
organisations and other civil society entities in accordance with the modalities of the
Council.
The Council has established a new complaint procedure in June 2007 (Resolution 5/1).
Two working groups make up the complaint procedure: the Working Group on
Communications (WGC) and the Working Group on Situations (WGS). The WGC
consists of five independent and highly qualified experts, and is geographically
representative of the five regions represented by the Advisory Committee. The Advisory
Committee designates the WGC’s experts from among its members. The experts serve
for three years. The experts determine whether a complaint deserves investigation. If a
complaint deserves investigation, the WGC passes the complaint to the WGS. The WGS
also consists of five members, geographically representing the five regions represented
by the Advisory Committee. The UNHRC appoints the five members for a term of one
year. The WGS reports to the HRC about the complaints received from the WGC and
makes
______________________
30 D.J. Harris, Cases and Materials on International Law, 7th ed. (Sweet and
Maxwell, London), 2010, p. 539 et seq; H. Tolley, Jr., The UN Commission on Human
Rights (West View Press, London), 1987, p. 602.
31 http://www.ohchr.org/english/bodies/chr/special/docs/13threport.AEV

32 There are currently four such groups: on people of African descent; on Arbitrary
Detention; on Enforced or Involuntary Disappearances; on the use of mercenaries to
impede the right of peoples to self- determination.
33 Membership is distributed as follows: five from Africa; five from Asia; three from
Latin America and Caribbean States; three from Western Europe and other states; and
two from Eastern Europe.

recommendations about the course of action the Council should take.34 The complaint
procedure’s purpose is to address consistent patterns of gross and reliably attested
violations of all human rights and all fundamental freedoms occurring in any part of the
world and under any circumstances.
These developments at the international level, however, have clearly established that the
treatment by a State of its own nationals does not pertain to its exclusive domestic
jurisdiction. The acceptance of the jurisdiction of the Human Rights Commission/Council
by States in responding to the allegations against them has brought the subject of
protection of human rights within the domain of international law.
B. Procedure and Practice under the Covenants

Talking about the procedure for the enforcement of human rights under different treaties
churned out by the United Nations, the two International Covenants, which came into
force in 1976, provide better means of review and supervision of these rights. But out of
these covenants, the Covenant on Civil and Political Rights (CCPR) is more specific in
delineation of these rights; stronger in creating obligations in respect of them and their
enforcement than the Covenant on Economic, Social and Cultural Rights (CESCR).
1. Procedure under CCPR

The Covenant,35 with its preamble and fifty-three articles, obliges a State party to
“ensure and respect” the rights mentioned in the Covenant for all individuals under its
jurisdiction without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status (Art.
2(1)). Rights are related to liberty and security of the person (Art. 10), equality before
law, fair trial (Art. 14), freedom of thought and expression (Arts. 18-19) and the like. To
monitor the implementation, there is the Human Rights Committee (a separate body to
the Human Rights Council) consisting of 18 persons of high moral character and
recognised competence in the field of human rights and having legal experience, elected
from among the nationals of the contracting parties but serving in their individual
capacity (Art. 28). In elections, the principle of “equitable geographical distribution of
membership” is followed (Art. 31).
Under the Covenant, the State parties are required to submit periodic reports to the
Human Rights Committee on the measures undertaken by them to give effect to the rights
recognised in the Covenant.36 The Committee considers these reports at public hearings
in which the concerned State whose report is discussed is asked to send its representative
to introduce and defend the report and answer questions. If need arises, a State may be
asked to submit a supplementary written report which is considered at the “second round”
of public hearings. Generally, these
34 http://www.ohchr.org/english/bodies/chr/complaints.htm
35 As of October 2009, there were 166 parties to the Covenant.
36 After the submission of the first report within one year of the entry into force of
the Covenant or accession of the State, subsequent reports may be submitted at five
years’ intervals or earlier if the Committee’s workload permits, GAOR, 36th Sess., Supp.

40, Annex V (1981). The Committee meets in Geneva or New York and normally holds
three sessions per year.

meetings are courteous and no State had so far declined to cooperate in this regard. In
considering a State’s report, it is now a well-established practice to receive information
from NGOs (e.g., Amnesty International, and the International Commission of Jurists) by
the individual members of the Committee, which they commonly rely upon while
questioning State representatives on the report. After considering the national reports, the
Committee sends its comments, which are general in nature (rather than specific to the
country concerned), to the States parties (Art. 40(4)).
Under the Covenant, a State party may complain against another State party for the non-
compliance with the Covenant, on the basis of reciprocity, accepting the competence of
the Committee to receive such complains (Art. 41).37 But such a complaint is subject to
prior bilateral attempt at adjustment and exhaustion of domestic remedies. If the Human
Rights Committee fails to find a solution within twelve months, it may, with the prior
consent of the concerned States parties appoint an ad hoc Conciliation Commission.
Where the Conciliation Commission fails to arrive at a settlement, it indicates in its
Report the possibilities of an amicable settlement. The Report of the Commission,
however, is not binding and no State complaint has been brought under this provision of
the Covenant so far.
The Optional Protocol (First Protocol, 1966) to the Covenant also empowers the Human
Rights Committee to receive and consider communications from individuals subject to its
jurisdiction, who claim to be victims38 of violations by the State party of any of the
rights listed in the Covenant and who have exhausted available local remedies.39 But if
the same matter is examined under another procedure of investigation or settlement (viz.,
the European Convention or Inter-American Convention on Human Rights), the
Committee will not consider that matter (Art. 5(2)(a): I Optional Protocol). But where the
same conduct has affected more than one alleged victims, the Committee may entertain
communication received from one of the victims, even though the others have submitted
petitions elsewhere.40 The State charged with a violation is under an obligation to submit
to the Committee written statements or explanation, and steps taken to remedy the
situation. The Committee, in private, examines the admissibility and the merits of the
complaint on the basis of these statements and explanations submitted by the complainant
and the State. There is no provision for oral hearings. Subsequently, the Committee
forwards its views to the concerned State party and the individual. The Committee’s
“views” are legally not binding but, in practice, the defendant States generally adhere to
them by taking appropriate actions. These “views” in substance involve decisions on
issues of law and fact.
______________________
37 So far 26 States have accepted this obligation. Such a procedure of receiving
complaints from other States parties also exists under the ILO (Art. 26 of the ILO
Constitution); the 1962 UNESCO Protocol (Art. 12); compulsory system of inter-State
complaints under the 1966 Convention on the Elimination of Racial Discrimination (Art.
11); and the 1950 European Convention on Human Rights (Art. 24).
38 For the meaning of “victim” for the purposes of eligibility to bring an Optional
Protocol Claim, see Aumeeruddy-Czifra v. Mauritus (The Mauritian Women case), 1
Selected Decisions HRC 67 (1981).

39 The Human Rights Committee may also hear complaints under the 1966 Protocol
that arise under the 1989 Second Optional Protocol for the abolition of the death penalty
unless the ratifying State conveys contrary to that, see Art. 5 of the 1989 Protocol, GA
Res. 44/128.
40 A number of States have inserted reservation, thereby excluding the Committee’s
jurisdiction if the same matter has been the subject of investigation under another
procedure, see Harris, op. cit. 30, p. 678.

2. Procedure under the CESCR

The International Covenant on Economic, Social and Cultural Rights does not contain an
elaborate procedure akin to CCPR. This difference in approach is essentially the result of
the rights to be enforced under the two Covenants. Whereas under the CCPR, obligations
are typically negative (e.g., not to torture), but for economic, social and cultural rights,
the obligations are mostly positive (e.g., to adopt measures for economic upliftment,
providing adequate housing etc.). hence their observance is dependent upon the
availability of the resources to the government. The obligations are essentiality
programmatic and promotional.
The Covenant recognises certain rights, such as right to work, right to enjoyment of just
and favourable conditions of work, right of social security, adequate standard of living
for himself and his family, highest attainment of standard of physical and mental health.
The States parties undertake “to take steps ... to the maximum of its available resources”
to achieve “progressively the full realisation of the rights recognised in the present
Covenant by all appropriate means, including particularly the adoption of legislative
measures” (Art. 2(1)). The rights recognised are to be exercised on the basis of non-
discrimination (Art. 2(2)). However, in relation to economic rights, developing countries
“may determine to what extent they would guarantee” such rights to non-nationals.
The ECOSOC has been entrusted with the task of supervising the implementation of
these rights (Arts. 16-22). The States parties submit their reports to the ECOSOC on the
measures adopted and the progress made in achieving the observance of the rights
recognised (Art. 16(1)). With effect from 1987, the task of supervision is performed by
an expert Committee on Economic, Social and Cultural Rights. The Committee consists
of 18 members elected by the Covenant parties, giving due consideration to equitable
geographical distribution. After receiving reports (which the States are required to submit
every five years after an initial report submitted within two years of becoming party to
the Covenant), they are examined at public hearings in which reporting States are
required to defend them. All States parties are required to submit regular reports to the
Committee outlining the legislative, judicial, policy and other measures they have taken
to implement the rights affirmed in the Covenant. The Committee examines each report
and addresses its concerns and recommendations to the State party. The Committee also
collects information from other sources, viz., the specialised agencies like the ILO,
UNESCO and WHO, and the NGOs with the UN consultative status, which submit
written statements to examine the national reports. The Committee, after examination,
makes suggestions and recommendations of a general nature in the form of “concluding
observations”.41 But, based on the national report, the Committee can make observations
in its annual report that a country is not complying with its obligations under the
Covenant.42 It can also prepare general comments on various provisions of the Covenant
to help States in fulfilling their reporting obligations.43 These rights, though progressive
in nature, are mostly not treated “justiciable” and there has not been any mechanism
existing to receive complaints from individuals or inter-State complaints by the
Committee for non-implementation of the Covenant provisions. However, in line with the
Human Rights
______________________

41 See ECOSOC Res. 1985/17.

42 See Harris, op. cit. 30, p. 612 et seq.
43 See ECOSOC Res. 1987/5.

Committee under the CCPR, the UN General Assembly on 10 December 2008 adopted
the Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, which allows States parties to recognise the competence of the Committee on
Economic, Social and Cultural Rights to consider complaints from individuals.44 The
adoption of the Protocol may help in creating the right attitude by States in making
changes in national legislation for the realisation of these rights.
C. General Conventions on Human Rights

The machinery for the enforcement of human rights also exists, albeit imperfect, under
the other United Nations Conventions. The ILO Constitution requires members States to
submit annual reports on the measures adopted by them to give effect to ILO
Conventions. They are examined by a Committee of experts. The provision also exists to
make inter-State complaints to the International Labour Office by one member against
another for the non-observance of a convention to which both of them are parties (Art.
26). Such a complaint is referred to a Commission of Inquiry, and failing a settlement
based on the Commission’s report, the findings can be referred to the ICJ.45
As to other human rights treaties, treaty-based reporting or petition systems for
monitoring or ruling on compliance exist under the Convention on the Elimination of all
Forms of Racial Discrimination 1966 (CERD); Convention on the Elimination of All
Forms of Discrimination Against Women 1979 (CEDAW); Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment 1984 (CAT); Convention on the
Rights of the Child 1989 (CRC); Convention on the Protection of the Rights of All
Migrant Workers 1990; Convention on the Rights of Persons with Disabilities 2006. The
Committee for the Elimination of Racial Discrimination, consisting of 18 independent
members with legal or diplomatic background, exists under the 1966 Convention on the
Elimination of All Forms of Racial Discrimination. The members of the Committee are
elected on the basis of “equitable geographical distribution”, representing the principal
legal systems and different civilizations. Unlike the committees under the two human
rights Covenants, the expenses of the Committee under the CERD are borne by the States
parties to the Convention. The parties are to submit biennial reports on the
implementation of the Convention.46 National reports are discussed at public hearings
where the State representative initiates the report and answers the questions. The CERD
was the first to adopt this procedure among all the human rights treaties, even though the
Convention did not provide this procedure. The Committee makes general
recommendations and suggestions,
______________________
44 The Protocol was opened for signature on 24 September 2009, and as of October 2010
was signed by
45 parties and ratified by 3; will enter into force after ratified by 10 parties.
See the separate opinion of Judge Jessup in the S-W Africa cases (1962) ICJ Rep. 427-
28. In Feb. 1962, the first Commission of Inquiry was appointed upon a complaint by
Ghana against Portugal for the alleged existence of forced labour in Portuguese African
territories, contrary to the provisions of the Convention Concerning the Abolition of
Forced Labour, 1957. Similar inquiries were conducted against Liberia, Poland, FRG see

I 46. Brownlie, Principles of Public International Law, 7th ed. (Oxford University Press,
Oxford), 2008, p. 555, n. 7 et seq.
46 Now it is decided to submit “comprehensive reports” after every four years with brief
updating reports on intervening occasions, see CERD Report, GAOR, 43rd Sess., Supp.
18, p. 6 (1988).

together with comments if any, from States parties, to the General Assembly through the
Secretary General (Art. 9(2)). There is a compulsory system of inter-State complaints
(Art. 11). Such a complaint is referred by the Committee to the alleged violator State for
comment. In case no negotiated settlement between the two reaches, either of them may
refer the matter back to the Committee, which may then conduct a fact finding inquiry
and appoint an ad hoc Conciliation Commission (Art. 13). But the findings and
recommendation of the Commission are not binding on the State concerned. The
Committee is also empowered to receive petitions from inhabitants of Trust and non-self-
governing territories subject to General Assembly Resolution 1514 (XV) of 1960, via the
Special Committee of 24, constituted under the Resolution (Art. 15). So far, no such
petition has been received.
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1984, has also established a Committee Against Torture to
supervise its implementation (Art. 17). The Committee consists of 10 experts “of high
moral standing and recognised competence in the field of human rights” who serve in
their “personal capacity” (Art. 17(1)). Members are elected by the States parties on the
basis of equitable geographical distribution (Art. 19(2)). States parties are responsible for
the expenses of the Committee (Art. 18(5)). They are required to transmit initial reports
to the Committee on the measures taken by them to give effect to the Convention, and
supplementary reports are submitted after every four years on any new measures. The
reports are discussed at public hearings and the Committee may make such general
comments on the report as it may consider appropriate and shall forward these to the
State party concerned (Art. 19(3)). The Committee may also examine in cooperation with
the State party concerned, any “reliable information” containing “well-founded
indications” that torture, and not inhumane treatment, “is being systematically practised”
in that State party (Art. 20). State cooperation may involve a visit to the State party.
Having conducted its examination, the Committee must transmit its findings to the State
party concerned with appropriate comments or suggestions. This procedure is
confidential but the Committee, in its annual report may include a “summary account” of
the results of this procedure. The annual report is published (Art. 20(5)) and if the
Committee finds the existence of a “systematic practice” of torture in a State party,
adverse publicity will work as a sanction.
The Convention also provides for inter-State and individual petitions procedure. Inter-
State complaint procedure is based on the condition of reciprocity and subject to the
exhaustion of local remedies (Art. 20), which is similar to Art. 41 of the International
Covenant on Civil and Political Rights. The procedure of individual petitions (Art. 22) is
also closely modelled on the I Optional Protocol to the CCPR.
D. Protection and Enforcement of Women’s Rights

The Commission on the Status of Women47 has played a pivotal role in norm creating
for women’s rights. It drafted an extensive convention: the Convention on the
Elimination of All Forms of Discrimination against Women 1979, which entered into
force on September 3, 19 87.48 The
______________________

47 About the Commission, see op. cit. 24 and 25.

48 India ratified the Convention on July 9, 1993, see ST/LEG/SER.A/557 (1994) p.
444.

Convention obligates States parties to eradicate all kinds of discrimination against

women “in effect” in all walks of human activity.
To monitor the implementation of the provisions of the Convention, there is a Committee
on the Elimination of Discrimination against Women. It comprises 23 experts elected by
States parties, and has its own rules of procedure (Arts. 17 and 19). Like other human
rights conventions, the States parties to this Convention also are required to submit initial
reports to the Committee within one year after the entry into force of the Convention, and
thereafter, after every four years on the legislative, judicial, administrative or other
measures to give effect to the provisions of the Convention. The Committee, after
examining the reports on receiving information from States may make suggestions and
general recommendations in the form of a report to the Secretary General of the United
Nations, who transmits it to the Commission on the Status of Women (Art. 21).
However, there are no provisions for inter-State and individual petitions. States are
generally reluctant to submit complaints against each other in human rights matter as it is
considered to be an unfriendly act and is also perceived to be an interference in the
internal matters of another State, but to entertain petitions from individuals or victims is a
better alternative to improve the probability of enforceability and adherence to human
rights. The Convention also fails to provide any follow-up action on the report or any
sanction if the State fails to submit the report. It is also doubtful whether the Committee
may comment on violations of the Convention by a State party. The Convention is in no
way an improvement over the existing international machinery to enforce the women’s
human rights, existing under the Commission on the Status of Women. The Commission
itself lacks any power to take action with regard to complaints concerning the human
rights or the status of women.
The 1993 World Conference on Human Rights (Vienna) recognised women’s rights as
human rights and recommended for the appointment of a Special Rapporteur on Violence
against Women. The General Assembly also adopted a Declaration on the Elimination of
Violence against Women.49 On May 8, 1990, the Social Committee of the ECOSOC
stressed the need for women’s participation in all aspects and at all levels of national life.
At the international level also, it stressed to attain women’s participation in the United
Nations system upto 35 per cent by the year 1995, for which the Secretary General was to
take necessary measures. At the World Summit on Social Development (held between 6-
12 March 1995, at Copenhagen), the Summit leaders pledged to achieve equality and
equity between men and women, and enhance the participation and leadership roles of
women in the political, civil, social, economic and cultural life and in development. The
Action Plan, among others, aims at empowering the women.50 The Fourth World
Conference on Women (held on September 4-15, 1995 at Beijing) adopted the Beijing
Declaration and Platform of Action to promote the Status of Women. The Platform of
Action identified 12 critical areas for the betterment of women: health, education,
poverty, violence, armed and other conflicts, power-sharing and decision-making, human
rights, mass media, environment and development, economic participation, and the needs
of girls. The recommendations of the Conference are addressed to various components of
the international
______________________

49 For the text of the Vienna Declaration and Programme of Action on Human
Rights, see 32 ILM 1661 (1993); see also GA Res. 48/41, Dec. 20, 1993.
50 www.un-documents.net/cope-dec.htm.

community, particularly governments, international financial institutions, bilateral

donors, private sector, NGOs and mass media.51 However, the Declaration and the
Platform of Action are merely statements of policy which the governments must follow,
without any binding obligations, or any machinery to monitor their adherence.
III. PROTECTION OF HUMAN RIGHTS: REGIONAL APPROACHES

A. European Convention for the Protection of Human Rights and Fundamental
Freedoms52
The European Convention on Human Rights (ECHR) of November 4, 1950 mainly
incorporates the civil and political rights enshrined in the Universal Declaration of
Human Rights. The economic, social and cultural rights in the Universal Declaration find
their way in the European Social Charter of October 18, 1961. All the members of the
Council of Europe are parties to the Human Rights Convention, which is also applicable
to their overseas territories (Art. 63). It has 14 protocols, adopted gradually after its
coming into force on September 3, 1953.53
The Convention imposes binding commitments on the States parties to enforce and
secure to “everyone within their jurisdiction”, the rights and freedoms enlisted in the
Convention. These rights have been precisely defined and the exceptions and restrictions
are created to them (Arts. 2-18). For example, Art. 15 permits a State party to take
measures derogating from the obligations under the Convention “in times of war or other
public emergency threatening the life of the nation”. But no derogation is permitted under
this provision from the right to life (Art. 2, except in case of lawful acts of war), torture
and inhuman punishment (Art. 3), slavery or servitude (Art. 4(1)), and ex-post facto
(retrospective) punishment (Art. 7).
The rights and freedoms are guaranteed by an effective machinery for their enforcement.
As amended by Protocol 11, the Convention consists of three parts. The main rights and
freedoms are contained in Section I, which consists of Articles 2 to 18. Section II
(Articles 19 to 51) sets up the Court and its rules of operation. Section III contains
various concluding provisions.
Before the entry into force of Protocol 11, the machinery consisted of a Commission, a
Court, and the Committee of Ministers of the Council of Europe. Before the entry into
force of Protocol 11, Section II (Article 19) set up the Commission and the Court,
Sections III (Articles
______________________
51 See UN Newsletter, Sept. 23, 1995, Vol. 50, No. 38, p. 3.
52 The European Convention is by far the most established regional human rights
treaty whose jurisprudence is well developed. It is not possible to do full justice to the
subject due to constraints of space. For more details, see S.D. Bailey, D.J. Harris and
Jones, Civil Liberties: Cases and Materials, 3rd ed. (Sweet & Maxwell, London), 1991.
Ch. 13; D.H. Ott, Public International Law in Modern World (Pittman, London), (1987),
pp. 264-285, Ch. 14; D.J. Harris, The European Social Charter (University of Virginia
Press) 1984; J.E.S. Fawcett, The Application of the European Convention on Human
Rights, 2nd ed. (Clarendon Press, Oxford), 1987.

53 All Protocols are in force. Protocol No. 14 (CETS no. 194) entered into force on 1
June 2010. The text of the Convention had previously been amended according to the
provisions of Protocols No. 3, 5 8 and comprised also the text of Protocol No. 2. All
provisions which had been amended or added by these Protocols were replaced by
Protocol No. 11 (ETS no. 155), as from the date of its entry into force on 1 November
1998 and from that date, Protocol No. 9 with Protocol No. 10 lost its purpose.

20 to 37) and IV (Articles 38 to 59) laid down the machinery for the operation of,
respectively, the Commission and the Court, and Section V contained various concluding
provisions. Together, they had made the European Convention as a fully workable
system. Protocol 11, however, has made fundamental changes in the machinery of the
Convention to the advantage of the individual. It has abolished the Commission, allowing
individuals to apply directly to the Court, which has been given compulsory jurisdiction
and altered the latter’s structure. Previously, States could ratify the Convention without
accepting the jurisdiction of the Court of Human Rights. The Protocol has also abolished
the judicial functions of the Committee of Ministers of the Council of Europe.54
Protocol 14 further streamlines the process of the Court and improves upon the efficiency
of the Court. It seeks to “filter” out cases that have less chance of succeeding along with
those that are broadly similar to cases brought previously against the same member State.
The Court examines the case together with the representatives of the parties and may
undertake an investigation, if necessary. A case is not considered admissible where an
applicant has not suffered a “significant disadvantage”. This latter ground can only be
used when an examination of the application on the merits is not considered necessary
and where the subject-matter of the application had already been considered by a national
court. Hearings are held in public unless the Court in exceptional circumstances decides
otherwise. Protocol 14 has also introduced a new mechanism to assist enforcement of
judgements by the Committee of Ministers. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its execution. The
Committee can ask the Court for an interpretation of a judgement if that is required for its
execution and can even bring a member State before the Court for non-compliance of a
previous judgement against that State (Art. 46).55
Prior to the adoption of Protocol 11, the Commission of Human Rights, for all practical
purposes, was the principal organ which entertained all the complaints filed under the
Convention. The membership of the Commission equalled the number of the High
Contracting Parties and no two members of the Commission could be nationals of the
same State, who will sit on the Commission in their individual capacity. The principal
function of the Commission was to investigate the alleged breaches of the Convention
and to secure, if possible, a friendly settlement of the matter. A State party could refer to
the Commission any alleged breach of the Convention by another State party.56 States
may support the rights of nationals of other States, as was done by Denmark, Norway,
Sweden and the Netherlands against Greece in April 1967.57
______________________
54 Protocols 2, 3, 5, 8, 9 and 10 have been superseded by Protocol 11.
55 Protocol 14 also allows for European Union accession to the Convention. The
Protocol has been ratified by every member State of the Council of Europe (presently
there are 27 members). On coming into force of the Protocol 14, Protocol 14bis which
was adopted in 2009 and made applicable provisionally against the signatory States, has
ceased to exist.
56 See, for example, the three applications submitted by Cyprus against Turkey’s
conduct in the Northern Cyprus in Commission’s decision of May 26, 1975, 18 Yb. of the
European Convention (1975), p. 82; Commission’s decision of July 10, 1978, ibid., Vol.

21, p. 100. See also, Ireland v. UK, European Ct of H.R., Series A, Judgment of Jan. 18,
1978.
57 The Commission of Human Rights found Greece in breach of a number of
provisions of the Convention, which subsequently led to the withdrawal of Greece from
the Convention, but it rejoined in Nov. 1974, after the “restoration of democracy” in
Greece.

Individuals or groups of individuals or NGOs could also petition before the Commission
directly, without the intervention of any State party on their behalf, provided the State
against which the complaint was laid, had accepted the jurisdiction of the Commission in
this regard. Thus, the right of an individual to seek a remedy “directly” was a misnomer,
which, in fact, was dependent upon the option of the government accepting the
competence of the Commission to receive petitions from individuals by making express
declaration.58 A precondition of this right was that the petitioners should have exhausted
the domestic remedies available in their own country “according to the generally
recognised rules of international law” and filed their petition within six months time limit
after the final decision was taken by the domestic court. The inordinate or improper delay
by national tribunals, however, was deemed to be an exhaustion of local remedies.59 The
Commission had the right to reject in limine petitions incompatible with the Convention,
i.e., the activities of the complainant conflicts or aims at the destruction of the guaranteed
rights and freedoms under the Convention,60 manifestly ill-founded, or an abuse of right
of petition. After admitting a petition, the Commission would examine the alleged
breaches, and for this purpose, it could carry out investigations in the territory concerned,
and to secure, if possible, an amicable settlement.
In case the Commission failed to dispose of the matter by negotiation, it would report to
the Committee of Ministers of the Council of Europe, along with its opinion and
proposals. The Committee’s competence was two-fold: (i) where the concerned States
have not accepted the jurisdiction of the Court, so that the matter cannot be referred to the
Court; and (ii) where they have accepted the jurisdiction and the matter could not be
resolved by the Commission through negotiation. In the former case, on the basis of
Commission’s report, the Committee of Ministers would decide by a two-thirds majority
whether a violation of the Convention had been committed and suggest measures to be
taken. The Committee’s decision was binding on the parties and it was the responsibility
of the Committee to secure compliance with its own decisions and of the Court. Where
no satisfactory action had been taken on its decisions, it would decide what effect should
be given to those decisions. Where the States parties had accepted the Court’s
competence, the Commission would refer the matter to the Court within a period of three
months from the date of the transmission of the report to the Committee of Ministers.
______________________
58 The Commission became competent to receive such applications only in July
1955, when requisite number of six States accepted the competence of the Commission in
this regard.
59 In the case of Ireland v. UK, op. cit. 56, the Court observed that the rule of
exhaustion of local remedies need not be followed if the act is shown to be in breach of
the Convention, or is the result of an administrative practice. In Donnelly et al. v. The
UK, 68 AJIL440 (1974), 18 Yb. ECHR (1975), p. 84, the Commission, on the question of
“exhaustion of local remedies” held that “where an applicant under Art. 25 (applications
from alleged victims) submits evidence, prima facie substantiating both the existence of
an administrative practice ... and his claim to be a victim of acts part of that practice, the
domestic remedies rule in Art. 26 does not apply to that part of his application”, ibid., p.
147. If an individual is the direct victim of the alleged administrative practice, which has

made the local remedies ineffective, the rule of exhaustion of local remedies cannot be a
bar of his bringing a claim for his right.
60 On this ground, in 1957, the Commission rejected the German Communist Party’s
petition against the FRG for the alleged violation of its right to freedom of association
guaranteed under the Convention. The Federal Constitutional Court of Germany had
already made an order for the party’s dissolution.

The European Court of Human Rights was set up at Strasbourg on January 21, 1959.
Number of judges of the Court is equal to that of the members of the Council of Europe.
To consider a case, the Court sits in single-judge formation, in committees (consisting of
three judges), chambers of seven judges and Grand Chamber of seventeen judges. The
State party’s judge sits as an ex-officio member of the Court, other judges are appointed
by the President. Prior to Protocol 11, the judges of the European Court of Human Rights
were not holding any tenure post and were appointed from a panel and paid for the
duration when they were seized with a particular case. Now the judges are elected for a
period of nine years and not eligible for re-election. Their term of office expire at the age
of 70. Jurisdiction of the Court was compulsory only for those States making express
declarations of acceptance or an ad hoc declaration for a particular case. Only States
parties to the Convention and the Commission of Human Rights could bring cases
directly before the Court. Individual was not empowered to approach the Court directly,
but after the adoption of Protocol 9 (1990) an individual could do so.
An individual’s representation in a contentious case remained a thorny issue for long,
when his case was to be presented in the Court. The issue was succinctly raised in the
first decided case by the court, the Lawless case,6] during the hearing of preliminary
objections. The case also raised important points of procedure relating to the respective
functions of the Commission and the Court.
G.R. Lawless, an Irish citizen filed a petition for his unlawful detention in violation of
Art. 5 of the ECHR (right to liberty and security of person and freedom from arbitrary
arrest) under the Unlawful Activities (detention) Act, 1940, of the Irish Republic. It had
promulgated public emergency on July 5, 1957, and this emergency was duly notified to
the Secretary General of the Council of Europe. The petitioner was suspected to be a
member of outlawed Irish Republic Army (IRA) and indulging in terrorist activities. He
was arrested on July 11, 1957, and was detained till December 11, 1957. On September
13, he applied for a writ of habeas corpus, which was rejected by the High Court. His
appeal to the Supreme Court of Ireland, alleging that not only the law of the Republic but
the provisions of the European Convention on Human Rights were also violated, was
rejected on November 28, 1957. After the Supreme Court gave the reasoned judgment on
December 3, he moved to the European Commission for his detention and arrest in
violation of Art. 5 of the Convention. He was, however, freed on December 11, 1957,
after giving an undertaking of good behaviour before the Detention Commission in
Ireland.
The Commission found that Lawless’s arrest and detention was not in accordance with
Art. 5 of the Convention, which requires the trial of a detainee within a reasonable time,
and he must be produced before a competent legal authority. But due to the public
emergency declared by it in July 1957, the Government of Ireland did not act in
contravention of Art. 15(1) of the Convention, which allows a State party to take
measures derogating from its obligations under the Convention “to the extent strictly
required by the exigencies of the situation” in time of war or other public emergency
threatening the life of the nation. The Commission concluded that the facts did not
disclose any breach of the Convention by the Irish Government.
______________________

61 31 ILR 276; 56 AJIL187 (1962).

The Commission sent its report to the Committee of Ministers on February 1, 1960, and
subsequently on April 1, 1960, submitted the case to the Court to get an authoritative
interpretation of Art. 15 of the Convention. The case centred on two issues: one, dealing
with the question of procedure concerning the complainant’s right to present his
viewpoint before the Court and to receive a copy of the Commission’s report, and two,
with the merits of the case, i.e., the allegation of breach of his human rights.
Since an individual did not have locus standi before the Court, and his case was
represented by the Commission, Rule 76 to its rules of procedure was adopted by the
Commission to have some sort of representation of the individual in the case. According
to this Rule, in such cases, the Commission’s report is communicated to the petitioner,
who must keep the document secret. He may then submit his observations to the
Commission within a time limit. The Commission, in its discretion, decides about the
action to be taken in respect of the observations. This may be transmitted to the Court as
one of the Commission’s documents. In this case, the Commission sought the permission
of the Court to submit it as one of the Commission’s documents, which was objected to
by the Irish Government as it amounted “to bestow on the individual the quality of a
party before the Court”. It also argued that transmitting the report to the applicant is
against Art. 31 of the Convention and in contravention of the Commission’s obligation of
secrecy and that Rule 76 is ultra-vires. But the Commission’s President submitted that the
government and the petitioner are on an equal footing before the Commission. While the
government would have every opportunity to challenge the contents of the report before
the Court, an individual would not have such an opportunity under the existing rules, and
that must be provided by some means.
In its judgment on preliminary objections on November 14, 1960, the Court implicitly
accepted the validity of Rule 76. It recognised the complainant’s right to receive a copy
of the report with a proviso that he must not publish it. This set a precedent for the future.
On the Commission’s request to submit the applicant’s observations on the report, the
Court ruled that it is in the interest of the proper administration of justice that the Court
should have the knowledge of and, if need be, take into account the applicant’s point of
view.62 In its final decision on April 7, 1961, on the question of procedure, the Court
also observed that “it was for the Commission ... to invite the Applicant to place some
person at its disposal [to apprise the Court the Applicant’s viewpoint on specific
points]”.63 The Court, however, did not consider the written observations of the
applicant as part of the proceedings of the case. On the decision on merits of July 1, 1961
in the Lawless case, the Court upheld the validity of the complainant’s arrest and
detention without trial by a public emergency, threatening the life of the respondent
country, Ireland, within the meaning of Art. 15 of the Convention.64
Rule 30 of the Revised Rules of the Court of November 24, 1982 had expressly permitted
separate legal representation of applicants in proceedings before the Court. The issue was
subsequently settled by Protocol 9 of 1990, whereby the NGOs, individual and groups of
______________________
62 Yb.E. Conv. HR (1960) 474, at p. 516.
63 Ibid., (1961) 442-444.

64 31 ILR (1960) p. 290. For the Court’s ruling on merits, see 56 AJIL 187-210
(1962); 31 ILR 276 at p. 290 (1960).

individuals, after submitted a petition to the Commission, got the right to bring a case
before the Court, But such a case had to be first submitted to a panel composed of three
members of the Court. A judge of the State against whom a complaint has been made will
also sit as an ex-officio member of the panel. It is only if the panel had concluded that the
case raises a serious question affecting the interpretation or application of the Convention
and warrants a serious consideration by the Court, that the case was decided by the
Court.65 Under Protocol 11, an individual can make the application directly to the Court,
which will be examined by a committee of three judges of the Court. If found admissible,
it will be decided by a Chamber of 7 judges and in a Grand Chamber of 17 judges (Art.
27). The Court may only deal with a case after all domestic remedies have been
exhausted, within a period of six months from the date on which the final decision was
taken. An individual application may be declared inadmissible if the Court considers that
(a) the application is incompatible with the provisions of the Convention or the Protocols
thereto, manifestly ill- founded, or an abuse of the right of individual application; or (b)
the applicant has not suffered a significant disadvantage.
The Court’s influence in inculcating the respect and observance of the rights enshrined in
the Convention is singular. Often its decisions have led to changes in the national
legislation. For example, the Belgian Penal Code was amended after the Court decided
the De Becker’s case.66 De Becker was a journalist by profession who worked with the
Germans during the War. After the War, he was charged under the Belgian law (Art. 123
Series of the Penal Code) for collaborating with the Germans during the occupation of
Belgium, and was imprisoned in 1947. He was freed in 1954 on the basis of an
undertaking, and was asked to leave the country, and not to indulge in the profession of
journalism and politics. He filed a petition to the Commission after Belgium became a
party to the Convention on June 14, 1955. The Commission held the application
admissible because De Becker had been placed under a continuing disability, as the
forfeiture had been imposed for life and could plausibly be said to constitute a breach of
his right to freedom of expression under Art. 10 of the Convention. The Commission
rejected Belgium’s contention of ratione temporis for the non-admissibility of the
application.
The Court has also held many national laws and decisions in contravention of the
Convention. For example, in the case of Young, James and Webster,67 the British Rail’s
“closed shop” agreement with three rail unions, making the membership in one of them
as a pre-condition for employment,
______________________
65 The problem of having access to the views of the individuals was also
encountered by the ICJ in the Administrative Tribunal of the ILO case (Advisory
Opinion) (1956) ICJ Rep., p. 77. Before the ICJ, individuals have no locus standi (Art. 34
of the Statute) from which inequality flows. The UNESCO sought the advisory opinion
on the validity of certain decisions of the ILO tribunals. The ICJ got access to the
observations of the officials through the intermediary of the UNESCO and also dispensed
away with the oral proceedings. It observed, “The judicial character of the Court requires
that both sides directly affected by these proceedings should be in a position to submit

their views and arguments to the Court.... The principle of equality of the parties follows
from the requirement of good administration of justice”.
66 (1958) 25 ILR 172 (Commission); (1962) 33 ILR 205 (Court).
67 E. Court H.R., Series A, Vol. 44, Judgment of Aug. 13, 1981.

was found to be in contravention of Art. 11(1) (right of association) of the Convention. In

The Sunday Times (Thalidomide) case (1979), the Court ruled that the injunction
imposed by the House of Lords against the petitioner in A.G. v. Times Newspapers
Ltd.68 restraining the petitioner from publishing about the detrimental effects of the drug
thalidomide (the matter was sub-judice) on the grounds of contempt of court, was in
contravention of Art. 10 (freedom of expression) of the Convention.
The Court is also empowered to give advisory opinions at the request of the Committee
of Ministers on certain legal questions related to the interpretation of the Convention and
the Protocols thereto, but such opinions shall not deal with any question relating to the
content or scope of the rights or freedoms defined in the Convention and the Protocols
(Art. 47).
B. American Convention on Human Rights, 1969

The American Convention on Human Rights (ACHR, also known as the Pact of San
Jose) draws upon the European Convention on Human Rights, the American Declaration
of the Rights and Duties of Man, 1948, and the International Covenant on Civil and
Political Rights, 1966. Only States members of the Organisation of American States
(OAS) have the right to become parties.69
The Convention guarantees primarily the civil and political rights, and except a reference
in Art. 26 of the Convention to economic, social, educational, scientific and cultural
standards of the OAS Charter, it does not deal with these rights. It has been supplemented
by two protocols: the 1988 Additional Protocol to the Inter-American Convention which
provides compulsory system of individual petitions (as under the American Convention)
for the right of education and trade union rights. It came into effect on 16 November
1999 and has been ratified by 14 nations. In June 1990, the Protocol to the American
Convention on Human Rights to Abolish the Death Penalty was adopted and is not yet in
force.
For the enforcement of the Convention rights, there exist two organs: the American
Commission on Human Rights (based in Washington, DC), and the American Court of
Human Rights (based at San Jose, Costa Rica). The Inter-American Commission on
Human Rights was first created in 1960 as an organ of the OAS and was re-established in
1969. It has powers both under the OAS Charter (Arts. 41, 42 and 43) and under the
ACHR. It consists of seven independent experts. The Court is composed of seven judges,
who are elected to six-year terms by the OAS General Assembly and are eligible for
reelection for one additional six-year period. The Court became functional in 1979. The
Court exercises contentious (Arts. 61-63) and advisory (Art. 64) jurisdiction which can be
invoked by any OAS member State, whether a member of the ACHR or not. The
jurisdiction of the Court is optional by a State making a declaration to this effect or by
agreeing to jurisdiction in a particular case. Under the Convention, cases can be referred
to the Court by either the Inter-American Commission on Human Rights or
______________________
68 [1974] AC 273; [1973] 3 All ER 54.

69 At present, out of 35 members of the OAS, 20 are parties to the Convention. Most
of the English- speaking Caribbean nations, Canada and the United States are not parties
to it.

a State party. In contrast to the European human rights system, individual citizens of the
OAS member States are not allowed to take cases directly to the Court.
While exercising its adjudicatory jurisdiction, the Court can award damages70 and non-
monetary reparations.71 The advisory jurisdiction is related to the interpretation of
ACHR or other treaties “concerning the protection of human rights in the American
State”. Thus, the Court’s task is not entirely related to giving effect to the American
Convention but to any other treaty, and by any State, whether it is a member or a non-
member to such a treaty. This is a confusing and vague proposition.72
The ACHR provides for the compulsory system of individual petitions. The Commission
has the power to hear such petitions ipso facto against States parties (Art. 44). The
Commission is also empowered to deal with inter-State petitions, provided that both the
State-parties have made declarations recognising the Commission’s competence in this
regard (Art. 45).73 Individual petitions can be made by “any person or group of persons,
or non-governmental entity legally recognised in one or more member States” of the
OAS (Art. 44). Their admissibility is subject to the exhaustion of local remedies and a
six-month time limit thereafter (Art. 46). The Commission attempts to secure a friendly
settlement after hearing written and oral arguments (Art. 48). If no settlement could be
secured, the Commission sends its report with its conclusions to the concerned State (Art.
50). If not settled, the case can be submitted to the Court by the Commission, or by the
State for a binding decision, provided the State concerned has accepted the Court’s
jurisdiction. Proceedings of the Court are held in written and oral phases wherein the
concerned State, victims or their next-of-kin, the other member states, and OAS
headquarters submit their brief and participate in the proceedings. If within three months,
the case is not referred to the Court for lack of jurisdiction, the Commission prepares a
second report with its “options and conclusions”, and if appropriate, makes
recommendations and prescribes the time-limit to remedy the situation (Art. 51). After
the expiry of the prescribed time limit, the Commission must take stock of the situation
and, if necessary, to publish its second report (prepared under Art. 51 fiat). This
procedure observed in individual petitions is also followed in inter-State petitions (Art.
45).
Because of its heavy dependence on the OAS and its Charter, the Commission has
exercised jurisdiction in respect of individual petitions coming from the non-members of
the ACHR. This was the reason to entertain petitions against the United States which is
not a party to the Convention
______________________
70 In the first case decided by the Court, Velasquez v. Honduras (Judgment of July
28, 1988), 28 ILM 294 (1989), the Court decided that Honduras has violated Arts. 4
(Right to life), 5 (Right to physical, mental and moral integrity) and 7 (Right to personal
liberty and security) and ordered to pay “fair compensation” to the next of kin of the
victim and to make declaratory decrees and orders.
71 In Barrios Altos Case, Judgment of November 30, 2001, Inter-Am Ct. H.R. (Ser.
C) No. 87 (2001), which related to the massacre of 15 persons in Lima, Peru, at the hands
of the state-sponsored Colina Group death squad in November 1991, the Court ordered
for the payment of damages to the families of victims, free health care and various forms

of educational support; to repeal two controversial amnesty laws; to establish the crime of
extrajudicial killing in its domestic law; to widely publish the Court’s judgement; and to
publicly apologise for the incident.
72 See the Advisory Opinion in Other Treaties case, 22 ILM 51 (1983).
73 Eight parties have made declarations so far.

but is bound by the American Declaration of the Rights and Duties of Mart74 The
Commission may also initiate a country study if the human rights situation there so
warrants. It may include an “on site” investigation with the consent of the concerned
State (Art. 18 of the OAS Charter).
C. African Charter on Human Rights and Peoples’ Rights, 1981

The heads of the Organisation of African Unity (OAU, now replaced by the African
Union), adopted the African Charter on Human Rights (also known as the Banjul
Charter) on June 17, 1981.This is the first human rights document that emphasised upon
the peoples’ rights (Arts. 19-24), i.e., the “third generation” rights, viz., right of self-
determination, the right to freely dispose of their wealth and natural resources etc. Every
individual has been guaranteed certain rights (Arts. 3-18) and subjected to duties (Arts.
27-29). But it does not have any deviation clause akin to Art. 15 of the European
Convention (for war or other public emergency).
For the enforcement of the rights and duties under the Charter, there exists the African
Commission on Human and Peoples’ Rights whose function, to a large extent, is
promotional, though it also has the enforcement role (Art. 45). Initially, there was an
absence of any judicial or quasi-judicial organ, but in 1998, a Protocol to the Charter was
adopted whereby an African Court on Human and Peoples’ Rights was to be created. The
Protocol came into effect on 25 January 2005.75
The Commission, which is tasked with oversight and interpretation of the Charter, does
not enjoy any substantive powers to bind the States with its findings. The Commission is
composed of 11 members who serve as independent experts. The Charter provides a
compulsory system of State petitions, whereby a State may file a complaint against
another State to the Commission about the alleged violations of the Charter after
exhausting local remedies, or following the bilateral negotiations, or directly (Arts. 47-
54). In the light of written and oral representation, the Commission endures to achieve an
“amicable solution”, failing which it must send its report with its findings to the
defendant State and the OAU Assembly of Heads of States and Governments, along with
its recommendations (Arts. 52-53).
The Commission is also empowered to receive and consider communications from
individuals and NGOs (Arts. 55-56). It is only when a complaint reveals the existence of
“a series of serious or massive violations of human and peoples’ rights”, the Commission
will draw the attention of the OAU Assembly, which “may then request the Commission
to undertake an in-depth study of these cases and make a factual report accompanied by
its findings and recommendations” (Art. 58). The reports made by the Commission under
the State or non-State petitions remain confidential unless the OAU Assembly decides
otherwise (Art. 59). Each State party has a duty to report on the legislative measures for
the implementation of the Convention provisions every two years (Art. 62).
______________________
74 Brownlie, op. cit. 45, p. 571, n. 4 et seq. See also Fox, “Death Penalty cases”, 82
AJIL 601 (1988); the Baby Boy case 2 HRLJ MO (1981). In the Death Penalty cases, two
juveniles (under 19 years of age) were sentenced to death by States of South Caroline and
Texas. The Commission’s request to stay the execution was not complied by the US and

the Federal Government expressed its lack of jurisdiction, and the two concerned States
ignored the request.
75 Judges to the African Court of Justice were appointed in January 2006 but the
relationship between the newly created Court and the Commission is yet to be
determined.

IV. ENFORCEMENT OF HUMAN RIGHTS IN INDIA

Human rights enshrined in the Universal Declaration find an ample place in the Indian
Constitution under Ch. III on Fundamental Rights, and Ch. IV on the Directive Principles
of State Policy. Chapter III gives effect to civil and political rights, and in Ch. IV,
economic, social and cultural rights find their mention. Thus, the Constitution gives
effect to the rules of equality regardless of any distinction on any ground, right to life and
liberty, freedoms of expression, movement, association, and to practice any profession, or
to carry on any occupation, trade or business, and freedom of religion. It abolishes
untouchability, and allows special laws in favour of women and children, and prohibits
exploitation of human beings and employment of children in factories. The Constitution
also ensures equal pay for equal work for both men and women, and the right to an
adequate means of livelihood to all citizens. The Constitution, thus, in many of its
provisions, gives effect to first and second generations rights incorporated in the
Universal Declaration. India became a party to both the International Covenants on
Human Rights by ratifying them on March 27, 1979, but it has not ratified both the
Optional Protocols to the Covenant on Civil and Political Rights.
But all the rights in these Covenants are not covered under the Constitution.
Nevertheless, the Supreme Court of India has expanded the meaning of already accepted
rights under the Constitution, covering the rights recognised in the Covenants. Thus, the
Court has recognised the right to go abroad.76 The right of a person to be tried without
undue delay has been recognised as part of the right to life and liberty under Art. 21 of
the Constitution in Hussainara Khatoon v. Home Secretary, State of Bihar.77 The right to
have access to legal assistance78 and the right of prisoners to be treated with humanity79
have been similarly recognised under Art. 21. Right to education has been specifically
adopted as a fundamental right by the Constitutional (86th Amendment Act) Act, 2002,
which has been re-enforced by the Right to Education Act 2009.80
However, India is a party to many international conventions, including the Convention on
the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW). To
give effect to its international commitments on women, the Parliament enacted the
Maternity Benefits Act, 1961 and the Equal Remuneration Act, 1976. It also amended in
1992, the Citizenship Act, 1955, in order to confer Indian citizenship on a child born to
an Indian mother outside
______________________
76 See Menaka Gandhi v. Union of India, AIR 1978 SC 622; see also Satwant Singh
v. Assistant Passport Officer, New Delhi, AIR 1967 SC 1836.
77 AIR 1979 SC, p. 1360; ibid., p. 1369; Ibid., p. 1377. See also, Mantoo Mazumdar
v. State of Bihar, AIR 1980 SC 1360.
78 See M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548; see also Suk Das v.
Union Territory of Arunachal Pradesh, AIR 1986 SC 91.
79 Charles Shobraj v. Supdt., Central Jail, Tihar, New Delhi, AIR 1978 SC 1514;
Ramesh Kaushik v. B.L. Vig, Supdt., Central Jail, New Delhi, AIR 1981 SC 1767.
80 The Right of Children to Free and Compulsory Education Act or Right to
Education Act (RTE) 2009, came into force on April 1, 2010. The Act was adopted in
pursuance of Article 21 A, which was added to the Constitution of India by

Constitutional (86th Amendment Act) Act, 2002, that made education a fundamental
right for every child in the age group of 6-14 years.

India. This was done to grant women equal rights with men regarding the nationality of
their children. To oversee the human rights implementation, the government has
established two Commissions under the Acts of Parliament: the National Commission on
Women and the National Human Rights Commission, which became operative in 1992
and 1993 respectively. Their main task is to make reports to the government on human
rights violations in a particular situation. Individuals or groups of individuals can make
complaints or petitions to the Commission. But the Commissions do not enjoy any power
beyond making reports after investigating the case situations. The NHRC, however, has
ordered for the payment of interim compensation in certain cases by the State
governments of the perpetrator. 81
The international instruments, viz., the Universal Declaration of Human Rights and
International Covenant on Civil and Political Rights came for examination by the courts
in India. The Supreme Court expressed its opinion on the enforceability of the Universal
Declaration at the municipal level. In the ADM Jabalpur v. Shukla,82 the Court rejected
the argument that the Declaration was a part of the municipal law of India. In legal terms
also, it is not binding for being merely a “declaration” and not being legislated by
India.83 But, on the other hand, in Keshavananda Bharti v. State of Kerala, Sikri, J
observed:
I am unable to hold that these provisions show that some rights are not natural or
inalienable rights. As a matter of fact, India was a party to the Universal Declaration of
Rights and that Declaration describes some fundamental rights as unalienable.84
It cannot be denied that the Universal Declaration has held a bearing on the construction
of the provisions of the Constitution.
In Jolly George Vergese v. Bank of Cochin,85 the Covenant on Civil and Political Rights
was referred by the Court. The issue before the Court was whether a judgment debtor
could be arrested and detained in prison in execution of a money decree, or for failing to
fulfil contractual obligations. For this purpose, while interpreting Sec. 51 of the Civil
Procedure Code (Power of the Court in execution of decrees), Justice Krishna Iyer
referred to Art. 11 of the Covenant which reads, “No one shall be imprisoned merely on
the ground of inability to fulfil a contractual obligation”. Accordingly, he opined that
imprisonment of an honest and bonafide judgment debtor in execution of a money decree
is violative of Art. 11 of the Covenant and Art. 21 (Protection of Life and Personal
Liberty) of the Constitution of India.
In Francis Coralie Mullin case,86 the Supreme Court read Art. 7 of the International
Covenant on Civil and Political Rights and held that the right to live with basic human
dignity was implicit
______________________
81 For example, in Rakesh Kumar Vij (against state of UP 1996-97), the
Commission ordered for the payment of Rupees 10 lakhs as interim compensation by the
State of Uttar Pradesh beside ordering the prosecution of the police officers responsible
for torturing the victim and the doctors for giving fabricated report about the status of the
injuries suffered by the victim. In State of Punjab cases of disappearance and mass
graves, NHRC ordered the payment of compensation and action against the erring
officials.

82 AIR 1976 SC 1207.

83 For more on the subject to give internal effect to an international instrument, see
Ch. 3 above.
84 AIR 1973 SC 1461 at p. 1536.
85 AIR 1980 SC 470.
86 Francis Coralie Mullin v. The Adm. Union Territory of Delhi, AIR 1981 SC 746.

in the right to life guaranteed under Art. 21 of the Constitution and it included the right
not to be subjected to torture or to cruel, inhuman or degrading punishment or treatment.
However, now the courts are more explicit in taking note of international treaties to
which India is a party, particularly on human rights, to expand the scope of the
constitutional provisions on human rights. The Court has resorted to the concept of
‘legitimate expectations’ in the absence of contrary legislative provisions - making the
international conventions and norms as a part of domestic law. This has enabled the
Supreme Court to import treaty norms/rules of international law in the domestic arena till
the Parliament enacts the law on that subject. The Court invoked this doctrine in Vishaka
v. State of Rajasthan,87 in which the issue before the Court was regarding ‘sexual
harassment’ of women at the workplace. The CEDAW and the Resolution of the Fourth
World Conference on Women were relied upon to construe the nature and ambit of
constitutional guarantee of gender equality. The Court observed:
In the absence of domestic law occupying the field ... the international conventions and
norms are significant for the purpose of interpretation of the guarantee of gender equality
in the Constitution. Articles 14, 15, 19(1)(g) and 21 and the safeguards against sexual
harassment implicit therein...
[a]ny international convention not inconsistent with the fundamental rights and in
harmony with its spirit must be read into these provisions to enlarge the meaning and
content thereof, to promote the object of the constitutional guarantee.
The Court further stated that, “It is now an accepted rule of judicial construction that
regard must be had to international conventions and norms for construing domestic law
when there is no inconsistency between them and there is a void in the domestic law”.88
The concept was further reiterated by the Court in PUCL v. Union of India89 and in
Apparel Export Promotion Council v. A.K. Chopa.90
In Apparel Export Promotion Council, the Court categorically stated that in cases
involving human rights violations, ‘the courts must forever remain alive to international
instruments and conventions and apply the same to a given case when there is no
inconsistency between the international norms and the domestic law occupying the
field.91 In PUCL v. Union of India, the issue of compensation to a victim of unlawful
arrest was before the Court. Jeevan Reddy, J. while referring to Art. 9(5) of the ICCPR
stated that ratification of a convention creates a ‘legitimate expectation’ among the
people that the executive will honour the commitment, but ratification of a treaty is not
equivalent to legislation and it is doubtful whether the court can undertake the legislative
function in the matters of treaties and conventions.92
The Universal Declaration recalls that “the recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family is the foundation of
freedom,
______________________
87 (199 7) 6 SCC 241.
88 Ibid., at 248-9, 251. On the concept of ‘legitimate expectations’ the court relied
upon the Australian High Court’s decision in Minister for Immigration and Ethnic Affairs
v. Teoh, 128 Aus. L.R. 357.
89 People’s Union for Civil Liberties v. Union of India (1997) 3 SCC 433.

90 (1999) 1 SCC 759.

91 Ibid., at 776.
92 Supra note 89, at 442.

justice and peace in the World.” But, in spite of the impressive record of the United
Nations in setting the norms of human rights and setting up the international and regional
machinery for their observance and enforcement, their violations are rampant. This
requires some political will and concerted efforts at the national, regional and
international levels by the States. Though the concept of “domestic jurisdiction” has not
remained absolute in the matter of human rights violations, the national sovereignty is
still a formidable obstacle in the enforcement of these rights. Furthermore, the promotion
of human rights is closely dependent upon many other factors, viz., international peace
and security, and the economic and social development of nations, which require close
cooperation between the States.93
______________________
93 See Louis Henkin, The United Nations and Human Rights, International
Organisation, Vol. XXI, No. 3 (Fredrick A. Praeger, New York), 1965, p. 504 at 512.

Page 281
CHAPTER 11
State Responsibility
I. INTRODUCTORY
The invasion of the vested legal rights of a legal person by another or failure to observe
obligations imposed by law on its subjects creates liability in various forms under any
legal system, which is known as responsibility under international law. International
responsibility is commonly considered in relation to States as the normal subjects of
international law, although other international persons, such as international
organizations are also responsible for their wrongful acts.
As a primary rule of State responsibility, responsibility arises for the breach of an
obligation or legal duty owed under international law by the State. The law on the subject
enunciates the consequences of a breach by a State of an international obligation, and
regulates the permissible responses to such breaches. Unlike the municipal law, where a
fine distinction is drawn between civil and criminal liability and also between liability in
contract and tort in the case of civil liability, international law never had this distinction.
State responsibility is not based upon ‘delict’ in the municipal sense, and ‘international
responsibility’ relates both to breaches of treaty and other breaches of a legal duty.1 In
the “Rainbow Warrior” arbitration, the tribunal affirmed that “in the field of international
law, there is no distinction between contractual and tortious responsibility”.2 As far as
the origin of the obligation breached is concerned, there is a single general regime of
State responsibility. Till recently, law on State responsibility was not well developed and
was not codified. It was mainly talked about in relation to the treatment of aliens by a
State or treaty obligations. But with the adoption of the Draft Articles on Responsibility
of States for Internationally Wrongful Acts (the Draft articles), prepared by the
International Law Commission (ILC),3 after many years of endeavour, the position has
now changed. The General Assembly adopted the Draft articles4 and “commended” them
to the attention of Governments without prejudice to the question of their future adoption
or other appropriate action. The possible adoption of the Draft articles as a Convention
was left unresolved. Due to wide differences between the States about the possible
Convention, the matter was last deferred to the 65th session of the General Assembly in
2010.5 The Draft Articles, together with the ILC commentaries on them, present the law
on State responsibility, discussed here.
______________________
1 I. Brownlie, Public international Law, 7th ed. (Oxford University Press) 2008, at
p. 435.
2 “Rainbow Warrior” 20 UNRIAA 215 at p. 251, para 75 (1990).
3 Draft Articles on the Responsibility of States for Internationally Wrongful Acts,
Report of the ILC on the Work of its Fifty-third Session, UN GAOR, 56th Sess, Supp No
10, p 43, UN Doc A/56/10 (2001).
4 GA Res. 56/83, 12 Dec. 2001.
5 GA Res A/RES/62/61 (2007); and A/RES/56/83 (2001).

The Draft articles lay down the basic rules on State responsibility by way of codification
and progressive development. These rules are concerned with the secondary, and not the
primary, rules of State responsibility, that is to say that “the general conditions under
international law for the State to be considered responsible for wrongful actions or
omissions, and the legal consequences which flow therefrom. The articles do not attempt
to define the content of the international obligations, the breach of which gives rise to
responsibility” which is the function of the primary rules whose codification would
involve restating most of substantive customary and conventional rules of international
law. Thus, rather than setting forth any particular obligations, the Draft on State
responsibility determines, in general, when an obligation has been breached and the legal
consequences of that breach. In this way, they are “secondary” rules that address basic
issues of responsibility and remedies available for breach of “primary” or substantive
rules of international law, such as with respect to the use of armed force. The Draft
establishes the (1) conditions for an act to qualify as internationally wrongful; (2)
circumstances under which actions of officials, private individuals and other entities may
be attributed to the State, (3) general defences to liability, (4) the consequences of
liability and (5) admissibility of claims.
The Draft deals only with the responsibility of States for conduct which is internationally
wrongful and not with the obligations of States arising out of acts which are not
prohibited and may even expressly permitted under international law (e.g., compensation
for property duly taken for a public purpose). The Draft also does not deal with the
responsibility of international organizations or of other non-State entities, including
individuals (Arts. 57 & 58 of the Draft). Similarly, the Draft covers the whole field of
State obligations and not only arising out of treaty relationships. The applicable rules of
international law will continue to govern questions of State responsibility not regulated
by the Draft articles (Art. 56). The Draft, nevertheless, is residual in nature, that is, that
the States are free while agreeing to be bound by a particular rule to specify the
consequences of the breach of the rule and thereby exclude the ordinary rules of
responsibility (Art. 55 - Rule of lex specialis of the Draft). Thus, the Draft leaves a wide
area of State responsibility to be governed by the customary rules on State responsibility.
The Draft is divided into four parts with 59 articles. Part One (Arts. 1-27) - The
International wrongful act of a State, deals with the requirements for the international
responsibility of a State to arise. Part Two (Arts. 28-41) - Content of the international
responsibility of a State, deals with the legal consequences of a State for its
internationally wrongful act, in particular as they concern cessation and reparation. Part
Three (Arts. 42-54) - The implementation of the international responsibility of a State,
identifies the State or States which may react to an internationally wrongful act and
specifies the modalities by which this may be done, including, in certain circumstances,
by taking countermeasures as necessary to ensure cessation of the wrongful act and
reparation for its consequences. Part Four (Arts. 55-59) - contains certain general
provisions applicable to the articles as a whole.
As to primary rules, State responsibility arises for the breach of any obligation owed by a
State under international law. A State is responsible, for example, if it fails to honour a
treaty, if it violates the territorial sovereignty of another State, if it damages territory or

property of another State, if it employs armed force against another State, if it injures the
diplomatic representatives of another State or if it mistreats the nationals of another State.

Page 283 STATE RESPONSIBILITY
It is, however, in the treatment of aliens that the State responsibility has been much
highlighted by most of the scholars, which makes a small part of the State responsibility
in general under international law. With the development of human rights law, much of
the issues related to treatment of aliens have been addressed. It is important to note while
considering a case of State responsibility the limits between international law and
municipal law. Responsibility under international law arises (i) out of the breach of duty
or non-performance of an international obligation by the State, even though the facts
bring into question the rights and duties under municipal law between the citizen of the
claimant State and the State alleged to be responsible; (ii) the authority or competence of
the State agency through which the wrong has been committed, even though it has
exceeded its power under municipal law, is no defence to the State’s responsibility under
international law: even though under municipal law, State will not be responsible. This
gives the occasion for international law to prevail over municipal law.
II. SCOPE OF INTERNATIONAL RESPONSIBILITY

Article 1 of the Draft articles provides: “Every internationally wrongful act of a State
entails the international responsibility of that State.” Historically States have been the
primary subjects of international law; it is upon them that most obligations lay and on
whom the burden of compliance principally rests. But there can be other legal persons
than States, who can also be responsible under international law. In the Reparation for
injuries case,6 the ICJ affirmed the international personality of the United Nations, which
is capable of possessing rights and duties, and can bring international claims. The
potential responsibility for the conduct of the organs and agents of international
organizations was also affirmed by the Court in the Cumaraswamy case.7 Since special
considerations, such as the implementation of these obligations (viz., in relation to the
jurisdiction of international courts or tribunals)8 remain relevant, the Draft articles deals
only with the responsibility of States.
So far as the individuals, corporations and other groups are concerned, their position,
however, is not clear. But since the end of the Second World War, international
responsibility of individuals in the criminal field has seen remarkable developments. The
Nuremberg and Tokyo trials, the establishment of the International Criminal Tribunals
for Yugoslavia (1993) and Rwanda (1994), and then the establishment of International
Criminal Court (2002) have established the responsibility of individuals for their criminal
acts. Art. 58 of the Draft articles makes it clear that the “individual responsibility under
international law of any person acting on behalf of a State” is distinct from the State
responsibility, which is not limited only to criminal responsibility and thus civil
responsibility of the individuals cannot be ruled out. But there can be occasions when the
individuals have committed the wrongful acts as State officials, in which case, the State
will also be internationally responsible for its failure to stop those acts. So far there has
been practically no development on civil responsibility of
______________________
6 (1949) ICJ Rep. p. 174, at p. 184.
7 Difference Relating to Immunity from Legal Process of a Special Rapporteur of
the Commission on Human Rights, (1999) ICJ Rep. p. 62, at pp. 88-89, para 66.

8 Under the ICJ Statute, Art. 34, only States can be parties to a case before the
Court.

individuals or corporations for breaches of international law.9 On the other hand,

criminal responsibility of States under international law has not been clearly established
or accepted, even though the act is criminal in nature, such as genocide or war crimes. In
such cases, the individuals are made criminally liable, even if they may be acting in their
official capacity and on the perceived interests of the State.10 On the other hand,
possibility of individuals seeking remedies against States responsible for serious breaches
of international law, such as genocide, war crimes, or denial of fundamental human rights
also remain.
But serious breaches of peremptory norms of international law (Jus cogens) by a State,
which involves a ‘gross or systematic failure by the responsible State to fulfil’ such an
obligation, impose an obligation on all other States to refrain from recognizing as lawful
the situation created thereby or from rendering aid and assistance in maintaining it.11 In
the advisory opinion on Legal Consequences of the Construction of a Wail in the
Occupied Palestine Territory, the International Court of Justice held that, given the
character and the importance of the rights and obligations involved, other States were
under an obligation not to recognize the illegal situation resulting from the construction
of the Wall, and were under an obligation not to render aid and assistance in maintaining
the situation created thereby, as well as an obligation “ to see ... that any impediment,
resulting from the construction of the wall, to the exercise by the Palestinian people of its
right to self-determination is brought to an end.” The Court further stated that the General
Assembly and the Security Council should also consider what further action is required to
bring to an end the illegal situation resulting from the construction of the wall.12
Principle enshrined in Art. 1 of the Draft articles has been applied by the Permanent
Court of International Justice in number of cases. In Charzow Factory case, the Court
stated: “It is a principle of international law that the breach of an engagement involves an
obligation to make reparation.”13 In the Phosphates in Morocco case, PCIJ affirmed that
when a State commits
______________________
9 Under the Alien Tort Claims Act (28 USC § 1350) of the United States, private
parties (US or foreign) can be sued for torts occasioned ‘in violation of the law of
nations’ committed anywhere against aliens. The case law makes a distinction under the
Act between corporate complicity with governmental violations of human rights, and
those violations (e.g. genocide) which do not require any governmental involvement or
State action, see Kadic v. Karadzic 70 F.3d 232 (1995). See, James Crawford & Simon
Olleson, The Nature and Forms of International Responsibility Ch. 15, in Malcolm D.
Evans (Ed.) International Law, 2nd ed. (Oxford University Press) 2006, p. 451, at 454, fn.
9.
10 See Rome Statute of the ICC, Arts. 27, 33. The ICJ has, however, held that
serving foreign ministers (and by implication, serving heads of State and government,
and other senior ministers) enjoy absolute jurisdictional immunity from prosecution while
in office in national courts of other States. See Arrest Warrant of 11 April 2000
(Democratic Republic of Congo v. Belgium), (Preliminary Objections and Merits),
(2002) ICJ Rep. p. 3, paras 51-61. The jurisdictional immunity, however, lasts so long as

the individual holds office. See also ex parte Pinochet Ugarte (No. 3) (Pinochet III)
[2001] 1 AC 147.
11 Arts. 40(2) and 41(2) of the Draft articles; see also the Stimson doctrine on non-
recognition, adopted by the League of Nations in March 1932 after Japan invaded and
conquered Manchuria
12 Legal Consequences of the Construction of a Wall in the Occupied Palestine
Territory, (2004) ICJ Rep. p. 136, paras 159, 160. See also the Legal Consequences for
States of the Continued Presence of South Africa in Namibia case, (1971) ICJ Rep., p. 16.
13 Factory at Charzow (Jurisdiction), PCIJ Rep. Series A, No. 9, p. 21 (7927); and
ibid., (Merits), PCIJ Rep., Series A, No. 17, p. 29 (1928).

an internationally wrongful act against another State, international responsibility is

established “immediately as between the two States.”14 The International Court of
Justice (ICJ) has also applied this principle on several occasions.15 Even the arbitral
tribunals have repeatedly affirmed this principle. In the Spanish Zone of Morocco
Claims, Judge Huber said: “Responsibility is the necessary corollary of a right. All rights
of an international character involve international responsibility. If the obligation in
question is not met, responsibility entails the duty to make reparation.”16 In the Rainbow
Warrior case,17 the tribunal stated that “any violation by a State of any obligation, of
whatever origin, gives rise to State responsibility.”
III. ELEMENTS OF STATE RESPONSIBILITY

As stated above, the international responsibility of a State results from an omission or
commission of an internationally wrongful act. Article 2 of the Draft articles states that
an internationally wrongful act of a State presupposes that there is a conduct consisting of
an action or omission which (a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State. Thus, the presence of
these two elements in principle will entail the international responsibility of a State. This
has been affirmed by the World Court in number of cases.18 In the Dickson Car Wheel
Company case, the Mexico-United States General Claims Commission noted that the
condition required for a State to incur international responsibility is “that an unlawful
international act be imputed to it, that is, that there exist a violation of a duty imposed by
an international juridical standard”.19 In some cases, however, the respondent State may
justify its action by claiming self-defence or force majeure for its non-performance.
The three elements important in State responsibility are: imputability or attribution,
breach (causation) and the absence of any valid justification or legal excuse.
A. Conduct Attributable to the State

Articles 4-11 of the ILC’s Draft articles deal with acts that can be attributed to a State.
Conduct attributable to the State can consist of actions or omissions. For example, in the
Corfu Channel case, ICJ held the omission on the part of Albania, that it knew, or must
have known, of the
______________________
14 PCIJ Rep, Series A/B, No. 74, p. 10, at p. 28 (1938).
15 See, for example, the Corfu Channel case (Merits) (1949) ICJ Rep. p. 4, at p. 23;
Military and Paramilitary Activities in and against Nicaragua case [Merits), (1986) ICJ
Rep. p. 14, at p. 142, para 283, and p. 149, para 292; Gabcikovo-Nagymaros Project case,
(1997) ICJ Rep. p. 7, at p. 38, para. 47.
16 Spanish Zone of Morocco Claims (Great Britain v. Spain), (1931), 2 RIAA 615.
17 Op. cit. 2.
18 For example, PCIJ in Phosphates in Morocco, PCIJ, Series A/B, No. 74, p. 10 (1938);
the ICJ in the United States Diplomatic and Consular Staff in Tehran, (1980) ICJ. Rep, p.
3, at p. 29, para. 56; Military and Paramilitary Activities in and against Nicaragua (1986)
ICJ Rep. p. 14, pp. 117-118, para. 226; and Gabcikovo-Nagymaros Project (1997) ICJ
Rep. p. 7, p. 54, para. 78.

19 Dickson Car Wheel Company (U.S.A.) v. United Mexican States (1931) 4 RIAA 669,
at p. 678.

presence of the mines in its territorial waters and did nothing to warn third States of their
presence, was a sufficient basis for Albanian responsibility.20
The State is like a corporation under municipal law, a legal entity with full authority to
act under international law. Like corporations, States also act through their organs and
agents. “States can act only by and through their agents and representatives.”21 For
particular conduct to be characterized as an internationally wrongful act, it must first be
attributable to the State to create its responsibility generally or in specific circumstances.
An “act of the State” to be attributable must involve some action or omission by its actor
or actors. The question is which persons should be considered as acting on behalf of the
State. The official position of a person is of no consequence for creating responsibility of
the State for conduct allegedly in breach of international obligation. Some senior officials
under international law enjoy inherent authority to bind the State, viz., Head of the State,
head of the Government, foreign minister and diplomats in certain circumstances, cf. Art.
7 Vienna Convention on the Law of Treaties), and some act on the basis of ostensible
authority. But for the purposes of State responsibility, any State official, at any level, may
commit an internationally wrongful act which is attributable to the State. The level of
seniority of the relevant official in the State hierarchy is inconsequential, and as long as
he or she is acting in official capacity, the State responsibility will be there. Further, there
is no distinction in this regard between the legislative, executive or judicial organs (Art. 4
(2), Draft articles).22 The responsibility is not limited to whether the act was
“commercial” (acta jure gestionis) or “act of State”. Likewise, the responsibility arises
equally for the acts of organs of the central government and to those of regional or local
units. In the LaGrand case, International Court said that “the international responsibility
of a State is engaged by the action of the competent organs and authorities acting in that
State, whatever they may be”. It stated that it is the responsibility of the United States to
stop the execution of the LaGrand and “the Government of the United States is ... under
the obligation to transmit the present Order to the Governor of Arizona [who] is under the
obligation to act in conformity with the international undertakings of the United
States.”23
But while the State remains free to determine its internal structure and functions through
its own law and practice, international law has a distinct role. For example, the conduct of
certain institutions performing public functions and exercising public powers (e.g., the
police) is attributed to the State even if those institutions are regarded in internal law as
autonomous and independent of the executive government. Conduct engaged in by
organs of the State
______________________
20 Corfu Channel (Merits), (1949) ICJ Rep, p. 4, at pp. 22-23. In the United States
Diplomatic and Consular Staff in Tehran, op. cit. 18, pp. 31-32, paras. 63 and 67, the ICJ
held that the responsibility of Iran was entailed by the “inaction” of its authorities which
“failed to take appropriate steps”, in circumstances where such steps were evidently
called for.
21 German Settlers in Poland, PCIJ Rep, Series B, No. 6, p. 22 ((1923); Commentary
to Art. 2. Draft articles, op. cit. 3.

22 Difference Relating to Immunity from Legal Process of a Special Rapporteur of

the Commission on Human Rights , op. cit. 7, p. 87, para. 62. See also Certain German
Interests in Polish Upper Silesia (Merits), PCIJ Rep., Series A, No. 7, at p. 19 (1926).
23 LaGrand, (Provisional Measures), Order of 3 March 1999, (1999) ICJ Rep. p. 9,
para. 28. See also LaGrand (Germany v. United States of America), (Merits) (2001) ICJ
Rep. p. 466, at p. 495, para. 81.

in excess of their competence may also be attributed to the State under international law,
whatever the position may be under internal law (Art. 7, Draft articles). The case of
Rainbow Warrior is in point in which the conduct performed by State agents vis-a-vis
another State for sinking the Greenpeace ship Rainbow Warrior in Auckland harbor by
French agents on 10 July 1985 was attributable conduct. The French Government
subsequently admitted that explosives were planted on the ship by agents on the orders of
the Directorate General of External Security. New Zealand sought and received an
apology and compensation from France for the violation of its sovereignty.24 Thus, the
general rule is that the only conduct attributed to the State at the international level is that
of its organs of government, or of others who have acted under the direction, instigation
or control of those organs, i.e., as agents of the State. The scope of State responsibility for
official acts is broad, and the definition of ‘organ’ for this purpose comprehensive and
inclusive.
International law does not limit attribution to the conduct of the regular officials or
organs of the State and extends to conduct carried out by others who are authorized to act
or who at least act under its actual direction or control. Such conduct will be attributable
to the State only if it directed or controlled the specific operation and the conduct
complained of was an integral part of that operation. The principle does not extend to
conduct which was only incidentally or peripherally associated with an operation and
which escaped from the State’s direction or control. In the Military and Paramilitary
Activities in and against Nicaragua case, the question was whether the conduct of the
contras was attributable to the United States so as to hold the latter generally responsible
for breaches of international humanitarian law committed by the contras. The Court
stated that: “For this conduct [of the contras] to give rise to legal responsibility of the
United States, it would in principle have to be proved that that State had effective control
of the military, or paramilitary operations in the course of which the alleged violations
were committed”.25 In the Tadic case, the Appeals Chamber of the International Tribunal
for the Former Yugoslavia (ICTY), on the other hand, preferred the threshold of “overall
control going beyond the mere financing and equipping of such forces and involving also
participation in the planning and supervision of military operations.” The Tribunals stated
that the “degree of control may, however, vary according to the factual circumstances of
each case.”26 But the legal issues and the factual situation in the Tadic case were
different from those facing the Court in that case. The tribunal’s mandate is directed to
issues of individual criminal responsibility, not State responsibility, and the question in
that case concerned not responsibility but the applicable rules of international
humanitarian law. The distinguishable question was “whether the FRY was using force
through the [Bosnian Serb militia] against [Bosnia-Herzegovina]” to fix the responsibility
of the FRY.27 Conduct of persons or groups is attributable to the State if the person or
groups
______________________
24 Rainbow Warrior (No. 1) (1986), 74 ILR 256; cited in James Crawford and
Simon Olleson, op. cit. 9. at p. 460.
25 Military and Paramilitary Activities in and against Nicaragua, op. cit. 18, at. pp.
62 and 64-65, paras. 109 and 115

26 Prosecutor v. Dusko Tadic, International Tribunal for the Former Yugoslavia,

Case IT-94-1-A: (1999) 38 ILM. 1518, at pp. 1541, 1546, para. 117, 145.
27 See the separate opinion of Judge Shahabuddeen in Prosecutor v. Dusko Tadic,
(1999) 38 ILM. 1518, para 17. See ILC Commentary on Art. 8, Draft articles, p. 48.

have committed acts under the effective control of a State, even if particular instructions
may have been ignored.28
The conduct of private persons is not as such attributable to the State, unless they were, in
fact, acting under the authority or control of the State or the State adopts (i.e., ratifies)
their acts as its own.29 A State may be responsible for the effects of the conduct of
private parties, if it failed to take necessary measures to prevent those effects. For
example, a receiving State is not responsible, as such, for the acts of private individuals in
seizing an embassy, but it will be responsible if it fails to take all necessary steps to
protect the embassy from seizure, or to regain control over it. In the Tehran Hostages
case, the subsequent endorsement of the seizure by students of US embassy in Tehran by
the Iranian authorities made the Iranian State internationally responsible for the acts of
students.30 Similarly, the State will also be responsible if the authorities act in collusion
with the mob, or participate in the mob violence. But the international tribunals require
strong evidence in such collusion.31 But purely private acts will not be attributable to the
State, although it may in certain circumstances be liable for its failure to prevent those
acts, or to take action to punish those responsible.
Acts or omissions of any State organ or an entity empowered to exercise elements of the
governmental authority, acting in its official capacity, is attributable to the State even if
the organ or entity in that capacity may have acted in excess of authority or contrary to
instructions (ultra vires of its authority). A State may be responsible for conduct which is
clearly in excess of authority if the official has used the official position. In the Caire
case, a French national was murdered by two Mexican officers who, after failing to extort
money, took Caire to the local barracks and shot him. The tribunal held that the ultra
vires acts of officials were attributable to the State and stated: “that the two officers, even
if they are deemed to have acted outside their competence ... acted under cover of their
status as officers and used means placed at their disposal on account of that status.” They
must have acted in all appearance as competent officials or organs, as they must have
used powers or methods appropriate to their official capacity.32
Acts that may not be attributable to a State because they were not carried out by its
organs or agents may be chargeable to the State because it failed in some obligation to
prevent the conduct. For example, in the Hostages case, Iran was held to have breached
its obligation to protect the embassy and consular premises and personnel, even prior to
its adoption Of the acts of the occupying students.33 The duty to control a mob is
particularly important when the mob is in some way under the control of authorities.
The above discussion reveals that the governing principle is that the State is responsible
for its own acts, i.e., the acts of its organs or agents, and not for the acts of private parties,
unless their acts can be attributed to the State due to special circumstances warranting
such an attribution. A State may be held responsible for the wrongful act of a third State
where they
______________________
28 Commentary to Art. 8, ibid.
29 See Arts. 9 and 11 of the Draft articles.
30 See United States Diplomatic and Consular Staff in Tehran, op. cit. 18.
31 Janes case (US v. Mexico) (1926) 4 UNRIAA 82.

32 Caire, (1929), 5 UNRIAA 516, at pp. 530, 531. See also the Youmans case (1926)
4 UNRIAA 110; (1927)
21 AJIL 571.
33 United States Diplomatic and Consular Staff in Tehran, op. cit. 18, para 63.

may be acting through a common organ to commit a wrongful act, or may involve
independent conduct by several States, each playing its own role in carrying out an
internationally wrongful act. These rules are cumulative but they are also limitative.
Though the third State will be individually in breach of its own obligation, but a State
cannot shelter behind the involvement of other States in common conduct. It is
responsible if and to the extent that it contributed to that conduct by its own acts. Thus, in
the Corfu Channel case, Albania was held liable for its failure to warn the United
Kingdom of the presence of mines in Albanian waters which had been laid by a third
State.34 Similarly, if a number of States are involved in administering a territory, then
each will be responsible for its part in the common enterprise (joint and several
liability).35 A State is also held responsible for the conduct of an insurrectional
movement which subsequently becomes a government of that State. The conduct of a
movement, insurrectional or other, which succeeds in establishing a new State in part of
the territory of a pre-existing State or in a territory under its administration, shall be
considered an act of the new State under international law (Art. 10). This, however,
makes the acts attributable after the revolution or insurrection succeeds.36
In the absence of a specific undertaking or guarantee (which would be a lex specialis -
Art. 55 Draft articles), a State is not responsible for the conduct of persons or entities in
circumstances not covered by the draft articles. As the Iran-United States Claims
Tribunal has affirmed, “in order to attribute an act to the State, it is necessary to identify
with reasonable certainty the actors and their association with the State”.37
B. Breach of an International Obligation

In determining the responsibility of a State, it is to establish whether given conduct
attributable to a State constitutes a breach of its international obligations incumbent upon
it. Article 12 of the Draft articles states that there is a breach of an international
obligation when the act in question is not in conformity with what is required by that
obligation “regardless of its origin”.38 International obligations may be established by a
customary rule of international law, by a treaty
______________________
34 Corfu Channel, (Merits), (1949) ICJ Rep., p. 4, at p. 22.
35 See Certain Phosphate Lands in Nauru, (Nauru v. Australia), (Preliminary
Objections) (1992) ICJ Rep, p. 240, at pp. 253-255, paras. 31-36, 47. In this case three
States - Australia, New Zealand and United Kingdom had jointly administered Nauru, but
the action was brought against Australia on the “joint behalf’. The Court held that the
possibility of the existence of joint and several liability of three States at the material time
did not render inadmissible a claim brought against only one of them. See also the
Legality of the Use of Force cases between Yugoslavia and the NATO States, e.g.
Yugoslavia v. Belgium, (Provisional Measures), Order of 2 June 1999 (1999) ICJ Rep. p.
124. See Arts. 16-19 Draft articles: Commentary.
36 In the Yeager case, (1987) 82 ILR 178, claimant was held captive by the
‘revolutionary guards’ for several days during the revolution in Iran in 1979. The tribunal
held that though the guards were not recognized under the Iranian law, they were in fact

exercising public functions in the absence of previous State apparatus. Iran was held
responsible for their acts.
37 Kenneth P. Yeager v. The Islamic Republic of Iran, 17 Iran-U.S. C.T.R. 92, at pp.
101-102 (1987).
38 Art. 12 of the Draft Articles states: “There is a breach of an international
obligation by a State 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.”

or by a general principle applicable within the international legal order.39 States may also
assume international obligations by a unilateral act.40 The essence of an internationally
wrongful act lies in the non-conformity of the State’s actual conduct with the conduct it
ought to have adopted in order to comply with a particular international obligation, i.e.,
between the requirements of international law and the facts of the matter. A breach by a
State of an international obligation incumbent upon it gives rise to its international
responsibility.
But a distinction may be drawn between State responsibility arising in the context of
direct State-to-State wrongdoing and State responsibility arising in the context of
diplomatic protection, such as injury to aliens or their property. This may happen even if
the obligation is arising out of a treaty. In the ELSI case, a Chamber of the International
Court of Justice asked the “question whether the requisition was in conformity with the
requirements ... of the FCN Treaty”.41 In this case, dispute arose out of the requisition by
the Government of Italy of the plant and related assets of Raytheon-Elsi S.p.A.,
previously known as Elettronica Sicula S.p.A. (ELSI), an Italian company which was
stated to have been 100 per cent owned by two United States corporations - Raytheon and
Machlett Laboratories (Raytheon). The US demanded compensation from Italy. The
United States based its claim on the breach of a treaty - FCN, but the International Court
of Justice (Chamber) ruled that its claim is in the nature of diplomatic protection and was
thus subject to the requirement of the ‘exhaustion of local remedies’. In the State-to-State
cases, the only issue relevant is whether the conduct attributable to a State causes legal
harm to victim State in violation of international law. Once it is established, the State’s
responsibility is invoked. The breach by a State of an international obligation constitutes
an internationally wrongful act, whatever the subject matter or content of the obligation
breached, and whatever description may be given to the non-conforming conduct.
Prima facie, breach of an international obligation gives rise to State responsibility. But
before a State is held responsible, a number pf other issues also arise, like causation
(fault), injury, resulting damage and the time of its occurrence (for the purposes of non-
retrospectivity). On these aspects, rules of international law are distinct from municipal
law and State cannot take shelter behind municipal law to avoid its responsibility under
international law.
1. Causation, Injury and Damage

Culpa or fault is a debatable issue in attributing responsibility for the breach of an
international obligation by a State. The supporters of ‘objective responsibility’ are of the
view that there should be a casual connection between the act and the breach by the State
or its organs.42 The doctrine
______________________
39 ICJ has recognized “[t]he existence of identical rules in international treaty law
and customary law” on a number of occasions, Military and Paramilitary Activities in and
against Nicaragua , op. cit. 18, at p. 95, para. 177; see also North Sea Continental Shelf
cases, (1969) ICJ Rep. p. 3, at pp. 38-39, para. 63; Gabcikovo-Nagymaros Project, op. cit.
15, at p. 46, para. 57.

40 See Nuclear Tests cases (1974) ICJ Rep. at pp. 253 and 457 where France
undertook by a unilateral act not to engage in further atmospheric nuclear testing.
41 Elettronica Sicula S.p.A. (ELSI) (United States v. Italy) (1989) ICJ Rep., p. 15, at
p. 50, para. 70.
42 I. Brownlie, op. cit. 1, p. 437.

of ‘objective responsibility’ is the responsibility of the State for the acts of its officials or
organs, which may devolve upon it despite the absence of any fault on its part. To make
the State responsible for acts committed by its officials or organs outside their
competence, it is necessary that they should have acted as authorized officials or organs,
or in so acting, they should have used powers or measures appropriate to their official
character.43 On the other hand, in the Corfu Channel case, the International Court of
Justice, while holding Albania responsible on the basis of evidence that Albania had the
knowledge of mine-laying and its failure to give warning in this regard in breach of its
international obligations, stated:
...knowledge of the mine-laying cannot be imputed to the Albanian Government by
reason merely of the fact that a minefield discovered in Albanian territorial waters ... [I]t
cannot be concluded from the mere fact of the control exercised by a State over its
territory and waters that that State necessarily knew, or ought to have known, of any
unlawful act perpetrated therein, nor yet that it necessarily know, or should have known,
the authors. This fact, by itself and apart from other circumstances, neither involves
prima facie responsibility nor shifts the burden of proof.”44
Accordingly, there is no clear rule that responsibility is always based on fault, nor one
that it is independent of it. Hence, there is no clear presumption either way. Where
responsibility is essentially based on acts or omission, like in Corfu Channel case or
Diplomatic and Consular Staff in Tehran case, fault becomes a vital consideration. But if
the act is carried out deliberately, consideration of fault has insignificant role. So,
everything depends on the context and the interpretation of the obligation breached. The
international law on State responsibility, as stated in the Draft articles (2-12), does not
require fault as a pre-requisite before an act or omission be characterized as an
international wrong. But the case law point to the conclusion that fault is necessary
condition for responsibility, having regard to the alleged conduct of the State.43
The role of harm or damage in the law of State responsibility has also been a subject of
debate among the scholars. As evident from the Draft articles, there is no general
requirement of harm or damage before the State responsibility is actually laid down. In
certain situations, mere breach of an obligation is enough to give rise to the responsibility
of the State, such as a minor infringement of the inviolability of an embassy or a consular
mission. On the Other hand, in trans-boundary environment pollution cases, such as river
pollution, the actual damage needs to be established to fix the State responsibility 46
Consequently, the breach of an international obligation by a State is necessary in State
responsibility without always establishing the material harm to another State or person.
The main focus in fixing responsibility in such cases is to avoid repetition of such
conduct in future, rather than seeking compensation.47
______________________
43 In Caire case, (1929) 5 UNRIAA 516 at P. 529, the arbitral tribunal affirmed the
doctrine.
44 Op. cit. 20, at p. 18.
45 Brownlie, op. cit. 1, at pp. 440-441.
46 In Gabcikovo-Nagymaros Project, (1997) ICJ Rep. p. 7, preparations for the
diversion of the Danube was not found to be in breach of treaty until the diversion went

ahead and caused damage to Hungary. See also Lake Lanoux Arbitration (1957) 24 ILR
101. In the case between Costa Rica and Nicaragua, Costa Rica, among others, has
requested the Court to direct Nicaragua not to artificially channel the San Juan River
away from its natural watercourse without the consent of Costa Rica and not to prohibit
the navigation on the San Juan River by Costa Rican nationals, see, ICJ Press Release,
No. 2010/38, 19 November 2010.
47 Crawford & Olleson in Evans Ed., International Law, op. cit. 9, at p. 466.

2. Obligation in force, continuing wrongful acts and the time factor

Article 13 of the Draft articles states the basic principle that “[a]n act of a State does not
constitute a breach of an international obligation unless the State is bound by the
obligation in question at the time the act occurs.”48 Hence, it is important to examine at
what point an obligation entered into force for the State and when it ceased to bind the
State or was terminated. So, if any breach occurs while the obligation was in force for
that State, responsibility will accrue as a result of an internationally wrongful act, and it
will not be affected by the subsequent termination of the obligation, whether as a result of
the termination of the treaty which has been breached or of a change in international
law.49
It is, however, not easy to establish the time when the obligation came into force under
customary international law or when the old rule has been replaced by a new rule.
Another problem in this regard involves determining exactly when, or during what
period, a wrongful act occurred and how long it continued. Wrongful acts may continue
over a period of time, for example, the continued detention of diplomatic and consular
staff in the Hostages case, or the forced or involuntary disappearance of a person contrary
to human rights terms. Other wrongs may be instantaneous, even though their effects may
continue even after the breach. For example, an unlawful killing or expropriating
property have effect at a specific time, the breach occurs at the moment the victim is
killed or the property has been taken over, even though the effects of these breaches are
enduring. In general, such continuing consequences concern the scope of reparation, not
whether there has been a breach in the first place.50
Although the existence and duration of a breach of an international obligation depends
for the most part on the existence and content of the obligation and on the facts of the
particular breach, certain basic concepts are established under Art. 14 of the Draft
articles. These concepts are significant in the matters of jurisdiction of courts in State
responsibility cases. There are certain breaches not extending in time and there are
continuing wrongful acts. A continuing wrongful act, occupies the entire period during
which the act continues and remains not in conformity with the international obligation,
provided that the State is bound by the international obligation during that period.51 For
example, the Inter-American Court of Human Rights has interpreted forced or
involuntary disappearance as a continuing wrongful act, one which
______________________
48 See Judge Huber’s statement in Island of Palmes case (Netherlands v. United
States of America), (1928)
2 UNRIAA 829, at p. 845.
49 See Northern Cameroons case (Preliminary Objections) (1963) ICJ Rep. p. 15, at
p. 35; in the “Rainbow Warrior” arbitration, the tribunal held that, although the relevant
treaty obligation had terminated with the passage of time, France’s responsibility for its
earlier breach remained op. cit. 2, at pp. 265-266. But both aspects of the principle are
implicit in the ICJ decision in the Certain Phosphate Lands in Nauru case. Australia
argued there that a State responsibility claim relating to the period of its joint
administration of the Trust Territory for Nauru (1947-1968) could not be brought decades
later, even if the claim had not been formally waived, see Certain Phosphate Lands in

Nauru (Nauru v. Australia) (Preliminary Objections) (1992) ICJ Rep. p. 240, at pp. 253-
255, paras. 31-36.
50 Commentary, Art. 14, Draft articles.
51 Art. 14(2) of the Draft articles reads: “The breach of an international obligation by
an act of a State having a continuing character extends over the entire period during
which the act continues and remains not in conformity with the international obligation.”

continues for as long as the person concerned is unaccounted for.52 An act does not have
a continuing character merely because its effects or consequences extend in time. It must
be the wrongful act as such which continues. To determine the responsibility, in each of
these cases, the question of the continuance in force of the obligation breached is taken
into account. The consequences of a continuing wrongful act will depend on the context,
as well as on the duration, of the obligation breached. A question common to wrongful
acts whether completed or continuing is when a breach of international law occurs, as
distinct from being merely preparatory or imminent.
The notion of continuing wrongful act has also been applied by the European Convention
on Human Rights (ECHR). For example, under the ECHR, claims can be brought against
a State party for the breaches after the Convention entered into force for that State
(ratione temporis), and an individual could also bring a claim against the State party
previously if the State had accepted the right of individual petition.53 But if the breach of
the Convention, committed before the State acceded to the Convention, State may still be
held responsible, if the breach continues even after the State became a party and the court
will have the jurisdiction. In De Becker case, the petitioner was debarred from entering
Belgian and not to indulge in journalism, after he was found guilty for collaborating with
Germans during the War, under Belgian law in 1954. Belgian became a party to the
ECHR in June 1955. The petition was held to be admissible by the Commission as De
Becker was put under a continuing disability for life in violation of his right to freedom
of expression. Belgium’s contention of ratione temporis for the non-admissibility of the
application was rejected.54
C. Legal Excuses or Defences for Breaches of International Law

As under municipal legal systems, international law also recognizes certain grounds
justifying or excusing non-compliance by a State with its international obligations. These
defences preclude the responsibility of a State for its wrongful conduct. The Draft articles
in Chapter V of Part One enlist these defences under the heading of “circumstances
precluding wrongfulness,” though they are not exclusive. It sets out six
circumstances/defences: consent (Art. 20), self- defence (Art. 21), countermeasures (Art.
22), force majeure (Art. 23), distress (Art. 24) and necessity (Art. 25). These
circumstances are also recognized by many legal systems, often under the same
designation. It is also made clear that none of these circumstances can be relied upon if
the conduct in question is in conflict with a peremptory norm of general international law
(Art. 26). Article 27 deals with certain consequences of the invocation of one of these
circumstances.
______________________
52 Blake, Inter-American Court of Human Rights, Series C, No. 36, para. 67 (1998).
53 Prior to the entry into force of Protocol 11 to the ECHR, individual could bring a
claim only if the State party had accepted the right of individual petition, now under the
Protocol, this right is compulsory (Art. 34, ECHR)
54 (1962) 33 ILR 205 (Court); see also, Loizido v. Turkey, (Merits), Eur. Court
H.R., Reports, 1996-VI, p. 2216.

1. Consent
Valid consent by a State to a particular conduct of another State, which would otherwise
be inconsistent with its international obligations, precludes the wrongfulness of that act in
relation to the consenting State, provided the conduct remains within the limits of the
consent given (Art. 20 Draft articles). Consent may be vitiated by error, fraud, corruption
or coercion. This is consistent with the role of consent in international relations generally.
Consent to the commission of otherwise wrongful conduct may be given by a State in
advance or even at the time it is occurring. Examples of consent given by a State which
has the effect of rendering certain conduct lawful include military action or commissions
of inquiry sitting on the territory of another State, the exercise of jurisdiction over visiting
forces, humanitarian relief and rescue operations and the arrest or detention of persons on
foreign territory.55 But the consent given to an act in violation of peremptory norms (e.g.
genocide) would not be considered as ‘valid’. Consent, however, can only preclude the
wrongfulness with regard to the giving State; but if the obligation breached is owed to
more than one State, the wrongfulness of the act will not be precluded with regard to
those States that have not given their consent.
2. Self-defence
Self-defence precludes the wrongfulness of the conduct taken within the limits laid down
by international law. Art. 21 of the Draft articles states: “The wrongfulness of an act of a
State is precluded if the act constitutes a lawful measure of self-defence taken in
conformity with the Charter of the United Nations.” Article 51 of the Charter of the
United Nations preserves a State’s “inherent right” of self-defence in the face of an armed
attack. The International Court of Justice in its advisory opinion on the Legality of the
Threat or Use of Nuclear Weapons has also upheld this right implicitly. It made a
distinction between a per se restriction on the use of force under Art. 2(4) and the right of
self-defence. Even if a State is under an obligation of “total restraint” by an international
obligation (under Art. 2(4)) if that obligation is expressed or intended to apply as a
definitive constraint to States in armed conflict, it might be overridden if a State is facing
an imminent threat and required to act in self defence.56
3. Countermeasures
Under certain circumstances, the commission by one State of an internationally wrongful
act may justify another State injured by that act in taking non-forcible countermeasures in
order to procure its cessation and to achieve reparation for the injury. Art. 22 of the Draft
articles provides: “The wrongfulness of an act of a State not in conformity with an
international obligation towards another State is precluded if and to the extent that the act
constitutes a countermeasure taken against the latter State.” Legality of the
countermeasures has been accepted in judicial decisions and State practice. In the
Gabcikovo-Nagymaros Project case, ICJ clearly accepted that countermeasures
______________________
55 Savarkar case, (1911) 11 UNRIAA 243, at pp. 252-255.
56 Legality of the Threat or Use of Nuclear Weapons, (1996) ICJ Rep. p. 226, at p.
242, paras 30, 39, 52.

might justify otherwise unlawful conduct “taken in response to a previous international

wrongful act of another State”, provided certain conditions are met.37 The more usual
terminology for such measures under customary international law has been “legitimate
reprisals” or, more generally, measures of “self-protection” or “self help”.
Countermeasures may only preclude wrongfulness in the relations between an injured
State and the State which has committed the internationally wrongful act. Under the Draft
articles countermeasures only cover suspension of performance by a State of one or more
of its obligations, they are to be distinguished from acts of retorsion which, since they are
by definition not a breach of the obligations of the State, cannot give rise to State
responsibility and therefore require no justification. Certain obligations, such as to refrain
from the use of force, those of a humanitarian character prohibiting the taking of
reprisals, and those under other peremptory norms may not be suspended by way of
countermeasures.58
4. Force majeure
Like most legal systems, international law also does not impose any responsibility in
circumstances where the non-performance is entirely outside the control of the State. Art.
23(1) of the Draft articles provides: “The wrongfulness of an act of a State not in
conformity with an international obligation of that State is precluded if the act is due to
force majeure, that is the occurrence of an irresistible force or of an unforeseen event,
beyond the control of the State, making it materially impossible in the circumstances to
perform the obligation.” Thus .force majeure as a defence is available only where three
elements are met: (a) the act in question must be brought about by an irresistible force or
an unforeseen event; (b) which is beyond the control of the State concerned; and (c)
which makes it materially impossible in the circumstances to perform the obligation.
Material impossibility of performance giving rise to force majeure may be due to a
natural or physical event (e.g., stress of weather which may divert State aircraft into the
territory of another State, earthquakes, floods or drought) or to human intervention (e.g.,
loss of control over a portion of the State’s territory as a result of an insurrection or
devastation of an area by military operations carried out by a third State), or some
combination of the two. The Draft articles further limits the defence by stating that if
either (a) the situation of force majeure is due, either alone or in combination with other
factors, to the conduct of the State invoking it; or if (b) the State has assumed the risk of
that situation occurring (Art. 23(2)), the defence of force majeure cannot be invoked to
avoid responsibility.59 Force majeure does not include circumstances in which
performance of an obligation has become more difficult, for example, due to some
political or economic crisis. Nor does it cover situations brought about by the neglect or
default of the State concerned,
______________________
57 Gabcikovo-Nagymaros Project, op. cit. 15, at p. 55, para. 83. Other cases
upholding these measures are Naulilaa (Portugal v. Germany) (1928) 2 UNRIAA 1011, at
pp. 1025-1026, and Air Service Agreement award, 54 ILR 303.
58 See also Ch. 16 infra on reprisals and countermeasures.

59 Compare with Arts. 61(2) and 62 of the Vienna Convention on the Law of
Treaties.

even if the resulting injury itself was accidental and unintended. 60 Force majeure has
been acknowledged as a general principle of law but has not become the basis of
judgement by courts.61
5. Distress
According to Art. 24 of the Draft articles, distress operates to excuse the wrongfulness of
an act if the author of the act had “no other reasonable way, in a situation of distress, of
saving the author’s life or the lives of other persons entrusted to the author’s care.” The
wrongfulness of conduct precluded in circumstances where the State agent had no other
reasonable way of saving life. Thus, defence is limited to cases where human life is at
stake. Most of the cases of distress under international law have involved aircraft or ships
entering a State territory under stress of weather or following mechanical or navigational
failure. To avoid its misuse, the Draft provides that (a) if the State invoking distress may
well have contributed, even if indirectly, to the situation; or (b) if the act in question is
likely to create a comparable or greater peril, distress as a defence is not available (Art.
24(2)).
6. Necessity
Necessity operates to excuse an act done which ‘is the only means for the State to
safeguard an essential interest against a grave and imminent peril’ and it does not
seriously impair an essential interest of other State or States towards which the obligation
exists, or of the international community as a whole (Art. 25). A State cannot invoke
necessity if it has contributed to the situation of necessity. Unlike distress, necessity
consists not in danger to the lives of individuals in the charge of a State official but in a
grave danger either to the essential interests of the State or of the international
community as a whole (Art. 25). Necessity has been invoked to protect a wide variety of
interests, including safeguarding the environment, preserving the very existence of the
State and its people in time of public emergency, or ensuring the safety of a civilian
population.
Necessity and distress differ from force majeure because the conduct in question of the
State is theoretically avoidable but in force majeure it is involuntary or at least involves
no element of free choice. A State is not required to sacrifice human life or to suffer
inordinate damage to its interest to fulfil its international obligations. Necessity and
distress can only excuse conduct which is not unduly onerous for other States. Even
though in cases where necessity or distress is found to be established to preclude the
wrongfulness of the acts, other States are not expected to bear the consequences of
another State’s misfortune; the invoking State may have to pay compensation for any
material loss caused to the State or States to which the obligation owed (Art. 27(b)).
______________________
60 ILC’s Commentary on Art. 23, Draft articles.
61 See PCIJ judgements in Brazilian Loans case (France v. Brazil) PCIJ Rep. Series
A, No. 21, p. 121 (1929); Serbian Loans case, PCIJ Rep. Series A, No. 20, pp. 39-40
(1929); and the "Rainbow Warrior" arbitration, op. cit. 2, at p. 253.

7. Consequences of invoking a circumstance precluding wrongfulness

Despite the fact that the wrongfulness of an act may be precluded in certain
circumstances, but it is subject to two conditions. First, the wrongfulness of the conduct
will be precluded so long as the circumstance precluding wrongfulness exists. When and
to the extent that a circumstance precluding wrongfulness ceases, or ceases to have its
preclusive effect for any reason, the obligation in question will again have to be complied
with.62 In the Gabcikovo-Nagymaros Project case, while considering Hungary’s
argument that the wrongfulness of its conduct in discontinuing work on the Project was
precluded by a state of necessity, the Court remarked that “[a]s soon as the state of
necessity ceases to exist, the duty to comply with treaty obligations revives”.63 Secondly,
the preclusive effect may be relative rather than general and may not be justified erga
omnes. In certain circumstances, the State having committed the act might have to
provide some form of compensation for any material loss caused by the act in question
(Art. 27(b)).
IV. CONTENT OF INTERNATIONAL RESPONSIBILITY OF A STATE

The core legal consequences for the responsible State on the commission of an
internationally wrongful act are twofold: to cease the wrongful conduct (Art. 30) and to
make full reparation for the injury caused by the internationally wrongful act (Art. 31).
Part Two, Ch. I of the Draft articles codify obligations of a responsible State. They are
aimed at the restoration of the legal relationship that has been threatened or impaired by
the breach, i.e., with the assurance of continuing performance. The obligation continues
to bind the responsible State, and the State therefore remains obliged to perform the
obligation in question (Art. 29). Where the internationally wrongful act constitutes a
serious breach by the State of an obligation arising under a peremptory norm of general
international law, the breach may entail further consequences both for the responsible
State and for other States. In particular, all States in such cases have obligations to
cooperate to bring the breach to an end, not to recognize as lawful the situation created by
the breach and not to render aid or assistance to the responsible State in maintaining the
situation so created (Arts. 40-41).
A. Cessation and non-repetition

Cessation of conduct in breach of an international obligation is the first requirement in
eliminating the consequences of wrongful conduct. With reparation, it is one of the two
general consequences of an internationally wrongful act. Reparation in many cases may
not be the central issue in a dispute between States as to questions of responsibility.64
Art.
______________________
62 Art. 27(a), and Arts. 52(3)(a) and 53.
63 Gabcikovo-Nagymaros Project, op. cit. 15, at p. 63, para 101.
64 The ICJ has recognized so in, for example, Fisheries Jurisdiction (Federal
Republic of Germany v. Iceland) (Merits), (1974) ICJ Rep, p. 175, at pp. 201-205, paras.
65-76; and Gabcikovo-Nagymaros Project, op. cit. 15, p. 81, para. 153. See also C. D.
Gray, Judicial Remedies in International Law (Oxford, Clarendon Press) 1987, pp. 77-92.

30 provides that the State responsible for the internationally wrongful act is under an
obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and
guarantees of non-repetition, if circumstances so require. While the obligation to cease
wrongful conduct will arise most commonly in the case of a continuing wrongful act, Art.
30 also encompasses situations where a State has violated an obligation on a series of
occasions, implying the possibility of further repetitions. Cessation and the offer of
assurances and guarantees of non-repetition by the responsible State are particularly
important when the individual breach may not have in itself caused any great amount of
harm but where there is a threat of repetition. It is of great significance in matters of the
protection of embassies and the environment. In the case of a continuing wrongful act, in
breach of an international obligation, the responsible State is under an obligation to bring
that act to an end (Art. 30(a)). In certain circumstances, it will be incumbent upon and
appropriate for the responsible State to offer appropriate assurances and guarantees of
non-repetition to the State or States to which the obligation is owed (Art. 30(b)). Where
assurances and guarantees of non-repetition are sought by an injured State, the question is
essentially the reinforcement of a continuing legal relationship and the focus is on the
future, and not on the past.
The question whether the obligation to offer assurances or guarantees of non-repetition
may be a legal consequence of an internationally wrongful act was debated in the
LaGrand case. The case was concerned with the United States’ admitted failure of
consular notification contrary to Art. 36 of the Vienna Convention on Consular Relations
to Germany. Germany’s complaint was related to the failure of notification to two death
row German inmates, but its wider concern was the United States’ compliance with its
continuing obligations of performance under the Convention on Consular Relations,
1963. Germany sought both general and specific assurances and guarantees as to the
means of future compliance with the Convention. The United States, though rejected this
claim of Germany, but took extensive action to ensure that federal and State officials
would in future comply with the Convention and spelt out those measures in detail. In
consequence, the Court held, that the commitment expressed by the United States to
ensure implementation of the specific measures adopted in performance of its obligations
under Article 36, paragraph 1 (b), must be regarded as meeting Germany’s request for a
general assurance of non-repetition.65
There is no specific form of assurance and guarantees against future repetition in
international law.
B. Reparation
Under international law, the responsible state is obliged to make full reparation for the
consequences of its breach, especially where actual harm or damage has occurred,
provided that these are not too remote or indirect. Art. 31 of the Draft articles provides:
1. The responsible State is under an obligation to make full reparation for the injury
caused by the internationally wrongful act.
______________________
65 LaGrand (Germany v. United States of America) (Merits) (2001) ICJ Rep., p. 466
at p. 513, para. 124.

2. Injury includes any damage, whether material or moral, caused by the

internationally wrongful act of a State.
“Material” damage here refers to damage to property or other interests of the State and its
nationals which is assessable in financial terms. “Moral” damage includes such items as
individual pain and suffering, loss of loved ones or personal affront associated with an
intrusion on one’s home or private life (ILC Commentary: Art. 31).
The linkage between breach and reparation has been mentioned in Art. 36(2) of the
Statute of the International Court of Justice in cases falling within its jurisdiction: (c) the
existence of any fact which, if established, would constitute a breach of an international
obligation; (d) the nature or extent of the reparation to be made for the breach of an
international obligation. This linkage is spelled out by the Permanent Court of
International Justice in its much quoted judgement in Chorzow Factory case when it
stated:
It is a principle of international law that the breach of an engagement involves an
obligation to make reparation in an adequate form. Reparation therefore is the
indispensable complement of a failure to apply a convention and there is no necessity for
this to be stated in the convention itself. Differences relating to reparations, which may be
due by reason of failure to apply a convention, are consequently differences relating to its
application.66
Thus, there is no need for a specific mandate to an international tribunal to award
reparation, if it has otherwise jurisdiction as between the parties in the matter. The
underlying principle is that reparation must wipe out the consequences of the breach,
putting the parties as far as possible in the same position as they would have been if the
breach had not occurred, i.e., to restore the status quo ante. In this regard, reparation may
take several forms, including monetary compensation. This fact was highlighted by the
Court in Chorzow Factory case:
The essential principle contained in the actual notion of an illegal act—a principle which
seems to be established by international practice and in particular by the decisions of
arbitral tribunals— is that reparation must, as far as possible, wipe out all the
consequences of the illegal act and reestablish the situation which would, in all
probability, have existed if that act had not been committed. Restitution in kind, or, if this
is not possible, payment of a sum corresponding to the value which a restitution in kind
would bear; the award, if need be, of damages for loss sustained which would not be
covered by restitution in kind or payment in place of it—such are the principles which
should serve to determine the amount of compensation due for an act contrary to
It is thus clear that international law accepts restitution as the first of the forms of
reparation, and it is only where restitution is not possible that other forms of reparation
are substituted. Reparation is designed to restore previous conditions and, if that is not
possible, to compensate for the injury itself. Full reparation for the injury caused by the
internationally wrongful act shall take the form of restitution, compensation and
satisfaction, either singly or in combination (Art. 34). Part Two, Ch. II of the Draft
articles deals with forms of reparation for injury.
______________________

66 Factory at Chorzow, (Jurisdiction), PCIJ Rep., Series A, No. 9, p. 21 (1927).

67 Factory at Chorzow (Merits), PCIJ Rep., Series A, No. 17, at p. 47 (1928).

Restitution is the first form of reparation available to a State injured by an internationally

wrongful act under Art. 34 of the Draft articles. Restitution involves the re-establishment
as far as possible of the situation which existed prior to the commission of the
internationally wrongful act, to the extent that any changes that have occurred in that
situation may be traced to that act. The primacy of restitution was confirmed by PCIJ in
the Factory at Chorzow case when it said that the responsible State was under “the
obligation to restore the undertaking and, if this be not possible, to pay its value at the
time of the indemnification, which value is designed to take the place of restitution which
has become impossible”.68 Restitution may take the form of material restoration or
return of territory, persons or property, or the reversal of some juridical act, or some
combination of them. However, restitution in kind is infrequent.69
Restitution is not required if it is “materially impossible” or it involves a burden out of all
proportion to the benefit deriving from restitution instead of compensation (Art. 35 (2)).
It is thus based on considerations of equity and reasonableness.
2. Compensation
Of the various forms of reparation, compensation is perhaps the most commonly sought
in international practice. In the Gabcikovo-Nagymaros Project case, ICJ declared: “It is a
well- established rule of international law that an injured State is entitled to obtain
compensation from the State which has committed an internationally wrongful act for the
damage caused by it.”70 The State responsible for an internationally wrongful act is
under an obligation to compensate for the damage caused thereby, insofar as such
damage is not made good by restitution. The basic requirement of compensation is that it
should cover any ‘financially assessable damage’ flowing from the breach (Draft article
36). Compensation is normally a matter of negotiation. There are no established
principles for calculating the sum to be paid. In many cases though, like loss of life, the
quantification of damage is only approximate, but in others, like in cases involving loss
of property (e.g., expropriation), it is assessable in the context of market, including even
the loss of profits, etc., and may be compensable. But non-material damage (referred to as
“moral damage” in national legal systems) is financially assessable and may be the
subject of a claim of compensation. Damages have been awarded for non-material loss,
but international tribunals have been reluctant to grant exemplary or punitive damages. In
the Lusitania case, the United States-Germany Mixed Claims Commission refused to
award punitive damages. On the other hand, in the I’m Alone case, $25,000 was awarded
against the United States as a “material amend in respect of the wrong suffered by
Canada.”71 It awarded only reparation in respect of injury suffered.72 Compensation,
however, may include even interest (Draft article 38, Commentary).
______________________
68 Ibid. p. 48.
69 Martini case (Italy v. Venezuela), 2 UNRIAA 975, at p. 1002 (1930).
70 Op. cit. 15, p. 81, para. 152.
71 I’m Alone case (Canada v. United States), 3 RIAA 1609(1933/35).
72 Lusitania case, 7 RIAA 32, at pp. 38-44 (1956).

It is evident from cases coming out of international tribunals that there is a gradual
movement towards a more realistic and complete appreciation of issues of compensation,
and of remedies more generally, but they remain more symbolic in nature.73
3. Satisfaction
More often, the claimant, whether a State or some other entity, may seek vindication
more than compensation, by way of a protean remedy of ‘satisfaction’. According to Art.
37(2), “Satisfaction may consist in an acknowledgement of the breach, an expression of
regret, a formal apology or another appropriate modality.” Satisfaction is the remedy for
those injuries, not financially assessable, which amount to an affront to the State. These
injuries are frequently of a symbolic character, arising from the very fact of the breach of
the obligation, irrespective of its material consequences for the State concerned. It is
available for injury sometimes described as “nonmaterial injury”. In many cases before
international courts and tribunals, an authoritative finding or declaration of the
wrongfulness of the act has been held to be sufficient satisfaction. In the Corfu Channel
case, in response to Albania’s claim, the International Court of Justice held that the mine-
sweeping operation by the British Navy constituted a violation of Albanian
sovereignty.74 However, while the making of a declaration by a competent court or
tribunal may be treated as a form of satisfaction in a given case, such declarations are not
intrinsically associated with the remedy of satisfaction. Any court or tribunal which has
jurisdiction over a dispute has the authority to determine the lawfulness of the conduct in
question and to make a declaration of its findings, as a necessary part of the process of
determining the case. Such a declaration may be a preliminary to a decision on any form
of reparation, or it may be the only remedy sought. On the other hand, regret or apologies
were required as a form of satisfaction in the “I’m Alone”, and “Rainbow Warrior”
cases75, and were offered by the United States in the Consular Relations and LaGrand
cases.76 There are, however, limitations in providing satisfaction: first, the
proportionality of satisfaction to the injury; and secondly, the requirement that
satisfaction should not be humiliating to the responsible State.
In LaGrand case, the Court held that an apology for any future violation of Article 36 of
the Vienna Convention would be inadequate reparation, but it left the choice with the
United States to find the means of reparation for the breach of its obligation. It
emphasized “that the competent national authorities failed to comply with their obligation
to provide the requisite consular information [under Article 36, paragraph 1 of the Vienna
Convention on Consular Relations, 1963] ‘without delay’, thus preventing the person
from seeking and obtaining consular assistance from the sending State.”77 However, in
the Avena case in 2004, while noting that the ‘procedural default’ rule has not been
revised to prevent its application in cases involving
______________________
73 Crawford & Ollesson, op. cit. 9, p. 472; C. Gray, Judicial Remedies in
International Law (Oxford: Clarendon Press) 1987, pp. 77-95.
74 Corfu Channel (Merits), op. cit. 34, at p. 35.
75 See op.cit. 71 above; op.cit. 2 above respectively.

76 See Vienna Convention on Consular Relations (Paraguay v. United States of

America), (Provisional Measures), Order of 9 April 1998, (1998) ICJ Rep. p. 248; op.cit.
65 above respectively.
77 Germany v. United States of America, (Merits) (2001) ICJ Rep. 2001, p. 466,
paras 79-91.

the breaches of the Convention, the Court found that the internationally wrongful acts
committed by the United States were the failure of its competent authorities for their
failure to inform the Mexican nationals concerned, to notify the Mexican consular posts
and to enable Mexico to provide consular assistance.78 The case was related to the arrest,
detention, trial, conviction and sentencing of 52 Mexican nationals, and the failure of the
United States authorities to give them timely notification of their right to consular
protection. About the reparation the Court stated, “it follows that the remedy to make
good these violations should consist in an obligation on the United States to permit
review and reconsideration of these nationals’ cases by the United States courts, with a
view to ascertaining whether in each case the violation of Article 36 committed by the
competent authorities caused actual prejudice to the defendant in the process of
administration of criminal justice.” It observed that the appropriate reparation in this case
would consist in the obligation of the United States to provide, ‘by means of its own
choosing, review and reconsideration of the conviction and sentences of Mexican
nationals so convicted.”79 As noted above, if the breach in question is a serious breach of
an obligation under a peremptory norm, certain additional consequences arise for all
other States under Art. 41 (Draft articles), the principal among them is the obligation not
to recognise as lawful the situation created, or to render aid or assistance in its
maintenance (Art. 41(2)). A breach of such an obligation is serious if it involves a gross
or systematic failure by the responsible State to fulfil the obligation (Art. 40(2)).
V. INVOCATION AND ISSUES OF ADMISSIBILITY OF INTERNATIONAL

RESPONSIBILITY OF A STATE
A. Invocation of State Responsibility
It is now well-established that international responsibility arises directly by operation of
law when a breach of an obligation occurs, but for all practical purposes, it has to be
invoked by someone towards whom that obligation was owed. Central to the invocation
of responsibility is the concept of the injured State. This is the State whose individual
right has been denied
______________________
78 Case Concerning Avena and Other Mexican Nationals (Mexico V. United States of
America) (2004) ICJ Rep., p. 12.
79 Ibid. para 121. Responding to the Court’s judgement, President Bush issued a
Memorandum stating that the United States would “discharge its international
obligations” under Avena “by having State courts give effect to the decision.” , which
was rejected by the Supreme Court on the ground that the courts are bound by the
domestic law. Immediately after the decision of the ICJ, in March 2005, the United States
pulled out of the Optional Protocol to the Convention, which allows the ICJ to have
compulsory jurisdiction over disputes arising under the Convention. In June 2006, the US
Supreme Court ruled that foreign nationals who were not notified of their right to
consular notification and access after an arrest may not use the treaty violation to
suppress evidence obtained in police interrogation or belatedly raise legal challenges after
trial - Sanchez-Llamas v. Oregon, 548 US 331 (2006). In March 2008, the Supreme Court
further ruled that the decision of the ICJ directing the United States to give “review and

reconsideration” to the cases of 51 Mexican convicts on death row was not a binding
domestic law and therefore could not be used to overcome state procedural default rules
that barred further post-conviction challenges - Medellin v. Texas, 552 US (2008).

or impaired by the internationally wrongful act or which has otherwise been particularly
affected by that act. Part Three of the Draft articles deals with the invocation of the
responsibility of a State by another State or States. It deals not only with bilateral
obligations but with obligations in the nature of erga omnes (e.g., peace and security,
sustainable development, the environment) and deals with the countermeasures taken in
order to induce or force the responsible State to cease the conduct in question and to
provide reparation, if the remedies are not forthcoming.
Art. 42 defines the concept of an ‘injured State’ who is entitled “to invoke the
responsibility of another State if the obligation breached is owed to
(a) that State individually; or
(.b) a group of States including that State, or the international community as a whole, and
the breach of the obligation:
(i) specially affects that State; or
(ii) is of such a 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.”80
This has two aspects, i.e., breach of an obligation owed to a State individually; and the
breach of a multilateral obligation has affected that State or States particularly, either they
are specifically affected or because the obligation is integral in character, breach of which
affects the enjoyment of the rights or the performance of the obligations of all the States
concerned. Art. 48 deals with the invocation of responsibility by a State other than an
injured State in the collective interest, in particular in regard to obligations owed to the
international community as a whole. It provides: “Any State other than an injured State is
entitled to invoke the responsibility of another State ... if: (a) the obligation breached is
owed to a group of States including that State, and is established for the protection of a
collective interest of the group; or (b) the obligation breached is owed to the international
community as a whole.”
In the Barcelona Traction case,81 the International Court of Justice gave certain
examples of “obligations erga omnes partes”, including the prohibition of acts of
aggression and genocide and “the principles and rules concerning the basic rights of the
human person, including protection from slavery and discrimination”.82 In its judgment
in the East Timor case, the Court added the right of self-determination of peoples to this
list.83
The term “[a]ny State” in Art. 48(1) is intended to avoid any implication that these States
have to act together or in unison. It relates to protection of collective interest of a group
of States to whom the obligation is owed, and no particular State is injured in the
______________________
80 Compare with Art. 60(2) of the Vienna Convention on the law of Treaties.
81 Barcelona Traction, Light and Power Co. Case, (1970) ICJ Rep., p. 3 at p. 32,
para. 33.
82 Ibid, para 34. See also Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, (Preliminary Objections) (1996- II) ICJ Rep. p.
595, para 31; Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Rwanda) (Provisional Measures) Order of 10 July 2002 (2002) ICJ Rep. p.
219, para. 71.

83 See East Timor (Portugal v. Australia), (1995) ICJ Rep., p. 90, at p. 102, para. 29.
See also Legal Consequences of the Construction of a Wall in the Occupied Palestine
Territory (2004) ICJ Rep., p. 136, para 155.

sense of Art. 42. Examples of these obligations are human rights norms and
environmental protection norms; the beneficiaries of such obligations are either
individuals (for human rights norms) or a group of States as a whole (under
environmental protection norms). In the case of breach of one or other of these categories
of obligation, third States can demand cessation and assurances and guarantees of non-
repetition, as well as performance of the obligation of reparation on behalf of either the
State injured or the beneficiaries of the obligation breached (Art. 48(2)).
B. Admissibility of Claims
For the admissibility of a claim of responsibility, two major aspects are looked into: first,
to identify the State or States that could be described as being wronged and have locus
standi in relation to a given wrong; and second, to consider the application of other rules
of international law that may operate to preclude the admissibility of a claim before an
international tribunal even if a cause of action and legal interest are clearly established.
As a preliminary issue, a litigant State should be able to establish that an obligation owed
to it has been breached, but where the obligation breached is in the nature of erga omnes,
it may be easier for the claimant State to establish its legal interest, but the legal regime
for protecting community obligations is not well established so far and lacks
coherence.84 In contrast to obligations arising out of bilateral or private rights
framework, breaches of obligations designed to protect community values and interests
pose a particular challenge in the context of traditional rules on admissibility of claims.
The obligations in the field of human rights, protection of environment, preservation of
peace and security may affect the interest of the international community as a whole
without specifically affecting the interest of a particular State. In such a case, to bring a
claim under the existing framework needs to be worked out.85
Under international law, like other legal systems, a claimant must have a demonstrable
interest in the matter. Legal interest is generally defined with reference to the obligation
breached, and thus a party to whom the obligation owed is the party entitled to claim. The
International Court of Justice, in South-West Africa cases, rejected the claim of Ethiopia
and Liberia (the members of the League of Nations) on the ground that they had no legal
interest in respect of the subject-matter of the dispute brought by them against South
Africa, and they lacked the locus standi.86 Though this approach of the Court had invited
wide criticism, nevertheless, it is generally accepted that apart from obligations in the
nature of erga omnes, only those who have an interest or are beneficiaries of international
obligations, have the right to enforce them.87
______________________
84 Phoebe Okowa, Issues of Admissibility and the Law on International
Responsibility, in Evans (Ed.) International Law, 2nd Ed. (Oxford University Press),
2006, p. 479, at 480.
85 See Art. 48, Draft articles. Although there has been a general recognition of
obligations erga omnes, there is not a single case in which an applicant State has
successfully brought a claim to enforce community values.

86 South-West Africa cases (Merits) (1966) ICJ Rep. p. 6, para 99. See Draft Art. 48,
Commentary, para 7 - “collective obligations”, must apply between a group of States and
they have been established in some collective interest.
87 Barcelona Traction case, op. cit. 81, at pp. 32, paras. 32, 33.

Under international law, only States in general have procedural capacity to bring an
action before an international tribunal. The non-State actors - individuals, corporations or
other legal entities (barring international organizations) do not enjoy this capacity. In the
absence of a special treaty arrangements granting them access to international tribunals,
their claims must be channelled through the State of their nationality on the ground of
diplomatic protection. The rationale behind this is that it is the State of which that
individual is a national that is wronged and it can bring an action in respect of that wrong.
Most of the claims under international law arise out of bilateral relationship, which may,
inter alia, be based on breaches of treaty obligations, violation of territorial integrity,
injuries to diplomatic representatives, mistreatment of nationals or injury to the property
of nationals by the other State. Conception of standing under international law is
primarily a vindication of bilateral or private rights. To pursue these cases, nationality
provides a convenient premise for channelling claims and becomes a ground of
admissibility of claims.
In determining the locus standi of a State, a distinction is generally made between injury
to direct interests and those that affect indirect interests (principally to its nationals -
natural, corporate or other legal entity). There is generally no problem in pursuing the
cases affecting its direct interests, but in protecting the indirect interests, the issues
related to diplomatic protection, particularly related to nationality, come in. Furthermore,
the dividing line between direct and indirect interests of a State sometime gets blurred,
especially with regard to mixed claims where there are elements of direct injury to a
State’s interests as well as to its nationals. Examples of direct interests may relate to
damage to a State’s property, warships, diplomatic mission, members of armed forces,
the executive, including head of State (they enjoy sovereign immunity).
VI. BASES OF DIPOLMATIC PROTECTION

When a national of a State is ill-treated by another State, victim’s State may bring a claim
against the delinquent State by exercising its right of diplomatic protection. This will
require compliance with the law on admissibility of claims, in particular, the State
exercising the right of protection must satisfy the rules concerning the nationality of
claims, and the exhaustion of local remedies available under the law of the delinquent
State by the victim.
In 2006, the International Law Commission adopted a set of Draft Articles on Diplomatic
Protection, accompanied by a Commentary.88 The Draft Articles defines “diplomatic
protection” in Art. 1 as:
... diplomatic protection consists of the invocation by a State, through diplomatic action
or other means of peaceful settlement, of the responsibility of another State for an injury
caused by an internationally wrongful act of that State to a natural or legal person that is a
national of the former State with a view to the implementation of such responsibility.
______________________
88 For the text and Commentary, see the Report of the 58th Sess. ILC (2006), GAOR
A/61/10, pp. 22 et seq. See D.J. Harris, Cases and materials on International Law, 7th ed.
(Sweet & Maxwell) 2010, at p. 502.

A. Nationality of Claims Rule

Art. 44(a) of the Draft articles on State responsibility provides that the responsibility of a
State may not be invoked if the claim is not brought in accordance with any applicable
rule relating to the nationality of claims.
Nationality is important in the context of State responsibility. When injury is suffered by
its national, recognized by municipal law, it is only the State of victim's nationality that
has the right to bring a claim. By resorting to diplomatic action or international judicial
proceedings on behalf of its national, a State in reality asserting its own right, to ensure
respect for the rules of international law. A State may only espouse a claim against
another state on behalf of one of its nationals. In the Mavrommatis Palestine Concessions
case, the Permanent Court stated:
It is an elementary principle of international law that a State is entitled to protect its
subjects, when injured by acts contrary to international law committed by another State,
from whom they have been unable to obtain satisfaction through the ordinary channels.
By taking up the case of one of its subjects and by resorting to diplomatic protection or
international judicial proceedings on his behalf, a State in reality asserting its own rights -
rights to ensure, in the person of its subjects, respect for the rules of international law.89
Thus, the State is the sole judge to decide whether to grant diplomatic protection, and
about i its extent and duration. It retains in this respect a discretionary power, which may
be influenced j by political considerations rather than the legal merits of a particular
claim.
The claim of the State may be in variance with that of its national whose cause it has
espoused. In the Barcelona Traction case, the International Court noted that:
...within the limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to whatever extent it thinks fit, for it is its own right
that the State is asserting. Should the natural or legal person on whose behalf it is acting
consider that their rights are not adequately protected, they have no remedy in
international law ... The municipal legislation may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the national a right to demand the
performance of that obligation, and clothe the right with corresponding sanctions.
However, all those questions remain within the province of municipal law and do not
affect the position internationally.90
As the exercise of diplomatic protection is discretionary, hence there is no obligation on
the part of the State to transmit the damages received for any of the individuals
concerned.91
1. Protection of Natural Persons
To espouse the cause of its nationals, the first and foremost requirement is to establish
nationality of the 'victim' for purposes of diplomatic protection. Since the exercise of
diplomatic protection in international law lays down no definition of nationality, granting
of nationality is exclusively
____________________
89 Mavrommatis Palestine Concessions, PCIJ Rep., Ser. A, No. 2, at p. 12 (1924).
90 Barcelona Traction case, op. cit. 81, paras 78-79.

91 Human rights obligations and treaties protecting the economic interests of

individuals have nevertheless substantially qualified the discretionary character of
diplomatic protection by creating directly enforceable rights even against the State of
which the individual is a national. See Phoebe Okowa, op. cit. 84, at p. 484.

a matter of domestic law.92 There is a general presumption that nationality granted by a

State is valid as long as it complies with the provisions of domestic law. A state is free to
determine for itself who are to be deemed its nationals.93 Despite this prima facie
unfettered discretion, the validity of such nationality so conferred by a State on the
international plans is a question of international law, and is only opposable to other States
if it has been granted in a mariner consistent with the principles of international law. For
this reason, nationality may be disregarded or treated as nullity at the international plane
if it has been granted in excess of jurisdictional limits placed by international law.
For nationality to be valid at international plane, it must be firmly grounded on the
existence of genuine link between the claimant State and the individual on whose behalf
the claim is brought.94 A State's right to afford diplomatic protection may be challenged
on the ground that the link between it and its alleged national is only tenuous and not
genuine. In the absence of such a link, a claimant State will be prohibited from
proceeding with an international claim. In the Nottebohm case, Liechtenstein attempted
to exercise diplomatic protection on behalf of Nottebohm against Guatemala. Nottebohm
had become a naturalized Liechtenstein citizen after only a few weeks residence in that
State and Guatemala challenged Liechenstein's right to espouse a claim on his behalf.
The International Court laid down that for nationality to form a valid basis for diplomatic
protection, there must be a 'genuine link' between the wronged individual and the State on
whose behalf it is claiming. The Court maintained:
"... a State cannot claim that the rules it has thus laid down are entitled to recognition by
another State unless it has acted in conformity with this general aim of making the legal
bond of nationality accord with the individual's genuine connection with the State..."95
The Court characterized nationality as:
"a legal bond having as its basis a social fact of attachment, a genuine connection of
existence, interests and sentiments, together with the existence of reciprocal rights and
duties. It may be said to constitute the juridical expression of the fact that the individual
upon whom it is conferred, either directly by the law or as a result of an act of the
authorities, is in fact more closely connected with the population of the State conferring
nationality than with that of any other State."96
It is thus clear that for diplomatic protection, not only must an individual possess the
claimant State's nationality, but that the nationality must be effective. The Court extended
the requirement of "genuine link" in Nottebohm case to resolve problems of dual97 and
multiple nationality,
_________________
92 Nationality may be acquired in a variety of ways but the two most common ways
of attaining nationality are (i) by descent from parents (jus sanguinis), or (ii) by birth in
the territory of the state (jus soli). For more on 'nationality', see Ch. 9 supra.
93 Art. 1 1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws, 179 L.N.T.S. 89; U.K.T.S. 33 (1937) Cmnd. 5553.
94 Brownlie, op. cit. 1, at p 477.
95 Nottebohm Case (Second Phase) (1955) ICJ Rep. p. 4 at p. 23.
96 Id.

97 See Canevaro Case (Italy v. Peru), 11 RIAA 397; 6 AJIL. 746 (1912) Translation.
In the Flegenheimer case, the Italian-United States Commission confined the application
of 'genuine link' requirement to cases involving dual nationals, Flegenheimer Claim,
(1958), 25 ILR at 148-150.

as also to the issue of diplomatic protection generally. But in Barcelona Traction case, the
International Court refused to extend the 'genuine link' requirement to corporations and
refrained from expressing an opinion as to correctness of the 'genuine link' requirement as
a matter of general international law.98
The general rule is that a State will only espouse a claim on behalf of an individual if the
latter is a national at the time when the injury occurs and at the time when the claim is
presented and award is made. For exercising diplomatic protection, the nationality must
be continuous, as it is the bond of nationality that establishes the State's interest in the
claim. "Genuine link" is not limited to individuals. Accordingly, "ships have the
nationality of the State whose flag they are entitled to fly. There must exist a genuine link
between the State and the ship."99
Nationality rule can be waived by treaty or other ad hoc arrangements, such as the
delegation of the right of protection to another sovereign. Treaties may also extend a
general right of protection to non-nationals. In these circumstances, the bond of
nationality is not critical to the admissibility of the claim. Examples can be of aliens in
the service of the claiming State; stateless persons; non-nationals forming a minority in a
group of national claimants; and non-nationals with long-term residence in the State
espousing diplomatic protection.100
2. Nationality of Corporations
Like the case of individuals, in the case of corporations also the State of which the
corporation is a national can exercise diplomatic protection to espouse its cause. A
company has traditionally been regarded as having the nationality of "the State under the
laws of which it is incorporated and in whose territory it has its registered office."101
However, these are not the only two criteria whereby a link between a company and a
State may be evidenced. For example:
"it has been the practice of some States to give a company incorporated under their law
diplomatic protection solely when it has its seat (siege social) or management or centre of
control in their territory, or when a majority or a substantial proportion of the shares has
been owned by nationals of the State concerned."102
In the Barcelona Traction case, the Court concluded that, with respect to "the diplomatic
protection of corporate entities, no absolute test of the 'genuine connection' has found
general acceptance."103 The International Court in this case was confronted with the
question of whether Belgium could intervene on behalf of Belgian nationals and
shareholders in a company, Barcelona Traction, which was incorporated in Canada and
where it maintained its registered office. Majority of shareholders of the Company were
Belgian. The losses sustained had been as a result of measures taken by Spain, the
country in which the company operated. Canada initially intervened, but subsequently
withdrew and did not proceed with a claim.
_________________
98 Barcelona Traction case, op. cit. 81, para 70.
99 Art. 5, Geneva Convention on the High Seas 1958. See also Chicago Convention
1944, Arts. 12 and 18.
100 Phoebe Okawa, op. cit 84, at p. 493.

101 Barcelona Traction, Light and Power Co. Case, op.cit. 81, at p. 42.
102 Id.
103 Id.

The Court upheld Spain's objection to Belgian intervention on the grounds that Canada's
failure to act did not increase Belgium's right. According to the Court's judgement, the
State whose nationality a company possesses, even if it operates in a foreign country and
is controlled by foreign shareholders, has the right to make the claim on its behalf. It was
the company which had suffered the injury, but the company was not defunct and,
therefore, whether or not to espouse a claim on behalf of the company remained within
Canada's discretion. Regarding shareholders, the general rule is that a State may not
pursue a claim on behalf of nationals who suffer injury as a consequence of a measure
taken against foreign companies in which they own shares. As such where a wrong was
done to the company, the interests of the shareholders may be affected but it was the
company alone that had a right to maintain an action in international law. The Court
concluded that to recognise diplomatic protection on behalf of shareholders would result
in confusion as the shares of international companies are "widely scattered and frequently
change hands."104 The Court did admit one exception to the general rule, namely, if the
company ceased to exist. In such circumstances, the Court recognised that the national
State of the shareholders could initiate a claim on behalf of the shareholders in respect of
losses sustained by them as a result of the injury to the company.105 But it was not
necessary to lift the corporate veil in order to determine the economic reality of a country,
even if it indicated links with a State other than that of incorporation. The judgement
failed to acknowledge that a State in which a company is incorporated may have little
interest in pursuing a claim on its behalf. A company may be incorporated in a particular
State as a matter of convenience. In that event, the State whose nationals are shareholders
may indeed have considerable interest in espousing a claim.
In the case of shareholding, ascertaining the legal interest may be particularly difficult, if
the shares have changed hands, since for the right of protection to exist nationality must
be continuous. There has to be some tangible connection between the company and the
State exercising diplomatic protection. In the Oil Platforms case, Iran contested the
United States right to extend diplomatic protection to US flagged but foreign owned
merchant ships, on the ground that there was an absence of a genuine link as required by
international law. The Court, however, decided in favour of the United States, ignoring
the absence of genuine link for exercising diplomatic protection.106 Similarly, in ELSI
case, the United States was permitted to exercise diplomatic protection on behalf of
shareholders in an Italian company when the company had not ceased to exist. The
company was wholly owned by two US subsidiaries - Raytheon and Machlett. Despite
Italy's objections, the International Court decided in favour of the United States on the
basis that there had been no violation of the treaty obligations relied on by the United
States.107
On the basis of judicial decisions, it is evident that the rules governing the nationality of
claims has thus far have not been stated with certainty in the context of diplomatic
protection.
_________________
104 Ibid at p. 49.
105 Ibid at p. 41.
106 Oil Platforms (Islamic Republic of Iran v. United States) (2003) ICJ Rep. p. 161.

107 Elettronica Sircula SpA (ELSI) (1989) ICJ Rep. p. 15, para 101.

B. Rule on Exhaustion of Local Remedies

Art. 44(b) of the Draft articles provides that "the responsibility of a State may not be
invoked if: the claim is one to which the rule of exhaustion of local remedies applies and
any available and effective local remedy has not been exhausted."
It is an established rule of customary international law that before diplomatic protection
is afforded, or before recourse may be made to international arbitral or judicial processes,
local remedies must be exhausted. The raison d'etre of the rule is:
(i) respect for the sovereignty of States - that matters occurring in the territory of a State
must be given the first opportunity to exercise jurisdiction;
(ii) to allow the State concerned the opportunity to afford redress within its own legal
system for the alleged wrong; to reduce the number of possible international claims;
(iii)it rests on considerations of practical convenience as the local courts are better placed
to evaluate the facts; and
(iv) there can be no claim on the basis of denial of justice until local remedies have been
exhausted.
The rule, however, only applies in those cases where the State brings a claim on behalf of
a national. In principle, exhaustion of local remedies108 is not required when a State is
bringing a claim to protect its direct interests. Local remedies means:
"not only reference to the courts and tribunals, but also the use of the procedural facilities
which municipal law makes available to litigants before such courts and tribunals. It is
the whole system of legal protection, as provided by municipal law..."109
Thus, the obligation to exhaust local remedies relates only to legal remedies, and would
exclude remedies that are discretionary.110 Local remedies must be exhausted to the
fullest extent, including the appeal procedure provided under local law.
An individual must, therefore, employ "all administrative, arbitral or judicial
remedies."111 Only effective remedies which could affect the final outcome of the case
need be exhausted.112 The exhaustion of local remedies has been strictly applied, but
local remedies need not be exhausted if it is evident that there is no justice to exhaust, or
where it is apparent that any attempt to seek redress would be thwarted or unlikely to
yield any results.113 If it is apparent
_________________
108 According to Art. 14 of the Draft Articles on Diplomatic Protection, 'local
remedies' "means legal remedies which are open to an injured person before the judicial
or administrative courts or bodies, whether ordinary or special, of the State alleged to be
responsible for causing the injury." See op. cit. 88.
109 Ambatielos Arbitration (Greece v. U.K.), 12 RIAA 83 (1956); 23 I.L.R. 306
(1956).
110 Brownlie, op. cit. 1, p. 494 et seq; Brierly The Law of Nations, 6th ed. (Oxford:
Clarendon Press) 1963, p. 281.
111 See Draft Art. 19, 1961 Harvard Draft Convention on International Responsibility
of States for Injuries to Aliens.
112 Finnish Ships Arbitration, 3 RIAA. 1479 (1934) cf. El Oro Mining and Railway
Co. Case (Great Britain. v. Mexico), 5 RIAA 191 (1931); and Interhandel Case
(Preliminary Objections), (1959) ICJ Rep. p. 6, at pp 26-29.

113 Robert E. Brown Case, 6 RIAA 120, at p. 129 (1923).

that an Indian National, in exhausting municipal remedies, has encountered prejudice or

obstruction and, accordingly, a denial of justice in a foreign country, the Indian
Government may intervene in order to seek redress on his behalf. The requirement to
exhaust local remedies may be dispensed with by treaty, but this must be explicitly stated
and not merely implied.
Only those local remedies which are "available and effective" have to be exhausted
before invoking the responsibility of a State. The mere existence on paper of remedies
under the internal law of a State does not impose a requirement to make use of those
remedies in every case. In particular, there is no requirement to use a remedy which
offers no possibility of redressing the situation, for instance, where it is clear from the
outset that the law which the local court would have to apply can lead only to the
rejection of any appeal. (Commentary, Art. 44(b)). But it is a contentious issue, and
remains unclear how far the foreign national is expected to test the options under national
law before concluding that legal remedies provided under national law are bound to be
futile. In the Interhandel case, brought by Switzerland against the United States, the
International Court concluded that as the suit was still pending before United States
courts, local remedies have not been exhausted.114 The corporation, Interhandel, in this
case had been involved in litigation in the United States courts for almost 10 years before
Switzerland brought the case before the International Court. In fact, the remedy available
must present a reasonable possibility of redressing the personal claim of the litigant.
In cases where there is a mixed claim, i.e., State making the claim on its own behalf as
well as on behalf of its national for the same wrong in the same proceedings, it becomes
difficult to decide whether the rule requiring exhaustion of local remedies applies or not.
There is some support in the jurisprudence of international tribunals for the
preponderance of interests test in such cases, that is, the exhaustion of local remedies rule
should only apply if the claim is overwhelmingly concerned with the injury to the
national.115
_________________
114 Interhandel case (Preliminary Objections), (1959) ICJ Rep. p. 6.
115 See Interhandel case, ibid.; see also ELSI case, op. cit. 107; J. Dugard, Third
Report on Diplomatic Protection, UN Doc A/CN.4/523 (2002).

Page 312
CHAPTER 12
International Protection of Environment
I. GENERAL
The protection and improvement of human environment has become a worldwide
concern.1 The environment has been increasingly threatened by human activities in
different spheres of life. The basic causes for the deterioration of the environment have
been identified as: (1) population explosion, (2) increased urbanisation, and (3) an
expansion in the use of efficient new technology with its associated demands on space,
food and natural resources.2 Together, they have created a sort of environmental crisis
with the rise in pollutant levels of the atmosphere and of maritime, coastal and inland
waters, extinction of species, contraction of genetic resources, deforestation, climate
change and a general deterioration in environment.
Although the world is not environmentally uniform and the nations differ in
environmental resources, but degradation of the environment affects all the nations,
which requires a resolve on the part of all of them to conserve and protect the
environment not only for the present generation but for the future as well. Close
cooperation is required amongst nations to preserve the genetic resources for future, to
stop deforestation and shrinking of land races. Customary international law does not
contain any specific rules on the protection and preservation of the environment. Hence,
treaties are vital in the formulation of rules to regulate the conduct of States, and in this
regard the role of the United Nations is very significant, which has in the last four
decades laid down an impressive institutional framework for this purpose.
II. GENERAL PRINCIPLES OF INTERNATIONAL LAW AND

ENVIRONMENT
International environmental law contains general and particular rules governing State
conduct in respect of the environment, but there is no binding general customary or treaty
law obligation
_________________
1 See, on the subject generally, W. Paul Gormley, Human Rights and Environment: The
Need for International Cooperation (A.M. Sijthoff, Leyden), 1976; I.A. Tecloff and A.E.
Utton (Eds.), International Environmental Law (Praeger, New York), 1974; J. Barros and
D.M. Johnson, The International Law of Pollution (Free Press, London), 1974; F.S.
Johnson, International Environmental Law (1976); J. Schneider, World Public-Order of
the Environment (1979); A.L. Springer, The International Law of Pollution (Forum
Books, London), 1983; A. Gillepsie, International Environment Law, Policy and Ethics
(Oxford University Press) 1997; P. Bernie and A. Boyle, International Law and the
Environment, 2nd ed. (Oxford University Press) 2002. P. Sands, Principles of
International Environmental law, 2nd ed. (Manchester University Press, Manchester)
2003.
2 See the UN Secretary-General's Report on the Problems of the Human Environment,
UN Doc. E/4667, May 26, 1969, para. 8.

Page 313 INTERNATIONAL PROTECTION OF ENVIRONMENT
on States to protect and preserve the environment per se. Under customary international
law, no particular rule exists, except the general principles of State responsibility, which
have some relevance in the area of environment, particularly when a State's actions have
their impact on the territory of another State. It has been a generally accepted principle
that a State should not allow its territory to be used for purposes injurious to the interests
of other States. This principle is reflected in the doctrine - sic utere tuo ut alienum non
laedas (one must use his own right so as not to injure others), which makes the basis of
customary international law on pollution and environmental damage. The duty of a State
to abstain from causing any harm to others was successfully invoked and enforced in the
Trail Smelter case (US v. Canada, 1938 and 1941).3
This case arose out of the operations of a Canadian company, situated on the Canadian
territory, smelting lead and zinc at Trail, on the Columbia River, about 10 miles from the
border with the United States. The fumes containing considerable quantities of sulphur
dioxide emitted by the company were carried through the Columbia River Valley across
into the United States and were alleged to have caused considerable damage to land and
other interests of the State of Washington. The International Joint Commission
(established by the two countries under the Boundary Waters Treaty, 1909), to which the
matter was referred by an agreement between the two countries, reported (in 1931) that
the United States had suffered the damage and awarded $ 350,000 as damages. But the
Trail Smelter continued to operate, and the question this time was referred to arbitration,
which awarded $ 78,000 as compensation for damage suffered by the United States.
However, another question was also put to the Tribunal, that "whether the Trail Smelter
should be required to refrain from causing damage in the State of Washington in the
future and, if so, to what extent?" In answering this question, the Tribunal found Canada
liable and held that it "is responsible in international law for the conduct of the Trail
Smelter. Apart from the undertakings in the Convention between the two nations, it is the
duty of the Canadian Government to see that the conduct of Trail Smelter should be in
conformity with its obligations under international law". The Tribunal stated that:
under the principles of international law ... no State has the right to use or permit the use
of its territory in such a manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein, when the case is of serious consequence and
the injury is established by clear and convincing evidence.4
The basis of liability in Trail Smelter arbitration is closer to the common law principles
on nuisance under municipal law, i.e., liability for unreasonable interference with the
enjoyment of land. States have a duty to prevent, reduce and control pollution and trans-
boundary harm. The ambit of this liability was defined in the Gut Dam Arbitration, in
which Canada, by an agreement with the United States, undertook to pay compensation
in respect of any damage caused by raising the level of the dam across the international
boundary on the St. Lawrence River. The Tribunal, while fixing the liability of Canada,
interpreted the agreement to compensate all United States nationals whose property was
damaged by flooding and erosion due to the dam, and not just those in the immediate
vicinity.5
_________________
3 3 RIAA 1905; 35 AJIL 684 (1941).

4 Ibid., AJIL, at p. 716.

5 See 8 ILM 18.

On the other hand, in the Lake Lanoux Arbitration (Spain v. France),6 Spain complained
that by diverting the waters of the river Carol before its entry into Spain, France had
violated a treaty with Spain. The Tribunal did not find any violation of the treaty, as
Spain failed to show that the effect of diversion had been detrimental to it in any way.
However, if Spain had argued that "the works would bring about an ultimate pollution of
the waters of the Carol or that the returned waters would have a chemical composition or
a temperature or some characteristic which would injure Spanish interests", it could have
been a good claim against France for causing damage to Spain.
The principle of sic Mere tuo ut alienum non laedes has also been made part of the soft
law declarations. It has been made applicable to river pollution and underlies the Helsinki
Rules on the Uses of International Rivers, adopted by the International Law Association
in 1966. Article X of the Rules states:
Consistent with the principle of equitable utilisation of the waters of an international
drainage basin, a State
a. must prevent any new form of water pollution7 or any increase in the degree of
existing water pollution in an international drainage basin which would cause substantial
injury in the territory of a co-basin State, and
b. should take all reasonable measures to abate existing water pollution in an
international drainage basin to such an extent that no substantial damage is caused in the
territory of a co-basin State.
The principle has found a fair mention in Principles 21 and 22 of the Stockholm
Declaration on the Human Environment, 1972.8 Principle 21 declares:
States have ... the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of areas
beyond the limits of national jurisdiction.
Thus, a State is under a duty not to cause any harm to the environment of others. Areas
"beyond the limits of national jurisdiction" include the high seas and Antarctica. Principle
22 emphasises on cooperation amongst member States. It declares:
States shall cooperate to develop further the international law regarding liability and
compensation for the victims of pollution and other environmental damage caused by
activities within the jurisdiction or control of such States to areas beyond their
jurisdiction.
This duty of cooperation is certainly related to the State's obligation not to harm or cause
environmental damage to other States. Hence, Principle 22 further emphasises upon this
duty of abstention from causing harm.
The principle of sic utere tuo has been judicially pronounced in the Corfu Channel case
where the Court stated that every State is obliged "not to allow knowingly its territory to
_________________
6 24 ILR 101 (1957).
7 "Water Pollution" has been defined as "any detrimental change resulting from
human conduct in the natural composition, content or quality of the waters" (Art. IX of
the Helsinki Rules).
8 UN Doc. A/Conf. 48/14; 11 ILM 1416 (1972).

be used for acts contrary to the rights of other States".9 In the Nuclear Tests cases
brought against France by Australia and New Zealand, it was also argued that the fact
that the tests were carried out on French territory in the Pacific Ocean did not entitle
France to infringe the sovereignty of another State by the deposit of nuclear fall-outs over
that State's territory.10 The issue, however, remained unresolved when the Court did not
consider the merits of the dispute in view of the French declaration that those tests would
be last in the series and that the future tests would be conducted underground. The Court
has also accepted the international responsibility of a State in causing harm to the
environment in the case concerning Certain Phosphate Lands in Nauru (Nauru v.
Australia). The dispute was related to the rehabilitation of certain phosphate lands mined
under Australian Administration before Nauruan independence.11
III. INTERNATIONAL EFFORTS TO PROTECT ENVIRONMENT

Apart from the general duty not to harm other States existing under customary
international law, there was no separate body of law to govern the environment. It was
only in the late sixties that concerted efforts started to have a body of rules by way of
treaties and declarations for this purpose. The bulk of environmental law is contained in
treaties, which usually provide an institutional mechanism for their implementation.
However, there already existed few international conventions, which emphasised on the
protection of the environment in a fragmentary manner. These conventions were mainly
confined to the control of pollution of the seas and rivers, and contamination of the
atmosphere through nuclear weapons. The most notable among these conventions were:
1. The International Convention for the Prevention of Pollution of the Sea by Oil,
1954, which made any contravention of the Convention as an offence "punishable under
the laws of the territory in which the ship is registered" (Art. III). This Convention was
later replaced by the International Convention for the Prevention of Pollution from Ships,
1973, (MARPOL) and its 1978 Protocol, which also covered pollution caused by sewage
and garbage, and by other noxious or harmful substances discharged from a ship as well
as oil.12
2. The 1958 Geneva Convention on the High Seas (Arts. 24 and 25), which oblige
States to prevent pollution of seas by oil discharges from ships and enjoins every State to
"take
_________________
9 (1949) ICJ Rep., p. 4, at 22.
10 (1974) ICJ Rep., pp. 253 and 457.
11 (1992) ICJ Rep., p. 240 (Preliminary objections). The case was later withdrawn
from the Court by an agreement between the parties, see (1993) ICJ Rep., p. 322. In the
case concerning the Gabcikovo-Nagymaros Project (about the damming up of the
Danube river), Hungary and Slovakia by an agreement, also asked the Court to decide on
the basis of the principles of general international law and treaties "as the court may find
applicable", see Report of the ICJ (August 1, 1993-July 31, 1994), GAOR, 49th Session,
Supp. No. 4 (A/49/4), pp. 31-32 (1993) ICJ Rep., p. 319. Both the Trail Smelter case and
the Gabcikovo-Nagymaros dispute saw the application of customary rules because of the

bilateral character of the dispute and the obligations there under. In a multiparty dispute
over a wider area, the rules have yet to be tested.
12 12 ILM 1319 (1973), in force since 1983. There are 150 countries party to the
agreement as of December 31, 2010. There are now six annexes to the Convention,
ratified by requisite number of States.

measures to prevent pollution of the seas from the dumping of radioactive waste, taking
into account any standards and regulations which may be formulated by the competent
international organisations".13
3. The 1963 Vienna Convention on Civil Liability for Nuclear Damage. The 1997
Convention on Supplementary Compensation for Nuclear Damage increased the amount
of compensation for nuclear damage.14
4. Article 1 of the International Convention Relating to Intervention on the High
Seas in Cases of Oil Pollution Casualties, 1969,15 required States Parties to take
necessary measures "to prevent, mitigate or eliminate grave and imminent danger to their
coastline or related interests from pollution or threat of pollution of the sea by oil,
following upon a maritime casualty or acts related to such a casualty, which may
reasonably be expected to result in major harmful consequences". In 1973, the
Convention was extended to apply to substances other than oil. In 1990 the Oil Pollution
Preparedness and Response Convention was adopted which relates to the preparation of
emergency response plans for oil spill incidents. In 2000, it was extended by Protocol to
cover hazardous and noxious substances.
5. The Oslo Convention for the Prevention of Marine Pollution by Dumping from
Ships and Aircraft, 1972.16
6. Article IX of the Outer Space Treaty, 1967,17 enjoins the parties to "pursue
studies of outer space, including the moon and other celestial bodies, and conduct
exploration of them so as to avoid their harmful contamination and also adverse changes
in the environment of the Earth resulting from the introduction of extra-terrestrial matter
and, where necessary, shall adopt appropriate measures for this purpose".
7. The 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons on
the Sea-bed and Ocean Floor and Sub-soil Thereof (referred to as the Sea-bed Arms
Control Treaty). Prior to the adoption of this Convention, the General Assembly in its
Resolution 2340 (XXII) of December 18, 1967 stressed the "importance of preserving the
sea-bed and the ocean floor and the sub-soil thereof ... from actions and uses which might
be detrimental to the common interests of mankind". The General Assembly Declaration
on Principles Governing the Sea-bed and the Ocean Floor, and the Sub-soil thereof,
beyond the limits of National Jurisdiction, in para. 11 affirmed that States shall take
appropriate measures and cooperate in the prevention of pollution and contamination and
other hazards to the marine environment including the coastal line, and of interference
with the ecological balance of this environment, and the protection and conservation of
the natural resources of the seas, and the prevention of danger to the flora and fauna of
the marine environment.18
_________________
13 For the text of Convention on the High Seas, see 52 AJIL 842 (1958); 450 UNTS
82.
14 www.iaea.org/Publications/Documents/Infcircs/.../inf500.shtml
15 For text, see 9 ILM 25 (1969).
16 Text in 11 ILM 262 (1972).
17 Treaty on Principles Governing the Activities of States in the Exploration and Use
of Outer Space including the Moon and other Celestial Bodies, 610 UNTS 205.

18 GA Res. 2749 (XXV), Dec. 17, 1970; text in 10 ILM 230 (1970).

Other treaties of significance in this connection are: the 1968 African Convention on the
Conservation of Natural Resources adopted by the Organisation for African Unity
(OAU);19 the Treaty for the Prohibition of Nuclear Weapons in Latin America, 1967; the
Nuclear Weapons Test Ban Treaty, 1963; the Convention on Wetlands of International
Importance especially as Waterfowl Habitat, 1971 (Ramsar Convention); the Convention
Concerning the Protection of the World Cultural and Natural Heritage, 1972 (World
Heritage Convention-WHC).
The environmental problems, however, could be categorised in the following broad areas:
atmospheric pollution, marine pollution, water pollution and water resources
development, land use and conservation of natural resources, urban environmental
problems, and control of selected pollutants.20 Because of the fact that practically all the
inter-governmental organisations that are part of the United Nations system were
involved in activities pertaining to one or the other of these heads given above, they
failed to achieve the desired effects to protect the environmental interests. The
consolidated document prepared in 1971 by the United Nations Administrative
Committee on Coordination (ACC) on "United Nations System and the Human
Environment"21 pointed out that "many problems of the human environment are of inter-
sectoral nature and, in fact, have often been the result of taking too narrow a sectoral
approach".22 In order to have a better coordination among the different inter-
governmental organisations and to create a suitable institutional arrangement at the global
level to conserve and improve the human environment, the United Nations General
Assembly, by its resolution of December 3, 1968, requested the Secretary-General to
prepare a report on the Problems of Human Environment. The report23 was endorsed by
the General Assembly on December 15, 1969. The Secretary-General was requested to
organise and convene a conference on human environment and to assist him in this
endeavour, a 27-member Preparatory Committee was constituted.24
A. Stockholm Conference on Human Environment

The first United Nations sponsored global conference on human environment took place
at Stockholm from June 5-16, 1972, which proved to be a turning point on environmental
law. The Conference mobilised and focused the attention and need of international
cooperation on the protection of environment.25 The work of the Conference was mainly
handled by three committees consisting of all the participating States: (1) the first
committee dealt with human settlements and non-economic aspects; (2) the second
committee was concerned with natural resources and development aspects, and (3) the
third committee related to pollutants and organisational aspects. Apart from these
committees, the Conference established a Working Group
_________________
19 OAU has been replaced by African Union from 9 July 2002.
20 See Brian Johnson, The UN institutional response to Stockholm: A case study in
the international politics of international change, International Organisation, Vol. 26, p.
257 (1972).
21 UN Doc. A/Conf. 48/12, Dec. 17, 1971.

22 It was notwithstanding the ACC's function to attain intra-UN coordination

between the specialised agencies.
23 See op. cit. 2.
24 For the work of the Preparatory Committee, see UN Doc. A/Conf. 48/19, Jan. 10,
1972.
25 See Cecil J. Olmstead, Prospects for regulation of environmental conservation
under international law, in The Present State of International Law and other Essays
(1972), p. 245 at 253.

to examine and consider the draft Declaration on the Human Environment placed before
the Conference.
The deliberations at the Conference led to the adoption of non-binding declarations,
resolutions and recommendations. The principals among them were: (i) the Declaration
on the Human Environment, (ii) an Action Plan for the Human Environment, and (iii) a
resolution on Institutional and Financial Arrangements, (iv) a resolution condemning
nuclear weapons tests especially those carried out in the atmosphere, and the States were
called upon to refrain from conducting such tests as they could contaminate the
environment, (v) a resolution recommending that June 5 be designated as a World
Environment Day, (vi) a resolution on the convening of a Second Conference on the
Human Environment, and (vii) the decision to refer to governments recommendations for
action at the national level.
In addition to these, the Conference also recommended for the convening of a conference
by the United Kingdom towards the end of 1972, for the adoption of the draft articles of a
Convention on ocean dumping. This ultimately resulted into the adoption of the London
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other
Matter, 1972.26 Article I of the Convention requires parties individually and collectively
to promote the effective control of all sources of pollution of the marine environment and
to take all practicable steps to prevent the pollution of the sea by the dumping of waste
and other matter that is liable to create hazards to human health, harm living resources
and marine life, damage amenities or interfere with other legitimate uses of the sea.
1. The Declaration on the Human Environment (DHE)

The DHE contains 26 principles which laid down the basis of an international policy for
the protection and improvement of the environment at the national and international
levels. As mentioned above, Principles 21 and 22 are particularly significant .and
reinstate the customary rules of international law for the protection of environment. The
Declaration's (DHE) significance in the environmental field has been compared with the
Universal Declaration of Human Rights, 1948, in the protection of human rights and
fundamental freedoms.27 Like the Universal Declaration of Human Rights, this is also
non-mandatory in nature, but provides a platform for future action. However, the text of
the Declaration on the Human Environment is less precise than the Universal Declaration
of Human Rights. The principles enshrined in it are very general in nature and, at best,
can be termed as well-phrased environmental guidelines or truths.
The text of the Declaration is an odd mixture of propositions of international law,
scientific generalities and political declarations. For example, Principle 1 states that man
has the fundamental right to freedom, equality and adequate conditions of life, in the
environment of a quality that permits a life of dignity and well-being, and he bears a
solemn responsibility to protect and improve the environment for present and future
generations. Principle 2 requires that the natural resources of the earth including the air,
water, land, flora and fauna, and especially representative samples of natural ecosystems
must be safeguarded for the present and future generations through
_____________________

26 For text, see 11 ILM 1291 (1972); 1046 UNTS 120. The Convention came into force
on Aug. 30, 1975.
27 Louis B. Sohn, The Stockholm Declaration on the human environment, 14 Harvard
ILJ 423, at p. 515 (1973).

careful planning or management, as appropriate. Principle 8 recognises that economic

and social development is essential for ensuring a favourable living and working
environment for man and for creating conditions on earth that are necessary for the
improvement of the quality of life. Principle 18 accepts that science and technology, as
part of their contribution to economic and social development, must be applied to the
identification, avoidance, control and the solution of environmental risks and problems,
and for the common good of mankind. Principle 26 declares that man and his
environment must be spared the effects of nuclear weapons and all other means of mass
destruction. States must strive to reach prompt agreement in the relevant international
organs on the elimination and complete destruction of such weapons. These principles
were endorsed by the General Assembly in its Res. 2996 (XXVII) of December 15, 1972.
2. The Action Plan on Human Environment

The Declaration on the Human Environment was accompanied by an "Action Plan"
consisting of 109 recommendations for the actions to be taken to protect and improve
human environment.28 Its main emphasis is upon national and international action and
cooperation in the identification and appraisal of environmental dangers and problems of
global significance. The content of the Action Plan is grouped into three parts, viz., (1)
the global environmental assessment programme (Earthwatch); (2) environmental
management activities; and (3) international measures to support the national and
international actions of assessment and management (i.e., supporting measures). All the
recommendations are so arranged that they fall in the above three groups. Accordingly,
the component of "Earthwatch" includes: (a) evaluation and review—to provide the basis
for identification of problems and to determine the necessary steps against the impending
environmental crisis, for example, identification and control of pollutants (particularly
Recommendation 79); (b) research—undertaken to create new knowledge of the kinds
specifically needed to provide guidance in the making of decisions; (c) monitoring—to
gather certain data on specific environmental variables and to evaluate such data in order
to determine and predict important environmental conditions and trends; and (d)
information exchange—to disseminate knowledge within the scientific and technological
communities and to ensure that decision makers at all levels shall have the benefit of the
best knowledge that can be made available in the forms and at the times in which it can
be useful.29
The "environmental management" aimed at comprehensive planning about what was
shown to be desirable or necessary for the environment, after taking into account the side
effects of man's activities, in order to save and enhance the human environment for
present and future generations.
The "supporting measures" related to activities pertaining to "Earth watch" and
environmental management, and included education, training, public information,
organisational arrangements, and financial and other forms of assistance, particularly to
developing countries to equip them to take all measures needed for the protection of the
environment.
_________________

28 See Report of the UN Conference on the Human Environment, Stockholm, June

5-16, 1972, UNDoc. A/Conf. 48/14/Rev. 1, pp. 6-27.
29 Ibid., pp. 27-28.

3. Institutional and financial arrangements

The Stockholm Conference made a recommendation to the General Assembly for the
creation of an institutional structure to carry out the Action Plan and to take other such
initiatives and actions as might seem appropriate for the protection of the environment.
The Conference approved the creation of a subsidiary organ of the ECOSOC or of the
General Assembly, which should perform the functions of central policy review and
coordination of all environmental activities of the United Nations system and related
organisations, establish policy guidelines regarding ongoing and planned programmes of
work in the field of human environment. For this, the Conference recommended to the
General Assembly for setting-up a Governing Council for Environmental Programmes
composed of 54 members, elected for a three-year term on the basis of equitable
geographical distribution. The Governing Council was to be supported by the
Environment Secretariat, a Fund, and an Environmental Coordination Board.30
The General Assembly adopted this recommendation of the Conference and created the
Governing Council of 58 members rather than 54 with the new headquarters of the
Programme in Nairobi.31 The General Assembly established the Governing Council,
Secretariat, Fund and the Environmental Coordination Board as recommended by the
Conference as an institutional and financial arrangement for international environmental
cooperation, which together constitute the United Nations Environmental Programme
(UNEP). It was established by the General Assembly on the lines of UNCTAD and
UNDP.
The Governing Council is an inter-governmental body with 58 members32 and provides
overall policy guidance in dealing with environmental concerns of international
importance. The Environment Secretariat administers the programme and acts as a focal
point for environmental action and coordination within the United Nations system to
ensure a high degree of effective management. The Environment Fund, based on
voluntary contributions, is used to finance new environment initiatives, including those
envisaged in the Action Plan. The Environmental Coordination Board, headed by the
Executive Director, is to link the work of the UNEP with other United Nations bodies
concerned with the implementation of environment programme within the framework of
the Administrative Committee on Coordination (ACC) of the United Nations. The
Governing Council of the UNEP is to report annually to the General Assembly through
the Economic and Social Council (ECOSOC), particularly with regard to questions of
coordination and relationship of environmental policies and programmes within the
United Nations system.
Establishment of the UNEP has resulted into a new awareness of the environmental
problems and a zeal to tackle them. It has brought marked attitudinal changes in the
world community in general and developing countries in particular. Currently the UNEP
remains the only international body exclusively concerned with environmental matters,
though some other bodies,
_________________
30 See UN Doc. A/8783.
31 GARes. 2997 (XXVII) of Dec. 15, 1972, adopted by 116 votes in favour, none
against and 10 abstentions.

32 The distribution of membership is as follows: Africa 16; Asia 13; Latin America
10; Western Europe and others 13; Eastern European States 6. The increase in
membership from 54 to 58 was made at the request of Asian countries; see UN
Doc.A/C.2/L. 1243.

like Food and Agriculture Organisation and International Maritime Organisation also
concern themselves with environmental matters in respective areas.
Before the Stockholm Conference began, developing countries perceived it as a new ploy
by developed countries to thwart their development aspirations. They viewed developed
countries responsible for eco-crises and considered that the developed countries should
bear the consequences of their acts on the basis of "polluter pays principle". They hoped
that their developmental needs would be safeguarded in the deliberations of the
Conference and wanted that whatever institution was entrusted with this responsibility
should focus: (i) on their specific problems or ecological system, for example, a river
basin; (ii) on its implications for developing countries and should not be at the cost of
their development, that is, developed countries' environmental action should not
adversely affect or reduce the net level of resource flow from rich to poor countries for
developmental purposes; (iii) the developing countries should not be compelled to bear
the costs of anti-pollution campaigns; and (iv) the environmental protection should be
integrated with development planning. This concern of the developing countries was
reflected in the text of the Action Plan, wherein it was emphasised that "environment
concern "should not be invoked by governments as a pretext for trade discrimination or
for reduced access to markets, and if environmental standards should adversely affect
developing countries' exports or result into trade restriction, measures should be adopted
to compensate developing countries.33 The link between environment and development
also found expression in the Declaration on Human Environment (Principles 4, 8-14, 17,
20 and 23).
B. UNEP during 1972-82 and Other Environmental Developments

The role of the UNEP remained more of a promotional than of an operational nature
during 1972-82.34 In its first session in June 1973, the Governing Council of the UNEP
took an important decision on convening a Conference on Human Settlements (Habitat)
by allocating $5 million to its budget. It approved a report on the Stockholm Conference
Action Plan and decided that the major task of the UNEP should be the identification and
assessment of the environmental problems and to provide supporting measures such as
information, technical assistance, training, and finance to deal with them. It was
concerned with the establishment of necessary machinery for this purpose.
As part of these decisions, in the matter of environment assessment (Earthwatch), the
Global Environmental Monitoring System (GEMS) and the International Referral System
for Sources of Environmental Information (INFOTERRA) were created. The GEMS
keeps a watch on dangerous and injurious pollutants and their transport, renewable
natural resources, climate, health and water quality. The INFOTERRA facilitates access
to the knowledge and experience in the environmental matters, and for this purpose, it has
constituted a global directory and network of information.
_________________
33 See Johnson, op. cit. 1, at pp. 259-69; K. Ramakrishna, UNEP: An assessment of
its impact, 24 IJ1L 346, at p. 348 (No. 3, 1984).

34 See the Report of the Executive Director on the State of the World Environment
1972-82, UNEP/GC. 10/3, Jan. 29, 1984; see also Martin O. Holdgate et al. (Ed.), The
World Environment 1972-82; A Report by the UNEP (Tycooly, Dublin), 1982, p. 637.

At present, 174 countries have designated National Focal Points to coordinate national
INFOTERRA activities. The INFOTERRA has contributed significantly towards
environmental planning, development and technology by providing precise
information.35 Also, the International Register for Potentially Toxic Chemicals (RPTC)
has been established as a world centre for information on toxic chemicals, and their trans-
boundary transport and disposal. The International Programme on Chemical Safety
(IPCS) is providing environmental response data for an increasing number of substances.
And finally, the status of stratospheric zone is under active investigation through the
Background Atmospheric Pollution Monitoring System.
The Habitat Conference was held at Vancouver from May 31 to June 11, 1976.36 Its
overall theme was the formation and maintenance of human settlement. It adopted a
Declaration on Human Environment, which sets out principles in order to prevent
aggravation of situations in human settlements and to attend the basic needs of food,
water, shelter and leisure for disadvantaged people, and to deal with uncontrolled
urbanisation and rural backwardness. Thus, it was closely connected with the protection
of human rights of individuals.37 Subsequent to this, the Commission on Human
Settlements, at its Helsinki meeting from April 25 to May 6, 1983, called upon the States
for the immediate launching of activities related to the international year of shelter for the
homeless (1987 was declared as the year of shelter for the homeless by the General
Assembly). It also called for increased efforts to ensure that adequate land is made
available to the poor and disadvantaged in developing countries to enable them to build
and improve their own shelter and neighbourhoods. As a follow-up action, the United
Nations Conference on Human Settlements (Habitat II) was held at Istanbul from June 3-
14, 1996, where the focus was "Adequate Shelter for All", and "Sustainable Human
Settlements Development in an Urbanising World". Habitat II adopted the Habitat
Agenda and placed urbanisation at the top of national and international agendas. It aimed
to promote new policies and strategies for urban management and housing development,
and to help solve urban environmental problems. It also highlighted the needs and
opportunities for investment in infrastructure and services. The Habitat has become the
UN Human Settlement Programme since 2002.38
In 1973, the United Nations initiated a major study of economic trends, taking into
account such matters as the availability of natural resources, pollution and the economic
impact of pollution abatement. Consequently, the Environment Secretariat of the UNEP
began "Project 2000" to examine alternative patterns of development up to that year, and
their policy implications.39
_________________
35 The 1992 Rio Conference on Environment and Development (UNCED) reiterated
the importance of information for decision-making and requested the strengthening of the
INFOTERRA network to improve information availability (Agenda 21, Chapter 40).
36 UN Doc. A/Conf.70/15, p. 2.
37 See Chhatrapati Singh, International environmental law agenda for sustainable
development and human rights: The Indian perspective. Human Rights Yb., p. 18 (1993).
38 The United Nations Centre for Human Settlements (Habitat) was established in
1978, UN-HABITAT, is based in Nairobi, and has been elevated in status to become the

United Nations Human Settlements Programme on 1 January 2002. UN-HABITAT work

is currently guided by the Medium Term Strategic Institutional Plan (MTSIP) that was
adopted in 2007 by the 21st Governing Council of UN-HABITAT.
See United Nations Human Settlements Programme (UN HABITAT)
www.unbrussels.org/agencies/habitat.html
39 See Report of the Executive Director on the State of the World Environment, op.
cit. 34, p. 9.

In the direction of environmental management, during this period, a number of

international and regional conventions were concluded. Notable among them are:
1. The Convention on International Trade in Endangered Species of Wild Fauna and
Flora, 1973;
2. The International Convention for the Prevention of Pollution from Ships, and its
six Annexes and two Protocols, concluded on November 2, 1973 (MARPOL 73/78), 40
and the related Convention on the Prevention of Marine Pollution from Land-Based
Sources, 1974;
3. The Convention on the Law of the Sea of December 10, 1982, containing Part XII
on the Protection and Preservation of the Marine Environment (Arts. 192-237).
4. The 1979 Convention on Long-Range Transboundary Air Pollution, concluded
between European nations;41 and eight Protocols adopted thereto.42
5. The Paris Convention for the Prevention of Pollution from Land-Based Sources,
1974, including the 1986 amending Protocol,43 concerning pollution of the sea from
rivers, etc.
6. The Convention for the Protection of the Mediterranean Sea against Pollution,
1976.44 There are the 1980 amending Protocol (in force from 1983) and the 1982
Protocol concerning Mediterranean Specially Protected Areas (in force from 1986).
7. Environmental Modification Convention, 1977, prohibiting the hostile use of
environmental modification techniques, affecting the environment adversely.
8. The 1981 West and Central African Marine and Coastal Environment Protection
Convention.45
9. The 1978 Kuwait Regional Convention on the Protection and Development of the
Marine Environment and Coastal Areas, and a Protocol for Cooperation in Combating
Oil Pollution and Pollution by other Harmful Substances.46 Under this Convention, a
regional action plan was adopted by eight coastal States in the Kuwait region for the
protection and development of the marine environment and coastal areas.
Since 1979, the UNEP has been entrusted with the responsibility of administering three
environmental trust funds: for the 1973 Convention on International Trade in Endangered
Species
_________________
40 www.imo.org/.../conventions/listofconventions/.../international-convention-for-
the-prevention-of-pollution-from-ships-(marpol).aspx The Convention address the
incidents of oil spills such as the Torry Canyon in 1967.
41 18 ILM 1442 (1979); entered into force on March 16, 1983.
42 The Protocols are: Sept. 28, 1984 Protocol (in force from Jan. 28, 1988); July 8,
1985 Helsinki Protocol (in force from Sept. 2, 1987); Oct. 31, 1988 Sofia Protocol (in
force from Feb. 14, 1991); Nov. 18, 1991 Geneva Protocol (in force from 1997); 1994
Oslo Protocol (in force from 1998); two 1998 Aarhus Protocols (entered into force in
2003); and 1999 Gothenburg Protocol (entered into force in 2005).
43 13 ILM 352 (1974) in force 1978, Protocol came into force in 1990.
44 15 ILM 290 (1976), came in to force in 1983.
45 20 ILM 746 (1981), came in to force in 1984.
46 Behrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, and UAE are parties.

of Wild Fauna and Flora; for the protection of the Mediterranean sea; and for the
protection and development of the marine environment of the Kuwait region.47
In addition to these, Action Plans were adopted to combat desertification, to improve
water supply and management. A United Nations Conference on Desertification was held
in Nairobi from August 29 to September 9, 1977. The Conference adopted a Plan of
Action, containing 26 recommendations for action at the national, regional and
international levels. The Conference recommended that the UNEP with its Governing
Council and the Environment Coordination Board should be responsible for coordinating
and following up the implementation of the Plan. The United Nations regional
commissions would have the responsibility for coordinating, catalysing and executing
intra-regional programmes adopted by the Member States. These efforts finally led to the
adoption of an International Convention to Combat Desertification (UNCCD) on 17 June
1994 and entered into force in December 1996.48
Realising that environmental policies and actions have to be viewed on a broader context
of inter-relationships between people-resources-environment-development, and that
without such an understanding, it is not possible to have development on a long-term
sustainable basis, emphasis was laid on restraining the wasteful and excessive
consumption, and for the adoption of integrated policies by recognising this relationship
between them. For this purpose, the UNEP in 1978-79 proposed a world conservation
strategy, which was endorsed by the United Nations General Assembly in 1979 and was
successfully launched in 34 countries in March 1980.
In supporting measures, the importance of environmental education and training, and
technical assistance was acknowledged. In this context, by its Decision 8 (II) of March
22, 1974, the Governing Council directed the Executive Director of the UNEP to give
consideration to the role of environmental law in the solution of environmental problems,
and work for the development of international environmental law in collaboration with
governments and inter-governmental bodies. Since then, the UNEP has made useful
efforts in the environmental education programme and in the inclusion of environmental
training programmes in the activities of the cooperating agencies. It is providing
assistance to developing countries, at their request, for enacting the national
environmental legislation.
C. Nairobi Declaration 1982 and Subsequent Developments

To celebrate the tenth anniversary of the 1972 Stockholm Conference on the Human
Environment, 105 nations gathered at Nairobi from May 10-18, 1982, and adopted the
"Nairobi Declaration".49 While endorsing the Stockholm Declaration, it expressed
concern about the present state of environment, particularly deforestation, soil and water
degradation, desertification, changes in the ozone layer, the increasing concentration of
carbon dioxide and acid rain, pollution, and the extinction of animal and plant species.
The Declaration stressed on the collective and individual
_________________
47 See J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London),
1989, p. 414.
48 The UNCCD has 193 countries Parties, making it truly global.

49 For the text of the Declaration, see the 10th Sess. Report of the Governing Council of
UNEP (1982), pp. 49-51. The Nairobi Declaration was supplemented by an elaborate
World Charter for Nature on the conservation of nature adopted by the UN General
Assembly, see GA Res. A/RES/37/7(XXXVII), 28 October 1982.

responsibility of governments and peoples to ensure that future generations should be

able to live in a condition which guarantees a life in human dignity for all. It asked for
specific attention to technical innovation in' promoting resource substitution, recycling
and conservation. States were asked to promote the progressive development of
international environmental law, including conventions and agreements.
The Nairobi meeting also decided to create a special commission to propose long-term
environmental strategies for achieving "sustainable development to the year 2000 and
beyond".50 The decision was endorsed by the Governing Council of the UNEP in 1987,
and later by the General Assembly. In pursuance of the Nairobi Declaration, the General
Assembly by its resolution in 1982, established an Inter-governmental Committee on the
Development and Utilisation of New and Renewable Sources of Energy. The Committee
was entrusted with the task of recommending policy guidelines to different organisations
and bodies within the United Nations system regarding new and renewable sources of
energy, and monitoring its implementation, and to review the activities of the United
Nations system in that domain. The Committee, since 1983, has supported various pilot
projects for the production of energy from sun, wind and household and other wastes, as
well as the environmental impact of their production, use and transport.
In order to have a better coordination within the United Nations system and with an
objective to have an integrated means of dealing with planning, programming, budgeting
and evaluation in the field of environment, the System Wide Medium-Term Environment
Programme (SWMTEP) was evolved in 1982 by the Executive Director of the UNEP.
The SWMTEP is the environment programme of the United Nations system in which the
institutions by their names are listed with specific responsibilities. Between 1984-89, the
SWMTEP followed the pattern set by the UNEP in its programme matters, which was
divided into 15 heads: environment and development; environmental awareness;
atmosphere; oceans; waters; lithosphere; natural disasters; terrestrial ecosystems; living
resources; health and welfare; working environment; human settlements; energy; industry
and transportation; and the arms race and environment. Each of these programmes
contained two or more sub-programmes bringing the total to 38 programmes.51 Each
sub-programme is structured into five sections: problem addressed; legislative authority;
general and specific authorities; the situation at the end of 1983; and the period of 1984-
89. The Governing Council's decision of May 1981 identifying the priority areas for
developing countries was also fully accommodated in the SWMTEP. The areas were:
environment and development; terrestrial eco-systems, including desertification;
supporting measures; human settlements and human health; natural disasters; energy and
oceans.52
In 1987, the World Commission on Environment and Development (WCED), in its report
entitled Our Common Future (Brundtland Report) emphasised on the conservation of
natural resources while striving for the development goals. It was noted that the
environmental implications
_________________
50 Ibid., at p. 41.
51 See UNEP/GC/10/7, March 25, 1982, p.13.

52 Council Decision No. 9/12 of May 26, 1981, see GAOR, Sess. 36, Supp. No. 25
(A/36/25), pp. 116-117.

of poverty and underdevelopment and the inter-relationships between development-

environment-population and resources must be taken into account in the process of
development. The environment policies should be geared to achieve "sustainable
development" which was stated to mean "a development appropriate to the needs of
today's generation, yet without jeopardising future generations' chances of satisfying their
own needs and choosing their life style. The demand that the development be made
'sustainable' applies to all countries and all people".53 The Brundtland report later
rechristened as the World Charter on Nature, which called for "sustainable development".
The most significant development of the 1980s, after the Nairobi Conference, was the
Vienna Convention for the Protection of the Ozone Layer concluded in March 1985,54 to
be followed by the Montreal Protocol on Substances that Deplete the Ozone Layer of
September 16, 1987.55 The Convention and Protocol were adopted to deal with an urgent
environment problem of global warming due to industrial emissions of certain harmful
gases in the atmosphere. The gases identified were chlorofluorocarbons (CFCs), fully
Halogenated CFCs (HCFCs), halons used in fire extinguishers and refrigeration, and
carbon-dioxide from the burning of coal, oil, fossil fuels, and industrial gases. These
emissions have threatened the Ozone layer (i.e., a layer in the upper atmosphere) which
works as a protective umbrella from the ultra-violet radiation from the sun that adversely
affects the life on earth. For example, ultra-violet radiation from the sun causes skin
cancer, cataracts, destruction of aquatic life and vegetation. The concentration of these
gases in the ozone layer will progressively warm the earth's atmosphere, causing the
polar icecaps (glaciers of the Arctic and Antarctic) to melt, with the consequential rise in
sea levels by approximately 300 feet, which may submerge many sea ports and towns of
the world. Research has also revealed that the excessive emissions of carbon-dioxide and
methane, which will concentrate in the upper atmosphere, would cause "greenhouse
effects".
The Convention on the Ozone Layer, 1985, provides for scientific cooperation and
periodic conferences to contain the emission of these gases. The Protocol requires the
parties to limit the consumption of CFCs and halons. It provides a timetable on which the
production of those substances must be phased out and eventually eliminated. It aimed at
curtailing CFCs by half by 1998. Parties to the Protocol agreed to set year 2013 as the
time to freeze the consumption and production of HCFCs. They also agreed to start
reducing its consumption and production in 2015. The Protocol originally required parties
other than developing countries to freeze consumption and production of CFCs at 1986
levels (the base year), to reduce them by 20 percent and then an additional 30 percent by
1999, and to freeze consumption of halons at 1986 levels. But it contains separate phase-
out schedules for developed and developing countries, and countries with economies in
transition. It also provides an "essential use" exemption, which allows countries to
consume a limited quantity of these chemicals. Several countries
_________________
53 WCED, Our Common Future, p. xv (Oxford University Press, New York), 1987.
54 Text in 26 ILM 1529 (1987), in force from Sept. 22, 1988, India acceded on
March 18, 1991.

55 26 ILM 1550 (1987), in force Jan. 1, 1989, 196 States parties. India acceded on
June 19, 1992, China on June 14, 1991. Seven amendments have been adopted to the
Protocol since its adoption; in 1990 (London- 195 countries parties), 1991 (Nairobi),
1992 (Copenhagen- 192 parties), 1993 (Bangkok), 1995 (Vienna), 1997 (Montreal- 182
parties), and 1999 (Beijing- 166 parties). See http://ozone.unep.org/Ratification status/

have sought the exemption. Subsequently, Helsinki meeting of March 11, 1989,
stipulated for the total elimination of CFCs by the year 2000, and for a freeze, on the
consumption of halons. Non-signatories to the Protocol are not allowed to import certain
CFCs and halons from the signatory countries. They are also not able to import
technology or obtain financial aid to produce such chemicals replacing existing chemicals
emitting CFCs. The formula of targets and timetables under the Protocol has been
subsequently employed in other international agreements controlling air pollutants and in
the Kyoto Protocol to the UN Framework Convention on Climate Change.
India and China initially did not sign the Protocol on the basis of "polluter pays
principle", and "common but differentiated responsibility principle". They demanded
compensation to switch over to new technology to replace the sources of energy emitting
harmful gases in the upper atmosphere. They also wanted free/concessional transfer of
technology to them to replace the present technology. In fact, the developed world
releases 95 per cent of the total emission of CFCs. The Protocol alloted developing
countries 300 grams per capita consumption per year, until 1989, and then this
consumption to be frozen at the 1989 level. Developed countries were allowed 500 grams
per capita consumption per year until 1989. From this level it has to be reduced. India
initially did not see any justification in ratifying the Protocol, since its release of CFCs is
very negligible, equal to one and half day's total yearly release of the world, i.e., 0.3 kg as
compared to developed countries 1 kg per capita consumption.
D. Developments after 1990

In order to adopt some kind of a code on environmental behaviour to regulate
environmental related activities, in 1989, on the proposal of the Soviet Foreign Minister,
a Summit Meeting on environment in the form of United Nations Conference on
Environment and Development (UNCED) was convened at Rio de Janerio from June 3-
14, 1992, also called the "Earth Meet". The Conference principally focused on the
problem of "greenhouse effects", in terms of the level of gas emission of carbon dioxide
and methane by various nations, the depletion of the ozone layer due to CFCs, as well as
the issues of the depletion of biodiversity and the preservation of tropical forests.
Deliberations on these issues resulted into the adoption of the United Nations Framework
Convention on Climate Change (FCCC), the Convention on Biological Diversity (CBD)
as well as the Rio Declaration, "Agenda 21", and other relevant international agreements
relating to the environment, economic development and human rights.56 These
instruments, churned out of the "Earth Summit", together recognise the need to develop a
broader range of regulatory techniques to address environment and development issues,
which were so far based upon traditional approaches of "command-and-control"
principle, economic instruments, and integrated pollution control.
_________________
56 For more details on the Conference, see Mostafa K. Tolba, Osama A. El-Kholy, E. El-
Hinnawi, M.W. Holdgate, D.F. McMichael, and R.E. Munn, The World Environment
1972-92 (Chapman and Hall, on behalf of UNEP 1992); UN Publication: Agenda 21, The
UN Programme of Action from Rio (1992).

1. Climate Convention (FCCC)

The groundwork for the Framework Convention began in 1988, when the United Nations
General Assembly adopted resolution 43/53 recognising climate change as a common
concern of humanity. In that year, the UNEP and the World Meteorological Organisation
(WMO) jointly established the Inter-governmental Panel on Climate Change (IPCC) to
investigate the potential severity and impact of global climate change, and to suggest
possible policy response. The IPCC's First Assessment Report was published in August
1990, and discussed at the Second World Climate Conference later that year. In its report,
the IPCC concluded that atmospheric concentration of greenhouse gases was increasing
and if this trend continued, it would lead to the warming of the earth's surface. Further, it
concluded that climatic change could have highly destabilising effects on human society
and would affect agriculture, forestry, natural eco-systems, water resources, human
settlements, oceans and coastal zones.57 In 1989, the General Assembly noted that
existing legal instruments and institutions dealing with climate change were insufficient
and that a framework convention on climate change was needed. An Inter-governmental
Negotiating Committee (INC), supported by the UNEP and the WMO, was set up in
1990, for a Framework Convention on Climate Change which adopted the Convention on
May 9, 1992, and was opened for signature at Rio.58
The aim of the Climate Convention is to stabilise atmospheric concentrations of
greenhouse gases at a level that will prevent human activities (anthropogenic) from
interfering dangerously with the global climate system. The Convention itself, however,
does not set any mandatory limits on greenhouse gas emissions for individual countries
and contains no enforcement mechanisms. Instead, it has been done through protocols
that set mandatory emission limits. The principal protocol in this regard is the Kyoto
Protocol, adopted in 1997.59 All parties to the Convention have the obligation to produce
inventories and greenhouse gas sources not controlled by the Montreal Convention and to
formulate national and, where appropriate, regional programmes to reduce global
warming, to cooperate in preparing for adaptation to the impacts of climate change, and
to promote scientific research. While doing so, parties may take into account their
"common but differential responsibilities and their specific national and regional
development priorities." The Convention obliges Annexure I parties (developed countries
and countries with economies in transition) to take measures in order to bring by the year
2000, their greenhouse gas emissions to the levels prevailing in 1990 (Art. 4). States are
required to report periodically on their level of emissions and efforts to slow climate
change and other information related to implementation of the Convention commitments
to the Conference of the Parties [COPs] (Art. 12). To enable developing countries to meet
their obligations under the Convention, developed countries [Annexure II parties] have
agreed to provide "new and
_________________
57 The IPCC advises governments on the state of ongoing research.
The IPCC has adopted its 5th Report in the 32nd Session, which has been approved by
the governments on Oct. 10, 2010. For more details, see http://www.ipcc.ch/
58 At Rio, 150 nations signed it. The Convention came into force on March 21, 1994;
192 parties including the EU in December 2009. India became a party on Nov. 1, 1993.

59 For the text of the Protocol, see unfccc.int/resource/docs/convkp/kpeng.html Currently

there are 193 parties, including the EU. It sets binding targets for 37 industrialised
countries.

additional" financial assistance, including for the transfer of technology. Duty has also
been imposed on developed countries to help developing countries that are particularly
vulnerable in meeting costs of adaptation to the adverse effects of climate change (Art.
4(4)). Financial mechanism for this assistance is the Global Environment Facility (GEF),
a fund administered jointly by the World Bank, the UNDP and the UNEP (Art. 11). GEF
is also the financial mechanism under the CBD. The Convention provides the dispute
settlement procedure between the parties (Art. 14).
The parties to the Convention meet annually from 1995 in Conferences of the Parties
(COP) to assess progress in dealing with climate change. Despite the obligations
contained in the Convention, no progress was registered in limiting the emissions of
greenhouse gases till the third Conference of the Parties (COP 3). In December 1997, the
COP 3 adopted the Kyoto Protocol (the meeting took place in Kyoto, Japan). The
Protocol entered into force on 16 February 2005. The Protocol outlined the greenhouse
gas emissions reduction obligation for Annex I countries with explicit, unambiguous
targets and timetables. The core obligation of the Protocol states that Annex I parties
"shall, individually or jointly, ensure that their aggregate anthropocentric carbon dioxide
equivalent emissions of specific greenhouse gases do not exceed their assigned amounts"
and that overall omissions of such parties are reduced "by at least 5 percent below 1990
levels in the commitment period 2008-2012"60 (Art. 3(1)). The Protocol also established
the 'flexibility mechanisms' (commonly known as Kyoto mechanisms) to achieve these
targets and timetables related to emissions trading, clean development mechanism
(between Annex I [31 countries] and non-Annex I parties) and joint implementation
(projects between Annex I parties).61 Annex I countries agreed to legally binding
reductions in greenhouse gas emissions by 5.2% from the 1990 level. Most industrialised
countries and some central European economies in transition agreed to 6 to 8% below
1990 levels between the years 2008-2012, defined as the first emissions budget period.62
At COP 15, which took place in Copenhagen, Denmark in December 2009, the over-all
goal for the COP and the meeting of the parties (MOP 5)63 was to establish a global
climate agreement for the period from 2012 when the first commitment period under the
Kyoto Protocol
_________________
60 The 1990 emission levels were accepted as benchmark by the COP (decision
2/CP.3) were the values of "global warming potential" calculated for the IPCC Second
Assessment Report.
61 To ensure its effectiveness, the Protocol could enter into force upon the adherence
of 55 States including Annex I parties representing 55% of that group's 1990 carbon
dioxide emissions. Annex I parties participation was contingent on their satisfactory
adherence to the Kyoto mechanisms. As of July 2010, there have been 191 States that
have signed and ratified the Protocol.
62 The most notable non-party to the Protocol is the United States, which is a party
to UNFCCC and was responsible for 36.1% of the 1990 emission levels of Annex I
countries. It would be required to reduce its total emissions on an average of 7% below
1990 levels. Most advanced developing countries like China, India and Brazil are still in
the non-Annex or similar group. This makes them without obligations in the Kyoto

Protocol to limit their carbon dioxide emissions. In November 2006, an amendment to

Annex B of the Kyoto protocol was adopted, which has not yet come into force.
63 MOP was established in 1997 at Kyoto to the Kyoto Protocol. Its first meeting
was held in 2005, at COP 11 in Montreal. It is a facilitative branch of the Kyoto Protocol.
There are also two permanent subsidiary bodies of the UNFCCC - the Subsidiary Body
for Scientific and Technological Advice (SBSTA) and the Subsidiary Body for
Implementation (SBI).

expires and which was required to be renewed. Ministers and officials from 192 countries
took part in the Copenhagen meeting. As many of the Annex 1 developed countries were
found to be reluctant to fulfill commitments under the Kyoto Protocol, the COP 15 laid
foundation for a post-Kyoto agreement. The Conference adopted a non-binding
agreement for long-term action. A 13-paragraph 'Copenhagen Accord' was negotiated by
approximately 25 parties including the United States and China, to enable and support
enhanced action on mitigation, including substantial finance to reduce emissions from
deforestation and forest degradation (REDD-plus), adaptation, technology development
and transfer and capacity-building. The accord was notable in that it referred to a
collective commitment by developed countries for new and additional resources up to
USD 30 billion for the period 2010-2012, which will be channeled through international
institutions. In the context of meaningful mitigation actions and transparency on
implementation, developed countries committed to mobilise jointly 100 billion USD a
year by 2020 to address the needs of developing countries. For this purpose, the
Copenhagen Green Climate Fund was purposed to be established as an operating entity of
the financial mechanism of the Convention to support the Convention activities of the
developing countries, including REDD-plus, capacity-building, technology development
and transfer. Longer-term options on climate financing mentioned in the Accord are
being discussed within the UN Secretary General's High Level Advisory Group on
Climate Financing. The negotiations on extending the Kyoto Protocol had remained
unresolved as did the negotiations on a framework for long-term cooperative action.
The outcome of the COP 16, which was held in Cancun, Mexico, in November 2010 was
once again a non-binding agreement instead of a binding treaty. Based on the Fourth
Assessment Report of the IPCC, the Conference recognised the warming of the climate
system and an increase in global average temperatures since the mid-twentieth century
due to the increase in anthropogenic greenhouse gas concentrations. For this it recognised
that deep cuts in global greenhouse gas emissions are required, with a view to hold the
increase in global average temperature below 2°C above pre-industrial levels. It
emphasised that Parties should take urgent action to meet this long-term goal, consistent
with science and on the basis of equity. Further, it was realised that addressing climate
change requires a paradigm shift towards building a low-carbon society. The agreement
called upon rich countries to reduce their greenhouse gas emissions as pledged in the
Copenhagen Accord, and for developing countries to plan to reduce their emissions. The
Parties decided to establish a Green Climate Fund, to be designated as an operating entity
of the financial mechanism of the Convention proposed to be worth $100 billion a year
by 2020, to assist poorer countries in financing emission reductions and adaptation. The
Fund shall be governed by a board of 24 members; the trustee shall administer the assets
of the Green Climate Fund only for the purpose of, and in accordance with, the relevant
decisions of the Green Climate Fund Board. The Conference established a Standing
Committee to assist the Conference of the Parties in exercising its functions with respect
to the financial mechanism.
For technology development and transfer, Conference decided to establish a technology
mechanism, consisting of a Technology Executive Committee (comprising of 20 expert
members) and a Climate Technology Centre and Network. There was, however, no

agreement on how to extend the Kyoto Protocol, or how the $100 billion a year for the
Green Climate Fund will

be raised, or whether developing countries should have binding emissions reductions or

whether rich countries would have to reduce emissions first.64
2. Convention on Biological Diversity (CBD)

The CBD65 defines biodiversity broadly to encompass the variability among living
organisms from all sources, including, inter alia, terrestrial, marine, and other aquatic
ecosystems and the ecological complexes of which they are part. The Convention has
three main objectives: (i) conservation of biological biodiversity; (ii) sustainable use of
its components; and (iii) fair and equitable sharing of benefits arising from genetic
resources, including by appropriate transfer of relevant technologies, taking into account
all rights over those resources and to technologies, and by appropriate funding (Art. 1). It
obligates the parties to protect traditional knowledge of indigenous/local communities
and regulate access to genetic resources and requires prior informed consent of the party
providing resources. The Convention has established a quid pro quo arrangement
between the access to genetic resources/traditional knowledge and the transfer of
technology, including biotechnology (Arts. 15 and 16). It obligates putting into effect of
"all practicable measures to promote and advance priority access on a fair and equitable
basis by Contracting Parties, especially developing countries, to the results and the
benefits arising from bio-technologies based upon genetic resources provided by those
Contracting Parties. Such access shall be on mutually agreed terms" (Art. 19).
Conservation of biodiversity is to be carried out by identification, monitoring, as well as
by in situ and ex situ conservation (Arts. 7-9). It also contains provisions for financial
resources to support activities undertaken towards the objectives of the Convention (Art.
20), financial mechanisms to provide financial resource to developing countries on a
grant or concessional basis (Art. 21), and settlement of disputes (Art. 27). The
Convention establishes a Conference of Parties (COP), a Secretariat and a Subsidiary
Body on Scientific, Technical and Technological Advice (SBSTTA).
On 29 October 2010, the COPs of the CBD adopted the Nagoya Protocol on Access to
Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their
Utilisation to the Convention on Biological Diversity. The Protocol is open for signature
by Parties to the CBD from 2 February 2011 until 1 February 2012. The Protocol broadly
reiterates the approach of the CBD. It aims at sharing the benefits arising from the
utilisation of genetic resources in a fair and equitable way, including by appropriate
access to genetic resources and by appropriate transfer of relevant technologies, taking
into account all rights over those resources and to technologies, and by appropriate
funding, thereby contributing to the conservation of biological diversity and the
sustainable use of its components.66
In January 2000, the Cartagena Protocol on Biosafety of the Convention, also known as
the Biosafety Protocol, was adopted in the extraordinary meeting of the Parties. The
Protocol entered into force on 11 September 2003. The Biosafety Protocol seeks to
protect biological
_________________
64 See en.wikipedia.org/…/2010_United_Nations_Climate_Change_Conf

65 For the text, see 31 ILM 818 (1992). 168 States signed it at Rio, entered into force on
Dec. 29, 1993, presently 193 parties. The US signed on June 4, 1993, not yet ratified.
66 For the text of the Protocol, see www.cbd.int/abs/

diversity from the potential risks posed by living modified organisms (LMOs)67 resulting
from modern biotechnology. The Protocol is guided by the precautionary approach in its
objective of trying to achieve safe transfer, handling and use of LMOs that may have
adverse effects on the conservation and sustainable use of biodiversity, including
considerations of risks to human health (Art. 1). It mainly focus on trans-boundary
transfers; the decision procedures for import and export of LMOs for intentional
introduction into the environment and for those LMOs intended for direct use as food or
feed, or for processing, differ in their complexity and stringency. The Protocol addresses
the obligations of Parties in relation to the trans-boundary movements of LMOs to and
from non-Parties to the Protocol. The Biosafety Protocol makes clear that products from
new technologies must be based on the precautionary principle and allow developing
nations to balance public health against economic benefits. Countries may be able to ban
imports of a genetically modified organism if they feel there is not enough scientific
evidence that the product is safe and requires exporters to label shipments containing
genetically altered commodities such as soyabean or cotton.68 In addition to the dispute
settlement provisions of the CBD, the Protocol includes provisions on compliance (article
34), as well as liability and redress for damage resulting from trans-boundary movements
of LMOs (Art. 27). A facilitative compliance mechanism has been established by the
COP serving as the Meeting of the Parties to the Protocol (COP-MOP). A Compliance
Committee assists the parties in fulfilling their obligations. With respect to liability and
redress, the parties have decided to draft legally binding rules and procedures
separately.69
3. Agenda 21
Agenda 21 is an action plan of the United Nations related to sustainable development. It
contains a check list of do's and don'ts to protect the environment in the 21st century. It
stresses on sustainable development and reflects the idea that the international trade and
the protection of the environment are of complementary value.70 The Agenda was a
response to United Nations General Assembly's call of December 22, 1989 to halt and
reverse the effects of environmental degradation "in the context of increased national and
international efforts to promote sustainable and environmentally sound development in
all countries". Towards this end, 40 chapters of the Agenda are divided into the following
four main sections:
1. The social and economic dimensions: It deals with international cooperation to
accelerate sustainable development in developing countries, combating poverty, changing
_______________________
67 Living modified organisms (LMOs) resulting from modern biotechnology are broadly
equivalent to genetically modified organisms (GMOs). The difference between an LMO
and a GMO is that a LMO is capable of growing, and typically refers to agricultural
crops. GMOs include both LMOs and organisms which are not capable of growing, i.e.,
are dead.
68 See for more details www.cbd.int/ Currently there are 160 parties to the Protocol.
India ratified the Protocol on Jan 17, 2003.

69 See L. Boisson de Chazournes, U. Thomas, et al., The Biosafety Protocol: Regulatory

Innovation and Emerging Trends, Revue Suisse de droit international, 2000, pp. 513-557.
70 See UN Doc. A/Conf. 151/14 (1992), Provisions 2.19, 2.22, etc.; see also Thomas J.
Schoenbaum, AGORA trade and environment, 86 AJIL 724 (1992).

consumption patterns, demographic dynamics and sustainability, protecting and

promoting human health, promoting sustainable human settlements, policy-making for
sustainable development.
2. Conservation and management of resources for development: It relates to
atmospheric protection, an integrated approach to land resource use, combating
deforestation, protecting mountain ecosystems, meeting agricultural needs without
destroying the land, sustaining biological diversity, management of biotechnology in an
environmentally sound way, safeguarding the ocean's resources, managing and protecting
fresh water resources, safe use of toxic chemicals, managing hazardous wastes, seeking
solutions to solid waste problems, management of radioactive wastes.
3. Strengthening the role of major groups: It includes the action for women, roles of
children and youth, NGOs, local authorities, business and workers in sustainable and
equitable development, social patterns for sustainable development.
4. Means of implementation: Implementation includes science, technology transfer,
education, financial resources and mechanisms, making environmentally sound
technology available to all, science for sustainable development, promoting
environmental awareness, building national capacity for sustainable development,
strengthening institutions for sustainable development, international legal instruments
and mechanisms, bridging the data-gap.
Implementation of the Agenda by member States remains essentially voluntary.
4. Rio Declaration
The Rio Declaration on Environment and Development, adopted at the "Earth Summit",
contains 27 Principles, which reflected two major concerns: the deterioration of the
environment and its ability to sustain life, and the deepening awareness that long-term
economic progress and the need for environmental protection must be seen as mutually
interdependent. The Declaration emerged as a compromise between industrialised and
developing countries. Developing countries required more detailed references to their
specific concerns, especially their sovereign right to development, acknowledgement that
industrialised countries were primarily responsible for current environmental problems,
and the need for new financing and technology to enable developing countries to avoid
taking the same polluting route to development as done by the developed countries.
Principle 11 of the Rio Declaration calls for the adoption of environmental standards at
the national level. Principle 16 encourages the internationalisation of environmental costs
and the use of economic instruments, taking into account the approach that the polluter
should, in principle, bear the cost of pollution ("polluter should pay" principle), with due
regard to the public interest and without distorting trade and investment. This relationship
between environment and development is also stressed in Principle 12 of the
Declaration.71 Principle 15 incorporates the precautionary principle which states that the
precautionary approach shall be widely applied by States according to their capabilities to
protect the environment. Where there are threats
_________________
71 See also Art. 3(5) of the Climate Change Convention.

of serious or irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental degradation.
The Declaration is not legally binding, but a strong moral commitment exists to adhere to
the Principles. A non-legally binding set of Principles was also adopted for the
management, conservation and sustainable development for all types of forests. The Food
and Agriculture Organisation (FAO), as a follow-up action to the "Earth Summit", hosted
a meeting in March 1995 at Rome on the protection, sustainable development and
conservation of the world's forests. Ministers from 121 participating countries adopted a
"Rome Statement on Forestry", which emphasised on enhancing international
cooperation, including mobilisation of financial resources for the benefit of developing
countries, and called upon the international community to assess the role of voluntary
certification in promoting sustainable forest management.72 In June 1995, a Convention
on Desertification was adopted.
E. United Nations Commission on Sustainable Development

After the Earth Summit, the United Nations Commission on Sustainable Development
(CSD) was established by the UN General Assembly in December 1992 to ensure
effective follow-up of United Nations Conference on Environment and Development
(UNCED) to fulfil a range of functions. These functions broadly fell into the following
three categories:73
1. Monitoring the implementation of Agenda 21, which means gathering information
from governments, various United Nations agencies and bodies, international institutions
and NGOs.
2. Reviewing the availability of financial and technical resources, i.e., to determine
whether, and to what extent, developed countries have honoured their commitment of
Agenda 21 by providing resources to developing countries to enable them to implement
Agenda 21.
3. Acting as a forum for discussion, consensus-building and decision-making, which
will include identifying weaknesses in the international legal and institutional regime,
proposing areas for regulation by treaty, and forging consensus on new issues. The new
areas which require firm actions are regional transboundary air pollution and fresh water
conventions. The Commission should establish effective subsidiary bodies, disseminate
information, and play a role in developing and assessing the implementation of national
strategies.74
The CSD acts as a high-level forum on sustainable development and has acted as
preparatory committee for summits and sessions on the implementation of Agenda 21.
The United Nations Division for Sustainable Development acts as the secretariat to the
Commission and works within the context of Agenda 21.
_________________
72 See UN Newsletter, Vol. 50, p. 2 (No. 14, April 8, 1995).
73 GA Res. A/RES/47/191 (1992). It is a functional commission of the UN Economic
and Social Council (ECOSOC), CSD has 53 member States (about one-third of the
members are elected on a yearly basis). It meets annually at New York.

74 See FIELD (Foundation for International Environmental Law and Development),

Report of a Consultation on Sustainable Development: The Challenge to International
Law, p. 2 (April 27-29, 1993).

F. Hazardous Substances and Activities

Under Agenda 21, the UNEP took initiative to regulate the transboundary movement of
hazardous substances and activities, which led to the conclusion of 1989 Basel
Convention, 1998 Rotterdam Convention, 2000 Cartegena Protocol on Living Modified
Organisms,75 and the 2001 Stockholm Convention on Persistent Organic Pollutants.
The Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal is concerned with regulating the transboundary movement of
hazardous waste, particularly to prevent transfer of hazardous waste from developed to
less developed countries, and ensuring sound environmental management in respect of its
disposal.76 The Convention is intended to minimize the amount and toxicity of wastes
generated. It does not, however, address the movement of radioactive waste. A waste will
fall under the scope of the Convention if it is within the category of wastes listed in
Annex I of the Convention and it does exhibit one of the hazardous characteristics
contained in Annex III. In other words, it must both be listed and contain a characteristic
such as being explosive, flammable, toxic, or corrosive. Annex II lists other wastes such
as household wastes and residue that comes from incinerating household waste. A waste
may fall under the scope of the Convention if it is defined as or considered to be a
hazardous waste under the laws of either the exporting country, the importing country,
or/and of the countries of transit. In addition to conditions on the import and export of the
above wastes, there are stringent requirements for notice, consent and tracking for
movement of wastes across national boundaries. It is significant to note that the
Convention places a general prohibition on the exportation or importation of wastes
between Parties and non-Parties. The exception to this rule is where the waste is subject
to another treaty that does not take away from the Basel Convention. The United States is
a notable non-Party to the Convention and has a number of such agreements for allowing
the shipping of hazardous wastes to Basel Party countries. Parties to the Convention must
honour import bans of other Parties. In 2002 the Convention established a compliance
mechanism to facilitate early detection of implementation and compliance problems such
as illegal trafficking or meeting reporting obligations.
The Basel Convention calls upon countries for an overall reduction of waste generation
(Art. 4). It thus focuses on sound environmental management seeking to eliminate waste
reduction and pollution prevention at its source of generation through best environmental
practices. The Convention states that illegal hazardous waste traffic is criminal but
contains no enforcement provisions. There is no liability and compensation provision for
environmental damage arising out of the non-compliance with the Convention. In
December 1999, the Fifth Conference of Parties (COP-5) adopted the Basel Protocol on
Liability and Compensation. The objective of the Protocol is to provide for a
comprehensive regime for liability as well as adequate and prompt compensation for
damage resulting from the transboundary movement of hazardous wastes and other
wastes, including incidents occurring because of illegal traffic in those wastes. The
Protocol provides who will be financially responsible in the event of an incident.77 In
1995 the Basel Ban Amendment to the Basel Convention was adopted, which
_________________
75 See above, p. 331-332 for Cartegena Protocol.

76 The Convention entered into force on May 5, 1992; India became party on March 15,
1990. Total number of Parties is 175.

is not yet in force.78 The Amendment prohibits the export of hazardous waste for any
reason, including recycling, from a list of developed (mostly OECD) countries to
developing countries. An area of special concern for advocates of the Amendment was
the sale of ships for salvage and shipbreaking.
The 1998 Rotterdam Convention on Prior Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade [commonly known as the
Rotterdam Convention] and the 2001 Stockholm Convention on Persistent Organic
Pollutants addressed the regulatory gap in respect of substances that are 'toxic, persistent
and bio-accumulative and whose use cannot be controlled'. The Rotterdam Convention
establishes a prior informed consent regime in respect of the importation of toxic
substances, many of which are subject to the Stockholm Convention. Rather than banning
the export/import of hazardous chemicals and pesticides outright, it promotes open
exchange of information and calls on exporters of hazardous chemicals to use proper
labelling, include directions on safe handling, and inform purchasers of any known
restrictions or bans. Parties can decide whether to allow or ban the importation of
chemicals listed in the treaty, and exporting countries are obliged to ensure that producers
within their jurisdiction comply.79
The Stockholm Convention on Persistent Organic Pollutants, adopted in 2001 by the
UNEP, aims to eliminate or restrict the production and use of persistent organic
pollutants (POPs), which are defined as "chemical substances that persist in the
environment, bio-accumulate through the food web, and pose a risk of causing adverse
effects to human health and the environment". The Convention seeks to eliminate or
reduce the release of POPs into the environment through controls over the production or
use of intentionally produced POPs (i.e., industrial chemicals or pesticides), management
and reduction of stockpiles, and minimisation and elimination of unintentionally
produced POPs (i.e., industrial by-products such as dioxins and furans).80
In January 1991, the Organisation of African Unity adopted the Bamako Convention on
the Ban of the Import and the Control of Trans-boundary Movement and Management of
Hazardous Wastes within Africa.81 The Bamako Convention arose out of the necessity to
prohibit trade of hazardous waste to less developed countries (LDCs) in Africa, which
could not be effectively stopped by the Basel Convention. The Bamako Convention uses
the format and language similar to that of the Basel Convention, but is much stronger in
prohibiting all imports of hazardous waste and does not make any exceptions on certain
hazardous wastes (like those for radioactive materials) made by the Basel Convention.
_________________
77 The Protocol has not yet entered into force. There are 10 parties and will enter into
force on the ratification by 20 Parties. For a detailed analysis of the Protocol, see K.
Kummer, International Management of Hazardous Wastes (Oxford; Clarendon Press)
2000.
78 Amendments to the Convention enter into force after ratification of "three-fourths of
the Parties who accepted them" [Art. 17.5 of the Convention].
79 Convention entered into force on 24 February 2004 and currently has 116 parties.
80 Convention entered into force on 17 May 2004 and there are 172 Parties to the
Convention as of January 2011. Parties to the Convention in May 2009 have agreed to a

process by which persistent toxic compounds can be reviewed and added to the
Convention.
81 See 31 ILM 164 (1992) for Annexes to the Convention. The Convention came into
force in 1998 and has 23 Parties and signed by 30 African States.

IV. ENVIRONMENT AND NUCLEAR SAFETY

The environment gets polluted from the nuclear tests or explosion, which has been the
concern of international community. Nuclear sector has been the subject of considerable
regulation at the international level because of the ultrahazardous character of nuclear
energy activities with potentially devastating transboundary implications. The 1972
Stockholm Conference on Human Environment adopted a resolution on nuclear tests,
which called upon States to refrain from conducting nuclear tests as they could
contaminate the environment. The 1963 Nuclear Test Ban Treaty had already banned the
testing of nuclear weapons in the atmosphere.82 The Environmental Modification
Convention, 1977, in Art. I enjoins States parties not to engage in military or any other
hostile use of environmental modification techniques, having widespread, long-lasting or
severe effects as the means of destruction, damage or injury to any other State party.
"Environmental Modification" includes deliberate manipulation of natural process—the
dynamics, composition or structure of the earth including its biota, lithosphere,
hydrosphere, and atmosphere, or of outer space. The most potential environmental
modification technique that human ingenuity has so far devised is the nuclear weapon.
But the incident on April 25-26, 1986, at Chernobyl, after the USSR nuclear reactor's
explosion, gave a new direction and fresh impetus to nuclear safety and environment. The
explosion released radioactive materials, including caesium, into the atmosphere. The
radioactive fall-out affected the territory of the neighbouring States, contaminating
animals and crops. The accident resulted due to design faults in the reactor and human
error. The Chernobyl incident led to the adoption of two conventions by the International
Atomic Energy Authority at its special session on September 26, 1986: (a) the
Convention on Early Notification of a Nuclear Accident on Radiological Emergency;83
and (b) the Convention on Assistance in the Event of a Nuclear Accident or Radiological
Emergency.84 The Notification Convention enjoins a State party to provide information
about a nuclear accident to other States that may be affected by radioactive pollution and
to inform the IAEA of a nuclear accident. Five nuclear power States (China, France,
Russia, UK and USA) have agreed to give notice of any nuclear accident, having
significant effects in other States. The Assistance Convention stresses on cooperation
amongst State parties to limit the effects of a nuclear accident or radiological emergency
upon life, property and environment. There was already the 1979 Convention on the
Physical Protection of Nuclear Material, which binds parties to take measures in relation
to certain deliberate acts involving nuclear material, involving actions such as theft,
sabotage or removal and use, whether in transit, storage or otherwise. But the Convention
entered into force only after the Chernobyl incident (on February 26, 1987). The 1979
Convention does not cover Chernobyl-type accidents, which result not from deliberate
acts. The 1963 Vienna Convention on Civil Liability for Nuclear Damage is concerned
only with the liability of the parties for damage caused by nuclear incident. A draft
Protocol has been adopted in September 1997 to raise the limits of liability to $400
million.
In order to protect earth's environment from nuclear activities of States in outer space, the
Outer Space Scientific and Technical Sub-committee (a subsidiary of the Committee on
the

_________________
82 480 UNTS 43, in force since 1963.
83 25 ILM 1370 (1986), in force from Oct. 27, 1986.
84 25 ILM 1377 (1986), in force since Feb. 26, 1987.

Peaceful Uses of Outer Space), in its meeting held in April 1994 at Vienna, highlighted
the need for further studies on the problem of collision of nuclear power sources with
space debris and reporting by States to the United Nations on their research on the safety
of nuclear powered satellites. The recommendations of the Sub-committee were
discussed by the Committee on the Peaceful Uses of Outer Space at its session in Vienna
from June 6-17 1994. In September 1994, IAEA adopted a Convention on Nuclear
Safety. Its aim is to legally commit participating States operating land-based nuclear
power plants to ensure a high level of safety by setting out a number of general and
specific safety considerations that must be taken into account in the operation of nuclear
installations. Nuclear safety rests with the State having jurisdiction over the nuclear
installation, but the Convention does not create any clearly binding regime.85
V. IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL

NORMS
The role of international law is of great significance in matters of compliance and
enforcement of the international environmental instruments, which are most crucial for
the conservation and protection of the environment.
For implementation of the conventional standards, there is an urgent need for further
development of assistance to developing countries to meet incremental costs of
implementing conventions, reporting requirements, technology transfer, and capacity
building. Environment problems faced by developing countries are due to poverty and
underdevelopment. In developed countries, an environmental crisis caused more by
unmindful and wasteful consumption of food and other resources. Their wasteful
consumption of natural resources is depriving people in the developing world from these
resources.86 Hence, there is a need to regulate the consumption and exploitation of
natural resources in a sustainable manner.
The role of NGOs is very crucial in the enforcement of environmental conventions. But
the issue of enforcement of international legal obligations becomes particularly acute in
relation to the damage caused to the global environment and areas beyond national
jurisdiction. There are practically no conventional rules existing on this issue.
The question of international liability of the State for causing environmental damage has
been taken up by the International Law Commission (ILC) as a part of its consideration
of the issue of International Liability for injurious consequences arising out of acts not
prohibited by international law, which preponderantly deals with the law of
environment.87 On the basis of the recommendation of the Working Group, the
Commission in 1997 decided, inter alia, to proceed with its work on the topic,
undertaking first prevention under the subtitle "Prevention of
_________________
85 See the text in 33 ILM 1514 (1994). The Convention entered into force on 24 October
1996. As of November 2010, there were 72 Contracting Parties; all countries with
operating nuclear power plants are now parties to the Convention.
86 For example, fish and other sea-food cater mainly to the needs of rich nations, thereby
depriving poor nations from the protein-rich food. For details, see The World Bank

Appraisal Reports of the Brackish Water Fisheries Development Projects in Bengal and
Andhra Pradesh (1988, New Delhi).
87 In 1997 the Commission decided to subdivide the topic "International Liability for
Injurious Consequences arising out of Acts not Prohibited by International Law" into two
parts: prevention of transboundary damage from hazardous activities and international
liability in case of loss from transboundary harm arising out of hazardous activities - G.A.
Res. 52/156 of 15 December 1997.

transboundary damage from hazardous activities". But, so far little progress has been
made on the formulation of the draft provisions, since wide differences persist on the
nature of liability— whether it should be strict or fault based, and about its emphasis—
whether it should be upon prevention or compensation. In its latest deliberations on the
issue, the Commission examined the "polluter-pays-principle" so as to make it a part of
the draft. The Commission has also agreed to certain principles regarding preventive
measures, salient features of the concept of due diligence and ways in which that concept
could be implemented in the light of State practice and doctrine but has not yet
formulated the rules or principles on compensation for harm.88
In 1993, the Council of Europe adopted the Convention on Civil Liability for Damage
Resulting from Activities Dangerous to Environment, which aims at ensuring
compensation for damage caused by activities dangerous to the environment, but it does
not include liability caused by a nuclear substance, or damage arising from carriage.89
However, apart from these, further efforts are needed to develop the principle of actio
popularis (actions brought on behalf of the whole community) identified by the
International Court of Justice in the Barcelona Traction case.90 They are particularly
relevant in the transboundary pollution or where the multinational corporations are
involved, as was in the Bhopal gas leak case (1984), where Union Carbide (a US
multinational) was involved. Consideration should also be given to endowing one or
more international organisations with the capacity to bring claims for the protection of
the global environment or causing environmental damage. The trend has already been
initiated by the Iraq Claims Commission pursuant to the Security Council Resolution 687
of April 5, 1991, allowing international organisations to bring claims in respect of
environmental damage caused as a result of Iraq's invasion of Kuwait,91 or done by the
World Health Organisation (WHO) seeking advisory opinion from the International
Court of Justice on the legality of the nuclear weapons.92 As a positive step towards
protecting human environment, the General Assembly, on December 14, 1992, adopted a
set of resolutions and principles relevant to the use of nuclear power sources in outer
space. It imposes international responsibility on States for their national activities
involving the use of nuclear power sources in outer space, and will be internationally
liable for damage so caused (Principles 8 and 9).93
_________________
88 See the Third Report of the Special Rapporteur, Mr. Pemmaraju Sreenivasa Rao
(52nd session of the ILC (2000)) In the case concerning Gabcikovo-Nagymaros Project
(Hungary/Slovakia) (1997) ICJ Rep., p 7, the Court held that violation of newly
developed norms of environmental law could create State responsibility, see paras. 44
and 105.
89 For the text of the Convention, see 32 ILM 1228 (1993); see also the Agreement
on the Conservation of Cetaceans of the Black Sea between 18 European States,
including the EC, text in 36 ILM 111 (1997).
90 (1970) ICJ Rep., p. 3, paras. 33-34.
91 For the text of the resolution, see 31 IJIL 192 (1991).
92 Case was filed on May 14, 1993. The UN General Assembly made the similar
request on Dec. 15, 1994. The opinion was given on July 8, 1996. Text in 35 ILM 809

(1996). The Court declined to give the opinion on the request of the WHO as the matter
was out of its constitutional mandate.
93 See GA Res. A/RES/47/68, Feb. 23, 1993; see text in 32 ILM 917 (1993).

Page 340
CHAPTER 13
Law and Practice of Treaties
I. GENERAL INTRODUCTION
The treaty is the ubiquitous tool through which all kinds of international transactions are
conducted. It is, in fact, the closest analogy to legislation that international law has to
offer. It can range from merely a bilateral arrangement among States to a multilateral
constituent instrument, such as the United Nations Charter or the International Labour
Organisation (ILO). Almost every kind of legal act or transaction is performed through a
treaty.1 The multilateral treaty remains the best medium for imposing binding rules in the
existing as well as in new areas, such as international commercial transactions, outer
space, environment, continental shelf and sea-bed mining, into which international law is
expanding and for codifying, clarifying and supplementing the customary law already in
existence in many areas. Private law analogy of contract is applicable to treaty and the
general principles of contract (i.e., there must be consent and capacity on both sides, and
object must be legal), are applicable to it as well.
Prior to 1969, the law of treaties consisted for the most part of customary rules of
international law. These rules are now codified and clarified in the Vienna Convention
(referred here as the Convention) of May 23, 1969. The Convention also contains rules in
the nature of progressive development of international law, like the provisions on jus
cogens.2 In fact, it is a compound of codification and progressive development of
customary international law whose jurisprudential value has been well-recognised.3 The
Convention, for the most part now, governs the law and practice of treaties.4
Nevertheless, it is not intended to be a complete code on treaty law and the rules of
customary international law continue to play a significant role. The preamble and
_________________
1 Lord McNair, The functions and differing legal character of treaties, 11 BYblL 100
(1930).
2 The Convention was adopted by 19 votes to 1, with 19 abstentions. France voted
against because of its objection to the provisions on jus cogens and the procedures
provided for the settlement of disputes; see, Treaty Conference Records (1969), p. 203.
The abstention was mainly by members of the Soviet bloc who objected to the failure of
the Convention to adopt the principle of universality of participation in multilateral law-
making treaties. In their view, every State should be entitled to participate in such
treaties. Other abstentions were based on the inadequacy of the procedures providing for
the settlement of disputes. Ibid., pp. 204-208.
3 The ICJ has placed reliance on the Convention in the Namibia case (1971) ICJ Rep., p.
16; Fisheries Jurisdiction case (1974) ICJ Rep., p. 3; Nicaragua case (1986) ICJ Rep., p.
14.
4 For an analysis of the Vienna Convention and of its drafting history, see R.D. Kearney
and R.E. Dalton, The Treaty on Treaties, 64 AJIL 495 (1970); I. Sinclair, The Vienna
Convention and the Law of Treaties, 2nd ed. (Manchester University Press), 1984; S.

Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna
Convention (Oceana Publications), 1970. For the text of the Draft Articles and the
commentary, see YblLC II (1966), pp. 177-274; 61 AJIL 263-463 (1967). For other
valuable work on the

Page 341 LAW AND PRACTICE OF TREATIES
Art. 38 of the Convention affirm that the rules of customary international law will
continue to govern questions not regulated by the Convention. Thus, the following areas
are still regulated by customary international law:
(1) According to Art. 1, the Convention is limited in its scope to "treaties between
States". This leaves all other agreements, such as between States and international
organisations or international organisations inter se, to be governed by customary
international law (Art. 3).5 Now the International Law Commission has adopted a
separate convention, the Convention on the law of Treaties between States and
International Organisations or between International Organisations, 1986 (referred to as
1986 Convention), on this subject which follows the pattern of the 1969 Convention.6
(2) The Convention is limited to international agreements concluded between States
in written form and governed by international law (Art. 2(1)(a)). This leaves agreements
not in written form outside the purview of the Convention which will be governed by
customary international law.
(3) The questions related to succession to treaties, State responsibility and the effect
of outbreak of hostilities have not been dealt by the Convention and are regulated by the
customary international law. The effect of outbreak of hostilities might raise the problems
of extinction of the international personality of a State and consequently of State
succession. It may also create the problems both of termination of treaties and suspension
of their operation. In 1978, the International. Law Commission (ILC) adopted the Vienna
Convention on Succession of States in respect of Treaties and currently is seized with the
drafting of a Convention on State responsibility.7
(4) The Convention is non-retroactive in operation (Arts. 4 and 28), i.e., it applies
only to treaties concluded by States parties after the entry into force of the Convention.
Consequently,
subject of treaties, see Kaye Holloway, Modern Trends in Treaty Law (Oceana
Publications, New York), 1967; T.O. Elias, The Modern Law of Treaties (Oceana
Publications, New York), 1974; Ingrid Detter, Essays on the Law of Treaties (Sweet and
Maxwell, London), 1967; Henkin, R.C. Pugh, D. Schachter, and H. Smit, International
Law: Cases and Materials, 2nd ed. (West Publishing Co., New York), 1987, Ch. 6; D.J.
Harris, Cases and Materials on International Law, 7th ed. (Sweet & Maxwell, London),
2010, Ch. 10; S.K. Agarwala (Ed.), Essays on the Law of Treaties (Orient Longman,
New Delhi), 1972.
5 The ILC, in its commentary explained about their exclusion by stating that "Treaties
concluded by international organisations have many special characteristics, and the
Commission considered that it would both unduly complicate and delay the drafting of
the present articles if it were to attempt to include in them satisfactory provisions
concerning treaties of international organisations", YblLC II, 187 (1965).
6 For the text, see 25 ILM 543 (1986). There is a close resemblance between the
provisions of the 1986 Convention and the 1969 Vienna Convention, but the number of
the situations covered under the 1986 Convention are more varied than that applicable to
States alone; see The Work of the International Law Commission (United Nations,
Publications, New York), 1980, pp. 88-91.

7 Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by

the ILC at its 53rd session in 2001. See the report in YblLC, 2001 Vol. II, Part Two, p.
30. The present articles are concerned with the whole field of State responsibility. They
are not limited to breaches of obligations of a bilateral character.

treaties concluded prior to that date would continuously be governed by the customary
international law.
(5) Many of the Convention provisions are merely residual rules which are to operate in
the absence of a treaty to the contrary or it is otherwise agreed by the parties or a contrary
intention is established. This invariably leaves a large area of treaty law under the domain
of customary international law.
II. WHAT IS A "TREATY"

McNair defines treaty as "a written agreement by which two or more States or
international organisations create or intend to create a relation between themselves,
operating wit' in the sphere of international law".8 According to Fitzmaurice, "a treaty is
an international agreement embodied in a single formal instrument ... made between
entities both or all of which are subjects of international law possessed of international
personality and treaty-making capacity, and intended to create rights and obligations or to
establish relationships, governed by international law".9 The Vienna Convention
describes treaty as "an international agreement concluded between States in written form
and governed by international law" (Art. 2(1 )(a)). Thus, every treaty is an agreement, but
not all agreements are treaties.
The genus of agreements denoted by the word "treaty" is a wide one, viz., treaty,
convention, protocol, pact, charter, act, agreement, proces verbal, memoranda or
understanding, regulations, modus vivendi, armistic agreement, exchange of notes, etc.
None of these terms has an absolutely fixed meaning, though they have been categorised
into formal or less formal instruments by some writers.10 Whereas treaty, pact, charter,
constitution, statute, convention, General Act, Final Act (when it is an independent
instrument) are generally used for formal instruments of multilateral character, the terms
such as memorandum of understanding, proces verbal, arrangement, exchange of notes,
are less formal and generally related to transactions of provisional or temporary nature.
The terms like declarations, agreements or modus vivendi are common to both formal
and less formal type of agreements. A resolution by a diplomatic conference and protocol
denote the minutes of the proceedings at an international conference, or supplementary or
additional to the primary instrument or to a prior transaction. A treaty may also take the
form of a joint communique issued by the Government Ministers at the end of a meeting.
Though some types of instruments and titles are used more frequently for some purposes
than others, there is no exclusive and systematic use of nomenclature for particular types
of transactions.11
Like terminology, international law also does not prescribe any form or procedure for the
making of a treaty, though the constitutional law of certain States prescribes both (for
_________________
8 Lord McNair, The Law of Treaties (Clarendon Press, Oxford), 1961, p. 2.
9 Article 2(1) of Fitzmaurice's report to the ILC, see YbILC, Vol. II, p. 107 (1956);
see also D.P. Myers, The names and scope of treaties, 51 AJIL 574 (1957).
10 Myers, ibid.; J.G. Starke, Introduction to International Law, 10th ed.
11 See YblLC, Vol. II, p. 188 (1966).

example, the US Constitution, Art. II: 2). Hence, there is a total lack of uniformity. A
treaty may be in the form of an agreement between the heads of States of the concerned
countries,12 in an inter-governmental form,13 between ministers of the respective
countries, or it may be an inter-departmental agreement.14 However, the form or
terminology of a particular instrument is not decisive of the question whether or not it
constitutes an international engagement in the nature of a treaty. The agreement must be
measured by the following characteristics to be considered as a treaty:
a. it should be embodied in a written instrument between two or more entities;
b. those entities should be endowed with international personality;
c. it should create or intend to create a legal relationship between the parties; and
d. it should be governed by international law.
A. A Written Instrument between the Parties
The Vienna Convention is limited to written treaties in the interest of clarity and
simplicity.15 However, it cannot be stated with confidence that international law requires
treaty to be in a written form, though they are generally put in writing. Even the
restriction in the Convention of the use of the term "treaty" to written agreements is not
intended to deny the legal force of oral agreements (cf. Act. 3). Without denying their
legal validity, however, oral agreements are not as clear and permanent as the written
ones. Apart from the obvious problem of proof, it also suggests the reluctance of the
parties to enter into a formal arrangement. Moreover, it is undemocratic that two persons
by their spoken words should bind the States without the intervention of any other
political organ of the State.
The requirement of registration with and publication by the United Nations of all treaties
entered into by member-nations in accordance with Art. 102 of the Charter further
underline the need of treaties to be in written form. Failing to register a treaty with the
United Nations would create a disability for the parties to the treaty, who may not invoke
it "before any organ of the United Nations" (Art. 102(2)), including the International
Court of Justice. The provision, as such, does not take away the validity of the
unregistered treaty for other purposes, or prevents it being invoked before bodies or
organs other than of the United Nations. The aim of this provision, like that of Art. 18 of
Covenant of the League of Nations, is to give publicity to
_________________
12 For example, the US-USSR Treaty on Anti-Ballistic Missile Systems, 1971
SALT-I Agreement between President Nixon and General-Secretary Leonid Brezhnev.
This form is the oldest and most orthodox, and used for treaties of important character.
13 This is the most common form prevalent now. It has become the regular form for
agreements made between the Commonwealth countries. Full powers are issued by the
secretary for foreign affairs under his signature and seal of office. Most Exchange of
Notes, now very common, fall into the category of inter-governmental agreements.
14 The inter-departmental agreements are generally concerned with matters of
private law rather than of international legal character. Their consideration as treaty
proper is, however, doubtful, since they are not normally registered with the UN under
Art. 102 of the Charter. But, nonetheless, they are agreements between the States.
McNair, op. cit. 8, pp. 15-21.

15 Aegean Sea Continental Shelf case (1978) ICJ Rep., p. 3 at pp. 33-44.

treaty relations and to curtail the practice of secret agreements among nations. Article 102
may be said to create a binding obligation effecting registration. The requirement of
registration affects the enforceability of the treaty in a certain form, but does not affect
the validity of the agreement and its effectiveness to create legal obligations for the
parties.16
The issues of the validity of an oral agreement and uncertainty stemming from such
agreements were illustrated by the "Ihlen Declaration" in the Legal Status of Eastern
Greenland case.17 Denmark, in addition to claiming sovereignty over Eastern Greenland
on the basis of occupation and by the exercise of various acts of administration and
legislation, also argued that Norway had recognised Danish sovereignty over the territory
by the "Ihlen Declaration". M. Ihlen was the Norwegian Foreign Minister. On July 14,
1919, the Danish minister accredited to Norway suggested to Mr. Ihlen that Denmark
would not raise any objection to Norway's claim over Spitzbergen at the Paris Peace
Conference if Norway would not oppose the Danish claim over Greenland. Subsequently,
on July 19, 1919, in the course of further discussion on the matter, Mr. Ihlen declared that
"the Norwegian Government would not make any difficulty" concerning the Danish
claim. These words were minuted by Mr. Ihlen for his government's purposes. On July
10, 1931, Norway took possession of Greenland.
Denmark argued before the Court that the undertaking of M. Ihlen was binding upon
Norway. The Court accepted the two "assurances", i.e., the Danish attitude on the
Spitzbergen question and the Norwegian attitude on the Greenland question as
interdependent, since they were quid pro quo in their nature and binding on the parties.
Regarding the "Ihlen Declaration", the Court observed that "it is beyond all dispute that
the reply of this nature given by the Minister of Foreign Affairs on behalf of his
Government in response to a request by the diplomatic representative of a foreign power,
in regard to a question falling within his province, is binding upon the country to which
the Minister belongs".18 This, however, does not make it clear that the Declaration was
binding on Norway as an international agreement.
A unilateral declaration in certain circumstances has been accepted as binding ipso facto
on the States, under international law, in the nature of a treaty without any quid pro quo,
if it has been acted upon by other nations, for example, Ottoman Empire's Declaration of
December 19, 1873, regarding the Suez Canal, which subsequently resulted into a
multilateral treaty in 1888. In the Nuclear Tests cases,19 the International Court of
Justice had the occasion to decide about the juridical nature of unilateral declarations.
Australia and New Zealand brought cases against the French atmospheric nuclear tests in
the South Pacific in 1973-74, and sought an injunction and a decision against these tests
alleging that they were against international
_________________
16 However, compliance with Art. 102 cannot be strict in certain cases, such as in
the interim period of conclusion of the treaty and pending registration, an unregistered
treaty can be relied upon by the party with an undertaking to register. The lapse of
registration can also be cured by subsequent registration "as soon as possible". The act of
registration has, nonetheless, raised a number of problems about the status of certain
agreements, when one or other of the parties did not possess international personality.

The UNTS Form No. 212 carries the statement to the effect that registration "does not
confer on the instrument
the status of a treaty or an international agreement if it does not already have that status,
and would not otherwise have", ST/LEG/SER.A/105.
18 Ibid., at p. 71.
19 (1974) ICJ Rep., p. 253 (Australia) and p. 457 (New Zealand).

law. The cases were taken off the Court's list without a decision on the merits, when
France gave an undertaking that it would not conduct further tests in the atmosphere after
its 1974 series of tests. The French President made a public declaration to this effect on
June 8, 1974. France, nevertheless, maintained that it "has the conviction that its nuclear
experiments have not violated any rule of international law".20 The Court found that "the
claim of Australia no longer has any object" and, therefore, did not give any decision.21
Dealing with the significance of the official French undertakings and public statements,
the Court observed "that declarations made by way' of unilateral acts, concerning legal or
factual situations may have the effect of creating legal obligations". But the declaration
can have that binding character only "when it is the intention of the State making the
declaration that it should become bound ... that intention confers on the declaration the
character of a legal undertaking ..." (emphasis added) and "nothing in the nature of a quid
pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction
from other States, is required for the declaration to take effect, since such a requirement
would be inconsistent with the strictly unilateral nature of the juridical act".22 The Court
clearly equated such unilateral declarations with treaties, "just as the very rule of pacta
sunt servanda in the law of treaties is based on good faith, so also is the binding character
of an international obligation assumed by unilateral declaration".23
B. Entities Endowed with International Personality

Entities enjoying international legal personality only can be parties to treaties. Although
an international person might exist with no power to make treaties, but it is certain that
any entity having a treaty-making power must be endowed with international personality.
Every independent, sovereign State possesses the capacity and unlimited power to enter
into treaties. In the S.S. Wimbeldon case, the Permanent Court of International Justice
remarked that "the right to entering into international engagements is an attribute of State
sovereignty".24 The Vienna Convention reflects and reinforces this rule in Art. 6, which
provides that "every State possesses capacity to conclude treaties". The term "State" is
confined to the entity fulfilling the essentials of Statehood under international law.
However, the component members of a federal State can conclude treaties if such
capacity is admitted by the federal constitution and within the limits prescribed therein. In
certain federal constitutions, for example, in Germany, Switzerland and erstwhile Soviet
Union, the component States enjoy this power; otherwise, generally speaking, the treaty
making capacity rests with the federal government. But the Vienna
_________________
20 Ibid., at p. 269, para. 51.
21 Earlier, the French Government had refused to comply with the Court's interim
order requiring France to refrain from commencing the tests until the final disposal of the
case by the Court. France restarted testing in 1981, and had again conducted these tests
from Sept. 1995 to Jan. 1996 in the South Pacific against the stiff opposition from many
nations. The tests were scheduled earlier up to May 1996.
22 Op. cit. 19, at p. 267.
23 Ibid., at p. 268.

24 PCIJ Rep., Series A, No. I, at p. 25 (1923). The Harvard Research Draft of Law of
Treaties also states, "capacity to enter into treaties is possessed by all States, but the
capacity to enter into certain treaties may be limited" (Art. 3), 29 AJIL Supp. 657 (1935).

Convention fails to provide any answers to questions such as what happens when a State
violates the constitution while entering into a treaty, or that when the constitution of a
country is abrogated, who is responsible, or competent to conclude a treaty during the
period of suspension or abrogation? The International Law Commission is similarly silent
on these issues in its draft report. The answer has to be found in the State practice, which
is practically nonexistent.
The treaty-making power of the non-self-governing territories is dependent upon the
constitutional structure by which they are governed. In the past, occasionally, the colonial
territories had been endowed with such a power, viz., Australia, New Zealand, India and
South Africa participated in the Paris Peace Conference, 1919, and became parties to the
Treaty of Versailles and founder members of the League of Nations. In the case of
"protectorates", their treaty-making power depends upon the terms of the agreement
under which the protecting power administers the territory,25 But States which enter into
agreements with other States, whose legal status is of doubtful character, may do so at
their own risk.26
The treaty-making capacity of the international organisations is well established. For
example, the Mandate Agreement between the League of Nations and South Africa
relating to South-West Africa was accepted as "an international agreement having the
character of a treaty".27 This position is now well-confirmed by the 1986 Convention but
their power to enter into treaties is limited by their constituent documents. Their capacity
is also restricted to certain types of treaties only. According to Art. 6 of the 1986
Convention, their treaty-making power is restricted to the "constituent instruments,
decisions and resolutions adopted in accordance with them and established practice of the
organisation". If the constituent instrument is not specific about the treaty-making power,
it will be derived from implied powers based on "established practice". Where the
organisation's treaty-making power is doubtful or to enter into specific treaties is not
clear, the position is less certain. However, the treaty should be in furtherance of the
object and purposes of the organisation and should not be ultra-vires.
The treaty-making power of the entities other than States has also been recognised under
Art. 3 of the 1969 Vienna Convention. However, individuals have never been recognised
as endowed with the requisite international personality to make treaties, either with
States, or with other international persons with treaty-making capacity. It is possible for a
State to enter into a contract with a corporation or an individual, but such an agreement
will not be enforceable as a treaty on the international plane. In the Anglo-Iranian Oil Co.
case,28 the United Kingdom argued that the 1933 concessionary agreement between the
Iranian Government and the Anglo-Iranian Oil Company was in the nature of a treaty and
created an international as well as private
_________________
25 For more details on protectorates, see Ch. 4, supra, pp. 91-93.
26 L. Oppenheim, International Law, Vol. I, 8th ed. (Lauterpacht (Ed.), Longman,
London), 1955, p. 882.
27 South West Africa cases (Preliminary Objections) (1962) ICJ Rep., at p. 330.
However, the jural character of the declarations made by States under Art. 36(2) of the
Statute of the ICJ, accepting the compulsory jurisdiction of the Court is doubtful. In the

Nicaragua case (Jurisdiction) (1984) ICJ Rep., p. 392, the Court termed them as "a series
of bilateral engagements". In the same case, Judge Jennings regarded them as sui generis,
though "some parts of the law of treaties may be applied by useful analogy", at p. 620, cf.
Judge Schwebel. But in the Fisheries Jurisdiction cases (Jurisdiction) (1973) ICJ Rep., p.
16, the Court clearly accepted them as "treaty provisions".
28 (1952) ICJ Rep., p. 93.

law obligation. The agreement was negotiated to settle a dispute between Iran and the
United Kingdom which had been before the Council of the League of Nations. After the
conclusion of the concessionary agreement, the matter was duly reported to the Council.
The Court rejected this argument and stated, "[i]t is nothing more than a concessionary
contract between a government and a foreign corporation" and not an agreement between
the Iranian Government and the United Kingdom, which was not a party to the
contract.29
C. Agreement Creates or Intends to Create Legal Relationship

The requirement of the presence of the necessary intention to enter into a binding legal
relationship in the nature of a private law contract under municipal law does not find its
mention in the definition of "treaty" given in the Vienna Convention (Art. 2(1 )(a).
Waldock, the fourth special rapporteur, in his report, stated that in any case, "the element
of intention is embraced in the phrase governed by international law",30 though this
requirement finds express mention in the reports prepared by other .rapporteurs.31
Nevertheless, there are practical reasons for the adoption of this approach in the Vienna
Convention. States frequently intend to reach an agreement due to political
considerations, without going to the extent of making it enforceable in law. Sometime, an
agreement might be a combination of political intent and legal obligations. There are
numerous examples of joint declarations amongst States about their future policies
without imposing any legal obligation on any of the States to pursue those policies. The
Final Act of Helsinki Conference on Security and Cooperation in Europe, 1975, was
adopted with an express understanding that it would not be binding in law and the Act
stated that it would not be "eligible for registration under Article 102 of Charter of the
United Nations".32 Similarly, the Atlantic Charter of 1941 (joint declaration made by
Roosevelt and Churchill), was no more than merely a statement of common principles
and policies between the United States and the United Kingdom upon which they based
"their hopes for a better future for the world". The 1948 United Nations Declaration on
Human Rights was agreed by the member-nations on the understanding that it would not
create legal duties for them. However, such agreements may ripen into binding rules of
international law over a period of time, as has happened in the case of Declaration on
Human Rights.
D. Agreement should be Governed by International Law

An agreement, to be termed as a "treaty", should be governed by international law and
not by national law. There are certain inter-State agreements subject to a particular
system of municipal
_________________
29 Ibid., p. 112.
30 Fourth Report on the Law of Treaties, II YblLC 12 (1965).
31 Brierly, the first rapporteur, defined treaty as an agreement between States,
including organisation of States "intended to create legal rights and obligations for the
parties". Fitzmaurice similarly put it as an essential for a treaty, see op. cit. 9. Four

rapporteurs on law of treaties, in chronological order, were J.L. Brierly, H. Lauterpacht,

G. Fitzmaurice and H. Waldock. Their reports are printed in the yearbooks of the ILC.
32 For text, see 14 ILM 1292 (1975); H.S. Russell, 70 AJIL 242 (1976). In the
Nicaragua case (Merits), the Court relied on the Final Act, see op. cit. 3, para. 204.

law, either by an express provision to this effect or by implication from the nature of the
transaction. For example, the loan agreements between the International Bank for
Reconstruction and Development (IBRD) with individual States contain a clause to the
effect that the agreement and the bonds issued thereunder are to be "interpreted in
accordance with the law of the State of New York".33 Waldock, in his report to the ILC
observed:
[t]here may be agreements between States, such as the acquisition of premises for a
diplomatic mission or for some purely commercial transaction, the incidents of which are
regulated by the local law of one of the parties or ... by reference to conflict of law's
principles ... it would not follow that the basis of their international accountability was a
treaty obligation ... the Commission was clear that it ought to confine the notion of an
"international agreement" for the purposes of treaties to one, the whole formation and
execution of which ... is governed by international law.34
However, the Vienna Convention does not provide any test to be used to determine
whether an inter-State agreement is governed by international law, nor does the act of
registration under Art. 102 of the Charter indicate any judgment by the United Nations
Secretariat on the status of the agreement, although it signifies the belief of the parties
that the agreement is of an international character. Thus, broadly speaking, if an
agreement between entities endowed with international personality is governed by
international law, and intended to create a legal relationship, any kind of instrument or
document, or any exchange between them may constitute a treaty, irrespective of the
nomenclature, form or circumstances of its conclusion.
III. THE MAKING OF TREATIES

All matters concerning the authority to make international agreements are governed by
municipal law. International law does not prescribe any manner or procedure to exercise
the treaty-making power by a State which has the constitutional arrangements. Generally,
the authority to conclude treaties vests in the Heads of State, who in turn delegate the
power to negotiate and sign treaties to the ministers of Foreign Affairs and other
diplomatic officials representing their respective States in the treaty-making process. The
diplomatic officials may also be authorised by their governments. Article II: 2 of the
United States Constitution states that the President "shall have power by and with the
advice and consent of the Senate to make treaties, provided two-thirds of the Senators
present concur...." But, the President can also conclude "executive agreements" which are
distinct from "treaties" in terms of Art. II: 2 because they are made by the President
alone. The President can enter into executive agreements in the conduct of foreign
relations (Art. I: 10) or if authorised by the Congress under an Act (e.g., the Trade Act of
1974, etc.). These executive agreements are binding upon the United States under the
international law.
_________________
33 During the period 1966-68, Denmark's agreements with other nations for similar
transactions laid down that, except as otherwise provided therein, "the Agreement and all
rights and obligations deriving from it shall be governed by Danish law". The supply of

foodgrains to India by the US during the 1960s under the PL-480 agreement had the
similar provision, as also the agreement to supply enriched uranium to Tarapur.
34 II YblLC 32 (1962).

There is no express provision in the Constitution relating to them, though there is an

implied power to make them.
In the United Kingdom, the making of treaties is a prerogative of the Crown. From
negotiation to ratification, it is an act of the executive done in assertion of royal
prerogative. It is the Crown which authorises or issues full powers to negotiate and sign
treaties and ratifies them, if required. Though the Parliament has the constitutional
control over the executive, except in the cases of treaties of cession, approval of
Parliament is not required, unless the treaty is to have the effect in the municipal law of
the United Kingdom through a parliamentary legislation.35 However, it has become the
established practice that before ratifying a treaty, the Crown gets the approval of the
Parliament under the "Ponsonby Rule".36 Under the rule, every treaty, before ratification,
is laid on the table of both the Houses of Parliament for 21 days, after which it is ratified
and published. The important treaties are submitted to the House for discussion within the
period before ratifying.
The French Constitution, on the other hand, contains a clear direction in the matter of
treaty-making. Article 52 of the 1958 Constitution enables the President to negotiate and
ratify the treaties. Article 53 names treaties that require ratification by law, such as the
treaty of cession which requires ratification and is not valid without the consent of the
population affected. Agreements contrary to the Constitution can be ratified only after the
revision of the Constitution (Art. 54).37
In India, the Constitution confers on the Union of India legislative and executive powers
covering the total field of foreign affairs. The Central Government has the power to make
and implement treaties in accordance with Arts. 245 and 246, along with entries 10, 13
and 14 of the "Union List", i.e., entering into treaties and agreements, and implementing
treaties, agreements and conventions with foreign countries. Apart from vesting the
Central Government to legislate on these aspects of treaty-making and implementation,
the Constitution does not indicate the instrumentality of the Government, concerned with
the treaty-making, nor does it establish any clear procedure for the making of treaties.
The whole subject of treaty-making is left to the union legislation, which has not yet
legislated. Hence, the practice followed during the British India, continues, and like in
other commonwealth countries, in India also treaty-making remains an executive act.38
Until the Parliament enacts a law, the President's (who is the chief executive under Art.
53 of the Constitution) power to enter into treaties remains unfettered by any "internal
constitutional restrictions". In practice, the President appoints the plenipotentiaries and
issues full powers, and ratifies the treaties. The agreements made in the name of signatory
governments, full powers are granted and ratification is effected
_________________
35 McNair, op. cit. 8, pp. 94-97; Holloway, op. cit. 4, p. 191. In the absence of a
written constitution in the UK, the rules governing the conclusion of treaties are based on
custom and usage, see UN Compilation, Laws and Practices Concerning the Conclusions
of Treaties, NST/LEG/SER.B/3, p. 97 (1953).
36 The "Ponsonby Rule" was introduced in 1924, discontinued in the same year and
was reintroduced in 1929. The Rule was not applied to the UK declaration under Art.

36(2) of the Statute of the ICJ, because it did not require ratification, see Harris, op. cit. 4,
p. 644.
37 Holloway, op. cit. 4, p. 156; C.G. Raghavan, Treaty-making power under the
Constitution of India, in Agarwala, op. cit. 4, p. 217 at 218.
38 Cf. A.G. for Canada v. A.G. for Ontario [1937] AC 326.

on behalf of the Government.39 To be effective at the international plane, the treaty does
not require approval or ratification by the Parliament unless it is subject to that
requirement or it is of an important nature, such as the treaty of cession which may
require the amendment of the Constitution.40
Thus, generally speaking, treaty is an executive act, and in the absence of any provision
in the Constitution to the contrary, the treaty-making power resides in the head of a State.
The making of treaties involves various steps: consultation, negotiation and adoption of
the text, commencement of treaty, ratification, accession, adhesion, etc.
A. Negotiation and Adoption of the Text

As a first step towards the conclusion of treaty is the negotiation and adoption of the text.
Once the State decides to enter into a treaty relationship, it appoints the representatives to
negotiate the text of the treaty. These representatives should be duly empowered through
"full powers".41 Before the start of the formal negotiations of a treaty, normally there is a
reciprocal examination of the full powers in order to avoid any trouble resulting from
negotiation with a representative, not duly authorised to negotiate. The practice of
production of full powers by States is now increasingly dispensed with through the
conclusion of less formal agreements between the departments of two governments.
Heads of States, heads of governments, ministers for foreign affairs, heads of diplomatic
missions and representatives accredited to international conferences or organisations are
considered to represent the State ex officio and have not to produce full powers (Art. 7(2)
of the Vienna Convention). Acts performed by a person who does not have the full
powers, or exceeds full powers relating to the conclusion of a treaty, are without legal
effect unless confirmed by that State subsequently (Art. 8). The confirmation is
considered to be done by implication if the State invokes the provisions of the treaty or
otherwise acts in such a way as to appear to treat the act of its representative as
effective.42
After consultation and negotiation, the treaty text is normally adopted by the unanimous
consent of the parties (Art. 9(1)). When a treaty is drawn up by an international
conference, the text may be adopted by two-thirds of the States present and voting, unless
by the same majority they decide to apply a different rule (Art. 9(2)), including the rule of
unanimity. The rule of unanimity is easier to follow in bilateral treaties or for treaties
drawn up between few States.
_________________
39 See UN Compilation, Laws and Practices Concerning the Conclusion of Treaties, op.
cit. 35, p. 63.
40 Cf. Berubari Union case, AIR 1960 SC, p. 845.
41 "Full powers" is a formal document emanating from the competent authority of a State
designating a person or persons to represent the State for negotiating, adopting or
authenticating the text of a treaty, for expressing the consent of the State to be bound by a
treaty, or for accomplishing any other act with respect to a treaty, see Art. 2(1)(c) of the
Vienna Convention.
42 McNair, op. cit. 8, at p. 121. In a diplomatic conference, to conclude a multilateral
treaty, the full powers are examined by the Committee of Full Powers, who reports to the

Conference on the nature of the full powers of each representative. In 1908, the US
Minister to Rumania signed a convention without having any authority to do so, see, G.Y.
Hackworth, Digest of International Law, Vol. IV (Govt. Printing Press, USA), p. 467
(1942). In 1951, a convention was signed at Stressa by a delegate on behalf of both
Norway and Sweden, while he had authority to do so on behalf of Norway only, 61 AJIL
300 (1967).

When a treaty is drawn-up within an international organisation, the voting rule for
adopting the text of the treaty has to be in consonance with the voting rule of that
organisation (cf. Art. 5 of the Convention).43
Authentication of the text, after its adoption, is done in a manner as agreed by the parties
amongst themselves. It can be done according to the procedure provided in the text of the
treaty, or by signature, initialling or signature ad referendum (Art. 10). Unless there is an
agreement to dispense with signature, this is essential for a treaty, principally because it
serves to authenticate the text.44 In the case of initialling, formal signature in proper form
takes place later. Initialing also occurs where a representative, without authority or clear
instructions to sign, prefers not to sign the text.45 On the other hand, signature ad
referendum are deferred signatures, which generally denotes that the negotiated text was
not definitively acceptable to the signatory State at the time of authentication and unless
confirmed subsequently by the State, they are without any legal effect.46
B. Commencement of the Treaty

The question as to when a treaty becomes binding on parties and creates a legal
relationship between them is an important one^ A State may express its consent to be
bound by a treaty by signature, exchange of instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other means agreed between the parties (Art.
11).
1. Effect of signature
The signing of a treaty may be merely an authentication of its text, but if the treaty so
provides or the parties otherwise agree, the signature of their representatives will signify
their consent to
_________________
43 Op. cit. 11, at p. 194. Art. XIV (1) and (2) of the FAO and Art. 19 of the ILO
Constitution follow the rule of two-thirds majority for the adoption of the conventions
and agreements. In the treaties concluded under the aegis of the UN, such as the 1948
Genocide Convention, the 1958 Law of the Sea Conventions, the 1952 Convention on the
Political Rights of Women, the texts were adopted by the votes of two-thirds States
participating in the conference.
44 It is a common practice to open a convention for signature by parties until a certain
date after the date of formal session of signature is over (e.g., Art. 81 of the Vienna
Convention, 1969) where all the delegates are required to sign at the same time and place.
Normally, the date of the treaty is usually taken to be the date on which it was signed.
45 Initialling may merely indicate an agreement on the text of the treaty, which is to be
referred to the government for consideration. According to O'Connell, initialling is
"merely an indication of approval of the text for subsequent signature", whereas signature
of a treaty is a "formal indication of agreement with its content". See D.P. O'Connell,
International Law, Vol. I (Stevens & Sons Ltd., London) 1965, p. 230. But in certain
cases, initialling amounts to full signature, if the parties indicate by their action during
negotiations or at the time of initialling, the treaty would be deemed to have been

concluded by mere initialling. Thus, initialling may amount to the conclusion of a treaty
if the parties so desire (Art. 12(2)(a)).
46 Signature ad referendum also occurs when the plenipotentiary did not have the
definite instructions to sign and had no time to consult his government. Signature, if
confirmed, conveys the full signature of the treaty, binding on the State (Art. 12(2)(b)).

be bound by the treaty. A large number of treaties are expressly made operative upon
signature.47 Where the treaty is silent on ratification, accession and approval, better view
seems to be that it will be binding upon signature. There are also numerous treaties which
have to enter into force upon ratification or approval, but are made applicable
provisionally from the date of signature or from the date specified for the purpose. The
General Agreement on Tariffs and Trade (GATT) of October 30, 1947, had come into
effect provisionally from January 1, 1948, till the Charter of the International Trade
Organisation (Havana Charter) was ratified. Montreaux Straits Convention of July 20,
1936 also comes under this category. Treaties concluded by exchange of letters, with
valid signatures of the representatives, become effective upon the receipt by one party of
the acceptance of the other party.
If the treaty is subject to ratification, acceptance, approval or accession, signature
signifies no more than the fact that the delegates have agreed upon a text which will be
referred to their governments for further action in the acceptance of the treaty. So long as
the States do not make their intention clear of not becoming parties, they are under an
obligation to act in good faith and to refrain from acts which would defeat the object and
purpose of the treaty. After becoming party to the treaty, they are similarly obliged to
refrain from such acts, pending the entry into force of the treaty, provided the entry has
not been unduly delayed.
For a treaty which is only to become binding upon ratification, mere signature would not
constitute any legal relationship between the parties. In the North Sea Continental Shelf
cases, the Federal Republic of Germany was a signatory to the 1958 Geneva Convention
on Continental Shelf but had not ratified it. Hence, the Convention was not binding on it.
Judge Nervo pointed out that Germany's signature had only been a "preliminary step", as
it "did not ratify the Convention, is not a party to it and therefore cannot be contractually
bound by its provisions".48
2. Ratification
Ratification is "the international act ... whereby a State establishes on the international
plane its consent to be bound by a treaty" (Art. 2(1 )(b) of the Vienna Convention).49
Ratification is an act of government to approve the treaty in question and becomes bound
by it. In a majority of cases, ratification is a mode of submitting the treaty-making power
of the executive to parliamentary control. Ratification presupposes signing of a treaty by
the duly appointed plenipotentiary. A State can also ratify a treaty which has been signed
by an unauthorised delegate or by one who has acted ultra vires of his authority.
Generally, there is no prescribed time limit for ratification and States usually take many
years before ratifying the treaty. The Vienna
_________________
47 The Indo-Sikkim Treaty, 1950, and the Tashkant Pact, 1966, between India and
Pakistan came into effect on signature. The Indo-Nepalese Extradition Treaty of 1953
also provided that the treaty shall enter into force from the date of signature. Article 6 of
the Anglo-Japanese Alliance of 1902 provided that the agreement "shall come into effect
immediately after the date of signature". In British practice, treaty comes into force upon

signature unless there is a provision as to ratification. See McNair, op. cit. 8, p. 137; R.C.
Hingorani, Commencement of Treaty, in Agarwala, op. cit. 4, p. 13, at p. 16.
48 (1969) ICJ Rep., p. 3, at p. 95.
49 McNair defines ratification as an "act of appropriate organ of the State and signifies
willingness of a State to be bound by a treaty", McNair, op. cit. 8, at p. 129.

Convention on Law of Treaties itself was signed on May 23, 1969, but came into effect
only on January 27, 1980, after 35 ratifications were deposited with the Secretary-
General of the United Nations (Art. 84).
Ratification provides a breathing time to State functionaries after the authentication of the
text, during which they can consider its implications or prepare the public opinion in its
favour. The procedure of ratification is governed by the constitutional provisions and
practice of States, which vary. Normally, the act of ratification is executed by the head of
the State, but in the inter-governmental form of treaties or inter-departmental agreements,
the government itself may ratify the treaty. International law is mainly concerned with
any act (signature or ratification) signifying the consent of the State in relation to treaty at
the international plane, and not with the question of whether a State had complied with
the provisions of its constitution.50
However, there is no duty on a State to ratify a treaty. Similarly, the State is not obliged
to give reasons for its refusal to ratify and inform other States. Ratification generally does
not have the retroactive effect, so as to make the treaty obligatory from the date of
signature. In the case of bilateral treaties, the States, as a matter of practice, exchange
instruments of ratification, and where there are few States, one State acts as a depository,
which is generally the State where the treaty is signed, whose task is to notify all
signatories upon the receipt of ratifications. In the multilateral treaties, or treaties
concluded under the auspices of the United Nations, the Secretary-General often acts as a
depository.51 The act of deposit establishes the legal nexus between the parties.
The practice and procedure relating to conditions under which ratification becomes
necessary is totally unsettled. It is not dependent on the form and type of treaties
requiring ratification. Sometimes even the less formal types of international agreements,
such as exchange of notes, which usually become binding merely by signature, are also
made subject to ratification because of the constitutional requirement in one or the other
of the contracting parties. With more formal types of instruments, express provisions on
the subject of ratification are generally included. Total silence on the subject is
exceptional.52 It is only very few, less formal type of treaties, that may not contain any
provision on the subject. In such cases, the better view seems to be that a treaty will only
require ratification if it is clearly contemplated by the parties. Ratification may also be
required if the negotiating States so intended or the representative of a State has signed
the treaty subject to ratification, or the provision to this effect was contained in the full
powers of its representative (Art. 14(1)).
3. Accession
Accession, adhesion or adherence is a method by which a State becomes a party to a
treaty of which it is not a signatory. Regarding the timing of accession, under the earlier
practice
_________________
50 This, however, needs to be evaluated in the context of Art. 46 of the Vienna
Convention.
51 Articles 76-80 of the Vienna Convention set out the functions of the depository.

52 Op. cit. 11, pp. 197-198. In recent years, acceptance and approval have become new
modes for becoming party to a treaty. They are no more than signatures subject to
ratification. Similarly, the terminology "signature subject to acceptance" has come into
vogue, which is a simplified form of ratification. This allows the State to ratify the treaty
without going through the constitutional procedure, see ibid.

it could be made only after the treaty had come into force. According to present practice,
however, a non-signatory State may accede before or after the treaty has come into force,
though the State parties may expressly stipulate that accession can be made only after the
coming into force of the treaty. Multilateral treaties quite often provide the number of
ratifications and accessions for their coming into force, viz., Art. XIII of the Genocide
Convention provided 20 ratifications or accessions for its coming into effect. On the other
hand, the 1928 General Act for Pacific Settlement of International Disputes and the 1946
Convention on the Privileges and Immunities of the United Nations were to come into
force by accession only. Accession can only be made to multilateral treaties which allow
accession to a specified category of State or States.
A State may accede to a treaty only with the consent of the parties or signatories to the
treaty. This consent may be given in advance by specifying in the treaty or it may be
otherwise established (Art. 15(a) and (b)), for example, the 1958 Geneva Convention on
the Law of the Sea, and the 1961 Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances (Narcotic Drugs Convention Art. 28) or it can be given
subsequently, with the unanimous consent of all the parties if the treaty does not contain
any provision (Art. 15(c)). The important illustrations of subsequent consent can be found
in the field of international organisations, laying down the specific procedure under their
constituent instruments for the admission of new members (e.g., Art. 4 of the United
Nations Charter).
Accession is normally a final act of a State to be bound by a treaty and does not require
ratification unless so provided in the instrument of accession. The State practice also does
not support accession subject to ratification. The rationale of this rule is that the
government has the prior access to treaty to deliberate, before it finally decides about the
accession. Accession would become effective according to the provisions of the treaty or
by exchange of instruments. In its absence, it will be complete when the instrument of
accession has been filed with the depository, who would communicate it to the parties to
the treaty (Art. 16). However, international law does not specify any form of an
instrument of accession. A simple notification of intention to participate in a treaty may
be enough. After the accession has been validly made, the acceding State becomes the
equal member of the treaty alongwith the negotiating States.
C. Entry into Force of a Treaty

Entry into force of a treaty is entirely dependent upon the agreement between negotiating
States (Art. 24(1)). They may prescribe the manner and the date for its coming into force.
For example, they may agree that the treaty shall be effective immediately after signature,
or at some fixed time, i.e., 30, 60 or 90 days after the prescribed number of ratifications
or accessions is deposited, or on the happening of a certain event.53 In the absence of any
agreement between the parties, or a provision in the treaty, it will enter into force only
after all the negotiating States have consented to be bound (Art. 24(2)). For a State
becoming party to the treaty after its entry into
_________________
53 For entry into force, the Genocide Convention provided 90 days after 20 ratifications
or accessions were deposited; the 1982 Law of the Sea Convention provided one year

after the 60 ratifications or accessions were deposited, and the Locarno Treaty of Mutual
Guarantee, 1925, was to enter into force only after Germany's admission to the League of
Nations, see Starke, op. cit. 10, p. 459.

force, the treaty will become operative from the date when its consent is established (Art.
24(3)).
The provisional application of treaties, pending ratification, is permissible if the treaty so
provides or if the negotiating States have so agreed (Art. 25). The 1936 Montreax Straits
Convention provided for provisional application; Protocol of February 8, 1965, adding
Part IV to the GATT, came into effect provisionally; ceasefire agreements between
commanders are also under this category. The provisional application can be brought to
an end by a State after notifying the other States to this effect (Art. 25(2)). After
ratification, it is, however, the duty of a State to refrain from any act prejudicial to the
object and purpose of the treaty prior to its entry into force.
IV. RESERVATIONS
A reservation is a unilateral statement made by a State at the time of signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the
legal effect of certain provisions of the treaty in their application to that State (Art.
2(1)(d) of the Vienna Convention).54 The object of a State making the reservation is to
alter its obligations with regard to other parties. A declaration by a signatory in the nature
of interpretation of the provisions in a particular way, which does not vary the obligations
of that signatory vis-a-vis other signatories, is not a true reservation.55 The rationale
behind reservation is that a State is unable to fulfil its obligations under the treaty in
totality because of certain constraints and instead of excluding it altogether from
participating in the treaty, the State should be allowed to do so, even if in a limited way,
provided that the reservation does not materially affect the basic provisions of the treaty.
The privilege to make reservation is regarded as an incident of sovereignty and perfect
equality of States. However, the right to make reservation to multilateral treaties which
do not have any specific provision on reservation, has always remained controversial.
There have been three principal approaches in this regard: the traditional approach, the
Pan American approach and the modern approach.
According to the traditional view, based on a positivist approach that the consent is the
basis of all international obligations, a State making reservation (reserving State) can do
so
_________________
54 Reservation is different from a case where a State wishes to become bound by a
specific part of a treaty only. In that case, the State can do so if it is permitted under the
treaty or it has been otherwise agreed by the contracting States. Where a treaty allows a
contracting State to choose between differing provisions, it will be effective only if it is
made clear to which of the provisions the consent relates (Art. 17). The contracting State
is "a State which has consented to be bound by the treaty, whether or not the treaty has
entered into force" (Art. 2(1 )(b)).
55 The controversy about the true nature of a declaration did arise in the different
organs of the UN. In 1959, India's accession to the Convention on Inter-Governmental
Maritime Consultative Organisation, 1948 (IMCO—renamed as the International
Maritime Organisation since May 1982), subject to "conditions" and declaration,
reserving the right to adopt measures aimed at developing her maritime industries, was

stated to be not a reservation but a declaration of policy. In 1964-65, similar problem

arose with Cuba's declaration while acceding to IMCO Convention, that it would not
consider itself bound by the Convention if IMCO's recommendations would be at
variance with Cuban domestic law. There was a division of opinion amongst IMCO
members whether the Cuban declaration was a statement of policy or a reservation not
permitted under the Convention, see Starke, op. cit. 10, p. 463, n. 6.

only with the consent of other contracting parties. In the case of bilateral treaty, the
application of this principle is not difficult, where a proposed reservation is, in effect, a
counter-offer which the other party can accept or reject. Similarly, the principle can
easily be applied in treaties with limited membership.56 But its application to multilateral
treaties, increasingly drafted under the auspices of the United Nations and its specialised
agencies, is not without its attendant problems. The practice of the League of Nations,
nevertheless, was based on the traditional view. For example, in relation to Austria's
reservation to Opium Convention, 1925, the Subcommittee of the League's Codification
Committee, in its report, clearly stated that for a reservation to be effective, "it is essential
that this reservation should be accepted by all the contracting parties, as would have been
the case if it had been put forward in the course of the negotiations. If not, the reservation
... is null and void".57
Under the Pan American Union approach, adopted in 1932, the reservations are
permissible but the juridical status of treaties ratified with reservations will be affected in
the following manner:
1. The treaty shall be in force, in the form in which it was signed, as between those
countries which ratify it without reservations.
2. It shall be in force between the governments which ratify it with reservations and
the signatory States which accept the reservations in the form in which the treaty may be
modified by said reservations.
3. It shall not be in force between a government which may have ratified with
reservations and another which may have already ratified and does not accept the said
reservations.58
The United Nations Secretariat followed the League of Nations approach until 1950 in
this matter. However, in 1950, reservations made by some countries to the Genocide
Convention on the Prevention and Punishment of the Crime of Genocide (which had no
reservation clause), put the whole issue of making reservations to a multilateral treaty in a
new perspective.59 The General Assembly, while referring the matter to the International
Law Commission (ILC) for consideration and preparing a report, also sought the advisory
opinion of the International Court of Justice. It put three questions for the Court's
deliberation. In the first question, the Court was asked whether the reserving State could
be regarded as being a party to the Convention if the reservation was objected to by one
or more of the parties to the Convention. The Court opined that a State which has made
and maintained a reservation that has been
_________________
56 Article 20(2) of the Vienna Convention reflects this approach. It states that when "it
appears from the limited number of the negotiating States and the object and purpose of a
treaty that the application of the treaty in its entirety between all the parties is an essential
condition of the consent of each one to be bound by the treaty, a reservation requires
acceptance by all the parties".
57 See McNair, op. cit. 8, pp. 162-163.
58 Reservations to Multilateral Conventions, UN Doc. A/'1372, p. 11.
59 The reservations were appended by a number of States mainly to Art. IX of the
Convention, which provided for the compulsory jurisdiction of the ICJ in disputes arising

under the Convention. Objection to reservations were registered by many States, see UN
Doc. ST/LEG/SER.E/8, pp. 98 et seq.

objected to by one or more of the parties to the Convention but not by others, can be
regarded as being a party to the Convention only if the reservation is compatible with the
object and purpose of the Convention, otherwise that State cannot be regarded as being a
party to the Convention.
In the second question, the Court was asked about the effect of a reservation as between
the reserving State and (a) the parties which object to the reservation, and (b) those which
accept it. The Court stated that: (a) if a party to the Convention objects to a reservation
which it considers to be incompatible with the object and purpose of the Convention, it
can in fact, consider that the reserving State is not a party to the Convention, and (b) if a
party accepts the reservation as being compatible with the object and purpose of the
Convention, it can, in fact, consider that the reserving State is a party to the Convention.
The third question was related to the legal consequences of the objection to a reservation
by: (a) a signatory State, who has not yet ratified the Convention, and (b) a State entitled
to sign or accede. The Court replied that: (a) an objection to the reservation made by a
signatory State which has not yet ratified the Convention can have the legal effect
indicated in the reply to the first question only upon ratification. Until that moment, it
merely serves as a notice to the reserving State of the eventual attitude of the signatory
State; and (b) an objection to a reservation made by a State which is entitled to sign or
accede but which has not yet done so, is without any legal effect.60
The Court, in its opinion, followed the Pan-American Union approach. However, it
circumscribed the area of reservation by laying down the criterion of "compatibility with
the object and purpose of the treaty" for making the reservation and that of objecting to
it.61 The Court was guided by this approach because of the nature of the Convention
which was intended by the General Assembly to be universal in operation, and with the
principle of "integrity" of the instrument.62 The opinion of the Court, though primarily
relating to and emphasising on the Genocide Convention, was stated in more general
terms, thus leaving the law on reservations unclear. The confusion was further deepened
with the ILC's report of 1951 on the subject. The Commission did not follow the Court's
test of "compatibility", but supported the traditional principle of consent of all contracting
parties to reservations, which was considered to be more important for the "integrity" of
the treaty than the aim of widest possible participation.63 However, the General
Assembly in its resolution of January 12, 1952, recommended the States to be guided by
the Court's advisory opinion. The Secretary-General's role as a depository in respect to
future conventions was only confined to passing on the documents relating to
reservations to the interested States which would draw legal consequences from such
communications. This "flexible" approach was further reaffirmed in the General
Assembly resolution of December 7, 1959, and extended
_________________
60 Reservations to the Genocide Convention (1951) ICJ Rep., p. 15. The Court's
opinion was given by a seven to five majority judgment.
61 Ibid., at p. 24.
62 Ibid., at p. 26.
63 Report of the Commission on the Work of its 3rd Session, (1951), pp. 5-7; Report
(A/1858) of July 11, 1951.

to all conventions concluded under the auspices of the United Nations, unless they
contained contrary provisions.64
The Court's opinion clearly tilted the law towards the "compatibility approach", which
was subsequently adopted and incorporated by the ILC in the Vienna Convention in Art.
19(c). The Commission was motivated by its concern for the development of
international law, which was hampered by the failure of the negotiating States to become
parties to multilateral treaties. In its report, the Commission stated, "What is essential to
ensure both the effectiveness and integrity of the treaty is that a sufficient number of
States should become parties to it, accepting the great bulk of its provisions".65 This,
however, does not affect the basic principle, according to which a State making the
reservation can do so only with the consent of other contracting parties, otherwise the
whole object of the treaty might be impaired. The States may consent to the reservation
by expressly providing so in the treaty or authorising for the same (Arts. 19, 20(1) and
(2)). Thus, a State cannot make a reservation if the treaty prohibits the reservation (e.g.,
Art. 39 of the Rome Convention, 1952), or prohibits a certain kind of reservation (e.g.,
Art. 64 of the European Convention on Human Rights, 1950). Nor can a State make a
reservation to a particular provision if it is prohibited by the treaty, viz., Art. 11 of the
1958 Continental Shelf Convention prohibited reservations to Arts. 1-3 of the
Convention. Sometimes, only certain kinds of reservations are permitted,66 or a special
procedure for the admissibility of the reservation is provided, for example, Art. 20 of the
Racial Discrimination Convention, 1966 provides that a reservation is "incompatible" if
at least two-thirds of the contracting parties object to it.
If a treaty is the constituent instrument of an international organisation, a reservation
requires the acceptance of the competent organ of that organisation, unless it otherwise
provides (Art. 20(3)).67 Objection to the reservation has to be filed within a period of 12
months after it was notified, and failure to object within this time will be treated as
acceptance (Art. 20(5)).
_________________
64 This reaffirmation came out of the controversy which followed after India's
accession to the IMCO Convention "subject" to certain "conditions" in January 1959 (UN
Doc. A/4235, Annex. I). India considered these "conditions" consistent with purposes of
the IMCO under Art. 1 (b) of the Convention, but France and Germany objected to it.
The IMCO Convention did not contain any clause on reservation. Matter was referred to
the IMCO Assembly. Since it was a question of interpretation, IMCO referred it to the
ICJ under Art. 56 of the Convention. The UN Secretary General submitted India's
accession subject to "conditions" which "seemed to be in the nature of a reservation" for
the consideration of the IMCO Assembly, and refused to accept in definitive, India's
instrument of accession until such time as States had expressed, tacitly or expressly, their
consent. He implicitly drew the legal consequences of a reservation which he was
precluded to do under the 1952 Resolution of the General Assembly, see, Holloway, op.
cit. 4, p. 519; Oscar Schachter, The question of treaty reservation at the 1959 General
Assembly, 54 AJIL 372 (1960).
65 Op. cit. 11, at pp. 205-206.

66 Article 75 of the American Convention on Human Rights, 1969, provides that the
Convention "shall be subject to reservation only in conformity with" the Vienna
Convention on the Law of Treaties. In the Effect of Reservations case, the Court held that
Art. 75 incorporated by reference Art. 19(c) of the Vienna Convention and has expressly
permitted reservations that are not "incompatible with the object and purpose" of the
American Convention, see 22 ILM 37 at p. 44 (1982).
67 These provisions reflect the decision taken by the General Assembly in the
controversy which arose out of India's accession to IMCO Convention in 1959, see op.
cit. 64.

Once the right of making reservation is established in accordance with the Vienna
Convention, the effect of reservation on the reserving State's legal position vis-a-vis other
parties closely follows the Court's approach in the Genocide Convention. Acceptance of a
reservation by another State makes the reserving State a party in relation to the accepting
State. But objection to reservation does not preclude the entry into force of the treaty as
between the reserving State and the objecting State unless a definite intention to this
effect had been expressed by the objecting State (Arts. 20(4)(b) and 21). This is at
variance with the Court's approach, which precluded the entry into force of the treaty
between the objecting and the reserving States.68 By virtue of reservation, the treaty
stands modified to the extent of reservation in relation to other States accepting the
reservation or objecting, but not precluding the entry into force of the treaty between
themselves and the reserving State (Art. 21(1) and (4)).69 The reservation does not
modify the provisions of the treaty for the other parties to the treaty inter-se (Art. 21(2)).
The making of reservations and acceptance or objections must be in writing and must be
duly communicated. Reservations made at the time of signing a treaty subject to
ratification, acceptance or approval, must be confirmed in the subsequent instrument of
ratification, acceptance or approval (Art. 23). A reservation or an objection to it may be
withdrawn at any time by giving a notice which will become effective when the notice is
received by the other State which has accepted the reservation or formulated the
reservation, as the case may be (Art. 22).70
The law on reservations as enshrined in the Vienna Convention has a flexible approach
towards reservations. The rules allow States, who are unable to accept certain provisions
of the treaty, to be parties, though in a limited way, rather than be totally excluded from
participating. An approach, where there is an agreement on the basic provisions, with
digression allowed in relation to less important provisions, will facilitate the wider
participation of States in multilateral treaties. But it is also open to serious theoretical and
practical objections. It sacrifices the fundamental aspects of the law of treaties, i.e., the
integrity and identity of the parties. It brings in the subjectivity of the parties to decide the
"compatibility" of the reservation with the object and purpose of the treaty and to
recognise the reserving State as a party. There would be no certain means of deciding
whether the reserving State has or has not become a party to the treaty. This will also
leave unclear the extent of the applicability of the actual treaty rule. Moreover, it will
lead to a cluster of bilateral agreements under a
_________________
68 The contrary approach was adopted at the behest of the USSR, which argued for the
complete freedom for States to make reservations, see Treaty Conference Records, 1969,
pp. 30-35.
69 It works on the principle of reciprocity. It was successfully applied and enforced by
UK in the Libyan People's Bureau Incident (1984). Libya made a reservation to the
Vienna Convention on Diplomatic Relations, which permitted Libya to open a diplomatic
bag if it entertained strong doubts about the legitimacy of its contents, and thus modified
the rule in the Convention on Diplomatic Relations not to open the diplomatic bag to the
extent of reservation. This would not have prevented UK from opening the Libyan bag,
see Foreign Affairs Committee Report (UK), 1984-85, House of Commons, p. xxxi.

70 In the Armed Activities (New Application: 2002) case (2006) ICJ Rep. p. 6, although
Rwanda, while acceding to the Genocide Convention made a reservation to Art. IX of the
Convention, had subsequently by law withdrew its reservations to all the treaties, the
withdrawal did not become operative as no action was taken, particularly through the UN
depository to notify other States, as Art. 22(3) required.

multilateral umbrella. The problem may further be complicated in the "law-making

treaties" or the treaty embodying the customary rule, where the basic question may be
related to whether a particular rule is binding upon a contracting party if it has appended
a reservation. It will also create difficulty in the emergence of a normative rule of
international law or will lead to dilution of the customary rule.
Nevertheless, this flexible approach of the Vienna Convention is working fairly well. The
multilateral treaties of importance generally contain provisions on the subject of
reservations. Any conflict relating to the "incompatibility" can be resolved by a majority
rule which is followed at all foras of the United Nations.71
V. TREATIES AND THIRD PARTIES

As a general rule, a treaty primarily binds the parties to it and may not confer rights or
impose obligations on third parties without their consent. This general rule, known as
pacta tertiis nec nocent nee prosunt, reflects the customary international law, which is
supported by the State and judicial practice and is incorporated in the Vienna Convention
(Arts. 34-38). It is akin to private law of contract, providing corresponding rule against
imposing obligations or creating rights in favour of a non-party.
The Convention states that "a treaty does not create either obligations or rights for a third
State without its consent" (Art. 34). However, "an obligation arises for a third State from
a provision of a treaty if the parties to the treaty intend the provision to be the means of
establishing the obligation and the third State expressly accepts that obligation in writing"
(Art. 35). This is to give expression to the fundamental principle of international law that
a State cannot be bound by a treaty provision without its consent. Similarly, the
obligation accepted by a State in writing can be revoked or modified only with the
consent of the parties to the treaties and of the third State, unless it is established that they
had agreed otherwise (Art. 37(1)).
The rule finds expression in the jurisprudence of the international tribunals. In the case of
the Free Zones of Upper Savoy and the District of Gex,72 the Permanent Court of
International Justice held that Art. 435 of the Treaty of Versailles, which provided that
zones were "no longer consistent with present conditions, and that it is for France and
Switzerland to come to an agreement" about the status of these territories, was "not
binding upon Switzerland who is not a party to that Treaty, except to the extent to which
that country accepted it". The case had its genesis in the 1815 Congress of Vienna (where
Switzerland did not participate), which declared Switzerland's neutrality and created free
zones of Gex and Upper Savoy for trade purposes in favour of Switzerland. In pursuance
of Art. 435 of the Treaty of Versailles (to which France was a party but not Switzerland),
France and Switzerland negotiated a treaty for the abolition of these zones, but the treaty
ultimately failed because it was rejected in a plebiscite by the Swiss people. France
purported to abolish the zones unilaterally, pleading that Art. 435 had abrogated the
zones or had created an obligation for Switzerland to abrogate
_________________
71 See Brownlie, Principles of Public International Law, 7th ed. (2008), p. 612, D.W.
Greig, International Law, 2nd ed. (Buttersworth, London), 1976, p. 468. For a contrary

view, see G. Schwarzenberger, International Law, 5th ed. (Stevens & Sons Ltd., London),
1967, p. 88.
72 PCIJ Rep., Series A/B, No. 46, p. 141 (1932).

them. The Court rejected these arguments of France. In the North Sea Continental Shelf
cases, Art. 6 of the 1958 Continental Shelf Convention relating to the delimitation of the
continental shelf was held to be non-applicable to the Federal Republic of Germany,
which was a signatory to the Convention but bad not ratified it.73 From these it may be
concluded that the treaties do not impose legally binding rules upon a dissenting State or
a non-party. Even in the cases of "legislative" treaties with a large number of parties,
there is no process to bind third States without their consent.
The requirement of consent in the case of obligations is very strict and amounts to a
collateral agreement between the parties to the treaty, on the one hand, and the third State
on the other. According to ILC, "judicial basis of the latter's obligation is not the treaty
itself but the collateral agreement".74 Certain kinds of treaties, however, bind or produce
effects for third States without their consent, such as "dispositive" and "constitutive"
treaties. The permanent arrangement set up by such treaties would not be extinguished by
war.75 Treaties creating or affecting rights, such as treaties of cession, boundary treaties,
treaties relating to international settlements or arrangement, such as those guaranteeing
neutrality of Switzerland and passage through the Suez canal, as well as treaties
establishing special regimes, such as de-fortification of Aaland Islands or States (for
example, Belgium), or international institutions endowing them with legal personality
valid erga omnes cannot be ignored by non-parties.76
Apart from "legislative" or "constitutive" treaties, there are treaties which expressly bind
the third parties. Article 2(6) of the United Nations Charter states: "The Organisation
shall ensure that States which are not Members ... act in accordance" with the principles
of the Charter "so far as may be necessary for the maintenance of international peace and
security". In pursuance of its duty to maintain international peace and security, Art. 33(2)
empowers the Security Council to call upon the parties (to the disputes, not necessarily
the members of the UN) to settle their disputes through peaceful means enumerated in
Art. 33(1). Read along with Arts. 37(2), 40, 41 and 42, Art. 2(6) empowers the Security
Council to control their conduct with regard to an essential aspect of their relations and
the right to intervene.77 This may lead to a situation when conformity with the terms of
such treaties will be expected as a matter of right and not as a matter of courtesy from a
third State. Certain multilateral conventions with intended universal application or of
public law character, may create enforceable obligations against non-parties.
_________________
73 See op. cit. 48 at p. 25. It was similarly held in the Island of Palmes case, RIAA, Vol.
II, p. 831 (1928); Status of Eastern Carelia case, PCIJ Rep., Series B, No. 5, pp. 27-28
(1923); the Territorial Jurisdiction of the International Commission of the River Oder
case, PCIJ Rep., Series A, No. 23, pp. 19-22 (1929).
74 See op. cit. 11, at p. 227.
75 Julius Stone, Legal Controls of International Conflict (Stevens & Sons Ltd., London),
1954, p. 448. In the International Status of South-West Africa case (1950) ICJ Rep.,
p.128, at p.154, Judge McNair observed that mandate constituted "more than a purely
contractual basis", territories subjected to it were "impressed with a special legal status".
76 In the Reparation case (1949) ICJ Rep. 124 at p. 185, the objective status of
international organisation, with a large membership, has been recognised under

international law, which is binding on non-parties. The opinion has established the
binding character of the UN Charter in relation to non-members, and in that sense, it is of
legislative character. See, for different view held by the ILC, op. cit. 11, at p. 231.
77 L. Oppenheim, International Law, Vol. 1, 9th ed. (Jennings and Watts (Ed.),
Longman, London), 1955, p. 1264.

For example, Single Convention on Narcotic Drugs, 1961, which replaced the Geneva
Drugs Convention, 1936, empowers the parties to the Convention to impose an embargo
against the imports of a non-party in the same way as against parties to the Convention, if
it exceeds its estimated narcotic drug requirements.78
Where a treaty creates rights, the rule, however, is less absolute for conveying assent,
which can be inferred from the circumstances. The Convention provides, "A right arises
for a third State from a provision of a treaty if the parties to the treaty intend the provision
to accord that right ... and the third State assents thereto. Its assent shall be presumed so
long as the contrary is not indicated".... (Art. 36(1)). It means that the assent of a third
State can also be inferred from mere acquiescence. The third State will have to comply
with the conditions for its exercise provided for in the treaty or established in conformity
with it (Art. 36(2)). There are numerous examples where the treaties have created rights
in favour of third parties, such as treaties creating international waterways, like Art. 1 of
the Convention Respecting Free Navigation of the Suez Canal, 1888, Art. 380 of the
Treaty of Versailles, 1919, and Hay-Pauncefote Treaty, 1901, which guaranteed right of
passage through Suez, Kiel and Panama canals respectively. These treaties are dispositive
or "real" in nature, i.e., they create rights in others (non-parties) of a permanent nature in
pursuance of the treaty. Such treaties bestow rights in rem, erga omnes (valid against all
the world).
The operation of the third-party right, nevertheless, should not be lightly presumed. In the
Free Zones case,79 the Court observed that it must be ascertained that the States which
stipulated in favour of a third State meant to create an actual right which the latter has
accepted as such. But a closer analysis of the judgment, however, suggests that the Court
affirmed the possibility of the creation of rights in favour of third parties irrespective of
their prior formal assent.80 The Aaland Islands case between Sweden and Finland, on the
other hand, establishes that the beneficiary State can enforce the right. The Committee of
Jurists, appointed by the League of Nations had to decide whether Finland, as successor
State to Russia was bound by the 1856 Convention made by Russia with France and
Great Britain, under which Russia had agreed to the permanent demilitarisation of the
islands. The Committee reported that the 1856 Convention created "objective law whose
effect extend beyond the circle of the contracting parties" and a "special international
status" for the islands. It observed that "every State interested has the right to insist upon
compliance with them and any State in possession of the Islands must conform to the
obligations binding upon it". Sweden, though not a party to the Convention, but "as a
power directly interested" could insist upon compliance with the Convention in so far as
the contracting parties have not cancelled it.81
Unlike obligation, the acceptance of the right by a third party is not conditional upon any
specific act or the conclusion of a collateral agreement between it and the parties to the
treaty. Further, any right so created, which has been claimed and enjoyed by third parties
cannot be revoked or modified without their consent, when it is established that the right
was intended
_________________
78 The 1961 Convention has been supplemented by the 1988 Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances.

79 Supra note 72 at p. 147.

80 L.N. Mathur, Treaties and Third States, in Agarwala, op. cit. 4, 41 at p. 48.
81 LNOJ (1920), Sp. Supp. No. 3, p. 3.

not to be revocable or subject to modification (Art. 37(2)). In the Free Zones case, the
Court held that the free customs zone created in favour of Switzerland by the Congress of
Vienna could not be revoked without her consent.
The treaties, declaratory of established customary rule of international law, will apply to
non-parties, which will be bound not by the treaty but by the customary rule, though
treaty might have given the rule a precise formulation. Similarly, a treaty leading to the
formulation of customary rule of international law, becomes binding upon a third-State as
such (Art. 38). The treaty may become an evidence of a general international law, the
accepted practice of nations.82
VI. OBSERVANCE AND VALIDITY OF TREATIES

The principle pacta sunt servanda (treaties must be observed) has long been recognised as
a fundamental principle of international law, which makes the treaties binding. Once
entered, a State must observe the treaty obligations in good faith. The Vienna Convention
provides, "Every treaty in force is binding upon the parties to it and must be performed
by them in goodfaith" (Art. 26). But the customary law of treaties provides certain
situations when treaty cannot be enforced because of its invalidity. Articles 45-52 of the
Vienna Convention also refer to the grounds on which a treaty may be rendered invalid
and put in doubt the enforceability of the rule of pacta sunt servanda.
A. Violation of Domestic Law on Treaty-Making

There are three different opinions regarding whether or not non-compliance with a
requirement of municipal law on treaty-making affects the validity of a State's consent.
According to one view, a treaty becomes voidable in contravention of constitutional
limitations. Another view is that a State contesting the validity of a treaty on
constitutional grounds may invoke only those provisions of the constitution which are
notorious. The third view holds that once the State has expressed its consent to be bound
by the treaty through one of the established procedures under its constitutional law, the
State is bound by the treaty in international law.83 Article 46 of the Convention,
however, incorporates the second view when it provides 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 ... as invalidating its consent", unless the violation was (a) manifest,
i.e., objectively evident to the other negotiating State acting in accordance with normal
practice; and (b) concerned a rule of internal law of fundamental importance.
Failure by the State representative to observe specific restriction on his authority to
express the consent of the State may not be invoked as a ground for invalidating the
consent, unless the restriction was brought to the knowledge of the other negotiating
States beforehand (Art. 47). If a treaty is subject to ratification, the incapacity of the
representative can be rectified
_________________
82 The Nuremberg Tribunal applied the regulations attached to the 1907 Hague
Convention on Rules of Land Warfare to determine crimes against the laws of war. The
Convention was considered to be declaratory of general international law and as such
binding against non-parties.

83 Op. cit. 11, pp. 240-241.

by the very act of ratification by the State (cf. Art. 8). The provisions of the Convention
(Arts. 46 and 47) are formulated in negative and restrictive terms, i.e., a State cannot
invoke the noncompliance with internal law as a ground of invalidity unless such
provisions are manifest and of fundamental importance. Further, it cannot invoke the
provisions of its internal law to justify its failure to perform a treaty (Art. 27). A treaty
has to be performed in good faith (pacta sunt servanda) even if it creates difficulties
under internal law. These provisions reflect the supremacy of international law over
internal law, when a treaty has been validly concluded. Failure to do so will entail the
international responsibility of the State. The judicial practice also supports the same
position. In the Eastern Greenland case, Norway argued that M. Ihlen was not competent
under Norway's Constitution to bind it on a matter covered by the Ihlen Declaration. The
Court rejected it and found it irrelevant as far as international law was concerned.84
B. Error
The Vienna Convention includes a specific provision (Art. 48) on error or mistake as a
reason to avoid the treaty. The State practice, however, is scanty in this regard. The ILC
points out that almost all the recorded instances in which errors have been alleged to
invalidate treaties concerned with "geographical errors, mostly errors in maps".85 Both
the International Court of Justice and the Permanent Court of International Justice have
had the occasion to consider the pleas of error, which were rejected. In the Temple of
Preah Vihear case, the boundary between Cambodia (then a French Protectorate) and
Thailand (then Siam) was determined as a water-shed line by a treaty between France and
Siam in 1904. The details for the demarcation were to be worked out by a Mixed Franco-
Siamese Commission. However, a map was prepared by French experts who placed the
Temple in Cambodia, which did not follow the watershed line. This map was never
approved by the Commission. It was sent in 1908 to Siam, which far from protesting the
error, thanked the French and requested 15 more copies. Furthermore, in 1930, a Siamese
Prince paid a State visit to the disputed area and was officially received there by the
French Resident at a ceremony at which the French flag was flown. Thus, there was no
error in the treaty but the error had been in the subsequent acceptance of the delimitation
of the boundary contained in a map, which misapplied the terms of the treaty. In 1947,
Thailand discovered the error and claimed sovereignty over the area, and in 1954, it put
armed guards and removed the sculptures and other objects from the temple. The Court
rejected Thailand's plea of error in the map and observed that "the plea of error cannot be
allowed as an element vitiating consent if the party advancing it contributed by its own
conduct to the error, or could have avoided it, or if the circumstances were such as to put
that party on notice of a possible error".86
_________________
84 See op. cit., 17, pp. 566-568. In Spanish Zones of Morocco Claims (Great Britain v.
Spain), 2 RIAA 615 at p. 724 (1925), arbitrator Huber rejected the Spanish contention
relating to Rio-Martin claim that the treaty was not binding on Spain because of the non-
observance of Moroccan law in its approval. In LaGrand case (Germany v. United States)
(2001) ICJ rep., p. 466; and Avena and other Mexican Nationals case (Mexico v. United

States) (2004) ICJ Rep., p. 12, the United States was found to be in breach of its
international obligations under the Vienna convention on Consular Relations, 1963.
85 Op. cit. 11, at p. 243.
86 (1962) ICJ Rep., p. 6, at p. 22. The border dispute, involving the Preah Vihear has
again resurfaced since July 2008, after the UNESCO decided to declare the Temple as
World Heritage Site.

In the Mavrommatis case,87 the concessions granted in Palestine by the Turkish

authorities to Mavrommatis, a Greek national, were withdrawn by Great Britain on the
ground that the alleged concessions were granted by mistake. If the Turkish authorities
had realised that Mavrommatis was not a Turkish subject, concessions would not have
been granted. The Court observed that, since Mavrommatis' identity was never in any
doubt, the error related only to his attributes. It held that the grant of concessions was not
based on his nationality and therefore, in no way invalidated the agreement.
Error, to be a ground of invalidity, must be one related to a fact or situation assumed by
the State concerned and which formed an essential basis of its consent to the treaty. If the
State has contributed by its own conduct to the error or if the circumstances were such as
to put that State on notice of a possible error, or the error related only to the wording of
the text of the treaty, it cannot become a ground for the invalidation of the treaty (Art.
48). The provision embodied in the Vienna Convention does not make a distinction
between mutual and unilateral error, or between error of fact or of law, though it
mentions about error relating to a "situation" and a "fact".
C. Fraud and Corruption of the State Representative

The fraudulent conduct of a contracting party and the corruption of its representative
have been included as reasons for invalidity of a treaty (Arts. 49 and 50), although they
are not important in the treaty law and practice. Fraud is a ground for the avoidance of
contractual obligations in most legal systems, but there is a recognisable lack of judicial
precedents under international law about the scope of the concept. The term "fraud" is
undefined in the Vienna Convention. For "corruption", acts meant to exercise a
substantial influence on the disposition of the representative to conclude a treaty may
become a ground for invalidating the treaty. However, the precise scope of both these
grounds would be determined by the future State practice.88
D. Coercion
A treaty becomes void if its conclusion was procured by the threat or use of force in
violation of the principles of the Charter of the United Nations. This coercion can be of a
State's representative or of a State. However, the coercion of the representative is rare.
Article 51 of the Vienna Convention is aimed at the coercion of a representative
personally. The use of coercion against the representative of a State for the purposes of
procuring the conclusion of a treaty would be a serious matter, which is sufficient to
declare the treaty devoid of any legal consequence. In practice, sometimes it becomes
difficult to make a distinction between the coercion directed at a State or its
representative.89
_________________
88 Op. cit. 11, at p. 245.
89 The only example of the exercise of both has been that of threat of use of force
given to President Hacka of Czechoslovakia on March 15, 1939, in Berlin, to sign a treaty
with Germany, creating German protectorate over Bohemia and Moravia.

The scope of the provision on coercion remained very controversial at the ILC, and many
members wanted to include any form of coercion, including economic and political
pressure, but this was strongly opposed by Western representatives. It ultimately led to
the adoption of a separate Declaration by the Conference on the Law of Treaties,
condemning the use of military, political and economic coercion in concluding a treaty,
with a resolution requesting the widest dissemination of the Declaration. It became part
of the Final Act of the Conference.90 This understanding may amount to recognition of
something akin to "economic coercion" as a ground of invalidity of treaties but it falls
short of declaring them void per se. Its non-inclusion in Art. 52 of the Vienna Convention
as a ground of invalidity does not make it legally binding on the parties. Nevertheless, it
recognises the "unequal treaties", i.e., those not concluded on the basis of equality, and
which may affect the validity aspect. The rule stated in Art. 52 is related to the invalidity
of a treaty that was concluded under coercion.91 A treaty which is signed as a matter of
choice, such as the 1979 Egyptian-Israeli Treaty of Peace (Camp-David Pact), is not
invalid under Art. 52, even though it might have been influenced by a prior use of force.
The rule has been made non-retroactive in its operation (cf. Art. 4). The only reported
case where the charge of coercion was unsuccessfully made was the Fisheries Jurisdiction
cases (Jurisdiction).92 The Iceland, relying on Art. 52, contended that the Exchange of
Notes between itself and Great Britain in 1961, were void ab initio since they took place
under difficult situations as the British Navy had been using force to oppose the 12-mile
fishery limit established by the Iceland in 1958. The Court failed to find any duress and
observed that the Exchange of Notes was negotiated under circumstances revealing
perfect freedom and equality of both the parties.
E. Conflict with a Norm of Jus Cogens

A treaty is void ab initio if at the time of its conclusion, it conflicts with a peremptory
norm of general international law, i.e., jus cogens (Art. 53). An existing treaty which is in
conflict with a new peremptory norm becomes void and terminates (Art. 64). Thus, a
treaty is void if it is in contravention with the existing or new jus cogens. The provisions
on jus cogens in the Vienna Convention are in the nature of de lege ferenda. No precise
definition of jus cogens is given in the Convention, but it is stated to be "a norm accepted
and recognised by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a subsequent norm
of general international law having the same character". Jus cogens is opposed to jus
dispositivum, i.e., rules which yield to the will of the parties. In case of contrary
disposition of the parties, one can contract out of jus dispositivum but not out of jus
cogens.93
_________________
90 UN Docs. A/CONF. 39/C, 1/SR, 48-51 and 57; A/CONF. 39/SR, 19.
91 The exception to the rule has been provided for "any obligation in relation to a
treaty which may arise for an aggressor State in consequence of measures taken in
conformity with the Charter of the United Nations with reference to that State's
aggression" (Art. 75).
92 (1974) ICJ Rep., p. 3.

93 R.P. Dhokalia, Problems relating to jus cogens in the law of treaties, in Agarwala,
op. cit. 4, p. 150.

However, this concept, which draws its parallel with public policy or ordre public of
municipal law, but not entirely synonymous,94 has been the subject of serious
controversy among the jurists. Those who support the concept assert certain principles of
law fundamental to the international legal order, which cannot be derogated from a treaty,
but these jurists are in doubt and are divided as to the content and application of jus
cogens. Others deny the existence of such a concept under international law. They doubt
whether the international legal order is sufficiently developed to support similar notions
of public policy, and argue that it may be resorted to as a means of avoiding onerous
treaty obligations.95 This controversy was seriously echoed in the adoption of the
provisions on jus cogens, which led to vagueness in the formulation of these provisions.
The Convention does not specify the organs and procedures through which the norms in
the nature of jus cogens would be identified; will it be by the parties to the treaties, and
will it evolve through the process by which a customary rule of international law
emerges? However, Art. 64 provides that if "a new peremptory norm of general
international law emerges, any existing treaty which is in conflict with that norm
becomes void and terminates". This clearly contemplates that a norm of jus cogens could
be one of customary international law.96 The norms in the nature of jus cogens are
mainly derived from customs and treaties in the character of international law. Whether
they can be derived from other sources, remains a moot question.
The requirement in Art. 53, for the acceptance of the rule of jus cogens by States as a
whole seems ambiguous, but the acceptance by a large majority of nations has been
considered as sufficient.97 However, this should invariably include the States whose
acceptance matters for the formulation of a particular rule. The anomaly is further
complicated by the fact that a norm in the nature of jus cogens from which no derogation
is allowed in the first instance, can be modified by a subsequent norm of general
international law of the same character. This creates a contradiction of a sort. How can a
new norm of the same character emerge when no derogation from the original norm is
permitted? It is also a moot question whether Art. 53 would be retroactive in operation,
thereby making all treaties which are in conflict with jus cogens, void ab initio.98 But
Art. 64, which is to be read along with Art. 53, does not make a treaty void ab initio, but
invalidity is attached from the time of the establishment of a new jus cogens. The
Convention also does not enlist any norms of jus cogens. However, the prohibition
against the threat or use of force as enshrined in Art. 2(4) of the United Nations
_________________
94 B.S. Murty, Jus cogens in the Law of Treaties, Proceedings of Indian Society of
International Law (5th Annual Conference, 1968), p. 10.
95 Jurists like Verdross, Rosenne, McNair, Kelsen, Guggenheim support the concept;
Schwarzenberger, Brierly deny its existence.
96 See Starke, op. cit. 10, p. 56.
97 UN Conf. on the Law of Treaties, Official Records, 80th Meeting, p. 472; UN Doc
A/CONF. 39/11.
98 In the Aloeboetoe case (1994) 1-2 I H.R.R. 208, the Inter-American court of Human
Rights ruled that a 1762 treaty that imposed an obligation to sell prisoners as slaves

"would today be null and void because it contradicts the norms of jus cogens
superveniens."

Charter, slave trade, genocide99 or piracy jure gentium, have come to be accepted as
examples of peremptory norm.100
To avoid any unscrupulous use of jus cogens as a ground for avoiding treaty obligations,
the Convention tried to eliminate the chances of unilateral denunciation of treaties on the
ground of conflict with jus cogens (Arts. 65 and 66). If parties fail to arrive at a solution,
any party can approach to the International Court of Justice, which will have the
compulsory jurisdiction in disputes related to Arts. 53 and 64.101 However, these rules
on jus cogens are limited only to the parties to the Convention. But if they are important
and fundamental to international public order, they should be equally binding on the
States that are interested in the maintenance of public order.
There has not been any judicial precedent on the invocation and application of this
principle before any international tribunal so far, except its reference in the North Sea
Continental Shelf cases.102
VII. TERMINATION AND SUSPENSION OF TREATIES

Treaties are liable to be terminated or suspended either in accordance with the will of the
parties or by the operation of any rule of law.
A. Termination and Suspension by the Will of Parties

The termination of a treaty or withdrawal by a party may be in accordance with the terms
of the treaty or at any time by the consent of all the parties (Art. 54 of the Vienna
Convention). The operation of a treaty may be suspended for all the parties or for a
particular party according to the express stipulations of the treaty or by mutual consent of
all the parties at any time (Art. 57). Most treaties contain clauses limiting the duration of
the treaty after which it comes to an end. Some give reference to a specific purpose or
event, and when the purpose is accomplished or that event has occurred, the treaty comes
to an end, like most IBRD agreements with States. Similarly, a treaty may allow
withdrawal to a State at any time after giving requisite notice, e.g., the Chicago
Convention, 1944; or withdrawal is possible only in certain circumstances,
_________________
99 In the Armed Activities (New Application: 2002) case, op. cit. 70, the Court accepted
the erga omnes character of the norm, i.e., a rule of jus cogen is a part of customary
international law, but rejected an argument of Democratic Republic of Congo that the
Rwandan reservation to Art. IX to the Genocide Convention was invalid as contrary to
jus cogens.
100 The view has also been expressed that Art. 103 of the UN Charter is in the nature of
jus cogens, which gives supremacy to Charter obligations over obligations under any
other international agreement of the members and thus places limitation on the treaty-
making power of the members in conflict with the Charter. However, a closer analysis of
the Charter reveals that only Art. 2(4) bears that character, and the principle against use
of force is also part of customary international law. According to Soviet view, every
treaty is in the nature of peremptory norm imposing binding obligation. The rule of pacta
sunt servanda has also been considered as peremptory norm.

101 Precisely for this reason and partly because of the doubt about the provisions on jus
cogens that France voted against the adoption of the Convention, see op. cit. 2.
102 See op. cit. 48 in para. 72.

e.g., Art. 3 of the Nuclear Test Ban Treaty of 1963 allows withdrawal after serving three
months' notice, if due to the extraordinary events related to the subject matter of the
treaty, its supreme national interest has been jeopardised. When a multilateral treaty
expressly stipulates a fixed number of parties for its entry into force, generally the treaty
does not terminate if subsequently the number falls below the stipulated number, unless
there is a specific provision to this effect. For example, the Air Transport Agreement,
1944, which required five ratifications for coming into force, had three States parties at
one time and remained in force (it has eleven members at present). On the other hand, the
1957 Convention on the Nationality of Married Women provides six ratifications for its
coming into force and if the number falls below six it will cease to be in force.
1. Treaties without a provision on termination or denunciation

Where a treaty is silent on the matter of termination, withdrawal or denunciation,
normally no denunciation or withdrawal is possible. This is also in accordance with the
basic tenet of pacta sunt servanda of international law and a State cannot get rid of its
obligations under a treaty without the consent of all the parties to the treaty, expressly or
by implication. Unless it is established that the parties intended to admit the possibility of
denunciation or withdrawal, or the right of denunciation or withdrawal may be implied by
the nature of the treaty, it is not permissible (Art. 56). Treaties creating permanent
regimes cannot be denounced. On the other hand, because of their subject matter, treaties
of alliance and commerce are susceptible of denunciation, even without containing any
express provision to that effect. However, a State exercising such a right must give at
least 12 months' notice to other States parties about its intention of withdrawal from the
treaty (Art. 56(2)).103 In practice, treaties contain a clause to this effect.
It is generally observed that whenever a State denounces a treaty, it gives legal reasons to
do so, even though the legality of denunciation has remained a doubtful issue. A
notorious example of it is found in Hitler's denunciation of Treaty of Versailles in 1936,
pronouncing it as a diktat, i.e., the peace treaty was imposed on Germany, and therefore,
not binding.
2. Conclusion of a subsequent treaty

A treaty may be "impliedly repealed" if all the parties to it conclude a new treaty relating
to the same subject matter and it appears from the later treaty or is otherwise established
that the parties intended that the matter be governed by the new treaty, or its provisions
are incompatible with the earlier treaty and the two are not capable of being applied at the
same
_________________
103 The rule enunciated in Art. 56 is applicable to the whole treaty and not to a particular
provision of the treaty. However, if the ground relates to particular clauses, it may be
invoked with respect to those clauses which are separable from the remainder of the
treaty and do not form the essential basis of the consent of other parties, and the
remainder of the treaty would not be affected unjustly in its operation, see Art. 44(3).

time (Art. 59).104 To make this rule applicable, however, all the parties to an earlier
multilateral treaty should be parties to the new treaty. In the absence of that, the
presumptive rule is that the subsequent treaty does not amend or cannot terminate the
earlier multilateral treaty unless the intention for termination or amendment is express or
the effect is clear. Judge Castro in the Nuclear Tests cases observed that the tacit
abrogation of treaties would "introduce confusion into the international system".105 In
response to the Australian claim that the Court can exercise jurisdiction on the basis of
the 1928 General Act for the Pacific Settlement of International Disputes and the French
counter-argument that the Act was terminated by the Revised General Act adopted by the
General Assembly in 1949, the Court observed that in the absence of an unequivocal
evidence, the basic principle is "that the amending treaty exist side by side with the
original treaty, the latter remaining in force unamended as between those of its parties
which have not established their consent to be bound by the amending treaty".106 This
rule enunciated by the Court finds its mention in Art. 30(4)(b) of the Vienna Convention.
Article 30(3) specifically mentions:
When all the parties to the earlier treaty are parties also to the later treaty, but the earlier
treaty is not terminated or suspended in operation under Art. 59, the earlier treaty applies
only to the extent that its provisions are compatible with those of the later treaty.
However, in the absence of anything to the contrary in the treaties themselves, the rule is
that it is the later in time that prevails in the case of incompatibility between the two. A
treaty may come to an end by the conduct of the parties also.
B. Termination and Suspension by Operation of Law

Sometimes it becomes difficult for the parties to fulfil their obligations under a treaty
because of certain happenings which may lead to its termination or denunciation by a
party.
1. Breach of treaty by a party

Where a treaty is silent, it is a commonly held opinion of the jurists that a violation of a
treaty by one party may vest the other party with a right to abrogate or suspend the
performance of its obligations under the treaty. The differences among the parties
generally arise not on the right to denounce the treaty when serious violations have taken
place, but over the onesided and arbitrary pronouncements of the denouncing State.
States quite often use it as a pretext for withdrawing from an inconvenient treaty.
However, under the Vienna Convention, it is only a "material breach" that entitles a party
to withdraw from a treaty. A "material breach" consists in "the violation of a provision
essential to the accomplishment to the object and purpose of a treaty" (Art. 60(3)(b)).
Support for the view that only a material, as opposed
_________________
104 As an example of repeal of a bilateral treaty, see Union of India v. Sukumar
Sengupta (Tin Bigha case), AIR 1990 SC 1692 at p. 1703, the conclusion of the 1974 and
1982 agreements between India and Bangladesh was found to supersede the 1958
agreement between India and Pakistan on the same subject-matter.
105 (1974) ICJ Rep., p. 253, at p. 381.

106 Ibid., at p. 336

to any breach justifies the termination or suspension of the treaty is found in the Tacna-
Arica Arbitration107 between Chile and Peru. Article 3 of the Treaty of Ancon, 1883,
provided that the disputed provinces of Tacna and Arica should remain in the possession
of Chile, which had obtained their possession by force, for 10 years from the date of
ratification of the treaty, after which their future was to be determined through plebiscite.
After the end of this period in 1922, Peru was not willing to abide by Art. 3 of the Treaty
The arbitrator did not accept the Peruvian contention that by her policy of
"Chileanization" of the provinces, introduction of Chilean nationals, and closing down of
Peruvian schools, Chile had prevented the holding of the plebiscite as envisaged in Art. 3
of the Treaty, and thereby discharged Peru from her obligations. The arbitrator observed
that administrative abuses, to have the effect of terminating such an agreement, should
manifest in such serious conditions "as would operate to frustrate the purpose of
agreement", and "a situation of such gravity" had not been shown to have existed in this
case.108
A material breach of a bilateral treaty by a party entitles the other to repudiate or suspend
the operation of the treaty.109 In a multilateral treaty, a breach by one party tends to
undermine . the whole regime of the treaty as between all the parties, which entitles the
other parties by unanimous agreement to suspend or terminate the treaty between the
defaulting State and themselves or for all. If a party is specifically affected by the breach,
it may suspend the operation of the treaty between itself and the defaulting State. If the
breach radically changes the position of every party with respect to the further
performance of its obligations under the treaty, performance can be suspended (Art.
60(2)). Disarmament treaties fall under this category, where a breach by one party entitles
the others to suspend the operation of the treaty without the prior agreement of other
parties.
The rule enunciated in Art. 60 is not applicable to provisions relating to the protection of
the human persons in treaties of humanitarian character (Art. 60(5)). The rule will also
not apply to the constitutional treaty of an international organisation, which would not be
suspended or terminated by the withdrawal or suspension by one of the parties (cf. Art. 5
of the Vienna Convention). Denunciation of a treaty, however, would not affect the
conditional validity of the jurisdictional clause contained in a treaty, which by virtue of
its effectiveness would allow the tribunal to decide about the operativeness of the treaty
between the parties.
In the case of Appeal Relating to the Jurisdiction of the ICAO Council,110 which arose
out of the hijacking and diversion of an Indian aircraft to Pakistan, on February 4, 1971,
which was burnt in the Pakistani territory, and the subsequent suspension by India of
overflights of Pakistani aircrafts through its airspace, India alleged the breach of two
conventions by Pakistan, i.e., the Chicago Convention and the Transit Agreement of
1944, which established the principle of freedom of overflight between the contracting
parties. India contended that as "specifically affected" by the "material breach", it was
entitled to suspend the two conventions
_________________
107 2 RIAA 921 (1925).
108 Ibid., at p. 944.

109 If a party, which is a victim of the breach itself, has committed a prior breach of
the treaty, it would not be entitled to suspend or repudiate the treaty, see the case
concerning Gabcikovo-Negymaros Project (Hungary/Slovakia), (1997) ICJ Rep., p. 7,
para. 105.
110 ICAO Jurisdiction case (1972) ICJ Rep., p. 46.

with Pakistan. Pakistan's conduct was also alleged to be contrary to international law,
custom, usage, and principles and objectives of the two agreements. The Court observed
that the Chicago Convention being the constituent treaty of the ICAO, endowed the
ICAO with a legal personality, and it was not governed disjunctively by an accumulation
of bilateral treaties. The members of the organisation are governed by its constitution.
The Chicago Convention (Art. 95) does not recognise "the possibility of denunciation
vis-a-vis a single member State". Therefore, a State which is in breach of its obligations
or duties under the constitution towards a member is not in breach of a single bilateral
treaty, but in breach of the constitution of the organisation. The treaties creating
international organisations "are subject to special rules and not to the rule laid down in
Art. 60 of the [Vienna] Convention". The rules of the Chicago Convention "do not
recognise the possibility of a State declaring the Convention at an end vis-a-vis one other
State".111
Where the treaty is silent and contains no provision for termination, withdrawal or
denunciation, it is generally subject to the rule contained in Art. 56(1), i.e., it "is not
subject to denunciation or withdrawal". But the International Court of Justice's opinion in
the Namibia case purported to overrule this position. The Court laid down that where a
treaty is silent, it cannot be interpreted as implying the exclusion of such a right which is
a part of general international law. The South African argument that neither the Covenant
of the League nor the Mandate, bestowed upon the League Council the power to
terminate a mandate for the misconduct of the mandatory, hence the United Nations, as
the successor of the League has no power to terminate the Mandate Agreement. The
Court dismissed this argument by observing that South Africa's failure to fulfil its
obligations under the Agreement gives the right to the United Nations to terminate the
Agreement. To succeed, South Africa must show that the "Mandate system ... excluded
the application of the general principle of law that a right of termination on account of
breach must be presumed to exist in respect of all treaties". Such a power is presumed to
exist in any agreement.112 Thus, Art. 60 is an exception which takes precedence over the
rule contained in Art. 56(1).
2. Supervening impossibility of performance

This rule is akin to the common law principle of "frustration of contract" known to
private law of contract of many countries. A party to a treaty may be discharged from its
obligations, or a treaty may be terminated due to a supervening impossibility resulting
from "the permanent disappearance or destruction of an object indispensable for the
execution of the treaty" (Art. 61(1)). The ILC illustrates these circumstances as the
submergence of an island, the drying up of a river or the destruction of a dam or hydro-
electric installation indispensable for the execution of a treaty. The impossibility of
performance may be due to the total disappearance of a State party either by its
annexation to another State or its disappearance because of conquest, or the cession of
part of its territory to another State, which was vital for the performance of the treaty.
_________________
111 Ibid., pp. 130-131.
112 See op. cit. 3, at pp. 47-48.

If the impossibility is not permanent, it may be invoked only as a ground for suspending
the operation of the treaty. If the impossibility is the result of some default of the
invoking party (due to breach of the treaty or any other international obligation owed to
any other party to the treaty), it will not be a ground for termination, suspension of, or
withdrawal from the treaty (Art. 61(2))."3 The effect of impossibility is not automatic,
and the party must invoke the ground for termination.
3. Fundamental change of circumstances (rebus sic stantibus)

Treaties which are perpetual in nature and silent on the termination and withdrawal may
be revoked because of vital change in circumstances. Almost all modern jurists accept
that a party may be justified in demanding to be released from the obligations of a treaty
intended to set up an everlasting state of things. This is based on the principle,
traditionally known as conventio omnis intelligitur rebus sic stantibus and assent, i.e., the
treaties are concluded under the tacit condition rebus sic stantibus (literally means "things
remaining as they are"). The principle is an express or implied term in every treaty,
conditioning its validity upon the continuance of the circumstances existing at the time
when it was made. This implies that the vital change in those circumstances provides a
right to demand to be released from the obligations of the treaty concerned, and the treaty
may be brought to an end.
However, the doctrine of rebus sic stantibus has always remained controversial. Critics of
the doctrine dislike it because it is against the principle of pacta sunt servanda, which is
the basic tenet of international legal system and brings in insecurity in treaty obligations.
Those who support the doctrine fear its abuse and its proneness to subjective
interpretation. They like its restrictive application with an objective criterion. The ILC, in
an attempt to reconcile the different views, rejected the implied term of "clausula" rebus
sic stantibus in every treaty by operation of law, (which would automatically dissolve the
treaty) and formulated an objective rule of law. It has also dispensed with the appellation
"rebus sic stantibus". Thus, Art. 62 of the Vienna Convention provides:
1. A fundamental change of circumstances which has occurred with regard to those
existing at the time of the conclusion of a treaty, and which was not foreseen by the
parties, may not be invoked as a ground for terminating or withdrawing from a treaty
unless:
a. the existence of those circumstances constituted an essential basis of the consent
of the parties to be bound by the treaty, and
b. the effect of the change is radically to transform the extent of obligations still to
be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for
terminating or withdrawing from a treaty.
a. if the treaty establishes a boundary; or
_________________
113 Case concerning Gabcikovo-Negymaros Project, op. cit. 109, paras. 102-103.

b. if the fundamental change is the result of a breach by the party invoking it either of an
obligation under the treaty or of any other international obligation owed to any other
party to the treaty....
A party may also invoke the fundamental change of circumstances as a ground for the
suspension of the operation of a treaty (Art. 62(3)).
Though claimed by the ILC as an objective rule of law, the formulation in Art. 62
involves two tests for its application: subjective and objective. The subjective test
requires the determination by the parties that the original state of circumstances
surrounding the conclusion of the treaty, which were necessary for the continuance of the
treaty, has disappeared. According to the objective test, the change in circumstances is so
fundamental as to radically transform the obligations of the parties. In order to guard
against its unrestricted use by the States, the rule has been negatively formulated and can
only be invoked if it fulfils both the subjective and objective tests.
In Gabcikovo-Negymaros Project Case, the ICJ has seemed to apply both the tests. In this
case, in 1989 Hungary unilaterally suspended and abandoned the work on the project
under a 1977 bilateral treaty with Czechoslovakia to construct a system of locks diverting
a stretch of the river Danube along a new channel on their territories to produce
hydroelectricity, improve navigation and protect against flooding, on the ground of its
adverse environment impact. Czechoslovakia thereupon devised a plan (variant C) that
deviated from the treaty and involved the diversion of Danube into a bypass canal into its
territory. In May 1992 Hungry terminated the treaty citing as Variant C in breach of the
treaty. In 1993, Hungry and Czechoslovakia referred the case to the ICJ to decide on
Hungary's abandonment of the work on the project; Czechoslovakia's adoption and
implementation of Variant C; and Hungary's termination of the treaty. Hungary relied on
the principles of impossibility of performance (Art. 61) and fundamental change of
circumstances (Art. 62) for non-compliance with and termination of the treaty. The
Court, while rejecting the plea of Hungary, observed that the, "changed circumstances
advanced by Hungary [developments in the environmental law and law] are... not of such
a nature, either individually or collectively, that their effect would radically transform the
extent of obligations still to be performed in order to accomplish the Project. A
fundamental change must have been unforeseen; the existence of the circumstances at the
time of the Treaty's conclusion must have constituted an essential basis of the consent of
the parties to be bound by the Treaty."
The change of circumstances may not become a ground for terminating or withdrawing
from boundary treaties for the obvious reason to maintain international peace, and where
the party invoking it is at fault. This provision does not give the automatic or unilateral
right of denouncing the treaty but is subject to the procedure laid down in Arts. 65 and
66, which envisage a notice and determination of the change in circumstances before a
party gets the right to withdraw from the treaty.
The States have frequently invoked the doctrine before international tribunals, but it
never became the basis for decision in any case. In the Free Zones case, the Permanent
Court of International Justice accepted its existence, but did not lay down its precise
extent and mode of application. The Court did not accept its application in that case

because France failed to show that the constituent treaty for free zones (i.e., the Congress
of Vienna, 1815) terminated

because of change of circumstances due to the creation of a Federal customs unit by

Switzerland in 1849, as the pre-existing circumstances affected by the new customs unit
were not proved to be the basis of the creation of free zones.114 In the Fisheries
Jurisdiction case, the Iceland argued that the Anglo-Icelandic agreement of 1961, which
established a 12 mile fishing zone for Iceland, is no more binding because of changes in
international law which had recognised the right of a coastal State to establish fishing
zones without special agreements with States directly affected, and there has been
fundamental change in the fishing techniques in the waters around Iceland. The Court, in
rejecting the Iceland's contention, invoked Art. 62 of the Vienna Convention which stated
to be a rule of customary international law. The Iceland's alleged change of circumstances
could not be said to have "transformed radically" the extent of the jurisdictional
obligations imposed by the 1961 agreement.115 The doctrine has also not found favour
with the political organs of the United Nations.116
Thus, though there is a wide acceptance of the doctrine for the termination of a treaty but
there is a strong disposition against its unilateral invocation and unscrupulous use.
VIII. TREATY INTERPRETATION

When parties ascribe different meanings to the same term, or are unable to give any
meaning thereof and the meaning of the term is obscure or ambiguous, it is through the
technique of interpretation that the term of the treaty is elucidated.117 Whenever a
question of interpretation comes before a tribunal, it becomes its duty to ascertain and
give effect to the intention of the parties as expressed in the words used by them in the
surrounding circumstances. The judges or arbitrators quite often borrow private law rules
of interpretation of a statute or a legal document for the purposes of interpretation of
treaties.
A. The Plain Meaning or "Textual Approach"

The starting point of any approach to the interpretation of a particular provision, whether
of a municipal statute or a treaty, is invariably the words actually used. If the words used
are clear and unambiguous, then the judicial tribunal will give effect to the provisions of
_________________
114 See op. cit. 72. This is in line with Art. 62(1) of the Vienna Convention,
envisaging the continuance of earlier circumstances for the validity of the treaty.
115 Op. cit. 92 at p. 21; see also, the Gabcikovo-Negymaros Project case, op. cit. 107,
para. 104.
116 A case in point is of the Egyptian demand in 1947 in the Security Council for the
withdrawal of British troops from Egyptian territory and to terminate the British
administration over Sudan on account of change of circumstances, which the Security
Council did not accept, see 43 AJIL762 (1949).
117 Interpretation differs from "application of treaties", which almost invariably
involves some measure of "interpretation". Interpretation is the process of determining
the meaning of the text; application is the process of determining the consequences,
which according to the text, should follow in a given situation.

Both are interdependent since differences over interpretation of a treaty invariably arise
in connection with its application, disputes related to its application practically always
involve a question of interpretation. On treaty interpretation, see generally, McNaii; op.
cit. 8, Chs. XX-XXVI1I; ibid., 28 BYblL, pp. 1-28 (1951); G. Fitzmaurice, BYblL, pp.
203-238 (1957). Dharm Pratap, Interpretation of Treaties: Use of intrinsic and extrinsic
materials, in Agarwala, op. cit. 4, p. 55; S.P. Sharma, The ILC draft and treaty-
interpretation with special reference to preparatory works, 8 IJIL 368 (1968).

the treaty in accordance with that sense. In the jurisprudence of the International Court
(PCIJ and ICJ), the textual approach to treaty interpretation is regarded as an established
law. If that leads to ambiguous or unreasonable results, the Court will resort to other
methods.118 In the Competence of the General Assembly case, the Court was asked
whether the General Assembly could decide to admit a new State to the United Nations
without the recommendation of the Security Council. The Court answered in the
negative, basing its opinion on the clear and obvious meaning of Art. 4(2) of the Charter,
which provided the new admission to "be effected by a decision of the General Assembly
upon the recommendation of the Security Council". In so doing, the Court proceeded on
the principle that it ought to give effect to the provisions of a treaty "in their natural and
ordinary meaning in the context in which they appear".119 By qualifying the "natural and
ordinary meaning" by the words "in the context in which they appear", the Court has
removed the element of undue rigidity or restriction which might otherwise be attached to
the concept, and provided it the required flexibility.120 The significance of the "context"
was demonstrated by the Court in the Competence of the ILO with respect to Agricultural
Labour case121 and the Free Zones case122
In the Competence of the ILO case, the Court was asked various questions: whether the
ILO had the competence to draft regulations dealing with agricultural workers?; was the
term "industry" used in many provisions of the ILO constitution limited to the
manufacturing industry?; the provision that the Governing Body of the ILO should
include representatives from States of "chief industrial importance" be restrictively
construed? The Court held that the Treaty must be read as a whole, and that the use of the
term "industry" or "industrial" should not be given the restricted meaning to limit the
competence of the Organisation. Accordingly, the ILO's competence extends to
agricultural workers.
In the Free Zones case, the Court was asked to decide whether the customs free zones
created in favour of Switzerland by the peace settlement of 1815 and later instruments,
stand terminated by Art. 435(2) of the Treaty of Versailles, which found them "no longer
consistent with present conditions". In the Court's view, para. 2 could not be read in
isolation from para. 1, which made the abrogation of free zones dependent upon "the
agreement reached between the French Government and the Swiss Government for the
abrogation of the stipulations" relating to the free zones. As the agreement, drafted at the
time of the Treaty of Versailles, was not ratified by Switzerland later, the customs free
zones still existed.
The Vienna Convention reflects this judicial position in Art. 31(1) which states:
A treaty shall be interpreted in goodfaith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
_________________
118 Op. cit. 11, at p. 220.
119 (1950) ICJ Rep., p. 4, at p. 8. The Court also took this approach in Polish Postal
Service in Danzig, PCIJ Rep., Series B, No. 11, pp. 16 and 19 (1925); Employment of
Women at Night, PCIJ Rep., Ser. A/B, No. 50, p. 373 (1932); Admissions case (1948)
ICJ Rep., p. 57. On the limits of the "purely grammatical" approach, see the Aegean Sea
Continental Shelf case, op. cit. 15.

120 Here "context" appears to be indistinguishable from the "text of a treaty", see,
Dharm Pratap, op. cit. 117, at p. 59, n. 10.
121 PCIJ Rep., Series B, No. 2, pp. 39-40 (1922).

The "context" has been used in a wider sense including the background of the treaty and
not confined merely to the text of the treaty.123 Where the "natural and ordinary
meaning" of the text of the treaty is clear enough, no tribunal would be prepared to ignore
it even if it will produce anomalous consequences or make the treaty ineffective. In the
Peace Treaties case,124 where the issue was related to the formation of a commission to
hear disputes concerning the "interpretation or execution" of peace treaties concluded
between Allied Powers and Bulgaria, Hungary and Rumania in 1947, the Court observed:
The breach of a treaty obligation cannot be remedied by creating a Commission which is
not the kind of commission contemplated by the Treaties. It is the duty of the Court to
interpret the Treaties, not to revise them. The principle of interpretation expressed in the
maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness,
cannot justify the Court in attributing to the provisions for the settlement of disputes in
the Peace Treaties, a meaning which ... would be contrary to their letter and spirit.
Thus, the Court refused to apply the principle of effectiveness in the face of clear and
unambiguous meaning of the text.
B. The Principle of Effectiveness

The Court will resort to other methods of interpretation when the ordinary and natural
meaning leads to an ambiguous or unreasonable result. Article 31(1) of the Vienna
Convention allows the tribunal to interpret the treaty according to its object and purpose,
as a part of its general rule of interpretation for obtaining the ordinary meaning of the
term, and taking into account number of factual evidence or legal presumptions of what
the parties intended. This is in accordance with the principle of effectiveness, expressed
in the maxim ut res magis valeat quam pereat, which requires that the treaty should be
given an interpretation which "on the whole" will render the treaty "most effective and
useful". When a treaty is open to two interpretations, one of which does and the other
does not enable the treaty to have appropriate effects, then goodfaith and the object and
purpose of the treaty demand that the former interpretation should be adopted.125 The
principle has been most strikingly applied by the International Court in the interpretation
of the constitutions of international organisations. In the Free City of Danzig and the ILO
case,126 the Court, in order to attain the universality of the ILO membership, discarded
the restrictive interpretation of Art. 387 of the Treaty of Versailles that seemed to link
membership of the ILO to the membership of the League of Nations. In the Reparation
case,127 the Court upheld the capacity of the United Nations, on the basis of duties
entrusted upon it by the Charter, to sue a State responsible for causing death or injury to
its agent, in the absence of any clear provision to this effect in the Charter.
_________________
123 See Administrative Tribunal of the ILO case, (1956) ICJ Rep., p. 77, at p. 98,
where the Court did not confine itself to provisions of the Statute, but also took note of
the staff regulations to decide a dispute between the UNESCO and its officials.
124 (1950) ICJ Rep., p. 221, at p. 229.
125 Op. cit. 11, at p. 219.
126 PCIJ Rep., Series B, No. 18 (1930).
127 (1949) ICJ Rep., p. 174, at p. 168.

Similarly, in the Certain Expenses case,128 sending of United Nations Emergency Forces
(UNEF) in the Middle East and the United Nations Operations in the Congo (ONUC) by
the General Assembly were not found by the Court as ultra vires of the Charter, under
which the primary responsibility for the maintenance of international peace and security
lies with the Security Council. However, an interpretation which works as a revision of
the treaty or leads to any result contrary to the letter and spirit of the treaty does not come
within the purview of the principle.129
For the application of the principle, circumstances surrounding its conclusion and
subsequent practice are relevant. Article 31(3)(b) of the Vienna Convention instructs to
take into account, together with the context, "any subsequent practice in the application
of the treaty which establishes the agreement of the parties regarding its interpretation".
The "preparatory work", however, has been relegated to Art. 32, as a supplementary
means of interpretation and has thus restricted its import in treaty interpretation and
curtailed subjectivity.130
1. Subsequent practice
Subsequent practice has considerable probative value. It is the best and most reliable
evidence as to the correct interpretation of the treaty. Its significance was vividly
demonstrated in the Competence of the ILO case131 by the Court's decision that "if there
was any ambiguity, the Court might for the purpose of arriving at the true meaning,
consider the action which has been taken under treaty". The Court took note of the fact
that between June 1919 (when the Convention was signed) and October 1921, the subject
of agriculture had repeatedly been discussed and had been dealt with in one form or
another, and suggested that "this might suffice to turn the scale in favour of the inclusion
of agriculture, if there were any ambiguity".
The subsequent practice of probative value must be of both or all or, in the case of
multilateral conventions, of great majority of parties, jointly or separately to the same
effect. The value of practice of just one or few of the parties, however, is less certain. In
the view of the ILO, only the practice which establishes the understanding of "the parties
as a whole" should be used.132 Acquiescence is also relevant and the practice of one
party about which the other has or deemed to have knowledge can, through lack of
protest, establish the common interpretation of the treaty.133
If the subsequent practice is totally at variance with the clear meaning of the text of the
treaty, and in effect, revises the treaty informally, this may amount to the termination of
the
_________________
128 (1962) ICJ Rep., p. 151. The principle has also been applied in the Ambatielos
case (1952) ICJ Rep., p.28; South-West Africa case (1950) ICJ Rep., at p. 135s and the
Aerial Incident case (1959) ICJ Rep., p.139. The Court also seemed to apply the principle
in the US Diplomatic and Consular Staff in Tehran case (1980) ICJ Rep., p. 3 in para. 40.
129 South-West Africa cases (2nd phase), (1966) ICJ Rep., p. 6, at p. 48.
130 However, Art. 19(a) of the Harvard Draft on the Law of Treaties, 29 AJIL Supp.,
655 (1935) emphasized on both the "preparatory work" and subsequent practice to
reinforce the principle of "effectiveness", see Dharm Pratap, op. cit. 117, at pp. 60-61.

131 Supra note 121, pp. 39-41.

132 Op. cit. 11, at p. 222.
133 On acquiescence, see Anglo-Iranian Oil Company case (1952), ICJ Rep., p. 92, at
p. 107.

original treaty. It is only the subsequent agreement or practice that effects the meaning
and operation of the. treaty, is relevant for the purposes of Art. 31(3)(a) and (b). The
mention of "any relevant rules of international law applicable in the relations between the
parties" (sub-para, (c) of Art. 31(3)) are similarly related to the rules occurring
subsequent to the making of the treaty and shall be taken into account for interpretation.
2. Preparatory work
The preparatory work or travaux preparatories is, in general terms, the record of the
drafting of a treaty, including records of negotiations between the participating States
and, in some cases, records of the work of independent bodies of experts. The unilateral
statements by governments prior to or at the time of the negotiations may also be
considered as part of preparatory work, though there is a strong opinion against their
inclusion.134 Preparatory work may be a manifestation of the common intention of the
parties to the treaty.
The significance of preparatory work has never been clearly identified in international
jurisprudence. The International Court has quite often referred to preparatory work
indicating that the sense of the term was not clear according to its natural and ordinary
meaning.135 If the relevant provision of the treaty was clear and unambiguous, the Court
has excluded the preparatory work.136 But its use has not been authorised without
restriction, nor has it been considered as an independent means of interpretation. In the
European Commission of the Danube case,137 the Court after stating the principle that
the preparatory work could not be referred if the text of the treaty was sufficiently clear in
itself, pointed out that if doubt still existed as to the true meaning of the words used, the
preparatory work may be referred to confirm the conclusion reached by the Court. In the
Employment of Women at Night case,138 the Court referred to the preparatory work of a
treaty to confirm the clear meaning of its text. In the River Oder case,139 the Court
refused to accept the preparatory work of the Treaty of Versailles, 1919, because all the
parties to the case had not participated in the drafting of the Treaty. The Vienna
Convention, however, does not contain such a limitation on the use of the preparatory
work and the presumption is that a State wishing to join the treaty may request to see it
before acceding.
Article 32 of the Convention, thus recast the traditional standpoint on preparatory work as
reflected in the Court's jurisprudence, but in a different form. It reads:
_________________
134 McNair, op. cit. 8, p. 421.
135 The Court allowed the travaux preparatoires in the cases of the Exchange of
Greek and Turkish Populations, PCIJ Rep., Series B, No. 10, p. 9 (1925); Turkey-Iraq
Frontier, PCIJ Rep., Series B, No. 12, p. 22; S. W. Africa cases (1962) ICJ Rep., p. 338;
and Aerial Incident case, (1959) ICJ Rep., p. 127. See Sharma, op. cit. 117, p. 13, n. 1.
136 The Court did not take into account the preparatory work in the following cases:
Admissions case, (1948) ICJ Rep., p. 51, at p. 61; Competence of the General Assembly
(1950) ICJ Rep., pp. 6-7; Administrative
Tribunal case (1954) ICJ Rep., p. 92; and the S.S. Lotus case, PCIJ Rep., Series A, No.
10, at p. 16 (1927).

137 PCIJ Rep., Series B, No. 14, p. 25 (1927).

139 PCIJ Rep., Series A, No. 23, p. 40 (1929).

Recourse may be had to supplementary means of interpretation, including the preparatory

work of the treaty and the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of Art. 31, or to determine the meaning when the
interpretation according to Art. 31:
a. leaves the meaning ambiguous or obscure; or
b. leads to a result which is manifestly absurd or unreasonable.
The article refers to the "circumstances of the "conclusion" of a treaty, like preparatory
work, as a supplementary means of interpretation, which refers to "both the contemporary
circumstances and the historical context in which the treaty was concluded".140
According to Art. 32, these supplementary means can be referred to confirm a particular
interpretation. However, one can hardly confirm a particular interpretation unless one has
recourse to it first. Similarly, what would a court do if the preparatory work, or other
supplementary means, resorted to for purposes of confirmation contradicts the clear
meaning of the text.
The Vienna Convention, by laying down the "General rule of interpretation" (Art. 31)
and the "supplementary means of interpretation" (Art. 32), has relegated the preparatory
work to a secondary position and lessened its authentic character. It has laid down a
hierarchy of a sort, but the application of the means of interpretation would, in fact, be a
single combined operation. However, the ILC in this formulation, was motivated by
considerations of logic.141
C. Multilingual Treaties
A treaty drawn up in more than one language may, or may not, accord different status to
a version in a particular language for the purposes of interpretation. Unless the treaty
itself provides or parties agree that a particular language version is authentic, the text is
equally authoritative in each language and the terms of the treaty are presumed to have
the same meaning in each text (Art. 33(a) and (b)). Nevertheless, sometimes due to the
absence of complete consensus ad idem or the different genius of the languages, some
discrepancy may result in the meaning of the texts. In that case, the plurality of the texts
may be a serious additional source of ambiguity or obscurity of the treaty.
In case when the meaning of the terms is clear in one language but ambiguous in the
other, plurality of versions helps in facilitating the interpretation by ascertaining the
intention of the parties. But where there is a conflict between the two versions, the
construction "which best reconciles the texts having regard to the object and purpose of
the treaty" should be given (Art. 33(c)).142
IX. AMENDMENT AND MODIFICATION OF TREATIES

The terms amendment, revision, and modification connote the process of altering the
provisions of treaties. The term "amendment" is related to the individual provisions of the
treaty, whereas
_________________
140 Op. cit. 11, at p. 59.
141 Ibid., at p. 60.

142 In the Mavrommatis Palestine Concessions case, PCIJ Rep., Series A, No. 2
(1926), the French and English version of the Palestine Mandate had a conflict and the
Court adopted the more limited interpretation to reconcile both versions according to the
"common intention of the Parties".

"revision" concerns with the general review of the whole treaty. The ILC has applied the
term "amendment" to cover alteration of particular provisions and the general review of
the whole treaty, thus covering the "revision" also. On the other hand, "modification"
relates to inter-se agreements concluded between certain of the parties, to vary the
provisions of the treaty in their mutual relations.
The Vienna Convention contains three provisions on the subject. Articles 39 and 40 deal
with amendment and Art. 41 deals with the modification of treaties. However, the law
enshrined there has its main relevance in multilateral treaties, though the general rule
contained in Art. 39, i.e., that a "treaty may be amended by agreement between the
parties", is equally applicable to bilateral treaties. This rule is generally applicable,
irrespective of a specific provision to this effect in the treaty, except when a treaty creates
rights in favour of a third State whose consent may be required for modification or
revocation (Art. 37(2)), apart from the cases where the right was intended to be revocable
or subject to modification.
A. Procedure for Amending Multilateral Treaties

Treaties are governed by the express provisions for amendment which also prescribe the
procedure for amendment. For example, Art. 109 of the United Nations Charter
delineates the method for its amendment at a General Conference of the members
convened "for the purposes of reviewing" the Charter. The 1968 Nuclear Non-
Proliferation Treaty (NPT) similarly provides for review and amendment at the end of 25
years of its coming into force by the parties (Art. 10). Where there is no "express
provision", the normal method of amending a treaty is by a unanimous agreement of the
parties. The trend, since 1945, is towards allowing amendment of multilateral treaties by
a majority vote.
Article 40(1) of the Vienna Convention provides that a proposal to amend a multilateral
treaty "must be notified to all the contracting States" and each of them has the right to
take part in the decision in this regard (Art. 40(2)). "A State entitled to become a patty to
the treaty shall be entitled to become a party to the treaty as amended" (Art. 40(3)).
However, a State already a party to the treaty, does not become a party to the amending
agreement ipso facto. In general, an amendment will bind the parties that have agreed to
it, and does not bind the States who have not become parties. As a consequence, between
States that have agreed to the amendment and States that have not agreed, the terms of
the original treaty remain operative.143 Between the States parties to both the treaty and
the amending agreement, the amending agreement would be applicable. However, the
constitutions of a number of international organisations contain provisions, according to
which the amending agreement, adopted by a majority (of two-thirds members), becomes
binding on all the States parties. Article 108 of the United Nations Charter lays down that
amendments come into force for "all members" when they have been adopted
_________________
143 The same principle is applicable, whereby a subsequent agreement a limited number
of parties to the original treaty have agreed to modify their legal position inter se. The
subsequent agreement cannot modify their rights and duties vis-a-vis States not becoming
parties to the amending agreement, see Art. 30(4)(b) of the Vienna Convention.

by two-thirds votes of the members of the United Nations, including all the permanent
members of the Security Council.144
A State which accedes to the treaty after coming into force of the amending agreement, in
the absence of express intention, will be considered to be a party to the treaty as
amended, but will be considered as a party to the unamended treaty in relation to any
party to the treaty not bound by the amending agreement (Art. 40(5)).
B. Modification of Multilateral Treaties

Two or more parties to a multilateral treaty, subject to the provisions of the treaty itself
and by giving notice to other parties, can conclude an agreement to modify the treaty as
between themselves alone (Art. 41). If the modification in question is prohibited by the
treaty and affects the enjoyment by the other parties of their rights under the treaty or
performance of their obligations, as well as it relates to a provision derogation from
which is incompatible with the effective execution of the object and purpose of the treaty
as a whole (Art. 41(l)(b)), the agreement in question is not permitted.
The parties may also modify the treaty by their subsequent practice which is an
authoritative evidence of the meaning attributed to its provisions by the parties. For
example, Art. 27(3) of the United Nations Charter, by the practice of the members of the
Security Council followed since the Korean conflict in June 1950, has been modified to
the extent that the abstention by a permanent member is not considered to be a negative
vote.145 Modification of the treaty by subsequent practice became relevant in the
decision of the Temple of Preah Vihear case.146
_________________
144 Similar provisions are contained in the constitutions of WHO (Art. 73), ILO (Art.
36), IAEA (Art. 18), UNESCO (Art. 13), Universal Postal Union (Art. 30), Chicago
Convention (Art. 94).
145 The Court has accepted this modification in the Namibia case, op. cit. 3, at p. 22.
146 See op. cit. 86. In an arbitral decision between France and the United States as to air
routes, which the United States was entitled to use under the Air Transport Services
Agreement, 1946, between the two countries, the tribunal said that subsequent practice
"is a possible source of a subsequent modification ...having a bearing on the juridical
situation of the parties...." The tribunal found that the agreement had been modified in
certain respect by subsequent practice (1963-64) 38 ILR 182, at p. 249.

Page 383
CHAPTER 14
The Law of the Sea
I. INTRODUCTION
The law of the sea1 regulates the relations of States, coastal and landlocked, and/or
international organisations in respect of areas that are subject to the jurisdiction of the
coastal State and those areas of the sea and the sea-bed beyond national jurisdiction. The
law governing the sea exists in the codified form at present, which is the outcome of a
historical process, started with Grotius in the seventeenth century. Before Grotius,
powerful States laid extensive claims of sovereignty over specific portions of the open
sea. Grotius championed the doctrine of the "freedom of the seas" because it is
impossible for any nation to effectively possess them. They are res gentium or res extra
commercium, i.e., they belong to all nations. During this period, the law developed out of
well-settled usages culminated into customary law. The hallmark of this law, which was
followed up to the middle of the twentieth century, was essentially that of no-regulation
and laissez faire and except for territorial waters, the law essentially endorsed the
doctrine of "open sea". However, the declaration by the United States President Truman's
proclaiming jurisdiction over the continental shelf in 1945 gave a new direction to the
law of the sea. Many nations made sweeping claims (sometimes up to 200 nautical miles
as their territorial sea) to protect their economic and military interests. These
developments stressed the urgency for codification of the law in order to strive
uniformity and resolve maritime conflicts among nations.2 The matter was put on the
agenda of the International Law Commission (ILC) in 1949.
On the basis of the drafts prepared by the ILC, in 1958, the First United Nations
Conference on the Law of the Sea took place at Geneva,3 which adopted four
conventions, viz., the Geneva Conventions on the Territorial Sea and the Contiguous
Zone (Territorial Sea Convention), on the
_________________
1 See, generally, K.R. Simmonds (Ed.), New Directions in the Law of the Sea (Oceana
Publications, New York), 1983; R.P. Anand, Origin and Development of the Law of the
Sea (M. Nijhoff, Leyden), 1983; Nordquist (Ed.), United Nations Conventions on the
Law of the Sea, 1982: A Commentary (Oceana Publications, New York), 1985; S.P.
Jagota, Maritime Boundary (M. Nijhoff, Dordrecht), 1985; J.V.R. Prescott, The Maritime
Political Boundaries of the World (Methuen, London), 1985; K. Kittichaisarce, The Law
of the Sea and Maritime Boundary Delimitation in South East Asia (Oxford University
Press, Oxford), 1987; R.R. Churchill and A.V. Lowe, The Law of the Sea, 2nd ed.
(Manchester University Press), 1988; David Anderson, Modern Law of the Sea: Selected
Essays (Martinus Nijhoff Publishers) 2007; UN office for Ocean Affairs and the Law of
the Sea, Law of the Sea Bulletin.
2 An unsuccessful attempt to codify the law of the sea was made by The Hague
Codification Conference in 1930, under the auspices of the League of Nations.
3 The Conference was held between Feb. 24 and April 27, 1958, and 86 nations
participated in it.

High Seas (High Seas Convention), on the Continental Shelf (Continental Shelf
Convention), and the Fishing and Conservation of the Living Resources of the High Seas
(Fisheries Convention).4
But the important issues related to the breadth of the territorial sea and the fishing rights
of the coastal States beyond their territorial sea were left undecided. A Second
Conference on the Law of the Sea was held on March 17-April 27, 1960, at Geneva, but
again no agreement could be found on these issues.
Together, both these conferences on the Law of the Sea left many matters unsettled,
particularly: (i) the precise breadth of the territorial sea; (ii) the question of innocent
passage for warships through straits constituting an international maritime highway, and
consisting wholly of territorial sea waters; (iii) the right of passage and over-flight in
relation to the waters of archipelagos; and (iv) the problem of protection and conservation
of certain species. Further, the interests of the land-locked States were also not
adequately protected, except the High Seas Convention, which in Art. 3 specifically dealt
with their problem of access to the sea.5 It was soon being realised that these conventions
were inadequate to meet the new challenges put up by science and technology, which
made it possible for States with sufficient resources and know-how to explore and exploit
the underwater mineral resources at greater depths of the sea, and the consequential need
to prevent the increasing pollution, and the conservation of the fishing resources of the
seas. An increasing number of States started proclaiming wider area of the sea as their
maritime zone with its attendant problems of innocent passage and over-flight. The land-
locked and archipelagic States along with the new Afro-Asian States started clamouring
for better deal for them. This made it imperative to reformulate the law of the sea in a
composite form to make it conducive to the new interests and demands of all concerned
and paved the way to hold the Third Law of the Sea Conference (UNCLOS-III).6
The initiative to hold a new conference came from Malta's representative to the United
Nations, Arvid Pardo, at whose behest the General Assembly in its XXII Session
considered the item concerning the exploitation and uses of the seabed and ocean floor
beyond the limits of the present national jurisdiction. He also pressed for the United
Nations endorsement that deep seabed resources are the "common heritage of mankind"
and the same should be developed in the interests of all nations, with special regard to the
needs of developing countries. The move was to secure the mineral wealth of the oceans
as well as to avoid the militarisation of the deep seabed.7 This led to the formation of a
42-member Ad hoc Seabed Committee
_________________
4 For the text of these Conventions, see 52 AJIL pp. 834-865 (1958). All four
Geneva Conventions are in force and have been ratified by a large number of States.
There are 51 parties to the Territorial Sea Convention, and in force from Sept. 10, 1964;
the High Seas Convention has 62 parties, in force from Sep. 30, 1962; the Continental
Shelf Convention, with 57 parties, in force from June 10, 1962; the Fisheries Convention
has 37 parties, in force from March 20, 1966. India is a party to all these conventions.
The Conference also adopted an Optional Protocol concerning the Compulsory
Settlement of Disputes by the International Court of Justice, or, if the parties so prefer,

for submission of the dispute to arbitration or conciliation. There are 37 parties to the
Protocol and is in force.
5 At the behest of 1964 UNCTAD I resolution, the UN Conference on the Transit
Trade of Land-Locked Countries was convened at New York from June 7 to July 8, 1965,
which led to the adoption of the Convention on the Transit-Trade of Land-Locked States
(Transit Trade Convention), 58 States participated in it.
6 Over 150 countries participated in the UNCLOS-III.
7 See UN Doc. A/6695 (1969).

Page 385 THE LAW OF THE SEA
(later enlarged to an 86-member body) to consider all aspects of the law of the sea. On
December 17, 1970, the General Assembly adopted a Declaration of Principles
Governing the Seabed and Ocean floor, and the Sub-soil thereof, beyond the limits of
National Jurisdiction,8 which proclaimed that the exploitation of these areas should be
carried out for the benefit of the mankind as a whole. After extensive preparatory work,
the first session of UNCLOS-III was held in December 1973 at New York. At the end of
nine years in 12 sessions, the Conference adopted the Law of the Sea Convention in
1982.9 Though it was agreed in its second session at Caracus (Venezuela) that all the
provisions as well as the complete text of the Convention would be accepted by
consensus with a view to increase their acceptability and "there shall be no voting ... until
all efforts at consensus have been exhausted",10 the draft text of the Convention was
adopted through voting in the eleventh session of the Conference.11 The Convention was
signed at the twelfth session held at Montego Bay (Jamaica) on December 10, 1982.12
The Convention entered into force on November 16, 1994, in accordance with Art.
308(1), twelve months after 60 ratifications and accessions were deposited.
The Convention consists of 320 Articles spread Over 17 parts and nine annexes. Apart
from these, there are four resolutions13 and the Statement of Understanding Concerning
a Specific Method to be used in Establishing the Outer Edge of the Continental Margin,
adopted by the Conference, and contained in the Final Act. Together, the Convention
comprises the ground covered by the four Geneva Conventions of 1958, and creates some
new regimes. In fact, many of the provisions repeat verbatim or in essence the provisions
of the Geneva Conventions, or give more detailed rules on matters covered by them. It
contains provisions on those matters on which I and II Law of the Sea Conferences failed
and created the new legal regimes of Exclusive Economic Zone (EEZ) and the deep
seabed. It has laid down a 12-nautical mile limit for the territorial sea; provision for
transit passage through international straits; increased rights for
_________________
8 See GA Res. 2749(XXX) Dec. 17, 1970.
9 UN Doc. A/CONF. 62/122; 21 ILM 1261 (1982). Conference also adopted a Final
Act, along with a resolution and a Statement of Understanding, see Doc. A/CONF.
62/121, and Corr. 1 to 8.
10 See Final Act of the Conference, ibid., pp. 13-14. On consensus rule at UNCLOS-
III, see Daniel Vignes, 69 AJIL 119 (1975); Barry Buzan, 75 AJIL 324 (1981).
11 The text was adopted with 130 States voting in favour, four against it (the United
States, Israel, Turkey and Venezuela) and 17 States, including seven West European
States: Britain, Germany, Belgium, Italy, Spain, Luxemburg, the Netherlands, eight East
European States including the Soviet Union as well as Mongolia and Thailand abstained.
Voting was the result of the US Government's complete volte-face, which asked for more
time to review the draft text at the 10th Session, and after being-unable to get through
with the desired changes in the draft, demanded vote.
12 119 States (including USSR) signed it and 22 States, including USA, UK, West
Germany did not sign it. However, in the permitted period up to Dec. 9, 1984, 159 States
and entities signed it. Out of the 159 States, 155 signatories were the members of the UN
while four others: Cook Islands, EEC, Namibia and Niue were not. Presently, there are

158 States and the European Community parties to the Convention. The USA has not yet
ratified it.
13 Res. I established the Preparatory Commission for the Seabed Authority and the
Law of the Sea Tribunal; Res. II governs preparatory investment in pioneer activities by
States and private consortia relating to polymetallic nodules (popularly known as
manganese nodules in the deep sea areas); Res. III deals with the rights and interests of
the non-self-governing territories; and Res. IV grants the right to sign the Final Act to
recognised national liberation movements as observers.

archipelagic and landlocked States; wider control of the coastal State over marine
pollution, marine environment, and fisheries conservation; delineation of 200 nautical
miles EEZ for coastal States; and provisions for the exploitation of the deep seabed
mineral resources. Further, the Convention contains detailed machinery for the settlement
of disputes, including an International Tribunal for the Law of the Sea with its seat at
Hamburg (Art. 287 and Annex VI). It also provides for the compulsory judicial
settlement of most of the disputes that may arise under the Convention, at the request of
one of the parties to the dispute (Art. 286).14 The 1958 Conventions, on the other hand,
do not have such a provision, and merely have the Optional Protocol, that was adopted
along with these Conventions.15
The Convention, even before formally coming into force, was accepted as a part of
general international law, barring its disputed provisions relating to deep seabed regime.
In the Gulf of Maine case,16 the Chamber of the International Court of Justice noted that
though the Convention has not yet come into force and many States do not appear
inclined to ratify it but "certain provisions of the Convention concerning the Continental
Shelf and the Exclusive Economic Zone ... were adopted without any objections ... these
provisions, even if in some respects they bear the mark of the compromise surrounding
their adoption, may nevertheless be regarded as consonant at present with general
international law on the question". In the case Concerning the Continental Shelf between
Libya and Malta,17 the Court observed that "the 1982 Convention is of major
importance, having been adopted by an overwhelming majority of States; hence it is
clearly the duty of the Court... to consider in what degree any of its relevant provisions
are binding upon the parties as a rule of customary international law", and noted that the
provisions on the continental shelf (Arts. 76 to 83) reflect the customary law of the
continental shelf.18
The Convention lays down the machinery for the settlement of disputes, including an
International Tribunal for the Law of the Sea, with its seat at Hamburg, Germany (Art.
287 and Annex VI). In 1994, the New York Implementing Agreement was adopted,
which amended Part XI of the Convention, to meet the objections of developed countries
against the Convention regime on the deep sea-bed. The Agreement addresses the
concerns of developed countries, particularly of the United States on mining the deep
seabed resources.
The Convention is a major achievement in the codification of the law of the sea and its
ambit is very wide. The significant aspects of the Convention will be dealt with here in a
condensed manner, along with the 1958 Geneva Conventions and customary rules will
also be referred.
_________________
14 Disputes concerning the exercise by a coastal State of its sovereign rights, powers
and jurisdiction are expressly excluded from compulsory jurisdiction (Art. 297). A
contracting State may also exclude from compulsory jurisdiction disputes pertaining to
territorial sea, continental shelf, EEZ, boundary disputes, disputes concerning military
activities and disputes before the Security Council by making a declaration to this effect,
and, thus, virtually leaving a very small area for compulsory judicial settlement under the
Convention.

15 See op. cit. 4; 52 AJIL 862 (1958). See also G. Fitzmaurice, 8 ICLQ 73 (1959).
16 (1984) ICJ Rep., p. 246, at p. 294.
17 (1985) ICJ Rep., p. 13, at p. 30.
18 In the Nicaragua case (1986) ICJ Rep. p. 14 at p. III, the Court stated that the
Convention codifies the rule of right of innocent passage.

II. MARITIME BELT OR TERRITORIAL SEA19

Maritime belt or territorial sea is that part of the sea which is adjacent to the coastal State
and which is bounded by the high seas on its outer edge. The coastal State exercises its
sovereignty over this area as it exercises over its internal waters. The sovereignty extends
to the airspace over the territorial sea as well as to its bed and sub-soil.20 This
sovereignty accrues to a State under customary international law which no State can
refuse.21 However, the generally held view which finds expression in the 1982 Law of
the Sea Convention (herein referred as 1982 Sea Convention) and the 1958 Territorial
Sea Convention is that the sovereignty over this area has to be exercised subject to the
provisions of the conventions and "to other rules of international law",22 which provide
certain rights to other States, particularly right of "innocent passage" in the territorial
waters of a State. Nonetheless, though these rights are well-established under the
customary international law, the delimitation of the territorial sea remained a principal
subject of controversy prior to the 1982 Sea Convention. Even though delimitation is
necessarily a unilateral act of a coastal State, it has an international aspect and its validity
with regard to other States depends upon international law.23
A. Breadth of the Territorial Sea

Under customary international law, the breadth of the territorial sea has remained a
thorny issue. It is a generally held view that at the turn of the century, there existed a
three-mile limit as a rule of general application, which is said to be propounded by the
Dutch Jurist Bynkershoek. The three-mile rule, popularly known as "canon-shot" rule,
had a rationale that a State's sovereignty extends to the sea as far as a canon could reach
or fire (and hence protects the State's sovereignty). The three-mile limit represented
roughly the maximum range of a canon in the eighteenth century. However, in 1930, at
the Hague Codification Conference, the three-mile rule was clearly rejected, though no
agreement could be achieved on any alternative rule.24 At the 1958 Geneva Conference
on the law of the sea also, divergent positions were taken by the States. Many States
wanted to extend it up to six nautical miles from the coast, which led to no agreement on
this issue.25 Before the 1982 Sea Convention was concluded, States proclaimed varying
breadth of the territorial sea, generally ranging from 3 to 12 miles,
_________________
19 The ILC, in its fourth session, while in the process of codifying the law on the
sea, expressed a preference for the term "territorial sea", in place of the term "maritime
belt" or "territorial waters" to denote the coastal strip of the sea subject to the sovereignty
of the littoral State.
20 See Art. 2 of the 1982 Sea Convention and Arts. 1-2 of the 1958 Territorial Sea
Convention.
21 See Judge McNair's dissenting opinion in the Anglo-Norwegian Fisheries case
(1951), ICJ Rep., p. 116 at p. 160; see also Grisbidarna case (Norway v. Sweden), in
A.W. Scott, Hague Court Reports, p. 121 at p. 127 (1909).
22 Article 2(3) of the 1982 Sea Convention and Art. 1(2) of the 1958 Territorial Sea
Convention.
23 See Anglo-Norwegian Fisheries case, op. cit. 21.

24 The Conference also did not favour the concept of "contiguous zone", but this was
endorsed by subsequent conferences on the law of the sea.
25 At the time of II Law of the Sea Conference in 1960, 22 States claimed three
miles, 18 claimed 4-10 miles, 11 claimed 12 miles, and two claimed more than 12 miles.

though in certain cases they had proclaimed wider areas than that, and in few cases up to
200 nautical miles.26 But at the UNCLOS-III, claims wider than 12 miles did not find
favour and the 12-mile rule was accepted by the Conference, which may be considered
the present customary international law position.27
Article 3 of the 1982 Sea Convention limits the breadth of the territorial sea to 12 nautical
miles "measured from baselines determined in accordance with this Convention" (i.e.,
Arts. 4-7). Two methods have been laid down for measuring the breadth of the territorial
sea: the low-water line and the straight baseline. The normal method used is the low-
water line as marked on large scale charts officially recognised by the coastal State.28
However, in the case of islands situated on atolls or in islands having fringe reefs, the
baseline is the seaward low-water mark of the reef as shown by the appropriate symbol
on charts officially recognised by the coastal State29 But where the coastline is deeply
indented and cut into, or if there is a fringe of islands along the coast in its immediate
vicinity, the straight baseline method joining appropriate points may be employed in
drawing the baseline from which the breadth of the territorial sea is measured.30 No
objective tests provided of what constitutes a "deeply indented and cut into" coastline,
how is a "fringe" of islands defined and at what distance offshore is in such a fringe of
islands in the coastline's immediate vicinity? In fact, the imprecise language of Article 7
made it possible any coastal country to draw straight baselines along its coast.
The method of straight baseline was enunciated by the Anglo-Norwegian Fisheries case1'
{Fisheries case), which had a decisive effect on the baseline issue. In this case, Norway,
which has a fringe coastline, by its 1935 Decree proclaimed exclusive fishery zone
(meant territorial sea) along almost 1000 miles of its coastline north of certain latitude
(66° 28.8' North). The zone, which was four miles wide, measured not from the low-
water mark but from straight baselines linking some 48 outermost points of islands and
lands or "Skjaergaard" (i.e., rock-ramparts), at a considerable distance from the coast. By
using the straight baselines, some of which were 30 miles long and the longest was 44
miles, Norway could enclose waters within its territorial sea that would have been the
high seas, and hence open to foreign fishing. The United Kingdom, whose fishing
interests were affected by this Decree, challenged the legality of the straight baseline
system adopted by Norway and the choice of certain baselines used in applying it. The
Court upheld the method applied by Norway in drawing the baselines and it also did not
reject the criterion of low-water mark. But the application of straight baselines is
"dictated by geographical realities".
It was propounded by the judgment that where a State has a rugged coastline, deeply
indented, or if there is a fringe of islands in the immediate vicinity, the straight baseline,
joining the low
_________________
26 200 miles maritime belt was proclaimed by five African and eight Latin American
States, including Chile, Peru and Ecuador, see 6 ILM 663 (1967).
27 On the basis of information, by the end of 2003, 182 States and territories,
including India, claimed the 12-miles limit of territorial sea, 15 States/territories claimed
three miles; 4 claimed between 4-6 miles, one up to 30 miles and 6 claimed more than
that.

28 See Art. 5 of the 1982 Sea Convention and Art. 3 of the 1958 Territorial Sea
Convention.
29 Article 6 of the 1982 Sea Convention.
30 Article 7 of the 1982 Sea Convention and Art. 4 of the Territorial Sea Convention.
31 Op. cit. 21.

water at appropriate points, is admissible, provided: (i) the drawing of baseline must not
depart to any appreciate extent from the "general direction" of the coast; (ii) the areas
lying within the baselines are sufficiently closely linked to the adjacent land domain; and
(iii) the economic interests as evidenced by long established usage, peculiar to a
particular region concerned, must be taken into account, before the straight baseline
method is allowed to be followed by a coastal State.32
The waters on the landward side of the baseline of the territorial sea form part of the
internal waters of the State. But where the effect of implementing straight baseline has
been enclosing internal water areas which previously had been considered as part of the
territorial sea or of the high seas, there shall exist right of innocent passage in such
waters.33
The principles laid down in the Fisheries case relating to straight baselines are to be
followed in drawing baselines except those of low-tide elevations, unless the lines drawn
in such circumstances have received "general international recognition".34 Where,
because of the presence of a delta and other natural conditions, the coastline is highly
unstable, the appropriate points may be selected along the furthest seaward extent of the
low-water mark. The system of straight baselines is not to be applied in a manner as to
cut off the territorial sea or an EEZ of another State from the high seas. The straight
baselines followed by a State would have to be duly notified and marked on charts.
The coastal State is free to determine its baselines by any of the methods to suit different
conditions.35 In the Maritime Delimitation in the Black Sea case, the ICJ stated that "the
coastal State, in conformity with the provisions of Articles 1,9, 10, 12 and 15, UNCLOS
may determine the relevant base points" although it is nevertheless an exercise that
always has an international aspect.36 The Convention has laid down specific rules for the
territorial waters of the bays, archipelago and islands.
1. Bays
The 1982 Sea Convention and the 1958 Territorial Sea Convention have specific
provisions on the territorial waters of bays. Article 10 of the 1982 Convention and Art. 7
of the 1958 Territorial
_________________
32 Ibid., at pp. 128-130.
33 Article 8 of the 1982 Sea Convention corresponding to Art. 5 of the 1958
Territorial Sea Convention.
34 "Low tide" elevation is a "naturally formed area of land which is surrounded by
and above water at low tide but submerged at high tide", Art. 13 of the 1982 Sea
Convention.
35 The straight baselines method is now increasingly being used by nations, 92 out
of the 151 coastal and archipelagic States have claimed straight or archipelagic baselines
along all or part of their coasts, without observing the limitations as to their use in Art. 7
of the 1982 Sea Convention (Art. 4 of the 1958 Convention). This method has been the
subject of criticism due to its abuse as it is now possible to draw a straight baseline along
any section of a coast in the world and cite an existing baseline as a precedent, see J.N.R.
Prescott, Maritime Boundaries and Ocean Resources (G. Blake, (Ed.)), Croom Helm
London), 1987, p. 38, at pp. 38-39; Harris, Cases and Materials on International Law, 7th

ed. (Sweet & Maxwell) 2010, p. 335. However, the exceptional character of straight
baselines was stressed by the ICJ in Qatar v. Bahrain case (2001) ICJ Rep., p. 40, and the
Court did not allow Behrain to apply the method of straight baselines.
36 Maritime Delimitation in the Black Sea case (Romania v. Ukraine) (2009) ICJ
Rep., para 137.

Sea Convention deal with bays the coasts of which belong to a single State. This
obviously leaves out the historic bays37 (Art. 7(6)) and those bordered by more than one
State.38 For the purposes of the Convention, a bay is defined as "a well-marked
indentation whose penetration is in such proportion to the width of its mouth as to contain
landlocked waters and constitute more than a mere curvature of the coast" and the area of
the curvature should be "as large as, or larger than, that of the semi-circle whose diameter
is a line drawn across the mouth of that indentation" (Art. 7(2)). Where, because of the
presence of islands, an indentation has more than one mouth, the semi-circle shall be
drawn on a line as long as the sum total of the lengths of the lines across the different
mouths; islands within an indentation shall be included as if they were part of the water
area of the indentation (Art. 7(3)). If the distance between the low-water marks of the
natural entrance points of a bay does not exceed 24 miles, a closing line may be drawn
between these two low-water marks so as to render enclosed waters as internal waters and
consequently there is no right of innocent passage through it. But where the distance
between the two marks exceeds 24 miles, a straight baseline of 24 miles within the bay
shall be drawn so as to enclose the maximum area of water that is possible with such a
line (Art. 7(5)).
In the Fisheries case, Great Britain contended that straight baselines could not be drawn
across bays and, under customary international law, the length of straight lines must not
exceed 10 miles. The Court discounted these arguments and observed that State practice
does not justify the formulation of any general rule in this matter and "apart from any
question of limiting the lines to 10 miles, it may be that several lines can be envisaged. In
such cases, the coastal State would seem to be in the best position to appraise the local
conditions dictating the selection".39
2. Archipelagos
The 1982 Sea Convention has created the new regime of an archipelagic State (Arts. 46-
54), which is defined as "a State constituted wholly by one or more archipelagos and may
include other islands" (Art. 46(a)). The "archipelago" is "a group of islands, including
parts of islands, interconnecting waters, and other natural features which are so closely
interrelated that such islands, waters and other natural features form an intrinsic
geographical, economic and political entity, or which historically have been regarded as
such".40 In their case, the method of straight baselines is adopted to measure the
territorial sea. These lines would be drawn by joining the outermost points of the
outermost islands and drying reefs of the archipelagos and may "not exceed 100 nautical
miles, except up to 3 percent of the total number of baselines enclosing any archipelago
may exceed that length, up to a maximum of 125 nautical miles." They are
_________________
37 For example, Gulf of Foncesa in South America, surrounded by Nicaragua, Honduras
and El Salvador, which is about 19 miles wide across its mouth is a "historic" bay
possessed by the characteristics of a closed sea, see El Salavador v. Nicaragua, 11
AJIL674 (1917). The case was decided by the Central American Court of Justice.
38 For example, Gulf of Aqaba in the Red Sea is bordered by Egypt, Jordan, Saudi
Arabia and Israel.

39 See Fisheries case, op. cit. 21, at p. 131.

40 Excluding UK and Japan, who are not entitled to be treated as archipelagic States
because they are not "mid ocean" States but have "off-lying archipelagos", there are
about 30 such States, principal ones are: Indonesia, Philippines, Bahamas, Fiji, Maldives,
Mauritius, Papua-New Guinea, and Cape Verde.

subject to certain conditions, i.e., (i) the baselines should not depart to any appreciable
extent from the general configuration of the archipelago; and (ii) if part of the
archipelagic waters lie between two parts of an immediately adjacent neighbouring State,
the traditionally exercised rights and legitimate interests of such later State in the waters,
and all rights stipulated by agreement between the two States shall continue and be
respected (Art. 47).
In "archipelagic waters" thus formed, the archipelagic State has sovereign rights (Art. 49)
with the right of innocent passage (Art. 52), the right of sea-lanes passage and air-routes
above these lanes for other States (Art. 53).41 However, the right of innocent passage
may be suspended for security reasons (Art. 52(2)), but it is doubtful whether the right of
archipelagic sea-lanes can be suspended. Further, the archipelagic State is under an
obligation to respect the existing agreements, "recognise traditional fishing rights" and
"respect existing submarine cables" (Art. 51(1) and (2)).
3. Islands
An island has been defined as a "naturally-formed area of land, surrounded by water,
which is above water at high tide",42 and thus excludes artificial islands, installations and
structures.43 The territorial sea of an island is decided in the same manner as the
territorial sea of mainland territories and the system of straight baselines as envisaged in
the Fisheries case would be followed, particularly when they have fringed reefs. Article 6
of the 1982 Sea Convention states, "in the case of islands situated on atolls or of islands
having fringing reefs, the baseline for measuring the breadth of the territorial sea, is the
seaward low water line of the reef as shown by the appropriate symbol on charts
officially recognised by the coastal State".
B. Delimitation of the Territorial Sea

The delimitation of the territorial sea between two States opposite or adjacent to each
other can take place in accordance with an agreement between them, failing which the
median line, every point of which is equidistant from the nearest points on the baselines
from which the breadth of the territorial seas of each of the two States is measured. This
rule is not applicable in the cases of "historic title" or other special circumstances.44
However, for the purposes of delimitation of the territorial sea, the outermost permanent
harbour works which form an integral part of the harbour system shall be regarded as
forming part of the coast, but artificial islands, off-shore installations or structures are not
to be considered as part of permanent harbour works.45 Roadsteads, normally used for
the loading, unloading and
_________________
41 At the time of signing the 1982 Sea Convention, Philippines equated archipelagic
waters to internal waters. This declaration was objected by Australia, USSR, Ukranian
SSR and Byelorussia. See UN Doc. ST/LEG. E/7, p. 764.
42 See Art. 10 of the 1958 Territorial Sea Convention and Art. 121 of the 1982 Sea
Convention.
43 Article 60(8) of the 1982 Sea Convention states: "artificial islands, installations
and structures do not possess the status of islands. They have no territorial sea of their

own, and their presence does not affect the delimitation of the territorial sea, the
Exclusive Economic Zone or the continental shelf."
44 See Art. 15 of the 1982 Sea Convention and Art. 12 of the Territorial Sea
Convention.
45 See Art. 11 of the 1982 Convention and Art. 8 of the 1958 Territorial Sea
Convention.

anchoring of ships, and which might be situated wholly or partly outside the outer limit of
the territorial sea, are included in the territorial sea.46 In the case of low-tide elevation, if
situated wholly or partly at a distance not exceeding the breadth of the territorial sea from
the mainland or an island, the low-water line on that elevation may be used as the
baseline for measuring the breadth of the territorial sea. Where it is wholly situated at a
distance exceeding the breadth of the territorial sea from the mainland or an island, it has
no territorial sea of its own.47
C. Rights of other States in Territorial Sea

In the territorial sea, the coastal State enjoys all the rights and duties inherent in
sovereignty, and the right to regulate this regime. Other States also enjoy certain
privileges associated with the right of innocent passage.
The customary international law recognises the right of innocent passage for ships of all
States through the territorial waters of a State but no such right exists for aircrafts in the
airspace over the territorial waters. Article 17 of the 1982 Sea Convention gives effect to
this rule and provides that "ships of all States, whether coastal or not, shall enjoy the right
of innocent passage through the territorial sea".48 No right of innocent passage exists
through internal waters.49
1. Innocent passage
The term "passage" has been defined in Art. 18 of the 1982 Convention as follows:
1. Passage means navigation through the territorial sea for the purpose of:
a. traversing that sea without entering internal waters or calling at a roadstead or
port facility outside internal waters; or
b. proceeding to or from internal waters or a call at such roadstead or port facility.
2. Passage shall be continuous and expeditious. However, passage includes stopping
and anchoring, but only in so far as the same are incidental to ordinary navigation or are
rendered necessary by force majeure or distress or for the purpose of rendering assistance
to persons, ships or aircraft in danger or distress.50
These provisions correspond to the customary international law.51
_________________
Convention.
Convention.
48 For the rules regulating the innocent passage, see Arts. 14-23 of the 1958
Territorial Sea Convention and Arts. 17-32 of the 1982 Sea Convention.
49 In the Nicaragua case (Merits) (1986) ICJ Rep. 14 at p. 111, the Court stated that
by "virtue of its sovereignty ... a coastal State may regulate access to the ports". On the
other hand, in Saudi Arabia v. Aramco, 27 ILR 117 at p. 212 (1963), the arbitrator
asserted that "the ports of every State must be open to foreign vessels and only be closed
when the vital interests of the State so require". O'Connell denies this right for the access
to the ports, see D.P. O'Connell, International Law of the Sea, Vol. I (Clarendon Press,
Oxford), 1982, p. 347.

50 Compare Arts. 14(2) and 14(3) of the 1958 Territorial Sea Convention.
51 In Nicaragua case, op. cit. 48, the Court observed that "foreign vessels possess a
customary right of innocent passage in territorial waters for the purposes of entering or
leaving internal waters...."

Passage to be "innocent" must not be prejudicial to the peace, good order or security of
the coastal State and should be in conformity with the Convention and other rules of
international law (Art. 19(1) of the 1982 Convention). The passage to be considered
innocent, of foreign fishing vessels, their conduct should be according to the laws and
regulations made by the coastal State for fishing purposes in territorial sea.52 The
Convention elaborates the acts which are considered to be prejudicial to the security,
good order and peace of a coastal States. They are:
a. any threat or use of force against the sovereignty, territorial integrity or political
independence
of the coastal State...;
b. any exercise or practice with weapons of any kind;
c. any act aimed at collecting information prejudicial to the defence of the coastal
State;
d. any act of propaganda aimed at affecting the defence or security of the coastal
State;
e. the launching, landing or taking on board of any aircraft;
f. the launching, landing or taking on board of any military device;
g. the loading or unloading of any commodity, currency, or person contrary to the
custom, fiscal, immigration or sanitary laws and regulations of the coastal State;
h. any act of wilful and serious pollution ...;
i. any fishing activities;
j. the carrying out of research or survey activities;
k. any act aimed at interfering with any systems of communication or any other facilities
or
installations of the coastal State;
l. any other activity not having a bearing on passage (Art. 19(2)).
If compliance by a foreign vessel with the requirements of the right of passage is in
doubt, logically the burden of proving non-innocence seems to rest with the coastal
State.53
2. Passage of warships54
The right of passage of warships through territorial waters has always remained
controversial though majority of States require prior authorisation for the warships. The
1982 Convention and the 1958 Territorial Sea Convention also do not help in solving this
problem. Under these conventions, vessels entitled to innocent passage are "ships of all
States" without making a distinction between merchant, public or warships.
Consequently, it is doubtful whether this right is available to warships ipso facto, or only
on prior authorisation of or notification to the coastal State. The submarines, however, are
required to navigate on the surface.55 Warships have the
_________________
52 See Art. 14(5) of the 1958 Territorial Sea Convention. This provision has been
omitted from the 1982 Convention, but "fishing activities" would render the passage non-
innocent (Art. 19(2)(i)).
53 O'Connell, op. cit. 49, at p. 273.

54 "Warship" means a ship belonging to armed forces of a State bearing the external
marks distinguishing such a ship of its nationality, under the command of an officer
commissioned by the government of the State, and manned by a crew which is under
regular armed forces discipline, Art. 29 of the 1982 Sea Convention.
55 See Art. 20 of the 1982 Sea Convention.

right of passage through international straits, as decided in the Corfu Channel case.56
The 1982 Sea Convention has accorded warships the "transit passage" in straits (Art. 38).
The only provision in the 1958 Territorial Sea Convention, Art. 23 entitled "Rule
applicable to warships", provides that "[i]f any warship does not comply with the
regulations of the coastal State concerning passage through the territorial sea and
disregards any request for compliance which is made to it, the coastal State may require
the warship to leave the territorial sea". It merely makes the warships subject to local
laws and regulations of the coastal State. The 1982 Convention does not contain any
provision expressly allowing or denying a right of innocent passage to warships. A
provision (Art. 23) on nuclear powered ships is incorporated which states that "foreign
nuclear powered ships and ships carrying nuclear or other inherently dangerous or
noxious substances, shall, when exercising the right of innocent passage through the
territorial sea, carry documents and observe special precautionary measures established
for such ships by international agreements".57 Thus, this is not innocent in itself.
3. Passage through straits

Under customary international law, foreign ships have the right of passage through
international straits. This right cannot be suspended on grounds of security in a part of
territorial sea that is an international strait used for navigation from one part of the high
seas to another. This rule was recognised in the Corfu Channel case58 and Art. 16(4) of
the 1958 Territorial Sea Convention. The 1982 Convention, instead, recognises the right
of "transit passage"59 through straits used for international navigation between one part
of the high seas or an EEZ and another part of the high seas or EEZ (Art. 37), except
when the strait is formed by an island of a State bordering the strait and its mainland, and
there exists seaward of the island a route through the high seas or through an EEZ with
respect to navigational and hydrographical characteristics. In such circumstances, the
right of innocent passage would exist, which cannot be suspended (Art. 45).
The right of "transit passage" through international straits is available to "all ... aircraft"
(Art. 38(1)) including military and State aircrafts as well as to warships, as is established
under the customary international law and the Corfu Channel case. It appears to allow
underwater transit by submarines, though there is no express provision to this effect in
the 1982 Convention.
In "transit passage", the ships and aircraft are required to comply with certain conditions,
akin to those pertaining to territorial sea, viz., to proceed without delay through or over
the strait; to refrain from the use or threat of force against States bordering the strait, and
from non-transit activities, unless rendered necessary by force majeure or by distress, and
should comply with international safety standards at sea or in the air. But, on the whole,
the coastal State is given fewer powers than in the case of territorial sea (Arts. 41-42 of
the 1982 Sea
_________________
56 (1949) ICJ Rep., p. 4.
57 Compare Art. 17 of the 1958 Territorial Sea Convention.
58 See op. cit. 56.

59 "Transit passage" means the exercise of the freedom of navigation and over-flight
solely for the purpose of continuous and expeditious transit of the strait, which does not
preclude passage through the strait for the purpose of entering, leaving or returning from
a bordering country (Art. 38).

Convention). States bordering straits are to cooperate for the regulation and
improvements of straits, including curbing pollution from ships. The bordering States are
under a duty not to hamper or suspend transit passage, and are required to give due
publicity to any danger to sea or air navigation of which they have knowledge.60
D. Rights and Duties of the Coastal State in Territorial Sea

The coastal State has the right to make laws to regulate the territorial waters. It can adopt
laws and regulations governing innocent passage, and to prevent passage which is not
innocent. This may be related to the safety of navigation; protection of navigational aids,
cables and pipelines; conservation of living resources of the seas; prevention of illegal
fisheries; prevention of customs, fiscal, immigration and health offences; preservation of
the coastal State's environment, and marine scientific research. Foreign ships in innocent
passage are required to comply with all such laws and regulations, framed by the coastal
State, and other common international regulations for the prevention of collisions at
sea.61 In the interest of navigational safety, a coastal State may designate sea lanes and
prescribe traffic separation schemes, particularly for tankers, nuclear-powered vessels
and ships carrying hazardous substances (Art. 22 of the 1982 Convention), which must
carry documents and observe precautionary measures laid down for them by international
agreements (Art. 23).
The coastal State is required not to hamper or impair innocent passage or to apply rules
and regulations in this regard in a discriminatory manner.62 Nevertheless, the coastal
State is empowered to "take the necessary steps" to prevent non-innocent passage.63 But
these "necessary steps" have not been defined except that of suspending the passage
temporarily in specified areas of the territorial sea, if such suspension is essential for the
security of the coastal State. However, such suspension will take effect only after being
duly published. Such steps may include the use of reasonable force as a last resort,64 and
this is particularly so against warships.65
The coastal State may not levy any charge upon foreign ships by reason only of their
passage through the territorial sea, except non-discriminatory charges for specific
services rendered to the ship.66
E. Criminal and Civil Jurisdiction of the Coastal State

The coastal State's criminal and civil jurisdiction extends to the territorial sea. The extent
to which this can be exercised on board a foreign merchant or public (governmental)
ship, operated commercially, passing through the territorial sea has been defined in the
Convention.67
_________________
60 See Art. 44 of the 1982 Sea Convention. It is in line with Corfu Channel case, op. cit.
55.
Convention.
62 See Art. 24 of the 1982 Sea Convention, and Art. 15(1) of the 1958 Territorial Sea
Convention.
63 See Art. 25(1) of the 1982 Sea Convention and Art. 16(1) of the 1958 Convention.

64 Cf. I'm Alone case (Canada v. US) 29 AJIL326 (1935).

65 See, O'Connell, op. cit. 49, Vol. II (1984), p. 297.
Convention.
67 Articles 27-28, and Arts. 19-20 of the 1982 and 1958 Conventions respectively.

1. Criminal jurisdiction
The coastal State is not empowered to exercise criminal jurisdiction on board a foreign
ship passing through the territorial sea to arrest any person or to conduct any
investigation in connection with any crime committed on board the ship during its
passage, except in the following cases:
a. if the consequences of the crime extend to the coastal State;68
b. if the crime is of a kind to disturb the peace of the country or the good order of the
territorial sea;
c. if the assistance of the local authorities has been requested by the master of the
ship,
or by a diplomatic agent or consular officer of the ship's flag State; or
d. if such measures are necessary for the suppression of the illicit traffic in narcotic
drugs or psychotropic substances.69 The coastal State, in the above cases, may exercise
the right of arrest or investigation on board a foreign ship passing through the territorial
sea, even if the ship has left the internal waters (Arts. 27(2) and 19(2) of the 1982 and
1958 conventions respectively). This provision presumably accepts the jurisdiction of the
coastal State.
While the ship is in the internal waters, or docked in the port of the coastal State, the
same rules applies and the coastal State cannot exercise its jurisdiction unless "the
offence leads to a disturbance of the peace of the port" or "of a character to disturb the
peace and tranquility of the country".70
The coastal State, however, may not exercise criminal process or undertake any criminal,
investigation on board a foreign ship in the territorial sea relating to a crime committed
before its entry there, except that when the coastal State is dealing with the EEZ or the
protection of the marine environment. Regard must be paid to the interests of navigation
in determining the arrest and its manner.
2. Civil jurisdiction
In the matter of civil jurisdiction, the coastal State is not to stop or direct a foreign ship
passing through the territorial sea for the purpose of exercising civil jurisdiction in
relation to a person on board the ship. Nor may it levy execution or arrest the ship for the
purpose of any civil proceedings, save only in respect of obligations or liabilities assumed
or incurred by the ship itself in the course or for the purpose of its voyage through the
coastal State's waters. These prohibitions, however, are not prejudicial to the coastal
State's right to take measures of civil process against a foreign ship in the territorial sea
after leaving internal waters.71
These rules relating to civil and criminal jurisdiction over foreign vessels, as mentioned
above, are not applicable to warships. A warship not complying with the coastal State's
laws
_________________
68 The examples of consequences of the crime extending to the coastal State are of
smuggling, illegal immigration, pollution and violation of security laws.
69 See Pianka v. The Queen (1979) AC 107 (PC), where the ship was found carrying
drug Ganja.

70 See R. v. Anderson, 11 Cox's Criminal Cases 198 (1868); Wildenhaus case 120 US 1
(1887).
71 See Art. 28 and Art. 20 of the 1982 and 1958 Conventions respectively.

and regulations concerning passage through the territorial sea and disregarding a request
for compliance thereto, may be required to leave the territorial sea immediately.72 If any
damage occurs to the coastal State due to the non-compliance with laws or regulations or
due to the breach of the Convention or other rules of international law by a warship or
other governmental ship operated for non-commercial purposes, the flag State is to bear
the "international responsibility" for the same. (Art. 31 of the 1982 Sea Convention).
Barring these provisions in the Convention (Arts. 17-26 and 30-31 in the 1982
Convention), the immunities of the warships are not to be affected otherwise.
F. Indian Position on Territorial Waters

India has a 4000 mile long coastline, with over 1280 islands and islets, including the
archipelagos of Andaman, Nicobar and Lakshadweep. India's position in relation to the
law of the sea is generally governed by Art. 297 of the Constitution of India, and the
Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime
Zones Act, 1976 (The Maritime Zones Act). In 1955, the President of India proclaimed
the Continental Shelf of India and Art. 297 was amended in 1963 (Constitution (15th
Amendment) Act) to this effect, which was further amended by the 40th Amendment in
1976, which inter alia provides that:
1. All lands, minerals and other things of value underlying the ocean within the
territorial waters, or the continental shelf, or the exclusive economic zone, of India shall
vest in the Union of India and be held for the purposes of the Union.
2. All other resources of the exclusive economic zone of India shall also vest in the
Union and be held for the purposes of the Union.
3. The limits of the territorial waters, the continental shelf, the exclusive economic
zone, and other maritime zones of India shall be such as may be specified, from time to
time, by or under any law made by Parliament.
This led to the enactment of the Maritime Zones Act, 1976.
Till 1956, the limit of territorial waters of India was upto three miles and in that year, it
was extended to six miles by a Presidential Proclamation. It was further extended to 12
miles in 1967, through another Proclamation.
The Maritime Zones Act proclaims the sovereignty of India over the territorial waters of
India and the seabed and sub-soil underlying and the airspace over such waters (Sec.
3(1)). The limit of the territorial waters is the line every point of which is at a distance of
12 nautical miles from the nearest point of the appropriate baseline (Sec. 3(2)). All
foreign ships (other than warships including submarines and other underwater vehicles)
are given the right of innocent passage through the territorial waters (Art. 4(1)). Passage
is innocent so long as it is not prejudicial to the peace, good order or security of India.
However, foreign warships, including submarines and other underwater vehicles, may
enter or pass through the territorial waters by giving prior notification to the Central
Government. Submarines and other underwater vehicles are to navigate on the surface
and show their flags when passing through such waters. The Central Government, if
satisfied that it is necessary in the interests of peace, good order
_________________
72 Cf. Art. 23 of the 1958 Territorial Sea Convention.

or security of India or any part thereof, may suspend the innocent passage, absolutely or
subject to certain exceptions or modifications, by notification made in the official gazette.
The position of India in this regard is thus in accordance with the 1982 Convention.
III. CONTIGUOUS ZONE

Contiguous zone is a belt of sea beyond and adjacent to the limits of the territorial sea of
the coastal State. It is not subject to the sovereignty of the littoral State but within which
the littoral State could exercise certain rights of jurisdiction and policy. According to Art.
33 of the 1982 Sea Convention (Art. 24 of the 1958 Territorial Sea Convention), a coastal
State may exercise control in its contiguous zone "necessary to: (a) prevent infringement
of its customs, fiscal, immigration or sanitary regulations within its territory or territorial
sea; (b) punish infringement of the above regulations committed within the territory or
territorial sea”.73
The contiguous zone may not extend beyond 24 miles from the baselines from which the
breadth of the territorial sea is measured (Art. 33(2)). However, contiguous zone is not
appurtenant as in the case of the territorial sea, it must be claimed by the State. There is a
little State practice relating to such zones and me standard works do not contain any
reference to them. The contiguous zone found its mention for the first time in the 1930
Hague Codification Conference.
India's position on contiguous zone is in conformity with the above provisions. Section 5
of the Maritime Zones Act proclaims 24 miles from the baselines, as the extent of
contiguous zone and the Government of India is authorised to take such measures in the
contiguous zone as it may consider necessary for the security of India, and immigration,
sanitation, customs and other fiscal matters (Sec. 5(4)).
IV. THE EXCLUSIVE ECONOMIC ZONE74

The most significant contribution of the UNCLOS-III was the creation of the new regime
of EEZ, which is also a piece of "progressive development" of international law.75 The
zone, in fact, has its roots in the concept of the Exclusive Fishing Zone (EFZ) and the
doctrine of the continental shelf. It combines and develops the two (cf. Art. 56 of the
1982 Convention). It was actuated by the developments that had taken place after the
Second World War, when many nations (particularly from Latin America) started
proclaiming 200 miles as their fishery zone.
_________________
73 The contiguous zone can also be used to control traffic in archaeological and
historical objects found at sea, Art. 303(2) of the 1982 Sea Convention.
74 See, generally, R. Khan, 16 IJIL pp. 169-86 (1976); L. Juda, 16 ODIL 1-58
(1986), ibid., 18 ODIL 305-31 (1987); D. Attard, The Exclusive Economic Zone in
International Law (Clarendon Press, Oxford), 1987; R. Smith, Exclusive Economic Zones
Claim (M. Nijhoff, Dordrecht), 1986; W. Extavour, The Exclusive Economic Zone, 2nd
ed. (Institut Universitaire de Hantes E'tudes Internationales Geneva), 1981; J. Symonides,
14 Pol. YIL 43 (1985); S. Oda, Max Planck Institute, Encyclopedia of International Law,
Vol. II (Elsevier Science Publishers, Amsterdam), 1989, pp. 102-109.

75 The concept of EEZ or patrimonial sea was first introduced by Kenya in the Afro-
Asian Consultative Committee in 1971, and subsequently submitted a draft at the 1972
Geneva Session of the UN Seabed Committee, see E. Osieke, The contribution of States
from the third world to the development of the law of the continental shelf and the
concept of the economic zone, 15 IJIL 313 at pp. 328-29 (1975).

Such claims were motivated by a concern for the conservation of living sea resources and
other considerations. Failure by the 1958 and 1960 Conferences on the Law of the Sea to
accept the breadth of the territorial sea wider than the traditional three-miles zone, further
motivated the trend of proclaiming wider exclusive fishing zones. The Fisheries
Jurisdiction cases (Merits) accepted the legality of such claims.76
200-miles EFZ or EEZ became quite common in the late 1970s, with 23 States claiming
200 EFZ and 38 claiming EEZ.77 The concept was finally incorporated in the 1982
Convention as Part V (Arts. 55-75), and it has since become part of the customary law of
the sea.78 By the end of 1993, there were 91 States that had made claims to 200 nautical
miles EEZ in accordance with the Convention, and 19 States had claimed 200 nautical
miles EFZ.79
The EEZ is an area beyond and adjacent to the territorial sea extending upto 200 nautical
miles from the baselines from which the breadth of the territorial sea is measured (Art.
57). The zone is an intermediate area between the high seas and the territorial sea with a
distinct regime of its own which a State can specifically claim. The zone comprises the
area which was previously part of the high seas, and is not under the sovereignty of the
coastal State, but has 'sovereign rights'. Though the Convention refrains from describing
EEZ as a part of the high seas, other States generally continue to exercise the freedoms of
the high seas in the EEZ, in particular, freedoms of navigation and over-flight, laying of
submarine cables and pipelines and other internationally lawful uses of the sea related to
these freedoms. But they do not have the freedom to fish. However, the Convention does
not specify whether foreign warships, which enjoy freedom of navigation through EEZ,
can conduct naval exercises in the EEZ as they can on the high seas.80
A. Rights of the Coastal State in the Exclusive Economic Zone

The regime of EEZ accords certain rights to the coastal State. One, it has the sovereign
rights81 for the purpose of exploring, exploiting, conserving and managing the natural
resources, whether
_________________
76 (1974) ICJ Rep., p. 3, and p. 175, UK v. Iceland and FRG v. Iceland respectively.
Icelandic legislation at these lines began in 1948. Similar claims were made by India
(100-mile zone, 1956), Pakistan (100-mile zone 1966), and Sri Lanka (100-mile zone,
1957), in each case measured from the outer limit of the territorial sea.
77 The United Kingdom, which was a party to the Fisheries Jurisdiction case proclaimed
200 EFZ in 1977.
78 See the ICJ's observation in Continental Shelf (Libya v. Malta) case (1985) ICJ Rep.,
p. 13 at p.33: and Continental Shelf (Tunisia v. Libya) case (1982) ICJ Rep., p. 18, at p.
74.
79 See UN (Division of Ocean Affairs and the Law of the Sea Office of Legal Affairs),
The Law of the Sea: Practice of States (United Nations, New York), 1994, p. 10.
80 The UNCLOS-III President (Mr. Koh) had stated that there was a general
understanding at UNCLOS- III that military activities in the EEZ would not require the
coastal State's permission. Several States, however, at the time of signing the 1982
Convention made declarations, disallowing such exercises, see in V. Van Dyke ed.,

Consensus and Confrontation: The US and the Law of the Sea Convention (Oxford
University Press, Oxford), 1985, pp. 303-304.
81 The expression "sovereign rights" signifies the exclusivity of the rights of the coastal
State over resources of the EEZ and does not give sovereignty or the right of
appropriation of the zone to the coastal State. No State can take away these rights of the
coastal State except with its consent.

living or non-living, of the waters superjacent to the seabed and of the seabed and sub-
soil, and with regard to "other activities", such as the production of energy from the
water, currents and winds. Two, the coastal State has the exclusive jurisdiction with
respect to the establishment and use of artificial islands, installations and structures;
marine scientific research; and the protection and preservation of the marine environment
(Art. 56(1)).
While exercising its rights and performing its duties in relation to this zone, the coastal
State has to give due regard to the rights and duties of other States. However, coastal
State's rights and duties pertaining to the seabed and sub-soil of the EEZ would be
exercised in accordance with Part VI (relating to continental shelf) of the 1982
Convention (Art. 56(3)).
To give effect to its "sovereign rights" and jurisdiction in the EEZ, the coastal State may
take such measures, including boarding, inspection, arrest and judicial proceedings, as to
ensure compliance with its laws and regulations. Foreign ships are required to respect
these laws and abstain from illegal fishing. But imprisonment or any other corporal
punishment for violation of fisheries legislation is excluded (Art. 73). However, foreign
ships would be subject to the enforcement jurisdiction of the coastal State for illegal
fishing and violation of laws to control pollution (Art. 220). In cases of arrest or detention
of foreign vessels, the coastal State would promptly notify the flag State (Art. 73(4)).
In the EEZ, the coastal State has the exclusive right to construct and to authorise and
regulate the construction, operation and use of artificial islands, installations and
structures where it will have exclusive jurisdiction regarding customs, fiscal, health,
safety and immigration laws and regulations. However, these artificial islands,
installations and structures and the safety zones around them should not interfere with the
international navigation (Art. 60).
The coastal State, which has been given the exclusive fishing right in the EEZ (Art.
56(1)), while exercising this right, is obliged to conserve and manage the living resources
of the EEZ, and to determine the level of exploitation taking into account the
environmental and economic factors, and special needs of developing States (Art. 61).
The coastal State is to achieve the optimum utilisation of the living resources of the EEZ
and is entitled to reserve all of the allowable catch to its fishermen if they are capable of
exploiting it (Art. 62). Where the coastal State is unable to harvest the entire allowable
catch, other States, including landlocked and geographically disadvantaged States,82 can
have access to this surplus by "agreements and other arrangements" on an equitable basis
(Art. 62(2)). The developing landlocked States and geographically disadvantaged States
get priority in the exploitation of the surplus of the living resources. However, this rule
relating to sharing of resources with landlocked States and geographically disadvantaged
States (Arts. 69-70) is not applicable where the coastal State's "economy is
overwhelmingly dependent on the exploitation of the living resources" of the EEZ (Art.
71). Since the application of this rule depends upon the agreements between the parties, it
remains to be seen how effective they will prove. Other States may also conduct marine
scientific research with the consent of the coastal State, which should be done exclusively
for peaceful purposes.

Any conflict on the unregulated uses of the EEZ between a coastal State and other States
should be resolved on the basis of equity and in the light of all the relevant circumstances
_________________
82 The term "Geographically Disadvantaged States" refers to States with small
continental shelf (shelf-locked), States with narrow coastlines and small EEZs, States
with indications of limited resource potential in their prospective economic zones, see
Art. 70(2) of the 1982 Convention.

(Art. 59). Disputes relating to the rights over the living resources of the EEZ are not
subject to compulsory arbitration or adjudication; serious cases are subject to compulsory
but non-binding conciliation (Art. 297(3)). Thus, in the absence of binding, third-party
procedures makes it difficult to enforce conservation, sharing of resources and other
limitations laid down in Art. 62 on a coastal State, leaving the landlocked and
geographically disadvantaged States without any effective enforceable rights.
B. Delimitation of the Exclusive Economic Zone

The delimitation of the EEZ between States with opposite or adjacent coasts is to be
effected "by agreement on the basis of international law ... in order to achieve an
equitable solution". If no agreement can be reached within a reasonable time, the States
concerned may resort to the procedures provided in Part XV (on the Settlement of
Disputes) of the Convention. Pending the final delimitation, the concerned States may
enter into provisional arrangements (Art. 74).
C. Indian Position
Section 7 of the Maritime Zones Act, 1976, is in compliance with Part V (on the EEZ) of
the 1982 Convention, which prescribes 200 nautical miles as the limit of the EEZ,
measured from the baselines from where the breadth of the territorial waters is measured.
This limit may be altered by the Central Government, giving due regard to international
law and State practice, through a notification in the Official Gazette to this effect. The
notification should have the approval of both the Houses of Parliament before issuance.
In the EEZ, the Indian Union enjoys the sovereign rights and jurisdiction as specified in
Art. 56 of the 1982 Convention (Sec. 7, para. 4). No person, including a foreign
government, can explore or exploit this area without an agreement with the Central
Government or an authority granted by the Central Government. This provision,
however, shall not apply to fishing by an Indian citizen (para. 5).
The Central Government, by notification, may declare any area as a designated area and
makes laws with respect to matters specified in para. 4, and also for the protection of the
marine environment, or customs or other fiscal matters in relation to such designated
area. While declaring any area of the EEZ a designated area, the government will ensure
freedom of navigation, by taking into account the interests of India (para. 6). The
government may extend any law, imposing restrictions and modifications, temporarily on
the EEZ or part thereof, and may make any provision for the enforcement of such a law.
The effect of this extension of the enactment to the EEZ, tantamount to that EEZ or part
thereof, is a part of the territory of India. With the consent of the government, the foreign
States are entitled to lay or maintain the submarine cables or pipelines on the seabed of
the EEZ (para. 8). In the waters of the EEZ and the airspace over it, ships and aircrafts of
all nations have the freedom of navigation and over-flight (para. 9).
The provisions relating to the EEZ came into force on January 15, 1977, by a government
notification in accordance with Section 1(2) of the Maritime Zones Act.83 In addition to
Maritime
_________________
83 For the text of the notification, see 16 IJIL, pp. 557-562, 1976.

Zones Act, in 1981, the Parliament enacted the Maritime Zones (Regulation of Fishing by
Foreign Vessels) Act. The Act is specifically related to the regulation of fishing by
foreign vessels in the maritime zones of India, i.e., in the territorial waters and the EEZ of
India.
V. CONTINENTAL SHELF84
One of the important developments after the Second World War in relation to the law of
the sea was the evolution and acceptance of the concept of continental shelf. On
September 28, 1945, the President of the United States, Harry Truman proclaimed that
the natural resources of the continental shelf were "beneath the high seas but contiguous
to the coasts of the United States as appertaining to the United States [and] subject to its
jurisdiction and control".85 The continental shelf was regarded "as an extension of the
land mass of the coastal nation". Further, the Proclamation stated that the "character as
high seas of the waters above the continental shelf and the right to their free and
unimpeded navigation" were in no way to be affected. The main reason for this action of
the United States was to reserve for itself the oil and mineral resources in the seabed
which had become technologically possible to drill by 1945. The Truman Proclamation
was concerned with mineral resources only and not with the exploitation of living
resources, which under customary international law depend upon occupation. The
Proclamation, however, did not define continental shelf, which was separately stated, in a
State Department's press release as "submarine land which is contiguous to the continent
and which is covered by no more than 100 fathoms (600 fist) of water", which was
approximately 200 metres.86 The Truman Proclamation soon became the trend setter and
was immediately followed by similar unilateral declarations by many maritime nations
which laid claims of exclusive jurisdiction, control or sovereign rights over the resources
of the continental shelf and associated offshore areas during 1945-51.87 These
declarations led to the formation of customary international law giving coastal States
jurisdictional rights over their shelves.88 These rights over the resources of the
continental shelf were universally accepted by the 1958 Geneva Convention on the
Continental Shelf.
_________________
84 See generally, O'Connell, op. cit. 49; M. McDoughal and W. Burke, The Public
Order of the Oceans (Yale University Press, Connecticut), 1962, pp. 630-729; E. Brown,
Seabed Energy and Mineral Resources and the Law of the Sea, Vol. I (Stevens & Sons
Ltd., London), 1984; M.L. Jawett, 22 Canad. YbIL 153-93 (1984); Ibid., 23 Canad. YbIL
201-25 (1985); J.N.D. Anderson, 6 Jour. Energy and Natural Resources Law 95 (1988).
85 4 Whiteman 756; 40 AJIL, Supp., 45 (1946); Harris, op. cit. 35, p.399.
86 Thus, the legal basis for the right over continental shelf was not based on res
nullius, but for the reason that continental shelf was the submarine extension of the
coastal State, over which it has the reasonable right to have jurisdiction, see North Sea
Continental Shelf cases (1969) ICJ Rep., 3 at p. 29.
87 However, there was qualitative difference between these declarations and the
Truman Proclamation. These States, particularly some Latin American countries like
Chile, Peru, Argentina and Mexico claimed national sovereignty over the waters of the

shelf and the natural resources of this area, whereas the Truman Proclamation claimed
jurisdiction and control over the natural resources, leaving the waters as a part of the high
seas. These claims were protested, see 4 Whiteman 794-799; Brown, op. cit. 84.
88 In Abu Dhabi Arbitration in 1951, however, Lord Asquith denied the existence of
such a rule, 1 ICLQ 247 (1952); 18 ILR 144 (1951).

A. Definition of the Continental Shelf

Geomorphologically, the continental shelf may be defined as the zone around the
continent extending from the low-water line to the depth, at which there is usually a
marked increase of declivity to greater depth.89 What is commonly understood by the
"continental shelf is a gently sloping platform of submerged land surrounding the
continents and islands. It is a submerged bed of the sea, contiguous to a continental land
mass, and found in such a manner as to be really an extension of, or appurtenant to this
land mass. Normally, it extends to a depth of approximately 200 metres, at which point
the first substantial "fall off” of the seabed occurs. At certain places it continues beyond a
depth of 200 metres. Beyond that declivity of the continental shelf, there lays the further
"fall off of the seabed, known as "continental slope" and the "continental rise", before
sinking into the deep seabed ocean floor or "abyssal plain". The continental shelf, slope
and continental rise, together comprise the "continental margin". The "continental slope"
is the steep slope with which the shelf proper terminates and extends from the "shelf-
edge" to the depth of 1200-3500 metres; the "continental rise" is the less sharply sloping
area between the slope and the deep seabed, and goes to the depth of 3500-5500 metres.
The "continental margin" comprises approximately 23 per cent of the total ocean floor.
The 1958 Continental Shelf Convention used the term "continental shelf as referring "to
the seabed and sub-soil of the submarine areas adjacent to the coast but outside the area
of the territorial sea, to a depth of 200 metres or beyond that limit, to where the depth of
the superjacent waters admits of the exploitation of the natural resources of the said
areas" (Art. 1). Thus, the shelf has been defined in terms of "exploitability" and the depth
of the sea. It means that if the exploitation of the resources could be made beyond the
limit of 200 metres depth, that area could be claimed by the coastal State as its
continental shelf. The requirement of the phrase "adjacent to the coast" is not solely
confined to the proximity, but provided the legal basis for the coastal State to claim
jurisdiction over the continental shelf.
In the North Sea Continental Shelf cases, the Court explained the juridical basis of this
claim of the coastal State over the continental shelf as follows:
What confers the ipso jure title which international law attributes to the coastal State in
respect of its continental shelf, is the fact that the submarine areas concerned may be
deemed to be actually 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, an extension of it under water.90
In the light of the technical developments after 1958, which made it possible for States to
exploit the resources of the sea at depths greater than 200 metres, the definition in the
1958 Continental Shelf Convention was found to be inadequate.
The 1982 Convention applies to the shelf resources of States that have made an EEZ
claim and those that have not done so. It also applies to resources lying beyond the 200
miles limit. In an attempt to have a uniform rule and taking into account the possibility of
exploitation
_________________
89 W. Friedman, The Future of the Oceans (George Braziller, USA) 1971, p. 9; see
also the North Sea Continental Shelf cases, op. cit. 86, pp. 30-31.

90 Ibid., at p. 31.

of the resources at greater depths, the Convention gives a wider definition which, in fact,
deals not only with the continental shelf, but with the continental margin also. According
to Art. 76:
The continental shelf of a coastal State comprises the seabed and sub-soil of the
submarine areas that extends 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 upto that distance.
The 1982 Convention has thus replaced the "exploitability" criterion with the "distance"
criterion of 200 nautical miles, and where a State's shelf extends beyond that distance, to
the "outer edge" of the continental margin if geologically that point is more than 200
nautical miles. Accordingly, the continental shelf now extends upto 200 nautical miles or
the edge of the continental margin, whichever is longer. Where the shelf extends beyond
200 nautical miles, it is measured either by the Irish method or the Biscuit method.
According to the Irish method, the limit is the point where the thickness of the
sedimentary rocks is less than one per cent from the shortest distance to the floor of the
continental slope or 60 nautical miles from the slope. According to the Biscuit method,
the limit is either 350 nautical miles or 100 miles from 2500 metres isobeth. The
Convention in Art. 76(5) has incorporated the Biscuit method.
The Convention, however, does not accord any territorial sovereignty to the coastal State
over continental shelf, but only limited rights.
B. Delineation of the Continental Shelf

Para. (7) of Art. 76 lays the procedure to delineate the shelf's outer limit, i.e., by straight
lines not exceeding 60 nautical miles in length, connecting fixed points defined by
coordinates of latitude and longitude. Where the continental margin extends beyond 200
nautical miles from the territorial sea, a different procedure with reference to the
outermost "fixed points" of the outer edge of the margin will be followed. But if a State's
continental shelf is shorter than 200 nautical miles, or is the natural prolongation of its
territory ends before that, the State will have a continental shelf upto 200 nautical miles.
The geological or geophysical features within that distance do not play any role either in
verifying the legal title of the States concerned or in establishing their claims in the
delimitation of the shelf.
It is the duty of the coastal State to establish the limits of continental shelf beyond the
200 mile belt on the basis of the recommendation of the Commission on the Limits of the
Continent Shelf.91 Further, the coastal State is to make "payments or contributions in
kind" in respect of the exploitation of shelf resources beyond the 200 mile belt (Art.
82(1)). These payments or contributions go to the International Seabed Authority (Seabed
Authority), which will be distributed among States "on the basis of equitable sharing
criteria, taking into account the interests and needs of developing States, particularly the
least developed and landlocked among them" (Art. 82(4)). Payments to the Seabed
Authority commence after five years of production and increase from one percent to 7
percent in the following years (Art. 82(2)).
_________________

91 The Commission is set up under Annex. II of the Sea Convention, based on the
equitable representation.

C. Rights of the Coastal State in the Continental Shelf

The coastal State enjoys limited sovereign rights over the continental shelf for the
purpose of exploring and exploiting its "natural resources", and not sovereignty.92 These
rights are exclusive in the sense that no one can undertake these activities without the
express consent of the coastal State or make a claim to the continental shelf. They also do
not depend on occupation, effective or notional, or any express proclamation.
The "natural resources" of the continental shelf consist of minerals and other non-living
resources of the seabed and sub-soil, together with living organisms belonging to
sedentary species, i.e., organisms, which at the harvestable stage, either are immobile on
or under the seabed, or are unable to move except in constant physical contact with the
seabed or subsoil.93
The coastal State also has the exclusive right to authorise and regulate drilling of the sub-
soil for all purposes (Art. 81). This right to exploit the sub-soil of the continental shelf by
means of tunnelling is not affected by the depth of waters above.94 Like the EEZ, the
coastal State has the exclusive right to construct, maintain or operate the artificial islands,
installations and structures on the shelf, and the provisions of Art. 60 (on the EEZ) are to
apply mutatis mutandis in respect to them.95
The above rights of the coastal State, however, are not to affect the legal status of the
superjacent waters, or the airspace above those waters. The exercise of these rights by the
coastal State is not to impair navigation or other rights and freedoms of States, such as
the laying of submarine cables and pipelines, but the course of the pipeline will be
delineated with the consent of the coastal State (Art. 78(2), 1982 Sea Convention).
D. Delimitation of Continental Shelf Boundaries between States

The delimitation of continental shelf between nations has generated a lot of litigation
because of its economic importance. Rules relating to delimitation are provided in Art. 6
of the 1958 Continental Shelf Convention and Art. 83 of the 1982 Convention. Article 6
has been much referred in the judgments of the International Court. It reads as follows:
1. Where the same continental shelf is adjacent to the territories of two or more States
whose coasts are opposite each other, the boundary of the continental shelf appertaining
to such States shall be determined by agreement between them. In the absence of
agreement, and unless another boundary line is justified by special circumstances, the
boundary is the median line, every point of which is equivalent from the nearest points of
the baselines from which the breadth of the territorial sea of each State is measured.
_________________
92 See Art. 2 of the 1958 Continental Shelf Convention and Art. 77 of the 1982
Convention.
93 They are said to include, inter alia, "coral, sponges, oysters, including pearl
oysters, pearl shell, the sacred chank of India and Ceylon, the trocus and plants", 1958
Sea Conference Records, Vol. VI, p. 57. The free-swimming fish or lobsters (which
swim) are not covered by it.
94 See Art. 85 of the 1982 Convention and Art. 7 of the 1958 Continental Shelf
Convention.

95 Ibid., Art. 80 and Art. 5 of the 1982 Convention and the 1958 Continental Shelf
Convention respectively.

2. Where the same continental shelf is adjacent to the territories of two adjacent States,
the boundary of the continental shelf shall be determined by agreement between them. In
the absence of agreement, and unless another boundary line is justified by special
circumstances, the boundary shall be determined by application of the principle of
equidistance from the nearest points of the baselines from which the breadth of the
territorial sea of each State is measured (emphasis added).
The delimitation of boundaries remained more contentious between the adjacent States as
opposed to the opposite States where the median line was to be followed. In the case of
adjacent States, "equidistance principle", stated in Art. 6(2) of the 1958 Convention, was
not found to be adequate to demarcate the continental shelf, nor did it represent the
customary international law. The International Court of Justice, for the first time had the
occasion to determine the adequacy of the "equidistance principle" in the North Sea
Continental Shelf cases.96 In the two separate cases against West Germany filed by the
Netherlands and Denmark, the Court was asked to decide about the "applicable"
principles and rules of international law "to the delimitation as between the Parties of the
areas of the continental shelf in the North Sea which appertain to each of them beyond
the partial boundary" already determined under the 1964 (between the Netherlands and
Federal Republic of Germany) and 1965 (between Denmark and Federal Republic of
Germany) agreements, which merely drew dividing lines for a short distance from the
coast.
The two cases were joined by the Court. Denmark and the Netherlands argued that the
"equidistance/special circumstances rule" in Art. 6(2) would be applied. Germany,
instead proposed "the doctrine of the just and equitable share". Germany's opposition to
the "equidistance rule" was based on the fact that the rule, if applied on a concave
coastline, such as that of North Sea, shared by all the three States concerned, would result
into giving the State in the middle, and in this case Germany, a smaller continental shelf
than it might otherwise obtain. The Court rejected both these contentions and held that
applying the equidistance principle will lead to inequitable results because of the peculiar
coastline of the States concerned and opined that the notion of equidistance could not be
logically and compulsorily applied in all situations. It is not consonant with certain basic
legal notions, "those principles being that delimitation must be the object of agreement
between the States concerned, and that such agreement must be arrived at in accordance
with equitable principles".97 The Court identified the "equitable principles", that will be
applicable in the absence of an agreement, as follows:
A. The use of the equidistance method of delimitation not being obligatory as
between the Parties;
B. There being no other single method of delimitation, the use of which is in all
circumstances obligatory;
C. The principles and rules of international law applicable to delimitation as between
the Parties of the areas of the continental shelf in the North Sea ... are as follows;
1. delimitation is to be effected by agreement in accordance with equitable principles, and
taking account of all the relevant circumstances, in such a way as to leave as much as
possible to each Party all those parts of the continental shelf that constitute a natural

prolongation of its land territory into and under the sea, without encroachment on the
natural prolongation of the land territory of the other;
_________________
96 Op. cit. 86.
97 Ibid., p. 47, para. 85

2. if, in the application of the preceding sub-paragraph, the delimitation leaves to the
Parties areas that overlap, these are to be divided between them in agreed proportions or,
failing agreement, equally, unless they decide on a regime of joint jurisdiction, user, or
exploitation for the zones of overlap or any part of them;
D. In the course of the negotiations, the factors to be taken into account include:
1. the general configuration of the coasts of the Parties, as well as the presence of
any special or unusual features;
2. so far as known or readily ascertainable, the physical and geological structure, and
natural resources, of the continental shelf areas involved;
3. the element of a reasonable degree of proportionality, which a delimitation carried
out in accordance with equitable principles ought to bring about between the extent of the
continental shelf areas appertaining to the coastal State and the length of its coast
measured in the general direction of the coastline, account being taken for this purpose of
the effects, actual or prospective, of any other continental shelf delimitations between
adjacent States in the same region".98
Thus, in following the "equitable principles", the factors to be taken into account are: the
relevant circumstances, i.e., the geographical situation of the parties and natural
configuration of the coast; proportionality, i.e., the extent of the continental shelf areas
appertaining to coastal State and the length of the coast measured in the general direction
of the coastline; and the concept of natural prolongation, i.e., shelf is an appurtenant to
the land territory. These equitable principles are a part of general international law, and
their application is to be distinguished from the principle of ex aequo et bono."
The approach taken by the International Court of Justice on the "equidistance principle"
in the North Sea Continental Shelf cases has been followed by the Court in the
subsequent cases also. In the Continental Shelf (Tunisia v. Libya) case,100 the Court was
asked to specify principles and rules of international law which were applicable to the
delimitation of continental shelf between Tunisia and Libyan Arab Jamahiriya. They have
a single continental shelf as the natural prolongation of their land territory, and hence no
principle of "natural prolongation" as such could be applied. The Court observed that
since the two countries abutted on a common continental shelf, physical criterion was of
no assistance for the purpose of delimitation. The application of the equidistance method
could not, in the particular circumstances of the case, lead to an equitable result, and in
such a case, the delimitation can be effected on the basis of "equitable principles", taking
into account all the relevant circumstances. The rule of "equidistance" was once again
rejected in the Guinea-Guinea Bissau Arbitration.101 Similar to Germany's position in
North Sea Continental Shelf cases, Guinea was the middle State with Guinea Bissau and
Sierra Leone on either side, and would have suffered inequitably by the application of the
equidistance principle.
The 1982 Convention, however, does not mention the "equidistance rule". Article 83(1)
declares:
_________________
98 Ibid., pp. 53-54, para. 101.
99 Ibid., pp. 46-47, paras. 83 and 85.
100 (1982) ICJ Rep., p. 18, at p. 59.

101 77 ILR 635 (1985).

The delimitation of the continental shelf between States with opposite or adjacent coast
shall be effected by agreement on the basis of international law ... in order to achieve an
equitable solution.
The 1982 Convention thus emphasises upon the agreement between the parties for
delimitation. Nevertheless, in order to achieve an equitable solution, parties may take into
account the principle of equidistance in concluding the agreement.
The Continental Shelf (Libya v. Malta) case102 was the first case decided by the Court
after signing of the 1982 Convention. Though both the States were signatories to that
Convention, they agreed for the dispute to be governed by customary international law.
The Court, however, looked into the provisions of the Convention as rules of customary
international law, and observed that "the principles and rules, applicable to the
delimitation of continental shelf areas are those which are appropriate to bring about an
equitable result". In deciding the dispute, the Court placed great reliance on the
"equidistance principle". But to achieve an equitable result, it will be necessary to first
draw a line, every point of which should be equidistant from the coast of the two opposite
States concerned and then to make adjustments in the light of all the relevant
circumstances. The Court once again discounted the "natural prolongation" factor
propounded in the North Sea Continental Shelf cases, which was subservient to the
equitable principle. In fact, this factor has no role to play in all cases within the 200-miles
limit, i.e., the geological or geophysical factors have no role either in verifying the title or
as factors of delimitation within the distance of 200 miles from either of the coasts of the
parties involved.103
The "equitable principle" also found expression in the Anglo-French Continental Shelf
case.104 Here, the Court of Arbitration was asked to delimit the continental shelf of the
United Kingdom and France in the English Channel (West of Selsey Bill) and the South
Western Approaches. Both the States were parties to the 1958 Continental Shelf
Convention. The Court observed that the "equidistance rule" and "special circumstances"
in Art. 6 are not two separate principles but a single rule of "equidistance special
circumstances rule" as a part of customary international law. Failing agreement, the rule
gives expression to the general norm that "the boundary abutting on the same continental
shelf is to be determined on equitable principles". In the Court's view, choice of the
method of delimitation in any given case has to be determined in the light of geographical
and other relevant circumstances and of the fundamental norm that the delimitation must
be in accordance with equitable principles.105 It was similarly held in the Gulf of Maine
case,106 where the Chamber of the International Court of Justice was called upon to
determine a "single maritime boundary" for the continental shelves and the exclusive
fishing zones in the Gulf of Maine between Canada and the United States. Canada based
its claim on geographic adjacency, which the Chamber rejected by stating that the
"boundary results from a rule of law and not from any intrinsic merit of the purely
physical fact". According to the Chamber, the equidistance rule has not become a rule of
general international law. In delimiting the maritime boundaries between neighbouring
States, in the absence of an agreement between the parties, the delimitation is to be
effected by the application of equitable criteria, which should
_________________

102 (1985) ICJ Rep., p. 13, at p. 57.

103 Ibid., pp. 32-37.
104 54 ILR 6 (1979); 18 ILM 421 (1979).
105 18 ILM, ibid., at pp. 426-427.
106 United States and Canada (1984) ICJ Rep., p. 246.

take into account the geographical configuration of the area, length of coastline, size of
zone and other relevant circumstances to ensure equitable results.
In the subsequent case of Maritime Delimitation and Territorial Questions between Qatar
and Behrain, the Parties requested the Court to decide any matter of territorial right or
other title or interest which may be a matter of difference between them and to draw a
single maritime boundary between their respective maritime areas of seabed, subsoil and
superjacent waters.107 The Court opined that the 'concept of a single maritime boundary
does not stem from multilateral treaty law but from State practice, and ... finds its
explanation in the wish of States to establish one uninterrupted boundary line delimiting
the various, partially coincidental zones'.
In the Land and Maritime Boundary between Cameroon and Nigeria,108 the Court was
asked to delimit a 'single maritime boundary' beyond the limits of the territorial sea that
would divide both the continental shelves and the EEZs of the two States. Both the States
were parties to the 1982 Convention and wanted the delimitation between the maritime
areas by a single line. The Court, while referring to its earlier decisions noted that 'in
disputes relating to maritime delimitation, equity is not a method of delimitation, but
solely an aim that should be borne in mind in effecting the delimitation'.109 In the case
Concerning Maritime Delimitation in the Black Sea, the Court applied the 1982
Convention and indicated that "once provisional equidistance line has been drawn, it shall
then [consider] whether there are factors calling for the adjustment or shifting of that line
in order to achieve an "equitable result" ... Such factors have usually been referred in the
jurisprudence of the Court ... as the relevant circumstances."110
The judicial practice has thus predominantly established that equidistance is not an
applicable rule in all cases of delimitation between adjacent States. The "natural
prolongation" criterion has similarly given way to distance criterion (i.e., 200 nautical
miles from the coast). The emphasis on "equitable solution" in the 1982 Convention,
however, is without any accompanying procedure to be followed to achieve it. According
to Bowett, since States differ on what equity requires, the application of equitable
principles reduces the chances of settling boundary disputes without litigation.111
_________________
107 Case Concerning Maritime Delimitation and Territorial Questions between Qatar
and Bahrain, (Qatar v. Bahrain) (Jurisdiction and Admissibility) (1995) see (1994) ICJ
Rep., p. 112, During the decade-long Qatar v. Bahrain proceedings, the International
Court of Justice rendered two Judgments on jurisdiction and admissibility (1994-1995),
followed by its decision not to rely on the 82 Qatar documents challenged by Bahrain
(1999), and by Judgment on the merits (2001).
108 (1998) ICJ Rep., p. 275 (Preliminary Objections); (2002) ICJ Rep, 303. The
dispute was related essentially to the question of sovereignty over the Bakassi Peninsula,
which was later extended to the question of sovereignty over Cameroonian territory in the
area of Lake Chad and the frontier between Cameroon and Nigeria from Lake Chad to
the sea.
109 Ibid., para 294.
110 See op. cit. 36, para 155.

111 See Bowett, 49 BYbIL 1 at p. 6 (1978). The Court currently has two cases
concerning the delimitation of the maritime zones: Maritime Delimitation in the Black
Sea (Romania v. Ukraine) [Rejoinder 8 June 2007]; and Maritime Dispute (Peru v. Chile)
- 16 January 2008 for the delimitation of the boundary between the maritime zones of the
two States in the Pacific Ocean. Peru has requested the Court to determine the boundary
in accordance with international law and to adjudge and declare that Peru possesses
exclusive sovereign rights in the maritime area situated within the limit of 200 nautical
miles from its coast but outside Chile's exclusive economic zone or continental shelf.

E. Islands
Islands too have the continental shelf of their own, unless they are just "rocks which
cannot sustain human habitation or economic life of their own" (Art. 121(3), 1982
Convention). This has not been fully explained and State practice has yet to elaborate it.
However, islands may constitute a relevant circumstance for the purpose of delimiting the
EEZ or continental shelf between adjacent or opposite States.112
F. Indian Position
India proclaimed its continental shelf in August 1955, and by the Fifteenth Constitution
Amendment Act, 1963, it was inserted in Art. 297 of the Constitution. The Maritime
Zones Act, 1976, states the Indian position in Sec. 6. India has proclaimed 200 nautical
miles from the baselines as its continental shelf on January 15, 1977, in accordance with
Sec. 1(2) of the Act. The rights and duties of India in this regime are similar to other
States, as specified in the international Conventions. However, the government can
declare any area of continental shelf and its superjacent waters as designated area and
make provisions to regulate it.
G. Continental Shelf and Exclusive Economic Zone Distinguished

The regimes of continental shelf and EEZ co-exist under the customary international law
and the 1982 Convention. They contain few significant similarities and over-lappings.
The coastal State enjoys sovereign rights over the resources of the EEZ and the
continental shelf. These rights are primarily of economic kind and the area otherwise
pertains to the high seas. The traditional freedoms of the high seas under the customary
international law, i.e., freedoms of navigation, overflight and immersion are available to
other nations in these zones.
However, they are different in many ways: (1) Whereas the coastal State gets rights over
the continental shelf because of its land territory, i.e., continental shelf accrues to it under
customary international law ipso-facto, the EEZ is optional, i.e., it needs to be
"proclaimed" by the coastal State (Art. 77(3) of the 1982 Convention). In other words,
the EEZ is a concept of law, whereas continental shelf is a concept of geography. (2)
Whereas the rights of continental shelf can exist beyond the limit of 200 miles from the
coast where shelf and margin extend beyond that limit, it is not so with the EEZ. (3) The
resources of the EEZ are subject to the rule of sharing the surplus of the living resources
of the EEZ with other nations, particularly with landlocked and geographically
disadvantaged States (Arts. 69-70 of the 1982 Convention), but the resources of the
continental shelf are immuned from this requirement and if the coastal State does not
exploit them, no other State has a right to do so. (4) The continental regime applies to
shelf resources (including sedimentary species) of States that have claimed an EEZ (Art.
56(3)) as well as States that have not done so, and applies to the shelf resources beyond
the 200-mile limit. Thus, under the 1982 Convention, a continental shelf can exist
without EEZ, but there cannot be an EEZ without a corresponding continental shelf.
_________________

112 See Anglo-French Continental Shelf case, op. cit. 104; Gulf of Maine case, op. cit.
106; Tunisia-Libya case, op. cit. 100; Land and Maritime Boundary between Cameroon
and Nigeria, op. cit. 108, para. 299.

In the Libya v. Malta case,113 the Court was of the view that both the regimes are linked
together, "since the rights enjoyed by a State over its continental shelf would also be
possessed by it over the seabed and sub-soil of any exclusive economic zone which it
might proclaim".
VI. HIGH SEAS114

The 1958 Geneva Convention on the High Seas defined the term "high seas" as all parts
of the sea, not included in the territorial sea or in the internal waters of a State (Art. 1).
But, taking into account the emergence of the concept of EEZ and the regime of
archipelagic States, Art. 86 of the 1982 Convention describes the area of "high seas" as
"all parts of the sea that are not included in the exclusive economic zone, or in the
archipelagic waters of an archipelagic State". Thus, the area pertaining to high seas under
customary international law has been substantially reduced. However, the concept of
"freedom of open sea", so jealously propounded by Grotius in his study Mare Librum and
guarded under the customary international law, had found place in Art. 2 of the 1958
High Seas Convention and has been further developed and amended by Art. 87 of the
1982 Convention.
A. Freedoms of the High Seas

Article 2 of the High Seas Convention provides:
The high seas being open to all nations, no State may validly purport to subject any part
of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid
down by these articles and by the other rules of international law. It comprises, inter alia,
both for coastal and non-coastal States:
1. Freedom of navigation;
2. Freedom of fishing;
3. Freedom to lay submarine cables and pipelines;
4. Freedom to fly over the high seas.
These freedoms and others which are recognised by the general principles of international
law shall be exercised by all States with reasonable regard to the interests of other States
in their exercise of the freedom of the high seas.
The 1982 Convention (Art. 87(1)) has added two additional freedoms, viz.,
(d) Freedom to construct artificial islands and other installations permitted under
international law, subject to Part VI of the present Convention;
(f) Freedom of scientific research, subject to Parts VI and XIII115 of the present
Convention.
_________________
113 Op. cit. 102, paras. 33-34.
114 See, generally, D.P. O'Connell, The International Law of the Sea, Vol. II
(Clarenden Press, Oxford), 1984, pp. 792-830; I. Brownlie, Principles of Public
International Law, 7th ed. (2008), pp. 223-246; L. Oppenheim, International Law, Vol. I,
9th ed. (Jennings & Watts (Ed.), Longman) 1996, pp. 719-764; McDoughal and Burke,
op. cit. 84, p. 730.

115 Parts VI and XIII respectively, deal with continental shelf and marine scientific
research in general.

The freedom of fishing is subject to the conditions for conservation and management of
the living resources of the high seas (Arts. 116-120).
In exercising these freedoms, due regard must be given to the interests of other States and
activities in the Area.''6 Other freedoms recognised by the "general principles of
international law" referred to in Art. 2 of the High Seas Convention include the freedoms
to use the high seas for weapon testing and naval exercises. However, the 1982
Convention limits the use of the high seas to peaceful purposes (Art. 88).
The Convention further lays down certain fundamental propositions in relation to this
area. Accordingly, no part of the high seas be subjected to State sovereignty (Art. 89; Art.
29 of the 1958 Convention); every State is under a duty "to effectively exercise its
jurisdiction and control in administrative technical and social matters over ships flying its
flag" (Art. 94); ships are to sail under the flag of one State only where it is registered and
with which existed a "genuine link" (Art. 91)117 and are to be subject to the exclusive
jurisdiction of that State on the high seas (Art. 92).118 Thus, this provision endorses the
doctrine of "floating island", long accepted under the customary international law.119
Further, a ship sailing under the flags of two or more States and using them according to
convenience, may not claim any of the nationalities, and may be assimilated to a ship
without nationality (Art. 92). Warships on the high seas are completely immune from the
jurisdiction of any State.
B. Jurisdiction in Collision Cases

The question of jurisdiction in collision cases on the high seas was the issue before the
Permanent Court of International Justice in the Lotus case.120 In that case, a collision
had occurred on the high seas between the French Steamer Lotus and the Turkish steamer
Boz-Kourt, resulting in the loss of Boz-Kourt and the death of eight Turkish sailors and
passengers. On the arrival of the Lotus at Constantinople, joint criminal proceedings were
instituted against the captain of the Turkish steamer and M. Demons, officer of the watch
on board the Lotus, and both were sentenced to imprisonment. The French Government
protested and the case was submitted to the Permanent Court of International Justice.
Before the Court, the French Government argued that the Turkish action was contrary to
the principles of international law and its treaty obligations under Art. 15 of the
Convention of Lausanne of July 24, 1923. It contended that Turkey had no jurisdiction
over an act committed on the high seas by a foreigner on board a foreign vessel, and it is
the flag State (in this case, France) who had the exclusive jurisdiction on board a foreign
vessel. The Court held that Turkey had not acted
_________________
116 "Area" has been defined as "the seabed and ocean floor and sub-soil thereof
beyond the limits of national jurisdiction", Art. 1(1) of the 1982 Convention.
117 The M/V SAIGA (No. 2) Case (St. Vincent and the Grenadines v. Guinea), Int'l
Tribunal for the Law of the Sea (1999) 120 ILR 143. The case was, among others, related
to the nationality of ships and the 'genuine' link requirement.
118 This is the negation of the judgement and doctrine laid down by the PCIJ in the
S.S. Lotus case, PCIJ Rep., Series A, No. 10 (1927).

119 See Art. 23 of the 1952 Rome Convention on Damage Caused by Foreign Aircraft
to Third Parties on the
Surface, which endorses this doctrine for aircrafts.
120 See op. cit. 118.

contrary to the principles of international law because the offence committed on board
the Lotus had produced its effects on the Turkish vessel and consequently, in a place
assimilated to Turkish territory in which the application of Turkish criminal law cannot
be challenged, even in regard to offences committed there by foreigners. There is no rule
of international law, prohibiting a State from exercising jurisdiction over a foreigner in
respect of an offence committed outside its territory.
The Court concluded that, except for warships, there is no rule of international law which
reserves exclusively to the flag State the right to exercise jurisdiction in collision
cases.121 However, Art. 11 of the 1958 High Seas Convention lays down that in the
event of collision or of any incident of navigation on the high seas, no penal or
disciplinary proceedings may be instituted against the persons responsible, except before
the judicial or administrative authorities either of the flag State or of the State of which
such person is a national. This provision overrules the principles of the Lotus case.
Article 97 of the 1982 Convention reproduces verbatim the rule of Art. 11. Further, in
disciplinary matters, the State which has issued a master's certificate or a certificate of
competence or licence shall alone be competent, after due legal process, to pronounce the
withdrawal of such certificates, even if the holder is not a national of the State which
issued them (Art. 97(2)). Only the authorities of the flag State can order arrest or
detention of the ship. No other State can do so even as a measure of investigation (Art.
97(3)). These provisions, in effect, restate the customary law.
C. Rights and Duties of States on the High Seas

The States have certain rights and duties in relation to high seas. Warships on the high
seas enjoy complete immunity from the jurisdiction of any State other than the flag State
(Art. 95). Both the 1958 High Seas Convention, and the 1982 Sea Convention, accord to
a State the right to take effective measures to prevent and punish the transport of slaves in
ships authorised to fly its flag, and to prevent the unlawful use of its flag for that purpose.
Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.122
1. Right to visit a foreign merchant vessel

A warship can exercise the right of visit to a foreign ship if there are reasonable grounds
to suspect that the ship is without a nationality, or though flying a foreign flag or refusing
to show its flag, is of the same nationality as the warship; or the ship is operating a
private radio station; or it is engaged in piracy; or in the slave trade (Art. 22 of the 1958
Convention). This right to visit has been further extended to a ship stationed in, or
installed in the high seas, suspected to be operating a private radio station or is without a
nationality by the 1982 Convention. But
_________________
121 The decision in the Lotus case aroused a lot of skepticism among a number of
bodies, e.g., International Maritime Committee, and Montevideo Conference. The
decision was stated to lead to double prosecution of the masters of the ships.
122 See Art. 99 of the 1982 Convention and Art. 13 of the High Seas Convention.
Customary international law does not accord such powers in this regard over foreign

ships on the high seas. See H.A. Smith, The Law and Custom of the Sea, 3rd ed. (Stevens
& Sons Ltd., London), 1959, cited in Harris, op. cit. 35, p. 380.

the right can be exercised by a "military aircraft" or "any other duly authorised ship or
aircraft clearly marked and identifiable as being on government service" (Art. 110(4) and
(5)). The 1982 Convention enjoins a duty on every State to cooperate in the suppression
of such unauthorised broadcasting,123 and any person engaged therein may be arrested
and prosecuted by the ship's flag State, State of the registry of the installation, State of the
person's nationality, State where the transmissions can be received, or State whose
authorised radio transmission is suffering interference (Art. 109).
2. Piracy
Oppenheim defines piracy as an unauthorised act of violence against persons or goods
committed on the open sea, either by a private vessel against another vessel or by the
mutinous crew or passengers against their own vessel.124 Under customary international
law, murder or robbery on the high seas or intent to plunder the ship was considered
essential to constitute the act of piracy. Article 15 of the 1958 Convention on the High
Seas and Art. 101 of the 1982 Convention have widened the scope of the offence of
piracy. This definition is now widely accepted. According to it, piracy consists of any of
the following acts:
(a) Any illegal acts of violence or detention, or any act of depredation committed for
private ends by the crew or the passengers of a private ship or a private aircraft, and
directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on
board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any
State;
(b) Any act of voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft;
(c) Any act of inciting or of intentionally facilitating an act described in sub-
paragraph (a) and (b).
Accordingly, piracy requires two ships or a ship and an aircraft and any "private ends"
are sufficient.125 Thus, the hijacking of an aircraft by the passengers or crew of the
hijacked aircraft does not amount to piracy because the act is not directed against another
ship or aircraft, it is against the persons or property on board. The crime of piracy can be
committed only by private vessels or aircraft. But if the crew of a warship, government
ship or aircraft has mutinied
_________________
123 "Unauthorised broadcasting" is defined as "the transmission of sound radio or
television broadcasts from a ship or installation on the high seas intended for reception by
the general public contrary to international regulations, but excluding the transmission of
distress calls" (Art. 109(2)). See European Agreement for the Prevention of Broadcasting
from Stations Outside National Waters, 1965, 634 UNTS 239. The European Convention
grants the right to exercise criminal jurisdiction but does not give the right to visit.
124 Oppenheim, op. cit. 114, Vol. I, pp. 746-747, para. 272.
125 Politically motivated acts of organised groups or insurgents from a ship against the
ships of other States though unlawful, are difficult to term as piracy.

and taken control of the ship or aircraft, it may be treated as a pirate ship (Art. 102 of the
1982 Convention; Art. 16 of the 1958 Convention).
A ship or aircraft is considered a pirate ship or aircraft if it is intended to be used for
committing any of the acts referred in Art. 101, by the persons in dominant control (Art.
103: 1982 Convention; Art. 17: 1958 Convention). A ship or an aircraft may retain its
nationality even after becoming a pirate ship or aircraft. The retention or loss of
nationality is determined by the flag State (Art. 104: 1982 Convention; Art. 18: 1958
Convention).
Piracy is considered to be a crime against humanity and a pirate as an enemy of mankind,
hence subject to arrest, trial and punishment by any State. A State can exercise criminal
jurisdiction over pirates under its municipal law, on the basis of universal principle on
acts constituting piracy jure gentium. Universality of the crime of piracy jure gentium has
been accepted in Art. 105 of the 1982 Convention (Art. 19 of the 1958 Convention),
which provides that every State on the high seas, or in any other place outside the
jurisdiction of any State,126 may seize the pirate ship or aircraft, or a ship taken by
piracy and under the control of pirates, and arrest the persons and seize the property on
board, and the courts of the State which carried out the seizure, may try them. Such a
seizure may be carried out only by warships or military aircraft, or other ship or aircraft
authorised to that effect (Art. 107: 1982 Convention; Art. 21: 1958 Convention).
3. Hot pursuit
International law recognises the right of coastal State to pursue and seize a foreign vessel
which has infringed its laws and regulations while passing through its territorial waters
even on the high seas. The reason is not to allow the foreign ship to evade the jurisdiction
of the coastal State by escaping into the high seas. The right of hot pursuit can be validly
exercised if the following essentials are present:
1. The pursuit commences immediately while the alleged infringing vessel or any of
its accessory boats is still within the internal or territorial waters of the coastal State.
Under Art. 23 of the 1958 High Seas Convention, the pursuit may commence in the
contiguous zone if there has been a violation of the rights for the protection of which the
zone was established. The right has been further extended it archipelagic waters for
commencement and applies mutatis mutandis to the EEZ and continental shelf, including
safety zone around continental shelf installations under the 1982 Convention (Article
111(2)).
2. The pursuit is continuous and uninterrupted (Article 111(1)).
3. A visual or auditory signal to stop has been given from such a distance as to be
seen or heard by the fugitive ship (Article 111(4)). It is not necessary that at the time
when the
_________________
126 The 1988 IMO convention on the Suppression of Unlawful Acts against the Safety of
Maritime Navigation makes it an offence to seize control of a ship by the use or threat of
force where the ship "is navigating ... through ... waters beyond the limit of territorial
sea." (Art. 3-4). With a wide scale piracy off the coast of Somalia since 2008, the
Security Council passed a string of resolutions -1816 (2008); 1828 (2008); 1846 (2008);

and 1851 (2008). The latter authorising to enter into Somalia's land territory with the
consent of the Transitional Federal Government of Somalia.

vessel within the territorial sea or contiguous zone or EEZ receives the order to stop that
the signalling ship should also be within those waters. "Signal" to stop by radio was not
considered sufficient, but under 1982 Convention, it is interpreted to be sufficient.127
4. The pursuers are warships, military aircraft, or other government ships or aircrafts
specially authorised to that effect, although the craft making the arrest need not actually
be the one which commenced the pursuit (Article 111(5-6)).
5. The right ceases as soon as the vessel enters the territorial sea of its own country,
or of a third State (Article 111(3)).128
6. Where a ship has been stopped or arrested on the high seas in circumstances not
justifying the exercise of the right of hot pursuit, the coastal State has to compensate for
any loss or damage that may have been thereby sustained (Art. 111(8): 1982 Convention;
Art. 23(7): 1958 Convention).
The use of force to effect the arrest of a fugitive ship has not been considered in the 1958
High Seas Convention or in the 1982 Convention. However, the rule of "necessary and
reasonable force", laid down in the I'm Alone case,129 seems to be the rule of customary
In 1929, at the time of Prohibition in the United States, I'm Alone, a British Schooner
registered in Canada, was ordered to stop by a United States coastguard vessel, Walcott,
on suspicion of smuggling liquor while it was 10 miles off the Louisiana coast. It fled and
was pursued by the Walcott, and after its guns had jammed, by the Dexter, the other
United States coastguard, which caught up with I'm Alone on the high seas (more than
200 miles off the coast of the United States). When I'm Alone refused to stop, it was fired
upon by the Dexter and sunk. On protest by Britain, the United States justified its action
under the Convention of 1924 between them, which authorised the United States
authorities to board a private vessel under the British flag outside the limits of territorial
waters which could be traversed in an hour from the United States' coast, to check liquor
smuggling. The two Commissioners appointed under the 1924 Convention held that the
United States might use "necessary and reasonable force" for the purpose of effecting the
objects of boarding, searching, seizing and bringing into port the suspected vessel, and if
sinking should occur incidentally, as a result of the necessary and reasonable force for
such purpose, the pursuing vessel might be entirely blameless. But the intentional sinking
of the suspected vessel was not justified, it was an unlawful act and awarded $25,000
compensation to the Canadian Government.
_________________
127 The ILC declined to admit orders given by wireless, as those could be given at
any distance. See Commentary on Art. 23 of the 1958 Convention, YbILC, Vol. II
(1956), p. 285.
128 See, Granville L. Williams, The juridical basis of hot pursuit, 12 BYblL 92-93
(1939). According to Poulantzas, the two most important elements of a valid hot pursuit
are its immediate commencement and conduct without interruption, N.M. Poulantzas,
The Right of Hot Pursuit in International Law (A.W. Sijthoff Leyden), 1969, p. 43.
129 3 RIAA 1609; 29 AJIL 326 (1935).

130 More recently, the M/V Saiga's has dealt with the "reasonable and necessary in
the circumstances" rule, stated to be the customary international law applicable in 'hot
pursuit' and other lawful arrests at high sea as well, op. cit. 117 paras 132-135.

The principle of "necessary and reasonable force" was also endorsed in the Red Crusador
case131 in which a Scottish trawler was arrested for fishing in an unauthorised area by a
Danish fisheries inspection vessel. When it tried to escape and did not stop on order, it
was fired at directly with solid shots and damaged, but did not sink. The Anglo-Danish
Enquiry Commission found the use of force excessive, firing solid shot gun without
warning, and creating danger to human life on board the Red Crusador without their
proved necessity.
D. Indian Position
The Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981,
provides, "Where in pursuance of the commission of any offence under this Act, any
foreign vessel is pursued beyond the limits of the exclusive economic zone of India, the
powers conferred on an authorised officer by this section may be exercised beyond such
limits in the circumstances and to the extent recognised by international law and State
practice" (Sec. 9(5)). Consequently, the right of hot pursuit, as mentioned in Sec. 9(5) is
exercisable according to the above mentioned principles of international law. Foreign
vessels found indulging in unauthorised fishing in any maritime zone of India are subject
to confiscation and heavy penalties, including imprisonment (Sees. 10-17).
VII. ENCLOSED OR SEMI-ENCLOSED SEA

The concept of "enclosed or semi-enclosed sea", introduced by the 1982 Convention
(Part IX), has been defined as:
i. a gulf, basin, or sea surrounded by two or more States and connected to another sea
or ocean by a narrow outlet; or
ii. consisting entirely or primarily of the territorial seas and EEZs of two or more coastal
States (Art. 122). The States bordering on such a sea should cooperate with each other in
the exercise of their rights and duties under the Convention, and to invite, as appropriate,
other interested States or international organisations to cooperate with them in
furtherance of their rights, duties and scientific research policies (Art. 123).
VIII. LAND LOCKED STATES

Article 124(1)(a) of the 1982 Convention defines land-locked State as "a State which has
no sea-coast".132 There are about 30 land-locked States in the world. They have been
given certain rights and privileges under international law. The 1958 High Seas
Convention (Art. 3) and the 1982 Convention (Part X, Arts. 124-132) relate to these
rights and privileges. These States have been provided the right of access to and from the
sea on equal terms with coastal States, in order to enjoy the freedoms of the sea, and
other related privileges of transit passage through
_________________
131 35 ILR 485 (1962).
132 The 1965 Convention on Transit Trade of Land-Locked States also gives the
similar definition in Art. 1(a).

"transit States".133 Freedom of transit traffic and means of transport are granted. Such
freedom of transit and right of access are to be exercised according to the terms and
modalities, settled by agreement between the transit State and land-locked State, but the
transit States are entitled to ensure that this freedom of passage shall in no way infringe
their legitimate interests.134 Thus, the Convention does not bestow any definite right on
the land-locked States in relation to freedom of transit and right of access to and from
sea, they are merely recommendatory rather than being mandatory.135 Any special
agreements relating to the right of access and freedom of transit are excluded from the
application of the most-favoured-nation clause (Art. 126).
The 1982 Convention also confers certain other privileges, which were also mentioned in
the 1965 Convention on Transit Trade of Land-Locked States. Their transit trade is not to
be subjected to any customs duties, taxes or other charges except for specific services
rendered (Art. 127(1); Art. 3 of the 1965 Convention); or subjected to discriminatory
charges or taxes vis-a-vis local transport (Art. 127(2), Art. 4 of the 1965 Convention).
Free zones or other customs facilities may be provided by agreement with transit States
(Art. 128). The transit State and land-locked State may cooperate in making provision for
adequate means of transport (Art. 129); transit States should take all appropriate
measures to avoid delays or technical difficulties for transit traffic (Art. 130). Ships
flying the flag of a land-locked State are to enjoy treatment equal to that accorded to
other foreign ships in maritime ports (Art. 131). A transit State may provide better
facilities than those provided under the Convention (Art. 132).
The case of Nepal

Nepal and Afghanistan are land-locked States of South-Central Asia. Nepal is situated
between India and China, in the Southern slope of the Himalayas. India, being a transit
State, has provided Nepal access to sea under treaties, concluded in accordance with
international law. Earlier this right was regulated by the Treaty on Trade and Transit of
July 31, 1950. The Treaty provided, among other things, transit facilities on reciprocal
basis and re-export of goods to and from Nepal through the Indian territory, besides
providing Nepal access to sea (Sees. 2, 3, and 4). India provided 15 entry points to Nepal
as against the required two transit points. This treaty expired on March 1989, and transit
facilities provided to Nepal were stopped.136 However, on December 6, 1991, as desired
by Nepal, two separate treaties on trade and transit were concluded: the Treaty on Trade
for a period of five years, and Treaty for Transit for seven years,137 which came into
force immediately. The conclusion of the Transit Treaty between Nepal and India clearly
establishes that the right of transit of land-locked States is not mandatory, but merely
recommendatory in nature for the transit trade.
_________________
133 States lying between the land-locked States and the coast are transit States, Art.
124(l)(b).
134 Articles 125(2) and (3) of the 1982 Convention, and Art. 2 of the 1965 Transit
Trade Convention.
135 See V.C. Govindraj, "Land-locked States and their right of access to the sea", 14
IJIL p. 190, at p. 204 (1974).

136 Because of the political differences which arose between the two countries in
1987 and persisted for some time, the Treaty of 1950 was not renewed after its expiry in
March 1989.
137 The Times of India, Dec. 8, 1991, p.1. The Treaties have since been extended
from time to time.

IX. SEABED AREA

The area of deep ocean floor lying beyond the continental margin is rich in mineral and
hydrocarbon resources,138 such as manganese, nickel, cobalt, copper, sulphur, petroleum
etc [resources when recovered from the Area are referred to as 'minerals']. Exploitation of
the Area has become possible due to advances in science and technology by the
industrialised nations. In order to regulate the activities of the States in the "seabed and
ocean floor and the sub-soil thereof beyond the limits of national jurisdiction", referred to
as "Area" (Art. (1) para. 1(1)), the United Nations General Assembly adopted two
resolutions before the UNCLOS-III: Resolutions 2574 and 2749 declaring the resources
of the Area as the "common heritage of mankind", which shall be governed by a
proposed international regime.139
The 1982 Convention in Part XI incorporates the customary international law principles
about the legal status of the waters superjacent to the Area and the airspace above those
waters, where the freedom of the high seas applies and no part of it can be appropriated
(Arts. 135 and 137(1)). It establishes an international regime referred in the above-
mentioned two General Assembly resolutions. Resources of the Area are declared to be
the "common heritage of mankind" (Art. 136). This has been made an over-riding
principle in Art. 311(6) by stating, "States Parties agree that there shall be no
amendments to the basic principle relating to the common heritage of mankind set forth
in Art. 136 and that they shall not be party to any agreement in derogation thereof.
Though there was a general agreement on the concept, sharp differences prevailed over
devising a system for the exploitation of the resources of the Area, which had put the fate
of the Convention in jeopardy. On the matter of exploitation of the resources, developing
States sought for a system by which exploitation would be conducted by an international
body, i.e., the International Seabed Authority (referred here as "Authority"), which would
establish an Enterprise for that purpose, and not by States or national undertakings.140
On the other hand, developed States preferred the regime under which exploitation would
be by States or national undertakings subject to a system of registration or licensing by an
international authority, thereby giving minimum powers to the Authority.
The Convention, however, provided a system of "parallel access" as a compromise
between the two approaches. Though giving wider powers to the Authority, the activities
in the Area shall be carried out by the Enterprise, and in association with the Authority,
by the State parties or their entities according to the requirements laid down in Annex.
III. All the activities in the Area are to be regulated by the Authority in accordance with
the provisions of the Convention (Art. 153(1)). The national entities of State parties
which fulfil the: (a) nationality or control,
_________________
138 The definition of "resources" in Art. 133 is generally phrased to allow for the future
discovery of resources on commercial scale other than manganese (polymetallic) nodules.
139 Resolution 2574 (XXIV) of Dec. 15, 1969, called the Moratorium Resolution, was
adopted by 62 votes with 28 against (including the United States) and 28 abstentions, and
declared moratorium on the exploitation of the resources of the Area pending the
establishment of an international regime, Res. 2749 (XXV) of Dec. 17, 1970, declared the
resources of the Area the "common heritage of mankind".

140 R.P. Anand, Legal Regime of the Seabed and the Developing Countries (Thomson
Press, New Delhi), 1975; C. Joyner, 35 ICLQ 190-199 (1986), Churchill and Lowe, op.
cit. 1; P. Kirsch and D. Fraser, 26 Canad. YbIL 119-153 (1988).

and (b) sponsorship requirements provided in Art. 153(2)(b) and Annex, are eligible for a
contract with the Authority and to carry out activities in the Area.
According to the "parallel system", States parties or their entities are required to specify a
mining site for exploration and/or exploitation covering "a total area, which need not be a
single continuous area, sufficiently large and of sufficient estimated commercial value to
allow two mining operations" (Art. 8 of Annex. III). The Authority designates half of the
"site" as a "reserved site" to carry out activities through the Enterprise or in association
with developing States. Joint ventures between the Enterprise and a State or its entity are
also possible. The remaining half is then allocated to an applicant who will work under
the close control of its activities by the Authority and undertakes to transfer technology to
the Enterprise (Art. 144 of the Convention; Art. 5, Annex. III). The obligation to transfer
technology, which shall be included in each contract, will remain until 10 years after the
Enterprise has begun commercial production of mineral resources of the Area. Contracts
may not be terminated except for serious breach of a fundamental term (Art. 18, Annex.
III). A detailed provision has been made for the financial terms of the contract. The
contractor is to make payment to the Authority, which will be distributed to States parties
on a "non-discriminatory basis", taking into account the special interests of developing
countries (Art. 13, Annex. III). The Authority will also control the overall production
levels, keeping in view the interests of the land-based metal producers, especially their
effects on the economies of developing countries which are producers of such minerals
(Arts. 151[paras. 1-7, 9] & 162 of the Convention and Art. 6(5) & 7, Annex. III).
A. International Seabed Authority

An independent International Seabed Authority has been created under the Convention
with an overall responsibility for the operation of the system (Arts. 156-188). All States
parties to the Convention are members of the Authority, which has been established in
1994 after the entry into force of the Convention. It has three principal organs: the
Assembly, the Council and the Secretariat (Art. 158(1)). The Assembly, a policy-making
body consisting of all the members of the Authority, takes decisions by a two-third
majority, each member having one vote (Art. 159). The Council, the executive organ of
the Authority, is composed of 36 members elected by the Assembly, representing various
interest groups (Art. 161). The Council works through an Economic Planning
Commission, and a Legal and Technical Commission. The Secretariat is headed by a
Secretary-General, elected for four years by the Assembly and may be re-elected (Art.
166). The 1994 Implementation Agreement provides that most decisions of the Assembly
shall be "based on the recommendation of the Council." This has shifted the balance of
political power in the Authority towards the Council, thereby increasing the influence of
developed countries in decision-making.141
The Authority carries out the exploitation of the Area through a separate body, called the
Enterprise, which has its principal place of business, i.e., Jamaica, at the seat of the
Authority (Art. 170). The Authority is financed mainly by contributions from its
members on the basis
_________________
141 Annex to the Agreement, sec. 3, paras 1, 4.

of their contributions to the United Nations, and funds generated by the activities of the
Enterprise and receipts of the Authority arising from activities in the Area. Furthermore,
provision is made for the establishment of the Seabed Disputes Chamber of the Law of
the Sea Tribunal for the compulsory settlement of disputes relating to the Area (Part XV,
Arts. 286 and 287).
B. Preparatory Commission
At the time of adoption of the Final Act of the UNCLOS-III, by Resolution I, the
Preparatory Commission for the Authority and for the International Tribunal for the Law
of the Sea was created, consisting of all States which had signed the Convention. Its main
tasks were to draw detailed rules and procedures for the deep seabed mining under the
Authority and tackle issues concerning mining, such as the arrangements for pioneer
investors, the transfer of technology and the treatment of land-based producers. It was
also to draft rules related to the International Tribunal for the Law of the Sea to make it
functional. The Commission started its work from March 1983 after 50 States had signed
or acceded to the Convention. It created four special commissions of equal status to carry
out its functions.
C. Developments after 1982

The United States, though in principle supported the regime at the UNCLOS III, was
totally dissatisfied with the provisions of the deep seabed mining It objected to the system
envisaged on mining on a number of counts, including the funding of the Authority,
where it would be asked to pay large contribution in proportion to the United Nations
budget, and the activities of the Enterprise which will be in conflict with American
mining interests, and the obligation to transfer technology. Due to its dissatisfaction with
the deep sea-bed regime in Part XI of the Convention, the United States, along with
certain developed countries refused to sign the Convention, the United States even voted
against the adoption of the Convention. Because of this, during the 1980s and 1990s, the
Convention was ratified/acceded mainly by developing countries.
On August 3, 1984, a "Provisional Understanding Regarding Deep Seabed Matters"
(creating 'Reciprocating States Regime'), was signed between the United States, the
United Kingdom, France, Germany, Japan, the Netherlands, Italy and Belgium to avoid
possible overlapping and to coordinate their activities in the exploitation of deep seabed,
while issuing licences.142 Other States may accede to this regime with the consent of all
the parties. This Agreement operates outside the regime of the 1982 Convention, though
it is intended not to affect parties' position or their obligation under the Convention.143
The Preparatory
_________________
142 See also Agreement on the Resolution of Practical Problems with Respect to Deep
Seabed Mining Areas dated Aug. 14, 1987 in 26 ILM 1502 (1987); Law of the Sea
Bulletin No. 11 (July 1988), pp. 28-45.
143 France, Japan, Italy and Belgium were signatories to the 1982 Convention, hence
they were under an obligation to refrain from any act contrary to the objects of the treaty.
See, 1969 Vienna Convention on Law of Treaties, Art. 18.

Commission for the Authority, however, declared the agreement as incompatible with the
Convention, which should not be recognised.144 In 1988, the United Nations General
Assembly also called upon States to desist from taking actions which undermine the
Convention or defeat its object and purpose.145
However, in order to secure the financial viability of the operations of the Convention
and of the Seabed Authority, steps were initiated within the United Nations in early
1990s, which ultimately led to the adoption of the 1994 New York Agreement Relating to
the Implementation of Part XI, to the satisfaction of the developed countries.146 The
Agreement on Implementation was adopted as a binding international Convention. It
mandated that key articles, including those on limitation of seabed production and
mandatory technology transfer, would not be applied, that the United States, if it becomes
a member, would be guaranteed a seat on the Council of the International Seabed
Authority, and finally, that voting would be done in groups, with each group able to block
decisions on substantive matters. The 1994 Agreement also established a Finance
Committee that would initiate the financial decisions of the Authority, to which the
largest donors would automatically be members and in which decisions would be made
by consensus. Article 2 of the Agreement provides that the Agreement and Part XI of the
Convention shall be interpreted and applied together as a single instrument, and in the
event of any inconsistency between the Agreement and Part XI of the Convention, the
provisions of the Agreement shall prevail. In effect the Agreement modifies Part XI to
meet the objections of developed countries to the original seabed regime of the
Convention and paved the way for the ratification of the Convention by them.147
The Convention entered into force on November 16, 1994, one year after 60 States
acceded or ratified it. This was almost after 12 years of its adoption in December
1982.148
Pioneer investors
One of the objections of the United States against the 1982 deep seabed regime was the
absence of any protection for a pre-Convention investment. For this, Resolution II of the
Final Act of UNCLOS-III permitted the States and national undertakings to qualify for
registration with
_________________
144 Declaration of Aug. 30, 1985, Law of the Sea Bulletin, No. 6 (Oct., 1985), p. 85;
UN Doc. LOS/PCN/72.
145 GA Res. 43/8. In 1980, the United States enacted the Hard Mineral Resources Act
to regulate deep seabed mining, see 19 ILM 1003 (1980). Similar legislation was enacted
by many developed countries, viz., Germany in 1981, France in 1982, USSR in 1982,
Japan in 1983, Italy in 1985, and the United Kingdom in 1981.
146 The Agreement was adopted in the 48th Session of the General Assembly by a
vote of 121 in favour, none against and seven abstentions, see GA Res. 48/263, July 28,
1994. By the end of 1994, more than 50
States had signed the Agreement, including the US and all the industrialised countries.

147 The 1994 Agreement entered into force in 1996. For more details on the
Agreement, see Bernard H. Oxman, The 1994 Agreement and the Convention, 88 AJIL
687 (1994), No. 4.
148 Presently 158 States and the European Community are its members. The United
States, which helped in giving shape to the Convention and was behind the adoption of
the 1994 Agreement, has not yet ratified the Convention, though it has signed it.

the Preparatory Commission as "pioneer" investors, if they have spent $30 million on
seabed activities by January 1, 1983, and for developing countries, by January 1,
1985.149 "Pioneer" investors have the right to explore, and not exploit, the deep seabed
till the entry into force of the Convention, and have the guaranteed priority over other
applicants, other than the Enterprise, in the allocation of mining contracts. Once the
pioneer area is allocated, the investors would have to make $1 million annual fee and
train personnel for the Enterprise. Only pioneers from "certified States" (signatories to the
Convention), which have ratified the Convention would be entitled to have plans of work
(mining contracts) approved.150 Initially, France, India, Japan and the USSR, acting on
behalf of their private or public entities, were registered as "pioneer investors".151 The
four western consortia that were eligible, did not apply for registration.
Under the Convention, the 'Enterprise' is an independent commercial mining arm of the
International Seabed Authority, but under the 1994 Agreement, the 'Enterprise' has a
considerably reduced role. Initially it can only engage in joint ventures but if it does not
undertake the mining of a reserved site within fifteen years, the original applicant may do
so. However, if it decides not to mine the site, the original applicant will be offered the
chance to participate in the joint venture. The 'Enterprise' has yet to be established as an
entity and will only be established once the seabed mining becomes commercially
feasible. In the meantime, the Authority has entered into seven contracts with pioneer
investors, including a range of governments, government entities and commercial
consortia, whose activities are largely focused on exploration and research presently for a
period of 15 years152.The Authority, which meets for just two sessions a year, is
currently engaged in drafting regulations on polymetallic sulphides and cobalt rich crusts
and in the formulation of the Central Data Repository. 153
_________________
149 According to this criterion, the number of pioneer investors was confined to eight,
plus an unspecified number from developing States. They were grouped into three. The
first group comprised of France, Japan, India and the USSR (now Russia), including their
State enterprises and corporations. The second consisted of four western consortia,
having the nationality of or controlled by the companies of any one or more of the
following: Belgium, Canada, France, Germany, Italy, Japan, the Netherlands and US. The
third group has developing countries or their private or public enterprises. To register as a
pioneer investor, a State must be a signatory to this Convention. While all the countries
from the first group were signatories, from the second group, only Japan, Canada, France
and the Netherlands had signed the Convention.
150 UN Chronicle, Vol. XIX, No. 6 (1982), pp. 9-120.
151 India was registered with the Preparatory Commission in 1987, as the first
"pioneer investor" by virtue of its investment which gave India an exclusive right to
explore an area of 1,50,000 square kilometers in the Indian ocean. India relinquished a
total of 50% allocated area by March 2002 - 20% in July 1994, 10% in October 1996, and
20% in March 2002. For the Preparatory Commission's decision of Aug. 17, 1987, see 28
IJIL 127 (1988). France, Japan and USSR were registered as "pioneer investors" in 1988,
in the North-Eastern Pacific Ocean.

152 See Malcolm D. Evans, The law of the Sea, in Malcolm D. Evans (Ed.)
'International Law, Ch. 21, at p. 646 (2nd ed. 2006 Oxford University Press)'.
153 See www.isa.org.jm

X. PROTECTION AND PRESERVATION OF THE MARIN

ENVIRONMENT154
The 1982 Convention has laid down elaborate provisions in Part XII on the protection
and preservation of the marine environment. With 46 Articles (Arts. 192-237), it is one of
the longest parts in the Convention, containing 11 sections and incorporates generally
agreed provisions on this aspect. The Convention declares that the States have the
obligation to protect and preserve the marine environment (Art. 192) while pursuing their
sovereign right to exploit their natural resources (Art. 193). States are under a duty to
prevent, reduce, and control pollution of marine environment individually and jointly at a
global, and, as appropriate, on regional levels (Arts. 194-201).
The Convention provides for detailed international rules and national legislation to
control pollution from land-based sources, seabed activities subject to national
jurisdiction, activities in the Area, the adoption by States of laws and regulations to
prevent, minimise and control pollution from vessels, and pollution from or through the
atmosphere (Arts. 207-212). The laws and regulations of a State must meet the generally
accepted international standards in the case of its own ships (Art. 211(2)). This has an
obvious reference to standards laid down by the then existing marine environment treaties
in the area of dumping at sea and vessel source pollution in particular. The 1958 High
Seas Convention also has two provisions (Arts. 24 and 25) with the similar object of
prevention of pollution of the seas. Article 24 imposes a duty upon a State to draw up
"regulations to prevent pollution by the discharge of oil from ships or pipelines or
resulting from the exploitation and exploration of the seabed and its sub-soil, taking into
account of existing treaty provisions on the subject". Article 25 deals with the prevention
of pollution of seas from the dumping of radioactive waste by States. They must take into
account international standards and regulations framed by competent international
organisation in this regard.
The "existing treaty provisions" in Art. 24 of the 1958 Convention and "generally
accepted international standards" in Art. 211(2) of the 1982 Convention have reference to
international conventions to prevent pollution from oil spillage in the sea and other
sources of pollution of the sea. This has clearly a reference to the 1954 International
Convention for the Prevention of Pollution of the Sea by Oil, and two other conventions
adopted at Brussels after the massive oil spillage from Liberian Tanker Torry Canyon in
1967, to deal with oil pollution causalities of Torry Canyon genre: the International
Convention relating to Intervention on the High Seas in cases of Oil Pollution Casualties
(referred to as the Intervention Convention) and the International Convention on Civil
Liability for Oil Pollution Damage (referred to as the Liability Convention).155 There are
numerous other relevant multilateral conventions on marine environment,
_________________
154 See J. Barros and D.M. Johnston, The International Law of Pollution (Macmillan,
London), 1974, pp.200-293; D.M. Johnston (Ed.), The Environmental Law of the Sea
(1981); J.W. Kindt, Marine Pollution and the Law of the Sea (1986), R. Soni, Control of
Marine Pollution in International Law (1985); R.A. Malviya, Environmental Pollution
and its Control under International Law (Chugh Publications), 1987.

155 The Intervention Convention was of limited scope, giving certain rights to States
parties to take certain defensive measures against pollution or threatened pollution only
by oil. The Liability Convention applied to pollutants and hazardous or injurious products
other than oil, which may cause injury and harm to humans and marine resources,
damage to amenities and interference with the use of the sea. It was subsequently
supplemented by a Protocol relating to Intervention on the High Seas in Cases of Marine
Pollution by Substances other than Oil, 1973.

viz., (i) Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships
and Aircraft, 1972, confined to North Sea and North East Atlantic;156 (ii) London
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other
Matter, 1972;157 (iii) International Convention for the Prevention of Pollution from
Ships, 1973; (iv) Paris Convention for the Prevention of Pollution from Land-based
Sources, 1974 (related to pollution of the sea from rivers, etc.);158 (v) the Convention for
the Protection of the Mediterranean Sea against Pollution, 1976.159
The 1978 case of Amoco Cadiz, a Liberian registered tanker owned by a United States
company, which was wrecked on the Brittany coast and lost most of its 230,000 tons of
cargo of crude oil, greatly influenced the provisions on marine pollution in the 1982
Convention. The 1982 Convention takes into account the rules, regulations and standards
set in other conventions to protect the marine environment, but the provisions of the 1982
Convention are without prejudice to the special obligations of States under those
conventions (Art. 237). The 1982 Convention is not confined only to pollution caused
from land-based sources or activities in the sea or dumping of wastes, but has extended to
pollution from or through the atmosphere. According to the source of pollution, States are
under a duty to enforce anti-pollution or anti-dumping regulations (Arts. 213-222).
Responsibility has been fixed upon States for the fulfilment of their international
obligations as to the marine environment. They shall be liable, in accordance with
international law, for the non-fulfilment of their responsibility. Further, States are to
ensure that their legal systems provide prompt and adequate remedies for damage caused
by pollution of the marine environment by persons under their jurisdiction (Art. 235).
_________________
156 11 ILM 262 (1972).
157 11 ILM 1291 (1972).
158 13 ILM 352 (1974).
159 15 ILM 290 (1976).

Page 426
CHAPTER 15
International Criminal Law
International criminal law is a body of international law designed to prohibit certain
categories of conduct commonly viewed as serious and to make perpetrators of such
conduct criminally accountable for their perpetration by States. States are under
obligation to prosecute and punish perpetrators of some of those crimes. International
criminal law also regulates international proceedings for prosecuting persons accused of
such crimes. Principally, it deals with genocide, war crimes, crimes against humanity,
and war of aggression. International law provides with set of rules indicating what acts
amount to international crimes and the procedural rules governing the prosecution of
persons accused of such crimes.1
Even though criminal law generally deals with prohibitions addressed to individuals and
penal sanctions for violation of those prohibitions imposed by individual States, but in
contrast to municipal law, international criminal law comprises elements of both in that
although its sources are those of international law, its consequences are penal sanctions
imposed on individuals. International criminal law has emanated from sources of public
international law, like treaties, customs and general principles of law recognised by
nations, etc. Hence, it is governed by the same rules of interpretation as of other
principles of international law.
A. History
International criminal law is a relatively new branch of international law. Classical
international law did not focus much attention on international crimes as individuals were
considered as objects of international law rather than its subjects. Individuals were not
endowed with any rights or duties with the exception of piracy under international law,
which could be punished by any State under its municipal law. Nevertheless, some
precedents in international criminal law can be found before the First World War, where
the trials were held in specially constituted tribunals. During the nineteenth century and
before the First World War, only war crimes were punishable for which the vanquished
State was held guilty. However, it was only after the War that a truly international
criminal tribunal was envisaged to try perpetrators of crimes
_________________
1 See, generally, Antonio Cassese, International Criminal Law (Oxford University Press,
Oxford), 2003; Gabrielle Kirk-McDonald, and Olivia Swaak-Goldman, (Eds.),
Substantive and Procedural Aspects of International Criminal Law (Kluwer, The Hague),
2000; G. Robertson, Crimes against humanity - The Struggle for Global Justice (Penguin
Books, London), 2000; Y. Dinstein, International Criminal law (1975) 5 Israel YbHR 55-
87.

Page 427 INTERNATIONAL CRIMINAL LAW
committed during War. The Treaty of Versailles concluded after the First World War
contained certain provisions on the subject (Arts. 227-230), according to which the Head
of State and armed personnel could be tried for launching an aggressive war. Defence of
superior orders was not available. After the Second World War, revolutionary changes
came in this area when Allied powers set up two International Military Tribunals at
Nuremberg and Tokyo in 1945 and 1946 respectively to try war criminals not only for
war crimes, but crimes against humanity, crimes against peace and conspiracy to commit
these crimes. The trials of perpetrators of these crimes not only helped in enunciating
clear principles on the subject, but added new categories of crimes.2
This was further expanded in 1948 by the Genocide Convention. The four Geneva
Conventions and the two Additional Protocols to these Conventions also enlist "grave
breaches" of these Conventions, which, if committed, are regarded as war crimes The
conclusion of numerous other treaties such as the 1963 Tokyo Convention on Offences
and Certain Other Acts Committed on Board Aircraft; 1970 Convention for the
Suppression of Unlawful Seizure of Aircraft; 1973 Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation; 1973 Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons, including
Diplomatic Agents; 1994 Convention on the Safety of United Nations and Associated
Personnel, etc. have made aircraft hijacking, unlawful acts against the safety of civil
aviation, trafficking in women, children, narcotic drugs, counterfeiting of currency,
kidnapping of diplomats and taking of hostages as international crimes. The most recent
addition to this increasing list of international crimes is international terrorism. But in the
absence of any judicial tribunal to try the perpetrators of these crimes left the matter to
the States concerned to prosecute and punish them, which did not see any uniformity in
the substantive and procedural rules in this regard and also with no guarantee of their
prosecution. Moreover, these treaties focus upon prohibiting certain acts, rather than the
consequences of these crimes and the procedure for conviction.
Following on the judgments of the International Military Tribunals after the Second
World War, in pursuance of the General Assembly resolution, the International Law
Commission (ILC), in 1950, formulated a Draft Code of Principles Recognised in the
Charter of the Tribunals and the Judgments of the Tribunal.3 The Code made reference to
"persons" as guilty of crimes against the peace and security of mankind, to prevent guilty
individuals sheltering behind the abstract entity of State. In 1954, the General Assembly
adopted a Draft Code of Offences against the Peace and Security of Mankind, embodying
the principles of the Nuremberg trial.4 In 1967, the General Assembly adopted a
Declaration on Territorial Asylum asking States not to grant asylum to persons against
whom serious charges of committing war crimes exist.5 Again, in November 1967, the
General Assembly adopted an important Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes against Humanity, which paved the way
_________________
2 For more on these Tribunals, see Ch. 17 infra.
3 GA Res. 177 (II).

4 The work on the said Draft stopped in 1954, which could be re-started only in
1988. The International Law Commission work ultimately led to the adoption of the
Statute of Rome, establishing the International Criminal Court (ICC) in 2001.
5 GA Res. 2312 (XXII) of Dec. 4, 1967.

for the trial of war criminals who could not be tried earlier. In 1996, the ILC adopted
twenty draft articles constituting a Code of Crimes against the Peace and Security of
Mankind.6 The Code is related to the responsibility of individuals for the relevant
crimes.7
These developments together helped in creating substantive law related to some
categories of crimes, such as war crimes, crimes against humanity, though the procedural
aspects are still in the process of development, viz., the objective and subjective elements
of the crime, the actus reus and mens rea. Furthermore, international rules developed so
far do not lay down any scale of penalties.8 This is partly attributable to the fact that
under most of the treaties, prosecution and punishment of the perpetrators of these crimes
has been left to the national courts of a State.
The 1990's saw the establishment of international criminal tribunals. In 1993, the UN
Security Council established the International Criminal Tribunal for the Former
Yugoslavia (ICTY)9 and thereafter the International Criminal Tribunal for Rwanda
(ICTR) in 1994.10 These are the most important ad hoc tribunals created to try the
perpetrators of crimes, followed by the establishment of the International Criminal Court
(ICC), a permanent institution created under the Rome Statute adopted in 1998. The ICC
is a permanent tribunal to prosecute individuals for genocide, crimes against humanity,
war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction
over the crime of aggression). The need for a separate court arose out of the fact that the
International Court of Justice does not have the competence to try individuals.'' Other
notable ad hoc tribunals with both national and international judges that have also been
created during this time are: Special Court for Sierra Leone,12 (investigating the crimes
committed during the Sierra Leone Civil War); Extraordinary Chambers in the Courts of
Cambodia,13 (investigating the crimes of the Red Khmer era); and the Special Tribunal
for Lebanon, (investigating the assassination of Rafik Hariri).14
B. Sources
International criminal law is a subset of international law. As such, its sources are the
same as those that comprise international law. The classical enumeration of those sources
is in Article
_________________
6 YbILC, Vol. II (pt. ii), 15-56.
7 The draft articles have become redundant in the light of the adoption of the Rome
Statute in 1998.
8 See A. Cassese, International Criminal law, in Malcolm D. Evans (Ed.)
International Law, 2nd ed. (Oxford University Press) 2006, 719, at 720.
9 SC Res. 827, 25 May 1993.
10 SC Res. 955, 8 Nov. 1994.
11 Art. 34(1) of the Statute of the ICJ reads, "Only states may be parties in cases
before the Court."
12 SC Res. 1315, 10 Aug. 2000. On 16 January 2002, the UN and Government of
Sierra Leone signed an
agreement establishing the Court.

13 GA Res. A/RES/57/228B, 22 May 2003, http://unakrt-

online.org/Docs/GA%20Documents/A-Res-57-228B.pdf.
On the request of the Prime Minister of Cambodia, a lengthy negotiations between the
Royal Government of Cambodia and the United Nations led to an agreement, signed on 6
June 2003, which was later endorsed by the General Assembly.
14 The court was established by an agreement between the United Nations and the
Lebanese Republic; see SC Res. 1664, 29 March 2006. The UN Security Council, acting
under Chapter VII of the Charter endorsed the agreement on 30 May 2007, SC Res. 1757,
30 May 2007.

38(1) of the 1946 Statute of the International Court of Justice and comprises: treaties,
customary international law, general principles of law; and as a subsidiary measures
judicial decisions and the most highly qualified juristic writings. The ICC Statute
contains an analogous, though not identical, set of sources that the ICC may rely on.15
There is, however, a strong interface between the international human rights law and
national criminal law. Whereas the international human rights law is based on
international treaties and conventions and the law as developed by the regional and
municipal courts in laying down the criminal law norms pertaining to the fundamental
rights of suspects and accused persons, rights of the victims and witnesses and the
requirements of a fair trial, the municipal law has contributed towards the content of
international crimes and the procedure for the trial of these crimes. Together, they have
helped in evolving a body of international criminal law.
II. INTERNATIONAL CRIMINAL TRIBUNALS

Although the end of the Second World War for the first time saw the constitution of two
International Military Tribunals at Nuremberg and Tokyo by the Allied Powers, primarily
to try war related crimes, but it is the end of Cold War in the 1990's that saw the
establishment of international criminal tribunals to deal with crimes that resulted mainly
from internal armed conflicts. These conflicts, fed on nationalism and fundamentalism,
saw the disintegration of multi-ethnic societies with serious violations of international
humanitarian law and basic human rights on a large scale. With a serious sense of
protecting human dignity and to punish those assaulting such dignity the international
community tried to seek for international criminal justice by establishing international
institution with authority to prosecute and punish those involved in serious violations of
international humanitarian law. The process started first with the establishment of ad hoc
tribunals followed by the permanent International Criminal Court.
A. Establishment of ad hoc Tribunals for Former Yugoslavia and Rwanda

In 1991 civil war erupted in the Socialist Federal Republic of Yugoslavia (SFRY), which
led to the wide scale of killings of the civilians, systematic detention and rape of women
and 'ethnic cleansing' resorted by different groups in the six republics of Yugoslavia,
particularly, in Bosnia-Herzegovina. Alarmed at the scale of violations of international
humanitarian law, the UN Security Council determined that the situation continued to
pose a threat to international peace and security. To ensure that these atrocities against
civilians are halted and effectively redressed, the Security Council, acting under Chapter
VII of the Charter, in May 1993, established the first International Criminal Tribunal for
the former Yugoslavia.16 The Tribunal was empowered to exercise jurisdiction over
grave breaches of the Geneva Conventions, violations of the laws and customs of war,
genocide, and crimes against humanity allegedly perpetrated in the former Yugoslavia
since January 1991. The tribunal is located in The Hague, the Netherlands.
_________________
15 Art. 21, Rome Statute.
16 SC Res. 827, 25 May 1993.

The key objective of the ICTY is to try those individuals most responsible for appalling
acts such as murder, torture, rape, enslavement, destruction of property and other crimes
listed in the Tribunal's Statute. By bringing perpetrators to trial, the ICTY aims to deter
future crimes and render justice to thousands of victims and their families, thus
contributing to a lasting peace in the former Yugoslavia. The Tribunal, since its first
hearing in the Tadic case on 8 November 1994, has indicted 161 individuals, and has
already completed proceedings with regard to 100 of them: five have been acquitted, 48
sentenced (seven are awaiting transfer, 24 have been transferred, 16 have served their
term, and one died while serving his sentence), 11 have had their cases transferred to
local courts. Another 36 cases have been terminated, either because indictments were
withdrawn or because the accused died, before or after transfer to the Tribunal.17 Those
indicted included common soldiers, generals, police commanders, head of the State and
head of government (Prime Minister. Slobodan Milosevic was the first sitting head of
State indicted for war crimes).18
The Tribunal has been criticised, among others, for the following reasons: (a) the
Tribunal manifest the failure of the Security Council and the Great powers to find a swift
and viable solution to the conflict, reflecting on the failure of diplomacy and politics, it is
alleged to be created with a specialised political campaign to destabilize the multi-ethnic
State of Yugoslavia, with the aim of bringing about "regime change' in Serbia, (b) There
was no indictments of NATO officials (guilty of attacks on Serbia in 1999) - even though
the ICTY indicted and convicted individuals from every nation involved in the Yugoslav
Wars- which amounted to selective justice, and relatedly, the Tribunal manifested anti-
Serb bias, as 68% those tried were Serbians, (c) The Tribunal has awarded too mild
sentences, (d) Some of the defendants, such as Slobodan Milosevic, claimed that the
Court has no legal authority because it was established by the UN Security Council
instead of the UN General Assembly, therefore it had not been created on a broad
international basis. The Tribunal was established on the basis of Chapter VII of the
United Nations Charter; the relevant portion of which reads "the Security Council can
take measures to maintain or restore international peace and security", and here the
dispute was internal; in other words, it was ultra vires of the Charter. The Tribunal has
been claimed to be anti-democratic and in violation of national sovereignty and formed
part of coercive order created by the Security Council, (e) There has also been failure to
provide a complete separation of the prosecutorial and judicial work. Two key indictees,
Ratko Mladic and Goran Hadzic have been charged but are still not apprehended, which
reflects badly on its image. These criticisms, however, are not supported by the
deliberations and the judgements rendered by the Tribunal.
Closely on the heels of ICTY, the Security Council, acting under Chapter VII of the UN
Charter, established the International Criminal Court for Rwanda (ICTR). The Tribunal
___________________
17 As of November 2008, there were eight ongoing trials and four cases were in the
pre-trial stage. Ten further cases are at the appeals stage and two accused, Ratko Mladic
and Goran Hadzic, are still at large. On 21 July 2010, the cases of UCK (Kosovo
Liberation Army) commanders Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj were
re-opened for re-trial. See www.icty.org/action/cases/4

18 en.wikipedia.org/.../International_Criminal_Tribunal_for_the_former_Yugoslavia

was established in the background of civil war in Rwanda between Tutzi and Hotu tribes
that started in 1991 and in which the death toll has been estimated to be of 800,000. The
ICTR was called upon to adjudicate crime of genocide, crimes against humanity,
violations of Art. 3 common to the Geneva Conventions and of the II Additional Protocol
to these Conventions, allegedly perpetrated in Rwanda or by Rwandan citizens in the
territory of nearby States, between 1 January and 31 December 1994. The Resolution
defined the acts amounting to genocide (annexed to the Resolution) and made the
following acts as punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct
or public incitement to commit genocide; (d) attempt to commit genocide; and (e)
complicity in genocide. Art. 1 of the Statute of the ICTR provides that the ICTR 'shall
have the power to prosecute persons responsible for serious violations of international
humanitarian law committed in the territory of neighbouring States, between 1 January
1994 to 31 December 1994, in accordance with the provisions of the present Statute. The
Tribunal is consisted of a Chamber, two trial chambers and an Appellate Chamber; the
Prosecutor; and the Registry.
At the end of April, 2011, the ICTR has indicted 92 individuals. One case is in the
pretrial stage, 20 individuals are currently on trial, nine are appealing their sentences, and
eight have been acquitted and released from detention. Proceedings against four
individuals were terminated after two died and indictments against two were withdrawn.
Additionally, the cases of two accused were transferred to national jurisdictions. The
Tribunal has finished proceedings against 28 accused who are currently serving prison
sentences and seven have finished their sentences and have been released. Ten accused
remain at large as fugitives.
Through several resolutions, the Security Council called on both the Tribunals to
complete their investigations by the end of 2004, complete all trial activities by the end of
2008, and complete all work in 2012. According to the ICTR's Completion Strategy, in
accordance with Security Council Resolution 1503,19 all first-instance cases were to
have completed trial by the end of 2008 and all work is to be completed by 2010.20 But it
is feared that the work of the ICTR may not be complete by then. On the other hand, the
last indictment by the ICTY was issued on 15 March 2004. The Tribunal aims to
complete all trials by the middle of 2011 and all appeals by 2013, with the exception of
Radovan Karadzic whose trial is expected to end in 2012 and the appeal to be heard by
February 2014.
Although both the Tribunals have been created under separate Statutes, but they share a
common Prosecutor and a common Appellate Chamber, which demonstrates the need to
ensure some uniformity in the administration of international criminal justice. Compared
to the magnitude of the crimes, the number of cases handled by the two tribunals and the
convictions handed-down are not very impressive, but the range of crimes, viz., war
crimes, genocide and crimes against humanity have helped in creating some relevant
jurisprudence in this regard, particularly, for the newly created International Criminal
Court.
___________________
19 SC Res. 1503, 29 July 2008. The date was later extended to the end of 2009.

20 SC Res. 1534, 26 March 2004, the Council called on the ICTY and ICTR to
complete all trial activities by the end of 2008.

B. International Criminal Court (ICC)21

1. Creation of the Court
The early attempts to establish an international criminal court started by the Committee
of Jurists in 1920 to try crimes against international public order and the universal law of
nations. The League of Nations drafted a Convention for the Establishment of an
International Criminal Court in 1937 (along with the Convention on the Prevention and
Punishment of Terrorism), consisting of five judges and five deputies to be elected by the
Permanent Court of International Justice. The Convention could not come into force due
to lack of ratifications, hence the attempt to establish the Court failed.
After the coming into force of the United Nations, on the request of the General
Assembly, the International Law Commission (ILC) drafted two statutes by the early
1950s and concluded that the establishment of the court was both desirable and possible.
In 1950, the General assembly created a Committee on International Criminal
Jurisdiction (the Geneva Committee) to prepare a draft. The report and the draft statute of
the Court were discussed by the General assembly in its seventh session but no decision
was taken and once again a new Committee of seventeen members was created. The
Committee prepared a draft statute of the Court, which would be consisted of nine judges
elected by the parties to the Statute from a list prepared by the Secretary-General. The
Court would apply international law and where appropriate the national law. The report
of the Committee along with the draft Statute were sent to the States for their comments,
but few responded. In 1952, again a new Committee consisting of seventeen members
was assigned the task and its report was placed before the General Assembly in 1954. But
the Cold War conditions made the establishment of an international criminal court
politically unrealistic,22 and the matter was finally postponed by the General Assembly
in 1957. Along with this, in 1954, the ILC adopted a draft Code of Offences against the
Peace and Security of Mankind, but it was never incorporated in a treaty, and the 1974
definition of aggression by the General Assembly in Resolution 3314 (XXIX) was widely
seen as insufficient for determining individual criminal responsibility. The ILC resumed
work on the draft code in the 1980s, but did not complete its work on a Draft Code of
Crimes against the Peace and Security of Mankind (1996 Draft Code of Crimes) until
1996.23
The idea to establish a court again revived in 1989, when the General Assembly
requested the ILC, at the proposal of the then Prime Minister of Trinidad and Tobago to
deal with the illegal drug trade, to address the issue of establishing an international
criminal court.24 In 1992 and again in 1993, the General Assembly requested the
Commission to elaborate draft for such
___________________
21 On the ICC, see A. Cassese, International Criminal Law (Oxford University
Press: Oxford) 2003; Cassese, P. Gaeta and JRHJ Jones ed., The Rome Statute of the
International Criminal Court (Oxford University Press) 2002; Lee, ed., International
Criminal Court (2000); W. Schabas, An Introduction to the International Criminal Court
2nd ed. (Cambridge University Press: Cambridge) 2005; Triffterer ed., Commentary on
the Rome Statute of the International Criminal Court (1999).

22 Gary T. Dempsey, Reasonable Doubt: The Case Against the Proposed

International Criminal Court, Cato Institute (16 July 1998), www.cato.org/pub
display.php?pub_id=l 170
23 See op. cit. 6 & 7 above.
24 GA Res. 44/39, 4 Dec. 1989.

a court as a matter of priority.25 This urgency arose partly because of the developments
in former Yugoslavia and Rwanda for which the Security Council established ad hoc
tribunals to try war crimes and crime of genocide in 1993 and 1994, which further
highlighted the need for a permanent international criminal court with global jurisdiction.
The Commission completed a comprehensive draft statute in 1994 and submitted it to the
General Assembly, which constituted an ad hoc committee consisting of all members to
review the administrative and substantive issues arising out of the draft Statute. This was
followed by the establishment of the Preparatory Committee on the Establishment of an
International Criminal Court (PrepCom).26 The Committee held a series of meetings in
1996 and 1997, and prepared the draft convention on the establishment of the
international criminal court which it submitted to the Diplomatic Conference of
Plenipotentiary held in Rome from 15 June-17 July 1998. This resulted into the adoption
of the Rome Statute on the International Criminal Court.27 India abstained in the vote
and has since neither ratified nor signed the Rome Statute. It has consistently opposed the
constitution of the Court, objecting to the broad definition adopted of crimes against
humanity; right given to the Security Council to refer cases, delay investigations and to
bind non-State Parties; and the use of nuclear weapons or other weapons of mass
destruction not being explicitly outlawed. Other anxieties of India about the Court are:
how the principle of complementarity would be applied to the Indian criminal justice
system; the inclusion of non-international conflicts (as Kashmir and other disputes within
India) in the category of war crimes; and the power of the prosecutor to initiate
prosecutions.28
The Rome Statute became a binding treaty on 11 April 2002, when the number of
countries that had ratified it reached sixty. The Statute came into force on 1 July 2002
and its first judges were elected in February 2003. The ICC can only prosecute crimes
committed after that date. The Court's official seat is in The Hague, the Netherlands, but
its proceedings may take place anywhere.29 Currently there are 114 States parties to the
Court.30 The Statute consists of 128 Articles divided into 13 parts besides the Preamble.
Art. 1 declares that an International Criminal Court ("the Court") is hereby established. It
shall be a permanent institution and shall have the power to exercise its jurisdiction over
persons for the most serious crimes of international concern. The Court shall be
complementary to national criminal jurisdictions. The ICC issued its first arrest warrants
in 2005.31
___________________
25 See GA Res. 47/33, 25 Nov. 1992 and Res. 48/31, 9 Dec. 1993.
26 GA Res. 50/46, 11 Dec. 1995.
27 Statute was adopted by 120 to seven (USA, Libya, Israel, Iraq, China, Sudan and
Syria) with 20 abstentions.
28 Usha Ramanathan, India and the ICC, 3 Journal of International Criminal Law,
627-634 (2005). India expressed concern that the Statute of the ICC lays down, by clear
implication, that the use of weapons of mass destruction is not a war crime.
30 This includes all of Europe and Latin America and roughly half the countries in
Africa. A further 34 countries, including Russia, have signed but not ratified the Rome

Statute, out of which Israel, Sudan and the United States have "unsigned" the Rome
Statute. 45 States have neither signed nor ratified the Rome Statute; some of them,
including China and India, are considered by some to be critical to the success of the
Court.
31 As of March 2011, the Court has indicted 23 persons; proceedings are going on
against 21 out of which 8 remain fugitives (one is presumed dead), 5 are in custody, 2
have appeared and six are expected to appear voluntarily before the Court.

2. Organisation of the ICC

Art. 36 of the Rome Statute of the Court outlines the qualifications and procedure of
election of the judges of the Court. The ICC consists of 18 judges. The number may be
increased on a proposal of the Presidency, indicating the reasons for the increase. Judges
shall be chosen from among persons of high moral character, impartiality and integrity
who possess the qualifications required in their respective States for appointment to the
highest judicial offices. Every candidate for election to the Court should have the proven
competence in criminal law and procedure, and the necessary relevant experience,
whether as judge, prosecutor, advocate or in other similar capacity, in criminal
proceedings; or proven competence in relevant areas of international law such as
international humanitarian law and the law of human rights, and extensive experience in a
professional legal capacity which is of relevance to the judicial work of the Court; and
the candidate should have an excellent knowledge of and be fluent in at least one of the
working languages of the Court. Nominations of candidates for election to the Court may
be made by any State Party to the Statute.
The judges shall be elected by secret ballot at a meeting of the Assembly of States parties
convened for this purpose. No two judges shall be nationals of the same State. In the
selection of judges, the States Parties shall take into account the need for (i) the
representation of the principal legal systems of the world; (ii) equitable geographical
representation; and (iii) a fair representation of female and male judges.32 Judges shall
hold office for a term of nine years and shall not be eligible for re-election. In the event
of a vacancy, an election shall be held and an elected judge shall serve for the remainder
of the predecessor's term and if that period is three years or less then he/she shall be
eligible for re-election for a full term (Art. 37). A judge is independent in the
performance of his functions. A judge shall not participate in any case in which his or her
impartiality might reasonably be doubted on any ground. A judge shall be disqualified
from a case if that judge has previously been involved in any capacity in that case before
the Court or in a related criminal case at the national level involving the person being
investigated or prosecuted. A judge shall also be disqualified on such other grounds as
may be provided for in the Rules of procedure and evidence (Art. 41).
3. Composition of the ICC

The Court is composed of the following organs: (a) the Presidency; (b) an Appeals
Division, a Trial Division and a Pre-Trial Division; (c) the Office of the Prosecutor; and
(d) the Registry. (Art. 34). The President, together with the First and Second Vice-
Presidents, constitute the Presidency, which shall be responsible for: (a) the proper
administration of the Court, with the exception of the Office of the Prosecutor; and (b)
the other functions conferred upon it in accordance with this Statute. In discharging this
responsibility, the Presidency shall coordinate with and seek the concurrence of the
Prosecutor on all matters of mutual concern. The President and the First and Second
Vice-Presidents shall be elected by an absolute majority of the judges. They shall each
serve for a term of three years or until the end of
___________________
32 At the time of ICC's inauguration in March 2003, it had 11 male and 7 female judges.

their respective terms of office as judges, whichever expires earlier. They shall be eligible
for re-election once.33
a. Chambers
The Court is organised into three Divisions: (a) the Appeals Division which is composed
of the President and four other judges, (b) the Trial Division of not less than six judges
and (c) the Pre-Trial Division of not less than six judges. The assignment of judges to
divisions shall be based on the nature of the functions to be performed by each division
and the qualifications and experience of the judges elected to the Court in such a way that
each division shall contain an appropriate combination of expertise in criminal law and
procedure and in international law. The Trial and Pre-Trial Divisions shall be composed
predominantly of judges with criminal trial experience. The judicial functions of the
Court are to be carried out in each division by Chambers. The Appeals Chamber shall be
composed of all the judges of the Appeals Division. The functions of the Trial Chamber
shall be carried out by three judges of the Trial Division. The functions of the Pre-Trial
Chamber shall be carried out either by three judges of the Pre-Trial Division or by a
single judge of that division in accordance with the Rome Statute and the Rules of
Procedure and Evidence. Judges assigned to the Trial and Pre-Trial Divisions serve in
those divisions for a period of three years and thereafter until the completion of any case
the hearing of which had already commenced in the division concerned (Art. 39).
b. The Office of the Prosecutor

The Office is headed by the Prosecutor, which is responsible for receiving referrals and
any substantiated information on crimes within the jurisdiction of the Court, for
examining them and for conducting investigations and prosecutions before the Court. A
member of the Office will not seek or act on instructions from any external source. The
Prosecutor has full authority over the management and administration of the Office,
including the staff, facilities and other resources thereof. The Prosecutor is to be assisted
by one or more Deputy Prosecutors, who will be entitled to carry out any of the acts
required of the Prosecutor under the Statute. The Prosecutor and the Deputy Prosecutors
have to be of different nationalities and persons of high moral character with an extensive
experience in the prosecution or trial of criminal cases. They are elected through secret
ballot by an absolute majority of the Assembly of States parties. They serve on a full-time
basis. The functions of prosecutor are defined in Art. 42.
c. The Registry
The Registry of the Court is headed by a Registrar, who is the principal administrative
officer of the Court. The Registrar exercises his or her functions under the authority of
the President of the Court. The Registry is responsible for the non-judicial aspects of the
administration and servicing of the Court. The Registrar is elected by the judges by
absolute majority through secret ballot, taking into account any recommendation by the
Assembly of States parties. If the need
___________________

arises and upon the recommendation of the Registrar, a Deputy Registrar can be elected
in the same manner by the judges. The term of office of the Registrar is five years, and he
is eligible for re-election once and serves on a full-time basis (Art. 43).
4. Jurisdiction of the ICC

The ICC has been created with an avid aim that the most serious crimes of concern to the
international community as a whole must not go unpunished (Preamble, para 4), which
according to Art. 5 (1) of the Statute are: the crime of genocide; crimes against humanity;
war crimes; and the crime of aggression. Whereas the Statute defines the other crimes,
the ICC will exercise jurisdiction over the crime of aggression after it has been defined
by the Review Conference to amend the Statute under Arts. 121 and 123.34 A Review
Conference held in Kampala from 31 May and 11 June 2010 has adopted by consensus
amendments to the Rome Statute which include a definition of the crime of aggression
and a regime establishing how the Court will exercise its jurisdiction over this crime.35
Article 8bis of the Definition adopted at Kampala, defines the crime of aggression, as
"the planning, preparation, initiation or execution, by a person in a position effectively to
exercise control over or to direct the political or military action which, by its character,
gravity and scale, constitutes a manifest violation of the Charter of the United Nations."
Thus, the crime of aggression has the following essential: (a) a leadership crime; (b)
flowing from an act of aggression; and (c) subject to U.N. Charter constraints. The
definition furthermore follows the "differentiated approach" whereby the means of
perpetration and the element of mens rea are not included in the definition but are dealt
with separately in other sections of the ICC Statute (Articles 25(3) and 30, respectively).
By virtue of the fact that aggression is a leadership crime, perpetration as an accessory
(Article 25(3) (c)), attempt to commit the crime (Article 25(3) (d)), and vicarious liability
for a crime committed by others (Article 28), will not be feasible in cases of
aggression.36 An act of aggression is defined as the use of armed force by one State
against another State without the justification of self-defence or authorisation by the
Security Council. The definition of the act of aggression, as well as the actions qualifying
as acts of aggression contained in the amendments (for example, invasion by armed
forces, bombardment and blockade), are influenced by the UN General Assembly
Resolution 3314 (XXIX) of 14 December 1974 on the definition of Aggression.37
Conditions under which the jurisdiction of the ICC in the crime of aggression can be
invoked have been stated in Art. 15ter and Art. 15bis, which establish a unique
jurisdictional regime. In the case of Security Council referrals (Art. 15ter), the Prosecutor
may proceed
_____________________
34 During the Review Conference of the ICC Statute in Kampala, two amendments
to the Rome Statute were adopted on June 10 and June 11, 2010. The second amendment
concerns the definition of the crime of aggression. See Resolution RC/Res.6, 11 June
2010, available at http://treaties.un.org
35 Review Conference expanded the term of war crimes for the use of certain
weapons in an armed conflict not of an international character.

36 See Johan D. van der Vyver, Prosecuting the Crime of Aggression in the
International Criminal Court, U. Miami Nat'l Security & Armed Conflict L. Rev., Vol. 1,
2010-2011
37 See Ch. 17 infra.

with an investigation into the commission of the crime of aggression without any further
requirement. In 'situations' where investigations are triggered by State Party referrals or
by the Prosecutor acting proprio motu (Art. 15bis), the Prosecutor must first establish
whether the Security Council has made a determination of an act of aggression (under
Art. 39 of the UN Charter). If it has, the Prosecutor may proceed with the investigation; if
it has not done so within a period of six months after having been notified by the
Prosecutor, a Pre-Trial Chamber of the ICC may authorise the investigation to proceed.
In both instances, however, a determination of an act of aggression by the Security
Council is not binding to the ICC's own finding in this regard.
In the case of State Party referrals and investigations proprio motu, the crime of
aggression cannot be prosecuted in the ICC (a) if the State guilty of the act of aggression
is not a State Party to the ICC Statute, in which event the ICC cannot exercise its
jurisdiction over the crime of aggression committed by a national or on the territory on
the non-party State; or (b) if the State concerned, being a State Party, has lodged a prior
declaration to the Registrar of the ICC that it does not accept the jurisdiction of the ICC
over the crime of aggression (Art. 15bis). These constraints do not apply in the case of
Security Council referrals, irrespective of whether the State concerned has accepted the
Court's jurisdiction in this regard.38
The amendments to the ICC Statute approved by the Review Conference will enter into
force following ratification of the amendments by thirty States Parties. Furthermore, the
Court shall exercise jurisdiction over the crime of aggression in accordance with Article
15bis and 15ter, subject to a decision to be taken after 1 January 2017 by the same
majority of States Parties as is required for the adoption of an amendment to the ICC
Statute.39
The definition of genocide as stated in Art. 6 of the Statute is similar to Art. 2 of the 1948
Genocide Convention. The Genocide Convention has been rarely invoked or enforced at
the international level. In 1993, for the first time the case was brought before the ICJ by
Bosnia and Herzegovina against Yugoslavia.40 Under the Statute, "genocide" means any
of the following acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing
serious bodily or mental harm to members of the group; (c) deliberately inflicting on the
group conditions of life calculated to bring about its physical destruction in whole or in
part; (d) imposing measures intended to prevent births within the group; and (e) forcibly
transferring children of the group to another group.
"Crimes against humanity" are committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack and include the
following acts: (a) murder; (b) extermination; (c) enslavement; (d) deportation or forcible
transfer of population; (e) imprisonment or other severe deprivation of physical liberty in
violation of
_____________________
38 Acting under Chapter VII of the UN Charter, the Security Council has referred the
ongoing violent repression of civilians in Libya to the ICC, vide its Res. 1970 of 26
February 2011, even though Libya is not a party to the Rome Statute, considering the
repression of civilians as crimes against humanity.

39 www.iccnow.org/?mod=aggression, visited on May 4, 2011.

40 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide, Provisional Measures, Order of 8 April 1993, (1993) ICJ Rep. p. 3. See also
Preliminary Objections, Judgement, (1996) ICJ Rep., p. 595.

fundamental rules of international law; (f) torture; (g) rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of sexual
violences of comparable gravity; (h) persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural, religious, gender grounds that
are universally recognised as impermissible under international law; (i) enforced
disappearance of persons; (j) the crime of apartheid; (k) other inhumane acts of a similar
character intentionally causing great suffering, or serious injury to body or to mental or
physical health (Art. 7(1)).
The Court has the jurisdiction in respect of "war crimes" in particular when committed as
part of a plan or policy or as part of a large-scale commission of such crimes. They relate
to acts committed in violation of humanitarian law. They constitute the grave breaches of
the Geneva Conventions of 12 August 1949, if directed against persons or property
protected under the provisions of the relevant Geneva Convention (Art. 8).41 The
elements of these crimes must be consistent with the Statute and are to aid the Court in
interpreting definitions of crimes (Art. 9), and Rules of Procedure and Evidence, which
also must be consistent with the Statute (Art. 51).
The State that becomes a party to the Statute thereby accepts the jurisdiction of the Court
with respect to the above crimes. According to Art. 12(2), the Court may exercise
jurisdiction only in cases where (a) the alleged crime is committed on the territory of a
State party to the Statute, including on board a vessel or aircraft, the State of registration
of that vessel or aircraft; or (b) the State of which the person accused of the crime is a
national of a State party to the Statute. Thus, the Court can exercise jurisdiction over
nationals of a State which is not a party to the Statute. If the acceptance of a State which
is not a Party to this Statute is required under Art. 12(2), that State may, by declaration
lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to
the crime in question. However, exercise of jurisdiction is subject to other important
conditions, which try to balance out the interests of the State whose nationals are accused,
the State where the alleged offence has taken place, and the proper application of
international criminal law and justice.
There is the so-called 'trigger mechanisms' to invoke the jurisdiction of the Court.
According to Art. 13, the Court can exercise the jurisdiction falling within the scope of
the Statute only when the situation has been referred to the Prosecutor by (a) a State party
to the Statute; (b) by the Security Council acting under Chapter VII of the Charter of the
United Nations; or (c) the Prosecutor has himself/herself initiated an investigation in
respect of such a crime.42
_____________________
41 Art. 8 also deal with the standards applicable "in the case of an armed conflict not of
an international character" based upon Art. 3 common to the four Geneva Conventions,
see Art. 8(2) (c), (d), (e), and (f) of the Statute of the ICC.
42 So far, the Court has opened investigations into six situations, all of them in Africa:
Northern Uganda, the Democratic Republic of the Congo, the Central African Republic,
Darfur (Sudan), the Republic of Kenya and Libya. Out of these six, three were referred to
the Court by the States parties (Uganda, Democratic Republic of the Congo and Central
African Republic), two were referred by the United Nations Security Council (Darfur and

Libya) and only one (Kenya) began proprio motu by the Prosecutor. See,
en.wikipedia.org/wiki/International_Criminal_Court Most recently, on May 16, 2011
chief prosecutor Luis Moreno-Ocampo of the ICC has requested the Court to issue arrest
warrants for war crimes against Colonel Muammar Gaddafi, his son Saif al-Islam, and
the head of Libya's intelligence service, Abdullah al-Senussi.

The Court has jurisdiction only with respect to crimes committed after the entry into
force of the ICC Statute unless that State has made a declaration accepting the
jurisdiction in respect to the crime in question (Art. 11). The Court has jurisdiction only
over natural persons (Art. 25). A person who commits a crime within the jurisdiction of
the Court shall be individually responsible and liable for punishment under the Statute if
that person: (a) commits such a crime, whether as an individual, jointly with another or
through another person, regardless of whether that other person is criminally responsible;
(b) orders, solicits or induces the commission of such a crime which in fact occurs or is
attempted; (c) for the purpose of facilitating the commission of such a crime, aids, abets
or otherwise assists in its commission or its attempted commission, including providing
the means for its commission; (d) in any other way contributes to the commission or
attempted commission of such a crime by a group of persons acting with a common
purpose. Such contribution shall be intentional and shall either: (e) be in respect of the
crime of genocide, directly and publicly incites others to commit genocide; (f) attempts to
commit such a crime by taking action that commences its execution by means of a
substantial step, but the crime does not occur because of circumstances independent of
the person's intentions. The Court will exercise jurisdiction over persons who shall be
responsible for their crime.43
The crimes within the jurisdiction of the Court shall not be subject to any statute of
limitations (Art. 29). A person shall not be criminally responsible if, at the time of that
person's conduct: (a) he/she was suffering from a mental disease or defect that destroys
that person's capacity to appreciate the unlawfulness or nature of his or her conduct; (b)
the person is in a state of intoxication that destroys that person's capacity to appreciate the
unlawfulness or nature of his or her conduct; (c) the person acts reasonably to defend
himself or herself or another person or, in the case of war crimes, property which is
essential for the survival of the person or another person; (d) the conduct which is alleged
to constitute a crime within the jurisdiction of the Court has been caused by duress (Art.
31).
The official position/capacity, in particular, as a Head of State or Government, a member
of a Government or parliament, an elected representative or a government official is not a
ground to exempt a person from criminal responsibility or in reduction of sentence. The
Statute clearly lays down that the immunities or special procedural rules available to such
persons under national or international law will not be a ground to bar the Court from
exercising its jurisdiction over such a person (Art. 27). This position under the Statute is
at variance with the judgement of the ICJ in the Arrest Warrant of 11 April 2000 case
(Democratic Republic of Congo v. Belgium). The Court, by thirteen votes to three,
decided that the issue of the arrest warrant of 11 April 2000 against Mr. Abdulaye
Yerodia Ndombasi by Belgium and its international circulation, constituted violations of
a legal obligation by Belgium towards the Democratic Republic of the Congo, in that
they failed to respect the immunity from criminal jurisdiction and the inviolability which
the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo
enjoyed under international law.44 On the other hand, some higher municipal courts have
not accepted the defence of immunity for the international criminal acts of the former

head of State or government. In the Pinochet case,45 the House of Lords, in the second
appeal
_____________________
43 Art. 31 of the Statute lays down the exceptions, excluding criminal responsibility
of persons.
44 (2002) ICJ Rep., p. 3; www.icj-cij.org/docket/index.php?pl=3; (2002) 41 ILM
536.
45 [1999] 2 WLR 827.

dealt with the charges of torture brought against the former Head of State of Chile by the
Spanish Government. Majority of the judges held that the standard of whether torture was
lawful or not has been set by international law, and not by domestic law, and thus torture
cannot constitute acts committed in performance of official function of a Head of State.
Pinochet was held guilty and benefit of immunity was not accorded to him.
The important aspect in the exercise of jurisdiction by the ICC is that it is complimentary
to the national criminal justice systems. It does not replace the national courts; on the
contrary, national courts enjoy priority over the ICC. According to Art. 17 of the Statute,
a case is to be declared inadmissible if it is being investigated or prosecuted by national
authorities, unless the State in question is unable or unwilling genuinely to carry out the
investigation or prosecution. Primary responsibility to investigate and punish crimes is
therefore left to individual States. This leaves the ICC jurisdiction as residual in nature.
The other grounds of inadmissibility are: the case has been investigated by a State which
has jurisdiction over it and the State has decided not to prosecute the person concerned,
unless the decision resulted from the unwillingness or inability of the State genuinely to
prosecute; the person concerned has already been tried for conduct which is the subject of
the complaint; and the case is not of sufficient gravity to justify further action by the
Court. Admissibility of a case is decided by the Court itself.
Jurisdiction of the Court may be challenged by: (a) an accused or a person for whom a
warrant of arrest or a summons to appear has been issued; (b) a State which has
jurisdiction over a case, on the ground that it is investigating or prosecuting the case or
has investigated or prosecuted; or (c) a State from which acceptance of jurisdiction is
required. The Court shall not exercise its jurisdiction on a person with respect to conduct
which formed the basis of crimes for which the person has already been tried by it (ne bis
in idem).46
Article 21 of the Statute of the Court lays down the law applicable to a case, in a
hierarchical manner, as follows: (a) in the first place, the Statute of the ICC, elements of
crime and its Rules of Procedure and Evidence; (b) in the second place, where
appropriate, applicable treaties and the principles and rules of international law, including
the established principles of the international law of armed conflict; (c) failing that,
general principles of law derived by the Court from national laws of legal systems of the
world including, as appropriate, the national laws of States that would normally exercise
jurisdiction over the crime, provided that those principles are not inconsistent with the
ICC Statute and with international law and internationally recognised norms and
standards. The Court may apply principles and rules of law as interpreted in its previous
decisions. However, the application and interpretation of law should be consistent with
internationally recognised human rights, and be in accordance with the principle of
nondiscrimination. Thus, the decisions of the Court have precedential value.
The Court, while deciding a case shall apply the general principles of criminal law such
as nullum crimen sine lege, i.e., a person shall not be criminally responsible under the
Statute unless the conduct in question constitutes, at the time it takes place, a crime
within the jurisdiction of the Court, and nulla poena sine lege (no punishment without
law), i.e., a person convicted by the Court may be punished only in accordance with the
Statute. Similarly, no person shall

_____________________
46 Art. 20, Rome Statute

be criminally responsible under this Statute for conduct prior to the entry into force of the
Statute (non-retroactivity ratione personae).47 Superior order, as such, is not a ground of
exonerating a person from criminal responsibility, unless the person was under a legal
obligation to obey orders of the Government or the superior in question; the person did
not know that the order was unlawful; and the order was not manifestly unlawful (Art.
33).
Penalties for a convicted person, as prescribed under the Statute, are: (a) imprisonment
for a specified number of years, which may not exceed a maximum of 30 years; or (b) a
term of life imprisonment when justified by the extreme gravity of the crime and the
individual circumstances of the convicted person. In addition to imprisonment, the Court
may also order: (i) a fine under the criteria provided for in the rules of procedure and
evidence; (b) forfeiture of proceeds, property and assets derived directly or indirectly
from that crime, without prejudice to the rights of bona fide third parties (Art. 77).
III. CATEGORIES OF INTERNATIONAL CRIMES

As opposed to the State responsibility, international crimes that are breaches of
international rules entailing personal responsibility of the individuals are war crimes,
crimes against humanity, genocide, torture, aggression, terrorism - State-sponsored or
State-tolerated terrorism.48 The cantours of war crimes, crimes against humanity, war
crimes, crimes against humanity and genocide have been discussed in the Nuremberg and
Tokyo Trials and subsequently in the context of two ad hoc tribunals for Yugoslavia and
Rwanda. These have been further elaborated under Articles 6 (genocide), 7 (crimes
against humanity) and 8 (war crimes) of the Rome Statute. The definition of the crime of
aggression has been adopted by the Review Conference of the Rome Statute in June
2010.49 The crime of torture has been defined in the 1984 UN Convention against
Torture (Art. 1(1)). Torture committed on a large scale is considered as one of the crimes
against humanity.50 The terrorist attacks on September 11, 2011 have brought the crime
of terrorism to the centre stage and it has become a major concern of the international
community since the last two decades.
A. Terrorism
Terror comes from the Latin verb terrere meaning "to frighten". In modern times
"terrorism" usually refers to the killing of innocent people by a private group usually to
achieve some political goals. Terrorism has been on the international agenda since 1934,
when the League of Nations began the elaboration of a convention for the prevention and
punishment of terrorism. The
_____________________
47 Articles 21, 22 and 23, Rome Statute.
48 According to Cassese, piracy or illicit traffic in narcotic drugs and psychotropic
substance, the unlawful arms trade, smuggling of nuclear and other potentially deadly
materials or money laundering are not international crimes (they are regulated by other
treaty provisions). See, A. Cassese, International Criminal law, in Malcolm D. Evans Ed.
International Law, 2nd ed. (Oxford University Press) 2006, 719, at 735.
49 See above, pp. 436-437.

50 See the Pinochet case, [1999] 2 WLR 827, 841.

Convention was eventually adopted in 1937, along with the Convention for the
Establishment of an International Criminal Court, but it never came into force.
Not all acts of terrorism amount to international crime, which should have an
international element, that is, it should involve two or more States. Terrorist activities
carried out within a State are criminal offences punishable under the relevant laws of the
State concerned. On the other hand, terrorist acts amount to an international crime when:
(a) they are not limited to one particular State but spill over to other States in their
effects; (b) they are carried out with the support or acquiescence of the State where the
terrorist organisation is located, or they are State-sponsored terrorist acts; (c) they are
carried out on a large scale and are serious in nature, hence they are the concern of
international community and a threat to international peace.51
1. Definition of Terrorism
There is no universally agreed, legally binding, criminal law definition of terrorism.52
Various legal systems and government agencies use different definitions of terrorism in
their national legislation. The international community has been slow to formulate a
universally agreed, legally binding definition of this crime partly due to different
perceptions of 'terrorism' held by States. Common definition of terrorism refer only to
those violent acts which are intended to create fear (terror) and intimidation, and are
perpetrated for a religious, political or ideological goal, deliberately target or disregard
the safety of civilians, and are committed by non-government agencies or groups.53
Victims of terrorist acts may be both civilians and public officers, including law
enforcement agencies and military personnel.
In the absence of an agreed definition, scholars generally feel that it is difficult to
criminalise terrorism under international law. Under customary international law also,
terrorism per se is not a discrete crime. At present, there are 27 global or regional
instruments pertaining to the subject of international terrorism, dating back to 1963,54
which prohibit and criminalise individual terrorist acts without definition, viz., hijacking
of aircraft, terrorist acts against internally protected persons including diplomatic agents,
the taking of hostages, terrorist acts against the safety of maritime navigation, terrorist
bombing, financing of terrorism. The 1999 International Convention for the Suppression
of the Financing of Terrorism does provide a definition, which in the first place refer to
acts that have been prohibited under other nine
_____________________
51 See UN Security Council Res. 1368, 12 Sept. 2001. The Resolution condemned the
terrorist attacks in New York, Washington D.C. and Pennsylvania on 11 September 2001
and termed them as a threat to international peace and security. The GA Res. 56/1, 12
September 2001 also called upon all States to work together to bring the perpetrators,
organisers and sponsors of these crimes to justice.
52 Angus Martyn, The Right of Self-Defence under International Law - the Response to
the Terrorist Attacks of 11 September, Australian Law and Bills Digest Group,
Parliament of Australia Web Site, 12 February 2002; Thalif Deen. POLITICS: U.N.
Member States Struggle to Define Terrorism, http://ipsnews.net

53 Webster Dictionary defines terrorism as "the systematic use of terror esp. as a means
of coercion". Terror is defined as 'a state of intense fear.
54 UNGA Doc. A/60/228, 12 August 2005.

treaties listed in the Annex55 and then it provides a formula to enlist a terrorist act and
provides that terrorism is:
Any ...act intended to cause death or serious bodily injury to a civilian, or to any other
person not taking an active part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a population, or to compel a
government or an international organisation to do or to abstain from doing any act. (Art.
2(1) (b)).
Certain regional conventions also define terrorism on the similar lines, viz., the 1998
Arab Convention on the Suppression of Terrorism; the 1999 Convention of the
Organisation of the Islamic Conference on Combating International Terrorism; and the
1999 OAU Convention on the Prevention and Combating of Terrorism. However, all
these conventions keep an important exception whereby peoples' struggles against
foreign occupation and aggression for liberation and self-determination 'shall not be
considered a terrorist crime.' In fact, the violent acts by 'freedom fighters' have been a
greatest stumbling block in adopting a widely acceptable definition of 'terrorism', which
has so far proved to be a hurdle in reaching an agreement in the United Nations on the
text of a Comprehensive Convention on Terrorism. But lack of definition has resulted
into keeping terrorism out of the ICC Statute. Nevertheless, the terrorism as an
international crime has the following elements:56
— the act must constitute a criminal offence under most national legal systems, such
as murder, kidnapping, hostage-taking, bombing, torture, etc.;
— the act must be aimed at compelling a State, an international organisation, or a
non State entity (e.g., a MNC) to do or to abstain from doing any act, either by spreading
terror among the population or by means of violent action or threat thereof directed
against a State, a State official, an intergovernmental organisation, a public or private
body (like a MNC);
— the act must be motivated by political, religious, or otherwise ideological reasons
and not by private motives.
Since terrorism may manifest in many forms, it may fall into variety of categories of
crimes and may be tried for war crimes, crimes against humanity or as a distinct crime in
its own right. Whereas the war crimes and crimes against humanity have been vividly
defined in the Rome Statute, the terrorism, as a distinct crime must also exhibit the
general features of the other two crimes and also have all the elements stated above and it
should have an international element,
_____________________
55 These are: 1970 Hague Convention for the Suppression of Unlawful Seizure of
Aircraft; 1971 Montreal Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation,; 1973 Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents; 1979
International Convention against the Taking of Hostages; 1980 Convention on the
Physical Protection of Nuclear Material; 1988 Montreal Protocol for the Suppression of
Unlawful Acts of Violence at Airports Serving International Civil Aviation; 1988
Convention for the Suppression of Unlawful Acts against the Safety of Maritime

Navigation; 1988 Protocol for the Suppression of Unlawful Acts against the Safety of
Fixed Platforms located on the Continental Shelf; and 1997 International Convention for
the Suppression of Terrorist Bombings.
56 A. Cassese, op. cit. 48, p. 748.

that is, the act should not be confined to the territory of one State but must spill over and
jeopardise the security of other States in a significant way.
2. Anti-Terrorism Efforts of the United Nations

The United Nations has long been active in the fight against international terrorism. The
General Assembly, since 1972 under the agenda item 'Measures to eliminate international
terrorism' has been active in this regard. Reflecting the determination of the international
community to eliminate this threat, the United Nations and its agencies have developed a
wide range of international legal agreements that enable the international community to
take action to suppress terrorism and bring those responsible to justice. Sixteen universal
instruments (thirteen instruments and three amendments) against international terrorism
have been elaborated within the framework of the United Nations system relating to
specific terrorist activities. Among the notables are: 1963 Convention on Offences and
Certain Other Acts Committed on Board Aircraft (Tokyo Convention, against hijacking-
safety of aviation); 1970 Convention for the Suppression of Unlawful Seizure of Aircraft
(Hague Convention); 1971 Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation (Montreal Convention); 1979 Convention on the Physical
Protection of Nuclear Material (Nuclear Materials Convention); 1988 Protocol for the
Suppression of Unlawful Acts of Violence at Airports Serving International Civil
Aviation; 1988 Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation; 1988 Protocol for the Suppression of Unlawful Acts Against the
Safety of Fixed Platforms Located on the Continental Shelf; 1991 Convention on the
Marking of Plastic Explosives for the Purpose of Identification; 1997 International
Convention for the Suppression of Terrorist Bombings; 1999 International Convention
for the Suppression of the Financing of Terrorism; and 2005 International Convention for
the Suppression of Acts of Nuclear Terrorism (it entered into force on 7 July 2007).
At its 60th session, the General Assembly in resolution 60/43 "condemned all acts,
methods and practices of terrorism in all its forms and manifestations as criminal and
unjustifiable". In addition, the Assembly decided that the Ad Hoc Committee of its Sixth
Committee, established by resolution 51/210 of 17 December 1996, continue to elaborate
the draft Comprehensive Convention on International Terrorism on an expedited basis.
The draft of the proposed convention is currently under negotiations. On 8 September
2006, the UN General Assembly adopted a "Global Counter-Terrorism Strategy." The
Strategy is significant that for the first time all Member States of the United Nations have
agreed to a common strategic and operational framework to fight terrorism. The Strategy
forms a basis for a concrete plan of action: to address the conditions conducive to the
spread of terrorism; to prevent and combat terrorism; to take measures to build state
capacity to fight terrorism; to strengthen the role of the United Nations in combating
terrorism; and to ensure respect of human rights while countering terrorism.57
On 8 September 2010, the General Assembly conducted the second biennial review of the
United Nations Global Counter-Terrorism Strategy. In a resolution adopted by consensus,
the Member States reiterated strong and unequivocal condemnation of terrorism in all its
forms and manifestations, "by whomever, wherever, and for whatever purposes." The
resolution

_____________________
57 www.un.org/terrorism/

reaffirmed the primary responsibility of Member States in implementing the Strategy,

which was adopted in 2006 and remains the strategic framework and practical guidance
on joint international efforts to counter terrorism. It further recognised the need to
enhance the important role the United Nations, including the Counter-Terrorism
Implementation Task Force, played, along with other international and regional
organisations, in facilitating and promoting coordination and coherence to that end at
national, regional and global levels.
The Security Council has also been active in countering terrorism through resolutions and
by establishing several subsidiary bodies. It has adopted a string of resolutions on
terrorism prior to 11 September 2001 when the terrorists attacks took place in New York,
Washington and Pennsylvania in the United States: Resolution 731 (January 21, 1992);
Resolution 748 (March 31, 1992); Resolution 883 (November 11, 1993); and Resolution
1269 (19 October 1999).58 Resolution 1373 (September 28, 2001) adopted under
Chapter VII of the United Nations Charter, which makes it legally binding on member
States, is the cornerstone of the United Nations' counter-terrorism efforts. Among other
provisions, it favoured the exchange of intelligence between member States and
legislative reforms. It established the United Nations Security Council Counter-Terrorism
Committee (CTC), consisting of all the members of the Council, to monitor state
compliance with its provisions. The main thrust of the resolution was on the financing of
terrorist operations and to stop providing safe haven to anyone supporting terrorists or
their organisations. But the resolution failed to provide any sanction against States acting
in violation of the resolution, nor did it define terrorism. It also failed to identify 'terrorist
groups', thus leaving it up to the States to do so. By Resolution 1963 (20 December
2010), the Security Council extended the term of CTC.
Later resolutions concerning terrorism are: UNSC resolutions 1390 (16 January 2002),
1456 (20 January 2003), 1535 (which restructured the CTC, 26 March 2004), 1566 (8
October 2004), and 1624 (14 September 2005). Other Security Council resolutions are:
1390, 1452 (20 December 2002), 1455 (17 January 2003), 1456 (14 Sept. 05), 1617 (29
July 2005), 1566 (8 Oct. 2004), 1526 (30 Jan. 2004), 1377 (14 Nov. 2001), 1378 (12
Nov. 2001), 1333 (19 Dec. 2000), 1267 (15 Oct. 99). By resolution 1617 (29 July 2005),
the Security Council condemned Al Qaida, Osama bin Laden,59 the Taliban and
associated individuals, groups, undertakings and entities, for ongoing terrorists acts. It
also decided that all States shall freeze their assets; prevent the entry into or transit of
these individuals through their territories; prevent the direct or indirect supply, sale or
transfer of arms, ammunition, military or para-military equipments.
3. Regional Efforts against Terrorism

Along with the international efforts, in a spirit of cooperation to curb terrorism, regional
efforts have also been made and conventions have been adopted. Noticeable among them
are the: 1977 European Convention on the Suppression of Terrorism; 2006 Council of
Europe Convention on the Prevention of Terrorism; 1971 OAS Convention to Prevent
and Punish Acts of Terrorism
_____________________

58 Res. 1269, adopted at the initiative of Russia, was the first comprehensive anti-
terror resolution, which laid down the groundwork for cooperation and coordination
among States to counter terrorism, articulated its key principles and defined the areas for
collective efforts.
59 Osama bin Laden has been killed by the US commandoes on May 1, 2011 in
Abbottabad in Pakistan.

Taking the Form of Crimes against Persons and Related Extortion that are of
International Significance; 2002 Inter-American Convention Against Terrorism; 1998
Arab Convention on the Suppression of Terrorism; 1999 Convention of the Organisation
of the Islamic Conference on Combating International Terrorism; 1999 OAU Convention
on the Prevention and Combating of Terrorism; 1999 Treaty on Cooperation among
States Members of the Commonwealth of Independent States in Combating Terrorism;
1987 SAARC Regional Convention on Suppression of Terrorism, and the 2004
Additional Protocol to the Convention; and the 2007 ASEAN Convention on Counter
Terrorism.
4. Terrorism and India

Many countries have framed laws against terrorism and to prosecute and punish persons
indulging in these activities. India is facing multifarious challenges in the management of
its internal security. It has been subjected to many terrorist attacks frequently since
1980s. There is an upsurge of terrorist activities, intensification of cross border terrorist
activities and insurgent groups in different parts of the country. To deal with this
situation, the government of India, in 1985 enacted the Terrorist and Disruptive Activities
(Prevention) Act (TADA). The Act was repealed in 1995. In 2002, the Parliament
enacted the Prevention of Terrorist Activities Act (POTA). The Act was severely
criticised, particularly by the human rights activists who thought that it violates the
fundamental rights guaranteed in the Indian Constitution. Because of its wide criticism,
POTA was rescinded in 2004. In its place, the government kept in place all of India's
criminal laws and also enacted an amendment to the Unlawful Activities Act, 1967,
which increased punishment for committing acts of terrorism and for harbouring
terrorists or financing them, enhanced police powers of seizures, made communications
intercepts admissible as evidence, and increased the period of detention without charges
to 90 days from the existing 30 days.
After the November 26, 2008 terrorists attacks in Mumbai in which about 200 persons
were killed, need was felt to have stringent anti-terror legislation. The Parliament, on
December 18, 2008 approved new anti-terror legislation, which gave wider powers to
security forces: the National Investigation Agency (NIA) Act, and the Unlawful
Activities (Prevention) Amendment (UAPA) Act, The NIA Act seeks to establish a new
police organisation - National Investigating Agency - to investigate acts or terrorism and
other statutory offences. The Unlawful Activities (Prevention) Amendment (UAPA) Act,
radically changes procedures for trying those accused of terrorism, extends the periods of
police custody to six months without charges, denies bail to foreigners, and the reverses
the burden of proof in many instances. The new laws have been severely criticised by the
civil liberties activists as being draconian and excessive in relation to the measures India
really needs to take to fight terrorism.

Page 447
CHAPTER 16
Settlement of International Disputes
I. GENERAL
The expression "dispute" is stated to mean "a disagreement on a point of law or fact, a
conflict of legal views or of interests between two persons".1 The term "international
disputes" has a wider connotation, that covers within its ambit inter-State disputes as well
as disputes between States and individuals, corporate bodies and non-State entities which
are also subject to international regulations.2 But the discussion here is confined
primarily to inter-State disputes. If remain unresolved, they may threaten international
peace and security. To settle these disputes, international law embodies certain rules and
procedures springing partly out of customs or usages and partly out of treaties or
conventions such as the Hague Conventions of 1899 and 1907 for the Pacific Settlement
of International Disputes, Covenant of the League of Nations and the Charter of the
United Nations. But, before embarking on the discussion of the various modes of
settlement of disputes, it is important to know the distinction between legal and political
disputes.
II. LEGAL AND POLITICAL DISPUTES

The disputes between States have been categorised as "legal" or "justiciable", and
"political" or "non-justiciable". Though international lawyers generally agree that this
distinction exists, they do not agree on its content. Nevertheless, it is a commonly held
view that legal disputes are those which are capable of judicial settlement by the
application of existing and ascertainable rules of international law, in which the parties to
the dispute base their respective claims and contentions on grounds recognised by
international law, while disputes which are concerned with a claim for a change in the
existing law are disputes as to "conflicts of interests", and, as such, political and "non-
justiciable".3 The disputes that relate to vital interests of States, or their external
independence or internal sovereignty, territorial integrity, honour, or any other important
interests are non-justiciable. It is certain that many disputes, perhaps most of the serious
disputes of States, are of this kind.
_____________________
1 See Mavrommatis Palestine Concessions case, PCIJ, Series A, No. 2, p. 5, at p. 11
(1924).
2 For example, the investment disputes between capital receiving States and private
foreign investors. In 1965, the World Bank adopted a Convention for the Settlement of
Investment Disputes between States and Nationals of other States, under which the
International Centre for the Settlement of InvestmentDisputes (ICSID) has been
established at Washington. For details, see J.K. Ryans and J.C. Baker, 10
JWTL 65 (1976); text of the Convention in 60 AJIL892 (1966).
3 On legal disputes, see H. Lauterpacht, The Function of Law in the International
Community (Longman, London) 1933, pp. 156-57, 202-41; L. Oppenheim, International
Law, Vol. II, 7th ed. (Longman, London), 1952, pp. 3-6.

The objective validity of the distinction, however, has been challenged by many writers,
who maintain that in the final analysis it is the attitude of the parties to a dispute that
determines its justiciability. Their attitude is determined by their interests and
expectations rather than by legal theory or universally valid objective criteria. If they are
willing to accept the decision of an international tribunal solving the dispute, it is
"justiciable", otherwise not. In certain cases, an international dispute on legal issues is
perceived by the parties as relating to conflict of power or interest which they regard as
affecting their vital interests. Some disputes become prestige issues between the States,
which neither of them can afford to loose by submitting to third-party adjudication, like
the Kashmir issue between India and Pakistan or many matters between Greece and
Turkey, including Cyprus.
The reluctance of States to submit disputes to third-party settlement on the basis of
international law may be for many reasons and not due to any difficulty in predicting the
result of such a submission. In fact, when the law clearly supports one of the parties to
the dispute, there is less likelihood that the dispute will be settled in accordance with that
law, because in such a situation, one of the parties is seeking a change in the existing law
or the status quo and not willing to accept the existing law as a basis for the resolution of
the dispute. Furthermore, though all disputes are theoretically capable of settlement
according to the rule of law, there is no international legal duty for States to settle their
differences through third-party adjudication or to settle them at all. The Permanent Court
of International Justice in the Eastern Carelia case observed:
It is well established in international law that no State can, without its consent, be
compelled to submit its disputes with other States either to mediation or to arbitration, or
to any other kind of pacific settlement. Such consent can be given once and for all in the
form of an obligation freely undertaken, but it can, on the contrary, also be given in a
special case apart from any existing obligation.4
Thus, international law has a limited relevance to disputes arising among States.
Moreover, parties are always free to agree to submit a dispute to some tribunal for
deciding on the basis of ex aequo et bono if they believe that it cannot be satisfactorily
settled by the application of existing legal rules. Consequently, in theory all disputes are
"justiciable". Further, the distinction between legal and political disputes becomes of
doubtful scientific value when forming part of treaties of obligatory arbitral or judicial
settlement.
The distinction, however, has now become a part of positive international law as
embodied in various instruments of pacific settlement. It is recognised in the Charter of
the United Nations (Art. 33), the Statute of the International Court of Justice (Art. 36),
and in most treaties of obligatory arbitration and judicial settlement.
Legal and political disputes can be settled either by amicable or compulsive means.
III. AMICABLE MEANS OF SETTLEMENT

The United Nations Charter in Art. 2(3) enjoins the members "to settle their international
disputes by peaceful means". These peaceful means are enumerated in Art. 33 of the
Charter as "negotiation,
_____________________

4 See the Status of Eastern Carelia case, PCIJ, Series B, No. 5. at p. 27 (1923).

Page 449 SETTLEMENT OF INTERNATIONAL DISPUTES
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional

agencies or arrangements or other peaceful means". Article 33(2) of the Charter also
emphasises that the "Security Council shall, when it deems necessary, call upon the
parties to settle their disputes by such means". The Covenant of the League of Nations
similarly accepted the importance of these means and provided in Art. 13(1) for
submission to arbitration or judicial settlement of disputes "which cannot be satisfactorily
settled by diplomacy".
In the Nicaragua case,5 the International Court of Justice accepted the importance of
peaceful settlement of disputes and observed that the principle of settlement of a dispute
through peaceful means, as enshrined in Art. 33 of the Charter, has "the status of
customary law". The General Assembly in its Resolution of December 12, 1974, drew the
attention of the United Nations members to the existing machinery for resolving disputes,
and called upon member States "to make full use and seek improved implementation" of
such machinery. The Resolution also contained reference to the good offices of the
Secretary-General of the United Nations.6 The Manila Declaration, approved by the
General Assembly in 1982, re-affirmed many of these principles contained in the United
Nations Charter.7
The General Assembly in its Resolution of October 24, 1970 (Res. 2625(XXV)), on
Declaration of Principles of Friendly Relations and Cooperation among States also
requires States to settle their international disputes by peaceful means.
The principal means of amicable settlement are the following:
a. negotiation, good offices, mediation, conciliation and inquiry;
b. arbitration;
c. judicial settlement; and
d. settlement under the auspices of the United Nations Organisation.
The means listed under the first category are, broadly speaking, diplomatic means. There
is no hard and fast line demarcating one from the other. They may be used in
combination with each other. Arbitration and judicial settlement form the adjudicative
means by following the adjudicative procedure of an international tribunal. Settlement by
the political organs of the United Nations follows the deliberative procedure of that
organ, i.e., the Security Council and the General Assembly. Most of the inter-State
disputes are resolved through diplomatic means, following the diplomatic channels. They
are, however, less formal means of settlement.
A. Diplomatic Means
1. Negotiation
The great majority of treaties on pacific settlement recognise negotiation as the first step
towards the settlement of international disputes. It is the simplest and first means resorted
to by States
_____________________
5 (1986) ICJ Rep. 14, at p. 145, para. 290.
6 GA Res. 3283 (XXIX), Dec. 12, 1974. See also, GA Res. 2734 (XXV), Dec. 16,
1970.

7 In 1984, the General Assembly adopted a resolution urging all States to observe
and promote in good faith the provisions of the 1982 Manila Declaration, Res. 39/79,
Dec. 13, 1984. See also, GA Res. 44/31, adopted on Dec. 4, 1989.

for settling the vast majority of cases and for forestalling the rise of potential disputes.
But it suffers from certain drawbacks, viz., absence and difficulty in ascertaining the facts
of a dispute objectively; absence of third-party influence, leading to high claims by the
negotiators in the process of bargaining; and the powerful State influencing the outcome
of the negotiation to the detriment of the weaker State. Nevertheless, States resort to
negotiation very frequently, because it enables them to retain control over the decision of
a dispute till the very end. The negotiating mechanism is flexible and relatively informal,
which helps in solving difficult disputes. However, negotiation does not imply an
obligation to actually reach an agreement.
In spite of its drawbacks, in most cases, negotiation is a necessary preliminary to recourse
to other procedures, such as good offices and mediation.
2. Good offices and mediation

In cases where parties fail to settle their disputes or are not inclined to settle them through
negotiation, a friendly third-party may procure a settlement through its good offices or
mediation. The intervention of a third-party, aims not at deciding the dispute for the
disputing parties, but at inducing them to decide it for themselves. But there is no
obligation on either the third-party or the disputants to offer or accept good offices or
mediation. But such a duty for disputing parties can be created under a treaty.8
Assistance of the third-party may be asked by either or both the parties or it may be
offered spontaneously. This may be either by States, eminent citizens of a third State, or
through the United Nations or other regional organisations.9
The Charter of the United Nations gives to every member State and the Secretary-
General the right to invoke collective mediation of the United Nations (Arts. 34 and 35)
by bringing to the attention of the Security Council or the General Assembly any dispute,
or any situation which might lead to international conflict or give rise to a dispute, and
these bodies will act upon them. An illustration of tendering good offices by the Security
Council was seen in the dispute between Holland and the Republic of Indonesia.10
Similarly, in the Palestine dispute, the General Assembly, by its Resolution of May 15,
1948, entrusted the United Nations Mediator with the functions of promoting a "peaceful
adjustment of the future situation of Palestine."
A theoretical distinction exists between good offices and mediation, which is a matter of
degree. In the traditional sense, good offices stop where mediation begins. In good
offices, the third-party brings the disputing parties together and induces them to negotiate
or provides the occasion for negotiations between them to proceed without its
participating in the negotiations. In mediation, on the other hand, the mediatory party has
a more active role. It participates in the negotiations, directs them and can suggest a
solution, though the suggestions made are not
_____________________
8 Articles 2-8 of the 1907 Hague Convention endeavoured the signatory powers to
have recourse to good offices and mediation and giving third States a right to tender such
an assistance.

9 The Inter-American Treaty on Good Offices and Mediation of 1936 provided

(Arts. 9 and 11) for mediation and good offices by an eminent citizen of another
American State. See Documents on International Affairs (1936), p. 586.
10 The Security Council, by its Res. of Aug. 25, 1947, resolved to tender its good
offices to the parties. A Good Offices Committee of the Council, consisting of Belgium,
Australia and the US was appointed, which was to help in settling the dispute between the
parties, see SCOR, II year, No. 103.

binding upon the parties.11 However, in actual practice both tend to merge with each
other and many a times, it is difficult to distinguish between the two. Thus, the initiative
of the Soviet Union after the Indo-Pakistan war in 1965, to bring representatives of India
and Pakistan together at Tashkent at the end of 1965, in an attempt to settle the conflict
between them and creating a favourable atmosphere for a settlement, seems to have been
somewhere between good offices and mediation. Likewise, the role of the Government of
Algeria in the settlement of dispute between the United States and Iran in 1981, over the
detention of American diplomatic and consular staff cannot be categorised simply as
conciliation or good offices or mediation. Nevertheless, it was effective in achieving a
settlement, involving, among other issues, the release of the detained hostages.12
In the United Nations practice also, the distinction between good offices and mediation
has not been strictly followed. For example, the Good Offices Committee in the
Indonesian case was also asked to make recommendations as to developments in
Indonesia during 1947-48; the United Nations Mediator in Palestine in 1948 was
entrusted with the task of reporting on developments, promoting the welfare of the
inhabitants of Palestine, and assuring the protection of the holy places. The Good Offices
Committee for the Korean hostilities appointed by the General Assembly in 1951, was set
up not merely to bring about negotiations between the contending parties, but also to
propose ways and means for effecting cessation of hostilities.13
These methods are of considerable value in settling the disputes but suffer from a lack of
any procedure for conducting a thorough investigation into the facts or the law. Hence,
their utility is limited and they are mainly confined to as steps preliminary or ancillary to
conciliation, inquiry or other techniques adopted by the United Nations.
3. Conciliation and inquiry

Conciliation is the process of settling a dispute by referring it to a commission of persons
whose task is to elucidate the facts and to make a report containing proposals for a
settlement, but which does not have the binding character of an arbitral award or
judgment.14 In conciliation, parties are under no legal obligation to adopt the proposals
for a settlement suggested to them; in case of arbitration and judicial settlement such a
legal obligation exists for the award or judgment of a duly constituted tribunal. It also
differs from a commission of inquiry whose main task is confined to the elucidation of
the facts, in the hope that once that difficulty has been overcome, the parties will be able
to settle the dispute of their own accord.
_____________________
11 See Art. 2 of the Hague Convention, 1899; see also, L.B. Sohn, Cases and
Materials on World Law (Brooklyn Foundation Press, Brooklyn), 1950, p. 433.
12 In the relevant documents, it was stated that the Algerian Government had been
requested by the disputant parties "to serve as an intermediary in seeking a mutually
acceptable resolution", and that it had "consulted extensively with the two governments
as to the commitments which each is willing to make in order to resolve the crisis", 75
AJIL, 418 (1981). The Algerian Government also established two International Arbitral
Tribunals to decide claims of nationals of each State against the other State.

13 GA Res. 348(V) of Feb. 1, 1951; GAOR., 5th Session, Supp. 20A, p. 1. The Good
Offices Committee on South-West Africa, appointed in 1957, was also to discuss the
basis of agreement with the South African Government and to report to the General
Assembly.
14 L. Oppenheim, op. cit. 3, at p. 12.

Reference of conciliation commissions is found in the Hague Conventions of 1899 and

1907 for the Pacific Settlement of International Disputes (Title III and Part III of these
Conventions respectively). These commissions could be set up by special agreement
between the parties, which would investigate and report on situations of fact, but the
report was not binding upon the parties to the dispute. The commission was to be
constituted for each occasion by agreement between the parties. However, the cases
involving honour or vital interests of the parties were excluded, but such disputes could
be referred to an International Commission of Inquiry.15 The machinery provided under
the 1899 Convention was successfully used in the Dogger Bank case between Great
Britain and Russia, where a five-member Commission of Inquiry, consisting of five naval
officers from Britain, Russia, America, France and Australia, was constituted to look into
the damage suffered by Britain due to the wrongful act of the Russian Baltic Fleet during
the Russo-Japanese war.16 Under the Second Hague Conference of 1907, the duty of the
commission was to investigate the circumstances of the case and to issue a report "limited
to a statement of facts" and having in no way "the character of an award". The parties
were free regarding the effect to be given to it.
After the Hague Conventions, the Bryan Arbitration Treaties, which were concluded by
the United States with a great number of States in 1914, constituted the Permanent
Commissions of Inquiry. No dispute was excluded from the purview of these treaties.
Unlike under the Hague Conventions, where the commission was constituted on an ad-
hoc basis when the need arose, these commissions were permanent. They were consisted
of five members - each party nominating two members, out of which one was its own
subject, and the fifth member was chosen by common agreement between the parties.
They were not to resort to hostilities before the report was submitted, but after receiving
the report, the parties were at liberty to take such action as they thought fit.17
The importance of conciliation was also accepted by the League of Nations (Arts. 15 and
17 of the Covenant). The Resolution of September 22, 1922, by the League's Third
Assembly provided for a five-member commission. The system devised by the League
was very flexible. Generally, a small committee, or a person known as a rapporteur, was
appointed to establish the facts and suggest a method of resolving the differences
between the parties.18 The United Nations General Assembly has also adopted a similar
approach and has made various recommendations in the matter of appointment of
rapporteurs and conciliators, even though the Charter does not have any explicit
provision on conciliation akin to the Covenant of the League.
States also attach great value to the procedure of conciliation as reflected from several
hundred treaties for conciliation concluded after the First World War and more than over
a hundred permanent conciliation commissions were set up. It found an increased
mention in numerous
_____________________
15 The Hague Convention, 1899, had only six Arts. (9-14) on the subject.
16 For more details see, Oppenheim, op. cit. 3, at p. 14, citing N.R.G. Martens, 2nd
Series, 33, pp. 641-716.

17 Most of these treaties are still in operation. In 1928 and 1929, US concluded a
series of these treaties. A number of them, namely, those with South Africa, Canada,
Australia and New Zealand, were brought upto date in 1940.
18 See the Records of the Third Assembly, Plenary Meeting, Sept. 22, 1922, pp. 196-
201.

treaties concluded after the Second World War. For example, American Treaty of Pacific
Settlement (Pact of Bagota) of April 30, 1948, provided for Commissions of Investigation
and Conciliation. The Inter-American Treaty for Reciprocal Assistance, 1947 and the
Treaty of Brussels between Great Britain, France, Belgium, Holland and Luxembourg,
1948 also have the provisions for conciliation. More recently, the Vienna Convention on
the Law of Treaties, 1969, the Vienna Convention on Succession of States in respect of
Treaties, 1978, and the 1982 Law of the Sea Convention provide for conciliation.19 The
Covenant on Civil and Political Rights and the 1965 World Bank Convention on the
Settlement of Investment Disputes between States and Nationals of other States also lay
great emphasis on the value of conciliation and inquiry. However, there are only a few
recorded instances of actual recourse to the machinery established by these treaties,
mostly under the Law of the Sea Convention. But its significance in dispute resolution is
self-evident. It helps in ascertaining the facts of a dispute without making specific
recommendations, which paves the way for a negotiated settlement.
The importance of a fact-finding commission in settling the boundary disputes is
particularly significant. The commission may inquire into the historical and geographical
facts which are the subject of controversy and thus clarify the issues for a boundary
agreement. Such commissions also help in the preliminary elucidation of certain special
facts, crucial in the settlement of a particular dispute. In the case of the United Nations
also, they may prove useful when the Security Council is not in a position to act
effectively because of the veto.
Significance of fact-finding is self-evident in dispute settlement through any of the
diplomatic modes. In April 1949, the United Nations set up a Panel for Inquiry and
Conciliation to help in fact-finding. In December 1948, the United Nations General
Assembly adopted a resolution in which it emphasised the usefulness of impartial fact-
finding as a mode of peaceful settlement and urged the member States to make more
effective use of fact-finding methods. The Secretary-General was requested to prepare a
register of experts whose services could be used by agreement for fact-finding in relation
to a dispute.20
B. Arbitration
The International Law Commission defines arbitration as "a procedure for the settlement
of disputes between States by a binding award on the basis of law and as a result of an
undertaking voluntarily accepted".21 The parties to a dispute, by way of a treaty, agree to
settle their disputes through arbitration and lay down the procedure and rules for the
same. The treaty may be concluded prior to or after the dispute has arisen. The treaty can
be in the form of a general treaty of arbitration between the parties providing for all
present and future disputes amongst them to be settled through arbitration; or a treaty
may be concluded for reference to arbitration after the dispute has arisen; or there can be
an arbitration clause in a treaty which is not primarily
_____________________
19 See R.D. Kearney and R.E. Dalton, The Treaty on treaties, 64 AJIL 495 at 553-
555 (1970); R.V. Lavalle, The dispute settlement provisions of the Vienna Convention on

succession of States in respect of treaties, 73 AJIL 407 (1979); and Annex I of the Law of
the Sea Convention.
20 In accordance with the resolution, the nomination of the experts is received by the
Secretary-General who transmits the lists of such experts to member nations each year.
21 II YblLC 202 (1953).

an arbitration treaty, for example, a treaty of commerce, providing that differences related
to matters within the purview of the treaty shall be determined by arbitration.
Arbitration is essentially a consensual procedure. In essence, it is a third-party decision,
but the role of the disputing parties is all-pervasive, which affects the whole procedure of
arbitration. The fact that each State is the exclusive judge in its own suit is persistence
much stronger in arbitration than in judicial settlement. On the other hand, the essential
element of arbitration, as opposed to good offices and mediation, is that it necessarily
implies the duty of the parties to abide by the award that is made. Arbitration, in contrast
to conciliation, leads to a binding settlement of a dispute on the basis of law. The arbitral
body is composed of judges, normally appointed by the parties. This body may be
established ad hoc by the parties or it may be a continuing body set-up to handle certain
categories of disputes. Arbitration differs from judicial settlement also in that, as a rule,
the parties have the competence to appoint arbitrators, to determine the procedure and, to
a certain extent, to indicate the applicable law.
It is now a normal practice among States to provide in a treaty for the settlement of "legal
disputes" through an award of an arbitral organ settled on a legal basis or a judicial
decision of the International Court of Justice. A large number of treaties provide for
submission of "legal disputes" to the International Court of Justice, unless the parties
specifically agree to refer to arbitration.
1. Development of international arbitration

The arbitration is an old institution, but in its present form, it started with the Mixed
Claims Commissions established under the Jay Treaty of 1794, between Great Britain
and the United States.22 The successful conclusion of Alabama Claims Arbitration23 of
1872, also held between Great Britain and the United States, gave it a further impetus.
The Hague Convention of 1899 for the Pacific Settlement of Disputes contained a
number of articles on international arbitration. According to Art. XV, the object of
arbitration is "the settlement of differences between States by judges of their own choice,
and on the basis of respect for law". Article XVIII specified that an agreement to arbitrate
implies the legal obligation to submit to the terms of the award. The Convention did not
impose any specific obligation to arbitrate, it merely attempted to set up institutions and
procedures for the purpose, and the so-called Permanent Court of Arbitration was
established. The 1907 Hague Convention contained 54 articles (out of the total of 97
articles) dealing specifically with arbitration. It had separate chapters on arbitral justice,
Permanent Court of Arbitration, arbitral procedure and arbitration by summary
procedure.
After the First World War, the Permanent Court of International Justice was established,
which did not make arbitration superfluous. Article 1 of the Statute declared that the new
institution was to serve "in addition to the Court of Arbitration" and the Special Tribunals
of Arbitration to which States "are always at liberty to submit their disputes for
settlement". Alongside, a great number of bilateral and multilateral arbitral treaties were
concluded and the Mixed Arbitral Tribunals were set up in Europe to deal with various
claims arising out of the territorial
_____________________

22 1 Mailoy 590.
23 B. Moore, International Arbitration, Vol. I, p. 495.

redistribution effected by the Treaty of Versailles, 1919. However, after the Second
World War, compulsory arbitration has been less favoured in the general multilateral
treaties, though it is still a preferred means of adjudication among States. A number of
treaties have provisions to this effect, such as the 1982 Law of the Sea Convention, and
the 1969 Vienna Convention on the Law of Treaties. States also quite often resort to
arbitration on an ad hoc basis.24 In some cases, arbitration has been used even when
hostilities between the parties had broken out, as in the case of Rann of Kutch between
India and Pakistan, involving a territorial dispute which was decided by arbitration in
1968.25
The Permanent Court of Arbitration

The Court of Arbitration, which was established in the year 1900 in accordance with the
1899, and later, the 1907 Hague Conventions, had the solemn effect on the development
of international arbitration.26 It had three organs: (i) Panel of Experts; (ii) Administrative
Council; and (iii) International Bureau. It was an institution of a peculiar nature which
was permanent only in name and had no characteristics of a court. According to Judge
Manly O. Hudson, the Permanent Court of Arbitration was hardly more than a method
and a procedure.27 It was not in itself a deciding tribunal, but contained only a list of
names, out of which the parties in each case could select and constitute the court. Since
the arbitrators were to be selected by the parties on each occasion, there was no
continuity in the administration of justice. Each party to either Conventions was to
appoint upto four persons "of known competence on questions of international law" and
"of the highest moral competence" to serve for a renewable period of six years as
members of the Court.28 Thus, the members of the Permanent Court of Arbitration never
met as a tribunal. Their sole function was to be available for service as members of
tribunals which could be created when they were required.
In the establishment of the tribunal, in the absence of any agreement to the contrary, the
following procedure was followed: Each party would appoint two arbitrators, of whom
only one could be its national or chosen from the persons nominated by it on the Court's
panel. These arbitrators together choose an umpire who would preside over the tribunal.
In case there was a deadlock in the selection of the umpire, a third power(s) would
choose the umpire. The tribunal so created was to act according to a compromis or a
special arbitration agreement. The compromis specified the subject of the dispute,
appointment of the members of the tribunal,
_____________________
24 See D.N.W. Johnson, 34 Yb. of World Affairs 305 (1980), for an account of
increased resort to arbitration by States. Important cases decided through arbitration in
the recent past are the English Channel Arbitration (England v. France) 18 ILM 7, 91
(1979), and the 1977, Beagle Channel Arbitration (Argentina v. Chile) 17 ILM 634
(1978).
25 J.G. Wetter, The International Arbitral Process, Vol. I (A.W. Sijthoff, Leyden),
pp. 250-275; for the text of the award, see 7 ILM 633 (1968).
26 The 1899 Convention entered into force in 1900. The 1907 Convention revised
the 1899 Convention in the light of the experience of the Court in the early years. As of

August 2009, 109 countries were party to one or both of these founding Conventions of
the PCA.
27 M.O. Hudson, International Tribunals: Past and Future (Carnegie Endowments &
Brookings Institute, Washington), 1944, p. 8.
28 Article 23, 1899 Convention; Art. 44, 1907 Convention.

its jurisdiction, procedure, law and principles to be applied in rendering its award. The
tribunal was to give its award by majority vote. The Court itself had no specific
jurisdiction as such. In the history of the Court, approximately 40 cases have been
referred to the arbitral tribunals established through its machinery, out of which only two
were referred from 1945 to 1990. In recent years, there has been increased use of the
Court with 19 cases pending in 2006. In its history, it has rendered several important
awards, such as Atlantic Coast Fisheries case of 1910 between the United States and
Great Britain, the Savarkar case of 1911 between Great Britain and France. Court's
hearings are generally not open to the public and its decisions are also kept confidential at
the instance of the parties.
2. General principles governing jurisdiction and procedure of international arbitral

tribunals
Since arbitration is a consensual procedure which is held according to the terms of the
compromis or special agreement, the compromis or special agreement governs the
constitution, jurisdiction and procedure of the tribunal.
The constitution of arbitral tribunals has in practice revealed numerous anomalies.
Occasionally, a dispute is adjudicated by a single arbitrator, or by a joint commission or a
mixed commission, normally consists the representatives of disputing parties with an
additional member selected according to an agreed manner, who acts as an umpire. The
State's representatives are generally its own nationals - a practice which is objectionable,
inter alia, on the grounds of propriety and objectivity.
The jurisdiction of the tribunal is traceable to the compromis but it is evident in other
ways also. If it is defective, the parties, with knowledge of the defect, may still proceed
with arbitration without raising any objection. However, the requirement of consent
remains fundamental and where it cannot be met, the arbitrator's action becomes a nullity.
As in the case of constitution and jurisdiction, the procedure and evidence are governed
by the consent of the parties. In the absence of an agreement, general practice in this
respect is very vague due to the divergent legal training of agents and counsels, as well as
of members of tribunals. Nevertheless, tribunals generally follow the rules of natural
justice.
Finality of Arbitral Verdict

An arbitral award is final if the arbitration treaty does not stipulate to the contrary, and is
binding upon the parties. The Hague Conventions of 1899 and 1907 provide that the
award settle the dispute "definitively and without appeal".29 Difficulty, however, arises
when a State refuses to abide by the award. Even though refusals to execute arbitral
decisions or repudiations of awards are remarkably few, actual or alleged excess of
jurisdiction, or the fact that the arbitrators have not been able to arrive at their award in
perfect independence, have been the principal causes of refusal to recognise the award as
binding by the parties. If the arbitrators have acted ultra-vires of the compromis, or have
been bribed, coerced, or have been intentionally and maliciously misled by one of the
parties into a fundamental error, the award looses its binding
_____________________

29 Articles 54 and 81 respectively.

force. Excess of power was alleged in the North-Eastern Boundary Dispute, 1831,
between Great Britain and the United States.30 Alleged mistakes, misinterpretation of
evidence, fraud, collusion and suppression of evidence were alleged in the case of United
States of America on behalf of Lehigh Valley Railroad Co. and others v. Germany in
1933, which led to the reopening of the case by the Mixed Claims Commission.31 In
1909, Bolivia refused to abide by the award given by the President of Argentina in her
boundary dispute with Peru. In a dispute between Guinea-Bissau and Senegal about the
maritime delimitation, the arbitral award of July 31, 1989, was not implemented because
Guinea-Bissau alleged that one of the arbitrators' remarks were contradictory. There was
also insufficiency of evidence, which made it difficult to delimit the maritime areas. The
case was subsequently submitted to the International Court of Justice concerning the
"award".32
Customary international law or arbitral treaties do not provide any rules of general nature
for the solution of controversies arising out of allegation of excess of power or misuse of
power by the arbitrators. The only express provision in the Hague Convention of 1907,
Art. 83, provides for revision of awards based on discovery of new facts. The excess of
power merely becomes a ground for requesting for submission to arbitration, a request
which the other party may always refuse. Without the consent of both the parties, no
further action can be taken in this regard. Consequently, under international law, the
individual judgment of States rather than the judgment of a court determines questions of
nullity. This, together with the absence of any international forum with jurisdiction to
determine the plea of nullity independently of the parties' consent, leaves the door wide
open to escape from the binding force of an arbitral award, freely undertaken by the
parties.
3. Evaluation of arbitration as a means of settlement

Arbitration occupies an important place in containing disputes among States. It is very
effective in resolving disputes on wide range of legal issues, including disputes over
territorial and maritime boundaries, sovereignty, international investment, and matters
concerning international and regional trade. Article 16 of the 1899 Hague Convention
and Art. 38 of the 1907 Hague Convention recognise arbitration as the most efficacious
and equitable means of settlement of disputes of legal character, and in differences
regarding the interpretation or application of treaties. It can easily be combined with the
fact-finding processes. It is a useful supplement to the International Court of Justice to
decide disputes requiring a purely legal solution. However, States quite often exclude
from arbitration, disputes affecting "vital interests" or matters concerning "domestic
jurisdiction" by special clauses in arbitration treaties. These disputes are considered to be
"nonjusticiable" and are open for settlement through other peaceful means.
Even though arbitration still occurs,33 it is not a very popular mode of settling disputes
with States now, because of certain drawbacks in its procedure, viz., lack of agreement to
establish
_____________________
30 www.upperstjohn.com/history/northeastborder.htm

31 See H. Lauterpacht, The Function of Law, op. cit. 3, pp. 127-130; 34 AJIL 154
(1940).
32 See Maritime Delimitation between Guinea-Bissau and Senegal case (1991) ICJ
Rep., p. 53; see also 31 ILM 32 (1992).
33 See, for example, Eritrea v. Yemen (Phase two: Maritime Delimitation) (1999)
119 I.L.R. 417; Anglo-French Continental Shelf case (1979) 18 I.L.M. 397.

the tribunal, constitution of the tribunal, disagreement on the terms of the compromis,
power of the tribunal, revision of the award, etc. To overcome these difficulties, the ILC
prepared a Draft Convention on Arbitral Procedure, which was submitted to the General
Assembly in 1953. The General Assembly transmitted the Draft to the States for their
comments. On the basis of the replies from the governments, in 1958 the Commission
adopted a set of model Draft Articles on Arbitral Procedure which the States could follow
while concluding an agreement for arbitration. The General Assembly brought the Draft
Articles to the attention of the States.34 Procedure for the arbitration of investment
disputes has been introduced by the 1965 Convention on the Settlement of Investment
Disputes between States and Nationals of Other States, which establishes an International
Centre for the settlement of investment disputes for the parties to the Convention.35
C. Judicial Settlement
In judicial settlement, the dispute is settled by an international judicial tribunal on the
basis of rules of law. The World Court, the name commonly given to the Permanent
Court of International Justice (PCIJ) and the present International Court of Justice (ICJ),
is by far the most important international organ available to the international community
for judicial settlement.36 It differs from arbitration on many aspects, though both are
judicial means of settlement of disputes yielding third-party decisions binding on the
parties. Schwarzenberger states: "The only difference between arbitration and judicial
settlement lies in the method of
_____________________
34 For the 1953 Draft Convention, see the Report of the Commission on the work of
its 5th Session (1953). For the 1958 Draft Articles, see the Report of the Commission on
the work of its 10th Session (1958). Attempts had also been made by States outside the
United Nations, see Art. 21 of the European Convention for the Peaceful Settlement of
Disputes, 1957. In 1993, the Permanent Court of Arbitration adopted a series of Optional
Rules for Arbitrating Disputes between Two Parties of which only one is a State. But
they are more suited for commercial arbitration.
35 (1965) 4 I.L.M. 532, entered into force in 1966 and has 109 States parties.
36 The other international courts with regional and limited jurisdiction are the
American Court of Human Rights (created under the American Convention on Human
Rights, 1970); the European Court of Human Rights (created under the European
Convention on Human Rights, 1950); the European Court of Justice of the European
Communities; the African Court on Human and Peoples' Rights; and the International
Criminal Court. All these are competent to adjudicate upon inter-State claims brought
under the treaties establishing them. There are also International Tribunals for the Former
Yugoslavia and Rwanda constituted under the Security Council resolutions. In 2002, the
International Criminal Court came into force, created under the Rome Statute 1998. On
the International Tribunal for the Law of the Sea, see Art. 287 and Annex VI of the 1982
Convention on the Law of the Sea, UN Doc. A/CONF.62/122, reproduced in 21 ILM
1261 (1982). The standard works on the World Court are, S. Rosenne, The Law and
Practice of the International Court, 3rd ed. (M. Nijhoff, Dordrecht), 1997; T.O. Elias, The
International Court of Justice and Some Contemporary Problems (M. Nijhoff,

Dordrecht), 1983; L.F. Damrosch (Ed.), The International Court of Justice at Crossroads
(Transnational Publishers, New York), 1987; E. McWhinney, The International
Court of Justice and the Western Tradition of International Law (M. Nijhoff, Dordrecht),
1987; R.P. Anand, International Courts and Contemporary Conflicts (Asia Publishing
House, Bombay), 1974; L. Cross (Ed.), The Future of the International Court of Justice, 2
Vols. (Oceana Publications, Inc.), 1976; Gardner and Wickremasinghe (Ed), The
International Court of Justice: Process, Practice and Procedure (London, BIICL) 1997.

selecting the members of these judicial organs. While in arbitration proceedings, this is
done by agreement between the parties, judicial settlement pre-supposes the existence of
a standing tribunal with its own bench of judges and its own rules of procedure which
parties to a dispute must accept".37 The following differences between the two are
obvious in the practice of States:
First, a court of law, meant for judicial settlement, is usually a permanent body,
consisting of judges with a fixed tenure. Arbitral tribunal, on the other hand, consists of
persons, appointed ad hoc to deal with a defined dispute or class of disputes, and ceases
to exist when that is disposed of. Second, the judges of the court of law are generally
appointed independently of the will of the parties in dispute, but in the case of arbitration,
the fundamental principle has been that the parties appoint arbitrators of their own choice.
Third, the court of law renders its judgment on the legal rights of the parties by applying
the legal principles, while the arbitral award need not be related to legal rights, which
may be given by applying the principles of justice, equity, good conscience or
expediency. But in the light of Art. 38(2) of the Statute of the International Court of
Justice, which allows the Court to decide on the basis of ex aequo et bono by an
agreement between the parties, this distinction between the two is merely academic.
Fourth, in consequence of these above-mentioned factors and due to the continuity of the
court as a judicial organ, the court, while applying the existing rules, not only extends
them but even creates new rules where no applicable rule or only conflicting rules can be
found. Arbitral tribunal's contribution is less significant in this respect due to its ad hoc
character. Fifth, proceedings of the court are generally public, whereas arbitration can be
conducted without making the proceedings public and award may be published at the will
of the parties.
Even though the court of law helps in enriching and developing the international
jurisprudence and in bringing legal changes to meet changing needs, yet, in practice,
States are reluctant to entrust a court of law with legislative power and a right to decide
about a dispute without their express consent. This is very much reflected in the practice
of the World Court.
1. The creation of the International Court of Justice

After the First World War, the Permanent Court of International Justice was created in
pursuance of Art. 14 of the Covenant of the League of Nations. The Court, which came
into existence in 1920, was not an organ of the League. It rested on the distinct legal basis
of the Statute and the Protocol. It was competent to hear and determine international
disputes submitted to it, and to give advisory opinions on matters referred by the Council
or by the Assembly of the League.
After the Second World War, the International Court of Justice was established in 1946,
in place of the Permanent Court of International Justice, which held its last formal session
in October 1945. However, the new Court was made an integral part of the United
Nations Charter (Arts. 92-96) in contrast to the loose association of the Permanent Court
of International Justice with the League of Nations. The International Court of Justice is
one of the six principal organs (Art. 7) and "the principal judicial organ of the United
Nations" (Art. 92). This relationship between the Court and the United Nations has been

further emphasised in Art. 93 of the Charter, which declares that all Members of the
United Nations are ipso facto parties to the Statute of
_____________________
37 G. Schwarzenberger, Manual of International Law, 6th ed. (Stevens and Sons Ltd.,
London), 1976, p 196.

the International Court of Justice. Other provisions of the Charter, i.e., Arts. 94-96,
relating to the enforcement of judgments of the Court and its advisory jurisdiction, and
conditions under which non-Members of the United Nations may become parties to the
Statute of the Court (Art. 93(2)),38 give added emphasis to the association of the Court
with the United Nations.
The new Court is not only the successor of the old, but is' in continuation of it. This fact
is reflected in Art. 92 of the Charter that states that the Court shall function in accordance
with the Statute "which is based upon the Statute of the Permanent Court of International
Justice". The International Court of Justice is bound by the purposes and principles of the
United Nations as expressed in Arts. 1 and 2 of the Charter and the context of the Charter
is a controlling factor in the interpretation of the provisions of the Statute.
The Statute of the Court embodies the basic rules concerning the organisation,
jurisdiction and procedure of the Court, and is supplemented by two sets of rules adopted
by the Court, framed under Art. 30 of the Statute. The first set deals with the functioning
of the Court and its Registry. The Revised Rules of the Court which amended the prior
Rules of 1946, based on corresponding Rules of 1936, were framed in 1972, and were
adopted in 1978. The second set is incorporated in the Resolution of April 12, 1976,
which was a revised version of the Resolution of July 5, 1968. It sets out the practice to
be followed by the Court in respect of deliberations among the judges after the oral
hearings come to an end.39
If the procedural rules, which are found both in the Statute and in the Rules of the Court,
are mutually conflicting, the rules under the Statute will prevail since it is the higher law.
Whereas the Rules of the Court can be amended by the judges, the Statute, on the other
hand, can be amended only by the General Assembly under Art. 70 of the Statute.
2. Organisation of the Court

The Court is composed of a body of independent judges. It consists of 15 judges who are
"elected regardless of their nationality from among persons of high moral character, who
possess the qualifications required in their respective countries for appointment to the
highest judicial offices, or are jurisconsults of recognised competence in international
law" (Art. 2). The system of election is based on the "Root-Phillimore plan" devised in
1920. According to the plan, the candidates are first nominated by the national groups in
the Permanent Court of Arbitration. Additional national groups are formed to include
members of the United Nations not represented on the Court of Arbitration under the
same conditions as those laid down in the 1907 Hague Convention (Art. 4). No group can
"nominate more than four persons, not more than two of whom shall be of their own
nationality" (Art. 5(2)).
_____________________
38 The conditions upon which the Court is open to States which are not parties to the
Statute are laid down in the Security Council Res. 9 of Oct. 15, 1946, adopted pursuant to
Art. 35(2) of the Statute, see, 1 SCOR, 2nd Series, No. 19, at 467-68. The conditions in
each case have been the acceptance of the provisions of the Statute, acceptance of the
obligations under Art. 94 of the Charter, and an undertaking to contribute to the expenses
of the Court (Statute Art. 35(3)). Previously some States non-members of the UN have

been parties to the Statute, but they later joined the UN - Japan (1953-1956),
Liechtenstein (1949-1990), San Marino (1953-1992), Switzerland (1946-2002), and
Nauru (1987-1999).
39 Prior to 1968, the internal judicial practice of the Court was governed by the PCIJ
Res. of Feb. 20, 1931 (as amended on March 17, 1936), adopted provisionally by the ICJ
in 1946.

After the list of candidates has been thus prepared, the General Assembly and the
Security Council proceed "independently of one another", but simultaneously, to elect the
members of the Court (Art. 8). Judges are elected after securing absolute majority. This
procedure of simultaneous election by the Assembly and the Council is also followed to
fill casual vacancies caused by the death or retirement of a judge (Art. 14).40 A member
so elected holds office for the remainder of his predecessor's term.
The Statute of the Court emphasises on maintaining the independence of judges who are
to be elected "regardless of their nationality", but there is some inconsistency with this
position. Article 3 states that no two members of the Court may be nationals of the same
State. Further, Art. 9 provides that the electors shall bear in mind that "in the body as a
whole the representation of the main forms of civilisation and of the principal legal
systems of the world should be assured". This, however, does not rule out the political
nature of the appointment. Under a kind of "gentlemen's agreement", currently regional
distribution of judges to be elected is: Africa, 3; Latin America, 2; Asia, 3; Western
Europe and other countries, 4; Eastern Europe, 2; and the United States.41
The judges are required to discharge their powers impartially and conscientiously while
performing their duties in the Court. They may not exercise any political or
administrative function or engage in any other occupation of a professional nature. They
shall enjoy diplomatic privileges and immunities. The judges of the Court are elected for
nine years, and may be re-elected (Art. 13).
The Court normally sits as a full court of 15 judges. But the Statute also provides for the
formation of three types of chambers: the chambers of summary procedure; chambers for
dealing with particular categories of cases, like labour or environment or transit and
communications; and chambers for dealing with particular cases (Arts. 26-29 and 31(4)).
These chambers can consist of three or more judges (maximum number can be seven),
and in some cases their number will be determined by the Court with the approval of the
parties (Art. 26).42 The judgments of the chambers are considered to be rendered by the
Court.
_____________________
40 Should a judge die in office, the practice has generally been to elect a judge of the
same nationality to complete the term. For example, after the death of Judge Baxter
(USA), Judge Salah Tarazi (Syria), Judge Nagendra Singh (India) in 1980 and 1988,
Judge Schwebel (USA), Judge El-Khani (Syria) and Judge R.S. Pathak (India) were
elected to fill the vacancies.
41 The 15 seats of the Court are normally distributed in terms of nationalities and power
blocs in the same manner as membership of the Security Council. This means that the
five permanent members of the Security Council shall have one of their nationals on the
Court, and this has been the case since 1945, except that there was no Chinese judge
between 1967 and 1985. Now Judge Xue Hanqin from China is there.
42 The chamber procedure which was created in 1978 under the Rules of Court was used
for the first time in the Gulf of Maine case (US-Canada) (1984) ICJ Rep., p. 246 where
the parties were actively involved in the composition of the chamber. Since then the
chamber procedure has been followed in five cases, viz., Burkina Faso-Mali (1986) ICJ
Rep., p. 554; Land, Island and Maritime Frontier Dispute (El Salvador-Honduras) (1987)

ICJ Rep., p. 10; (1990) ICJ Rep. p. 92; the case concerning Electtronica Sicula S.p.A.
(ELS I)( 1987) ICJ Rep., p. 3; Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras: Nicaragua intervening), (1992) ICJ Rep, p. 351; Frontier Dispute (Benin v.
Niger), (2005) ICJ Rep. p. 90.

The Statute also makes the provision for the appointment of ad hoc judges when the party
to a case does not have a judge of its nationality on the Court (person so appointed can be
of some other nationality). The ad hoc judges can be appointed in contentious cases (Art.
31) and in advisory proceedings (Arts. 68 of the Statute and 89 of the revised Rules of the
Court, 1972). In the advisory proceedings on Western Sahara, Morocco appointed ad hoc
judge by the order of the Court. The ad hoc judges must fulfil the general conditions for
judges. In the advisory proceedings, the appointment of ad hoc judges is restricted only to
matters involving legal questions pending between two or more States.
The institution of ad hoc judges, however, is a major departure from the notion of
impartiality and independence of the Court. It is a matter of controversy and cannot be
easily justified. While they sit and participate in the decision "on terms of complete
equality" with their colleagues (Art. 31(6)), their vote is generally predictable. Whenever
they have been appointed, they have invariably given judgment in favour of the State
making their appointment (this is also the tendency among the national judges already on
the Court when their own State is a party to a case). If both the parties appoint ad hoc
judges, their votes cancel each other out. In litigation, where only one party appoints an
ad hoc judge and the other party has a national as a titular judge, his vote can make a
difference in marginal cases, but there have been no such cases because they vote in
favour of the State appointing them. On the other hand, the presence of a judge of one's
own choice fulfils a useful function in supplying local knowledge and national point of
view, besides being an incentive to States to submit to the jurisdiction of the Court by
enhancing confidence in it. Nevertheless, the system is a reminiscent of the basic idea of
arbitration in international adjudication.
3. Individuals and bodies other than States in relation to the Court

Article 34(1) of the Statute provides that "only States may be parties before the Court".
This principle obviously excludes international organisations and individuals as parties
before the Court. But the international organisations may be requested to provide
information relevant to cases before the Court, and it is bound to receive such
information presented by such organisations on their own initiative (Art. 34(2)).
International organisations may invoke the advisory jurisdiction of the Court if, in
accordance with the United Nations Charter, they are authorised (Statute Art. 65(1)).
Thus, the United Nations, through the General Assembly or the Security Council, may
request the Court to give an advisory opinion on any legal question, but it cannot bring a
claim in contentious litigation before the Court. It implies the inadequacy of Art. 34,
which generates inherent contradictions, by not allowing the United Nations - an
international person, to pursue the case before the Court.43
_____________________
43 In the case of Reparation for Certain Injuries Suffered in the Service of the United
Nations (1949) ICJ Rep., p. 174, the Court held that the UN is a subject of international
law and can put forward an international claim, but it has been deprived from exercising
this right before its own principal judicial organ.

Individuals and corporations, on the other hand, totally lack any locus standi as parties
before the Court.44 The individuals can bring claims only through their own
governments. To allow access to international organisations, individuals and corporations
in contentious cases before the Court, the scope of Art. 34 needs to be widened.
4. Jurisdiction of the Court

The Court has two-fold jurisdiction: "contentious" and "advisory". But its jurisdiction is
subject to the fundamental principle of international law that no State can be compelled to
submit its disputes with other States to any kind of pacific settlement. Therefore, the basis
of jurisdiction of the Court is the consent of the litigants, given either generally and in
advance, or ad hoc upon the occurrence of the dispute. However, the principle of consent
is less significant in the context of Court's advisory jurisdiction.
(a) Contentious jurisdiction

In contentious cases, the Court's jurisdiction may be classified under three categories:
conventional, i.e., by express agreement between the parties; under the principle of forum
prorogation, i.e., by tacit agreement; and compulsory, i.e., by declaration, accepting the
Court's jurisdiction vis-a-vis any other State accepting the same obligation.
(i) Conventional jurisdiction

Under Art. 36(1) of the Statute, the Court has jurisdiction over all cases "which the
parties refer to it and all matters specially provided for in the Charter of the United
Nations or in treaties and conventions in force". Reference of a matter to the Court can be
made by a special agreement or compromis. There are two generic types of special
agreement. The classic method is of a special agreement known as compromis, whereby
two or more States agree to refer a particular and defined matter to the Court for a
decision. The distinguishing feature of the special agreement is that jurisdiction is
conferred and the Court is seized with the case by the mere notification to the Court of
the agreement (Art. 40). During the tenure of the Permanent Court of International
Justice, 11 cases were instituted by special agreement. Before the International Court of
Justice, Minquiers and Ecrehos45 and Frontier Land46 cases were instituted in this
manner. In the Corfu Channel (Preliminary Objection) case47 also, the subsequent
special agreement between Albania and the United Kingdom replaced the Court's
prorogated jurisdiction.
The more usual method of conferring jurisdiction is by inserting a compromissory clause
in a bilateral or multilateral treaty in force.48 The treaty may be one specifically
providing for
_____________________
44 See Anglo-Iranian Oil Co. case (1952) ICJ Rep., p. 93.
45 (1953) ICJ Rep., p. 47.
46 (1959) ICJ Rep., p. 209.
47 (1948) ICJ Rep., p. 15.
48 The expression "in force" has a particular significance in the context of transfer of
jurisdiction from the PCIJ to the ICJ under Art. 37 of the Statute.

the reference of a given dispute to the Court,49 a general treaty of peaceful settlement of
disputes,50 or a treaty regulating some other topic and containing a compromissory
clause.51 In all cases other than those instituted by notification of a special agreement,
proceedings are commenced by the unilateral application of one of the parties to the
Court (Art. 35(2) and (3) of the Rules of the court).
(ii) Forum prorogation

The principle of forum prorogatum (prorogated jurisdiction consented to by the conduct
of parties) is a special form of conventional jurisdiction conferred on the Court where the
consent is based on the successive acts of the parties to the case. Instead of a special
agreement or compromis to refer the dispute to the Court, a unilateral reference of a
dispute by one party is sufficient to bestow jurisdiction upon the Court if the other party
or parties to the dispute tacitly consent to the reference, then or subsequently. It is enough
if there is a voluntary submission to the jurisdiction.52
In this type of jurisdiction, the respondent State usually refrains from contesting the
Court's jurisdiction once the proceedings have been instituted.53 In considering whether
jurisdiction has been conferred by the conduct (i.e., by the tacit consent) of the
respondent, the Court will have regard to the whole of its conduct. Assent by conduct can
scarcely be established if the respondent State consistently denies that the Court has
jurisdiction.54 Where the respondent State is not subject to the Court's jurisdiction at all,
i.e., it is not a member of the United Nations, it would seem that some positive act is
required in order to create jurisdiction, for example, by pleading to the merits, including
filing a counter-claim. The doctrine is implicit in Art. 40(1) of the Statute of the Court
and Rule 38(2) of the 1978 Rules of the Court.
_____________________
49 In the Asylum case (1950) ICJ Rep., p. 266, the jurisdiction of the Court was based on
the so-called Agreement of Lima, and the parties (Peru and Columbia) agreed that
'"proceedings before the recognized jurisdiction of the Court may be instituted on the
application of either of the parties".
50 In the case of Electricity Company of Sofia, PCD, Ser. A/B, No. 77 (1939), Belgium
based its claim against Bulgaria on the Treaty of Conciliation, Arbitration and Judicial
Settlement between them, beside relying on the two States' acceptance of the Court's
compulsory jurisdiction. In the Nuclear Tests case (1974) ICJ Rep., p. 253, Australia
founded its application to the Court on the General Act of 1928. See also the Application
of the Genocide Convention case (Provisional Measures), (1993) ICJ Rep., p. 3; the case
of Aerial Incident of 10 August 1999 (Pakistan v. India) (2002) ICJ Rep., p. 12.
51 There are numerous treaties of this type and a number of cases have been deliberated
by the Court under the terms of such treaties, e.g., Northern Cameroons case (1963) ICJ
Rep., p. 15, and Fisheries Jurisdiction case (Jurisdiction) (1973) ICJ Rep., p. 14.
52 Corfu Channel case (Preliminary objection) (1948) ICJ Rep., p. 15. In its letter of July
2, 1947, Albania agreed to appear before the Court in the action brought by the United
Kingdom. In the Gabcikovo-Nagymaros Project (Hungary v. Slovenia) case, (1997) ICJ
Rep., p. 7, Slovakia did not respond to the Hungary's application. Later the case was
submitted to the Court by special agreement between the two States.

53 See Rights of Minorities in Polish Upper Silesia case, PCIJ Rep., Series A, No. 15, p.
24 (1928).
54 In the Anglo-Iranian Oil Co. (Pleadings) (1952) ICJ Rep., p. 17, Iran's refusal to
accept the United Kingdom invitation to appear before the Court led to the conclusion
that it refused to confer jurisdiction based on forum prorogatum. In the Monetary Gold
case (1954) ICJ Rep., p. 19 at p. 31, the Court's jurisdiction was established on this basis.

The principle of forum prorogatum is subject to certain limitations:

1. Any condition or conditions set by the respondent State for accepting jurisdiction
must be acceded by the complainant State. If the complainant State does not accept the
condition or conditions, the principle of forum prorogatum does not apply.
2. If the complainant State has substantially modified its claim by successive steps in
the pleadings, the consent given by the respondent State on the basis of the original claim
would not reasonably be held to apply to the modified claim in which case the principle
will not apply.55 Where there is no consent and no submission by the other party to the
dispute, such cases are removed from the Court's list.56 In the absence of a materially
interested party also, the Court cannot decide a case on this basis.57
The procedure underlying the principle of forum prorogatum would seem to be
potentially useful as a means in which a State can submit to the jurisdiction by avoiding
the formal procedural requirements of its internal law for entering into a treaty or making
a declaration under Art. 36(2) of the Statute to accept the Court's jurisdiction. It also
extends the jurisdiction of the Court. In spite of this, however, the principle has not
become a prolific source of jurisdiction.
(iii) Compulsory jurisdiction under the optional clause

The important source of the Court's jurisdiction is Art. 36(2), commonly referred to as the
optional clause, which provides:
The State parties to the present Statute may at any time declare that they recognise as
compulsory ipso facto and without special agreement, in relation to any other State
accepting the same obligation, the jurisdiction of the Court in all legal disputes
concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an
international
obligation; and
d. the nature or extent of the reparation to be made for the breach of an international
obligation.
The jurisdiction of the Court is accepted by making a unilateral declaration by a State
with the Secretary-General of the United Nations. This declaration will be operative
against any other declarant State accepting the obligation of the Court under this clause
and in this respect, it is always conditional. The Court's jurisdiction becomes
"compulsory" under the declaration so made, if the dispute is of legal character, and it
falls within the categories specified and within the limits of the State's declaration. As
there is no obligation on a State to make such a declaration, there is nothing like truly
"compulsory" jurisdiction.
_____________________
55 See S. Rosenne, The Law and Practice of the International Court, Vol. I (A.W.
Sijthoff, Leyden), 1965, pp. 358-359.
56 In the past this has been done in the Treatment in Hungary of Aircraft of the USA
cases (1954) ICJ Rep., p. 99 (US v. Hungary) and p. 103 (US v. USSR); three Aerial

Incidents cases (1956) ICJ Rep., pp. 6, 9 (US v. Czechoslovakia) and (1959) ICJ Rep., p.
276 (US v. USSR); and in Antarctica cases (1956) ICJ Rep., pp. 12, 15, brought by UK
against Argentina and Chile separately concerning Antarctica.
57 See Monetary Gold case, op. cit. 54.

A State may withdraw its declaration, if it contains a clause to this effect or if due notice
is being given and all other declarant States do not object to it. As a matter of fact, a large
number of States in their declaration have included a right of unilateral determination.58
Where a State has denounced its declaration in contravention of its terms, it can still be
made respondent on the strength of the declaration.59 If a matter has properly come
before the Court under Art. 36(2), the Court is not divested of its jurisdiction by the
unilateral act of the respondent State in terminating its declaration. In the Right of
Passage case, India raised objection to the Court's jurisdiction, among others, on the
wording of Portugal's declaration to terminate "by notifying the Secretary-General of the
United Nations and with effect from the moment of such notification". The Court
observed that such a notification would not have retroactive effect, but "once the Court
has been seized of a dispute, unilateral action by the respondent State in terminating its
Declaration, in whole or in part, cannot divest the Court of jurisdiction".60 In the
Nottebohm case, the Court observed that an "extrinsic fact such as the subsequent lapse
of the Declaration, by reason of the expiry of the period or by denunciation, cannot
deprive the Court of the jurisdiction already established".61
The declarations made under the "optional clause" operate on certain postulates.
i. Reciprocity
The majority of the present declarations in force are subject to the condition of
reciprocity.62 Article 36(3) of the Statute provides that a State may make a declaration
under para. 2 of Art. 36: (i) unconditionally, or (ii) on condition of reciprocity on the part
of several or certain States, or (iii) for a certain time only. The principle of reciprocity
also follows from the wording "in relation to any other State accepting the same
obligation" in Art. 36(2). Though both of them have been treated alike, Art. 36(3) talks
about the condition of reciprocity, while Art. 36(2) incorporates the principle of
reciprocity.
Under the reciprocity principle, a State accepts the Court's jurisdiction vis-a-vis any other
State only in so far as that State has also accepted it. For example, if State A makes a
declaration
_____________________
58 See, for example, the UK declaration of July 5, 2004, and the USA's declaration of
Aug. 1946. The USA terminated its declaration in 1985, after it gave one year's notice in
accordance with its declaration as a consequence of the Court's decision in Nicaragua's
case (Jurisdiction and Admissibility) (1984) ICJ Rep., p. 392, which became effective in
1986. France terminated its declaration in 1974 in consequence of the Nuclear Tests cases
(1974) ICJ Rep., pp. 253 and 457. India's new Declaration can also be terminated by
simple notification without any obligatory period of notice. India terminated her previous
Declaration on Jan.7, 1956, after Portugal filed a case against India.
59 See Right of Passage over Indian Territory (Preliminary objections) (1957) ICJ Rep.,
p. 125, at p. 146.
60 Ibid., at pp. 133-134. In this case, Portugal made its declaration on December 19, 1955
for a period of one year and which was terminable upon notice. It brought the case
against India on December 22, 1955. The U.K.'s 2004 declaration guards against such

cases. In the Land and Maritime Boundary between Cameroon and Nigeria case
(Preliminary Objections), (1998) ICJ Rep., p. 275, the Court rejected Nigeria's objection
based on the Cameroon's declaration which was deposited on March 3, 1994 and case
was filed against Nigeria on March 29, 1994. The declaration was not transmitted to the
parties to the Statute until 11 months later.
61 (1953) ICJ Rep., p. 119, at pp. 120-123.
62 As of June 2011, sixty-six states had a declaration in force under the "Optional
Clause". Presently UK is the only permanent member of the Security Council, bound by
the Optional Clause.

subject to reservation X, and State B makes reservation Y in its declaration, the Court
will have jurisdiction to hear disputes between these two States only in so far as they are
not covered by reservations X and Y. Jurisdiction is conferred on the Court to the extent
to which the two declarations coincide in conferring it, that is to say that jurisdiction is
restricted to those classes of disputes that have not been excluded by any of the parties.63
In the Interhandel case, the Court stated that reciprocity "in the case of Declarations
accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation
to that acceptance which it has not expressed in its own Declaration but which the other
Party has expressed in its Declaration".64 In the Norwegian Loans case, the reservation
contained in the French Declaration, excluding disputes "relating to matters which are
essentially within the national jurisdiction as understood by the government of the French
Republic", could entitle Norway to except itself from the compulsory jurisdiction of the
Court disputes understood by Norway to be essentially within its national jurisdiction.
Norwegian declaration did not contain any such reservation.65 But this bilateral effect
does not apply if the respondent State elects to waive expressly any objection to
jurisdiction. There are, however, certain limits of reciprocity. In case where there is a
temporal limitation in the earlier declaration of one Party, it cannot be invoked against
the subsequent and unconditional declaration of the other Party.66 Reciprocity enables a
Party to rely upon a restriction contained in the declaration of the other Party, but not on a
restriction not contained therein.67
ii. Reservations
With minor exceptions, all the declarations that are filed with the Court contain more or
less wide reservations, excluding certain kinds of disputes from compulsory jurisdiction
of the Court. Though there are wide variations, these reservations to some extent are
standardised, generally related to and exclude inter alia: (i) past disputes, or disputes
relating to prior situations or facts; (ii) disputes for which other methods of settlement are
available; (iii) disputes related to questions within the domestic or national jurisdiction of
the declaring State; (iv) disputes arising out of war or hostilities; (v) disputes between
member States of the British Commonwealth; and (vi) specific disputes.68 These
reservations are generally not opposed. Many of them are, in fact, merely escape clauses
or consciously designed loopholes. However,
_____________________
63 In the Norwegian Loans case (1957) ICJ Rep., p. 9, the French acceptance was
narrower than the Norwegian, the "common will" of the parties which was the basis of
the Court's jurisdiction, existed within the narrower limits indicated by the French
declaration, ibid., at p. 23.
64 (1959) ICJ Rep., p. 6, at 23. The principle was successfully invoked in the Aegean Sea
Continental Shelf case (1978) ICJ Rep., p. 3. Turkey was allowed to rely upon a Greek
reservation to the Act to exclude the Court's jurisdiction.
65 See op. cit. 63, at p. 24.
66 See the Interhandel case, op. cit. 61, in which the US could not invoke its ratione
temporis reservation against the Swiss Government which accepted the Court's
jurisdiction on July 28, 1948.

67 See the Norwegian Loans case, op. cit. 63.

68 See J.G. Starke, Introduction to International Law, 10th ed. (Butterworth International
Ed.), 1989, p. 499. Indian declaration of Sept. 18, 1974, practically contains all these
reservations. India invoked successfully its reservation excluding disputes with a
"Member of the Commonwealth" to bar the Court's jurisdiction in the Aerial Incident of
10 August 1999 case {Pakistan v. India) (2000) ICJ Rep. p. 12.

sometimes they verge on absurdity. The United States declaration of August 14, 1946,
was such an example, which it terminated on April 7, 1986, in the course of the
Nicaragua case (of June 27, 1986).69 This type of reservation has always remained a
subject of controversy.
The United States declaration contained two far-reaching reservations. In the first
instance, it incorporated the so-called "automatic" or "self-judging" form of reservation,
excluding "disputes with regard to matters which are essentially within the domestic
jurisdiction of the United States of America as determined by the United States of
America". Often referred to as the "Connally amendment", the reservation purported to
reserve the issue of applicability of the declaration to the sole determination of the
reserving State. Similar reservation was attached in the French declaration of 1947
(which was replaced in 1966), and the United Kingdom declaration of 1957 (later
declarations of 1969 and of 5 July 2004 excluded this). India's earlier declaration also
contained a similar reservation, which it terminated on January 7, 1956, immediately
after Portugal brought a case against India in the International Court of Justice on the
issue of Right of Passage over Indian Territory on December 22, 1955.70 India withdrew
this reservation from its declaration of September 14, 1959. The latest declaration of
India of September 15, 1974 also does not have a "self-judging" clause.
The validity of such a reservation is seriously in doubt. It amounts to an absolute bar to
the jurisdiction of the Court and consequently inconsistent with Art. 36(2). Such a view
was endorsed by the Court in the Norwegian Loans case where Norway took the
advantage of the "self-judging" clause in the French declaration to oust the Court's
jurisdiction.71 In the Interhandel case (preliminary objections),72 the United States
invoked this reservation. The Court declared the Swiss application inadmissible on the
ground of non-exhaustion of local remedies and left the objection based on the "Connally
amendment" undecided. Such a reservation is also in conflict with Art. 36(6) of the
Statute, which empowers the Court to settle the extent of its jurisdiction in a dispute
submitted to it. In the "automatic" reservation, the reserving State will have the power, in
the first place, to decide whether the Court has the jurisdiction. In the Aerial Incident case
(US v. Bulgaria) when Bulgaria, on the principle of reciprocity, invoked the Connally
amendment, the United States accepted that a determination under this reservation
constitutes an absolute bar to the Court's jurisdiction irrespective of the arbitrariness or
propriety of the determination.73 On the other hand, if a dispute pertains to matters
exclusively within the domestic jurisdiction of the respondent State, it would not be
within the category of "legal disputes" referred to in Art. 36(2).74
By another reservation in its declaration, the United States excluded disputes arising
under
_____________________
69 Military and Paramilitary Activities in and against Nicaragua case {Nicaragua v.
USA) (1986), ICJ Rep., p. 14.
70 See op. cit. 59.
71 See op. cit. 63.
72 See. op. cit. 64.

73 (1959) ICJ Rep., p. 127. See the dissenting opinion of Judge Lauterpacht in the
Interhandel case, pointing out the invalidity of the Connally amendment, op. cit. 64, at
p.95. He held the similar view in the Norwegian Loans case for the French reservation.
Currently, there are five declarations in force with the "self judging" or "automatic" kind
of domestic jurisdiction reservations of Liberia, Malawi, Mexico, Philippines and Sudan.
74 See the Right of Passage over Indian Territory case, op. cit. 59, at pp. 133-134.

a multilateral treaty unless "(1) all parties to the treaty affected by the decision are also
parties to the case before the Court, or (2) the United States of America specially agrees
to jurisdiction".75 The effect of such a reservation is that if, for instance, there are 20
States parties to a treaty alongwith the United States, there is no obligation upon the
United States to submit to the jurisdiction of the Court unless it waives the reservation, or
all 20 States participate in the proceedings. The United States invoked this reservation in
the Nicaragua case (Jurisdiction) in which Nicaragua invoked the United Nations Charter
and the Charter of the Organisation of American States. In its judgment of November 26,
1984, on the jurisdiction and admissibility, the Court joined this issue with merits and
observed that "the determination of the States 'affected' could not be left to the parties but
must be made by the Court". The claim "would not in any event be barred by the
multilateral treaty reservation".76
Under optional clause, States make declarations for a specified period "and thereafter
until terminated". The declarations also contain temporal limitations (ratione temporis),
i.e., jurisdiction is restricted to disputes arising after a specified date or from the date of
making the declaration (e.g., the US declaration), or to disputes arising after the specified
date "with regard to situations or facts subsequent to that date" (e.g., the UK and
Canadian declarations). These types of temporal limitations raise complex jurisdictional
issues which can normally be decided only after a careful examination of the
circumstances of the case. It is not always easy to precisely specify when a dispute arose,
and even less easy to determine when situations or facts out of which a dispute had
arisen, occurred.
The Court, in general, is reluctant to entertain the time limitations to impede its
jurisdiction. Before the Permanent Court of International Justice, in the cases of
Phosphates in Morocco77 and the Electricity Company of Sophia,78 ratione temporis
reservations in declarations were raised to exclude the Court's jurisdiction. In the former
case, the Court did not exercise jurisdiction because the facts and situations which gave
rise to the dispute were anterior to the period covered by the French declaration. In the
Electricity Company of Sophia case, dispute arose only after 1926, subsequent to the
period accepted in terms of the Belgian declaration. In the Interhandel case79 the present
Court held that the dispute did not arise before August 26, 1946, the date on which the
United States made its declaration. On the seizure of the property of the Interhandel, a
Swiss company in the United States, the Swiss Government made a claim to the United
States for the restitution of Interhandel's property. On July 26, 1948, the United States
refused to do so and objected to the Court's jurisdiction on the basis of ratione temporis
reservation in its declaration. The Court, while rejecting the United States objection,
observed that the Swiss claim for restitution did not become a defined issue between the
parties until July 1948, when the Swiss request made in May was rejected by the United
States.
In spite of the reservations, the "optional clause" constitutes the most comprehensive and
most important instrument of obligatory judicial settlement. On the other hand, even if a
case
_____________________

75 Indian Declaration of Sept. 18, 1974, in para. 7 also contains the similar
provision.
76 See op. cit. 58, at pp. 425-426.
79 See op. cit. 64.

is covered by a reservation in the declaration made under "optional clause", that does not
affect the possibility of the Court having jurisdiction on some other basis, like an
obligatory judicial settlement clause in a treaty between the parties.80
In order to preserve continuity with the Permanent Court of International Justice, Art.
36(5) of the present Statute provides that declarations made under Art. 36, i.e., the
"optional clause" of the Statute of the Permanent Court of International Justice and which
are still in force are deemed, as between parties to the Statute, to be acceptances of the
compulsory jurisdiction of the present Court for the period for which they still have to
run and in accordance with their terms. But, for the application of this provision, it is
necessary that the State should be a party to the 1945 Statute (ICJ's Statute) prior to the
dissolution of the Permanent Court of International Justice and not at a later date, as was
observed in the Aerial Incident case.81 There, Bulgaria joined the United Nations in
1955, and hence became a party to the present Statute from that time and not in 1945; the
Court could not exercise jurisdiction under this provision. Further, Art. 37 provides,
"whenever a treaty or convention in force provides for reference of a matter to a tribunal
to have been instituted by the League of Nations, or to the Permanent Court of
International Justice, the matter shall, as between the parties to the present Statute, be
referred to the International Court of Justice". For its operation, treaty or convention
should be "in force" between all the parties to the dispute, who are also parties to the
Statute of the International Court of Justice. The Court based its jurisdiction on this
provision in the Ambatielos case (Preliminary objection),82 the South-West Africa cases
(Preliminary objections),83 and the Barcelona Traction case (Preliminary objection).84
(b) Procedure of the court in contentious cases

The normal procedure for initiating proceedings in the cases of compulsory jurisdiction is
by a written application addressed to the Registrar of the Court, indicating the subject and
the other party or parties to the dispute. The Registrar notifies the application to the other
party or parties and any State entitled to appear before the Court (Art. 40 of the Statute).
The Court cannot exercise jurisdiction on its own motion. The parties at any stage of the
case remain free to settle their dispute by an agreement without the approval of the Court
which should, nevertheless, be notified so that the case be removed from the Court's list.
The complainant State may also discontinue the proceedings by giving a written notice,
as Nicaragua did on August 12, 1987, in a case brought by it against Costa Rica in July
1986. After recording its statement, the Registrar may remove the case from the list (Arts.
88 and 89 of the Rules of Court, 1978).
_____________________
80 See Appeal Relating to the Jurisdiction of the ICAO Council case (1972) ICJ
Rep., p. 46, at p. 53. The recent cases in which the Court exercised jurisdiction on the
basis of "optional clause" are the Temple of Preah Vihear case (Preliminary objections)
(1961) ICJ Rep., p.17; the Nicaragua case, op. cit. 69; Certain Phosphate Lands in Nauru
(1993) ICJ Rep., p. 322; Land and Maritime Boundary between Cameroon and Nigeria
case (preliminary Objections), (1998) ICJ Rep., p. 275; and the Arrest Warrant of 11
April 2000 (Democratic Republic of the Congo v. Congo), (2002) ICJ Rep., p. 3.
81 (1959) ICJ Rep., p. 127.

82 [Greece v. United Kingdom] (1952) ICJ Rep., p. 28.

83 (1962) ICJ Rep., p. 319.
84 (1964) ICJ Rep., p. 6.

The procedure in contentious cases is partly written and partly oral (Art. 43 of the
Statute). The hearings are in public unless the Court decides otherwise or the parties
demand a hearing in camera (Art. 46), but the deliberations of the Court take place in
private and remain secret (Art. 54). The claimants in the same interest may be joined
together.
Under Art. 41 (and Arts. 73-78 of the 1978 Court Rules) of its Statute, the Court may,
when necessary, indicate both to the parties and to the Security Council "any provisional
measures which ought to be taken to preserve the respective rights of either party". Such
an action of the Court depends upon the likelihood of an action being taken by one of the
parties that will adversely affect the rights of the other party or could exacerbate the
situation. The provisional or interim measures may be indicated even though the Court's
jurisdiction in the dispute has been challenged.85 They will not be indicated where there
is no risk of irreparable damage to the State requesting for such measures or where the
case involves the due performance of the obligations under the United Nations Charter,
and it is clearly established from the circumstances that the parties will not fail to observe
their obligations.86
The provisional measures may be mandatory as well as injunctive or restraining in
nature.87 Such measures, however, are "indicated", they are not required and are not
binding in law. In fact, these measures were not observed by the defendant State in any of
the cases where the Court had indicated such measures.
The parties may raise preliminary objections to the jurisdiction of the Court. But it is
within the competence of the Court to decide about its jurisdiction (Art. 36(6)) as a part
of general principle of law that "in the absence of any agreement to the contrary, the
international tribunal has the right to decide as to its own jurisdiction".88 Objections to
the Court's jurisdiction are commonly related to the facts that the matter falls exclusively
within the domestic jurisdiction of the respondent State or that the controversy has not
reached the stage of a dispute between the parties. In a majority of cases, it is possible for
the Court to determine its jurisdiction before hearing the case on merits, but in certain
cases, it is not possible to decide the jurisdictional issue without hearing the case in full.
In such cases, the Court under its pre-1972 practice, was joining the objections to the
jurisdiction to the merits of the case without prejudice to the position of the party making
the objection.89 However, under the revised Rules of 1978 (Art. 79), it is now mandatory
for the Court to give its decision in the form of a judgment upon the preliminary
objections either by upholding them, rejecting them, or declaring that they do not possess
"in the circumstances of the case, an exclusively preliminary
_____________________
85 See, for example, the interim measures indicated by the Court on July 5, 1951, in the
Anglo-Iranian Oil Co. case (1951) ICJ Rep., p. 89; on June 22, 1973, in the Nuclear Tests
cases (1973) ICJ Rep., p. 99; on May 10, 1984, in the Military and Paramilitary Activities
in and against Nicaragua case (1984) ICJ Rep., p. 169. However, in the Fisheries
Jurisdiction cases (1972) ICJ Rep., p. 12, the Court, while indicating provisional
measures, stated that although it need not satisfy itself that it had jurisdiction, "it ought
not to act under Art. 41 ... if the absence of jurisdiction on the merits is manifest".
86 Aegean Sea Continental Shelf case (Interim Protection Order) (1976) ICJ Rep., p. 3.

87 See, for example, Nuclear Tests cases (Interim Protection), (1973 ICJ Rep. p. 99; US
Diplomatic and Consular Staff in Tehran (Provisional Measures) of Dec. 15, 1979,
(1979) ICJ Rep., p. 7; Nicaragua case, op. cit. 85; The Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (1993) ICJ Rep., p. 3 of April
8, 1993; LaGrand (Germany v. USA) case (Provisional Measures), (1999) ICJ Rep., p. 9.
88 See Nottebohm case, op. cit. 61 at pp. 119-120.
89 See Right of Passage case, op. cit. 59; South-West Africa cases, op. cit. 83.

character".90 In the latter case, the respondent State has to file a defence on the merits
related to that ground if it wishes to rely thereon. On the other hand, parties may also
agree that preliminary objections be heard and determined in the context of merits and the
Court gives effect to such an agreement (Art. 79(8) of the Rules).
In the contentious cases, while exercising its judicial functions, the Court has laid down
certain significant limitations on its jurisdiction and the rights of States to advance a
claim. First, as staled in the Northern Cameroons case, the particular dispute submitted to
the Court should be related to an existing controversy between the parties, involving a
conflict of legal interests, and the judgment must affect existing rights or obligations of
the parties.91 Mere difference of opinion between the parties, without substantially
affecting their legal rights or interests, cannot be termed as a "dispute". This principle
became the basis of the Court's decision in the Nuclear Tests cases, where the Court
declared that "the existence of a dispute is the primary condition for the Court to exercise
its judicial function" and the dispute must continue to exist at the time when the Court
makes its decision.92 Since the assurance sought by Australia and New Zealand, the
applicant States, for the cessation of the tests was given by France on its own accord, the
object of the claim or dispute disappeared, hence the Court did not give a decision.
Second, the claimant State should have the locus standi to present the claim, i.e., the
claimant State must establish a legal right or interest in the subject-matter of its claim.
This rule was applied in the Barcelona Traction case and the South-West Africa cases
(Second phase). In the Barcelona Traction case (Preliminary objections), the claim of the
Belgian Government against the Spanish Government was rejected.93 In the South-West
Africa cases, where Ethiopia and Liberia, being the original members of the League of
Nations brought individual cases against South Africa for the violation of its mandate
over South-West Africa, the Court ruled that both Ethiopia and Liberia have no locus
standi in the matter. The Court opined that the legal right or interest in the subject matter
of a dispute "must be clearly vested in those who claim them by some text or instrument
or rule of law"94 and no such justiciable rights or interests were found to be vested in
individual members of the League of Nations.
On the other hand, the Court does not decline to resolve a legal issue if it otherwise has
jurisdiction in a dispute even though it may be only one aspect of a political dispute.
Similarly, the fact that the United Nations Security Council is seized with a dispute or
situation or is competent to take cognizance of it, would not debar the Court from
exercising its jurisdiction to resolve a particular legal issue of that dispute or situation. In
the Nicaragua case, the contention raised by the United States that the subject matter of
the dispute, i.e., an "ongoing armed conflict" involving the use of armed force contrary to
the United Nations Charter, is specifically allocated to the political organs of the United
Nations and hence, the Court is debarred from exercising its jurisdiction, was rejected by
the Court.95
_____________________
90 See, for example, the Nicaragua case, op. cit. 58.
91 Northern Cameroons case (1963) ICJ Rep., p. 15, at 33-34.
92 (1974) ICJ Rep., p. 253 at 270-272.
93 (1964) ICJ Rep., p. 6, at p. 41.

94 (1966) ICJ Rep., p. 6, at p. 32.

95 (1984) ICJ Rep., p. 392, at pp. 431-436. In the United States Diplomatic and
Consular Staff in Tehran case (1980) ICJ Rep., p. 3, the Court rejected both these
arguments, see paras. 37 and 40 respectively. The Court held similarly in the Palestinian
Wall case (Advisory opinion), (2004) ICJ Rep., p. 136.

A third State may intervene in the proceedings already instituted before the Court, if it
considers "that it has an interest of a legal nature which may be affected by the decision
in the case", and is allowed by the Court to intervene (Art. 62 of the Statute).96 Where
the construction of a convention is in question before the Court, every State which is a
party to the convention is to be notified by the Registrar. But if it exercises this right of
intervention, the construction given by the judgment will be equally binding upon it (Art.
63).97 The Court's jurisdiction under these articles is incidental to, and dependent on, its
jurisdiction between the original parties.
The Statute of the Court does not contain any provision on the enforcement of its
judgments. Under Art. 94 of the Charter, each member of the United Nations undertakes
to comply with the decision of the International Court of Justice in any case to which it is
a party. This provision is merely declaratory and in a case where a State becomes an
unwilling party to litigation, it is less likely to abide by a decision inimical to its interests.
If a party fails to perform its obligations under a judgment rendered by the Court, the
other party may have recourse to the Security Council which may make
recommendations or decide upon measures to be taken to give effect to the Court's
decision. Given the fact that the Security Council may be motivated by numerous
considerations and veto, besides it being the long-drawn and tardy procedure, execution
of the judgments of a Court remains a serious weakness of the United Nations system.
(c) Advisory jurisdiction of the Court

The Court is empowered to "give an advisory opinion on any legal question" at the
request of a body authorised by or in accordance with the Charter of the United Nations
to make such a request (Statute Art. 65(1)). The General Assembly and the Security
Council are authorised by the United Nations Charter to request opinions (Art. 96(1)).
Other organs of the United Nations and the specialised agencies, if authorised by the
General Assembly, may also seek advisory opinions of the Court on legal questions
arising within the scope of their activities (Art. 96(2)). In practice, all the principal
organs—Economic and Social Council, the Trusteeship Council, and 15 out of 17
specialised agencies (the exceptions are the Universal Postal Union and the Multilateral
Investment Guarantee Agency) have been authorised to request opinions, beside the
International Atomic Energy Agency (which is not a specialised agency). The advisory
function of the Court is designed primarily to assist the General Assembly and the
Security Council in the discharge of their duties of conciliation over disputes submitted to
them, by rendering them an authoritative legal opinion on law points.
_____________________
96 In the Wimbeldon case, Poland was allowed to intervene, PCIJ Rep., Series A, No. 1,
p. 25 (1923). In the case concerning the Acquisition of Polish Nationality, the Court
refused to allow intervention by Romania, PCIJ Rep., Series C, No. 3, Vol. 3, p. 1089. In
the Nicaragua case, op. cit. 66, El Salvador, Honduras and Costa Rica were allowed to
intervene. More recently, in the Land, Island and Maritime Frontier Dispute case (El
Slavador v. Honduras) (1990) ICJ Rep. p. 92, Nicaragua was allowed to intervene. See
also Land and Maritime Boundary (Cameroon v. Nigeria), (1999) ICJ Rep. p. 1029 in
which Equatorial Guinea successfully intervened.

97 In the Haya de la Torre case (1951) ICJ Rep., p. 71, Cuba was allowed to intervene in
the Oral hearings on the ground that it would be dealing with a new aspect of the Havana
Convention, to which it was a party.

Strictly speaking, the Court's opinion is not given to States,98 but only to organs entitled
to do so. However, States are permitted, alongwith international organisations, to
participate in proceedings before the Court (Art. 66 of the Statute). Individuals and other
non-State entities have no locus standi.
Advisory jurisdiction of the Court is confined only to "legal questions", concrete or
abstract. The Court may refrain from giving an advisory opinion on a purely academic
question, but if the opinion sought may ultimately assist the concerned international
organisation in discharging its functions, the questions are not to be deemed purely
academic.99 Similarly, the Court should not decide upon the merits of a dispute between
States by way of an advisory opinion. However, the consensual basis of its advisory
jurisdiction has been recognised to an extent. In the Eastern Carelia case, the dispute
between Finland and Russia was referred for an advisory opinion to the Court by the
League of Nations. Russia, a non-member of the League, declined to appear before the
Court. The Court refused to give an opinion on the ground that "answering the question
(put to them) would be substantially equivalent to deciding the dispute between the
parties", and made an observation that "no State can, without its consent, be compelled to
submit its disputes with other States... to any other kind of pacific settlement".100 In the
Western Sahara case also the Court stated that the "consent of an interested State
continues to be relevant, not for the Court's competence, but for the appreciation of the
propriety of giving an opinion".101
The absence of consent of a State or States, however, does not prevent the Court from
giving an advisory opinion on a legal question, the solution of which may clarify a factor
in a dispute between States or between a State and an international institution, without
affecting the substance of the dispute. The Court will also give the opinion which may
provide guidance to an international organ in matters of procedure under a multilateral
convention or to give effect to the convention.102 The Court is not debarred from
acceding to a request by a United Nations organ for legal advice on the consequences of
decisions of that organ, even though it may require the Court to pronounce on legal
questions upon which there is a difference of opinion between a particular member State
and the United Nations.103 Further, the non-cooperation and absence of consent of a
party or parties to a dispute does not prevent the Court in giving an opinion if: (i) the
question is related to the competence of the organ;104 (ii) the question concerns the
procedure of settlement and not the substance of the dispute.105
The Court, being the principal judicial organ of the United Nations, should participate in
the activities of the Organisation and, in principle, should not refuse to answer the
questions
_____________________
98 They may obtain a declaratory judgment in contentious case if the Court has
jurisdiction under Art. 36 of its Statute.
99 See the Advisory Opinion on the Western Sahara (1975) ICJ Rep., p. 12.
100 See op. cit. 4, at pp. 27 and 29.
102 See the advisory opinions in the Interpretation of the Peace Treaties (1950) ICJ Rep.,
p. 65, and on the Reservations to the Genocide Convention (1951) ICJ Rep., p. 15.

103 Ibid., see also the advisory opinion on the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South-West Africa) (1971) ICJ Rep., p.
16, at pp. 23-25.
104 See Frontier between Turkey and Iraq case, PCIJ Rep., Series B, No. 12.
105 See Peace Treaties case, op. cit. 102.

submitted to it.106 It may not refuse to give an advisory opinion where the interpretation
of treaty provisions is concerned, even though such a question and request are of political
nature107 or there is a political pressure.108 But it may refuse to do so if the question
submitted is embarrassing.
An advisory opinion lacks the binding force of a judgment in a contentious case.
However, they have been usually accepted and acted upon by the requesting body and
State concerned. But the compliance with opinions has declined over the years. The
striking examples are the failure of the Soviet Union and France to comply with the
Certain Expenses case109 and the steadfast refusal of South Africa to abide by the
opinions on South-West Africa/Namibia. Occasionally, States make provision in a treaty
or agreement in advance for an opinion to be binding.110 Even in the absence of any
such provisions, advisory opinions have a strong persuasive value.
Procedure of the Court in Advisory Opinions

In the practice of the Court, the procedure in the advisory opinions is closely assimilated
to the procedure in the contentious cases (Art. 68 of the Statute). A written request is
made to the Court with an exact statement of the question upon which an opinion is
sought, and accompanied by all documents likely to throw light upon the question (Art.
65). The Registrar thereafter notifies about the request for an advisory opinion to all
States entitled to appear before the Court. He shall also, by direct communication, notify
any State or international organisation considered by the Court as likely to be able to
furnish information on the subject-matter of the request and receive written or oral
statements thereto. States and international organisations, so presenting their written or
oral statements, are permitted to comment on the statements made by other States or
organisations (Art. 66). The advisory opinion is delivered in open court (Art. 67).
5. Evaluation of the role of the Court in dispute settlement

The World Court was created after the First World War with the belief that judicial
settlement could be a more attractive alternative to the use of force. The United Nations
Charter, while prohibiting the use of force (Art. 2(4)), requires the member nations to
decide their disputes by peaceful means of their choice, including the judicial settlement
(Art. 33). But the International Court of Justice, the only principal judicial organ of the
United Nations, was long ignored and
_____________________
106 Advisory opinion concerning the Conditions of Admission of a State to
Membership of the United Nations (1948) ICJ Rep., p. 57.
107 See Advisory opinion in Certain Expenses of the United Nations (1962) ICJ Rep.,
p. 151.
108 See the Namibia case, op. cit. 103.
109 See op. cit. 107.
110 See, for example, Art. 30 of the 1946 General Convention on the Privileges and
Immunities of the United Nations, and Art. 32 of the 1947 Convention on the Privileges
and Immunities of the Specialised Agencies. It may also be part of the request forwarded
to the Court, for example, Judgment No. 2867 of the Administrative Tribunal of the

International Labour Organisation upon a Complaint Filed against the International Fund
for Agricultural Development (Request for Advisory Opinion), submitted to the Court on
5 May 2010 by the IFAD.

neglected by members nations, particularly during 1960s to 1980s after the Soulh-West
Africa cases'", in which the political approach of the Court became very evident. The
developing countries were reluctant to come before the Court or to accept the compulsory
jurisdiction.
Although the "clientele" of the present Court is much larger (some 193 States are parties
to the Statute) than that of its predecessor, the Permanent Court of International Justice,
there has been no proportionate increase in the work of the Court. Whereas, in the period
from 1922 to 1946, the Permanent Court dealt with 33 contentious cases and 28 requests
for advisory opinions, the present Court dealt with 103 contentious cases and 25 requests
for advisory opinions since 1946. Currently 16 contentious cases and one request for
advisory opinion are pending before the Court. There were times when the Court did not
have any case. Further, while 42 States out of 68 members of the international
community were bound by the "optional clause" of the Statute of the Permanent Court of
International Justice, there are only 66 States that are presently parties to the 'clause' and
have accepted the compulsory jurisdiction of the Court with their wide and far-reaching
reservations, which in many cases leave the States virtually free to accept or decline
jurisdiction when an actual dispute arises. The States have also been reluctant in invoking
clauses in a large number of bilateral or multilateral treaties providing for reference of
disputes to the Court. The Court's role in the development of an effective international
legal order is very significant, which can only be fulfilled if it is meaningfully put into
use. The negative factors responsible for the lack of effectiveness of the Court in the
dispute settlement and the reluctance of the States to resort to the Court are: the lack of
confidence in international adjudication on the part of governments because of absence of
enforcement machinery and non-confidence in the impartiality of the Court; the
comparative lack of representation of Afro-Asian States on the Court; the general
conditions of international relations,"2 and preference for other more flexible methods of
settlement like arbitration, so as to retain their unilateral freedom of action, and
sometimes to save themselves from the agony of an unfavourable decision. States also
prefer to settle their controversy by collective political action through organs like the
Security Council or the General Assembly rather than convincing the Court of their legal
claims.
The present Court is credited with more instances of non-compliance with its judgments
and orders compared to the Permanent Court, whose judgments and orders in contentious
cases were all complied with. The judgments in the Corfu Channel case,113 the Fisheries
Jurisdiction cases,114 the US Diplomatic and Consular Staff in Tehran case115 and the
Nicaragua case,116 have not been followed and orders for interim measures in none of
the cases were followed. The judgment in the Nicaragua case was declared to be non-
binding even before it was decided by the Court.117 A more problematical aspect has
been visible in the contentious
_____________________
111 (1966) ICJ Rep. p. 6. In this case Court reversed its earlier decision, see South-
West Africa cases
(Preliminary Objections) (1962) ICJ Rep. p. 330.

112 I. Brownlie, Principles of Public International Law, 7th ed. (Oxford University
Press, Oxford), 2008, p.
723.
113 (1949) ICJ Rep., p. 4.
114 (1974) ICJ Rep., p. 3.
115 Op. cit. 95.
117 See US Statement, 24 ILM 246 (1985).

cases since 1970. In an increasing number of cases, States have refused to take part in the
proceedings where the applicant State has invoked the jurisdiction of the Court under Art.
36(2). They include the Nuclear Tests cases,118 the Aegean Shelf case,119 Fisheries
Jurisdiction cases,120 and the Nicaragua case.121 This deprives the Court to access all
the evidence to decide the case.
These facts do not enhance the credibility of the judicial settlement as a means of dispute
resolution, even though in recent years, States have shown an increased confidence in the
Court. There is no meaningful mechanism to enforce the judgements of the Court, except
the procedure provided under Art. 94(2) of the Charter, which vests the power in the
Security Council in this regard. In the absence of any meaningful international machinery
to enforce the judgments of the Court and the obligation for compulsory settlement of
international disputes, the situation will not significantly improve. States should be
encouraged to use the chamber system created under the 1978 Rules of the Court to settle
the special categories of disputes.122
D. Settlement of Disputes under the Auspices of United Nations Organisation

Art. 1 of the Charter of the United Nations, among others, provides the maintenance of
international peace and security as one of its purposes. Towards this end, the settlement
of disputes is a central function of the United Nations. In this regard, Art. 2 contains two
obligations for its members: to "settle their international disputes by peaceful means in
such a manner that international peace and security, and justice are not endangered"
(para. 3); and to "refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State, or in any other
manner inconsistent with the Purposes of the United Nations" (para. 4). One of the basic
purposes of the United Nations is "to bring about by peaceful means, and in conformity
with the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace" (Art. 1(1)).
Numerous provisions of the Charter have been devoted to the fulfilment of this purpose.
Important responsibilities have been devolved upon the General Assembly and the
Security Council in this regard. Since the Security Council has the primary responsibility
of maintaining international peace and security (Art. 24), it has been given wide powers.
The Security Council's powers are related to two kinds of disputes: (a) disputes which
may endanger international peace and security; (b) cases of threats to the peace, or
breaches of peace, or acts of aggression. While in the former category, the power of the
Council relates to the peaceful settlement of disputes, in the latter category, it is in the
nature of enforcement action or collective measures. The Council is empowered to make
recommendations, in the nature of decisions, and take any enforcement measures,
including the use of force, which the Council
_____________________
118 Australia v. France, and New Zealand v. France (1974) ICJ Rep., pp. 253, 457.
119 Greece v. Turkey, op. cit. 64.
120 See op. cit 114.
121 Nicaragua v. US (1986), op. cit. 69.
122 For the list of cases where chamber system has been used, see op. cit. 42.

may consider necessary. These actions are authorised under Chapter VII of the
Charter.123 In respect of disputes pertaining to the former category, the parties have a
duty to seek, first of all, a solution "by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice". The Charter, recognises the freedom of the parties
to resort to any procedure of their choice for securing peaceful resolution of their
differences. However, the Security Council may, when it deems necessary, call upon the
parties to settle their disputes by such means (Art. 33(2)). The Council may investigate
any dispute or situation which might lead to international friction or give rise to a dispute
(Art. 34).
The Security Council may, at any stage of a dispute or situation, the continuation of
which is likely to endanger international peace and security, recommend "appropriate
procedures or methods of adjustment", taking into consideration "any procedures for the
settlement of the dispute which have already been adopted by the parties", and bearing in
mind that legal disputes should, as a general rule, be referred to the International Court of
Justice (Art. 36).124 If the parties fail to settle their dispute by the means indicated in
Art. 33, the Council may "recommend such terms of settlement as it may consider
appropriate" or shall decide whether to take action under Art. 36 (Art. 37(2)). The
Council's powers to make recommendation under Arts. 36 and 37(2) are so wide that the
creation of a force with a peace-keeping role can conveniently be brought within its
compass as well as to seek the advisory opinion of the Court. The Council, while creating
a force in March 1964 to prevent civil strife between the Greek and Turkish communities
in Cyprus (UNFICYP), spelt out the connection with Chapter VI of the Charter by
describing the situation as "likely to threaten international peace and security", and by
"recommending" the creation of the force.125 However, this whole procedure, laid down
in Arts. 33-37, may be avoided, "if all the parties to any dispute so request" to the
Security Council, which may make recommendations "to the parties with a view to a
pacific settlement of a dispute" (Art. 38). This power would seem to extend to "any
dispute" even if it is not likely to endanger international peace.
While most of Chapter VI describes the role of the Security Council in the settlement of
disputes, the Charter confers parallel jurisdiction, albeit not equivalent, on the General
Assembly, and allows a State to bring a dispute before it (Arts. 11(2) and 35). However,
the General Assembly is not authorised to make any recommendations with regard to a
dispute which is being dealt with by the Security Council, unless the Council itself so
requests (Art. 12). The General Assembly is given the authority, subject to the peace
enforcement powers of the Security Council, to recommend measures for the peaceful
adjustment of any situation which is likely to impair general welfare or friendly relations
among nations (Art. 14). But the General Assembly's powers in this direction are merely
recommendatory. It has been maintained that Art. 14 empowers the General Assembly to
initiate a process of peaceful settlement by readjusting the final settlements (e.g., related
to territory or frontiers) under the treaties since the word "situation" is referable to
"situation" under executed and executory treaties, and this helps in the peaceful change of
treaties. But in view
_____________________

123 For detailed discussion of these actions, see Ch. 19 infra.

124 The Court's power to exercise jurisdiction over a dispute between the parties, of
course, is subject to other requirements necessary for this purpose.
125 SC Res. S/5575; reproduced in 3 ILM 371 (1964).

of the Assembly's recommendatory power in the matter, no binding action in the

direction of peaceful change or revision of treaties can be effected.
The role of the United Nations in the peaceful settlement under Chapter VI, however, is
very limited. First, unless a dispute is of an international character, and likely to threaten
the maintenance of international peace and security under the terms of the Charter, the
dispute is within the exclusive jurisdiction of the parties. Second, even if there is a
probable threat to international peace and security, a party, particularly the stronger one,
may assert the claim of domestic jurisdiction. The plea of ''domestic jurisdiction" remains
a formidable defence for the side unwilling to let the Organisation help in achieving a
peaceful settlement. Third, though any dispute threatening international peace and
security is the "United Nations concern", the United Nations is restricted from acting in
the matter unless both sides in the conflict agree to utilise its assistance. In other words,
unless a situation is of such an intensity as to pose a threat to international peace and
security, in which case it may be subjected to enforcement action under Chapter VII, the
Organisation may not take any initiative during the incipiency of a dispute.126
IV. COMPULSIVE OR COERCIVE MEANS OF SETTLEMENT

States resort to compulsive means of settlement when they cannot agree to or fail to settle
their disputes by peaceful means. Such means involve some amount of compulsion or
coercion, and if necessary, also the use of force to make the reluctant State to agree to a
settlement. Where use of force is involved, their legality is questionable under Art. 2(4),
of the United Nations Charter, but due to the weaknesses of the present international law
without any centralised machinery to settle international disputes, these measures
continue to have their relevance in international relations. Broadly speaking, they are the
forms of self-help. These measures include retorsion, reprisals, embargo, pacific blockade
and intervention. These measures are short of a state of war. War is also one of the
compulsive means. But there is difference between war and other means as follows:
1. In measures other than war, the relations of peace (diplomatic and others) are
maintained, in war they may come to an end.
2. The compulsive means are confined to certain harmful measures only, in war any
amount and any kind of force can be used, subject to humanitarian law.
3. As soon as the other State is willing to settle the difference, the measure must
cease, but it is not so in war, which comes to an end with the defeat of one of them.
A. Retorsion
Retorsion is a retaliatory measure, resorted by a State against unfriendly, discourteous or
inequitable acts of another State.127 These acts are of the similar nature as those taken by
the offending
_____________________
126 L. Henkin, R.C. Pugh, O. Schachter, and H. Smit, International Law: Cases and
Materials, 2nd ed. (West Publishing Co., Minnesota), 1987, p. 837.
127 Cassese defines retortion as 'any act by which a State responds, by an unfriendly act
not amounting to a violation of international law, to either (a) a breach of international

law or (b) an unfriendly act, by another State'. See A. Cassese, International Law, 2nd ed.
(Oxford University Press, Oxford) 2005 p. 310.

State. For example, if a State imposes restrictions on the entry of citizens of a particular
country in its territory, that country may also impose similar restrictions, or if State A
declares persona non grata the ambassador of State B, that can declare similarly in
respect of the ambassador of State A. There are no precise conditions when retorsion can
be resorted to. Retaliatory actions may take the form of severance of diplomatic or
economic ties, or withdrawal of diplomatic or consular privileges or withdrawal of fiscal
concessions but does not involve the suspension of international obligations owed by the
victim State to the offending State. They are the forms of unfriendly acts, which are
seemingly legal and are not circumscribed by the international law. But if they endanger
"international peace and security, and justice", such acts would not be justiciable under
the United Nations Charter which requires members to settle their disputes by peaceful
means (Art. 2(3)).
B. Reprisals
Reprisals are retributive or punitive in nature. They are adopted by a State to seek redress
from another State for its illegal or unjustified acts. The aim of reprisal is to punish the
recalcitrant State, and to compel the delinquent State to discontinue the wrongful act and
compensate the State wronged. Reprisals are injurious or otherwise internationally illegal
acts of one State against another and are exceptionally permitted for the purpose of
compelling the latter to consent to a satisfactory settlement of a dispute created by its
own international delinquency. The delinquent act may be the violation of the dignity of a
foreign State, or its territorial supremacy, or the non-compliance with treaty obligations.
Reprisals differ from retortion, i.e., whereas in retortion action taken by the aggrieved
State is apparently legal to which no objection can be taken, in reprisals, it is not always
true and they may be contrary to international law and illegal. Reprisal is actuated by the
illegal act of the delinquent State, and retortion is resorted against the inequitable and
unfriendly act of another State. Reprisals may be performed against anything and
everything that belongs to or is due to the delinquent State or its citizens. Earlier, reprisal
involved the seizing of property or persons but later it included any coercive measure
adopted by a State to seek redress from the offending State. Reprisals may take various
forms, viz., an embargo of the offending State's ships, seizure of its property on the high
seas, economic sanction or boycott of its goods (which may amount to economic
aggression), bombardment or even pacific blockade. But the peace-time reprisals are
different from reprisal actions taken by a State during war, whose object is generally to
force an opponent State to stop breaking the laws of war. Since reprisal generally
involves the use of force, its legality is questionable under international law.
The right to resort to forcible reprisals has always remained controversial, and though the
law is unsettled in this respect, but to be valid, such acts must satisfy certain conditions.
The most authoritative law, specifying the conditions for reprisals, was laid down in the
Naulilaa incident by the Special Arbitral Tribunal in 1928. The incident occurred in 1915,
while Portugal was still neutral in the First World War. A German group entered
Naulilaa, a Portuguese post on the frontier of Angola and the then German South-West
Africa. Due to misunderstanding, three Germans were killed. As a measure of reprisal,

the Governor of South-West Africa sent a military expedition to the Portuguese territory,
which attacked several Portuguese posts and

drove out the garrison from Naulilaa. In the regions which Portuguese were forced to
vacate, a local uprising took place after the Germans returned to South-West Africa. The
suppression of the local uprising caused great harm to Portugal which expelled the
German consul from its country as a reprisal and demanded compensation. Before the
tribunal, Germany took the plea of legitimate reprisal. The tribunal observed that
"reprisals are acts of self-help'" and they "seek to impose on the offending State
reparation for the offence, the return to legality and the avoidance of new offences". They
are "limited by considerations of humanity and the rules of good faith, applicable in the
relations between States".
The tribunal laid down three conditions of legitimacy of reprisals:
a. Reprisals are illegal unless they are based upon a previous act contrary to
international law.
b. They must be preceded by an unsuccessful demand of redress. In fact, the
necessity of resorting to force is justified if the possibility of obtaining redress by other
means fails.
c. The measure adopted should be proportionate in relation to the injury suffered or
provocation received.128
The Tribunal found Germany guilty of using excessive force, without first requesting for
a redressal, and the Portuguese act not contrary to international law. Germany was held
liable to pay compensation for its unjustified act.
There have been several occasions when States have resorted to reprisals. The recent
example of its use has been the Israeli action on several occasions in bombing certain
areas of Lebanon, targeting the Arab guerillas based there for their violent acts directed
against Israelis over a period of time. But the legality of such measures is very much in
suspect in the context of the United Nations law, which prohibits the unilateral use of
force against the territorial integrity or political independence of any State (Art. 2(4)).
The Charter also obligates States to settle their disputes by peaceful means so as to
preserve international peace and security, and justice. They are also against the principles
and purposes of the Charter which mandate States to seek, first of all, a solution of their
disputes likely to endanger international peace and security through peaceful means (Art.
2(3)). Similarly, the General Assembly Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States of October 24, 1970,
declares that, "States have a duty to refrain from acts of reprisal involving the use of
force".129 Thus use of force as a part of retaliatory action is illegal under the modern
international law. Such actions can be justified only if their objective is to satisfactorily
settle the international disputes. But in the cases of collective reprisals or action under the
United Nations Charter,
_____________________
128 Naulilaa case (1928) 2 RIAA, p. 1012, at p. 1019. For the full award of the
Special Tribunal, see Revue de droit Internationale (1929), p. 255. The US termed its
bombing of Libyan targets on April 15, 1986, as reprisals for alleged Libyan involvement
for the attack on Americans in a German discotheque, frequented by American soldiers,
wounding over 50 Americans. The legality of the American action has been questioned;
see the Case Western Reserve Journal of International Law (Spring 1987).

129 GA Res. 2625 (XXV),' Oct. 24, 1970.

their justiciability has different considerations. They are resorted to make the recalcitrant
State to comply with the United Nations Charter or the rules of international law and stop
acts which threaten international peace and security.130
In 1978, in the case of Air Services Agreement case (France v. United States), the arbitral
tribunal coined the term countermeasures.131 Since then the term has been used to
indicate non-forcible measures, but that has not clarified the place of retortion and
reprisals in international law. The International Law Commission's [ILC] draft articles on
State Responsibility in Chapter III have defined the term countermeasures as non-forcible
measures taken by an injured State in response to a breach of international law in order to
secure the end of the breach and, if necessary, reparation.132 Non-forcible measures may
be taken by an injured State in breach of an internationally wrongful act against the State
responsible for that act. In this sense, countermeasures are somewhere between retortion
and reprisals. The codification by ILC is an indication of the acceptance of State practice
on the use of these measures, and these measures, retorsion and reprisals continue to exist
in international relations, even though their legality remains an issue. It is nevertheless
important to note that so long under international law no obligation exists to submit
disputes to obligatory judicial settlement, and as long as there is no agency enforcing
compliance with that obligation, retorsion and reprisals remain relevant as a means of
settlement of international disputes and enforcing international law.
C. Embargo
Embargo is yet another kind of coercive method for the settlement of international
disputes. It literally means detention of commercial ships by a State in its ports. Under
international law, embargo means the detention of ships of the offending State found in
the territorial waters and ports of the aggrieved State.133 The other forms of embargo
are: embargo arret de prince, i.e., detention of foreign ships to prevent the spread of
politically important news; and embargo jus angariae, i.e., the right of the belligerent
State to seize, and make use of neutral property, in case of necessity, under the obligation
to compensate the neutral owner. The vessels are detained to seek redress from the
offending State and in that sense, embargo is a form of reprisal. Embargo can be applied
by a State individually or collectively, under the authority
_____________________
130 During the course of Korean hostilities, the UN General Assembly, by Res. of
May 18, 1951, recommended for collective embargo by States against the People's
Republic of China and North Korea on their shipment of arms, ammunition and
implements of war. Many members nations acted upon this recommendation. Similarly,
under the Inter-American Treaty of Reciprocal Assistance, 1947, the decision was taken
by the Foreign Ministers of American States in January 1962, to suspend trade with Cuba
in arms and implements of war of any kind. Cuba challenged the validity of the decision,
alleging that it was an enforcement action devoid of the Security Council's authorisation
under Ch. VII of the Charter, but the objection was denied; see Starke, op. oil. 68, p. 521,
n. 10.
131 54 ILR 303.

132 See Report of the International Law Commission on the work of its 53rd Session,
UN Doc. A/56/10, adopted 9 August 2001.
133 This is termed as "hostile" embargo. On the other hand, there is also "civil" or
"pacific" embargo in which a State detains its own vessels to terminate its trade and
economic relations with offending State in order to exert financial or economic pressure
on that State. The legality of pacific embargo cannot be challenged unless it amounts to
economic aggression.

of the United Nations.134 However, this measure is clearly against the fiat of Art. 2(3) of
the United Nations Charter.
D. Pacific Blockade
Through pacific blockade, which is used during peace-time, the ingress and egress of the
vessels of other nations are prevented to and from the ports of the blockaded State. It is
often resorted to as a reprisal action to coerce the offending State to settle the dispute to
the satisfaction of the blockading State(s). The United Nations Charter in Art. 42 endorse
its use as a mean to "maintain or restore international peace and security". The latest
example of its use has been against Iraq in 1990, after it annexed Kuwait. The Security
Council called upon all the United Nations members, deploying maritime forces to the
area, to use such measures as may be necessary to halt all inward and outward shipping
for the purposes of inspecting and verifying their cargoes and destination.135
The pacific blockade is different from blockade used as a part of war operations by a
belligerent State against another. It is less violent than that used during war, and is more
elastic. Furthermore, it is generally confined to the ships of the blockaded State and the
third States are not bound to respect such a blockade. Their vessels are exempted from
blockade, i.e., they cannot be searched, seized and sequestrated for the violation of
blockade, unless the actual war exists between the blockading and blockaded States. The
ships of the third States cannot be subjected to prize court or to the obligations and
inconveniences of neutrality in the absence of actual war. Generally, it is adopted by the
powerful maritime nations against their weak counterparts, making it a war-like operation
without bearing the burdens of war.
All cases of pacific blockade are either a case of intervention or of reprisals. For example,
in 1916, Allied Powers blockaded the coasts of Greece for attacks on Allied forces in
Athens. In the first illustration of a successful operation of pacific blockade, in 1827,
Britain, France and Russia collectively blockaded the Greek coast in the interest of the
independence of Greece, occupied by Turkish'troops. The recent examples of its
application are of the United States' blockade of Cuba in 1962, and the United Kingdom's
declaration of a 200-mile Total Exclusion Zone (TEZ) around the Falkland Islands on
April 28, 1982 (it was extended to 12 miles from the coast of Argentina on May 7, 1982).
In both these cases, the naval operations were not confined only to the vessels of the
blockaded State, but to the ships and aircrafts of third States also. A third State's ships
could enter the zone with specific permission of the blockading State. Thus, they were
clearly different from a pacific blockade.136
The legality of pacific blockade, however, is questionable under the United Nations
Charter and contemporary international law, which prohibit the use of force unless
resorted to in pursuance of the United Nations action in the fulfilment of its purposes and
principles to maintain international peace and security.
_____________________
134 For collective embargo, see op. cit. 130.
135 See SC Res. 661 of Aug. 6, 1990, and Res. 665 of Aug. 25, 1990.

136 For more details of these incidents, see Henkin, Pugh, Schachter and Smit, op. cit.
126, pp. 702-704, 794-795; James J. McHugh, Forcible self-help in international law, 62
Naval War College International Law Studies, 139 at pp. 154-156 (1980).

E. Intervention
Intervention generally denotes an act of interference by one State in the affairs of
another.137 In a special sense, it is the dictatorial interference in the internal and external
affairs of another State, subverting thereby that State's sovereignty and independence.
Intervention as a means of settlement is the form of communication to one or both of the
conflicting States with a dictatorial request for the settlement of the conflict in a certain
manner, for instance, by the acceptance of certain terms. Intervention may be by a State
alone, or by several States collectively, such as in 1895 by Russia, France and Germany
against Japan, to force it to return the Chinese territory that Japan had ceded under the
Treaty of Shimonoseki. As a result of this intervention, Japan returned the territory.
In a difference between two States, intervention can take place at any time from the
moment a conflict arises till it is settled, and even immediately after the settlement. In
many cases, intervention has taken place before the outbreak of war between the
disputing States, to prevent the war. In other cases, third States have intervened during a
war which had broken out in consequence of a conflict.
Apart from dictatorial intervention, there are following kinds of intervention:
1. "Internal" intervention, i.e., a State interfering between the disputing parties of
another State, in favour either of the legitimate government or of the insurgents.
2. "External" intervention, i.e., a State interfering in the relations, generally of
hostile nature, of other States.
3. "Punitive" intervention, i.e., resorted to by a State as a measure of reprisal against
the offending state.
These acts of intervention amount to subversion of the State's sovereignty and, hence,
contrary to international law. Customary international law forbids intervention.
Dictatorial intervention for the settlement of a dispute is stronger than mediation or
diplomatic suggestion and is accompanied by a threat or use of force. This makes it
questionable under the United Nations Charter.
On December 21, 1965, in Resolution 2131, the General Assembly adopted a Declaration
on the inadmissibility of Intervention in the Domestic Affairs of States and the Protection
of their Independence and Sovereignty. It asserted that "no State has the right to
intervene, directly or indirectly, for any reason whatever, in the internal or external affairs
of any other State".138 The General Assembly reiterated this principle of non-
intervention in its Declaration on Principles of International Law on Friendly Relations
and Cooperation among States. Acts directed "against the personality of the State or
against its political, economic and cultural elements", declared
_____________________
137 To constitute intervention, the interference must be forcible or dictatorial, or
otherwise coercive, in effect depriving the state intervened against of control over the
matter in question. See R. Jennings & A. Watts (ed.) L. Oppenheim, International Law,
Vol. I, 9th ed. (Pearson Education (Singapore) Pvt. Ltd.), 1996, para. 129. Intervention in
a dispute consists of dictatorial interference of a third State for the purpose of settling the
difference in the way demanded by the intervening State, ibid., Vol. II, 7th ed. (1952), pp.
150-51.
138 GA Res. 2131 (XX), Dec. 21, 1965.

to be "in violation of international law".139 Thus, every State is under a duty not to
foment, incite or tolerate subversive, terrorist or armed activities directed towards the
violent overthrow of the regime of another State. The International Court of Justice
further endorsed this position in the Nicaragua case by stating that any act of intervention
serving by design or implication to impinge the political independence, economic system
or influence the foreign policy by methods of coercion, especially by force, is
prohibited.140
The Monroe Doctrine, proclaimed by the United States President in 1823, though
primarily aimed at non-intervention, had political aspects rather than legal. It contained
three distinct principles: (a) the principle of "non-colonisation", i.e., that no part of the
American continent would be subjected to future colonisation by any European Power;
(b) the principle of "non-intervention", i.e., the American States would not interfere in
European wars or European affairs; (c) the United States would regard any attempt by the
European Powers to extend their system to any part of the American continent as
dangerous to its peace and safety. The last one has become the guiding principle of the
United States policy since the nineteenth century and used by the United States as a
pretext to intervene in the affairs of American States. The unilateral declaration in the
form of Monroe Doctrine has been used by the United States to conclude treaties to
strengthen its inter-American security arrangements,141 which have given it a free hand
to intervene. This is evident from the Cuban "quarantine" in 1962, the United States
troops landing in Dominican Republic in 1965 to ward off the establishment of a
communist government there, or helping the "contras" in the Nicaragua civil strife to oust
the Sandinista Government in 1981.
There are, however, the following exceptions to the principle of non-intervention under
international law and the United Nations Charter:
1. A State can intervene in the affairs of a protectorate under its dominion in
accordance with the terms of the treaty. Technically, however, it cannot be termed as
intervention because it is done with the consent of the State, as evidenced by the treaty.
2. A State can intervene to protect the life, rights and interests of its citizens abroad.
This right of intervention, used as a measure of self-help under customary international
law, is relied upon by nations even now. The landing of the multinational force led by the
United States in Grenada in 1983 was justified on this ground.142 In 1956, Britain and
France justified their intervention in the Suez canal crisis (primarily between Egypt and
Israel) on the plea that "intervention was designed to protect the lives of our nationals and
to safeguard the Suez canal". The action was criticised by the international community.
Under modern international law such a right is very controversial and it may be an
instance of forcible intervention. The Israeli action at the Entebbe airport of July 3, 1976,
to secure the rescue of its citizens from a hijacked French aircraft on June 27, 1976 was
widely criticised.143
_____________________
139 GA Res. 2625 (XXV), Oct. 24, 1970.
140 See op. cit. 69, at p.111, para. 205.
141 See the Inter-American Treaty of Reciprocal Assistance of Rio de Janeiro, 1947,
and Pact of Bogota of the Organisation of American States, 1948.

142 The United States intervened in Panama in the 1989 on the same ground, the
action was criticized by the General Assembly, see GA Res. 44/240 of Dec. 29, 1989.
143 See The Entebbe Incident, UN Docs. S/PV, 1939, pp. 27, 51-59, and S/PV 1941,
pp. 31-32, reprinted in 15 ILM 1224 (1976).

3. A State has a right to intervene in self-defence if intervention is necessary to

contain the danger of actual armed attack, leaving no choice of means, and no moment
for deliberation for the State concerned, as was laid down in the Caroline case.144 Under
the United Nations Charter, the right of self-defence has been accepted as an "inherent
right" of a State which can be invoked only if the State is subjected to an "armed
attack"145 and until the Security Council has taken measures necessary to maintain
international peace and security (Art. 51).
4. Intervention in the form of collective action is permitted if done in pursuance of
enforcement action under Chapter VII of the Charter or sanctioned by the General
Assembly as a peacekeeping measure taken under the Uniting for Peace Resolution of
November 3, 1950. Otherwise, Art. 2, para. 7 categorically prohibits intervention "in
matters which are essentially within the domestic jurisdiction of any State". The Security
Council authorised such intervention in Iraq,146 Bosnia and Herzogovina,147 and
Somalia.148 The NATO bombing of Federal Republic of Yugoslavia (Operation Allied
Force) and intervention in Kosovo in March 1999 was not approved by the Security
Council and the action was considered as illegal.149
5. Under customary international law intervention is justified as an act of reprisal or
if it is authorised under a treaty with the State concerned. India's act of sending Indian
peacekeeping forces (IPKF) to Sri Lanka under the Indo-Sri Lanka Agreement concluded
on July 29, 1987, does not amount to intervention. The United States justified its
intervention in the Vietnam War on the basis of SEATO and the invitation from South
Vietnam. Similarly, if a State makes a specific request to send the forces such as the
President of Maldives requested the Government of India to send armed forces in 1987 to
quell the attempted coup against his regime will not amount to intervention.150
6. Customary international law also allows intervention on the humanitarian grounds
to prevent a State from committing atrocities against its own subjects or suppress their
religious freedoms, even though the treatment of its own subjects is a matter pertained
exclusively to
_____________________
144 The Caroline case, 28 BFSP, 1137-1138; 30 BFSP 195-196. See also Jennings, 32
AJIL 82 (1938). In this case, it was laid down that for exercising the right to intervene, a
State must show "a necessity of self-defence, instant, overwhelming, leaving no choice of
means, and no moment for deliberation".
145 In Nicaragua case, the ICJ observed that "an armed attack" must be understood
"as including not merely action by regular armed forces across an international border,
but also the sending by or on behalf of a State of armed bands, groups, irregular or
mercenaries" whose acts are of such gravity as to amount to an actual, armed attack
carried by regular forces, op. cit. 69, at pp. 103-104.
146 S.C. Res. 688, April 3, 1991.
147 S.C. Res. 770, August 13, 1992; S.C. Res. 776, September 14, 1992.
148 S.C. Res. 794, December 3, 1992.
149 See UN Doc. S/PV 3988, March 24, 1999. The bombing lasted from March 24.
1999 to June 10, 1999. The legality of the NATO aerial bombing was challenged by the

FRY against 10 NATO members before the ICJ. The ICJ refused to pass any provisional
measures as requested by the FRY against the NATO nations.
150 In Nicaragua case, op. cit. 69, the ICJ made a distinction between assistance to the
government of a State and assistance to an opposition forcibly to overthrow the
government. The former is allowed, the latter is forbidden.

its domestic jurisdiction. However, it is difficult to say whether intervention on the

grounds of violation of human rights is allowed in the light of the United Nations
obligations contained in Art. 2, paras. (3) and (4).151 The NATO's 78-day air campaign
over Kosovo in 1999 as humanitarian intervention became very controversial as it was
alleged to be in violation of Art. 2(4) of the Charter.152
Under customary international law, intervention is subject to the condition that the action
taken should be proportionate to the wrong alleged to be in need of remedying. But in the
practice of the United Nations no exception has been created in favour of the human
rights under Art. 2(7). Their violation will not justify the intervention per se.
Nevertheless, the cases like the occupation of East Pakistan by Indian forces in December
1971, following an attack by Pakistan on Indian forces call for fresh re-evaluation of the
United Nations law on intervention and the violation of human rights. The political
developments in Pakistan after the December 1970 elections there, in which Awami
League won the elections, led to a widespread repression by the Pakistan Government to
crush the secessionist movement in East Pakistan, forcing millions of people to seek
refuge in India. With the moral support of India, guerilla warfare was resorted to by
refugees in East Pakistan against the Pakistan army. The State of Bangladesh
Government-in-exile was established in India. Pakistan attacked India on December 3,
1971, on the western border, which led to a full-fledged war at the East and West fronts
between the two countries. It finally led to the creation of a new State of Bangladesh,
after the Pakistan army surrendered on December 16, 1971 in Dacca. Indian intervention
in this conflict, which started as a civil war could be justifiable under Art. 1(3) of the
Charter in promoting and encouraging respect for human rights and fundamental
freedoms for all. It can also be justified in furtherance of the right of self-determination
(to exist in a non-colonialist situation). India did not invoke the doctrine of humanitarian
intervention to justify its action in Bangladesh war.
In the practice of States, providing humanitarian assistance to the people or the forces of
a State to prevent human sufferings is also not justified if done without the express
consent of the State concerned. Further, such assistance should be for a specific purpose,
otherwise it may amount to illegal intervention153 and contrary to the sovereignty of the
State.
Intervention in the civil war at the instance and the request of the government, i.e.,
"intervention by invitation" is not ipso facto an illegal act, though before intervening, a
State must act carefully, particularly where the outcome is uncertain. But if there is no
actual threat to the State's security or in the absence of any civil strife, such an act is of
doubtful validity.
_____________________
151 In the Nicaragua case, ibid., paras. 242-243, the ICJ viewed that humanitarian
assistance, whether financial or otherwise (blankets, food, etc.), is perfectly lawful,
provided that it is given equally to rebels and others in the community in need.
152 Legality of Use of Force (Yugoslavia v. Belgium), (Provisional Measures), Order of
2 June 1999, (1999) ICJ Rep. p. 124. Most of the States arguing in the present case did
not rely on humanitarian intervention as an autonomous justification for the use of force.

The plea of humanitarian intervention has not been supported by the majority of the
countries.
153 In June 1987, India sent relief supplies for the people of Jaffna under the Indian Red
Cross flag, which was refused by Sri Lanka. India later sent them through transport
planes escorted by mirage 2000 fighters which dropped the relief supplies. The legality of
this assistance is doubtful under international law without the consent of Sri Lanka.

Beirut landing of the United States forces in July 1958, at the invitation of the President
of Lebanon to assist against an alleged threat of insurrection and to protect the lives and
property of Americans or the British troops landing in Jordan on the similar basis, is not
justifiable under the international law. In the Vietnam war between 1961-72, the United
States pleaded in support of its act of intervention, the request being made by the South
Vietnamese Government and its obligation arising out of the South-East Asia Collective
Defence Treaty (SEATO) of September 1954, to which South Vietnam and the United
States were parties, and also as a right of collective self-defence under Art. 51 of the
Charter. The United States incursion of Cambodia (now Kampuchea) in 1970 to uproot
North Vietnamese and Vietcong military sanctuaries are blatant examples of violation of
the principle of non-intervention. But on the other hand, Tanzania's intervention to
overthrow the Idi Amin's regime in Uganda (1979) and Vietnam's use of force against the
murderous regime of Pol Pot in Cambodia (1978) have been justified on the ground of
self-defence. Law is however unclear regarding the conflict if it amounts to a civil war
rather than mere internal disturbance, as it is evident in Kosovo conflict where NATO
forces intervened. It is not clear whether there is a duty not to intervene in the absence of
United Nations or regional authorisation.

Page 489
CHAPTER 17
War and the Use of Force by States
I. GENERAL
Right of States to have recourse to use of force or war as a last resort to protect their vital
interests or settle disputes has increasingly become a limited option. But the decentralised
character of the international society, the absence of centralised machinery to settle
international disputes, and the politico-legal conditions allow States the right to use force.
Even if used as a last resort, this necessitates the legal framework within which the war-
time relations among States can be regulated. War was considered as a natural function of
a State and a prerogative of its uncontrolled sovereignty up till the time of the League of
Nations. Resorting to war was the unrestricted right of every State when it considered
that its vital interests were threatened or as a means of settlement of disputes. W.E. Hall
explains this customary position by stating that:
International law has no alternative but to accept war, independently of the justice of its
origin, as a relation which the parties to it may set up if they choose, and to busy itself
only in regulating the effects of the relation.1
This view, which was widely held during the nineteenth century abandoned the
distinction between the just (bellum justum) and unjust war (bellum injustum) drawn by
the classical jurists like Grotius. There was a general trend towards regarding any use of
force (pacific blockade, reprisals, or any act of intervention) and war as identical.
Under customary international law, war has been defined in the widest terms. According
to Wheaton, "war is essentially a struggle between States, involving the application of
force".2 In the opinion of Vattel, war is the condition in which nations prosecute their
rights by force.3 War had two functions to play, which were contradictory to each other,
(i) war was considered as a means of self-help, which was obviously a legal objective;
and (ii) it was recognised as a legally admissible instrument for attacking and altering the
existing rights of States independently of the objective merits of the attempted change,
this was the political objective. As a means of changing the law, its legality under the
existing system was questionable. War was not considered inconsistent with international
law, but a condition regulated by it.
_____________________
1. W.E. Hall, International Law, 8th ed. (Clarendon Press, Oxford), 1924, p. 82.
2. H. Wheaton, Elements of International Law, 7th ed. (Stevens & Sons Ltd., London),
1944, p. 68.
3. E. de Vattel, The Law of Nations (Text of 1758), in Classics of International Law
(Oceana Publications, New York), 1964, p. 235.

War as a concept
According to Oppenheim, war is a contention between two or more States through their
armed forces, for the purpose of overpowering each other and imposing such conditions
of peace as the victor pleases. This definition, which is widely acclaimed, has four salient
features.4 First, war is a contention, i.e., a violent struggle through the application of
armed force, including other measures incidental to it, such as blockade, prohibition of
contraband. Second, the contention must be between two or more States. This
requirement distinguishes it from a civil war which exists (i) when two opposing parties
within a State have recourse to arms for the purpose of obtaining power in the State, or
(ii) when a large segment of the population of a State rises in arms against the legitimate
government. But where the civil war turns into belligerency, it amounts to war, for
example, the United States war of secession between Northern and Southern States
during 1861-64 was a real war. Third, war is a contention between States through their
armed forces. Hence, the civilians of belligerents, not associated with war, should not be
attacked. Fourth, the purpose of war is to overpower the opponent. For this purpose, all
kinds of force can be used by a State.
This conceptualisation of war, which is entrenched in the traditional international law, is
also upheld by others.5 Though this conceptualisation offers an objective criterion for
war, it is not adequate in the context of developments that have taken place since the First
World War. There are instances where a state of war has existed without all these
elements being present. States may declare war on each other without the employment of
armed forces, for example, in the Second World War, out of nearly 50 States which
declared war against Axis Powers, only 20 actually used armed forces. Also, it does not
take into account factors such as the growth of the number of combatants and non-
combatants in war preparations, the development of aerial warfare and economic
measures, which affect the distinction between combatants (i.e., armed forces) and non-
combatants (i.e., civilians). The use of nuclear weapons has further narrowed down this
distinction.
This view also fails to explain the distinction between war and armed conflicts short of
war. The Korean conflict of 1950-53; the fighting in Indo-China, 1947-48; conflict over
Suez, involving Egypt, Israel, Britain and France, 1956; India-China border conflict,
1962; Congo conflict, 1960-63; Indo-Pakistan armed conflicts of September 1965 and
December 1971; hostilities in Lebanon in 1982-83; or the Falklands crisis of April-June
1982, though involving the use of armed force between States, did not receive the general
recognition of a state of war, although the States involved in conflict often called it so.
On the other hand, it is contended that it is the intention of the parties, i.e., animus
belligerendi that determines the nature of the contention as war or not. In favour of this
intent theory or subjective approach and on the question of what amounts to war, McNair
and Watts state, "War may begin, first, by a declaration of war.... In the second place, a
state of war will arise upon the commission of an act of force, under the authority of a
State, which is done animo belligerendi, or which being done sine animo belligerendi, the
State against which
_____________________

4 L. Oppenheim, International Law, Vol. II, 7th ed. (Longman, London), 1952, p.
202.
5 See, for example, J.G. Starke, Introduction to International Law, 10th ed.

Page 491 WAR AND THE USE OF FORCE BY STATES
it is directed expressly or impliedly elects to regard as creating a state of war"....6 Hence,

the existence of a state of war depends upon the determination of the parties to the
conflict, and can arise where only one of the parties to the conflict asserts the existence of
a state of war, even if the other denies it or keeps silence. State practice has, by and large,
accepted that for war to exist one contender at least must assert so.7 If the contesting
States fail to do so, third States are free to interpret at their discretion whether the
contention between the States with armed forces has created a status of war or not and
regulate their relations with the contesting States accordingly.
The subjective approach was also favoured in the 1927 Report of the Secretary General
of the League of Nations which laid down that from the legal point of view, the existence
of a state of war between States depends upon their intention and not upon the nature of
their acts. The term state of war denotes primarily the status of the parties rather than the
actual application of violence by one against the other. Thus, this conception of war
excludes armed hostilities from the scope of war and appears to be more realistic.
Nevertheless, it is not always easy to gather the "intention" which may be deduced from
the circumstances such as from the declaration of war either absolute or conditional (by
way of ultimatum) if made by any of the belligerents.
The question whether a state of war exists is of great significance under international law
(for example, for the purposes of law of neutrality) and municipal law (for example, to
determine the enemy character), but States generally refrain from regarding themselves as
legally at war. In the Falklands crisis, both the United Kingdom and Argentina did not
make any formal proclamation of war or any statement indicating that they regarded the
conflict as war. But, on the other hand, in the Indo-Pakistan conflicts, both the parties
considered themselves at war though none of them had declared war. The Vietnam
hostilities, which started as a non-armed conflict but soon escalated into a major armed
conflict from 1965, was described decisively as war by the Paris Agreement on Ending
the War and Restoring Peace in Vietnam of January 27, 1973.
Under the modern international law, no distinction exists between war and armed
conflicts short of war. For example, the Charter of the United Nations, which prohibits
the use of force, does not draw any such distinction. Similarly, the four Geneva
Conventions of the Red Cross, 1949, and the two Protocols, additional to the Geneva
Conventions, 1977, also do not maintain any distinction.
II. ATTEMPTS TO LIMIT THE RIGHT TO WAGE WAR

The right to wage war or use force by States has been substantially curtailed under the
existing legal order by different international legal instruments and the Charter of the
United Nations. Attempts to limit the right of a State to resort to war started with the
Hague Convention, 1907,
_____________________
6 Lord McNair and A.D. Watts, The Legal Effects of War, 4th ed. (Cambridge University
Press, Cambridge), 1966, pp. 7-8.
7 See Julius Stone, Legal Controls of International Conflict, revised with supp. (Stevens
& Sons Ltd., London), 1959, pp. 304-305. See also, G. Schwarzenberger, Frontiers of
International Law (Stevens & Sons Ltd., London), 1962, p. 248.

which provided for the "Limitation of the Employment of Force for the Recovery of
Contract Debts". The Bryan treaties concluded by the United States on bilateral basis
before the First World War also made it mandatory for the parties to the treaty not to
resort to war prior to the report of the Permanent Conciliation Commission.8
A. War and the Covenant of the League of Nations

The League of Nations made the first concerted effort to limit the right of States to resort
to use of force and provided a forum to settle their disputes by peaceful means. The
members undertook "to respect and preserve as against external aggression the territorial
integrity and existing political independence of all Members of the League" (Art. 10).
Towards this end, they agreed that if there arose between them a dispute likely to lead to
a rupture, they would submit the matter either to arbitration or judicial settlement, or to
enquiry by the Council. They agreed not to resort to war until three months after the
award by the arbitrator, or the judicial decision, or the report by the Council (Art. 12).
The three-month "cooling period" was provided to avoid "accidental" outbreak of
hostilities, started out of misunderstanding and without proper discussion. If a State had
resorted to war without following the above procedure, that would be deemed as "an act
of war against all other Members of the League" (Art. 16). But these limitations imposed
by the League Covenant on a State's right to wage war did not totally abolish the war.
They were confined only to the members of the League. Furthermore, it is highly
doubtful whether under the Covenant, measures short of war, such as armed intervention
or reprisals, were permissible without first having recourse to pacific means of settlement
of disputes.
B. The Pact of Paris and State Practice on War

The Covenant of the League in no sense abolished war. But the General Treaty for the
Renunciation of War, also known as Kellogg-Briand Pact or Pact of Paris, signed on
August 27, 1928, between the United States and France,9 laid down a comprehensive
prohibition on war and renounced it "as an instrument of national policy in their relations
with one another" (Art. I). Some 63 States (i.e., virtually all of the international
community at that time) were parties to the Treaty before the start of the Second World
War. The Treaty was never terminated (presently there are 66 parties to it) and became
the basis of the trial of war crimes after the Second World War. The signatories to the
Treaty renounced war both as a legal instrument of self-help against an international
wrong and as an act of national sovereignty for the purpose of changing existing rights.
The Treaty, containing only two articles and the Preamble, made the war illegal, but it did
not abolish war as an institution, which was still regulated in its major aspects by the
accepted rules of warfare. It only outlawed the "aggressive war" among its signatories in
their mutual relations. Theoretically, recourse to war was lawful under the Pact (1) as a
permissible means of self-help or self-defence, (2) as a collective action for enforcing
international obligation by
_____________________
8 On the procedure under the Bryan treaties, see supra Ch. 16, p. 452.
9 94 LNTS 57

virtue of existing instruments, (3) between signatories and non-signatories, or (4) against
a signatory who had violated the Pact.
The Treaty also suffered from few shortcomings, viz., (i) uncertainty as to how far the
prohibition against waging war included measures of force short of war;10 (ii) absence of
any provision for the authoritative ascertainment of breaches of the Treaty, and any
effective machinery to decide whether war has been resorted to or not; (iii) failure to
provide for collective enforcement of its obligations; and (iv) absence of a duty under the
Pact to submit disputes between its signatories to a binding settlement. Nevertheless, in
spite of these weaknesses, the Treaty was an important instrument which considerably
restricted the right of the signatories to resort to war.
During the inter-war period, right to wage war was also limited by a few other
instruments, such as the Draft Treaty of Mutual Assistance, 1923 (Art. I - declaring
aggressive war as an international crime); Protocol for the Pacific Settlement of
International Controversies, 1924 (Geneva Protocol, Art. II); and the Lacarno Treaty,
1925. The Anti-War Treaty of Non-aggression and Conciliation, 1933, signed at Rio de
Janeiro stated that "the High Contracting Parties do solemnly declare that they condemn
war of aggression in their mutual relations or with other States" (Art. I).
C. United Nations Charter and the Use of Force

The Kellogg-Briand Pact outlawed the waging of "aggressive war" but when the United
Nations Charter was adopted in 1945, it not only-outlawed "aggressive war" but also
prohibited any use of force or threat thereof. It covered both war and non-war armed
conflicts. Article 2(4) of the Charter provided that all members of the Organisation "shall
refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any other manner inconsistent with
the purposes of the United Nations". The purposes of the Organisation are set out in Art.
1, which inter alia are to maintain international peace and security and to develop friendly
relations among nations based on respect for the principle of equal rights and self-
determination of peoples. Any use of force by a State directed against another State
would be contrary to these purposes. The Charter avoids using the word "war". In the
opinion of the International Court of Justice in the Nicaragua case, Art. 2(4) only
reiterates the rule of customary international law against the use of force with an
expanded ambit applying to all States.11
The extent of the prohibition against the use of force in Art. 2(4) is not clear from the
text. But the use of force is clearly allowed in pursuance of a decision taken under Art. 39
by the Security Council for collective measures. Article 39 of the Charter empowers the
Security Council to determine "the existence of any threat to the peace, breach of the
peace, or act of aggression" and "make recommendations, or decide what measures shall
be taken ... to maintain
_____________________
10 In 1934, the International Law Association (ILA) stated that "[a] signatory State
which threatens to resort to armed force for the solution of an international dispute or
conflict is guilty of a violation of the Pact". Report of the 38th Conference of the ILA,
Budapest (1934), p. 67.

11 See the Military and Paramilitary Activities in and against Nicaragua case (Nicaragua
v. United States of America) (Merits), 1986, ICJ Rep. 14, para. 188, p. 103.

or restore international peace and security". The measures that are contemplated, once
such a determination has been made by the Security Council, are economic sanctions and
severance of diplomatic relations (Art. 41) which may be carried out without the use of
force. If these measures prove ineffective, the use of force, including blockade can be
resorted, to maintain or restore international peace and security (Art. 42). Thus, the States
can use force with the authority of the Security Council or under the Uniting for Peace
Resolution of the General Assembly. Resolutions of the Security Council in this regard
are binding on the members of the United Nations.
Use of force is also allowed under Art. 51 of the Charter (right of self-defence) to a State
as its "inherent right of individual or collective self-defence". But for an action under Art.
51, a decision under Art. 39 is necessary, i.e., that there is a threat of force, use of force,
or act of aggression. "Force" is confined to actual use of armed force. "Economic
measures", or threat thereof, or political coercion, though may often be threats to peace,
have not been considered to be within the purview of Art. 2(4) of the Charter.12
1. Definition of aggression
For the effective application of the collective security system against aggression as
envisaged in Chapter VII (Arts. 39-51) of the Charter, and to make a determination of
whether or not any threat to peace, breach of the peace, or act of aggression exists, an
objective criterion, free of political factors, is required when armed hostilities constitute
an "act of aggression". In 1952, the United Nations took up the task of defining
"aggression" in the context of Art. 2(4) and a Special Committee on the Question of
Defining Aggression was appointed in 1952, and again in 1954, by the General
Assembly.13 A third committee was appointed under a General Assembly Resolution of
December 18, 1967. The deliberations of the Committee ultimately led to the adoption of
the definition of aggression by the General Assembly on December 14, 1974.14 In its
resolution, the General Assembly drew the attention of the Security Council to the
Definition which can be taken into account while determining the existence of an act of
aggression for
_____________________
12 The proposal to include economic measures during the drafting of Art. 2(4) was
rejected at the time of drafting of the Charter, see 6 UNCIO Docs 335. It was similarly
not supported during the drafting of the 1970 Declaration on Friendly Relations and
Cooperation among States. The western nations, which all along opposed their inclusion,
after the 1973-74 oil embargo by the Arab countries, were prepared to admit that
economic and political pressures threaten the territorial integrity and political
independence of States, and they might even constitute illegal intervention. But in the
Nicaragua case, the ICJ found that the US economic sanctions against Nicaragua, as
complained by Nicaragua, were not in breach of the principle of non-intervention, see op.
cit. 11, para. 245.
13 In 1947, the ILC was requested to prepare a code based on the principles
recognised by the Nuremberg Tribunal and in the various war crime trials based upon
those principles. The ILC prepared a Draft Code of Offences against the Peace and
Security of Mankind and submitted it to the General Assembly in 1951. But the Draft did

not define aggression and only referred to certain acts as aggression. The ILC's work was
discontinued in 1954, in the absence of an authoritative definition of aggression, see GA
Res. 897 (IX) of Dec. 4, 1954. The ILC again started work on the subject in 1987, which
ultimately led to the adoption of the Rome Statute establishing the International Criminal
Court on 17 July 1998 that came into force on 1 July 2002.
14 GA Res. 3314 (XXIX) Dec. 14, 1974, 29th Sess. Supp. 31, p. 147; 69 AJIL 480
(1975).

the purposes of Art. 39. The Definition contains eight articles and leaves with the
Security Council overriding power to characterize any action not corresponding to any
enumerated acts in the definition. Article 1 provides:
Aggression is the use of armed force by a State against the sovereignty, territorial
integrity or political independence of another State, or in any other manner inconsistent
with the Charter of the United Nations, as set out in this Definition.
The word "State" is used without prejudice to the questions of recognition or to whether
it is a member of the United Nations, and it also includes a group of States, where
appropriate (Explanatory note).
The first use of armed force, in contravention of the Charter, by a State constitutes prima
facie evidence of an act of aggression, even though the Security Council may decide
otherwise, by taking into account other relevant circumstances, gravity of the conduct of
that State or the consequences of such conduct (Art. 2). Article 3 enumerates the specific
acts of aggression, which include: (a) invasion of, or attack on the territory of another
State, military occupation resulting from such an invasion or attack, or any annexation by
the use of force of the territory of another State; (b) bombardment or the use of weapons
against the territory of another State; (c) blockade of ports or coasts; (d) an attack on the
land, sea or air forces of another State; (e) the use of armed forces on the territory of
another State with the agreement of the receiving State, but acting in contravention of the
terms of that agreement or any extension of their presence in such territory beyond the
termination of the agreement; (f) the action of a State in allowing its territory to be used
for an act of aggression by another State against a third State; (g) the sending by or on
behalf of a State of armed bands, groups, irregulars or mercenaries which carry out acts
against another State of such gravity as amounting to acts of invasion, attack etc., or the
substantial involvement therein of the sending State. The acts enumerated in Art. 3,
however, are not exhaustive, and the Security Council may determine other acts
constituting aggression under the provisions of the Charter (Art. 4).
Article 5 provides that no consideration "of whatever nature, whether political, economic,
military or otherwise, may serve as a justification for aggression". A war of aggression is
declared as a crime against international peace, with aggression giving rise to
international responsibility. No territorial acquisition or special advantage resulting from
aggression is to be recognised as lawful. This gives expression to the established
principles of international law in this regard. But the use of force, as permitted under the
United Nations Charter, is still admissible as Arts. 6 and 7 contain certain saving
provisions. The Definition in no way prejudices the right to self-determination, freedom
and independence of peoples forcibly deprived of that right, nor the right of such peoples
to struggle and to seek and receive support to realise their goal in accordance with the
General Assembly's Declaration on the Principles of International Law concerning
Friendly Relations and Cooperation among States adopted in 1970 (Art. 7). Article 8
declares that the provisions of Arts. 1-7 are, in their interpretation and application,
interrelated and each of them is to be construed in the context of other provisions.
The definition clearly leaves out the economic aggression, which was already left out of
the purview of Art. 2(4) in the Declaration on the Principles of Friendly Relations among
States. The Definition, though falling short of legal perfection, is of immense importance

to the Security Council and the General Assembly, which have the responsibility of
maintaining international

peace and security under the Charter. It has received a general acceptance of States and
international organs, for which criteria and tests laid down in the Definition are more
valuable than the definition in the strict sense. After its adoption, the first finding of
aggression was made by the Security Council in 1976, when South Africa was
condemned for its aggression against Angola.15 A similar finding was also made against
Israel,16 and later against Iraq in 1990.
2. Right of self-defence
The right of self-defence or self-help is well-recognised under international law and Art.
51 of the Charter talks about this "inherent right" of a State. This right becomes more
important where law preserving agencies operating within the system are ineffective.
Self-defence operates to protect essential rights from irreparable damage, and its function
is to preserve or restore the legal status quo, and not to take the form of a remedial or
repressive character in order to enforce legal rights (this latter aspect is in the nature of
self-help).17
Under customary international law, a State enjoys a wide and largely ill-defined right to
employ force in self-defence. It is, however, subject to requirements, as laid down in the
Caroline case,18 of "necessity and proportionality", and the need to act being instant,
overwhelming, leaving no choice of means and no moment of deliberation, and not
unreasonable and excessive. It is available to a State to protect certain "essential rights",
viz., territorial integrity, political independence, freedom of navigation for its ships, the
protection of its economic welfare, the protection of its nationals abroad, and as a
measure of anticipatory self-defence, though the extent of the last two grounds have
remained very controversial. In the matter of protection of its nationals abroad, it has
always remained as a pretext of intervention on foreign territory.
Customary international law, however, does not make a distinction between self-defence
against the acts of war when the State is subjected to hostile acts against its territorial
integrity, and other coercive acts short of war, like reprisals to retaliate against previous
acts as a deterrent for the future.
Article 51 of the Charter, though accepting this "inherent right" of self-defence, restricts
the freedom of States to resort to self-defence. It reads as follows:
Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council....
Thus, the right of self-defence is available to a member as long as the Security Council
does not act or determine the legality of the action. A member cannot unilaterally
determine the legality
_____________________
15 SC Res. 387 (1976), SCOR, 20th yr., Resolutions and Decisions, p. 11.
16 SC Res. 573, ibid., p. 870, n. 79.
17 D.W. Bowett, Self-Defence in International Law (Manchester University Press),
1958, p. 11.

18 29 BFSP 1137-1138; 30 BFSP 195-196; Moore Digest, Vol. 7, p. 919 et seq. See
in D.J. Harris, Cases and Materials on International Law, 7th ed. (Sweet and Maxwell,
London), 2010, p.921; see also D.W. Greig, International Law, 2nd ed. (Butterworths,
London), 1976, p. 883- et seq.

of its action. Once the Security Council is seized of the matter and takes action against
the attacking State, the right of the State which is the victim of the attack comes to an
end.
The Article, however, is riddled with few ambiguities. It does not make a clear distinction
between measures of self-defence and reprisals. Whereas use of force in pursuance of
self-defence is permissible, but as a retributive step or retaliation, it is not permissible
under the Charter. In 1964, a British aircraft attacked a small fort situated in Yemen's
territory to retaliate against the Yemeni attack on the South Arabian Federation territory,
for whose protection Britain was obliged under a treaty. The British action was termed as
reprisal which is "incompatible with the purposes and principles of the United Nations"
and the Security Council members deplored the British action.19 Similarly, the Israeli
attack on Lebanon on December 28, 1968, was in retaliation of an attack which took
place two days earlier on its El Al airliner at Athens airport by two members of the
Popular Front for the Liberation of Palestine. In the Israeli attack, 13 aircrafts belonging
to various Arab airlines were destroyed. The Israeli action was condemned by the
Security Council, which was also found to be out of proportion to the incident prompting
such action.20
The action taken in self-defence remains subject to the Caroline's requirements of
necessity and proportionality against an armed attack.21
(a) Anticipatory self-defence

Article 51, which guarantees to States "inherent right" of self-defence "if an armed attack
occurs",22 has been argued to put limit on this right. In its ordinary meaning, the phrase
has been understood to preclude any action which is preventive in character, i.e.,
anticipatory self-defence.23 On the other hand, it has been argued that Art. 51 retains the
"inherent right of self-defence" independently of other provisions of the Charter, and it
does not restrict that right. A restriction on anticipatory self-defence may not bear any
relation with the actual realities which may call for self-defence immediately if it is to be
of any avail at all.24
However, granting the right of anticipatory self-defence cannot rule out the misuse of the
right and also it's resulting into a breach of international peace. But an objective criterion
can be laid down for its use when there is an imminent threat of an armed attack. Such a
_____________________
19 See H. Lauterpacht (Ed.), British Practice in International Law (The British
Institute of International and Comparative Law, London), 1971, pp. 109-113.
20 SC Res. 262 (1968); see text in 63 AJIL 681 (1969).
21 It was also confirmed in the Nicaragua case, op. cit. 11, para. 194, pp. 106-107.
See also the Oil Platforms Case (Merits) [Iran v. United States'] (2003) ICJ Rep. p.
<http://www.icj-cij.org> at 1 May 2004; 42 ILM 1334 (2003)
22 According to ICJ, the term "armed attack" not merely includes action by regular
armed forces across an international border, but also grave acts of armed force carried by
armed bands, groups, irregulars or mercenaries, Nicaragua case, ibid., para. 195, pp. 103-
104.

23 I. Brownlie, International Law and the Use of Force (Clarendon Press, Oxford),
1963, p. 275; Henkin also argues similarly, see L. Henkin, How Nations Behave, 2nd ed.
(Pall Mall Press, London), 1979, pp. 141-142.
24 See Bowett, op. cit. 17, pp. 188-192; Greig, op. cit. 18, pp. 892-893. In the
Nicaragua case, the Court did not express opinion on the issue of anticipatory self-
defence but accepted the right of individual and collective self-defence subject to
customary international law, see op. cit. 11, para. 193.

right was claimed by Israel against its Arab neighbours in June 1967, when the Arab
States launched a fierce campaign against Israel, whose ships were denied the right of
passage through the Suez Canal. Egypt had also demanded the withdrawal of the United
Nations Emergency Force (UNEF) that was supervising the 1956 Egypt-Israel cease-fire.
But such an action cannot be justified under the clear language of Art. 51, which grants
the right of self-defence to a State only "if an armed attack occurs". This action of Israel
could only be justified because the Security Council's resolutions for providing the free
passage to Israel's ships had been consistently flouted. However, on the other hand, there
was no justification in Israel's attack on an Iraqi nuclear reactor in 1981, which was
nearing completion. Israel justified its conduct on the ground of anticipatory self-defence
as the reactor could be used to manufacture weapons that would have been used against
Israel. The Security Council condemned Israeli action.25 Apparently, this action of Israel
did not show any imminent threat of an armed attack against Israel, nor was the matter
brought to the Security Council in any form before Israel took this action. Before
resorting to the right of anticipatory self-defence, the State should bring the matter to the
knowledge of the Security Council. Similarly, in the matter of the United States air raids
in Libya in April 1986, the US was criticized for its alleged 'pre-emptive action' against
Libya.26
(b) Right of Self-defence against Terrorism

September 11, 2001 attacks on the World Trade Center and the Pentagon in the United
States gave a new thrust to the right of self defence. The attacks by Al-Qaida activists
against the United States were termed as an 'act of war' by the US administration. The
American interpretation of the terrorist attacks as armed attacks was largely accepted by
other states, and the North Atlantic Council also regarded the terrorist acts as an armed
attack. The United States began Operation Enduring Freedom on October 7, 2001 with
the aim of thwarting the use of Afghanistan as a terrorist base by Al-Qaida on the ground
of right of self-defence. The United Kingdom joined the United States by invoking
individual and collective self-defence. Other countries also supported this action. Prior to
Operation Enduring Freedom, the Security Council, in its resolution 1368 adopted on
September 12, 2001, recognised the right of individual and collective self-defense against
terrorism. Subsequently, resolution 1373, adopted on September 28, 2001, also included
express reference to individual and collective self-defence. These resolutions, while
reaffirm the inherent right of self defence, for the first time recognised this right against
terrorist acts.27
The resolutions were adopted under Ch. VII of the Charter, and are therefore binding on
all UN members States. These resolutions, however, have widened the concept of armed
attack. Article 51 originally envisaged self-defence against an attack by a State. But now
it is perceivably accepted that a terrorist attack on a State's territory by a non-State
actor/terrorist
_____________________
25 SC Res. 487 (1981), SCOR. 36th yr., Resolutions and Decisions, p. 10. For the
Security Council debate, see Doc.S/PV.2280, June 12, 1981, reprinted in 20 ILM 965
(1981).

26 The Security Council resolution condemning the US action was vetoed by US, United
Kingdom and France, see S/PV2682, April 21, 1986.
27 See Christine Gray, The Use of Force and the International Legal Order, in Malcolm
D. Evans (Ed.) International law (Oxford University Press) 2nd ed. 2003, pp. 603-605.

organisation is an armed attack which justifies a response against the State that harboured
or sheltered the terrorists. However, in the November 26, 2011 attacks in Mumbai, India,
by terrorists who invaded from Pakistani seawaters, were members of Lashkar-e-Taiba,
the Pakistan-based militant organisation, considered a terrorist organisation by many
States, including India, Pakistan, the United States, the United Kingdom, and the United
Nations. Despite the clear evidence of their Pakistani links, the Indian government did
not take recourse to the right of self-defence.
The right of self-defence claimed by the United States in response to the terrorist attacks
is also pre-emptive or anticipatory to deter further attacks.28 This stand of the United
States has widened the scope of right of self-defence by injecting legality to anticipatory
self-defence, which was all through rejected by States. But this approach taken by the
United States is obviously in conflict with the Security Council resolutions 1368 and
1373 which require the Security Council backing for the right of self defence against
terrorism. The Security Council Resolution 1566, adopted on October 8, 2004, provides
an internationally recognised definition of terror for the first time and calls on countries
to prosecute terrorists who aid and abet terrorists. It defines 'terrorism' as "criminal acts,
including against civilians, committed with the intent to cause death or serious bodily
injury, or taking of hostages, with the purpose to provoke a state of terror in the general
public or in a group of persons or particular persons, intimidate a population or compel a
government or an international organisation to do or to abstain from doing any act." It
also created a working group that will expand the list of terrorist entities under sanction
beyond the Taliban and Al-Qaida.
(c) Territorial Integrity and Political Independence

The United Nations Charter clearly respects the territorial integrity and political
independence of a State, and any armed attack mounted against it, entitles a State to
resort to its right of self-defence against an aggressor, and Art. 2(4) is no barrier. But it is
doubtful whether this right of self-defence is available in cases falling short of an armed
attack. However, a State's territorial integrity is not extended to allow it to prepare an
invasion against another State. Territorial integrity does not denote the inviolability of a
State's act amounting to breach of the peace or act of aggression. Similarly, in furtherance
of its right of self-defence, if a State captures the territory of the aggressor, it is prevented
to annex it. In the 1967 "June War", the occupied Arab land, i.e., Sinai from Egypt, West
Bank of the River Jordon from Jordon, and Golan Heights from Syria, even though
remaining in occupation of Israel, was never annexed by Israel. West Bank and Sinai
areas have been returned by Israel after the agreements reached with Jordon in July 1994,
and Egypt in 1979, after they recognised Israel as an independent State.29 In this matter,
the Security Council had also adopted a resolution in 1967, which stated the
inadmissibility of the acquisition of the territory by
_____________________
28 The United States, in September 2002 adopted its National Security Strategy in which
it sets out its approach to the threat posed by 9/11 and stated that the US 'has long
maintained the option of preemptive actions [or anticipatory self-defence] to counter a

sufficient threat to our national security.' See US National Security Strategy, (2002) 41
ILM 1478; D.J. Harris, op. cit. p. 945.
29 Presently efforts are underway to have a similar agreement between Syria and Israel.

war, and for the respect of sovereignty, territorial integrity and political independence of
every State in the area.30
However, the State's right of self-defence to protect the nationals abroad is very
controversial in the context of Art. 51 and most of the writers consider it as an unlawful
intervention. It may become a ploy to commit the breaches of peace in furtherance of
national rather than humanitarian interests.31 The right was not specifically endorsed in
the Entebbe Incident of 1976, in which Israel used armed force to free the Jewish
passengers of an Air France airliner, taken as hostages after the plane was hijacked to
Entebbe airport in Uganda by two German and two Arab passport holders. The transport
aircraft and soldiers flown by Israel to Entebbe were without the knowledge and consent
of Uganda and use of force led to the death of the hijackers and extensive damage to the
Ugandan aircrafts and airport. The Israeli action was clearly not justifiable under the
international law. But the humanitarian intervention by the Security Council has now
been well established.32
It is also now well accepted that as a part of its right of self-defence, a State can resort to
stop and search the foreign vessels on the high seas if reasonable grounds exist for
suspecting that the ship is carrying arms to the belligerent for use in the conflict. In the
Algerian emergency in 1956-62, France resorted to this measure.33 In the Cuban
Quarantine, the United States was concerned about the shipment of equipment destined to
Cuba that would threaten the United States security in future and there were no on going
armed hostilities. The action of the United States is questionable in the context of the
right of self-defence and it was also not endorsed by the Security Council.34 Similarly,
the United States action in the Gulf of Tonkin, in which it bombed the North Vietnam
base, was taken in the absence of any Security Council resolution. The United States
justified its action in terms of freedom of the high seas and the right of self-defence, but
the Soviet Union termed it as an act of aggression.
(d) Collective Self-defence

Article 51 talks about the "individual or collective self-defence". In collective self-
defence or security, the armed attack against a State will invite the help of another State
which in fact is not the subject of any attack or there is no threat to its security. The other
State may help the victim of the attack under a treaty or on invitation and cannot stay as
neutral. They
_____________________
30 See Res. 242 of Nov. 22, 1967; see also Res. 338 (1978). In the case of Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (2004)
ICJ Rep., p. 136 [Advisory Opinion of 9 July 2004], the Court found the action of Israel
as illegal.
31 I. Brownlie, Principles of Public international Law, 7th ed. (Oxford University
Press, Oxford), 2008, p. 74.
32 See the SC Res. 688, April 3, 1991, in the matter of protection of Kurds in Iraq;
Res. 770, August 13, 1992 in the matter of humanitarian assistance in Bosnia and
Herzegovina; and in the case of Somalia, Res. 794, December 3, 1992. Action by
regional security organisation - NATO's military intervention and air-strikes in Kosovo

was not found to be justified on humanitarian grounds, see UN Doc. S/PV 3988, March
24, 1999. The FRY challenged the legality of these strikes before the ICJ, see Legality of
Use of Force Case (Provisional Measures) (1999) ICJ Rep., p. 826.
33 See 4 Whiteman, pp. 513-515.
34 The US imposed quarantine of the Cuban coast on Oct. 23, 1962 after the Security
Council failed to take any action. The action, however, was approved by the Council of
the OAS.

together or individually take such action as they deem necessary to restore peace and
security. Collective defence generally takes the form of regional organisations. Article 51
included this right in order to provide the legal basis to a number of regional security
systems and certain international treaties. In Latin America, it started with the United
States unilaterally declared Monroe doctrine (in 1823), which has now become the moral
justification for the United States to assert its "sphere of interests" policy. The 1940
Declaration only carried forward this policy and any act of a non-American State directed
against the political independence; sovereignty of an American State to be considered as
an act of aggression against all the signatories. The North-Atlantic Treaty, the Warsaw
Pact (now defunct), the South-East Asia Treaty, contain provision of collective self-
defence, i.e., attack against one would be deemed to be an attack against all of them. In
fact, in the Vietnam conflict (1961-72), one of the arguments given by the United States
was the application of the South-East Asia Treaty signed on September 8, 1954.
Under Art. 51, the right of self-defence is not impaired until the Security Council has
taken the effective action. In practice, because of the "veto" power of the five permanent
members, it is not always easy to make Art. 51 operative or to determine the legality of
the act and the collective measures required in self-defence, with the result that the
Security Council may never act and the right of self-defence may become of an unlimited
duration; or it may not take "necessary measures" or measures taken may prove
inadequate. To overcome the rigours of veto, the Uniting for Peace Resolution of
November 3, 1950,35 empowers the General Assembly to act when the Security Council
fails to do so and restore international peace and security through its peacekeeping
operations. Nevertheless, this leaves the State's inherent right of self-defence largely
unaffected under the present operation of Art. 51. Article 51 does not oblige a member-
State to inform the Security Council about such an action, but the regional organisations
shall keep the Security Council fully informed of their activities taken for the
maintenance of international peace and security (Art. 54).
The prohibition against the use of armed force is equally binding upon a non-member of
the United Nations who is to act in accordance with the principles of the Charter,
necessary to maintain international peace and security (Art. 2(6)). If its acts threaten
international peace and security, the Security Council can decide to take necessary action
under Arts. 39, 41 and 42. However, there is no explicit provision in the Charter about the
right of self-defence of a non-member. But, Art. 51 talks about the "inherent right" of
self-defence which is obviously available to a non-member till the Security Council acts.
The only case involving a non-member and where the Security Council acted was that of
South Korea after it was attacked by North Korea (also a non-member) in June 1950. The
Security Council took enforcement action under Chapter VII of the Charter against North
Korea.36
_____________________
35 General Assembly Resolution 377, A/RES/377 (V), November 3, 1950.
36 About this case, see infra Ch. 19, pp. 516-511. In the case of border armed
conflict between India and the People's Republic of China in Oct-Nov. 1962 (China was
not represented on the UN at that time), while the Security Council was seized with the

issue of armed incursion and to decide about the appropriate measure, China declared a
unilateral cease fire.

III. STATE OF WAR

A. Commencement of War
A condition of war can arise either (i) through a declaration of war, or (ii) through a
proclamation and manifesto by a State that it considers itself at war with another State, or
(iii) through one State committing hostile acts of force against another State. Hence, a
declaration of war is not a must to bring into existence state of war between the parties.
If there is a declaration, then war, as between the belligerents is considered to have
commenced from the date of its declaration, even though actual hostilities may have
commenced much later. Presently, because of the prohibition against the use of force
under the Charter, States refrain from proclaiming a declaration of war. In the past also,
the practice varied from time to time.
In the seventeenth century, Grotius opined its necessity but State practice was otherwise.
Between 1700 and 1870, out of 117 cases, only in 10 cases was a declaration of war
made. In the later part of the nineteenth century, some sort of preliminary warning by a
declaration or ultimatum was required. But in spite of that Japan attacked Russia in Port
Arthur in 1904, without prior declaration. Japan justified its action on the grounds of
breaking off negotiations with Russia, and notification to Russia of its right to take
independent action to protect her interests.
In the Second Hague Conference of 1907, Convention III (on the Opening of Hostilities),
Art. 1 provided for an explicit warning "which shall take the form either of a declaration
of war, giving reasons, or of an ultimatum with a conditional declaration of war" prior to
the commencement of the hostilities. An ultimatum could be simple or qualified. Further,
neutral States should be notified immediately (even by telegraph) about the existence of
war. These States were not to plead absence of such a notification where the knowledge
of the state of war was otherwise established. These provisions were largely respected
during the First World War, but during the inter-war period and the Second World War
they were not followed. Japan's invasion of Manchuria in 1931-32 and the Italian
aggression against Abyssinia in 1936-38 were done without any formal declaration.
After the Second World War, the parties to the United Nations Charter have not followed
this practice in majority of the armed conflicts. But this does not make the procedure of
declaration of war altogether obsolete. The reasons for not making a formal declaration of
war before the commencement of hostilities are manifold: First, the Charter prohibits the
use of force, and the Pact of Paris, which has got the force of customary international law
now, also renounces war as a national policy, therefore, declaration of war would amount
to a violation of these express provisions. Second, States by non-declaration of war could
evade the provisions of the collective action by the Security Council under Chapter VII.
Third, by non-declaration of war, States might also evade other obligations of war, such
as prize courts, war crime trials, etc.37
_____________________
37 According to Oppenheim, the deliberate forcible acts of a State directed against
another State without formal declaration or qualified ultimatum tantamount to an
"international delinquency" but it is nevertheless a war situation; see, op. cit. 4, p. 299.

B. Effects of Outbreak of War

With the outbreak of war, the peaceful relations between the belligerent States come to an
end. The war, besides affecting the neutrals, effects the belligerents' mutual relations,
such as diplomatic, treaty and commercial, in many ways, which are discussed below.
1. Diplomatic and consular relations

At the outbreak of war, the first to be affected are the diplomatic and consular relations,
which come to an end. Diplomats and consulars are recalled by the sending State, who
are entitled to diplomatic and consular privileges for leaving the country. Article 44 of
the 1961 Vienna Convention on Diplomatic Relations provides that the receiving State
must grant necessary facilities, including the necessary means of transport, to enable such
persons to leave at the earliest possible time. The archives, if left behind, are placed under
seal. Article 31 of the 1963 Vienna Convention on Consular Relations also provides that
the consular premises, furnishings and property are immune from requisition. They may
be appropriated if prompt, adequate and effective compensation is paid.38
2. Treaties and war

The law relative to the effect of war on treaties is very much unsettled. The subject has
been left out of the purview of the 1969 Vienna Convention on the Law of Treaties. State
practice also varies considerably and jurists have taken the extreme views. The older
authorities held the view that the outbreak of war ipso facto annuls all treaties between
the belligerents. But this extreme position has been discounted by the modern authorities.
The Institut de Droit Internationale (Institute of International Law) has also held similarly
in its 1985 Resolution.39 Modern State practice also does not support this view.40
On the outbreak of war, certain classes of treaties are annulled, others remain in force,
and some are merely suspended, which become operative on the conclusion of peace
accord at the end of war or armed hostilities containing express stipulation to this effect.
Automatic abrogation, however, is not generally favoured by courts.41
Whether a treaty will remain in operation after the war or armed hostilities have
commenced, two tests are operative in this connection: (i) the subjective test, i.e., whether
the treaty will remain in force or will be terminated, the intention of the parties is
examined in this regard; (ii) the objective test, i.e., whether it is possible to execute the
treaty in the context of war.42
_____________________
38 The 1961 and 1963 Conventions do not talk about the appropriation and the
payment of compensation. This rule may be based upon the customary international law.
39 See Art. 2 of the Resolution which contains 11 articles.
40 In the North Atlantic Coast Fisheries Arbitration, 1910, the Tribunal observed that
"international law in its modern development recognises that a great number of treaty
obligations are not annulled, but at the most are suspended" during war, cited in Lord
McNair, Law of Treaties (Clarendon Press, Oxford), 1961, p. 699.
41 For American practice, see S.H. Mclntyre, Legal Effect of World War II on
Treaties of the United States (M. Nijhoff, Dordrecht), 1958.
42 Starke, op. cit. 5, pp. 544-545.

On the basis of these tests and considering the State practice, the following conclusions
have been drawn in this regard:
a. Bilateral treaties of political nature between the belligerent States, such as treaties
of mutual assistance or of alliance come to an end;
b. Treaties creating permanent situations or executed treaties, and creating rights in
rem, such as boundary treaties or treaties of cession are not affected by war and remain in
force;
c. Commercial and administrative treaties are not annulled but remain suspended,
and get revived at the end of war with the signing of the peace accord;
d. With regard to other treaties which require continuous good relations between the
parties, in the absence of any clear expression of intention to the contrary, they get
suspended, for example, extradition treaties;
e. Multilateral treaties, in the nature of "law-making", are not annulled but may
remain suspended between the belligerents, or may receive partial application during war.
But a treaty establishing an international organisation remains unaffected;
f. Certain multilateral treaties become operative between the belligerents during
wartime, such as the Hague Conventions of 1899 and 1907, and other treaties relating to
rules of warfare, for example, the four Geneva Conventions of 1949 and two Additional
Protocols of 1977 to these Conventions remain binding;
g. Certain treaties contain express provisions to this effect. For example, Art. 38 of
the Aerial Navigation Convention, 1919 (the Paris Convention), allow full freedom of
action to contracting parties, whether belligerents or neutrals, during war, which
meant that the Convention may remain suspended during wartime. Article 89 of the
Chicago Convention lays down similarly and the intention of the parties will determine
the operation of the treaty.
3. Commercial relations
At the outbreak of war, all trading and commercial intercourse between the belligerents
comes to an end. This is done through a special legislation on the subject by the
belligerent State. Contracts between citizens of the belligerents are similarly regulated by
the municipal law. However, the State practice reveals that the executory contracts (i.e.,
those which have not been completely performed before the war) become void during
war. Perhaps it is for this reason that trading or intercourse with the enemy is against
public policy because such a relationship may increase the resources of the enemy. But,
on the other hand, the executed contracts (those which were executed before the war but
some obligations remain to be performed by either side) or liquidated debts remain
unaffected, but their enforceability may be suspended until the war comes to an end.

4. Enemy property
It can be of two types, i.e., property of public nature, and of private nature (held by
private citizens of the enemy State).
(a) Enemy Public Property

Enemy public property belongs to the enemy State itself. Property situated in the territory
of the State can be confiscated. The enemy movable property if located in the enemy
occupied territory can be confiscated, but such a property may be appropriated if it is
useful for local military purposes. Immovable enemy property may be used but cannot be
acquired or seized. Sale of such a property is totally prohibited. In some cases, it can be
destroyed if it is necessary for military operations, such as barracks, bridges, roads or
forts. Warships and other public and private vessels can also be confiscated except those
engaged in discovery, exploration, scientific activity, religious activity or are on hospital
duty.
(b) Enemy Private Property

Property situated in the territory of a belligerent State can be seized temporarily but
cannot be confiscated. Its fate can be decided in accordance with the provisions of the
peace treaty concluded after the war. Private property in occupied territory normally
should not be interfered unless it is militarily useful. Private property cannot be
confiscated for private use of the occupying forces. It can be taken over if it is necessary
for the local needs of the army for occupation. But its plunder or seizure is contrary to
international law. However, the private enemy ships and enemy cargoes at sea can be
confiscated. Neutral ships carrying enemy goods are exempted unless these goods are
contrabands or useful in warlike purposes.
5. Enemy character
At the outset of war, it becomes necessary for the parties to take necessary measures
against enemy persons and property to realise the object of the war by prohibiting the
trading with the enemy persons (natural and legal) and seize their property. For that
matter, the enemy character needs to be determined, which is not always easy. Once it is
so determined, the belligerent takes appropriate action under its laws. No conventional
rules exist on this matter, but on the basis of State practice certain rules have come to
exist to determine the enemy character of the individuals, corporations and goods.
(a) Enemy Character of the Individuals

The general rule is that subjects of the belligerents bear the enemy character, whereas the
subjects of a neutral State do not. However, there is no uniform State practice to
determine the nationality of the subjects of the belligerent. Under the Anglo-American
practice, the residence or domicile as against the Continental rule of nationality are the
determining criteria. But because of the exceptions to these two rules, in practice, hardly
any difference exists between the Anglo-American and Continental practice. On the basis
of this practice, combatants and residents of an enemy

State, whether its own subjects or neutral residents who have elected to live there, are
treated as enemy persons. Even residents of militarily occupied area get the same
character so long as military occupation continues. For this purpose, residence must be
more than temporary.43 Bui the subjects of the enemy State residing in a neutral State are
not deemed to bear the enemy character. On the other hand, if the subjects of a neutral
State participate in any activity against the belligerent State, like carrying on business,
carrying goods, enrolling their names in the army, or by acting against the interest of the
belligerent State, then they may be deemed to have the enemy character.
(b) Enemy Character of the Corporations

Enemy character of the corporations is determined on the basis of: (i) residence or
domicile, or (ii) place of registration or incorporation. Under the Anglo-American
practice, it is the place of incorporation that determines the nationality of the corporation,
i.e., if a corporation is incorporated in an enemy State, it bears the enemy character. In
the Continental practice, the principal place of business or residence determines the
nationality and if it is in the enemy State, the corporation has the enemy character.
However, it is doubtful whether a corporation carrying on business in an enemy country
but not incorporated there also possesses enemy character, and, further, whether a
corporation neither incorporated nor carrying on business in an enemy country could
under any circumstances acquire that character. The law has settled that the enemy
character is attached to companies wherever incorporated, if carrying on business in an
enemy country. On the latter question, Britain adopted a new approach during the First
World War. Instead of the incorporation test, the test of enemy association or enemy
control was followed.
The House of Lords in the Daimler Co. Ltd. v. Continental Tyre and Rubber Co. (GB)
Ltd.44 laid down that if the agents or persons in de facto control of the affairs of the
company are resident in an enemy country, or wherever resident, are adhering to the
enemy or taking instructions from or acting under the control of the enemy, it has the
enemy character. The House of Lords observed "... a company may, however, assume an
enemy character ... if its agents or persons in de facto control of its affairs whether
authorised or not, are resident in an enemy territory". In this case, Continental Tyre and
Rubber Co. was incorporated in England with its registered office in London. But all of
its directors were Germans who resided in Germany, and most of the shareholders also
resided in Germany. Daimler Co. Ltd. registered in England, owed some money to
Continental Tyre and Rubber Co. which filed a case for the recovery of that money.
Daimler Co. opposed it on the ground that Continental Tyre and Rubber Co. belonged to
the enemy State and therefore, it was not liable to pay the said money.
Under the application of the Daimler principle, the Company though acquires the enemy
character, but for all other purposes it remains a British company, which is governed by
British law, including the trading with the enemy.45 Apart from the Daimler ruling, it is
nevertheless, a well-established law that a corporation incorporated in an enemy country
has enemy character.46
_____________________
43 Julius Stone, op. cit. 7, p. 417.

44 (1916) 2 AC 307.
45 The principle of the Daimler case was subsequently approved and applied by the
House of Lords in the Sovfracht V/O v. Van Udens Scheepvaart (1943) AC 203, and The
Glenroy (1945) AC 124.
46 See Janson v. Driefontein Consolidated Mines (1902) AC 484, at p. 497.

(c) Enemy Character of Ships

Prima facie, enemy character of a ship is determined by its flag. A ship sailing under the
flag of the enemy will bear enemy character. But, if the enemy-owned vessels sail under
the neutral flag, they will lose their neutral character and will be treated as enemy vessels
if they take part in the hostilities under the orders of an enemy agent, or are employed by
the enemy to transport troops, transmit intelligence, etc., or they resist the valid right of
visit, search and seizure. In case such a ship is seized, the goods found on board are
presumed to be of the enemy unless and until proved otherwise.
The neutral merchantmen acquire enemy character if they are engaged in trade with the
enemy in time of war.
(d) Enemy Character of Goods

Enemy character of goods is determined by the enemy character of their owners. As there
are no rules on the enemy character of individuals, there are no clear rules on the enemy
character of goods. Nevertheless, it is well-established that if the owner of the goods
resides in the enemy State, goods will bear the enemy character, and if the owner of the
goods is of neutral State but resides in the enemy State, the goods shall also bear the
enemy character. On the other hand, if the owner of the goods is residing in a neutral
State, the goods will not bear the enemy character. But within this broad framework,
States have modified and amended these rules in accordance with their convenience in
order to prohibit trading with the enemy.
IV. LAWS OF WAR (INTERNATIONAL HUMANITARIAN LAW)

War is aimed at overpowering the enemy, using force and other means available at the
disposal of the State. Nevertheless, the State's right is limited in this regard and it is
required to follow certain rules or "laws of war" in order to limit the sufferings and pain
of the people involved in war and to limit the area of war or armed hostilities.47 These
laws are now more commonly referred to as "international humanitarian law"48 and are
applicable to all types of armed conflicts. They are binding on the States as well as on
individuals, including members of the armed forces, heads of States, ministers and
officials. They are equally binding on the United Nations forces if engaged in military
operations, because the United Nations is also the subject of international
_____________________
47 The ILC in 1949 considered the suitability of the "laws of war" as a topic of
codification. Due to lack of consensus, it was not taken up. The preponderant opinion
among the Commission's members was that once the United Nations has outlawed the
war, choosing the topic of laws of war to lay down the rules for the use of armed forces
would show the lack of confidence in the UN in maintaining international peace and
security. Instead, it favoured the discarding of the term "laws of war".
48 The term found its expression in the "The Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law Applicable in Armed
Conflicts" held at Geneva in 1974-77 to update the Geneva Conventions, 1949. The
Conference adopted Protocols I and II. The term "humanitarian law" applies to those
rules of international law which aim to protect persons suffering from the evils of armed

conflicts as well as objects not directly serving military purposes, see Stanislaw E.
Nahlik, A brief outline of international humanitarian law, International Review of the
Red Cross, p. 7 (July-August 1984).

law.49 The law, among others, prohibits the killing of civilians, the ill-treatment of
prisoners of war, use of weapons of mass destruction or poisonous gases.
The laws of war or jus in bellum are the outcome of the long-standing practices of the
belligerents culminating into customary rules and later to be embodied in numerous
conventions. They have become part and parcel of the customary international law.
Among the most important of these instruments adopted prior to the First World War are:
the Declaration of Paris, 1856; the Geneva Convention for the Amelioration of the
Condition of Wounded in Armies in the Field, 1864; the Declaration of St. Petersburg,
1868; the Hague Conventions of 1899 and 1907. The inter-war period saw the conclusion
of the Geneva Gas and Bacteriological Warfare Protocol, 1925, now supplemented by the
1972 Convention on the Prohibition of the Development, Production, and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and their Destruction; the Convention
on the Prohibition of the Development, Production, Stockpiling and Use of Chemical
Weapons and their Destruction, January 13, 1993 (entered into force on April 29, 1997);
the 1929 Geneva Conventions on: (i) the treatment of the sick and wounded in armies in
the field, and (ii) the treatment of prisoners of war; the Submarine Rules Protocol, 1937.
The experience of the Second World War later resulted into four Geneva Red Cross
Conventions, 1949, namely, (1) Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field (Convention I); (2) Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea (Convention II); (3) Convention relative to the Treatment of Prisoners of
War (Convention III); and (4) Convention relative to the Protection of Civilian Persons in
Time of War (Convention IV). In 1977, two additional Protocols to the Geneva
Conventions, 1949, were adopted: (a) Protocol Relating to the Protection of Victims of
International Armed Conflicts (Protocol I), and (b) Protocol Relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II). Broadly speaking, the laws
of war fall into two categories: those relating to the actual conduct of hostilities and those
which provide a minimum protection to the individual (humanitarian law). The former
are to be found principally in the two Hague Conventions, while the four Geneva
Conventions, along with the two Protocols mainly form the basis of international-
humanitarian law at present.
Although violations of these rules are quite frequent, they do not affect their binding
character. On the contrary, they become very relevant to determine the deviant behaviour
leading to war crimes. During war and armed conflict, these laws put restraint on the acts
and emotions of the combatants. These laws can be principally classified into the laws of
land warfare, sea warfare and air warfare. Unless a treaty or customary rule of
international law otherwise provides, military necessity does not justify the breach of
these rules.
A. Laws of Land Warfare
The Hague Convention IV of 1907, respecting the Laws and Customs of War on Land
and the Regulations annexed thereto, set out the rules as to land warfare.50 Since the
purpose of war
_____________________

49 Cf. Reparations for Injuries Suffered in the Service of the United Nations case (1949)
ICJ Rep., p. 174.
50 The Geneva Convention of 1864 (Geneva Convention No. I) also laid down certain
rules regarding the conditions of wounded soldiers in land armies, but they were
recognised only after being incorporated in the Hague Convention.

is to overpower the enemy, violence consisting of different sorts of force applied against
enemy persons is the chief and decisive means of warfare. The use of violence is aimed at
disabling the combatants so that they can no more take part in the fighting. This object
can be achieved through killing, wounding or making them prisoners. As a rule, non-
combatants should not be subjected to violence, and only minor means of force may be
applied against them. This requires a clear distinction between combatants and non-
combatants for the purposes of war. The "Hague Rules" or "Hague Regulations", as they
are commonly known, define the status of belligerents, i.e., those who will be treated as
lawful combatants and subject to the rules laid down in this regard.
1. Combatants and non-combatants

Members enrolled in the regular forces in the army, navy and air forces having specific
regiment number etc. are called combatants. In addition to them, members belonging to
irregular forces, including militia, volunteer corps, guerilla troops, and organised
resistance movements are also considered combatants, provided they fulfil the following
conditions:
a. they are commanded by a person responsible for his subordinates;
b. they have a fixed distinctive sign or emblem recognisable at a distance;
c. they carry arms openly; and
d. they conduct their operations in accordance with the laws and customs of war.51
The Hague Convention IV of 1907 tried to draw a distinction between combatants and
non-combatants, i.e., civilians and armed forces.
Under international law, combatants are divided into two classes: lawful and unlawful.
The lawful combatants are subject to the laws, duties and rights of war. They may be
killed, wounded, captured and made prisoners of war. They are generally in the regular
army. But they may only be killed or wounded if they are able and willing to fight or
resist capture. But certain categories of lawful combatants, such as spies, suffer from
special risks and disabilities, and can be subjected to repressive measures if captured.
Though spying is permitted under international law, spies are not entitled to prisoners of
war status.52 In the case of levees en masse, i.e., spontaneous or organised uprising of
civilian population against the enemy, or those called to arms by the authorities, must
also fulfil the four above mentioned conditions to be treated as lawful combatants.
Hostile acts of private individuals, not organised as compact movements operating under
a responsible authority, are not acts of legitimate
_____________________
51 See Art. 1, the Hague Regulations relative to the Laws and Customs of War on Land,
1907; Art. 4, the Geneva Convention Relative to the Treatment of Prisoners of War, 1949
(Convention III).
52 See Art. 46 of the 1977 Protocol I additional to the Geneva Conventions, 1949, on
International Armed Conflicts. Under the Hague Rules, before awarding punishment to
spies, they should first be tried and be given sufficient opportunity to disprove the
charges against them. See Art. 29 of the Regulations annexed to the 1907 Hague
Convention IV; see also Art. 5 of the 1949 Geneva Convention Relative to the Protection
of Civilian Persons in Time of War (Convention IV). A member of the armed forces, if in

uniform and found gathering information, would not be Considered as engaging in

espionage and would be entitled to the POW status.

warfare and the offender may be punished according to international law. Those civilians
taking up arms spontaneously on the approach of the enemy must fulfil two conditions to
be treated as lawful combatants, viz., to carry arms openly, and respecting the laws and
customs of war. Article 4 of the III Geneva Convention (on the Treatment of Prisoners of
War) includes the troops of organised resistance movements as lawful combatants if they
also fulfil the above-mentioned four conditions, even if they operate in the occupied
territory. Such a privilege in occupied territory, however, is not given to levees en masse.
Unlawful combatants are liable to capture, detention, and trial by military tribunals. They
are persons owing allegiance to one belligerent State, but are enlisted as members of the
armed forces of the opposing belligerent. If captured by the former belligerent State, they
cannot claim or be accorded privileges of lawful combatants. Mercenaries have no right
to be treated as combatants or prisoners of war if captured.53
As regards non-combatants, the traditional view is that as war is fought through the
armed forces of the belligerents, private subjects of belligerents, not involved in armed
forces and who do not take part in hostilities, in principle, should not be subjected to any
wilful attack. But certain non-combatants, such as merchant sea men, can be captured and
made prisoners-of-war. Only enemies as soldiers, not as citizens, should be subjected to
belligerency. The Assembly of the League of Nations adopted a resolution in 1938,
which declared intentional bombing of civilians as illegal. However, during the Second
World War, this distinction was not observed and civilians were made the objects of war
with an aim of weakening the military forces of the enemy. The atom-bomb attacks on
Nagasaki and Hiroshima caused extensive damage and civilian deaths. The 1949 Geneva
Convention IV (Relative to the Protection of Civilian Persons in Time of War) also
prohibits attacking certain sections of civilian population.54 In modern "total war", such
as the Second World War, where not only armed forces but civilians are also involved,
the civilian morale has become a true military objective. The civilian work forces or
quasi combatants, who are employed in the manufacture of ammunition or other
hardware required by the army to fight the war, are considered equally important and as
proper targets as armed forces.
A number of developments since the First World War have affected the distinction
between the armed forces and civilians. The growth of the number of combatants,
number of non-combatants indulged in war preparations, the development of aerial
warfare in a big way, economic measures taken during wartime (such as contrabands and
blockade), and the advent of totalitarian States, have done away with this distinction. Due
to nuclear warfare and aerial bombing, the radius of attack has become very wide,
covering the civilians. Because of the increasing complexity of armed conflicts as well as
phenomena such as terrorism and asymmetric warfare, little has remained of the
traditional distinction between the two. Nevertheless, the fundamental rule of
international law still remains that the non-combatants must not be the object of any
direct attack by the armed forces, or attack in a wanton or unnecessary manner, or for the
purpose unrelated to military operations.
_____________________
53 See Art. 47 of the Protocol I, 1977.

54 See Art. 14 et seq., protecting hospitals, safety and neutralised zones, insulating
sick, aged, children, expectant mothers and mothers of young children, and civilians
doing non-military duties.

2. Guerilla warfare
Guerilla warfare is an armed struggle waged by organised groups (levees en masse,
volunteer corps and resistance movements) which do not form a part of the regular armed
forces of a party to the conflict. They fight mainly in the rear of the enemy in a legitimate
(just) war for the defence of the country's freedom and independence as well as for
national liberation and social emancipation. For this, they rely upon the mass sympathy
and support of the people.55 Their operations are generally clandestine and sporadic.
Articles 1 and 2 of the Annex to the 1907 Hague Convention IV prohibit guerrilla
warfare, stating that belligerents must be "commanded by a person responsible for his
subordinates ... have a fixed distinctive emblem recognisable at a distance... carry arms
openly ... and conduct their operations in accordance with the laws and customs of war".
If captured, they could be treated as war criminals in occupied area. The Convention
permits such activities only outside such an area. The members of the guerilla troops or
resistance movements are entitled to the treatment of prisoners of war, if they complied
with the above-mentioned four conditions. The position under the Geneva Conventions is
also similiar.56 However, since guerillas thrive on surprise attacks on the enemy, because
"open guerilla is a dead guerilla", and generally are not in a position to fulfil these
conditions, they are mainly left to the mercy of the enemy.
The Protocol I of 1977 has accorded them a more humane treatment. They are the lawful
combatants, though they do not find specific mention in the definition of "armed forces".
Now a guerilla is entitled to prisoner-of-war status if he carries arms openly "(a) during
each military engagement, and (b) during such time as he is visible to the adversary while
he is engaged in a military deployment preceding the launching of an attack in which he
is to participate" in order to distinguish himself from the civilian population.
Nevertheless, he should be under the command of a person responsible for his
subordinates, and subject to an internal disciplinary system which, inter alia, shall enforce
compliance with the rules of international law applicable in armed conflict (Art. 43).
Even if he does not comply with the rules of international law, the combatant will not be
deprived of "his right, to be a combatant or a prisoner of war". Further, failure to comply
with the requirement of carrying arms openly by a guerilla while he is engaged in
military operations, would still entitle him the protection equivalent in all respects to
those accorded to prisoners-of-war (Art. 44). Article 45 provides that one who takes part
in hostilities and falls into the power of an adverse party shall be presumed to be a
prisoner of war, or if he claims such status, or if he appears to be entitled to such status,
or if the party on which he depends claims such status on his behalf. But if he is not
entitled to prisoner-of-war status in accordance with these conditions, he will still be
entitled to humane treatment as provided under Art. 75 of the Protocol. Thus, the
Protocol has brought them at par with the regular forces. But the Protocol imposes mutual
duties on both the parties to an armed conflict. However, because of their reliance upon
mobility for military effectiveness, guerillas in most of the cases are not in a position to
meet these requirements, like providing quarters and food to the prisoners-of-war or those
who surrender, and they are likely to ignore these.
_____________________

55 See J.N. Saxena, Guerilla warfare and international humanitarian law, 25 IJIL 621
at p. 622 and footnote et seq. (1985).
56 See the Geneva Conventions 1 and II, Art. 13; the Geneva Convention III, Art. 4.

3. Treatment of prisoners of war

Prisoners-of-war (POWs) is a status accorded to persons captured by the belligerent
during a war or an armed conflict. The Hague Rules of 1907 contained provisions about
the treatment of POWs (Arts. 4-20). A separate Geneva Convention on the treatment of
prisoners of war was concluded in 1929 under the auspices of the International
Committee of the Red Cross. After the Second World War, this Convention was revised
and adopted along with the other three Geneva Conventions in 1949. The 1949
Convention (Geneva Convention III) makes it clear that it applies not only to all cases of
declared war but any other armed conflict which may arise between the parties even if the
state of war is not recognised by "one of them" (Art. 2). It also applies to cases of partial
or total occupation of territory even if such occupation meets with no armed resistance. It
is applicable in the case of armed conflict not of an international character occurring in
the territory of one of the Contracting Parties. In such a situation, certain minimum
standards as contained in the common Art. 3 of the 1949 Geneva Conventions and the
1977 Additional Protocol II would be applied and properly observed.
The persons who are entitled to POWs status are enumerated in Art. 4 of the Geneva
Convention III, the scope of which has been widened by Art. 43 'of the Protocol I of
1977. They include all the lawful combatants. If captured, while in action and performing
their normal military duties, they get the POW status. Non-combatants, such as war
correspondents, supply contractors, labour, cooks, barbers, engineers if accompanying the
arms unit under authority, and members of the crews, including masters, pilots,
apprentices, and inhabitants of a non-occupied territory, who on the approach of the
enemy, spontaneously take up arms without having time to form a regular armed units
(levees en masse), provided they carry arms openly and respect laws and customs of war,
if captured are treated as POWs.
The Convention enjoins the members, who have the ultimate responsibility in this regard,
to accord humane treatment to POWs (Art. 12). Strict duties are imposed under the
Convention on the Parties. POWs should not be exposed to unnecessary brutality. Any
unlawful act or omission by the Detaining Power causing death or seriously endangering
the health of the POWs is prohibited. They shall not be subjected to physical mutilation
or to medical or scientific experiments and measures of reprisals against them (Art. 13).
Their person and honour must be respected in all circumstances. Women should be
treated with due regard to their sex and must in no way be treated less favourably than
men (Art. 14). The Detaining Power is bound to provide free of charge the maintenance
(including food, clothing and other facilities) and the medical attention to the POWs (Art.
15). Except for exceptions based on rank, sex, state of health and professional
qualifications, all prisoners are to be treated alike (Art. 16). They should also be provided
with the quarter facilities (Art. 25). The captor State has the right to seek information of
any kind. But in deriving information, they shall not be subjected to threats, insults or
exposed to unpleasant or disadvantageous treatment of any kind (Art. 17). They should
not be subjected to any mental or physical torture (Protocol I, Art. 75).
The prisoners are required to maintain discipline in the camp and the Detaining Power
can take any disciplinary measure to enforce its laws, regulations or orders in this regard.
The use of weapons against POWs, especially those who are attempting to escape, is

permitted as an extreme measure, but such a use must be preceded by warnings (Art. 42).
No prisoner is to be assigned to work which is humiliating, or which is unhealthy or of
dangerous nature.

They should be released and repatriated without delay after the cessation of active
hostilities (Art. 118). They may also be released partially or wholly on parole, or even
prior to the cessation of hostilities, particularly where this may contribute to the
improvement of their health (Art. 21).
Once the hostilities are over, the release and repatriation of the POWs is generally done
after the conclusion of an agreement between the belligerents. For example, after the
1965 Indo-Pakistan armed hostilities, the Tashkent Declaration of January 10, 1966, in
Art. VII provided for repatriation of the POWs. Again, in the 1971 hostilities between
these two countries, which resulted into the emergence of a new State of Bangladesh,
India was criticised for detaining, after the cessation of hostilities, about 92,000 Pakistani
soldiers as POWs in violation of Art. 118.57 India did not hand them over to Pakistan
immediately as it feared the renewal of hostilities and it was also contemplating of
holding the war crimes trials. But following an agreement between the two countries in
August 1973 at Simla, the prisoners were repatriated. On the other hand, in May 1973,
Pakistan filed a case before the International Court of Justice alleging that India was
intending to handover 195 POWs to the Government of Bangladesh, which proposed to
try them for war crimes, acts of genocide and crimes against humanity. India denied
Court's jurisdiction. However, in view of the Simla Agreement and subsequent
negotiations between the two countries, these prisoners were also repatriated to Pakistan.
As a result, Pakistan did not pursue the case, which was removed from the Court's list on
Pakistan's request.58
But often peculiar problems may arise in relation to the repatriation of the POWs, as had
happened after the Korean conflict in 1951-53, when the United Nations command
ascertained that many prisoners were unwilling to be repatriated due to the fear of
persecution in North Korea. Though there were strong views for the strict compliance
with the provisions of the Geneva Convention III, but the Korean Armistic Agreement of
July 27, 1953, gave due emphasis to grounds of humanity.59 In the case of the Vietnam
War, the POWs were repatriated after the conclusion of the Paris Agreement of January
27, 1973 (the Four-Party Agreement on Ending the War and Restoring the Peace in
Vietnam). But in the case of the Falkland War of April-June 1982, Argentinean POWs
were speedily repatriated before and after the cease fire on June 13-14, 1982. Similarly,
Iraqi prisoners were repatriated after the Security Council Resolution 687 of April 3,
1991, establishing a formal ceasefire in the Gulf war.
Along with the POWs Convention (Geneva Convention III), the other significant Geneva
Conventions are: the Convention for the Amelioration of the Conditions of the Wounded
and Sick Members of the Armed Forces in the Field (Geneva Convention I);60 the
Convention on Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea
(Geneva Convention II). The Geneva Convention I has laid down the detail provisions for
the protection and care of sick and wounded persons of the armed forces in the field
without making any discrimination. Any attempt on their lives, or violence to their
persons is strictly prohibited, in particular killing of wounded and sick persons of the
armed forces during war is forbidden (Arts. 12 and 50).
_____________________
57 See Howard S. Levie, 67 AJIL 512 (1973).

58 Pakistani Prisoners of War case, (1973) ICJ Rep., p. 347.

59 See Starke, op. cit. 5, at p. 559.
60 The Convention replaced the earlier Geneva Conventions of 1864 and 1929 on the
same subject.

It also enjoins the Members to respect the persons like doctors and other personnel, and
medical units and establishments engaged in caring for these persons (Arts. 19-21, 24-
26). Means of transport engaged for the transportation of such members of the armed
forces should also be protected (Arts. 19, 35-36). Protocol I of 1977, in Art. 10 provides
that the wounded, sick and shipwrecked persons shall be respected and protected. They
shall be treated humanely and shall receive to the fullest extent practicable, the medical
care and attention required by them. The Second Geneva Convention is significant for
hospital ships which should be spared from any attack (Chapter III, Arts. 22-35). But
ships or aircrafts engaged in the task of protecting the wounded and sick of the armed
forces must bear the Red Cross emblem (Art. 41).
4. Methods and means of land warfare

Section II of the Annex to the Hague Convention IV of 1907 prescribes certain methods
and means to be applied in hostilities to lessen the sufferings of warfare. It prohibits the
use of poisonous gases, weapons and projectiles which cause unnecessary sufferings and
pain.61 The poisoning of water or food material to be used by the enemy is also
prohibited, but dodging or ruses of war62 is permissible (Art. 24, Hague Convention).
Ruses of war, such as the use of camouflage, decoys, and mock operations are also
permitted under Art. 37(2) of the 1977 Protocol I. Undefended towns or open cities
cannot be attacked or destroyed (Art. 25, Hague Convention).63
In 1925, the Geneva Protocol prohibited gas and bacteriological warfare. It is, however,
doubtful whether the Protocol applies to non-lethal gases or other chemical agents, which
were applied in the Vietnam War. On December 16, 1969, the General Assembly adopted
a resolution which declared as contrary to international law, the use in international
armed conflict of (a) chemical agents of warfare with direct toxic effects on man, animals
or plants, and (b) biological agents of warfare, intended to cause death or disease in man,
animals or plants, and dependent for their effects on their ability to multiply.64 This
resolution later led to the adoption of the 1972 Convention on the Prohibition of the
Development, Production and Stockpiling of Bacteriological and Toxin Weapons and
their Destruction. The Convention supplemented the 1925 Geneva Protocol. Each State
party to the Convention undertakes to destroy, or to divert to peaceful purposes all agents,
toxins, weapons, equipment and means of delivery specified, which are in its possession
or under its jurisdiction or control. The
_____________________
61 The generally accepted test of "unnecessary suffering" is whether the relevant
suffering is needless, superfluous, or disproportionate to the military advantage or
effectiveness, reasonably to be expected from the use of a particular weapon concerned,
see 69 AJIL 399-400 (1975); Canadian YbIL, pp. 233-234 (1981).
62 "Ruses of war" or stratagem means dodging or deceiving the enemy for the
attainment of its military objectives, a belligerent State can misguide or mislead the
enemy.
63 An "open city" is completely undefended from all sides so that the opposing
forces could enter and take possession of it without fighting or incurring liabilities. This
is also done to save the city from possible destruction by attack or bombardment. But a

government declaration is necessary to be treated as "open city". During the Second

World War, many European nations declared "open cities", such as Paris, Rome,
Belgrade and Brussels. See Whiteman, Digest of International Law, Vol. 10, pp. 415,
433-435 (1968).
64 GA Res. 2603 (XXIV), 16 December 1969.

Convention was supplemented by the Final Declaration adopted in 1986, to strengthen

the verification methods. The Convention has been further expanded by the new
Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and their Destruction, January 13, 1993.65 On 18 September 1997,
the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on Their Destruction (Ottawa Treaty) was adopted.66 The
1981 Convention on Inhumane Weapons also prohibits the use of toxic and chemical
weapons.
B. Laws of Maritime Warfare

The rules relating to maritime warfare were mostly in the form of customary international
law before the nineteenth century, but subsequently they were incorporated in a number
of instruments. Starting with the Declaration of Paris of 1856, the Hague Conference II of
1907, adopted a series of conventions on naval warfare (Conventions VI to XIII),
followed by the London Declaration of 1909, relating to the Laws of Maritime War,
including rules concerning blockade and military contraband and the London Submarine
Rules Protocol of 1936. The Second Geneva Convention, 1949, dealt with the
Amelioration of the Conditions of the Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea. Together, these instruments have laid down important rules on
naval warfare.
During naval war, the enemy vessels and their property can be seized. Seizure of vessel
includes seizure of all the goods thereon. The enemy ship can be sunk during naval
warfare, after ensuring the safety of the crew and passengers of the ship. The attacked
merchant vessel may defend itself by a counter-attack. After the ship has been sunk,
ordering of firing at the crew and passengers who try to save their lives by escaping in
boats is a flagrant violation of international law. Enemy merchant shipping, i.e., private
merchant vessels can be destroyed when they persistently refuse to stop or resist the
search. But before doing so, the safety of the crew, passengers and ship's papers must be
definitely assured, which is necessary to satisfy the prize court and to justify the legality
of the capture. However, in the modern means of warfare involving missiles directed
from the land-based launchers, like those used in the Falkland Crisis in 1982 and the Iran-
Iraq war 1980-88, and the use of aircrafts in destroying these ships, the safety of the crew
and passengers cannot be assured.
When the public enemy vessel is seized, it may be immediately appropriated and persons
on board such a ship become POWs. But the private merchant vessels are subjected to
prize court. Privateering (commissioning of private merchant vessels) is illegal. But they
may be lawfully converted into warships according to the State's law.67 Auxiliary ships
also get the character of combatant if forming part of the naval forces.
Enemy vessels engaged in religious, scientific and philanthropic missions are exempted
from seizure and attack (Art. 4, Hague Convention XI). The Second Geneva Convention,
1949, lays down the inviolability of the hospital ships as well as of cartel ships carrying
POWs. The Protocol I also provides that all the wounded, sick and ship-wrecked
members, to whichever

_____________________
65 The Convention entered into force on April 29, 1997.
66 Treaty is in force since 1 March 1999. As of April 2010, there were 156 States Parties
to the treaty.
67 Under the British practice, conversion should be effected in a home port and not at sea
or in neutral port.

party they belong, shall be treated humanely and shall receive to the fullest extent
practicable and with the least possible delay, the medical care and attention required by
their condition (Art. 23(6)).
The Hague Convention IX (on Naval Bombardment) allows the bombarding of military
objectives, including military works, military or naval establishments. It prohibits the
naval bombardment of undefended ports or cities. But this can be done if the local
authorities refuse to comply with the formal demand of food and other essential supplies
to the enemy. The Hague Convention VIII (on Laying of Automatic Submarine Contact
Mines) prohibits the laying down of floating mines, and the belligerents are obliged to
ensure the safety of peaceful navigation, as also to notify the extent of minefields at the
earliest, when military considerations permit. However, because of the development of
new kinds of mine-laying techniques and mine-launching methods from submarines, the
Hague Convention is found to be inadequate to regulate this important area of naval
warfare. The developments of nuclear powered vessels and submarines have made many
rules unworkable or inadequate, forcing naval commands to limit their areas of operation
over which regulation is possible or acceptable. This has led to the practice of creating
"exclusion zones" like the Cuban quarantine in 1962, or the total exclusion zone in the
Falklands crisis in 1982. There is a need for framing new rules in the area of naval
warfare, which should take into account the developments related to increasing
importance of intelligence and surveillance in maritime warfare, the role of submarines in
these operations, and the role of overhead based system in outer space in detecting and
targeting these submarines by their anti-submarine tactics.
Certain conventional rules already exist on submarines. Under the 1922 Washington
Naval Treaty, the use of submarines to destroy merchant or commercial ships is
prohibited. The London Naval Treaty, 1930, (Treaty for the Limitation and Reduction of
Naval Armament) between France, Italy, Japan, the United States and the United
Kingdom provides that the rules relating to surface vessels would also apply to
submarines, especially concerning the attack on merchant vessels, i.e., before sinking the
merchant vessels, the safety of the crew, passengers and the papers of the ship should be
ensured (Art. 22, Part IV). The London Submarine Protocol, 1936, between the same
parties contained the similar provisions (Part IV) of the 1930 Treaty. The Nyon
Agreement, 1937, proclaimed that the 1930 Treaty and the Protocol of 1936 were
"declaratory of international law". But during the Second World War, these rules were
flagrantly violated.
In the matter of submarine telegraph cables, Art. 54 of the Hague Convention of 1907,
provides that submarine cables in enemy occupied territory, and those cables connecting
occupied enemy territory with a neutral territory should not be seized or destroyed.
Where it becomes necessary to do so, it must be restored or compensation should be paid
when the peace is established. On the other hand, Art. 15 of the 1884 International
Convention for the Protection of Submarine Telegraph Cables gives freedom of action to
belligerents, but does not lay down precisely the extent to which they can interfere with
such cables. The State practice during the two world wars, however, is not very clear.68
This requires a new approach on this subject, possibly through a new treaty.
_____________________

68 Oppenheim, op. cit. 4, at pp. 514-515.

C. Laws of Aerial Warfare

In modern times, aerial warfare has gained an increasing importance with its potential to
cause maximum damage to the opponent, targeting at ground objectives or at sea. Before
the First World War, aerial warfare was in its infancy. The law was equally inadequate.
But the First World War saw the use of aircrafts in a substantial way.
The rules relating to aerial warfare were first laid down in the Brussels Conference of
1874, which were later approved and expanded in the Hague Conventions IV (Laws and
Customs of War on Land) and IX (Bombardment by Naval Forces in Time of War), and
the Hague Regulations (Art. 25). The Convention IV restricted the bombardment only for
the achievement of military objectives. Bombardment or aerial attack "by any means
whatever" of undefended cities, villages and towns was prohibited. Bombing of hospitals
was completely prohibited. Buildings of public utility were not to be destroyed during
aerial warfare. Buildings connected with religion, culture or the philanthropic works,
similarly, could not be destroyed. The protection of cultural property was also
emphasised in 1954, under the Convention for the Protection of Cultural Property. The
damage caused during aerial warfare was not to be more than that caused during the
naval war. But during the First World War (1914-18), these rules were invariably not
followed. The war, which soon resulted into a total war, did not make any distinction
between "defended" and "undefended" areas and did not spare the civilians or civilian
targets.
After the war, in an attempt to regulate the aerial warfare, in 1922-23, the Washington
Conference on the Limitation of Armaments was held. Besides reiterating the Hague
Rules on Air Warfare, the Conference declared the bombardment to frighten civilian
population as illegal and, ordinarily, civilian areas could not be bombarded. Factories of
military importance could be bombarded. The rules of neutrality and land warfare were
also made applicable during aerial warfare. A belligerent State violating these rules was
made liable to pay compensation. The Conference also decided to appoint a Commission
of Jurists to purpose a Code of Air Warfare Rules. Subsequently, the Commission of
Jurists produced a draft Code in 1923 at The Hague, which, however, was never adopted.
Nevertheless, it contained important rules. It prohibited aerial bombardment for the
purposes of terrorising the civilian population, destroying or damaging private property
not of military character, or for injuring non-combatants (Art. 22). It is legitimate if
directed at a military objective, an object the destruction or injury of which would
constitute a distinct military advantage to the belligerent. The bombardment of cities,
towns, villages, dwellings or buildings not in the immediate vicinity of the area of
operation of land forces was prohibited. It was totally forbidden when bombardment
could not take place without the indiscriminate bombardment of civilians (Art. 24). The
non-military aircrafts of the belligerent could be subjected to firing if they refused to land
on the approach of enemy military aircraft (Art. 33) or if they were flying within the
jurisdiction of the enemy (Art. 34).
A resolution of the Assembly of the League of Nations in 1938, while the Spanish Civil
War was continuing (1936-38), made intentional bombing of civilians illegal. Earlier, the
Geneva Protocol of 1925 had prohibited the use of gas and poisonous substances during
the aerial warfare. However, upto the Second World War, the clear-cut State practice on

these rules was absent and there was an absence of overwhelming agreement in support
of these rules, with the result that during the war, the civilian objectives were invariably
attacked. There

was indiscriminate use of explosive and incendiary bombs and projectiles. Germany
destroyed cities and villages and attacked undefended towns. The United States used the
atom bomb over the two Japanese cities—Hiroshima and Nagasaki, causing untold
miseries to the civilian population.
The United States justified its action of bombing the Japanese cities on two grounds, viz.,
(i) as an act of reprisal against the illegal air bombardments committed by Japan and
other Axis Powers; and (ii) as an act of military necessity, i.e., to end the war quickly,
and thus containing the further casualties in the war. However, both these grounds are
totally unjustified in the light of the customary and conventional international law. The
casualties inflicted on the civilian population were totally out of proportion to the illegal
bombing of Allied Powers, which dismissed the plea of reprisal (proportionately of the
use of force is an essential of reprisal).69 It is similarly disputable whether the use of
these bombs had ended the war soon and minimised the casualties.
The Second World War was a "total" war, directed at the civilian morale, which has now
become a true military objective. In such a situation, it is difficult to maintain the
distinction between combatants and non-combatants and also to determine as to what
constitutes military objective. The laws on aerial warfare are thus singularly absent, the
adoption of which is now more necessary in the context of atomic and nuclear weapons
whose use may cause the indiscriminate killings of the civilians.
D. Legality of Atomic or Nuclear Warfare

Nuclear weapons are considered weapons of mass destruction, and their use and control
has been a major focus of international relations policy since the Second World War. At
present, there is no international instrument which expressly deals with the use of nuclear
weapons in the war. In its absence, the question of the legality of their use has to be
judged with reference to (a) existing international instruments relating to the limits of the
use of violence in war; (b) the distinction, believed to be fundamental in war, between
combatants and non-combatants; and (c) the principles of humanity, which are now
regarded as forming part of the laws of war, i.e., as a part of humanitarian law.
In relation to ground (a), the existing instruments having relevance to the issue of nuclear
weapons do not justify their use. The Declaration of St. Petersburg, 1868, laid down that
the "employment of arms which uselessly aggravate the sufferings of disabled men or
render their death inevitable" is "contrary to humanity". It also prohibits the employment
of any projectiles of a weight below 400 gms, "which is either an explosive or charged
with fulminating or inflammable substances". The Hague Declaration of 1899 prohibited
the employment of projectiles by the contracting parties, where the object is the diffusion
of asphyxiating and deleterious gases. Article 23(a) of the Regulations annexed to the
Hague Convention IV, 1907 states that "it is especially forbidden, (a) To employ poison
or poisoned weapons" without defining the terms 'poison' and 'poisoned weapons'. The
1925 Geneva Protocol prohibits the use of asphyxiating,
_____________________
69 On reprisal, see supra Ch. 16. In Shimoda v. The Japanese State (1963), Japanese
Annual of International Law (1964), pp. 212-252, the Tokyo District Court held that the
attacks on Nagasaki and Hiroshima were contrary to international law.

Page 519 WAR AND THE USE OP FORCE BY STATES
poisonous and other gases as well as "all analogous liquids, materials or devices" and
bacteriological warfare.
Because of its indirect physical consequences to human beings, it is possible that the use
of nuclear weapons on a large scale may be brought within the orbit of biological
warfare, which has been condemned by the conscience of mankind and prohibited under
international law. Thus, they cannot be used against military or non-military objectives in
war. In the war between Iran and Iraq (1980-88), chemical weapons were used by both
the States in contravention of their obligations under the 1925 Geneva Protocol to which
both are parties.70 The use of chemical weapons, which led to a number of civilian
casualties, was condemned by the Security Council.71
Regarding (b), the distinction between the combatants and non-combatants will be
blurred by the use of these weapons. Their use cannot be ensured to be limited to military
objectives proper. In fact, it is becoming more and more difficult in total war to define
and distinguish what is not a military objective. "Quasi combatants" and civilian work-
forces are as important targets as the armed forces proper. In 1950, the International
Committee of the Red Cross requested States to prohibit the use of atomic and
indiscriminate use of "blind" weapons. The question was again considered in 1965 at the
Twentieth Conference at Vienna, confirming four principles in its resolution which
prohibited attacks against the civilian population, and declared that the distinction
between the combatants and civilian should be maintained, sparing the latter as much as
possible. The principles were later adopted by the General Assembly in 1968.
In the case of (c), the use of nuclear weapons causes large-scale destruction and suffering,
both immediate and consequential, which puts their legality under suspect, i.e., their use
is such as to place them, in the light of the Fourth Geneva Convention on the Protection
of Civilian Persons, outside the principles of the law of nations, which have resulted from
the laws of humanity and the dictates of public conscience. Apart from the legality of the
attack on civilians, use of nuclear weapons can be questioned on the ground of
"poisonous substance" and their fall out propensity. Their indiscriminate use could also
lead to deforestation by affecting the jungle growth and plantation. Crops may be
destroyed by defoliants or other chemical agents, even if these weapons be used to
safeguard military operations and personnel, or to prevent crops going to enemy.
To control the hazards and dangers involved in the use of nuclear weapons led to the
conclusion of number of international instruments, viz., the Nuclear Weapons Test Ban
Treaty of 1963, the Outer Space Treaty of 1967, the Nuclear Weapons Non-Proliferation
Treaty (NPT) of 1968, and the Treaty of 1971 prohibiting the Emplacement of Nuclear
Weapons and other Weapons of Mass Destruction on the Seabed and Ocean Floor.
However, the Nuclear Test Ban Treaty and the NPT are particularly significant in
checking the further proliferation and control of nuclear weapons. The Outer Space
Treaty in Art. 4 enjoins the States parties "not to 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
_____________________

70 The special mission sent by the UN Secretary-General verified this fact. See Doc.
S/20060 of July 1987, Doc. S/20134 of August 19, 1987; and Doc. S/10063 of July 25,
1987.
71 SC Res. 612 of May 9, 1988; Res. 629 of August 26, 1988.

space in any other manner". The 1972 Stockholm Conference on Human Environment in
a resolution of the plenary session condemned all nuclear weapons tests, particularly
those conducted in the atmosphere and called upon the States to refrain from conducting
such tests as they may lead to further contamination of the environment. Principle 26 of
the Stockholm Declaration stated that: "man and his environment must be spared the
effects of nuclear weapons and all other means of mass destruction".
The 1963 Nuclear Test Ban Treaty, for the first time banned the nuclear testing in the
outer space, though the underground tests were allowed. The treaty, which was originally
concluded between the United States, the United Kingdom and the Soviet Union, had 123
States parties till July 2008. France, China and North Korea are not parties to it. In July
1974, the Threshold Test Ban Treaty between the United States and the Soviet Union
limited the yield of underground tests of nuclear weapons to 150 kilotons. The treaty
entered into force only on December 11, 1990. The 1963 Treaty has now been expanded
into the Comprehensive Test Ban Treaty (CTBT) which was adopted by the General
Assembly on September 17, 1996. It bans nuclear tests in all environments for military or
civilian purposes,72 but it has not yet entered into force. The treaty will enter into force
180 days after the 44 States listed in Annex 2 of the treaty have ratified it. These "Annex
2 States" are States that participated in the CTBT's negotiations between 1994 and 1996
and possessed nuclear power reactors or research reactors at that time. As of April 2009,
nine Annex 2 States have not ratified the treaty: China, Egypt, Indonesia, Iran, Israel and
the United States have signed but have not yet ratified the Treaty; India, North Korea and
Pakistan have not yet signed it.73
The 1963 treaty, however, failed to effectively prevent the nuclear tests. India conducted
its first nuclear explosion on May 18, 1974, at Pokharan in the Thai Desert of Rajasthan,
which was criticised by some nations. But this test of India, which is a party to the Test-
Batt Treaty, could not be legally challenged under the treaty because it was underground.
Moreover, there was no radioactive fall-out of the explosion. In May 1998, India
conducted five nuclear tests at Pokharan (known as Pokharan-II). These nuclear tests
resulted in a variety of sanctions against India by a number of major countries, and were
quickly followed by nuclear testing under the codename Chagai by Pakistan.
The French nuclear tests in 1972-73, conducted in the South Pacific were challenged by
Australia and New Zealand before the International Court of Justice74 because the
radioactive debris affected the environment of the two pacific countries. But the treaty
could not be enforced against France as it was not a party to it. The tests were conducted
on the high seas, prohibited under the Test-Ban Treaty. As France declared that it would
not conduct further tests, the Court took off the case from its list because it did not have
an object any more. The Court also did not declare on the legality of the nuclear weapons.
France restarted the tests in 1981, which were opposed by the Green-Peace. France once
again resumed nuclear tests from September
_____________________
72 See GA Res. 50/245, UN Doc. A/RES/50/245 Sept. 17, 1996, reproduced in 35
ILM 1439 (1996). The Resolution was adopted with 158 in favour, 3 against (Bhutan,
Libya and India) and 5 abstentions (Cuba, Lebanon, Mauritius, Syria and Tanzania).

73 As of 27 May 2010, 153 states have ratified the CTBT and another 29 states have
signed but not yet ratified it.
74 Nuclear Tests case, (1974) ICJ Rep., p. 253 (Australia v. France), p. 457 (New
Zealand v. France).

1995 in Mururoa Atoll in the South Pacific. The French President Jacques Chirac aroused
worldwide condemnation of the French decision, and Australia and New Zealand cut off
military ties with France.75 On January 30, 1996, however, the French President declared
that the tests would be stopped.76 China also conducted the underground testing.
1. Nuclear Non-Proliferation Treaty (NPT)

The NPT was concluded in 1968 and came into effect in March 1970. It aims at
controlling the further proliferation of nuclear weapons.77 For this purpose it divides the
countries into nuclear-weapons countries and non-nuclear-weapons countries. The
nuclear weapons countries are prohibited from passing on nuclear material or nuclear
explosive devices, weapons or information to manufacture these devices to non-nuclear
weapons countries (Art. I). Non-nuclear weapons countries are similarly obliged not to
acquire or manufacture any nuclear material devices, weapons (Art. 2). It also enjoins the
parties to conclude a comprehensive treaty banning nuclear weapons, towards the goal of
complete disarmament (Art. VI).
The Treaty imposes severe restrictions on the peaceful uses of the atomic energy which
should be done under the supervision of the International Atomic Energy Agency (IAEA)
(Art. III). A member country's refusal to do so may lead to a conflict situation as it
happened in the case of North Korea which declined to submit its nuclear installations to
the inspection of the IAEA. North Korea had ratified the treaty on December 12, 1985,
but has ceased to be a party since April 10, 2003 after serving a notice of withdrawal
from the Treaty on January 10, 2003 following United States allegations that it had
started an illegal enriched uranium weapons programme. This makes North Korea the
first State ever to withdraw from the treaty. (North Korea had earlier also given the notice
of withdrawal from the NPT in June 1994, which it later withdrew).
The NPT, which was reviewed from April 17 to May 12, 1995, at New York after the
completion of 25 years of its existence, had been extended unconditionally for an
unlimited time. The Review Conference had recognised the four threshold countries, i.e.,
India, Pakistan, Israel and South Africa, which, barring South Africa, are not bound by
the Treaty per se, and with the obligation not to further proliferate nuclear weapons.
2. India and the NPT

All the major countries are parties to the NPT, with a total membership of 189, but India,
Pakistan, Israel are not its members, though they are nuclear threshold countries with the
capability to make nuclear weapons.78 India's refusal to accede to the Treaty is based on
its discriminatory
_____________________
75 The tests were challenged by Australia and New Zealand before the World Court,
but the cases were dismissed by the Court, as they were conducted underground and not
in the atmosphere, for which they could come to the Court under the 1974 Nuclear Tests
cases, ibid.
76 The nuclear powers have conducted more than 2,000 nuclear test explosions so
far, see en.wikipedia.org/wiki/Nuclear_weapons_testing
77 GA Res. 2373 (XXII) of 1968.

78 South Africa had also developed nuclear weapons but has since disassembled its
arsenal in 1979 before joining the NPT.

character in verification and treatment which allows nuclear-power nations to retain their
weapons and control its further proliferation,79 but non-nuclear powers are denied their
acquisition. India further wanted that there should be a comprehensive treaty in
accordance with Art. VI, banning all tests and dismantling the existing nuclear arsenals.
The CTBT has been adopted with the limited goal of prohibiting nuclear weapon testing
but does not oblige the States to dismantle their nuclear arsenals,80 in which nuclear
weapon countries want to retain their monopoly, though they have given the undertaking
not to be the first users of the nuclear weapons. They have also agreed on the draft of a
Security Council resolution that would set out "security assurances" to non-nuclear
weapon States if subjected to an aggression with nuclear weapons or threat thereof. On
the recommendation of the Security Council, the victim State will be given the necessary
assistance.81 But the execution of such a resolution is doubtful, because the nuclear
weapons nations, who own these weapons, also possess the veto power in the Security
Council. However, India is also committed to the 'no first use policy'.82
In March 2006, India and the United States finalised an agreement- the 123
Agreement,83 to provide India with US civilian nuclear technology. Under the deal India
has committed to classify 14 of its 22 nuclear power plants for civilian use and to place
them under IAEA safeguards. In December 2006, United States Congress approved the
United States-India Peaceful Atomic Energy Cooperation Act (The Hyde Act). The
legislation allows for the transfer of civilian nuclear material to India. Despite its status
outside the Nuclear Non-Proliferation Treaty, India was granted these transactions
because of its clean non-proliferation record, and its high need for energy due to its rapid
industrialisation and a surging population. On August 1, 2008, the IAEA approved the
India Safeguards Agreement and on September 6, 2008, India was granted the waiver by
consensus at the Nuclear Suppliers Group (NSG) meeting held in Vienna. The consensus
could be arrived after overcoming misgivings expressed by Austria, Ireland and New
Zealand, which were initially against giving exemption to a country, which is not a party
to the NPT and the CTBT. Now India can commence nuclear trade with other willing
countries. As of January 2011, Australia, one of the top three producers and home to
world's largest known reserves, has refused to export Uranium to India because of its
failure to sign the NPT.84
_____________________
79 From a high of 65,000 active weapons in 1985, there are now nearly 8,000 active
nuclear warheads and more than 22,000 total nuclear warheads in the world in 2010.
80 Article I (Basic Obligations) of the CTBT provides: "(1) Each State Party undertakes
not to carry out any nuclear weapon test explosion or any other nuclear explosion, and to
prohibit and prevent any such nuclear explosion at any place under its jurisdiction or
control. (2) Each State Party undertakes, furthermore, to refrain from causing,
encouraging, or in any way participating in the carrying out of any nuclear weapon test
explosion or any other nuclear explosion."
81 Such resolution was earlier passed by the Security Council in 1968, see SC Res. 255.
China voted in favour of the resolution and France abstained, see United Nations and
Disarmament, UN. (NY. 1988), p. 60.
82 http://www.indianembassy.org/policy/CTBT/nuclear_doctrine_aug_l 7_1999.html

83 The Agreement refers to Sec. 123 of the U.S. Atomic Energy Act., which bans
transfer of nuclear technology to other countries. The Hyde Act was passed by the U.S.A.
to make an exception for India, to enable transfer of technology for civil nuclear energy.
84 en.wikipedia.org/wiki/Nuclear_Non-Proliferation_Treaty

But in spite of these treaties, the preponderant view among the western nations and
Russia is that nuclear weapons are not prohibited per se. In 1961, the United Nations
General Assembly adopted the Declaration on the Prohibition of the Use of Nuclear and
Thermo-Nuclear Weapons.85 In another resolution of December 15, 1983, the General
Assembly condemned the nuclear war as being contrary to human conscience and the
monstrous crime against people and as a violation of the right to life. The resolution
called upon all States to unite and redouble their efforts aimed at removing the threat of
nuclear war, halting the nuclear arms race and reducing nuclear weapons until they are
completely eliminated.86 An important regional treaty between 20 Latin American and
Caribbean States, the Treaty of Tlateloco of February 14, 1967, also prohibits the
presence of nuclear weapons and conducting of nuclear tests in the territory of the
signatories to the Treaty. As a bilateral measure, the United States and the Soviet Union
concluded the Intermediate-Range Nuclear Force Treaty (INFT), and the Strategic Arms
Reduction Treaty (START I), that came into effect in July 1991, to reduce their long
range nuclear arsenals. Now the United States and Russia have concluded the new
START (Measures for the Further Reduction and Limitation of Strategic Offensive
Arms) on 8 April 2010, which, has become effective on 5 February 2011 (and will expire
on 5 February 2021). New START has replaced the Treaty of Moscow (SORT), which
was due to expire in December 2012.87 Under the terms of the New START, the number
of strategic nuclear missile launchers will be reduced by half. A new inspection and
verification regime will be established, replacing the SORT mechanism. It does not limit
the number of operationally inactive stockpiled nuclear warheads which are significantly
high in both the Russian and United States inventories.
President Reagan of the United States, in March 1983, proclaimed the programme of
Strategic Defence Initiative (SDI, popularly known as "star war") as a part of its strategic
policy from offence-oriented to defence-oriented. It was aimed at replacing the United
States policy based on the doctrine of "Mutually Assured Destruction"(MAD). The SDI
programme involved a prohibitive cost of about $1 trillion and was abandoned by
President Clinton in June 1993. The effectiveness of the MAD doctrine after the
September 11, 2001 terrorist attacks has become questionable. The threat of potentially
suicidal terrorists possessing nuclear weapons (a form of nuclear terrorism) complicates
the decision process. The prospect of mutually assured destruction may not deter an
enemy who expects to die in the confrontation. Further, if the initial act is from a rogue
group instead of a sovereign nation, there is no fixed nation or fixed military targets to
retaliate against. This requires a new nuclear strategy, distinct from the relative stability
of the Cold War under the MAD doctrine.
Another important instrument on certain conventional weapons with some bearing on
nuclear weapons is the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have
Indiscriminate Effects, 1981 (commonly known as Convention on "Inhuman Weapons"),
adopted at the United Nations Conference held at Geneva in October 1980. The
Conference failed to reach any agreement on certain categories of weapons and left them
for future study, i.e., small calibre projectiles,
_____________________

85 GA Res. 1653 (XVI).

86 GA Res. 38/75 of Dec. 15, 1983.
87 The New START treaty is the successor to the START I. The START II was
signed, but not ratified. The START III negotiating process was not successful.

anti-personal fragmentation warheads, and fuel air explosives. The Convention has three
Protocols annexed to it: Protocol I, i.e., the Protocol of Non-Detectable Fragments, that
prohibits the use of a weapon whose primary affect is to injure by fragments which in the
human body escape detection by X-Rays; Protocol II, i.e., the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-traps and other like devices; Protocol III, i.e.,
the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, to restrict
the use of incendiary weapons against military objectives only and imposing, inter alia,
obligations to record locations. At the time of ratifying the Convention, a State must
express its consent to be bound by at least two of the annexed Protocols. The Protocols
do not list any "grave breach" offences as in the 1977 Protocols I and II or the Geneva
Conventions, 1949. The Review Conference of the Parties to the Convention on
"Inhuman Weapons" adopted on October 13, 1995 a Protocol on Blinding Laser
Weapons, which prohibits deliberate and permanent blinding by lasers on the battlefield.
On November 28, 2003 Protocol V was adopted which sets out obligations and best
practices for the clearance of explosive remnants of war.88
As the laws of war are mainly prohibitive, those weapons which are not caught under the
existing prohibitions shall not be legally objectionable. There does not exist any
convention on the use of nuclear weapons as such. The numerous international
instruments on the laws of war do not expressly prohibit nuclear weapons. Hence, their
legality is difficult to be challenged per se under international law. The General
Assembly adopted a draft Convention on the Prohibition of the Use of Nuclear Weapons
in 1989, which required States parties not to use nuclear weapons under any
circumstances.89 The use of nuclear weapons has a bearing on the environmental and
humanitarian law.90 The 1976 Convention on the Prohibition of Military or Other
Hostile Use of Environmental Modification Techniques (ENMOD Convention) under
Art. 1 enjoins the States parties not to engage in "military or any other hostile use of
environmental modification techniques having widespread, long lasting or severe effects
as the means of destruction, damage or injury to any other State Party". So even if the
nuclear weapons are not specifically prohibited under any international convention, their
use is not justified under international law.
3. ICJ and the Use of Nuclear Weapons

The World Health Organisation (WHO) on May 14, 1993, in pursuance of its Assembly's
resolution (WHA, 46:40) sought the advisory opinion from the International Court of
Justice on the following question:
In view of the health and environmental effects, would the use of nuclear weapons by a
State in war or armed conflict be a breach of its obligations under international law
including the WHO Constitution?
In a related development, on December 15, 1994, the UN General Assembly by its
Resolution 49/ 75K also requested the Court to render an advisory opinion on the
following question:
Is the threat or use of nuclear weapons in any circumstances permitted under international
law?
_____________________

88 Protocol IV entered into force on July 30, 1998.About the Protocol, see B.M.
Carnahan & M. Robertson, 90 AJIL 484 (1996). For the text of the 1980 Convention, see
19 ILM 1523 (1980).
89 See GA Res. A/RES/44/117C, 15 November 1989.
90 See GA Res. 2542 (XXIV) of 1968, and ECOSOC Res. 1983 of May 18, 1983.

On the question submitted by WHO, the Court did not give any opinion as the matter did
not pertain to WHO's Constitution and accordingly the Court lacked the jurisdiction in
the matter. But on the General Assembly's request, the Court gave an advisory opinion on
July 8, 1996 on the Legality of the Threat or Use of Nuclear Weapons. By the casting
vote of the President, the Court held that the threat or use of nuclear weapons would be
contrary to the law of armed conflict, particularly international humanitarian law, except
perhaps in an extreme circumstance of self-defense in which the very survival of a State
is at stake. In general, a threat or use of nuclear weapons that is contrary to Arts. 2(4) and
51 of the United Nations Charter is unlawful. There also, the threat or use of nuclear
weapons should be compatible with the law of armed conflict, particularly international
humanitarian law and specific treaty obligations. The Court also stated that neither
customary nor conventional international law specifically authorise or prohibit the threat
or use of nuclear weapons.91 Thus, according to the Court's view, except for self-
defence, the use or threat of nuclear weapons is not permissible under international law.
The prohibition of the use of nuclear weapons is also the part of the United Nations
programme on disarmament undertaken by the Conference on Disarmament. The
Conference membership of 65 nations includes all the nuclear weapons States. The
purpose of disarmament is to abolish the war-making capacity of a State.92
V. TREATMENT OF CIVILIAN PERSONS IN TIME OF WAR

The 1949 Geneva Convention Relating to the Treatment of Civilian Persons in Time of
War (Geneva Convention IV) and the 1977 Protocol I additional to the Geneva
Conventions contain specific provisions for enemy nationals in belligerent territory.
Protocol I defines civilian persons as those who are not the combatants (Art. 50). In order
to ensure the safety and protection of the civilian population (which comprises all civilian
persons), the Protocol enjoins the parties to distinguish between civilian population and
combatants, and between civilian and military objectives, and to draw their operations
only against military objectives (Art. 48). Civilian population as well as individual
civilian, as such, shall not be the object of attack. Acts of threat or violence aimed at
spreading terror among the civilian population and indiscriminate attacks against the
civilian population are prohibited. Civilian objects shall not be the target of attack or of
reprisals. Starvation of civilians as a method of warfare is prohibited (Art. 51).
The Geneva Convention IV emphasizes on humane treatment. The enemy nationals not
under confinement or in prison may leave the territory of the belligerent State, unless
their departure is contrary to the national interests of the State. If the permission is
refused, the enemy nationals have the right to bring the matter before a court or
administrative board of the detaining power (Art. 35). Those who do not leave the
territory will continue to be governed humanely. They cannot be compelled to perform
works which are directly related to military
_____________________
91 See the Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons of
July 8, 1996, (1996) ICJ Rep., p. 266; reproduced in 35 ILM 809 (1996).

92 Disarmament is principally aimed at the "arms control", i.e., the regulation

(deployment), limitation, reduction and ultimately, the destruction of arms, so that the
armed conflicts do not occur.

activities (Art. 40). If found indulging against the interest of the State, they cannot be
subjected to more severe measures than that of assigned residence (house arrest) or
internment (Art. 41). No moral or physical coercion should be exercised against them.
They cannot be subjected to physical sufferings or extermination. Collective punishment
and all measures of intimidation and terrorism are prohibited (Arts. 27-33). The
Convention requires the proper treatment of internees who should be accommodated
according to their nationality, and families must not be separated (Art. 82).
No sentence may be passed or no penalty may be executed on a person found guilty of an
offence related to the armed conflict except pursuant to a conviction pronounced by a
properly and regularly constituted court by following the principles of law.93 But these
rules need not to be observed in the same degree and in all respects in the non-war armed
conflicts.
A. Belligerent Occupation of Enemy Territory

Territory is considered to be occupied when it is placed as a matter of fact under the
authority of the hostile army and it is occupied effectively by the enemy forces (Art. 42
of the Hague Regulations annexed to Convention IV, 1907). Occupation is the form of
control and administration of the territory by the occupying power, following cessation of
substantial local resistance, which administers the territory during occupation.94
Occupation is of limited and temporary nature, and the sovereignty over the area is not
vested in the occupant. Occupation is different from invasion and annexation. Invasion is
merely a stage of military operation extended until complete control is established.
Annexation is the complete transfer of sovereignty over the territory, which takes place
through a treaty. Annexation is different from occupation as the ousted sovereign still
retains the residue of legal authority not acceded to the occupant.
After the war, the occupied territory is either reverted to the ousted sovereign, or becomes
a part of the territory of the occupying power under a treaty. So far as it is in a stage of
transient, the occupying power cannot treat the territory as its own nor its inhabitants as
its own subjects. The recent example of occupied territory has been that of Israeli
occupation of Gaza, West Bank and Golan Heights after the June 1967 war with Arab
countries, which had been termed as "prolonged military occupation".95 Israel has since
returned some of these territories to Egypt (under the Camp David Agreement, March 26,
1979) and Jordon (by an Agreement of October 26, 1994) in return for Israel's
recognition as a State by these nations. In the case of Syria, the Golan Heights came
under the Israeli occupation after the war, but Syria rejected the UN Security Council
resolution 242 of 22 November 1967, which called for the return of Israeli-occupied
territories in exchange for peaceful relations. The Syria accepted the resolution
subsequently along with the Security Council resolution 338 (1973), which finally
established
_____________________
93 Article 5 of the Geneva Convention IV and Art. 75 of the Additional Protocol I, 1977.
94 See Julius Stone, op. cit. 7, p. 694, n. 4. Oppenheim defines occupation as invasion
plus taking possession of enemy territory for the purpose of holding it, at any rate
temporarily, see Oppenheim, op. cit. 4, p. 434.

95 See Adams Roberts, Prolonged Military Occupation: the Israeli Occupied Territories
since 1967, 84 AJIL 44 (1990).

a ceasefire to end the 1973 Yom Kippur War.96 In the case of the West Bank that came
under Israeli military administration in 1967, Israel began developing infrastructure in
Arab villages under its control. In 2000, the Israeli government started to construct the
Israeli West Bank barrier, separating Israel and several of its settlements, as well as a
significant number of Palestinians, from the remainder of the West Bank. The General
Assembly referred the matter to the International Court of Justice,97 asking it about "the
legal consequences arising from the construction of the wall being built by Israel, the
occupying Power, in the Occupied Palestinian Territory, including in and around East
Jerusalem, considering the rules and principles of international law, including the IV
Geneva Convention of 1949...." The Court in July 2004 in its advisory opinion treated
Gaza as part of the occupied territories.98 The Court ruled that Israel is under an
obligation to terminate its breaches of international law; and to make reparation for all
damage caused by the construction of the wall in the Occupied Palestinian Territory,
including in and around East Jerusalem. All States are under an obligation not to
recognize the illegal situation resulting from the construction of the wall. The States
parties to the Fourth Geneva Convention have an additional obligation, while respecting
the United Nations Charter and international law, to ensure compliance by Israel with
international humanitarian law as embodied in that Convention.
The Geneva Convention IV on Civilian Population, 1949 (Part III, Section III, Arts. 47-
78), along with the Hague Regulations (Section III, Arts. 42-56), lays down specific
provisions for the administration of the occupied territory and the treatment of the
civilian population by the belligerent during war or in any other armed conflict, even if it
is not recognised as war by a party or parties to it, and applies to all cases of total or
partial occupation (Art. 2, Geneva Convention). Protocol I also has some relevance in this
regard (Arts. 48-51, 54-55, 75). These rules are primarily aimed at protecting the interests
of the inhabitants of the territory while, at the same time, protecting the sovereign rights
of the legitimate government of the occupied territory.
The Occupant must administer the territory according to the laws of the ousted sovereign,
so far as they are not incompatible with the laws of the occupant. But it can impose and
collect taxes, dues and tolls for administration and meet the needs of the army of the
occupant. Numerous duties are imposed on the occupants towards civilian population,
subject to the requirements of internal security and order and necessities of military
operations.
_____________________
96 On 14 December 1981, Israel passed the Golan Heights Law, extending Israeli
administration and law to the territory. However, the UN Security Council rejected the de
facto annexation in a non-binding UNSC Resolution 497, which declared the law as "null
and void and without international legal effect", and consequently continuing to regard
the Golan Heights as an Israeli-occupied territory. The measure has also been criticised
by other countries.
97 General Assembly Res. A/RES/ES-10/14(A/ES- 10/L.16), 8 December 2003.
98 Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, (2004) ICJ Rep., p. 136. The Court considered that "Israel cannot rely on a
right of self-defence or on a state of necessity in order to preclude the wrongfulness of the

construction of the wall". The Court found that "the construction of the wall, and its
associated regime, are contrary to international law". Following an agreement in 2007
between Israel and the Palestinian National Authority (PNA) in which more than 200
Palestinian militants wanted by Israel laid their arms and joined the PNA forces, the
construction of the barrier has ceased.

The civilian population cannot be arrested and taken as hostages,99 and subjected to
collective penalties. But if the local inhabitants resort to spying against the Occupant, or
interfere with its military activities, they can be punished by the Occupant. But the
Occupant cannot claim the loyalty of the local inhabitants who do not owe any allegiance
to the Occupant (Arts. 67-68). The Occupant can prohibit certain activities with prior
intimation, if that is necessary for the law and order purposes.100 The conduct of local
inhabitants, prejudicial to the security and public order, espionage, interference with
military operations, would subject them to be penalised.
Specifically prohibited measures include the individual or mass forcible transfers or
deportations of protected persons (i.e., civilians under the IV Convention) from occupied
territory to any other country or to the territory of the occupying power, regardless of the
motive (Art. 48). They cannot be compelled to perform works for the armed forces of the
occupying power, but adults, above 18 years of age, can be compelled to render public
utility services, such as water, gas, electricity, etc. or exclusively for the purpose of
supplying the needs of the army of occupation (Art. 51). The food and medical supplies
can be requisitioned from the local inhabitants for the armed forces of the Occupant, but
not impinging upon the ordinary requirements of the civilian population (Art. 56). The
occupying power is also under an obligation to protect the natural environment of the
occupied territory (Art. 55 of Protocol I). The Occupant is also under an obligation to
maintain old courts and former penal laws, unless they are a threat to the security of the
occupying power, as well as the status of public officials or judges, who should not be
subject to any coercion (Art. 54 of the IV Convention). The occupying power can only
inflict the penalty of simple imprisonment, under the laws enacted by it. Death penalty
can be imposed only for espionage, serious acts of sabotage, or intentional killings, on
persons above 18 years of age at the time when the crime was committed.
The private property, if required for military purposes, can be taken over temporarily, but
cannot be confiscated unless compensation is paid. Wholesale plundering of private
property is unlawful. Article 91 of the Protocol makes the State party responsible for all
acts committed by persons forming part of its armed forces, and liable to pay
compensation for breach of its obligations. Public property of military character can be
seized and destroyed; otherwise it can be merely seized. These instruments do not
provide rules regarding banks, public finance, and maintenance of former currency or
coinage of the occupied territory or the introduction of new currency. But in the interest
of orderly government, it should safeguard the former economic and financial
structure.101
Occupation comes to an end on the conclusion of a peace treaty after the end of
hostilities. It may terminate with the disappearance of the local sovereign or the
annexation of the territory
_____________________
99 See to the contrary the Hostages case (US v. List) that hostages may be executed to
secure obedience of the local population, tried at Nuremberg in 1947-48, where it was
held that non-uniformed partisan troops operating in the German-occupied territory in the
Second World War were not entitled to the status of lawful combatants, War Crimes Trial
Reports, Vol. 8, pp. 39-92.

100 Richard Baxter, The Duty of Obedience to the Belligerent Occupant, XXVII BYblL
236 (1950).
102 See Starke, op. cit. 5 at p. 567.

by the Occupant, such as East Jerusalem, occupied by Israel in 1967, along with West
Bank, Gaza strip, Golan Heights and Sinai Peninsula, formally annexed by Israel on July
30, 1980.
However, international law, particularly Art. 5(3) of the Definition of Aggression (GA
Res. 3314, 1974) prohibits any territorial acquisition or special advantage resulting from
aggression, hence, the occupied territory cannot be annexed. But the present state of
international law is not very satisfactory on enemy occupation. In many cases, there has
been an undue prolongation of the period of cessation of hostilities and the conclusion of
peace treaties, with the ensuing delay in the return of the territory to its lawful sovereign.
For example, after the Second World War, hostilities came to an end in 1945, but a Peace
Treaty with Japan was signed on September 8, 1951, and no treaty was ever signed with
Germany. In the case of Israel, the captured Arab territories in 1967 and 1973 wars have
been partly returned by Israel after the conclusion of peace treaties with Egypt (1979) and
Jordon (1994), but with Syria, it is still disputed.103 This leaves a situation of uncertainty
for the conquered regime, which requires an international solution to the problem.
B. Treatment of Civilians in Civil War

The State of civil war arises when there is a concerted armed opposition from a large
segment of the population against the constitutional government to obtain power in the
State. It is an armed conflict between two groups within a State, and unless the rebellious
group is being recognised as a belligerent power by outside powers (or by the legitimate
government itself), it remains a situation of insurgency, or of civil war. Legally speaking,
the insurgents are recognised as a belligerent power when they acquire the ability and
willingness to observe the rules of warfare existing under customary and conventional
international law. Regardless of the fact that whether such a rebellion is recognised as
belligerency or not, the present international law, in the form of four Geneva
Conventions, lays down certain principles of humanitarian character. Protocol II,
additional to these conventions, entirely deal with non-war international armed
conflicts.
Article 3, common to all the four Geneva Conventions, 1949, states:
In the case of armed conflict not of an international character occurring in the territory of
one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as
a minimum, the following provisions: (i) Persons taking no active part in the hostilities,
including members of armed forces who have laid down their arms and those placed hors
de combat [out of hostilities or incapacitated] by sickness, wounds, detention, or any
other cause, shall in all circumstances be treated humanely without any adverse
distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria....
In particular, all these Conventions prohibit, with respect to such persons, murder,
mutilation, cruel treatment, torture, and generally violence to life and person; taking of
hostages; and passing of sentences and carrying out executions without previous
judgment pronounced by a regularly
_____________________

102 Roberts, op. cit. 95, at p. 59. Israeli law was extended to Golan Heights on Dec.
14, 1981, ibid., at pp. 58-59 Annexation of Golan Heights has not been accepted by the
Security Council, see op. cit. 96. Jerusalem (Bethlehem) has been returned to Palestinians
on Dec. 22, 1995, after 28 years of occupation.

constituted court affording all judicial guarantees recognised by civilised people. The
wounded and sick must be collected and cared for. An impartial humanitarian body, such
as the International Committee of the Red Cross (ICRC) may offer its services to the
parties to the conflict. The parties to the conflict may conclude special agreements to
bring into force the other parts of the Conventions. Nevertheless, the application of these
provisions do not affect the legal status of the parties to the conflict (Art. 3), which means
that the observance of these rules would not amount to recognition of the belligerency of
the insurgents on the part of the legitimate government, and they may remain insurgents.
But if the legitimate government recognises the belligerency of the insurgents, the
Geneva Conventions will automatically apply if the legitimate government is a party to
them, and the insurgents also accept and apply the provisions of these Conventions. In the
absence of this, the customary rules of war will apply.
Article 3 of the Geneva Conventions has been supplemented and developed further,
without modifying its existing conditions of application by the 1977 Protocol II relating
to the protection of victims of non-international armed conflicts. The Protocol applies to
all armed conflicts which are not covered by Art. 1 of the Protocol I, and which take
place within the territory of a contracting party, between its armed forces and dissident
armed forces, or other organised armed groups which under responsible command,
exercise control over a part of its territory, enabling them to implement the provisions of
the Protocol. This means that the insurgents should be in control of a part of territory and
capable of implementing the provisions of the Protocol to be entitled to benefit from its
provisions.
The Protocol II does not apply to situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence and other acts of similar nature, as not being
armed conflicts (Art. 1). The Protocol enjoins the contracting parties to accord humane
treatment to all persons who do not take a direct part or who have ceased to take part in
hostilities, without any adverse distinction on the grounds of race, colour, sex, language,
religion or belief, political or other opinion, national or social origin, wealth, birth or
other status, or on any other similar criteria. They are entitled to respect to their person,
honour and conviction and religious practices.
VI. WAR CRIMES

International law sets limits concerning the means of warfare or armed conflicts, amount
of force required to be used, and lays down principles related to combatants and non-
combatants during war and armed conflicts. They are primarily aimed at containing the
sufferings of individuals. Human rights rules and standards have also profoundly affected
these laws. They cannot be violated except under a treaty or customary rule of
international law. Any breach of these rules, constitutes a "grave offence" (i.e., wilful
infliction of inhuman treatment, or causing great sufferings) and is punishable as a "war
crime". A "war crime" is the violation of recognised rules of warfare by armed persons
and other individuals, not the members of armed forces, committing illegitimate
hostilities or indulging in espionage.104 For war crimes,
_____________________

104 Oppenheim defines war crimes as "such hostile or other acts of soldiers or other
individuals as may be punished by the enemy on capture of the offenders", see op. cit. 4,
at p. 566.

punishment is given by the victorious State and not by any independent forum.105
Persons who can be subjected to war crimes are the civilians as well as the lawful
combatants, persons of enemy affiliations but not of enemy nationality, persons guilty of
a gross failure to control their subordinates.
Even though the violation of the customs and laws of warfare is wrong, not every
violation is a war crime. Acts which are condemned or condemnable by the common
conscience of mankind by reason of brutality, inhumanity or wanton disregard of the
safety of life and property, which is unrelated to military necessity, will import liability.
The State which violates these laws may be subjected to reprisals under customary
international law, but now prohibited under the Geneva Conventions.106 Under the
Hague Conventions, war crimes punishable for violating the limitations were related to
place, instruments, and persons. Under Art. 3 of the Hague Convention II, the State
perpetuating or guilty of war crimes was liable to pay compensation at the time of the
conclusion of the peace treaty.
The Treaty of Versailles concluded after the First World War contained express
provisions on the subject (Arts. 227-230). Accordingly, the Head of State and armed
personnel could be tried for launching an aggressive war. Defence of superior orders was
not available. The Nuremberg and Tokyo trials held at the end of the Second World War
(1945-48), however, brought a revolutionary change in the law of war crimes and helped
in enunciating clear principles on the subject. By a joint declaration (November 1, 1943)
of the Soviet Union, the United States and the United Kingdom, international trial
tribunals were set up at Nuremberg and Tokyo. By an agreement of August 8, 1945, the
Nuremberg Tribunal was established, consisting of representatives of four powers
(France, in addition to the above three). The Tokyo Tribunal was established on January
19, 1946 (by Potsdam Declaration of July 20, 1945), by an agreement between the Soviet
Union, the United Kingdom, the United States and China. It had 11 judges, who were not
chosen entirely from the victorious nations. India's Dr. Radha Binod Pal also acted as a
judge on the Tribunal. The Tokyo trials were conducted against 28 persons, and at the
Nuremberg trials, 22 leaders of the Third Reich were tried. The offences for which
charges were laid in the Charter of these tribunals were on four counts:
1. Crimes against peace, i.e., beginning a war of aggression by planning, preparation or
initiation, or in violation of treaties, such as the Hague Conventions of 1899, 1907; the
Treaty of Versailles; violation of Mutual Non-aggression Pact by Germany with France,
Belgium and Poland; and the 1928 Kellog-Briand Pact.
_____________________
105 However, in the Mai Lai Trial, the tribunal was constituted by the United States
when there was severe criticism of the United States at home and abroad for perpetuating
war crimes in Vietnam. In Mai Lai, a village in Vietnam, the whole population was killed
by American military personnel. The trial was held in Georgia between Nov. 16, 1970,
and March 15, 1971. Out of 25 persons charged with war crimes, 19 could not be tried for
insufficient evidence. Except Lt. Caley, others were acquitted. Lt. Caley was awarded life
imprisonment. More recently, for Mayward District Killings of civilians in Afghanistan,
Stac. Jeremy Morlock has been sentenced to 24 years sentence for pre-meditated killing

of civilians along with three other soldiers, including the ring leader Sgt. Calvin Gibbs.
Times of India, March 24, 2011 (Delhi ed.), p. 1.
106 Article 13 of Geneva Convention on Prisoners of War, and Art. 20 of the Protocol I,
together prohibit reprisals against the POWs, and wounded, sick and shipwrecked
members.

2. War crimes, i.e., crimes under the laws of war, which included violation of
customary and conventional rules and regulations relating to warfare.
3. Crimes against humanity, i.e., inhuman treatment (murder or persecution) on
racial or religious grounds during war and in occupied territories.
4. Conspiracy to commit these crimes.
The tribunals were constituted to punish heads of State, ministers and high military and
administrative functionaries responsible for initiating the war and authorising the
perpetration of atrocities. Articles 7 and 8 of the Nuremberg Charter made it clear that the
official position of the defendants shall not be a factor in freeing them from responsibility
or mitigating punishment. Acting under the orders of his government or a superior will
not free the defendant from responsibility, but this can be a mitigating factor in the
punishment, if the Tribunal determines that justice so demands.
The Nuremberg Tribunal, which delivered its judgment on October 1, 1946, imposed
death penalty and imprisonment from 10 to 20 years. Out of 22 persons, 12 were given
the death sentence, three were given the life imprisonment, four were given imprisonment
of various terms, and three were acquitted. The Tokyo Tribunal pronounced its judgment
in November 1948, and found all the defendants, except two, guilty of conspiracy to
wage aggressive war. It also awarded death penalty and imprisonment. There was no
review of the judgment, but the sentence could be confirmed or remitted.
Beside these two tribunals, national military tribunals were also set up by the Allied
Powers to try war crimes. Though constituted under the municipal law, they dealt with
charges similar to the Nuremberg and Tokyo trials. Special national tribunals were also
established in Europe, Australia, Asia and South Pacific, which tried persons involved in
war conspiracies, such as financiers and industrialists, members of enemy forces and
civilians with ordinary offences against the laws of war (ordinary war crimes); and
collaborationists, guilty of treason.107 In all, 7100 persons were tried for various war
crimes, of which 3700 were convicted.
The legality and propriety of these trials and the judgments were criticised by many
jurists on the following grounds:
1. The trials were in violation of the principle of nullum poena sine lege (no
punishment without law). There were no rules of international law declaring such acts as
illegal prior to the Second World War, they were not defined or made punishable and
were considered the acts of State.
2. Trials were conducted under the rule of ex post facto, giving retrospective
operation to a crime which was not punishable at the time of its commission. This is
contrary to the principles of criminal justice. Defendants were not aware about the illegal
nature of their acts under the international law prior to war.
3. The tribunals were constituted by the victorious powers, whose impartiality in
delivering the judgments is very much doubtful.
_____________________
107 See Eichmann's case, 36 ILR 277 (1962), the trial was held by the Supreme Court of
Israel.

4. Consisting mainly of judges from the victorious States, they cannot be called
international tribunals. This is also in violation of the principle of nemo judex in causa
sua (no one can be judge in his own cause).
5. The plea of superior orders has great relevance in the discipline of the armed
forces, and it was rejected by the Tribunals without any concrete reason.
6. One of the arguments of the defendants was that war is waged by States and not
by individuals, who are not the subjects of international law. The Nuremberg Tribunal
rejected it and pointed out that, "international law imposes duties and liabilities upon
individuals as well as upon States".108
Prior to these trials, belligerents were generally entitled to try only those members of the
armed forces who fell into its hands, or who had committed these crimes within its
territorial jurisdiction.
These trials made it clear that orders of superiors or obedience to national laws do not
constitute a defence but is a factor for the mitigation of punishment. This was the
reaffirmation of the decision of the Llandovery Castle case decided in the course of
Leipzig Trials.109 It was held that the defence of superior orders would afford no
justification where the act was manifestly and indisputably contrary to international law
as, for example, in the case of killing of unarmed enemies or of shipwrecked persons who
had taken refuge in life-boats during the First World War.110 The German Court, which
decided this case, rejected the plea of superior orders if known to be against the law, but
said that it could be an extenuating factor. The courts must also take into account the state
of mind of the accused who believed the order to be lawful, which could be a defence,
unless the order was patently illegal. The Nuremberg Tribunal laid down the test to
determine, "whether moral choice was in fact possible on the part of the individual
ordered to commit the criminal act" in such cases. The individual is bound to obey only
lawful orders.
On the other hand, superiors are responsible for the actions of the subordinates.
Subordinates cannot be held liable if in obedience to a command, they commit acts which
violate the rules of warfare as well as outrage the conscience of mankind. There should
also be some dereliction of duty on the part of the superior in such cases. For this
purpose, there should be some actual knowledge or grounds for possessing knowledge,
i.e., once the wrong doing is brought to his knowledge or he obtains such a knowledge,
the commander should take steps to prevent the commission of war crimes. Failing to do
so, will make him liable. In the Yamashita Trial case,111 it was laid down that the gross
failure to control subordinates responsible for atrocities is almost equivalent to tacit
permission for their commission which will involve the commander's responsibility.
_____________________
108 In the Tokyo trial, Sir Radha Binod Pal in his dissenting judgment expressed the
view that war is beyond the scope of international law.
109 (1921) AD cases, 1923-24, Case No. 235.
110 Article 3 of the unratified Treaty of Washington, 1922, relating to submarine
warfare, made the violation punishable like acts of piracy whether or not the person was
acting under the orders of his superiors.
111 4 War Crimes Trial Reports, 1-96.

Article 86(2) of Protocol I makes the superiors responsible and subject to disciplinary
action for the acts committed by subordinates, if they knew or had information based on
the "circumstances at the time" that the subordinate is committing or is going to commit a
breach and they fail to take all feasible measures to prevent such a breach. Article 87(3)
also imposes similar responsibility on the commander who must initiate the necessary
steps to prevent such violations and where appropriate, take disciplinary or penal actions
against violations thereof.
Following on the judgments of the tribunals after the Second World War, in pursuance of
the General Assembly resolution, the ILC, in 1950, formulated a Draft Code of Principles
Recognised in the Charter of the Tribunals and the Judgments of the Tribunal.112 The
Code made reference to "persons" as guilty of crimes against the peace and security of
mankind, to prevent guilty individuals sheltering behind the abstract entity of State. In
1954, the General Assembly adopted a Draft Code of Offences against the Peace and
Security of Mankind, embodying the principles of the Nuremberg trial.113 In 1967, the
General Assembly adopted a Declaration on Territorial Asylum asking States not to grant
asylum to persons against whom serious charges of committing war crimes exist.114
Again, in November 1967, the General Assembly adopted an important Convention on
the Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity, which paved the way for the trial of war criminals who could not be tried
earlier.
Each of the four Geneva Conventions, 1949, enumerates certain "grave breaches" of
these Conventions, which, if committed, are regarded as war crimes, for example, Art.
130 of the III Convention lists grave breaches against POWs as wilful killing, torture or
inhuman treatment, causing wilful suffering or serious injury to body or health. The
Conventions' list of grave breaches has been further supplemented by Protocol I.115
VII. TERMINATION OF WAR AND ARMED HOSTILITIES

The war and armed hostilities are brought to an end by different modes, though they are
not exactly the same in both the cases. When the war results in the complete defeat of a
State, the victorious power has the choice to annex the conquered territory. The
annexation brings to an end the existence of the annexed territory as an independent State
under international law, which automatically terminates the status of war. However, the
validity of this mode under the law of the United Nations Charter is questionable, as no
territorial changes brought about by the use of force are to be recognised, and if annexed
illegally, their independence is sought
_____________________
112 GA Res. 177 (II).
113 The work on the said Draft stopped in 1954, which was re-started in 1988. The
Commission work ultimately led to the adoption of the Statute of Rome, establishing the
International Criminal Court (ICC) in 2001. For more on the ICC, see supra Ch. 15.
114 GA Res. 2312 (XXII) of Dec. 4, 1967.
115 See Arts. 11(2) and 85(3)—attacks directed against persons and objects protected
under the Convention, wilfully endangering the physical or mental health or integrity of
protected persons are "grave breaches" under Protocol I. In the prosecution of Dusko

Tadic and others, the Int. Criminal Tribunal for the Former Yugoslavia has applied the
"grave breaches" provisions of the Geneva Conventions, laws of war, and crimes against
humanity, see 36 ILM 908 (1997).

as was done in the case of Kuwait's annexation by Iraq on August 2, 1990, which was
rescinded in March 1991.116
Generally, the status of war is terminated through a peace treaty transforming the state of
war into state of peace. The treaty settles all aspects of the post-war status between the
parties, including the evacuation of the occupied territory, repatriation of POWs,
boundaries, indemnities, etc., such as the Tashkent Pact of January 10, 1966, between
India and Pakistan after the 1965 war, or the Shimla Agreement of 1973 after the 1971
war between the two countries, and the Camp David Agreement of 1979 between Israel
and Egypt after the 1967 and 1973 wars. If the treaty is silent about property, the rule of
uti possidetis (as you possess, you shall continue to possess) applies, i.e., that a State is
entitled to retain such property which was in its actual control at the date of cessation of
hostilities. The peace treaty also restores the normal relations between the parties,
including diplomatic relations. Distinct from the peace treaty, sometimes there may be
agreement to end the war, where not all the parties involved in the war or armed
hostilities are States, such as the Four-Party Agreement of January 23, 1973, to End the
War and Restoring Peace in Vietnam in which the Vietcong was a non-State entity.
But the status of war can be terminated by less formal methods, which are as follows:
1. By simple cessation of hostilities without any definite understanding on any
aspect. This obviously leaves the future relations between the warring States to be
governed by a treaty to be concluded later.
2. By armistic agreement, which is aimed primarily to end the hostilities, but which
can subsequently operate to terminate the status of war. However, its temporary nature
does not rule out the eruption of hostilities again, but the armistic agreement can be
succeeded by a peace treaty to terminate the status of war, like the General Armistic
Agreement of November 11, 1918, after the First World War succeeded by the Treaty of
Versailles.
3. By unilateral declaration of the victorious power, as was done by the United
States through a Presidential Proclamation in 1951, terminating the war with
Germany.117
The armed hostilities, short of war, can be terminated through less formal ways:
1. The most common mode is through a cease fire, ordered by the United Nations
Security Council or the General Assembly, such as the cease fire ordered in the case of
Congo and the armed forces of Katanga on October 13, 1961; the Security Council
resolution of September 20, 1965, demanding cease fire in the India-Pakistan conflict.
The unilateral cease fire can also be declared as China did in the India-China border
conflict in October 1962, or the United Kingdom's cease fire of June 13/14, 1982, in the
Falklands Conflict of April-June 1982, which ended by surrender of Argentina garrisons.
However, the cease fire demanded by the Security Council may not always be operative
immediately, as was ordered by Resolution 598 of July 1987, in the Iran-Iraq war (1980-
88), but was accepted only in August 1988. The cease fire prohibits the armed hostilities
absolutely within a specified area for a stipulated time.
_____________________
116 See SC Res. 686 of March 2, 1991.
117 See Starke, op. cit. 5, at pp. 572-573.

2. Through the conclusion of armistic agreement, the hostilities may be brought to

an end temporarily. But unless it is succeeded by a peace treaty, there is always a threat
of resumption of hostilities.
3. Through a "truce". This method is less definitive than "armistic", and is
sometimes used in the United Nations practice as was done in Palestine in May-June
1948.118
4. Through an unconditional surrender of the enemy. For example, in the Indo-
Pakistan war of 1971, the unconditional surrender of Pakistani armed forces on
December 16, 1971 brought to an end the armed hostilities.
5. By an Agreement for cessation of hostilities, such as the three Geneva
Agreements of July 20, 1954, to end hostilities in Indo-China between the Government
and Viet Minh forces involving Vietnam, Laos and Cambodia; suspension of hostilities in
the Dominican Republic in May 1965.
6. By a Joint Declaration to restore friendly and peaceful relations as in the case of
the Tashkent Declaration of January 1966, between India-Pakistan after the 1965 armed
hostilities, including the terms of withdrawal and return of the POWs.
Doctrine of postliminium
The doctrine is imported into international law from Roman Law according to which the
territory, person and property under the occupation of the enemy during the war, return
either during the war or at its end to its original owner or on its being reconquered by the
original sovereign.119 Legal status of the things in the occupied territory that existed
originally is re-established. At the end of war, if the peace treaty does not contain any
express provision to the contrary, the doctrine of post-liminium governs the rights of the
parties other than to property. The property lawfully disposed off by the occupant power
cannot be restored to its original position.
_____________________
18 For the UN practice on cease-fires, armistics and truces, see Sydney D. Baily,
Cease-fires, truces, and armistics in the practice of the United Nations Security Council,
71 AJIL 461-473 (1977).
19 Oppenheim, op. cit. 4, at p. 617.

Page 537
CHAPTER 18
Law of Neutrality and Economic Warfare

I. “NEUTRALITY” IN GENERAL
The term neutrality is derived from the Latin word “neuter”, which connotes a status of
noninvolvement and impartiality. It is an impartial attitude of a State towards belligerents
in a war. According to Oppenheim, neutrality is “the attitude of impartiality adopted by
third States towards belligerents and recognised by belligerents, such attitude creating
rights and duties between the impartial States and the belligerents”.1 Philip Jessup
defines neutrality as “a legal status arising from the abstention of a State from all
participation in a war between other States, the maintenance by it of an attitude of
impartiality in its dealings with the belligerent States and the recognition of the latter of
this abstention”. According to these definitions, the neutrality comprises the following
elements: attitude of impartiality, recognition of neutrality by the belligerents, and
creation of rights and duties between belligerents and neutrals.
(i) The attitude of impartiality, i.e., the neutral State should keep an attitude of
impartiality towards the belligerents. However, mere sympathy with a belligerent so long
it is not expressed in an action violating the impartiality, or gifts and loans of money by
private citizens of the neutral State to a belligerent, are not contrary to neutrality.
(ii) Recognition of neutrality by the belligerents, i.e., the neutral’s attitude of
impartiality must be recognised by the belligerents, which should acquiescence to
neutrality declared by a State. In fact, a State which has declared its neutrality may
demand that neither belligerent should force it to war. A belligerent which refuses to
recognise a State as neutral violates international law.
(iii) Creation of rights and duties between belligerents and neutrals, i.e., neutrality
creates a special legal status involving a whole set of rights, duties and privileges for
neutrals and belligerents alike under international law, which must be respected by them.
This relationship exists so long as the status of war exists and with the termination of war
or with the outbreak of war between neutrals and a belligerent. The neutral State may end
its neutrality at its will by joining the war, or where the neutral State has been taken over
by the belligerent.
According to Dinstein, there are two rationales for neutrality: (i) the wish of neutral
States to have guarantees that they will sustain minimal injury as a consequence of the
hostilities, and (ii) assurance to belligerents that neutral States will not aid or abet any
adversary belligerent.2
_________________
1 L. Oppenheim, International Law, Vol. II, 7th ed. (Longman, London), 1952, p.
653.
2 Yoram Dinstein, The laws of neutrality, 14 Israel Yb of Human Rights 80-110, at
p. 80 (1984).

Neutrality is different from “neutralisation” which is a permanent status conferred on a

State under a treaty or an agreement, for example, the Treaty of 1815, guaranteeing
Switzerland’s neutrality and that of Belgium (1831). In “neutralisation”, the big powers
guarantee the independence and territorial integrity of the neutralised State permanently,
with the condition that the State concerned will never take up arms against another State
except to defend itself and will never enter into any treaty of alliance which may
compromise its impartiality or lead it into war.
It is desirable that a State wishing to remain neutral should make a notification to this
effect. At the outbreak of the Second World War, in September 1939, many nations
announced and communicated their neutrality to the belligerents. But a special assertion
of neutrality is not necessary and the international law does not impose any obligation to
do so.
Neutrality has been categorised as follows:
Perfect and imperfect neutrality

When a neutral State, neither actively nor passively, neither directly or indirectly, favours
either belligerent, it is a perfect neutrality. Any favour in any form amounts to imperfect
neutrality. However, mere sympathy for a belligerent will not affect perfect neutrality.
Absolute and qualified neutrality

Absolute neutrality connotes complete impartiality of a State under which warring States
can fight effectively without affecting the territorial integrity and economic activities of
the nonbelligerents.3 However, when a State remains neutral on the whole, but has been
giving assistance to a belligerent directly or indirectly as a part of a treaty obligation, it is
a qualified neutrality.
II. DEVELOPMENT OF THE LAW OF NEUTRALITY

The institution of “neutrality” always existed along with war from the period of antiquity.
There were clear rules of conduct to regulate relations between belligerents and neutrals,
like the rules of nutrality which existed in India during the Mauryan reign in 400 BC.4
However, their contents were never precisely laid down, and changed according to the
political imperatives of States. In the modem sense of the term, the concept of neutrality
developed in the middle ages, mainly through bilateral treaties, wherein parties to the
treaty would undertake not to side with a belligerent in war against a party to the treaty.
These treaties in no way devolved neutral rights and duties on the non-participants as
understood in the modem concept of neutrality. However, the concept of “neutrality”
could not be developed as an institution until the end of the seventeenth century, but it
was still not evolved in a systematic manner. During the eighteenth century, after the
writings of Bynkershoek and Vattel, its contents were precisely laid down and the right of
States to remain neutral towards belligerents in a war and the belligerents duty to respect
neutral’s territory were well recognised.
_________________
3 Gary L. Moris, International Law (Press of America, New York), 1984, p. 332.

4 See K.R.R. Shastry, The concept of neutrality in international law, SCJ, p. 113
(1959). According to the author, in ancient India, three different conditions of
international law were clearly recognised, viz., war, peace and neutrality.

Page 539 LAW OF NEUTRALITY AND ECONOMIC WARFARE
Much of the impetus for its growth came in the nineteenth century, in which the United
States played an important role. In the Napoleonic Wars (1793-1818), it refused to allow
its territory to be used for the equipping or arming of vessels on behalf of the belligerents,
and its citizens were not allowed to be recruited in the armed forces of the belligerents.
Many judgments rendered by the British Prize Court, under Lord Stowell, also helped in
giving content to the emerging law on neutrality. Rules were evolved to regulate
commerce between neutrals and belligerents during war. During the American civil war
(1862), several disputes pertaining to neutrality also helped in the development of the law
on neutrality. Out of these, the pronouncement in the Alabama Claims Arbitration
(1872)5 was a landmark, which laid down the Three Rules of Washington on neutrality,
and the further development of the law was based on this. The permanent neutralisation
of Belgium and Switzerland in the nineteenth century also contributed significantly in its
development. The limited wars fought during this period further helped in laying down
the rules of neutrality. These rules were also incorporated in certain international
instruments. The Paris Declaration, 1856, provided that the neutral goods, not contraband
of war, shipped on enemy vessel shall not be appropriated. At the Hague Conference,
1907, two conventions dealt with this subject. While Convention V was related to the
Rights and Duties of Neutral Powers and Persons in War on Land, Convention XIII was
in relation to Rights and Duties of Neutral Powers in Naval War. Later, the London
Declaration of 1909 related to naval war also made important provisions (viz., Arts. 48,
56 and 57) relating to neutrality, but the Declaration could not become operative due to
non-ratification by important naval powers.
These rules, however, were violated with great impunity during the two world wars,
which clearly brought out the inadequacy of these rules and put under doubt their very
basis. Neutrality is considered to be justifiable because: (a) it helps in localising the war;
(b) it discourages war by enabling States which do not want to be embroiled into war to
keep out; and (c) it helps in regularising international relations. During the First World
War the United States, which remained neutral till 1917, was forced into war when its
neutrality was violated. The Second World War also proved the fallacies of the rational
basis of neutrality when one neutral State after another was “rolled up” (like Norway,
Denmark, Holland and Belgium) by Germany, and it did not remain localised. Similarly,
both the Soviet Union and the United States, which had declared their neutrality, were
attacked by the Axis Powers, Germany and Japan respectively, and thus, the war spread
into a total war. The traditional concept of neutrality also proved contrary to the rule of
law in international relations, as it happened under the Covenant of League of Nations.
After Germany overran many West European nations in June 1940, the United States,
which
had declared its neutrality by an Act of Congress in 1937, in an attempt to help Great
Britain and her allies in the war, and to halt further victories of Germany and to thwart its
ambition to become the world power, passed the Land Lease Act of March 1941 under
which it armed the Great Britain and patrolled dangerous sea-lanes from the enemy. This
affected the traditional rights and duties of the neutrals profoundly. The disregard to the
neutrals’ rights by the United States after becoming the belligerent by bringing in

pressure on European neutrals to withhold supplies from the Axis Powers further affected
the traditional concept of neutrality.
_________________
5 See Moore, 1 International Arbitrations, p. 495.

A. Neutrality and the Covenant of the League of Nations

The Covenant of the League of Nations brought about some fundamental changes in the
traditional law of neutrality. It envisaged two types of war: (i) those which were
permitted under the Covenant and (ii) those which were not so permitted. As to the first
kind, after exhausting measures of peaceful settlement in accordance with the Covenant
(Arts. 12-15), if a State resorted to war, other members of the League could remain
neutral in the traditional sense of the term and the Covenant did not impose any
obligation upon them. But the war resorted by a State in disregard of the obligations of
the Covenant was considered illegal and the State doing so was “deemed to have
committed an act of war against all other Members of the League” (Art. 16(1)). This
imposed an obligation upon members to give assistance to the League, and they were
thus precluded to adopt an attitude of neutrality. However, even though the concept of
neutrality was affected by the Covenant, it was not totally abolished and even in the wars
fought in disregard of the Covenant, neutrality remained operative because of the absence
of any independent body to determine whether a state of war existed, and the subjective
judgment of the States that the war was fought in disregard of the Covenant. States
generally adopted an attitude to keep out of war in general, a policy of non-involvement,
like France and Great Britain had towards the Spanish civil war in 1936-37, or the
declared neutrality of Argentina, Chile and Peru (all members of the League) towards the
Chaco war between Bolivia and Paraguay in 1933. The Allied Governments declared
their neutrality collectively in the Greco-Turkish war of 1921, and Germany remained
neutral in the Russia-Polish war of 1920. Neutrality also remained operative amongst and
in relation to non-members, such as the United States, Japan, Germany and Italy, as well
as the wars not specifically forbidden under the Covenant.6
The 1928 Kellog-Briand Pact, which outlawed the war as a national policy, did not have
any specific provision on neutrality. But the States were free to remain neutral in the
traditional sense in the wars fought among the parties and non-parties of the Pact, or
waged in self-defence. Thus, the United States proclaimed its neutrality in 1937, before
the outbreak of the Second World War, but entered the war on December 7, 1941, after
an attack on Pearl Harbour. Nevertheless, prior to that it actively sided with Great Britain
by providing it all the logistic support to wage war against Germany, by passing the Land
Lease Act in March 1941. The “total war” waged could not protect the neutrals’ rights
and their territory from the belligerents. But even in this scenario, Sweden, Switzerland
and Spain succeeded in keeping their neutrality intact.
B. Neutrality and the United Nations Charter

The United Nations Charter does not distinguish between permissible and impermissible
war as was the case under the League Covenant, but it prohibits the use of force
absolutely (Art. 2(4)), except for self-defence (Art. 51). Though it does not have any
precise provision on neutrality, but the Charter has greatly affected the concept of
neutrality.7 The absolute
_________________
6 J. Stone, Legal Controls of International Conflict (Stevens & Sons Ltd., London),
1959, p. 381.

7 Fenwick opines that the Charter has marked the end of neutrality as a legal
system, see C.G. Fenwick, International Law, 3rd ed. (George Allen & Unwin, London),
1948, p. 727. On the subject of neutrality under the Charter, see W.W. Norton in 17
Harvard ILJ, 249-252, 309-311 (1976); Y. Dinstein, op. cit. 2, at p. 81.

right of neutrality does not exist any more. The collective security system as envisaged
under Chapter VII of the Charter and the responsibility of the Security Council to deal
with all acts of aggression, threats and breaches of peace do not allow a State to take an
independent action. The members are bound by the decisions of the Security Council
(Art. 25) hence they cannot remain impartial when the Security Council has decided to
take an action. The Charter envisages two courses of action for the members in a situation
of war: (1) If a State is an aggressor, then the preventive or enforcement action can be
taken against it by the United Nations; (2) If it is subjected to aggression, it should be
assisted by the United Nations under Art. 51.
Article 2(5) enjoins members to give every assistance to the United Nations in any action
taken under the Charter, and refrain from giving assistance to any State against which the
United Nations is taking preventive or enforcement action. Articles 41, 42 and 43
empower the Security Council to decide upon the enforcement measures and ask the
members to apply such measures. Thus, theoretically no member of the United Nations
can resist the call of the Security Council and opt to remain neutral if the Security
Council decides to take action against an aggressor State. Nevertheless, the neutrality has
not been completely abolished under the United Nations system. The Charter contains
certain “escape clauses” to evade the rigours of enforcement action decisions. Under Art.
48(1), even if the Security Council has decided to take enforcement action, it may call
upon only some of the members to carry out the decision. If the carrying out of an
enforcement action causes special economic problems to a State, it may be exempted to
do so by the Security Council (Art. 50).8 In such an eventuality, members enjoy the
qualified neutrality, which means that they are under an obligation not to assist the
belligerent subjected to enforcement action, but assist other members in carrying out the
measures decided by the Security Council (Art. 49). The State subjected to armed
aggression has a right of self-defence till the Security Council acts in the matter (Art. 51),
and in the meantime other States may remain neutral.
Strictly speaking, a State can exercise neutrality only within the limits of the Charter and
for issues and conflicts not covered under the Charter. It does not affect neutrality in wars
between members and non-members or between non-members, because these obligations
primarily bind the members of the United Nations (Art. 2(2)), although the non-members
are also bound to act in accordance with the principles of the Charter so far as necessary
to maintain international peace and security (Art. 2 (6)). However, where the Security
Council has taken the decision for enforcement action in the case of non-members, the
members nations are bound to comply with its decision. The Security Council took such a
decision in the case of the Korean conflict (1950-53), even though North Korea and
South Korea were not the members of the United Nations. Even the decision for
enforcement measure is binding on the non-members (cf. Art. 50), but in the absence of a
specific direction to comply with it, they may adopt an attitude of neutrality.
If the Security Council is unable to take a decision because of the exercise of “veto” by
any permanent member, with the result that no enforcement or preventive action is taken
by
_________________

8 In the Rhodesia case, Zambia was exempted to carry out Res. 232 (1966) SCOR 21st
yr., Resolution and Decisions, p. 7, imposing selective mandatory economic sanctions
against the illegal white minority regime. In the case of Iraq-Kuwait conflict, India,
Pakistan, Philippines were allowed to provide humanitarian assistance to their nationals,
see SC Res. 666 of Sept. 13. 1990, and Res. 669 of Sept. 24, 1990.

the Security Council, in that case, member States may remain absolutely neutral towards
the belligerents. Thus, the traditional neutrality still survives under the Charter by force
of logic and the compulsion of international politics.
There are certain post-war treaties, particularly military pacts, which have also restricted
the scope of neutrality, like NATO, 1949, and ANZUS, 1951 (Pacific Security Pact
between Australia, New Zealand and the USA), wherein the States have renounced their
neutrality for the parties to the treaty, i.e., if one of them is subjected to aggression, other
States parties will side with it.
III. RIGHTS AND DUTIES OF NEUTRAL AND BELLIGERENT STATES

‘Neutrality’ does not mean merely the non-involvement of States in a war, but it
comprises a bundle of rights and duties, correlating with the duties and rights of the
belligerents in a war. These rights and duties are incorporated in the Hague Conventions
V and XIII of 1907. They are the duties of abstention, prevention and acquiescence.
A. Duties of Neutrals
1. Duty of abstention
A neutral State must abstain from rendering any assistance, directly or indirectly, to any
belligerent State. It must not lend money or sell arms and ammunition to either
belligerent. The sale of public ships, if capable of rendering any assistance in war, is
forbidden. The sheltering or refuelling of men-of-war beyond what is necessary to get
them to their nearest home port is similarly not permitted (Art. 19 of Convention XIII).9
But the gifts or loans of money by private citizens of the neutral State to the belligerent,
or other similar transactions, or individual enlistment by private citizens with the
belligerent, are not prohibited.10
2. Duty of prevention
It is the duty of the neutral State to prevent the use of its territory for activities hostile to
either belligerent. The activities such as the enlistment of troops in the interest of a
belligerent (Art.
4 of Convention V), preparation for war-like activities or war measures like
installing of wireless station or any apparatus exclusively to be used for military purpose
(Art. 3 of Convention V) must be prevented.11
_________________
9 See Oppenheim, op. cit. 1, at p. 675.
10 However, the increasing State controls have affected the distinction between a
State and its citizens such as the control of export of arms and ammunition by individuals
have consequent bearings on the concept of neutrality.
11 The Harvard Draft Convention on Rights and Duties of Neutral State in Naval and
Aerial Warfare also provided that the neutral State must prevent the flight from its
territory of any aircraft intended to engage in hostile operations against a belligerent or
which is intended for services of a military character for a belligerent.

However, to allow passage of men-of-war through the maritime belt does not
compromise neutrality (Art. X of Convention XIII). Belligerent’s warships have a right of
passage through neutral territorial waters. But the passage through the neutral waters
should be innocent and right must not be abused. They cannot use neutral ports or waters
as a base for naval operations against the belligerent (Art. 5, Convention XIII). They
may, for the purposes of refuelling, repairs, etc., take refuse in neutral ports, (not more
than three ships at a time) for not more than 24 hours, except for sufficient reasons, like
weather or urgent repairs. If the ships over-stay, the crew can be interned. The Altmark
case12 illustrates the limits of the right of the neutral State to permit the passage of
belligerent men-of-war through its territorial waters.
The Altmark was a German auxiliary vessel, carrying over 300 British officers and
sailors taken prisoners from several British merchant vessels sunk by a German armoured
ship. On February 14, 1940, it entered Norwegian waters on her way from South America
to Germany. The permission to navigate through Norwegian territorial waters was
granted by the Norwegian authorities after verifying the vessel. Soon after that, British
forces sought permission to search Altmark in order to release the British prisoners,
which was refused. On February 16, 1940, the British destroyer, Coseck, entered the
Norwegian waters where the Altmark had taken refuse and freed all the prisoners and
brought them to England. Norway protested the British action as in violation of
Norwegian neutrality. To this, the British Government alleged that Norway acted
partially by allowing Altmark a far deeper entrance into her waters to enable it to hide
prisoners, forcing Britain to resort to self-help on humanitarian grounds. It also contended
that the presence of British prisoners-of-war on board the Altmark exempted it from the
rule of free passage through territorial waters because prisoners-of-war become free on
neutral territory.
In cases like Altmark, a prolonged use of territorial waters of a neutral State, which is not
due to force majeure, by the men-of-war or their auxiliaries if not dictated by normal
requirements of navigation, but used for war-like preparations or to escape from the
forces of other belligerent, constitute illegal use of neutral territory, which a neutral is
obliged to prevent under international law by means at its disposal.13 Failing to do so
would entitle the other belligerent to resort to self-help.
3. Duty of acquiescence
The neutral State must acquiesce to the legitimate rights of the belligerent even if it
sustains certain incidental damage. For example, the neutral State should not oppose the
belligerent’s right of search and seizure of a ship flying its flag if it was carrying
contrabands, and adjudicate about it through Prize Courts. The non-acquiescence would
be deemed to be violative of neutrality.
Any violation of these duties, if it causes damage to the other party, would make the party
causing damage liable, who must then pay the compensation to the aggrieved party.14
But these duties are not absolute and a neutral State is only bound to execute them by
means at its disposal. A neutral State cannot ensure to perform these duties and in case a
powerful belligerent violates
_________________

12 Referred in Oppenheim, op.cit. 1, at p. 693.

13 Ibid., at pp. 694-695.
14 Cf. Alabama Claims Arbitration (1872), op. cit. 5.

its neutrality and thereby causes damage to the other belligerent, the neutral State is not
liable to the injured belligerent.
B. Duties of Belligerents
1. Abstention
It is the duty of a belligerent not to direct or commit war-like acts against the neutral
territory or its air space, or use the neutral territory for war-like preparations, or to
interfere with the neutral’s legitimate intercourse with the enemy. There is a
corresponding right of neutral State of the inviolability of its territory and its territorial
integrity must be respected. Belligerents cannot direct or commit war-like or hostile acts
within the neutral territory or jurisdiction. Article 2 of the Hague Convention XIII
prohibits acts of hostility involving capture, visit and search in neutral waters. However,
where the neutral’s territory is being violated by one of the belligerents and the neutral
State does not take any action against that belligerent or it is too weak to take that action,
the other belligerent is entitled to intervene in the neutral State.
2. Prevention
The belligerent is under a duty to prevent the ill-treatment of neutral subjects or damage
to neutral property in occupied territory.
3. Acquiescence
A belligerent State must acquiesce in certain acts of the neutral State, such as internment
of such members of its armed forces who have taken refuge in neutral territory or
granting of temporary asylum to enemy warships for a specific purpose or to carry out
necessary repairs. Otherwise, the enemy warship cannot stay for more than 24 hours in
the neutral territorial waters, breach of which will be considered an act violative of
neutrality,
C. Un-neutral Service
The doctrine of “unneutral service” relates to the duties of neutral citizens in maritime
warfare, which is different from the “doctrine of contraband”. Traditionally, it relates to
transport of members of the enemy armed forces (now scientists also), carriage of
dispatches to the enemy (intelligence reports, etc.), taking a direct part in hostilities,
operating under the enemy’s charter, and the transmission of intelligence in the interests
of the enemy.15 These services are rendered by private individuals of a neutral State,
which can be used in direct service of the enemy in contrast to the contrabands. Presently,
the doctrine is not confined to ships alone, but has been extended to aircrafts as well.
Thus, unneutral service consists in carriage by neutral vessels
_________________
15 See Arts. 45-47 of the Declaration of London, 1909. Under. Art. 11 of the Hague
Convention XIII, the licensed pilots of a neutral State can be employed. No transport
services are permitted in the context of neutral’s duty of impartiality, but private
individuals are permitted.

or aircrafts of certain persons and dispatches for the enemy.16 These acts may advance
the interests of one belligerent at the cost of its opponent. This gives the injured State the
right to stop the vessel or aircrafts and remove certain persons carried improperly. The
State is also empowered to capture the vessel or its cargo and condemn it through the
proceedings of the Prize Court.17 It can also visit and search the neutral vessel for this
purpose.
D. Rights of Belligerents
Apart from the above-mentioned duties of the neutrals and the correlative rights of the
belligerents, there are certain other rights and privileges of the belligerent States.
1. Right of angary
Under customary international law, during war, a belligerent enjoys the right of angary or
“jus angariae”, i.e., the right to requisition neutral ships for military purposes, and to
compel their crew to render services of enemy character, such as transport of troops,
munitions and provisions to certain places on payment of freight in advance. Under the
modem right of angary, a belligerent can requisition or destroy or lay embargo on neutral
ships or seize goods physically present within its jurisdiction (for example, ships
anchored in the harbour) for military purposes in case of necessity and subject to the
payment of compensation.18 The question of necessity and the amount of compensation
are decided by the prize courts. Full compensation will be paid if ships and goods were
brought there involuntarily. If they have been brought voluntarily, reasonable
compensation will be paid to the owner.19
2. Right to visit and search

A belligerent has the right to visit and search the neutral vessel to ascertain whether it is
sailing to perform unneutral service or carrying contraband for the enemy. This right can
only be exercised by the military aircrafts and warships in the maritime belt of either
belligerent or on the open seas. It cannot be exercised in the territorial waters of neutrals.
If the merchantman of a neutral vessel resists this right, the vessel may be captured at
once and condemned to the Prize Court. According to Art. 63 of the London Declaration,
resistance to the right of visit, search and capture results into confiscation, since it is
tantamount to enemy character of the vessel. The prize court decides about the legality of
the capture.
IV. ECONOMIC WARFARE

During war, one of the aims of the belligerent is to weaken its enemy by exerting
economic pressure. This can be done by stopping the inflow of all vital goods, helpful to
the enemy in
_________________
16 See Oppenheim, op. cit. 1, at p. 832; Stone, op. cit. 6, at pp. 511-512, Ch. XVIII.
17 Stone, ibid., at p. 512.
18 Whether the right may be exercised on the high sea or in occupied territory is a
disputed issue.

19 See H. Lauterpacht, Angary and requisition of neutral property, 27 BYblL 455

(1950); J.G. Starke, Introduction to International Law, 10th ed. (Butterworths, London),
1989, p. 584.

waging the war. This requires stopping or limiting the supply of goods from neutrals.
Traditionally, this purpose is achieved through the rules of contraband and blockade,
which regulate the neutral shipping and trading relations with belligerents. New
dimensions were added to these measures during the two world wars so as to effectively
weaken the financial capabilities of the enemy. They were drastically modified and
expanded during these wars.
A. Contraband
The term “contraband” comes from the Italian word “contrabando”, which is derived
from the Latin words “contra” and “bannum” or “bandum”, which means “in defiance of
an injunction”. During war, a belligerent designates certain goods as prohibited, which
cannot be carried to the enemy because they may help the enemy in the war. The
essentials of contrabands are two: the kinds of goods and their destination.
1. Kinds of the goods

The Declaration of London, 1909, from the war point of view, designated goods as
absolute contraband, conditional or relative contraband and non-contraband or “free”
goods. The articles exclusively used for war or clearly of war-like or military character,
are absolute contraband, such as arms and ammunition, gun mountings, military clothing,
camp equipment, as well as military stores, naval stores, etc. (Arts. 22 and 23 of the
London Declaration). Goods which can be used for war and peace purposes alike are
relative or conditional contraband, for example, coal, fuel, gold, silver, food, railway
rolling stock. Such articles, if intercepted on their way to the enemy power or its forces,
are liable to seizure and will be considered as absolute contraband. The articles which are
not susceptible to use in the war should never be declared contraband and they are termed
as “free goods”, such as fancy goods, soap, colours, paint, etc.
Under the London Declaration, an agreed list pertaining to each category was to be drawn
up, but the Declaration remained unratified. Hence, there is no general agreement among
States regarding different categories of contrabands. State practice also does not throw
any light in the matter of contraband. This leaves States free to bring out their lists of
contrabands. Nevertheless, goods which are universally recognised as war-like materials
are per se absolute contrabands. But the distinction between absolute and relative
contrabands has not been considered of any value in the light of the experience of the two
world wars. During these wars, out of expediency and policy, belligerents declared
contrabands even those goods which were traditionally recognised as non-contrabands.
These wars were total wars and the concept of “total war” hardly leaves any article
outside the purview of contraband, because of the range of equipments required for
waging a modern war and the scientific and technological developments which have
revolutionised the production and use of war materials. The experience from these wars
have made the old rules and usages as to contraband obsolete, and States for the sake of
self-preservation have been designating every conceivable article or material as
contraband for which they make official announcement.20
_________________

20 During the Indo-Pak war in December 1971, both India and Pakistan officially
announced their list of contrabands. For the text of these declarations, see 66 AJIL 386-
387 (1972).

2. Destination of the goods

Irrespective of the nature of the goods, they are not considered contrabands unless they
have the enemy destination. The absolute contrabands, if sent to the government of an
enemy country or its military forces, or to persons in a neutral country known to supply
them to the enemy, have the enemy destination and are liable to seizure. According to
Art. 30 of the London Declaration, the goods will be deemed to have hostile destination if
sent to enemy territory, or enemy controlled territory, or to armed forces of the enemy.
However, such hostile destination is rebuttable (Art. 34). The hostile destination is
deemed proved: (i) when the goods are consigned to enemy ports or its armed forces; or
(ii) when the vessel calls upon or touches the enemy ports or meets the enemy before
reaching the neutral port of the consignment (Art. 31). In such cases, the goods are liable
to be captured as contrabands.
B. Doctrine of Continuous Voyage or Continuous Transportation

Normally, goods sent to a neutral State are not treated as contrabands. But where their
ultimate or ulterior destination is the enemy territory, they are deemed to have the hostile
destination and are liable to capture. In certain cases, to avoid interception of goods at
sea, the voyage is split into two and goods are first sent to citizens in a neutral State
adjacent to enemy territory and then they are resold or transported to the enemy.
Apparently, the destination of goods is shown to be neutral port or territory which, in
fact, is not the real destination but the intermediate port of the journey where the goods
are unloaded and reloaded to be sent to the enemy port or territory, showing it as a
separate voyage. However, in such cases, the doctrine of continuous voyage or
continuous transportation is made applicable.
In continuous voyage, the ship breaks its journey at a neutral port, and after unloading
and reloading, proceeds for an enemy territory. In continuous transportation, the goods
are unloaded at the neutral port from where they are carried to enemy territory through
another ship (or by road or air). In this, the whole voyage, which is ostensibly destined
for a neutral port and then directed to some ulterior and hostile destination, i.e., enemy
territory is considered to be one transportation from the time the ship leaves its home
port, and all the consequences of hostile destination are attached thereto. Accordingly, if
the goods are contrabands, they are liable to seizure. The main objective behind this
doctrine is to prevent the carriage of contraband goods to enemy State by a belligerent as
a measure of self-preservation. This is also consonant with the political and economic
changes in the world.
The doctrine was systematically applied by the United States Supreme Court and other
courts during the American Civil War in cases of breach of blockade or of contraband.
But it was expounded in classical terms in the practice of prize courts of Great Britain,
particularly by Lord Stowell.21 However, the doctrine did not receive much support from
scholars and there was no general agreement or support for it prior to the First World
War. Nevertheless, the doctrine was applied in the case of Bundesrath (1900) during the
South African war.22 In this case, three German vessels, the Bundesrath, Harzog and
General were sailing from German neutral ports to the Portuguese neutral ports when
they were intercepted by British cruisers on the suspicion

_________________
21 See the case of The Maria (1805) 5 Ch. Rob. 365.
22 See Oppenheim, op. cit. I, at pp. 819-820.

of carrying contraband. Germany demanded their release by contending that they were
sailing from one neutral port to another, so there was no carriage of contraband. But
Great Britain rejected the contention and maintained that the ultimate destination of the
goods was an enemy territory, hence they were contraband and could be seized, though
they were bound for a neutral port (the vessels were subsequently released after being
confirmed that the goods were not contraband).
In the unratified London Declaration, 1909, the doctrine was confined to absolute
contraband. But during the First World War, the doctrine was made applicable to
conditional contraband also as was done in The Kim.23 The ship was carrying rubber
(absolute contraband) and hides (conditional contraband) from New York to
Copenhagen, a neutral port, along with three Norwegian and one Swedish ships. The ship
was seized on the high seas by British ships in November 1914, on the ground that the
ultimate destination of the ship and its cargoes was Germany, the enemy State. The Prize
Court held that Copenhagen was not the real bona fide place of delivery of the cargoes,
but that the ships were on their way, at the time of capture, to German territory as their
actual and real destination, and held cargoes as the lawful prize. The doctrine was widely
applied by other belligerents also during the War.
In the British practice, the doctrine has been made applicable on the following two
grounds:
1. The contraband goods carried to a neutral country may be seized on their way if
their ultimate destination is an enemy territory, after they have been converted into
manufactured goods at the neutral territory.
2. If the consignee has purchased the goods for delivery to the enemy or is known to
have acted as an enemy agent, notwithstanding the shipper’s innocence of the hostile
destination, the goods are liable to confiscation.
The relevance of the doctrine is more pertinent in the cases of “total war” and is
questionable in the context of the UN Charter under which the use of force is authorised
as a collective action by the Security Council, and the action against the neutral States
does not exist in principle.
1. Confiscation and condemnation of contraband

International law permits a belligerent to seize the contraband goods, sometimes along
with the vessel carrying the contraband cargo, in the open sea if carried to an enemy
destination or the belligerent’s own territorial waters, but it cannot be captured in the
territorial waters of third States. However, the right of seizure is not an absolute right but
requires confirmation by Prize Court established by that State under its municipal law.
International law requires belligerents to set up Prize Courts during war time to decide
about the legality of the capture (ship and cargo). If the Prize Court finds the seizure
valid, the ship or cargo is declared to be a “good prize” of the war. A decree of
condemnation is issued to this effect, which is accompanied by an order of sale, under
which the purchaser acquires a right in rem in that property, valid internationally. But the
seized goods or ships, while in the custody of Prize Court and before any final decision
has been taken as to their condemnation or release, may be
_________________

23 [1915], 1 B. and CPC at p. 481.

requisitioned by the State for war purposes by executing an undertaking with the court,
subjecting it to the final decision of the Court.
The Prize Courts are municipal courts, although they generally apply international law.
But if there will be any conflict between the rule of international law and the municipal
statute, the statute will prevail.24 Every State is bound to make regulations, statutes or
rules to govern the operation of Prize Courts. Their structure differs in various countries.
In some countries, they are mixed tribunals consisting of judges and administrative
officials, in others they are exclusively judicial bodies.
In India, the High Courts of Bombay, Calcutta and Madras, which had the Admiralty
jurisdiction, were declared Prize Courts under the Letters of Patent of 1882, in
accordance with the Naval Prize Act, 1864. The Prize Courts Act, 1894, governed their
procedure, which has been now replaced by the Naval and Aircraft Prize Act, 1971. In
accordance with the Act, the Central Government is empowered to constitute Prize
Courts. A Prize Court may of consist one or more members and shall have the
jurisdiction and power of condemnation in respect of each prize. If a matter is not
specifically regulated by the 1971 Act, the Prize Court shall apply the principles of
international law (Sec. 4(4)). Once the property captured by the armed forces during war
is condemned by the Prize Court as a “good prize”, it becomes the exclusive property of
the Central Government (Sec. 13(1)). If a person is aggrieved by the order of the Prize
Court, he can make an appeal to the Central Government within 90 days against such an
order or decree of the Prize Court (Sec. 6(1)).
C. Blockade
As a war measure, the belligerent resorts to blockade to restrict the blockaded State’s
intercourse with the outside world. It is different from “seize” which is merely to take
possession of a place, but blockade is the besieging of the place and all intercourse by sea
between the coast and the world at large is intercepted. Under blockade, the approach to
the enemy coast or part of it is blockaded by the men-of-war to prevent ingress and egress
of vessels or aircrafts of all nations. A legally enforceable blockade has the following
essentials:
1. It should be carried out by men-of-war during war time; therefore, it is different
from pacific blockade.25
2. It is applied against the whole or part of the coast of the enemy. Only enemy ports
and fortified ports can be blockaded. But in doing so, the interests of the neutral States
should be protected. An enemy port at the mouth of a river which also gives access to
neutral territory may not be blockaded.26 Similarly, enemy ports at the mouth of
international rivers, straits and canals cannot be blockaded, except under treaty
provisions. Thus, only a national river, strait or canal can be blockaded, which lies wholly
from its source to mouth within the territory of an enemy State.
_________________
24 See The Zamora (1916) 2 AC 77, where the Privy Council held that the British
Prize Court had to apply international law of prize even though it conflicted with an
Order-in-Council, but the Prize Court would be bound by the British statute, ibid., at p.
93.

25 For pacific blockade see supra Chapter 16, p. 483.

26 Stone, op. cit. 6, at p. 494.

3. It should prevent ingress and egress of all ships and aircrafts. However,
sometimes only ingress or egress is prevented. It is the belligerent’s right to prevent
neutral men-of-war from passing through the line of blockade.
The aim of blockade is to weaken the enemy economically and financially by stopping
supplies of essential items necessary to wage the war. The blockade can be strategic or
commercial. It is strategic if directed against the enemy coast and aimed at cutting
supplies from enemy forces on shore. It is commercial if directed to cut off the coast of
the enemy from trade and intercourse with the outside world. In other words, commercial
blockade is peaceful and no military operation takes place on the shore of the enemy.
The institution of blockade developed with the law of nations and neutrality. In fact,
blockade is a manifestation of restriction on a neutral’s freedom of trade with
belligerents. It was successfully applied by Holland against Spain in 1584 and 1630. But
no precise rules existed on the matter before the First World War, except the Declaration
of Paris, 1856, and the Declaration of London, 1909 (Arts. 1-21). These instruments were
declaratory of customary international law which lay down certain conditions for
blockade.
(i) Declaration and notification

Blockade is established only after the belligerent government makes a declaration to this
effect and notifies the neutral States. The naval commander can also make such a
declaration under the authority of its government (Art. 9, London Declaration). In this
declaration, the geographical range of the blockaded area must be clearly specified. It
must also lay down the grace period for the ships of neutral States, already in that area, to
leave. Without specifying such a period, the neutral vessels should be allowed to pass out
freely (Art. 16).
(ii) Impartiality
Blockade as a means of warfare should be universal, i.e., it should be applied impartially
to the vessels of all nations (Art. 5, London Declaration). A belligerent may licence
certain vessels for particular purpose, viz., men-of-war of all neutral nations to proceed to
the blockaded area, but it cannot licence traffic in favour of particular neutrals or their
allies.
(iii) Effectiveness
To be binding, blockade must be effective. According to Art. 3 of the Declaration of
Paris, 1856, blockade is effective if it is maintained by force sufficient to prevent access
to the coast. Blockade which is not effective will be merely a “paper blockade”. But the
“effectiveness” is a matter of fact and is to be adjudged in each case, which need not to
be in absolute terms. It is effective if it renders any violation of blockade, or attempt to
ingress or egress risky.27 Hence, it is not dependent on the size of the blockading force
and the distance at which it operates from the blockaded coast, provided it fulfils the test
of material danger to neutral vessel. About
_________________
27 Ibid., at p. 496.

“effectiveness”, in the Franciska’s case, Dr. Lushington stated that the blockaded place
“must be watched by a force sufficient to render the egress or ingress dangerous”.28
(iv) Continuous maintenance

Blockade should continuously be maintained; otherwise it will be deemed that the
blockade has ended. However, mere momentary interruption in maintaining it will not
end the blockade (Art. 4, London Declaration).
1. End of blockade
Blockade may come to an end in any of the following ways:
a. if the war comes to an end;
b. if the State that has established the blockade withdraws it;
c. if there has been continuous violation of blockade and it ceases to be effective;
d. if the State whose coast is blockaded is defeated in the war; and
e. if the State establishing blockade is defeated in the war.
2. Violation of blockade
When unauthorised ingress or egress takes place in the blockaded area, blockade is said
to be violated or breached. Any violation of blockade is a criminal act which makes the
ship liable to seizure and generally cargo aboard such a ship is also captured. They are
subjected to adjudication of the Prize Court in the same way as contraband cargoes,
unless, in the case of goods, the shipper proves to the satisfaction of the court his lack of
knowledge of the blockade. An attempted breach of blockade is treated equivalent to a
consummated breach.
The ships will be liable for the breach of blockade only if they had the prior knowledge
of the blockade, or could have known about it and ventures into the blockaded area
without licence. However, the fact of blockade must be brought to the constructive or
formal notice of the commander of the ship. About the notice of the fact of blockade, the
Anglo-American and French practices differ. Under the Anglo-American practice,
constructive or formal knowledge at the date of departure will make the ship and cargo
liable to penalties for breach of blockade. But in the French system, the ship and cargo
can be subjected to penalties only if the commander has been individually warned about
the blockade by the blockading squadron, and the ship attempts to enter the blockaded
area after such a notice.29
The ambit of “prior knowledge” was clarified in The Franciska.30 The ship The
Franciska, belonging to Denmark, a neutral country, was captured by Britain, while
sailing on Baltic Sea towards Riga. Britain had blockaded the Russian ports during the
Cremean War and had
_________________
28 (1855) 2 ECC & Ad 113 at 120, quoted in Starke, op. cit. 19 at p. 595. See also
Cockburn CJ’s view in Geipel v. Smith (1872) LR 7 QB 404 at 410. See Oppenheim, op.
cit. 1, pp. 779-780.
29 See Starke, op. cit. 19, at p. 595.
30 See op. cit. 28.

declared that only her ships could go through the Baltic Sea for trade purposes. France
and Russia had also made the similar declarations, with the result that the trade of neutral
States was practically stopped in the area. The Franciska was caught by Britain for the
violation of blockade. Its owners contended that they did not have the prior knowledge of
the blockade when the ship ordered to go to Riga and they did not intend to violate the
blockade. But the Court did not accept this argument because the captain of the ship had
come to know about the blockade during its voyage, before leaving the earlier port.
However, the court decided in favour of the owners because the blockade was not
enforced impartially and declared invalid by the court.
3. “Long distance” blockade

During the First World War, the British navy enforced “long-distance” blockade in
retaliation against the German decision to attack British and Allied forces in the waters
surrounding the British Isles by declaring these waters as the war zone. The “long-
distance” blockade so imposed often operated up to more than one thousand miles from
the German ports. The British Order- in-Council, 1915, under which the blockade was
imposed, required the neutral vessels, traversing the area, to proceed to a British port if
carrying goods of presumed enemy destination, origin or ownership, and they could be
detained there.
Objections against this measure of Britain were raised by some neutral countries, most
notable among them was the United States, for being discriminatory and ineffective in
certain respects. By extending it to the coastline of neighbouring countries and their
approaches to the ports, it was stated to have affected certain neutral countries and
violative of the law of neutrality. Such a blockade was not justified under the nineteenth
century rules, hence was not considered as legal. But Britain justified its action in the
changed conditions of war, under which blockade can be purposeful and effective only if
commerce with the enemy from different means is brought within its ambit. This measure
was again resorted to during the Second World War by Britain and France on the
justification of waging “total war” including economic warfare. This was followed by
Germany as well.
The “long-distance” blockade has been supported by many scholars who opine that
modem means of warfare, viz., artillery, mines, submarines, etc., make the traditional
blockade that operates closer to the enemy’s coast a risky proposition, in which a
powerful belligerent can use the adjacent neutral ports as a channel for supplies.
Furthermore, modern wars are aimed at weakening the enemy financially and
economically by depriving him any access to goods carried by his own ships or on
neutral vessels as well as pressuring the neutrals not to trade with the enemy. It cannot,
therefore, be considered in violation of traditional international law.31
_________________
31 See Medlicott, The Economic Blockade, vol. I, 1952, p. 4; Oppenheim, op. cit. 1,
at pp. 796-797; Stone, op. cit. 6, at pp. 508-510.

4. Navicerts
As a part of the strategy of weakening the economic and financial capabilities of waging
the war by the enemy, a new device of “navicerts” was introduced by the Allied Powers,
first in the First World War and then in the Second World War. ‘Navicert” is a certificate
given by a diplomatic consular or other representative of the belligerent in a neutral
country to a neutral shipper/charterer, testifying that the cargo on board the neutral vessel
was not contraband and hence not liable to seizure and that the voyage of a particular ship
was innocent. Vessels equipped with navicerts32 were normally exempted from search
and seizure, but they could be searched or intercepted on the discovery of new facts, or if
the destination had become enemy occupied territory. A “navicert” might be refused if
the goods were otherwise required by the belligerent, even in the absence of any
justification for their seizure as contraband. Thus, the system of “navicerts” was able to
control “at source” the exports from the neutral countries to the enemy State, and enabled
the Allies to have “preclusive purchase” of essential products, such as rubber or tin,
thereby depriving the enemy.
A “navicert” was not made compulsory in every case but its absence heightened the risk
of interception and seizure, beside the onus of proving innocence by the shipper, and
heightened the presumption that they had an enemy destination. The device of “navicert”
was designed to put increased pressure on the enemy and to regulate the neutral trade
more systematically.
To make the system more effective, neutral vessels were also required to equip
themselves with ship warrants, which were granted after the shipper entered into a
covenant not to engage in contraband trading or smuggle contrabands. A “navicert”
might be refused in the absence of a ship warrant.
Ships equipped with “navicerts” and “ship warrants” normally left little room for the
application of “continuous voyage” or “continuous transportation”. It also permitted the
ship to proceed into a blockaded area if it had cleared itself through these official
documents of “navicerts” and ship warrants.
These measures invoked during the two world wars, as a part of waging a “total war”,
have become an integral part of the modem international law. Based on the experience of
these wars, it may be concluded that in conducting economic warfare, neutrals can be
subjected to all kinds of pressures, subject to the conditions that: (a) the inconvenience to
the neutrals should, as far as possible, be minimum, and (b) no grave injury should be
caused to the neutrals, viz., denying them bare minimum of food and other necessities.
Thus, the economic warfare has made deep in-roads into the traditional law of neutrality.
_________________
32 For the goods sent by air and mail from neutral countries, “aircerts” and
“mailcerts” were also introduced.

Page 554
CHAPTER 19
International Organisations
An international organisation is with an international membership, scope, or presence.
They are inter-governmental organisations (IGOs) made up primarily of sovereign states
(referred to as member states) and different from non-governmental organisations
(NGOs). IGOs are generally established by a treaty that acts as its constituent instrument.
The development and growth of international organisations1 as permanent organs of
international relations is a phenomenon of the twentieth century, particularly after the
First World War with the creation of the League of Nations and thereafter, the United
Nations. International organisations manifest cooperation of sovereign States, based on
multilateral international agreements. Till the nineteenth century, reliance was mainly
placed on bilateral treaties among nations for such cooperation. But it also saw few major
developments towards multilateralism starting with the Congress of Vienna, 1815, which
created the Concert of Europe and laid down the seeds for the growth of the executive
organ of an international organisation. This was followed by the Hague system,
envisaged under the Hague Conferences of 1899 and 1907, manifesting the approach
towards universality. This trend was also evident in the setting up of the International
Telegraph Union (ITU) and the Universal Postal Union (UPU) in 1865 and 1874
respectively, followed by others.
The last century has seen the tremendous growth and development of international
organisations with varied sizes, functions and scope of their activities.2 They include
organisations with universal membership, such as the United Nations and its “specialised
agencies”, as well as the regional bodies like the European Union (EU) and the
Association of South East Asian Nations (ASEAN). The multiplicity of their functions
has practically affected the whole spectrum of international relations. The legal problems
emerging from the functioning of these organisations and their consequent impact on the
growth of international law make them the subject of study of international law.
_________________
1 See, generally, on the subject, D.W. Bowett, The Law of International
Institutions, 4th ed. (Sweet and Maxwell, London) 1982; K.F. Morgenstern, Legal
Problems of International Organisations (Grotius Publications Ltd., Cambridge), 1986; P.
Reuter, International Institutions (George Allen & Unwin, London) 1958; H.G
Schermers, International Institutional Law, 2nd ed. (A.W. Sijthoff, Leyden), 1980; R.
Bernhardt (Ed.), Max Planck Institute, Encyclopedia of Public International Law, vols. 5
and 6 (Elsevier Science Publishers, Amsterdam), 1983; F.L. Kirgis, International
Organizations in Their Legal Setting (1977).
2 It is estimated that currently there are more than 250 IGOs worldwide, out of
which over 60 are major organizations; their number continues to rise, see Yearbook of

International Organizations, http://www.uia.be/ yearbook; J.G. Starke, Introduction to

International Law, 10th ed. (Butterworths, London), 1989, p. 601, n. 3.

Page 555 INTERNATIONAL ORGANISATIONS
Even though these organisations vary in their size, objects and purposes, they display
some common features in relation to the rules of membership, conditions of withdrawal,
expulsion or suspension of members, constitutional seat or headquarters, executive and
administrative bodies, as also rules relating to their dissolution, and succession to rights,
duties and functions by new organs.3 These aspects are generally regulated by the
constituent instruments of the organisations, or their resolutions, or the practice of
members States in relation to the organisations. Because of the vast number of these
organisations, it is not possible to study each of them individually. The discussion here
will mainly be confined to the law and the practice of the United Nations, and the League
of Nations, the other most important international organisation of the twentieth century,
will come for special treatment.
A. Status and Role of International Organisations

The international organisations are normally created by agreements amongst sovereign
States for a common purpose of improving human welfare. They can also be created by
other international institutions or by a resolution of States at a Conference (viz., the
World Tourism Organisation). The UNCTAD and the United Nations Industrial
Development Organisation (UNIDO) were established pursuant to the resolutions of the
General Assembly of the United Nations.4 Their primary function is to lay down
standards and to supervise their implementation by the States. Their function is generally
“promotional”, i.e., inspiring States to achieve those goals by directing their activities in
that direction. It is seldom that these organisations are indulged in “operational”
activities. In the case of “operational” activities, they are primarily confined to
recommendatory level, and seldom make binding decisions, for example, the General
Assembly and other specialised agencies of the United Nations. They more often make
nonmandatory recommendations for their members States and other organs. Thus, their
role is more of a “regulatory” nature. Some of the specialised agencies of the United
Nations are largely regulative institutions, viz., WHO, ILO, World Meteorological
Organisation (WMO), ICAO, ITU, and the International Maritime Organisation (IMO,
formerly the Inter-Governmental Maritime Consultative Organisation - IMCO). These
agencies lay down the norms and regulations to be followed by their members.5
As organs of international society, they perform a variety of functions which under
international law can be classified as executive, legislative or judicial for a State, though
they all may not cumulatively be confined to a particular organisation but spread over to
number
_________________
3 For example, Arts. 36 and 37 of the Statute of the ICJ, successor to the PCIJ, list
the terms and conditions under which the functions of its predecessor devolve upon the
new body.
4 See J.A.C. Gutteridge, The UN in a Changing World (Manchester University
Press), 1969, pp. 75-85, cited in I. Brownlie, Principles of Public International Law, 7th
ed. (Oxford University Press, Oxford), 2008, p. 678; see also Louis B. Sohn, The
Development of the Charter of United Nations: the present state, in the Present State of
International Law and Other Essays (Foundation Press, Brooklyn), 1973, p. 73; R.

Bernhardt (Ed.), Encyclopedia of Public International Law, vol. 2 (North Holland

Publishing Company), 1995.
5 See Bowett, op. cit. 1, at pp. 140-147; C.H. Alexandrowicz, The Law-Making
Functions of the Specialised Agencies of the United Nations (Stevens & Sons, London),
1973.

of international institutions. For example, world labour conditions are supervised by the
ILO, maintaining and enforcing international peace is done through the United Nations,
and state of the health of the people around the world is the concern of the WHO. Judicial
functions are carried out in a restricted manner by the International Court of Justice (ICJ)
or other specific tribunals, such as the International Centre for the Settlement of
Investment Disputes (ICSID) under the auspices of the World Bank, the International
Criminal Court or the European Court on Human Rights. The legislative functions are
performed to some extent by most of the organisations by laying down standards for their
members. However, it is important to note that these organs do not observe separation of
power in the strict sense as it is followed by a State, and they practice all these functions
simultaneously. Further, their executive functions are generally confined to merely being
consultative or advisory only.
As has already been discussed earlier,6 international organisations are the subjects of
international law. To be endowed with a legal personality, these organisations must have
lawful objects, equipped with organs, distinct identity in terms of legal powers and
purposes from its members, and these powers must be exercisable at the international
plane. In the Reparation case,1 the point at issue was the legal personality of the United
Nations at the international plane (its legal personality under the municipal law of its
members is explicit in Art. 104 of the Charter).8 Applying the functional test9 to
determine the international personality of the United Nations, the Court concluded that
the United Nations possesses such a personality by discharging its functions and enjoying
rights at the international plane, which the Charter has entrusted to it. Further, the Court
added that there is nothing in the character of international organisations to justify their
being termed as a “super-State”.10
The Court reaffirmed this view again in its advisory opinion concerning the Interpretation
of the Agreement of 25 March 1951 between the WHO and Egypt.11 The Court observed
that international organisations are subjects of international law and, as such, are bound
by any obligation incumbent upon them under general rules of international law, under
their constitutions, or under international agreements to which they are parties. An
institution may lack certain features of an organisation, like absence of any organ or a
well-defined distinction in terms of legal powers and purposes between the organisation
and its members, yet it may have legal personality at an international plane. For example,
the General Agreement on Tariffs and Trade (GATT), 1947, was bereft of some of these
requirements, but the “CONTRACTING PARTIES”
_________________
6 See Ch. 4, supra, pp. 96-99.
7 Reparation for Injuries Suffered in the Service of the United Nations (1949) ICJ
Rep., p. 174.
8 See also Art. 1 of the 1946 General Convention on the Privileges and Immunities of the
United Nations, which provides, “The United Nations shall possess juridical personality.
It shall have the capacity (a) to contract; (b) to acquire and dispose of immovable
property; (c) to institute legal proceedings”. But in the Reparation case, op. cit. 7, the
question was about the international personality at the international level, which should
be enforceable against the non-members. The Court viewed that these powers are

conferred upon the UN by necessary implication. See also the WHO Legality of Nuclear
Weapons case, (1996) ICJ Rep. p. 66 at 79.
9 On functional test, see Philippe Sands and Pierre Klein (Eds.) Bowett’s Law of
International Institutions 5th ed. (Sweet & Maxwell, London) 2001, pp. 470-473.
10 See op. cit. 7, at pp. 178-179.
11 (1980) ICJ Rep., p. 73, at pp. 89-90.

enjoyed the legal personality for the purposes of settling disputes between parties and to
enter into contracts.12
As subjects of international law, these organisations can enter into relations with States as
well as with other international organisations. Regarding their relationship with States, in
the Reparation case, the Court laid down that an international organisation enjoys legal
personality to bring claims even against the non-members. The legal personality enjoyed
by international organisations empowers them to eschew their claim before international
tribunals. This, however, also depends upon the Statute or the constituent instrument of
the tribunal. Thus, under the Statute of the ICJ, international organisations have access to
the Court through its advisory opinions (Art. 65), but in contentious cases, only States
have the locus standi before it (Art. 34).
In the Reparation case, the issue arose out of the injuries suffered by the United Nations
agents stationed at Gaza Strip in September 1948 (including the assassination of the UN
Mediator, Count Folke Bernadotte, a Swedish national), in a terrorist attack. Israel was
stated to be behind this attack and the State of Israel was not even the member of the
United Nations at that time (it was admitted to the United Nations on May 11, 1949). The
UN General Assembly sought the opinion of the Court to decide what action to be taken
in respect of his death. The Court, in its advisory opinion, while laying down the legal
personality for the United Nations to bring claims for the injuries inflicted on its agents,
went further and laid down that the United Nations is competent to recover damages for
the actual loss or harm caused to such agents or their dependents in the same way as a
State can espouse the claims of its nationals on the ground of diplomatic protection under
the rules of State responsibility. The Court opined that the United Nations can bring such
a claim on the basis of the official status of its agents, irrespective of their nationality, and
which is not inconsistent with the agents’ privilege of receiving diplomatic protection
from their own States to which they are otherwise entitled.13
Legal personality of an international organisation should be distinct from that of its
member States.
B. Legal Capacity: Extent and Scope

The legal capacity enjoyed by international organisations, related to the functions and
responsibilities to be discharged by them, is not analogous to Statehood. The powers and
functions of these organisations are very much limited to their constituent instruments
which enumerate the purposes, powers and objects of a particular organisation. In fact,
whether or not an organisation possesses the legal capacity has to be inferred from this
very instrument. In this regard, the ICJ, in the Reparation case, observed:
Whereas a State possesses the totality of international rights and duties recognised by
international law, the rights and duties of an entity such as the Organisation must depend
upon its purposes and functions as specified or implied in its constituent documents and
developed in practice.13a
_________________
12 The GATT 1947 has now been replaced by the Agreement on the World Trade
Organisation (WTO), which became operative from January 1, 1995. The WTO has its

own organs with their defined rights and duties; see GATT Doc. MTN/FA II, Dec. 15,
1993.
13 See op. cit. 7, at pp. 184-186.
13a Ibid., at p. 180.

Thus, no international organisation can legally overstep its constitutional provisions,

expressly delineating its functions, and which may be “conferred upon it by necessary
implication as being essential to the performance of its duties”.14 On the basis of these
implied powers, the United Nations enjoys the power of diplomatic protection on behalf
of its agents against a delinquent State (cf. the Reparation case), and can undertake
temporary administration of a territory as a measure to settle a dispute peacefully
between two States with their consent,15 and the General Assembly can create judicial or
administrative tribunals whose judgments will be binding on the General Assembly
itself.16 But such an implied power cannot be readily inferred in the case of other
organisations, particularly when their functions do not include peacekeeping or are not as
varied as of the United Nations.17 Judge Hackworth in his dissenting opinion in the
Reparation case observed that “powers not expressed cannot be freely implied. Implied
powers flow from the grant of expressed power, and are limited to those that are
‘necessary’ to the powers expressly granted”.18
The implied powers may be derived not only for the performance of functions delineated
in the constituent instrument, but also for those which are incidental or related to these
functions, or necessary for the due performance of such duties.19 If not so covered, the
action of the organisation will be ultra vires, which means, the contemplated action will
be a challenge to the constitutionality of the organisation. If such a challenge occurs
during the process of decisionmaking, it can be rectified by taking an action for amending
the constitution. For example, Art. 236 of the Treaty of Rome empowers the Council of
the European Economic Community (EEC)20 to make appropriate provision. But if the
challenge comes after the action has been taken, as it happened in relation to the
peacekeeping forces sent by the United Nations to Egypt in 1956 and Congo in 1960, and
the expenditure incurred thereto, serious constitutional questions may arise. In such cases,
the matter becomes essentially of treaty interpretation, on which the political organ and
the judicial tribunal may have different perception.
1. The treaty-making power
One of the manifestations of legal personality is the treaty-making power but the
existence of legal personality itself does not empower an international organisation with
treaty-making power, which again is dependent upon the constituent instrument of the
organisation. Some constitutions expressly contemplate the treaty-making power of the
organisation, such as the United Nations
_________________
14 Ibid., at p. 182.
15 Cf. the assumption of temporary administration of West New Guinea in 1962-63
by the UN Temporary Executive Authority (UNTEA) under the Indonesian-Netherlands
Agreement of Aug. 15, 1962.
16 See the Advisory Opinion on Effect of Awards Made by the UN Administrative
Tribunal (1954) ICJ Rep. 47.
17 See Bowett, op. cit. 1, at pp. 340-341; Sands and Klein, op. cit.9; Brownlie, op.
cit. 4, at p. 687.
18 See op. cit.7, at p. 198.

19 On the request made for an advisory opinion by the World Health Organization
(WHO) on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict in
September 1993, the Court refused to give the opinion on the WHO’s request on the
ground that the matter does not fall within the scope of its activities. See (1996) ICJ Rep.,
p. 266.
20 EEC is now known as European Union (EU), consisting of 27 members.

Charter provides for trusteeship agreements (Art. 75), relationship agreements with the
specialised agencies (Arts. 57 and 63), and the military agreements with member States
by the Security Council (Art. 43). But, generally, constituent instruments are not so
explicit, in which case the treaty-making power may be established by the interpretation
of the instrument as a whole or on the doctrine of implied powers. Thus, most of the
organisations, including the United Nations, have entered into headquarters agreements
without specific provisions in their constitutions. In practice, organisations readily
assume the treaty-making power both inter-se and with other States and entities. This is
true even with regional organisations, viz., Art. 238 of the Treaty of Rome of March 25,
1957, confers such a power on the EU and it has entered into association agreement with
African, and the Caribbean and Pacific (ACP) nations under the Lome Convention, first
concluded in 1975.21 The treaty-making power can even be delegated, like the
Agreement signed between the United Nations High Commissioner for Refugees and the
Government of Pakistan in 1982, regarding the Afghan refugees in Pakistan.
The treaty-making power of the international organisations has been conclusively
established by the Vienna Convention on the Law of Treaties between States and
International Organisations or between International Organisations, adopted on March
21, 1986.22 The Convention is very similar to the 1969 Vienna Convention on the Law
of Treaties. The organisations that participated in its adoption are competent to sign and
execute acts of formal confirmation (i.e., equivalent to ratification of a treaty by States—
Arts. 82, 83) and it is open for accession “by any organisation which has the capacity to
conclude treaties” (Art. 84). But quite often treaties concluded by international
organisations do not have usual ratification or approval clauses by their policymaking or
executive organs for coming into force.
C. Privileges and Immunities

As a manifestation of legal personality and in order to function effectively and to
discharge their duties properly, international organisations require certain privileges and
immunities in each country where they may be located, for their assets, premises,
personnel and representatives of member States accredited to them. Since there are no
precise customary rules on the subject on the lines of diplomatic privileges and
immunities, the matter has been dealt by international conventions for the sake of
uniformity.23 On the other hand, the constitutions of these organisations also vary on the
subject, either having no provision or very imprecise provisions, and some are more
explicit. For example, Article 19 of the Statute of the ICJ states that the “members of the
Court, when engaged on the business of the Court, shall enjoy diplomatic privileges and
immunities”.24
Article 105 of the Charter provides that the “Organisation shall enjoy in the territory of
each of its Members such privileges and immunities as are necessary for the fulfilment of
its purposes”. Representatives of the members and the officials of the United Nations
“similarly
_________________
21 The EEC has such association agreements also with Greece, Turkey, Malta and
Cyprus.

22 For the text of the Treaty, see 25 ILM 542 (1986).

23 Schemers, op. cit. 1, at pp. 291-293.
24 It is similarly provided in Arts. 5-11 of the Agreement on the Status of the North
Atlantic Treaty Organisation (NATO), National Representatives and International Staff
of Sept. 20, 1951.

enjoy such privileges and immunities as are necessary for the independent exercise of
their functions in connexion with the Organisation”. For the application of these
provisions, the General Assembly is empowered to make recommendations or propose
conventions. Similar provisions are found in the constituent instruments of various
specialised agencies. To fulfil this mandate, the General Assembly, on February 13,
1946, adopted the General Convention on the Privileges and Immunities of the United
Nations. It contains provisions on the subject equivalent to that of 1961 Vienna
Convention on Diplomatic Privileges and Immunities, for the premises, property and
assets of the Organisation. The high ranking officials are granted immunity from legal
process and arrest for acts done in their official capacity, and from taxation and other
service obligations. In order to give effect to this Convention in India, the Parliament
enacted the UN (Privileges and Immunities) Act, 1947.25 A separate Convention on the
Privileges and Immunities of the Specialised Agencies was approved by the General
Assembly on November 21, 1947, containing separate draft annexes relating to each
specialised agency. The status of the Headquarters of the United Nations and other
specialised agencies (premises and territory) is regulated by special agreements.
The Headquarters Agreement of 1947, concluded between the United Nations and the
United States, provided for the inviolability of the Headquarter District (Sec. 9).26 The
United States concluded a similar Headquarter Agreement with the Organisation of
American States (OAS). These agreements reinforce the inviolability of the premises and
the property of the Headquarters and their immunity from local taxes or imposition
except for public utility services (e.g. water, electricity, etc.), from censorship, and enjoy
freedom of communication.27 Even the regional and field offices of international
organisations have been extended privileges and immunities under the agreements
between the international institution and the host State.28
In the Advisory opinion on the Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights, the Court upheld the immunity
of the Special Rapporteur sent to Malaysia to report on the independence and impartiality
of the judiciary, jurors and assessors in Malaysia in 1994. The law suits were instituted
against him by the two commercial firms and their legal counsels in Malaysia. The Court
further held that
_________________
25 The Schedule to the Act describes in detail the Juridical Personality (Art. 1),
rights in respect of Property (Art. II), facilities in respect of communication (Art. III), and
representatives of members of the United Nations (Art. IV).
26 Attempts by the US in 1987, to close down the PLO observer Mission in New
York was considered to be contrary to the Headquarters Agreement, see the Advisory
Opinion of the International Court in the PLO Observer Mission case (1988) ICJ Rep., p.
12.
27 These immunities from the local jurisdiction of the host State may not always be
so explicit, for example, in the case of ICJ, the privileges and immunities of the judges
and the registrar of the Court resulted out of the exchange of correspondence between the
President of the Court and the Minister of Foreign Affairs of the Netherlands in June
1946. See the YblCJ, 1986-87, pp. 15, 114.

28 See the Advisory Opinion on the Interpretation of the Agreement of March 25,
1951 between the WHO and Egypt, op. cit. 11. This case arose out of the proposed
transfer of the regional office of the WHO to another country. See also the Advisory
opinion on the Application of Art. VI, Sec. 22, of the Convention on the Privileges and
Immunities of the United Nations (1989) ICJ Rep., 177, where the Convention was made
applicable to the special Rapporteur of the Sub-Commission of the Commission on
Human Rights; See the SC Res. 707, 3 April 1991, in which the Security Council found
the action of Iraq of detaining 45 UN inspectors in violation of the Convention on the
Privileges and Immunities of the United Nations.

international organisations remain responsible in international law for breaches of their

obligations even if they are immune from legal process. It stated that “the question of
immunity from legal process is distinct from the issue of compensation for any damages
incurred as a result of acts performed by the United Nations or by its agents in their
official capacity.”29
These privileges and immunities, however, are subject to waiver. For example, Sec. 20 of
the 1946 Convention on the Privileges and Immunities of the United Nations, with regard
to officials provides that the Secretary-General of the United Nations has the “right and
duty” to waive immunity, without prejudice to the interests of the United Nations, where
that would impede the course of justice.
Apart from the immunity and privileges of the premises, property and staff of these
organisations, equally important is the immunity of the delegations and representatives of
the member States to these organisations. The accredition of permanent missions to these
organisations, particularly to the United Nations and the specialised agencies, is well-
established. In 1975, the United Nations adopted the Vienna Convention on the
Representation of States in their Relations with International Organisations of Universal
Character. The Convention deals with permanent missions consisting of representatives
of a sending State to the concerned organisation, and also delegation sent to a conference
convened by an organisation. Their privileges and immunities are modeled after the 1961
Vienna Convention on Diplomatic Relations. The Convention, which requires 35
ratifications or accessions for its entry, has not come into force because majority of
nations finds it as duplication of the existing conventions on this subject, and its failure to
reflect the actual international practice.30
In the United Nations’ practice, representatives or special missions are also sent for
various purposes, for example, the appointment of a Special Representative of the
Secretary-General in Congo in 1960 in the wake of Congo crisis, or sending the “liaison
mission” to Congo in early 1962. In the wake of the Iran-Iraq war (1980-88), in May
1983, the Secretary-General, sent a fact-finding mission to the warring nations to
determine the extent of war damage to civilian areas. A special envoy of the Secretary-
General was also sent to Afghanistan in early 1991, which was entrusted with the task of
finding a peaceful solution to the civil war there. Similarly, a special envoy of the
Secretary-General has been sent to Burundi in 1995, to supervise the humanitarian
assistance. In most of the cases, the fact-finding missions are sent to ascertain the extent
of violations of human rights. In March 1995, the Human Rights Commission went to
Burundi on a similar fact-finding mission. They enjoy the same privileges and
immunities as of other personnel of the United Nations or specialised agencies. Even the
personnel of the peacekeeping forces enjoy the privileges and immunities, which may be
regulated by bilateral agreements between the parties, for example, the UN-Cyprus
Exchange of Letters of March 31, 1964, as to the Force in Cyprus.31 However, where the
peacekeeping forces are sent on humanitarian mission in an internal conflict of a State in
pursuance of a decision under Chapter
________________________
29 (1999) ICJ Rep., p. 62, para 66.

30 Text of the Convention reproduced in 69 AJIL 730 (1975). It will enter into force
on the thirtieth day following the date of deposit of the thirty-fifth instrument of
ratification or accession.
31 See also the Agreement of Nov. 27, 1961, between UN and the Congo Republic
about the privileges and immunities of the UN operation in the Congo (ONUC), and the
agreement between UN and Yugoslavia for the 1965 World Population Conference.

VII of the Charter, it is difficult to enforce these immunities and privileges, viz, in
Burundi, UN agencies and NGOs engaged in relief operations became targets of the
unrest, and in May 1995, almost 400 personnel of the UN Protection Force
(UNPROFOR) were held as hostages by Bosnian Serbs against the NATO action in
Bosnia-Herzegovina conflict. The forces were sent there to provide humanitarian
assistance, and to protect the designated safe havens for civilian population against
attack.32
In practice, the United Nations has accepted the responsibility of the tortuous acts of its
agents.33
D. Law-Making and Regulatory Functions of International Organisations

The international organisations play an important role in law-making in the absence of
any legislative organ equivalent to under municipal law. They enjoy considerable
autonomy in making rules on internal matters regulating relations between the
organisation and its staff. In this regard, it can frame staff regulations and constitute
judicial or administrative tribunals. For example, the Statute of the Administrative
Tribunal of the United Nations is adopted to look into the complaints of the United
Nations staff for alleged breaches of the terms of their employment. Similar powers exist
under Arts. 84-86 of the ICAO Convention, 1944, of the Council of the ICAO; and under
Art. XVIII of the Articles of Agreement of the International Monetary Fund (IMF), the
Board of Governors and Executive Directors exercise this power.34
On the other hand, international organisations may adopt certain measures in the nature
of legislation for States or take steps to convene international conferences for the
adoption of conventions. In the case of the United Nations, Art. 13 of the Charter require
the General Assembly to initiate studies and make recommendations for the purpose of
“encouraging the progressive development of international law and its codification”. In
pursuance of this, the General Assembly established the International Law Commission
(ILC) in 1947.35 The Commission is actively involved in the codification of international
law and the drafting of numerous instruments since its inception, which in the past have
been adopted in the form of international conventions under the auspices of the United
Nations, viz., four Geneva Conventions on the Law of the Sea of 1958; two Vienna
Conventions on the Law of Treaties, 1969 and 1986; the 1961 and 1963 Vienna
Conventions on the Diplomatic and Consular privileges and immunities, etc. The General
Assembly had also been instrumental in convoking the diplomatic conferences for the
drafting and adoption of other important multilateral treaties, such as 1982 Law of the
Sea Convention.36
The General Assembly also adopts prescriptive resolutions which, though not binding in
_________________
32 On Dec. 9, 1994, the UN General Assembly adopted the Convention on the Safety
of the United Nations and Associated Personnel, GA Res. 49/59, text in 34 ILM 482
(1995). The Convention has provisions for the prosecution or extradition of persons
accused of attacking UN peacekeepers or other persons associated with operations under
UN mandate. The Convention has not come into force as yet.
33 See Yb of the UN (1965), p. 138; Brownlie, op. cit. 4, at p. 694.

34 See C.F. Amerasinghe, The Law of the International Civil Service, 2 vols. (1988).
See also, Effect on Awards of Compensation made by the UN Administrative Tribunal
(Clarendon Press, Oxford), (1954) ICJ Rep., p. 47.
35 Resolution 174, II of Nov. 21, 1947, the structure of the ILC was amended in
1950, 1955 and 1961.
36 For more details, see supra Ch. 1, pp. 22-24.

themselves, lay down the foundation for the subsequent development of the principles
incorporated in these resolutions as customary or conventional rules. For example, the
resolutions on the Universal Declaration of Human Rights (Res. 217A (III), 1948), the
Declaration on the Granting of Independence to Colonial Countries and Peoples (Res.
1514(XV), 1960), and the Declaration relating to Legal Principles on Outer Space (Res.
1962(XVIII), 1963) have culminated into multilateral conventions. The General
Assembly Res. 1803(XVII) of 1962 on Permanent Sovereignty over Natural Resources
became the guiding principle in many activities and instruments adopted by the United
Nations.37 In the practice of the United Nations, beside the General Assembly and the
ILC, other organs which are entrusted and exercising law-making functions are the
United Nations Commission on International Trade Law (UNCITRAL) and the
ECOSOC.
The international law, however, has the parallels to municipal law in the area of delegated
legislation, i.e., the organisation concerned exercises the power of legislation delegated
by member States in a particular area of activity. The regulations or decisions adopted by
a particular organ will be binding on the members. Thus, the Assembly of the WHO or
the Council of the ICAO may make regulations by majority decisions, which will be
binding on the members who may opt out of those regulations by express rejection or by
entering reservations. Similarly, the High Authority of the European Coal and Steel
Community (ECSC of April 18, 1951) may make decisions and regulations which are
legally effective under the legal system of member States. Most important is Art. 189 of
the Treaty of Rome, 1957, which confers powers upon the Council and the Commission
of the EU to adopt regulations, directly binding within the municipal sphere of the
member States, and issues “directives”, which though binding in nature leave some
freedom with the members to select ways and means to achieve the end-result. The ECSC
and EU, which are homogeneous regional bodies, however, are termed as supra
national38 bodies, and the success and effectiveness of their resolutions and decisions are
not easily achievable with other international bodies.
Apart from these inter-governmental organisations, there are certain non-governmental
organisations which are actively engaged in the law-making by drafting and promoting
the adoption of multilateral conventions, viz., the Rome International Institute for the
Unification of Private Law (UNIDROIT); the Council of Europe, and the Hague
Conference on Private International Law.
II. LEAGUE OF NATIONS

In historical perspective, the League of Nations was the first major attempt in the creation
of a permanent international political institution at the international arena. Being created
after the First World War, it was aptly described as the “child of war”, with an avowed
aim to save the world from further war. The defined objects of the League were “to
promote international
_________________
37 The latest in the series is the Convention on the Biological Diversity, 1992, 31
ILM 818 (1992). On the status of the General Assembly resolutions, see supra Ch. 2, pp.

51-53; see also Rosalyn Higgins, The UN and the law making: political organs, 64 AJIL
43 (1970).
38 According to Starke, supra-national body is empowered “to take decisions,
directly binding upon individuals, institutions and enterprises, as well as upon the
governments of the States in which they are situated, and which they must carry out
notwithstanding the wishes of such governments”, see Starke, op. cit. 2, p. 609.

cooperation and to achieve international peace and security”. Its formation was very
much inspired by the 14-point programme of the American President Wilson, which was
actively supported by the Governments of Great Britain and France. The Covenant of the
League of Nations (consisting of 26 articles) was adopted on April 21, 1919, and kept as
a part of the Treaty of Versailles, 1919. The League of Nations was established on
January 10, 1920.
A. Principal Organs of the League of Nations

There were three principal organs of the League of Nations: the Assembly, Council and
the Secretariat.
The Assembly was represented by all the members of the League. Each member was
entitled to send three representatives although it had only one vote. The Covenant of the
League, however, did not clearly demarcate the powers and functions between the
Assembly and the Council, either of them could deal with any “matter within the sphere
of action of the League or affecting the peace of the world”.39 Nevertheless, there were
certain functions which could exclusively be performed by the Assembly, such as the
admission of new members (by two-third majority), nomination of the non-permanent
members to the Council, and approving the appointment of the Secretary-General.
The Council of the League was a smaller body which met more frequently, and consisted
of permanent and non-permanent members. Great Britain, France, Italy, Japan and the
United States were made the permanent members of the Council.40 Four non-permanent
members were elected by the League Assembly from time to time.41 The exclusive
functions of the Council included the nomination of additional members to the Council,
preparing plans for reduction of armaments, and wide ranging powers in maintaining the
territorial integrity of the members and advising them about defence and external
aggression.
The Secretariat of the League with almost 600 officials was the first international organ
to give shape to the concept of international civil service. The Secretariat was headed by
the Secretary-General, appointed by the unanimous decision of the Council.
B. Functioning of the League and Reasons of its Failure

With its two-fold objectives of preserving international peace and security, and
promoting international cooperation, the League of Nations had certain defined functions
to perform. They were: (i) the reduction of national armaments to the lowest point
consistent with national safety (Art. 8); (ii) to preserve as against external aggression, the
territorial integrity and existing political independence of all members of the League (Art.
10); (iii) to settle international disputes peacefully (Arts. 12 and 16); and (iv) to bring
about peaceful changes in international relations (Art. 23). But in its functioning, the
League was seriously afflicted by the inherent drawbacks of the Covenant
_________________
39 Articles 3 and 4 of the Covenant. See J.L. Brierly, Law of Nations, 6th ed. (Waldock
(Ed.), (Oxford University Press), 1963, p. 107.
40 The USA, however, did not join the League and in its place Germany became the
fifth permanent member after it joined the League in 1926.

41 Article 4. The number was increased from time to time. There were 11 members
when the League was dissolved in April 1946.

as well as the lack of cooperation among its members, which led to its ultimate failure.
The major drawbacks of the League can be listed as follows:
1. The members of the League were required to cooperate with each other to
perform these functions. But, in practice, it was difficult to attain. Members retained their
sovereignty intact, and did not surrender any part of it to act in unison. It was not an
organic union, and there was hardly anything that it could do in a corporate capacity. It
was merely a name for describing the members collectively. Throughout the Covenant, it
was not “the League” but the “members of the League” that were to act according to the
Covenant. The effectiveness of the League Covenant thus depended upon the readiness
and ability of the members States to fulfil their obligations rather than upon the organic
decisions of the League bodies.42 This drawback was avoided in the drafting of the
United Nations Charter where emphasis has been on the organic decisions.
2. The main plank of the functioning of the League was the “rule of unanimity”, i.e.,
in general, decisions of the Assembly or the Council of the League required the consent
of all the members present at a meeting. An important exception to this rule was that in
making the report and recommendations for the settlement of a dispute by the Council,
the vote of the parties to the disputes were not taken into account (Art. 15). The rule of
unanimity seriously paralysed the functioning of the League because the nations were
divided on their interest lines. Even though the Covenant did not confer any right of veto
on the dissenting State, the practical consequence was in no way different than that. The
rule made it impossible for the majority of members to vary or enhance a State’s
obligations without its consent. Thus, the rule which was incorporated to improve the
efficiency of the League was found to be detrimental to it.
3. The provision for amendments was the causality of the “unanimity rule” (Art. 26).
It provided that if any amendment of the Covenant was not acceptable to any State, in
that case it would cease to be a member of the League. This ultimately resulted into the
contraction of the League’s original membership of 62 to 32 and the organisation no
more remained universal.
4. The withdrawal provision (Art. 1(3)) of the Covenant, which provided that any
member, after two years’ notice of its intention to withdraw, could be withdrawn from the
League, provided that all its international obligations and obligations under the Covenant
had been fulfilled at the time of its withdrawal, also proved to its detrimental and saw the
reduction in the membership of the League.
5. It lacked the capacity to settle international disputes peacefully when the League
was unable to act as a distinct organ. It did not provide, any effective machinery to carry
out its decisions. The only “sanction” provision was that of Art. 16, which talked about
the action by the members States against a member which had failed to abide by the
provisions of Arts. 12, 13 and 15 for the settlement of disputes.
_________________
42 Brierly, op. cit. 39, p. 106.

6. The Covenant also did not prohibit the war but only laid down a detailed
procedure which the States were required to follow in respect of settlement of disputes
prior to resorting to war (Arts. 12, 13 and 15). Thus, under its scheme, it made a
distinction between permitted and non-permitted wars.
Cumulatively, these drawbacks could not stop the more powerful members of the League
to intimidate the less powerful and smaller nations. The League was merely a mute
spectator in the face of Italian invasion and conquest of Abyssinia (Ethiopia) in 1935.
Earlier, in 1923, when Italy attacked Corfu island of Greece, and Greece raised this
matter in the League, the League of Nations, instead of providing assistance to Greece to
resist the invasion favoured Italy. In 1931, when Japan attacked and occupied Manchuria,
the League did not take any effective action except passing a resolution on non-
recognition of such a situation.43 Regarding the Russian invasion of Finland and the
Baltic Republics in 1939, the League remained simply a spectator without any effective
action.
These events clearly established the fact that the League was unable to accomplish its
objectives of achieving international peace and security, nor could it promote
international cooperation with its foreseeable consequences which resulted into the
Second World War, In April 1946, it was dissolved by a resolution of its Assembly.
III. THE UNITED NATIONS

The experience of the League greatly helped in the formation of the United Nations and
laying down its Charter. The experience of the League, its traditions, practice and
machinery were heavily relied in drafting the UN Charter, which were refined according
to the needs and demands of the international community. The weaknesses of the
Covenant were tried to be plugged though its provisions were in many ways patterned on
the Covenant. In the course of time, the United Nations evolved into the most important
organisation the world so far has, and with its membership of 193 nations at present, it is
truly universal in character.
A. Origin
Like the League of Nations, the United Nations is also the result of war, i.e., the Second
World War. While the war was still continuing, attempts had started by the Allied nations
to have an international organisation, which should be devoid of the weaknesses of the
League and should place the international peace and security on the firmer footing. The
first step in this direction was the Declaration of St. James Palace, London of June 12,
1941, in which the exiled governments of Greece, Belgium, Czechoslovakia,
Luxembourg, the Netherlands, Norway, Poland and Yugoslavia, and the representatives
of Britain, Canada, Australia, New Zealand, South Africa and General de Gaulle of
France participated. It was soon followed by the Atlantic Charter of August 14, 1941,
between the British Prime Minister Winston Churchill and the President Franklin
Roosevelt of the United States, in which they undertook to end Nazism and subscribed
the principles of equality of nations, universal peace and collective cooperation.
_________________
43 See Ch. 5 supra, pp. 128-130.

There were 26 nations, including the United States, Great Britain, Soviet Union and
China which signed the United Nations Declaration on January 1, 1942, and, for the first
time, used the words “United Nations”. States also pledged for cooperation amongst
themselves, and not to enter into treaty relationship with the enemy. It was, however, the
Moscow Declaration of October 30, 1943, between the governments of the United States,
Britain, Soviet Union and China that emphasized the need for establishing a world
organisation based on the principle of sovereign equality of States, which should be open
to all peace-loving nations and be able to maintain international peace and security. The
Tehran Conference of December 1, 1943, between Churchill, Roosevelt and Stalin further
emphasized the urgent need for the establishment of such an international organisation. In
1944, at Dumbarton Oaks, four powers met and draft proposals for such an organisation
were prepared by China, Great Britain, United States and the Soviet Union. The proposed
organisation was given the name of “The United Nations”, which was to have four
principal organs: The General Assembly, the Security Council, the Economic and Social
Council (ECOSOC) and the Secretariat. However, there were no clear- cut proposals on
the future of the Permanent Court of International Justice, the mandate system of the
League of Nations (Art. 22), and the initial membership of the organisation.
The Yalta Conference of February 11, 1945, between Great Britain, United States and the
Soviet Union finally decided to convene a general conference of about 50 nations to
consider the constitution of the proposed world organisation based on the Dumbarton
Oaks Proposal, to be held on April 25, 1945. At Yalta, the voting procedure and
arrangements of the proposed Security Council was also agreed between the three
participating nations.
The final shape to the proposed Charter was given at the San Francisco Conference,
attended by 51 nations, and held from April 25 to June 26, 1945. The Conference
succeeded in adopting the Charter of the United Nations with 111 articles, along with the
Statute of the ICJ, though serious differences arose over the voting procedure in the
Security Council and the “veto” power of the permanent members. The Dumbarton Oaks
proposals were adopted on this aspect after making certain significant changes. The
Charter was signed on June 26, 1945.
The Charter was to come into existence only after the ratification of the five permanent
members, namely, China, France, United Kingdom, United States and the Soviet Union
along with ratification by a majority of other signatory States (Art. 110(3)). After the
fulfilment of this requirement, the Charter became operative from October 24, 1945, and
the General Assembly held its first session on January 10, 1946.
B. Purposes and Principles

Article 1 of the Charter sets out the purposes of the United Nations. The first and the
foremost purpose of the United Nations is “to maintain international peace and security”
and to that end “to take effective collective measures for the prevention and removal of
threats to the peace, and for the suppression of acts of aggression or other breaches of the
peace, and to bring about by peaceful means ... adjustment or settlement of international
disputes or situations which might lead to a breach of the peace”. The additional purposes
are: to develop friendly relations among nations based on respect for the principle of

equal rights and self-determination of peoples; to achieve international cooperation in

economic, social, cultural or humanitarian matters, and

in promoting and encouraging respect for human rights and fundamental freedoms for all;
and to be a centre for harmonising international actions in the attainment of these ends.
These general objectives of the United Nations are quite wide in their ambit, which bind
the Organisation and its members to direct their actions in the attainment of these
purposes.
Article 2 of the Charter sets out the principles on which the United Nations is based.
They are as follows: (1) the principle of sovereign equality of all its members; (2) the
principle of good faith to be followed by all members to fulfil their obligations; (3) the
principle to settle their disputes by peaceful means; (4) the principle to refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any State; (5) the principle to give every assistance to the
United Nations in any action it takes in accordance with the Charter, and refrain from
giving assistance to any State against which the United Nations is taking preventive or
enforcement action; (6) the principle to ensure that States which are not members of the
United Nations, act in accordance with these principles for the maintenance of
international peace and security; and (7) the principle of non-intervention, i.e., the United
Nations shall not intervene, except where the enforcement action is contemplated, in
matters essentially within the domestic jurisdiction of any State.
Among these, principles (1), (6) and (7) are addressed to the United Nations and the
remaining four are to be observed by the States individually, which are binding on them.
All these principles are intrinsically linked with the maintenance of international peace
and security. The principles laid down for organic observance (i.e., (1), (6) and (7)) by
the United Nations require some elaboration to understand their ambit under the Charter.
1. The principle of sovereign equality

The principle finds its mention in Art. 2(1) and is understood to mean that all members
are equal before law irrespective of their size and strength. In accordance with this
principle, members enjoy the rights of equal participation and influence in the
Organisation. At the San Francisco Conference, the Technical Committee in its report
included the following elements in “sovereign equality”: (1) the States are judicially
equal; (2) each State enjoys the rights inherent in full sovereignty; (3) the personality of
the State, including its territorial integrity and political independence, is to be respected;
and (4) the State should under international order comply faithfully with its international
duties and obligations.44 This criterion of “sovereign equality” has also been approved
by the General Assembly in its Res. 2524 (XXV), 1970 on Principles of Friendly
Relations and Cooperation among States.
But this principle is not absolute and the Charter admits certain exceptions. The special
voting rights and powers conferred on the five permanent members of the Security
Council, namely, China, France, United Kingdom, United States and the Soviet Union
(now Russia), under Article 27 of the Charter go against the principle of sovereign
equality. The affirmative votes of these members are required on every important matter,
thus giving their votes more decisive legal weight than of other non-permanent members.
Any amendment of the Charter, adopted and ratified by the two-thirds of the members,
must be ratified by these permanent members before it comes into force (Art. 108).

_________________
44 See UN Conf. on Int. Organisation, UNCIO Documents, VI, p. 457.

2. The obligation of non-members

The general rule of international law is that only parties to a treaty are bound by its
obligations and this rule applies to the constituent instruments of all international
organisations, including the Charter of the United Nations. But Article 2(6) of the Charter
is an exception. It provides:
The Organisation shall ensure that States which are not Members of the United Nations
act in accordance with these Principles so far as may be necessary for the maintenance of
international peace and security.
This exception is significant because of the special character of the United Nations as an
organisation which is concerned primarily with the maintenance of world peace and
security. The possession of legal personality by an international organisation like the
United Nations may give rise to certain obligations on the part of non-member States
under general international law.45 Thus, the United Nations is capable and empowered to
enforce Charter obligations against non-members in the interest of international peace
and security. Conversely, in the interest of peace and security, the Charter has also
empowered a non-member to bring any dispute to which it is a party before the Security
Council or the General Assembly (Art. 35(2)) and the General Assembly may discuss any
question brought before it by a non-member (Art. 11(2)). Like a member, a non-member
State also has the right to consult the Security Council, if carrying out the preventive or
enforcement action taken by the Security Council against any State causes the non-
member special economic problems (Art. 50). A non-member can also become a party to
the Statute of the ICJ on conditions to be determined in each case by the General
Assembly upon the recommendation of the Security Council (Art. 93(2)).46
3. The principle of non-intervention

The principle that the United Nations shall not “intervene in the matters which are
essentially within the domestic jurisdiction of any State or shall require the members to
submit such matters to settlement under the present Charter”, except for the application of
enforcement measures (Art. 2(7)), has its parallel in Art. 15(8) of the Covenant of the
League of Nations. The provision of the Covenant reads as follows:
If the dispute between the parties is claimed by one of them, and is found by the Council
to arise out of a matter which by international law is solely within the domestic
jurisdiction of that party, the Council shall so report, and shall make no recommendation
as to its settlement.
The ambit of Art. 15(8) came for determination by the Permanent Court of International
Justice (PC1J) in the Advisory Opinion in the Nationality Decrees Issued in Tunis and
Morocco case.47 The PCIJ was asked whether questions concerning the application to
British subjects of nationality
_________________
45 See Reparation case, op. cit. 7; Brownlie, op. cit. 4, at p. 689 and notes et seq.
46 Previously Japan (1953-1956), Liechtenstein (1949-1990). San Marino (1953-
1992), Switzerland (1946- 2002). and Nauru (1987-1999) were parties to the Statute of
the Court under this provision. The conditions laid down for Switzerland, which were
followed for other States also, were laid down in the GA Res. 91(1). Dec. 11. 1946.

47 PCIJ Rep., Series B, No. 4 (1923).

decrees made by France in Tunis and Morocco were matters of domestic jurisdiction in
the sense of Art. 15(8). The Court, while replying in negative stated:
The question whether a certain matter is or is not solely within the jurisdiction of a State
is an essentially relative question ... in the present State of international law, questions of
nationality are, in the opinion of the Court, in principle within this reserved domain ...
nevertheless restricted by obligation which [a State] may have undertaken towards other
States.
In such a case, jurisdiction, which in principle belongs solely to the State, is limited by
rules of international law, and Art. 15(8) of the Covenant cease to have any
application.48
But the Charter provision Art. 2(7) is wider in its ambit. Firstly, unlike the Covenant,
under which the Council was to determine whether a dispute, by international law, was
solely within the domestic jurisdiction of the State, under the Charter nobody has been
designated to take such a decision. Secondly, the Charter provision is not confined solely
to the settlement of disputes. There is a general duty of non-intervention except for
enforcement measures. It is not governed by any express stipulation of international law.
Thirdly, the Charter obligation is related to matters that are essentially within the
domestic jurisdiction of the party, the Covenant obligation was with regard to matters
solely within the domestic jurisdiction of the State.
The Charter provision, however, has become quite controversial in its application.
Certain disputed issues have remained unresolved so far: When does a matter stops being
a matter of domestic jurisdiction and becomes an international matter? If the internal
situation deteriorates to the extent that it becomes a threat to international peace and
security, does it entitle the United Nations the right to intervene? Who will ultimately
decide the nature of the matter as to whether it is domestic or international? There are no
clear answers on these aspects. However, in the practice of the United Nations, States
have generally objected to the jurisdiction of the United Nations on matters, such as the
nature and character of internal activities of national governments, particularly pertaining
to human rights and right of self-determination in non-self-governing territories. States
concerned have generally raised serious objections over the United Nations role
involving them, viz., South Africa walked out during the discussion of apartheid; France
did so in the case of Algeria; and before 1965, the United Kingdom absented when the
matter concerning Southern Rhodesia (Zimbabwe) was voted.
Nevertheless, the practice has clearly established that placing a matter on the agenda of
the United Nations organ for discussion does not constitute intervention 49 But opinions
differ on whether discussion on the matter placed on the agenda amounts to intervention.
The steps taken beyond discussion, such as establishing a commission of inquiry or
making recommendations to the parties are equally of disputing nature.50 But, in this
respect, a distinction can be made between a recommendation of a general character
addressed to all members and the one specifically directed to a particular State. In the
former case, it will not amount to intervention. Thus, the General Assembly Declaration
on the Granting of Independence to Colonial Countries and Peoples, 1960, the Universal
Declaration on Human Rights, 1948, and the two Covenants on Human
_________________

48 Ibid., at p. 24.
49 L.M. Goodrich, E. Hambro and A.P. Simons, Charter of the United Nations, 3rd
ed. (Columbia University Press, New York), 1969, pp. 67-68.
50 Ibid.

Rights of 1966, clearly establish that they do not constitute intervention and they relate to
matters of international concern. In actual practice, Art. 2(7) of the Charter has not
hampered the work of the United Nations in attaining and accentuating its broad
objectives.
C. Membership
The Charter provides two categories of members of the United Nations: original members
and new members.51 The original members are the States “which, having participated in
the United Nations Conference on International Organisation at San Francisco, or having
previously signed the Declaration by United Nations of January 1, 1942, sign the present
Charter and ratify it in accordance with Art. 110” (Art. 3). In this context, the word
“State” did not receive a strict interpretation as required under the political science and
mentioned in the Montevideo Convention. Even the States which were not fully
independent, like India, Philippines, Syria or Lebanon or the Federal units of a State, like
Byelorussia and Ukraine became the original members of the United Nations. As to other
members. Art. 4 of the Charter provides:
1. Membership in the United Nations is open to all other peace-loving States which
accept the obligations contained in the present Charter and, in the judgment of the
Organisation, are able and willing to carry out these obligations.
2. The admission of any such State to membership in the United Nations will be
effected by a decision of the General Assembly upon the recommendation of the Security
Council.
The issue of admission of new members had remained a contentious issue in the first few
years of the coming into existence of the United Nations when there were heightened
“cold war” conditions existing between the two “super-powers”, with the result that many
nations could not be admitted, viz., Jordan, Ceylon, Romania, Hungary, Bulgaria,
Albania, Portugal, Ireland, Finland, Italy, either for their not being “peace-loving” or for
other political considerations. Their applications were vetoed in .the Security Council,
whose recommendation is necessary for a decision by the General Assembly on
admission (Art. 4(2)). This situation led to two advisory opinions of the ICJ on this
matter.
In its first advisory opinion - The Conditions of Membership in the United Nations,52 the
Court laid down five conditions of admission to the United Nations, as incorporated in
Art. 4(1) for the new States. The conditions are that the applicant must: (i) be a State, (ii)
be peace- loving, (iii) accept the obligations of the Charter, (iv) be able to carry out these
obligations, and (v) be willing to do so. The Court also ruled that a United Nations
member while casting its vote on the application of a new State for membership cannot
attach any new condition other than those prescribed in Art. 4(1), and no other extraneous
political considerations should be taken into account while deciding the application. On
the question whether a member State can make its consent dependent on conditions not
expressly provided in Art. 4(1), the Court very categorically stated (by a majority of 9 to
6):
_________________

51 The IMF also provides such a categorization. Article 2 describes original

members as “those of the countries represented at the United Nations Monetary and
Financial Conference whose governments accept membership” before a specified date.
Regional organisations also have similar provisions.
52 (1948) ICJ Rep., p. 57, at p. 61 et seq.

that a Member of the United Nations ... either in the Security Council or in the General
Assembly, is not juridically entitled to make its consent to the admission dependent on
condition not expressly provided by para. 1 of the said Art.; and that, in particular, a
member of the Organisation cannot ... subject its affirmative vote to the additional
condition that other States be admitted to membership in the United Nations together
with that State.
The General Assembly by its resolution, recommended all the members of the Security
Council and the General Assembly to act in accordance with the opinion of the Court
while casting their vote on the application of new members.53 But this could not restrain
permanent members from exercising their “veto” for political considerations on the
matter of admissions, and in November 1949, the General Assembly again submitted for
the opinion of the Court, the following question:
Can the admission of a State to membership in the United Nations, pursuant to Art. 4,
para. 2, of the Charter, be affected by a decision of the General Assembly when the
Security Council has made no recommendation for admission for reason of the candidate
failing to obtain the requisite majority or of the negative vote of a permanent Member
upon a resolution so to recommend?
The Court in its opinion of March 3, 1950, on the Competence of General Assembly
regarding Admission to the United Nations54 held that the General Assembly has no
power to act in the absence of a recommendation by the Security Council to admit an
applicant to membership. Recommendation of the Security Council is a condition
precedent to a decision of the Assembly by which the admission is effected. The General
Assembly, of course, is always free to reject the recommendation of the Security Council.
Under the Rules of Procedure of the Security Council (Rule 60), it is the Security Council
which decides, in the first place on the matter of admission of new members.
The issue of admission of new members was finally resolved in 1955, after a “package
deal” was struck between the western and socialist blocs in the Security Council, wherein
one group of voting States made its affirmative vote conditional on the affirmative vote
of another group for its candidates, and through this deal 16 States were admitted. This
exercise was clearly not in accordance with the opinion of the Court on Conditions of
Membership in the United Nations (1948).55
All matters relating to membership, including suspension and expulsion, must be decided
in the Security Council by a vote of at least nine members including the five permanent
members, and in the General Assembly, by two-thirds votes of the members present.
1. Withdrawal from membership

There is no express provision in the Charter allowing a member to withdraw unilaterally
from the United Nations. On the contrary, under the League Covenant, a member could
withdraw from the League by giving a two years’ notice (Art. 1(3)). Furthermore, if any
amendment was opposed by a member or otherwise not acceptable to it, then that
particular member ceased
_________________
53 GA Res. 197A (III), Dec. 8, 1948.
54 (1950) ICJ Rep., p. 4.

55 A similar situation arose in 1975, over the move to admit North and South
Vietnam, and North and South Korea.

to be member of the League of Nations (Art. 26(2)). At the San Francisco Conference in
1945, it was felt that the Charter should not make any express provision on this matter.
Committee 1/2 made a recommendation to this effect but opined that it is not the purpose
of the Organisation to compel a member to continue its cooperation to the Organisation to
maintain international peace and security if it otherwise feels constrained to do so. It
further remarked that a member cannot be compelled to remain in the Organisation if any
amendments to the Charter are not approved by it or it votes against the amendments, or
they affect its rights or duties, or if otherwise, the Organisation fails in its purpose. The
view of the Committee found favour with the plenary session.56 Nevertheless, the
withdrawing State would be bound by Art. 2(6) of the Charter.
In the history of the United Nations, the question of withdrawal has arisen only once
when Indonesia withdrew from the United Nations in 1965, protesting over the
Malaysia’s election as non-permanent member of the Security Council. But in 1966, after
about six months’ absence, Indonesia again rejoined her seat as nothing had happened.
This incident makes it amply clear that its withdrawal was not effective at all, otherwise it
would have sought admission under Art. 4 of the Charter.
2. Expulsion and suspension

The Charter contains explicit provisions on expulsion and suspension of its members.
Article 5 provides:
A Member ... against which preventive or enforcement action has been taken by the
Security Council may be suspended from the exercise of the rights and privileges of
membership by the General Assembly upon the recommendation of the Security Council.
The exercise of these rights and privileges may be restored by the Security Council.
Thus, once the member is suspended by a decision of the General Assembly upon the
recommendation of the Security Council, the order to revoke the suspension can be taken
only by the Security Council. In the practice of the United Nations, there is no case of
suspension; therefore it is difficult to comment upon the status of the suspended member
in relation to the United Nations, i.e., whether it will be equivalent to non-member.
A member may similarly “be expelled from the Organisation by the General Assembly
upon the recommendation of the Security Council”, if it has “persistently violated the
Principles” contained in the Charter (Art. 6). The member so expelled can be re-admitted
according to the provisions of Art. 4.57
_________________
56 See Committee 1/2, Summary Report of 16th Meeting, May 29, 1945, in UNCIO
(San Francisco), Documents, pp. 154-155 (1945); see also L. Henkin, R. Pugh, O.
Schachter and H. Smit, International Law, Cases and Materials, 2nd ed. (West Publishing
Co.), 1987, pp. 477-479; Michael Akehurst, A Modern Introduction to International Law
(George Allen & Unwin, London), 1970, p. 249.
57 The Yugoslavia (comprising Serbia and Montenegro) is the only country which
was expelled by the General Assembly from the membership of the UN on Sept. 21, 1992
for the alleged breaches of the Charter obligations, and was asked to apply afresh for
membership. Montenegro was admitted as a member on 28 June 2006 and Serbia on 1
November 2000.

D. Organs of the United Nations

The United Nations has six principal organs with their well-defined powers and
functions. These organs, as listed in Art. 7 of the Charter are: the General Assembly, the
Security Council, the Economic and Social Council (ECOSOC), the Trusteeship Council,
the International Court of Justice, and the Secretariat. Other subsidiary organs “as may be
found necessary may be established in accordance with the Charter” (Art. 7(2)). This
provision gives wide latitude for the creation of any new subsidiary organ by the United
Nations in future. The power to create such organs has been expressly conferred on the
General Assembly (Art. 22) and the Security Council (Art. 29) for the performance of
their functions. Apart from this, a number of “specialised agencies”58 have been created
under Art. 57, which are brought into relationship with the United Nations in accordance
with Art. 63. There are also certain “related agencies”, i.e., those organisations which for
all practical purposes are assimilated to specialized agencies, for example, International
Atomic Energy Agency (IAEA) and the GATT (now the World Trade Organisation -
WTO). These agencies have working relationships with the United Nations and
specialised agencies engaged in their field of activity, viz., atomic agency and
international trade respectively.
In the scheme of the Charter, all principal organs have their well-defined area of
operation and are legally equal, but in practice, the General Assembly and the Security
Council are the “chief organs” of the United Nations. The residue of the authority is
vested in the General Assembly, if that otherwise pertains to the jurisdiction of the United
Nations.
1. The General Assembly

(a) Structure
The General Assembly of the United Nations consists of all the members of the United
Nations. Each member has one vote, though it may have five representatives (Art. 9). It
meets once every year and may also meet in such special sessions as convoked by the
Secretary-General at the request of the Security Council or of a majority of the members
of the United Nations (Art. 20). It can formulate its own rules and procedures (Art. 21)
and can establish subsidiary organs for the performance of its functions (Art. 22).
The General Assembly has formed certain committees to perform its major functions.
The committees are of the following types: (1) Main Committees, (2) Procedural
Committees, (3) Standing Committees, and (4) Ad-hoc Committees. The main
committees and the procedural committees meet in connection with plenary sessions.
Each member of the United Nations is entitled to have its representative in the main
committees, which are the following: (i) Political and Security Committee, (ii) Economic
and Financial Committee, (iii) Social, Humanitarian and Cultural Committee, (iv)
Trusteeship Committee, including non-self governing territories, (v) Administrative and
Budgetary Committee, and (vi) Legal Committee. In addition to this, there is a Special
Political and Security Committee (or Interim Committee) sharing the work of the First
Committee. These committees manifest decentralisation in the functioning of the
_________________

58 The name “specialised agencies” is used for bodies brought into relationship with
the United Nations through agreements. They are created out of social and economic
cooperation among States.

General Assembly. Beside these committees, there are also subsidiary bodies for
important political and security matters such as the Disarmament Commission, subject to
a duty of reporting to the Security Council.59
(b) Voting
Each member of the General Assembly has one vote. This is in accordance with the
principle of sovereign equality of States incorporated in Art. 2(1). The five permanent
members of the Security Council do not enjoy any special right, like “veto” in the
General Assembly. There is also no weighted voting as is found in the financial
institutions, like the IMF, where a State is entitled to have number of votes according to
its contribution in the Organisation’s capital. In the IMF, each member is entitled to 250
votes plus one additional vote for each part of its quota equivalent to US $100,000 (Art.
12(5)(a)).
Decisions on important questions in the General Assembly are taken by a majority of
members “present and voting”. The important questions include: recommendations with
respect to the maintenance of international peace and security; the election of members
(non-permanent) of the Security Council, the ECOSOC; the Trusteeship Council in
accordance with para. 1(c) of Art. 86 and questions relating to trusteeship system; the
admission of new members to the United Nations; suspension and expulsion of members;
and budget (Art. 18(2)).
(c) Powers and Functions

Under the Charter, the General Assembly has a wide variety of functions. It can discuss,
investigate, review and supervise the work of the United Nations including its organs and
can make recommendations. But under the scheme of the Charter, the General Assembly
can take certain final and binding decisions, such as in relation to budget, admission,
suspension and expulsion of members. Its powers and functions can be broadly classified
into the following broad categories: (i) Deliberative, (ii) Supervisory, (iii) Financial, (iv)
Elective, (v) Constituent, and (vi) Legislative.
(i) Deliberative functions

The General Assembly’s functions are essentially deliberative. It may discuss any
question or any matter within the scope of the Charter or relating to the powers and
functions of any organ of the United Nations and make recommendations, except as
provided in Art. 12 (Art. 10). However, its main deliberative function is related to the
maintenance of international peace and security, which is subject to the following:
While the Security Council is exercising in respect of any dispute or situation the
functions assigned to it under the present Charter, the General Assembly shall not make
any recommendation with regard to that dispute or situation unless the Security Council
so requests (Art. 12(1)).
_________________
59 Disarmament Commission was established on Jan. 11, 1952, which replaced the
two earlier commissions - the Atomic Energy Commission and the Commission for

Conventional Armaments. It is a subsidiary organ of the General Assembly and since

1959, meets annually.

It is the duty of the Secretary-General, with the consent of the Security Council, to notify
the General Assembly at each session of any matters relative to the maintenance of
international peace and security which are being dealt with by the Security Council, and
shall similarly notify immediately when the Security Council ceases to deal with such
matters (Art. 12(2)).
Thus, under the Charter, although the Security Council has been given the primary
responsibility of maintaining international peace and security (Art. 24), the General
Assembly is being given certain facultative or permissive powers of consideration and
recommendation. In this regard, Art. 11 is very wide in its amplitude which empowers
the General Assembly to consider “the general principles of cooperation in the
maintenance of international peace and security, including the principles governing
disarmament and the regulation of armaments, and may make recommendations with
regard to such principles to the Members or to the Security Council or to both” (para. 1).
It may discuss any question related to the maintenance of international peace and security
brought before it by any member or a non-member or by the Security Council, and may
make recommendations thereto. If on any question the action is necessary, it is to be
referred to the Security Council either before or after discussion (para. 2). It may call the
attention of the Security Council to situations which are likely to endanger international
peace and security (para. 3). The General Assembly may also recommend “measures for
the peaceful adjustment of any situation, regardless of origin, which it deems likely to
impair the general welfare or friendly relations among nations, including situations
resulting from a violation of the Charter provisions” (Art. 14).
Though these provisions confer wide powers on the General Assembly for the
maintenance of international peace and security, it cannot take enforcement action.
However, the word “measures” (Art. 14) is of wide amplitude and in the past the General
Assembly had been able to contain some of the international disputes successfully, which
were discussed and measures short of enforcement action were taken. For example, for
Palestine a Special Committee was appointed in 1947 to investigate the facts, and
subsequently in 1948 a Mediator was appointed, and then a Conciliation Commission
was established to secure peace between the disputing parties. In the dispute between the
Netherlands and Indonesia, a Good Offices Committee was appointed in 1946.
Uniting for Peace Resolution

In the early years of the United Nations, the frequent use of “veto” in the Security
Council, which was more often the manifestation of the “cold war”, made the Security
Council practically ineffective and unable to perform its “primary function” of
maintaining international peace and security. This led to important developments which
further widened the role of the General Assembly in the field of maintaining international
peace and security. As an off-shoot of the Korean crisis, and the deadlock arising out of
it, on November 3, 1950, the General Assembly adopted Res. 377(V), the “Uniting for
Peace Resolution”.60 The Resolution provided that:
if the Security Council, because of lack of unanimity of the permanent members, fails to
exercise

its primary responsibility for the maintenance of international peace and security in any
case
_________________
60 The resolution was initiated by the western powers and adopted by 52 to 5 with
two abstentions. India abstained on the resolution. See GA Res. 377 (V), Nov. 3, 1950,
GAOR, 5th sess., Supp. 20, p. 10.

where there appears to be a threat to the peace, breach of the peace, or act of aggression,
the General Assembly shall consider the matter immediately with a view to making
appropriate recommendations to Members for collective measures, including in the case
of a breach of peace or act of aggression the use of armed force when necessary, to
maintain or restore international peace and security. If not in session at the time, the
General Assembly may meet in emergency special session within 24 hours of the request
therefore. Such emergency special session shall be called if requested by the Security
Council on the vote of any seven (now nine) members, or by a majority of the Members
of the United Nations....
The Resolution further provided that:
each Member maintain within its national armed forces elements so trained, organised
and equipped that they could promptly be made available, in accordance with its
constitutional processes, for service as a United Nations unit or units, upon
recommendations by the Security Council or the General Assembly, without prejudice to
the use of such elements in exercise of the right of individual or collective self-defence
recognised in Art. 51 of the Charter....
The Resolution established a Peace Observation Commission with representatives of 14
member nations, “which could observe and report on the situation in any area where there
exists international tension the continuance of which is likely to endanger the
maintenance of international peace and security” at the instance of the General Assembly
or the Security Council and subject to the consent of the State whose territory is to be
entered. It also established a Collective Measures Committee to study and report to the
Security Council and the General Assembly on methods that might be used to maintain
and strengthen international peace and security. Both these bodies are still formally in
existence, though sparingly used. The Peace Observation Commission has so far been
used only once, in 1952, when it established the Balkan Sub-commission that sent
observers to the Northern border areas oi Greece at the request of Greece. The Collective
Measures Committee submitted three reports between 1951-54.
The General Assembly has acted under the Resolution on numerous occasions, including
Korea (1950), Suez Canal Zone Conflict (1956), the Hungarian Uprising (1956), Lebanon
and Jordan (1958), the Congo crisis (1960), the Middle-East (1967), the 1971 Pakistan
Civil War (Bangladesh), Afganistan (1979-80), the Palestine Situation (1980, 1982),
Namibia (1981), and the question of Occupied Arab Territories (1982). In all these cases,
the emergency special sessions of the General Assembly were convoked. But the most
important of these are the Suez Canal Conflict and the Congo crisis. The Suez Canal
Conflict involved Israel, Egypt, France and the Great Britain. At the request of seven
Security Council members, the General Assembly met on November 1, 1956, in an
emergency session. It adopted a resolution, mandating cease-fire by the contestants, and
created a United Nations Emergency Force (UNEF) to restore peace and order, and
guarantee peaceful conditions in the conflict area. Similarly, in the case of Congo, on
September 19, 1960, under the Uniting for Peace Resolution, the General Assembly
authorised the Secretary-General of the United Nations to continue to pursue the action
taken under the earlier Security Council resolutions for the United Nations military

assistance (United Nations Operation in the Congo - ONUC) to restore law and order
there.
However, the legality of the Uniting for Peace Resolution which invests the General
Assembly with powers not perceived under the Charter has been questioned. It is
tantamount to amendment of the Charter without going through the rigours of the
procedure of amendment under Art.

109. The Resolution impinges upon the powers of the Security Council entrusted with the
“primary responsibility” of maintaining international peace and security. France and the
Soviet Union challenged the legality of the measures taken under the Resolution and
refused to pay their dues towards peacekeeping operations taken thereto.61 Nevertheless,
the legality of these measures was upheld by the ICJ in its advisory opinion in the Certain
Expenses of the United Nations case.62 The Resolution and the measures taken
thereunder can be justified within the broad parameters of the purposes of the United
Nations to maintain international peace and security. Strictly speaking, the measures
taken in the form of UNEF and ONUC were not the “enforcement measures” which the
Security Council is solely authorised to take under Chapter VII of the Charter and as such
they are in consonance with Arts. 10 and 14 of the Charter. The Court opined that Art. 24
confers “primary” responsibility on the Security Council to maintain international peace
and security, and not the “exclusive” responsibility.
The General Assembly has also acted outside the purview of the Uniting for Peace
Resolution in many cases threatening international peace and security. For example, in
the dispute over Falkland Islands, on November 4, 1982, the General Assembly by
adopting a resolution, called upon Argentina and the United Kingdom to resume
negotiations to find a solution to the dispute. The resolution, however, was unacceptable
to the United Kingdom for failing to make provision for the right of self-determination,
among other things.
The General Assembly has also taken certain other steps in the domain of maintaining
international peace and security. In April 1949, the General Assembly recommended for
setting up a panel of individuals to serve as rapporteurs or conciliators on commission of
inquiry and conciliation to be set up by the Security Council in a dispute or situation
brought before the Security Council for action.63 The General Assembly also adopted a
Permanent Commission of Good Offices in 1950.
The General Assembly’s efforts in the area of disarmament are equally significant
towards the direction of international peace and security. The object of disarmament is to
abolish war- making capacity. It is meant to reduce, regulate and control the armaments.
The efforts in this area were initiated in 1961, by the establishment of an 18 member
Disarmament Committee, replaced by Conference of the Committee on Disarmament
(CCD) in 1969 with an increase in membership twice to raise it to 31. It was assigned the
task to negotiate for general and complete disarmament, and arms control agreements.64
The Committee got the new name in 1984 as the “Conference on Disarmament” and also
reinstituted United Nations Disarmament Commission (UNDC) first constituted in
January 1952, which is directly responsive to the Security Council. The General
Assembly also held two special sessions on disarmament in 1978 and 1982. It also
proclaimed in 1969 and 1981, the first and second disarmament decades respectively.
_________________
61 See the statement of the representative of the Soviet Union, GAOR, 5th sess., I
Committee, 357th Meeting, Oct. 10, 1950, p. 82.
62 (1962) ICJ Rep., p. 151; see UN Doc. S/5653, 3 ILM 545 (1964).
63 The Security Council approved the recommendation in May 1950.

64 The expression “arms control” refers to regulatory measures for the abolition,
reduction or limitation, or of prohibition on the new production, see Starke, op. cit. 2, p.
571.

(ii) Supervisory functions

The General Assembly supervises the functions of the other principal organs and
specialised agencies of the United Nations. It receives and considers annual and special
reports from the Security Council, including the measures taken by it to maintain
international peace and security, and from other organs of the United Nations (Art. 15). It
also receives an annual report from the Secretary-General on the work of the
Organisation (Art. 98). It exercises significant control over the two principal organs - the
ECOSOC, including its specialised agencies, and the Trusteeship Council. The
Trusteeship Council has now suspended its operations after the Security Council
terminated the United Nations last Trusteeship Agreement for Palau on November 10,
1994, by unanimously adopting Res. 956 (1994).65 In future, it will meet only on an
extraordinary, as-needed basis.
(iii) Financial functions

The General Assembly has the exclusive control over the finances of the United Nations.
It considers and approves the budget of the Organisation and apportions the expenses
among its members. It also considers and approves any financial and budgetary
arrangements, examines the administrative budgets and makes recommendations to the
specialised agencies of the United Nations (Art. 17). This gives the power to the General
Assembly to review the work of these agencies and exercise control over their activities.
Though budgeting is an important function performed by the General Assembly, it has
not always proved to be a smooth sailing. The members who, under Art. 17(2) of the
Charter, are obliged to bear the expenses of the United Nations have on many occasions
refused to pay their dues or have remained in arrears. In the case of Certain Expenses of
the Organisation,66 the Court was to consider whether the expenses for sending UNEF to
Egypt in 1956 and ONUC to Congo in 1960 were “the expenses of the Organisation”
within the meaning of Art. 17(2) since they were not authorised by the Security Council.
The Court, in its Advisory Opinion, replied in the affirmative that such expenses were the
expenses of the Organisation, which could be apportioned by the General Assembly
among the members of the United Nations. The General Assembly’s power in respect of
maintenance of international peace and security is not limited to Art: 11, para. 2.
But despite this opinion of the Court, the Soviet Union and France refused to pay their
shares of expenses in the peacekeeping operations of the United Nations. The United
States invoked Art. 19 to deprive the Soviet Union to vote in the General Assembly.
Article 19 provides that a member, “which is in arrears in the payment of its financial
contributions to the Organisation shall have no vote in the General Assembly if the
amount of its arrears equals or exceeds the amount of the contributions due from it for the
preceding two full years”. In consequence of this, as a measure of expediency, for the
whole of the 19th session (1964-65), no voting took place in the General Assembly.67
This necessitated the passing of a resolution on September
_________________
65 Palau’s status as a “strategic area” required that the Trusteeship Agreement be
terminated by a Security Council decision. The Trusteeship Council made the similar
determination on Nov. 1, 1994.

66 See, op. cit. 62.

67 See 4 ILM 1000 (1965).

1, 1965, which provided that Art. 19 of the Charter shall not apply to the expenses
incurred towards sending the UNEF and ONUC.
The United Nations, with its large commitment in many fields needs constant financial
support from the member nations. But many members are constantly in arrears of their
annual contributions.68 The United States is the major contributor towards the UN
budget but its attitude became very rigid in the 1980s. It withdrew from the ILO and the
UNESCO in 1986, and stopped its contribution towards the United Nations Fund for
Population Activities. In December 1995, it decided to withdraw from the United Nations
Industrial Development Organisation (UNIDO). The main reason for this increasingly
rigid posture is because of the change in the basic character of the United Nations by the
presence of a large number of Afro-Asian nations who vote en-bloc on many issues as a
group. This “automatic” majority of these new nations is proving to be a hindrance in
making the United Nations more effective as perceived by western nations. The western
countries together contribute about 85 per cent towards the United Nations budget and
the developing countries’ total contribution is less than 2 per cent (about 1.95 per cent),69
and yet by their sheer majority, they are able to influence the policy decisions profoundly.
To overcome the constant wrangling over the budget, the General Assembly, in 1986,
established a 27-member group to adopt certain guidelines. The strength of the group was
later reduced to 16 (then to six) including the United States, Soviet Union, China, Brazil
and India. The group by consensus accepted a formulation, which was adopted by the
General Assembly as the new guidelines for programming the budget. On these
guidelines, the General Assembly on December 22, 1988, unanimously passed the budget
for the next three years. Now on the recommendation of the Fifth Committee, the General
Assembly, approves the biennium budget of the Organisation.
(iv) Elective functions

The important elective functions of the General Assembly comprise the election of
members of other organs. It elects the 10 non-Permanent members of the Security
Council (Art. 23); 54 members of the ECOSOC (Art. 61); the members of the Trusteeship
Council, as elected under Art. 86(c) for a three-year term; the judges of the ICJ along
with the Security Council by a system of parallel and independent voting (Art. 8 of the
Statute of the Court). It also appoints the Secretary-General of the Organisation upon the
recommendation of the Security Council (Art. 97).
_________________
68 The U.S. pays annually 22% (as against the original 25%) towards the UN’s regular
budget. The U.S. arrears to the UN currently total over $1.4 billion, more than a fourth of
the total debt owed to the UN by member-states. As on 12 May 2011, total outstanding
dues were more than $4.4 billion in regular budget and other outstanding dues on other
operations, viz., on peacekeeping operations were about $1.72 billion, mostly owed by
developed countries; GA Doc. GA/AB/3991, 19 May 2011.
69 See T.J.S. George, Glooms at the United Nations, Indian Express, Oct. 8, 1986,
cited in Kapoor, International Law, 8th ed. (Central Law Agency, Lucknow), 1990, p.
513.

(v) Constituent functions

The General Assembly possesses the power to adopt amendments to the Charter. These
amendments have to be adopted by a vote of two-thirds of the members of the General
Assembly and ratified in accordance with their respective constitutional process,
including all the permanent members of the Security Council (Art. 108).70 The review
and the alteration of the Charter take place in accordance with the procedure laid down in
Art. 109 of the Charter.
The General Assembly has the power to establish subsidiary organs to perform its
functions (Art. 22). Under this power, a number of organs have been established, which
are very significant for the functioning of the United Nations, viz., the International Law
Commission (ILC) to perform duties under Art. 13(1)(a) of the Charter, and the United
Nations Commission on International Trade Law (UNCITRAL). Also, there are organs
with an “autonomous” status, such as UNITAR, UNCTAD and UNIDO. The
Administrative Tribunal constituted by the General Assembly and decisions rendered by
it are binding upon the other organs of the United Nations.71 Its establishment was
criticised as amounting to de facto amendment of the Charter and impinging upon the
powers of other United Nations organs. But the validity of the Tribunal as well as the
binding force of its decisions was upheld by the ICJ. The General Assembly also makes
regulations for the appointment of staff of the United Nations (Art. 101).72
(vi) Legislative functions

The General Assembly exercises a significant role in the law-making. It has the
mandatory power to initiate studies and make recommendations for the purpose of
“encouraging the progressive development of international law and its codification” (Art.
13(1)(a)). For this purpose, it constituted the ILC in 1947.73 Beside the work done by the
ILC, the General Assembly performs its legislative functions in varied forms. It had
convoked the diplomatic conferences for the purposes of drafting and opening for
signature important multilateral treaties, for example, the four Geneva Conventions on
the Law of Sea, 1958; the Vienna Conventions on the Law of Treaties, 1969 and 1986;
the Vienna Conventions on Diplomatic Relations, and Consular Relations, 1961 and 1963
respectively; and the 1982 Law of the Sea Convention. It had also approved and adopted
the text of several international conventions, viz., the two covenants on human rights, i.e.,
the Covenant on Civil and Political Rights, and the Covenant on Economic, Social and
Cultural Rights, 1966; the Genocide Convention, 1948; Conventions on the Privileges
and Immunities of the United Nations, and of the Specialised Agencies, 1946 and 1947
respectively; and the Comprehensive Test Ban Treaty, 1996. The Assembly
_________________
70 So far amendments have been adopted to Arts. 23, 27 and 61 in Dec. 1963 (came
into force on Aug. 31, 1965), in Dec. 1971 to Art. 61 (came into force in Sept. 1973). An
amendment to Art. 109 adopted by the General Assembly came into force in June 1968.
71 The Statute of the Tribunal was adopted by the General Assembly on Nov. 24,
1949.

72 See the Advisory Opinion of the Court in the Effects of Awards of Compensation
made by the UN Administrative Tribunal (1954) ICJ Rep., p. 47; see also S. Engel, The
Changing Charter of the United Nations (1969), p. 3.
73 For the role of the ILC in the codification of international law, see Ch. 1 supra pp. 22-
23.

appointed in 1995, a Preparatory Committee to draft a Convention for the Establishment

of an International Criminal Court (ICC), which led to the adoption of the Rome Statue
and the establishment of the ICC which came into force in July 2002.
The General Assembly has also adopted numerous prescriptive resolutions which, over a
period of time, developed into binding rules of international law.74 For example, the
Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960
(Res. 1514 (XV)); Universal Declaration of Human Rights, 1948 (Res. 217A (III)); the
Declaration of Legal Principles Governing the Activities of States in the Exploration and
Use of Outer Space, 1963 (Res. 1962 (XVIII)); and the Resolution on Permanent
Sovereignty over Natural Resources, 1962 (Res. 1803 (XVII)). In fact, the General
Assembly has become the prolific source of legal instruments governing new areas of
international law, such as the Outer space (Chapter 6 above), environmental law (Chapter
12 above), consumer protection and gender justice (viz., 1979 Convention on the
Elimination of All Forms of Discrimination against Women).
In the matter of internal functioning, the General Assembly, like any other organ, enjoys
considerable autonomy in making rules that govern the procedures and relationships of
the organisation and its staff. But the validity of these rules may be questioned if they
come into conflict with the discharging or giving effect to the Charter rules. The General
Assembly has framed the rules and regulations governing the conditions of service of its
officials, and has also established an UN Administrative Tribunal to adjudicate upon
applications alleging non- observance of employment contracts of staff members of the
Secretariat.75
In the performance of all these functions, the General Assembly relies on the cooperation
of its members and not on its powers, since it has no powers unlike the Security Council
which can act on behalf of all the members of the United Nations.
2. The Security Council

(a) Structure
The Security Council is the executive organ of the United Nations with limited
membership. It consists of 15 members of the United Nations with five permanent
members: China, France, the Soviet Union (now the Russian Federation), the United
Kingdom and the United States of America, and 10 non-permanent members elected by
the General Assembly for a two-year term. In the election of non-permanent members,
due regard is specially paid to the contribution of members to the maintenance of
international peace and security and to the other purposes of the United Nations, and also
to equitable geographical distribution.76 Each member of the Security Council shall have
one representative (Art. 23).
Since the mid-1980s, there has been increasing demand to enlarge the membership of the
Security Council due to the increase in the membership of the United Nations and to have
the
_________________
74 The resolutions of the General Assembly, prima facie, are not binding but they help in
the evolution of binding rules of international law, either in the form of customary rules,
or conventional rules embodied in treaties, see Ch. 2 above.

75 See Amarsinghe, op. cit. 34.

76 The 10 seats are allocated according to the formula laid in GA Res. 1991 (XVIII)
17 December 1963: Afro-Asian nations—5; Eastern Europe—1; Latin America—2;
Western Europe and others—2.

appropriate representation of new nations to ensure equitable geographical distribution.

There are demands to make Brazil, Germany, Japan, and India as the permanent members
of the United Nations on the basis of their contribution in the United Nations as well as
on the basis of their size and importance. View has also been expressed that the
permanent seats occupied by France and the United Kingdom should be allocated to the
European Union and two members from that Union should be appointed to the Security
Council. The increase in the number of permanent members may be with or without veto
power. But any such change requires an amendment of the Charter under Arts. 108 and
109, and the concurrence of the five permanent members to such an amendment.77
The Security Council is a continuously functioning body and for this purpose each
member of the Security Council has to be represented at all times at the seat of the
Organisation, but the Security Council may hold meetings at places other than the seat of
the Organisation (Art. 28). The States, other than the members of the Security Council,
may also participate in the deliberations of the Security Council in accordance with the
Charter, i.e., (i) if it is a member of the United Nations, it may participate without vote in
discussion of any question brought before the Security Council if that State considers that
its interests are specially affected (Art. 31); (ii) if a State, whether member or non-
member of the United Nations, is a party to a dispute under consideration by the Security
Council, it is to be invited to participate without vote in the discussion relating to the
dispute. For the participation of the non-members, the Security Council may lay down
conditions (Art. 32).
The decisions of the Security Council are binding upon the members of the United
Nations (Art. 25). The decisions taken by the Security Council under Chapter VII
(Enforcement Action) are unequivocally binding, but the position is not so clear with
respect to other resolutions, particularly adopted under Chapter VI for the pacific
settlement of disputes. However, in the Namibia case, observing about Res. 276 of the
Security Council, the International Court of Justice stated that “Art. 25 is not confined to
decisions in regard to enforcement action but applies to ‘the decisions of the Security
Council’ adopted in accordance with the Charter”.78
(b) Voting
Article 27 governs the voting in the Security Council. Each member has only one vote.
Decisions on procedural matters are to be made by an affirmative vote of nine members.
Decisions on non-procedural (i.e., substantive) matters are to be made by an affirmative
vote of nine members including the concurring votes of the permanent members. But for
any decision under Chapter VI (Pacific Settlement of Disputes) and under Art. 52(3)
(pacific settlement under regional arrangements), a party to a dispute shall abstain from
voting. The negative vote of a permanent
_________________
77 The original membership was increased from 11 to 15 in 1963. In Dec. 1993, an
Open-Ended Working Group on the Question of Equitable Representation on and
increase in the Membership of the Security Council and Other Matters related to Security
Council was established; it is now changed to Intergovernmental Negotiations in Feb.
2009

78 (1971) ICJ Rep., p. 16, at p. 52.

member on a non-procedural matter is termed “veto”, which means that a decision on that
matter is blocked or has failed to come into existence.79
There is, however, no enumeration of the matters that fall into procedural and non-
procedural categories in contrast to Art. 18(2), which enumerates the “important
questions” for voting purposes in the General Assembly. Nevertheless, in practice, certain
matters are considered procedural, such as decisions relating to the agenda, adjournment
of meetings, conduct of business, invitation to States to participate in the meetings,
postponement of consideration of a question, acceptance and non-acceptance of the
credentials of a government.80 But in the case of a controversy over the nature of the
matter, the permanent members have relied upon the Four Sponsoring Powers statement
at San Francisco.81 It states:
... it will be unlikely that there will arise in the future any matters of great importance on
which a decision will have to be made as to whether a procedural vote would apply.
Should, however, such a matter arise, the decision regarding the preliminary question as
to whether or not such a matter is procedural, must be taken by a vote of seven (now
nine) members of the Security Council, including the concurring votes of the permanent
members.
Accordingly, a permanent member can decide the nature of the question by a non-
procedural vote, and can exercise its “veto”. Once it is so decided, then on the same issue,
it may again exercise its “veto” for the second time, resulting into “double veto”.
Logically, it may mean that no matter can be considered as procedural against the wishes
of the permanent members. One way to avoid “double veto” is provided in Rule 30 of the
Rules of Procedure under which the President of the Security Council is to rule that the
matter is procedural and the ruling should be supported by nine members of the Security
Council. Such a ruling stands unless challenged by any permanent member, in which case
the possibility of “double veto” arises.82
In practice, certain matters have been well-established as non-procedural and thus subject
to “veto”. The questions concerning the admission, suspension and expulsion of the
United Nations members are non-procedural. Other non-procedural matters are: the
actual decision whether a question to be put to vote is one of procedure or of substance
(the matter is decided under Rule 30 by the President); any executive action on a
particular matter; and a decision to carry out any wide investigation of a dispute. But a
function performed under Art. 29 to establish a subsidiary organ is a procedural matter.83
_________________
79 Prior to the amendment of Art. 27 in 1963, when seven affirmative votes were
required for decisions on procedural matters, permanent members could block a decision
by abstaining from voting. But now with 10 non-permanent members (and affirmative
vote of nine members) this is no more possible. On vetoed resolutions, see W.M.
Reisman, The legal effects of vetoed resolutions, 74 AJIL 904-907 (1980).
80 See Repertoire of the Practice of the Security Council, 1952-53 (ST/PSCA/l/Add.
I), p. 63, et seq., referred by D.W. Bowett, op. cit. 1, p. 27, no. 10 (3rd ed.).
81 Repertory, vol. 11, p. 104. France adhered to this statement later.
82 J. Stone, Legal Controls of International Conflict (Stevens & Sons Ltd.. London),
1954, pp. 224-225 and Supplement, 1953-58 (1959). p. 870; see also, Edward

McWhinney, United Nations Law Making (New York: Holmes and Meier, 1984), p. 87
et seq.
83 In the matter of Laos, on Sept. 8, 1959, against the protest of the USSR, the
President of the Security Council ruled that the appointment of a sub-committee to
examine statements concerning Laos is a procedural matter, in accordance with Art. 29 of
the Charter, and hence not subject to “veto”.

Paragraph 3 of Art. 27 contains exceptions to the application of the “veto”, i.e., a party to
a dispute shall abstain from voting in decisions under Chapter VI, and Art. 52(3) of the
Charter. But whether a matter under consideration is a “dispute” or a “situation” and
whether a State is a “party” to it, can also become a disputing point where the use of
“veto” cannot be ruled out. Moreover, there is no such requirement for a decision under
Chapter VII.
The voluntary abstention from voting of a permanent member has also remained a
disputing issue for long. On procedural matters, the decisions can be taken in the absence
of a permanent member, but on non-procedural matter, the “concurrence” of permanent
members is a sine quo non (necessary). In the Korean conflict, the decision to send forces
under the United States command to repel the North Korean attack on South Korea was
taken by the Security Council on June 25 and 27, 1950, in the absence of the Soviet
Union which challenged the validity of those resolutions later on. But, on the other hand,
the Soviet Union may be considered to be in breach of its obligation under Art. 28
requiring it to “be represented at all times at the seat of the Organisation....” It is also
argued that the abstention from voting by a permanent member may amount to implicit
“concurrence” in the majority will, but this cannot be said when the member is not
present at all84 as was the case of the Soviet Union in the Korean crisis. This
interpretation is the manifestation of political expediency and is now well-entrenched in
the United Nations practice. The ICJ, in its advisory opinion of June 21, 1971, in the case
of Legal Consequences for States of the Continued Presence of South Africa in Namibia
(Namibia case)85 ruled that the abstention from voting of two permanent members
(France and the United Kingdom) has not affected the validity of the Security Council
Resolution of 1970 declaring the continued presence of South Africa in South-West
Africa (Namibia) as illegal. This practice, nonetheless, amounts to an amendment of Art.
27 and it also raises a pertinent question, as to whether a resolution on non-procedural
matter adopted with all the permanent members (or majority of them) abstaining would
be binding under Art. 25 of the Charter, including an enforcement action under Chapter
VII.86
In the practice of the United Nations, the power of “veto” has been much abused, which
has destroyed much of the efficacy of the Security Council. The permanent members
have not hesitated to use it to protect their vital interests rather than discharging their
responsibility for maintaining peace and security, and at times made the United Nations
inactive and ineffective. At the time of adoption of the Charter, the Four Sponsoring
Powers at the San Francisco Conference favoured its retention over the opposition of
other States attending the Conference, so that the permanent members should not be
compelled to vote on a matter with which they disagree. In fact, “veto” was the price that
the United Nations had paid to bring itself into being, and forced it to yield to reality.87
_________________
84 See Bowett, op. cit. 1, p. 29; Stone, op. cit. 82 (1959), pp. 210-212, H. Kelsen,
Recent Trends in the Law of the United Nations (Stevens & Sons Ltd., London), 1951,
pp. 927-936.
85 See op. cit. 78, at p. 22.

86 Gross argues that such resolutions may be merely permissive and not binding, see
L. Gross, 62 AJIL 365 (1968).
87 See W.M. Reisman, op. cit. 79, at p. 907.

After the collapse of the Soviet Union and the near total eclipse of communism which has
seen the end of cold-war era, there has been a remarkable decline in the use of “veto”, but
its misuse cannot be controlled where the interests of the permanent members are at
stake.
(c) Powers and Functions

As against the General Assembly which is a deliberative body, the Security Council is a
decisionmaking body whose decisions are binding on the members of the United Nations,
which “agree to accept and carry out the decisions of the Security Council in accordance
with the present Charter” (Art. 25). The primary responsibility of the Security Council is
“the maintenance of international peace and security” (Art. 24). Apart from maintaining
international peace and security, the Security Council also performs elective, supervisory
and constituent functions.
(i) Elective functions

Among its important elective functions is the election of the judges of the ICJ. The
Security Council and the General Assembly separately elect the judges of the ICJ (Arts. 4
and 8 of the Statute of the Court). The Secretary-General of the United Nations is
appointed by the General Assembly on the recommendation of the Security Council (Art.
97). Also the new members are admitted to the United Nations by the General Assembly
on the recommendation of the Security Council (Art. 4). These elective functions are
performed by the Security Council with the concurrent votes of all the five permanent
members, for their being the substantive matters.
(ii) Supervisory functions

The supervisory functions of the Security Council are not as wide as those of the General
Assembly. But in the matters of suspension and expulsion of the members from the
United Nations, the General Assembly can act only on the recommendation of the
Security Council (Arts. 5 and 6). Further, the suspended member’s rights and privileges
can be restored only by the Security Council (Art. 5). It also exercises supervisory
function over regional arrangements and agencies which shall “at all times be kept fully
informed of activities undertaken or in contemplation by them for the maintenance of
international peace and security” (Art. 54). It is also responsible for the control and
supervision of the strategic areas under the trusteeship system (Art. 83).88
(iii) Constituent functions

The role of the Security Council is significant in the amendment of the Charter. The
review conference for amendment purpose may be convened by a vote of two-thirds
members of the General Assembly and nine members of the Security Council. The
amendments recommended by the Conference will take effect when ratified by two-thirds
members of the United Nations
_________________
88 The provisions relating to trusteeship system have now become inconsequential
with the independence of Palau, the “strategic area” in Nov. 1994.

including all the permanent members of the Security Council, ratified in accordance with
their respective constitutional processes (Arts. 108 and 109).
(iv) Maintenance of international peace and security

The maintenance of international peace and security is the primary responsibility of the
Security Council, though not exclusive. The General Assembly also has the deliberative
and recommendatory powers on the subject. The regional arrangements and agencies also
have the vital role in this regard and appropriate regional action can be taken on matters
relating to maintenance of international peace and security (Arts. 52 and 53). The
Security Council discharges its primary function of maintaining international peace and
security by two means: (a) the pacific settlement of international disputes, and (b) by
taking preventive or enforcement action.
Pacific Settlement of Disputes

It is in accordance with the purposes of the United Nations to settle international disputes
or situations which might lead to a breach of peace by pacific means (Art. 1(1)). In the
settlement of such disputes, the Security Council shall be bound by the purposes and
principles of the Charter, i.e., the domestic jurisdiction clause of Art. 2(7). Chapter VI of
the Charter sets out the powers of the Security Council in relation to disputes the
continuance of which is “likely to endanger international peace and security”. Such
disputes can be brought to the notice of the Security Council by the General Assembly
(Art. 11(3)), the Secretary-General (Art. 99), a member, and a non-member of the United
Nations (Art. 35). If a dispute does not endanger international peace and security, that
will not be governed by the provisions of Chapter VI. Similarly, members are not obliged
to settle them also.
In order to determine whether the continuance of the dispute or situation is likely to
endanger international peace and security, the Security Council is not bound by the
statements of the parties to a conflict, but makes its own investigations (Art. 34).89
However, no legal obligation exists for a party to permit a commission of investigation to
allow access to its territory, in which case, the value of the investigation may
substantially decrease. Further, the Charter does not make any distinction between a
“dispute” and a “situation”. These words find mention in Art. 36 also, but Art. 27(3) uses
the word “dispute” only. Whether particular facts amount to “situation” or “dispute” can
become a disputing issue, and at times, they may overlap. Generally, the matter is
decided by the ruling of the chairman of the Security Council. Any State (nonmember of
the Security Council or the United Nations), if party to a dispute, may be invited to
participate in the discussion relating to the dispute in the Security Council, and this
privilege is not extended to a State party to a “situation” (Art. 32).90
The means provided for the peaceful settlement are negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements,
or
_________________
89 On the Security Council’s powers to investigate, see E.L. Kerley, The powers of
investigation of the United Nations Security Council, 55 AJIL 892 (1961).

90 For example, South Africa was not invited to the discussion of the “situation” in
South-West Africa in 1970, in which the Security Council took the decision that South
Africa’s continued presence there was illegal, see Namibia case, op. cit. 78, at pp. 22-23.

by other means of parties’ choice. The Security Council ‘‘shall, when it deems necessary,
call upon the parties to settle their disputes by such means” (Art. 33). The Council
followed this procedure in the Chad-Libya dispute in April 1983, and in the Falklands
Islands case in April- June 1982, wherein the Security Council called upon the United
Kingdom and Argentina to “seek a diplomatic solution to their differences and to respect
fully the purposes and principles of the United Nations Charter”. The Security Council is
bound to follow these provisions in the case of a non-member of the United Nations,
which is a party to a dispute and is invited to participate without vote in the discussion of
the Security Council relating to the dispute, provided the non-member accepts in advance
“the obligations of pacific settlement provided in the present Charter” (Art. 35(2)).
The Security Council is empowered to recommend appropriate procedures or methods of
adjustment at any stage of the dispute, or of a situation of like nature, while taking into
account the procedures already adopted in this regard by the parties. The legal disputes
should be referred by the parties to the ICJ (Art. 36).91 If the parties fail to settle their
dispute, they are obliged to refer to it to the Security Council. The Security Council may
recommend the actual terms of settlement where it considers that the continuance of the
dispute is likely to endanger the maintenance of international peace and security (Art.
37). The Security Council may also recommend the terms of settlement upon the request
of the parties to a dispute (Art. 38).
Under Chapter VI, the powers of the Security Council are limited to making
“recommendations” and they are not in the nature of “decisions” which will be binding
on the parties (under Art. 25). But the “recommendations” are to be adopted by a non-
procedural vote, i.e., they are also subject to veto.92
Preventive or Enforcement Action

Under Art. 39, the Security Council is empowered to determine “the existence of any
threat to the peace, breach of the peace, or act of aggression and shall make
recommendations, or decide what measures shall be taken in accordance with Arts. 41
and 42 to maintain or restore international peace and security” (Art. 39). Decisions so
taken are theoretically binding on the United Nations members. The terms threat to the
peace, breach of the peace or act of aggression are not defined in the Charter, and thus
left to the determination of the Security Council. The
_________________
91 But the recommendation of the Security Council in the Corfu Channel case (UK
v. Albania) (1949) ICJ Rep., p. 4 to the disputing parties to submit their dispute to the ICJ
was merely recommendatory and devoid of any legal obligation.
92 Cf. Bowett, op. cit. 1, p. 33. In the Spanish question, the USSR vetoed the
proposal to consider the matter under Ch. VI, as suggested by the sub-committee, SCOR,
1st yr., 1st Sess., 47th Meeting, pp. 370-376, June 18, 1946. In the case, Poland submitted
a draft resolution to the Security Council, asking it to declare the situation under Franco
regime as endangering international peace and security under Arts. 39 and 41. The
Security Council, instead appointed a sub-committee to look into the matter which
concluded that activities of the Franco regime constitute a situation “likely to endanger
international peace and security” within the meaning of Art. 34 of the Charter, for which

the Security Council is empowered to recommend measures under Art. 36 to improve

situation there. See, the Report of the Sub-Committee on the Spanish Question, SCOR,
First year, 1st Series, Special Supp., p. 5. The Sub-Committee had representatives from
Australia, Brazil, China, France and Poland.

term “aggression” has now been defined and adopted in the form of General Assembly
Res. 3314 (XXIV) of December 14, 1974.93
Since the purpose of the United Nations is to maintain international peace and security
(Art. 1(1)), the threat to the peace requires threat to international peace, which excludes
an enforcement measure in the civil strife, not threatening international peace and
security. Whether the internal situation of a country is such that constitutes a threat to
international peace and demands an action under Chapter VII (an exception to Art. 2(7))
is for the determination of the Security Council. But there is no objective criterion to
gauge the severity of the internal situation requiring an enforcement action. Thus, the
Security Council took enforcement action in the case of Southern Rhodesia and South
Africa, which seemed to be entirely internal matters. The civil war situation in Congo in
1960-61, was similarly found to be a “threat to international peace and security”.94 The
situation in former Yugoslavia has also been found to be a threat to international peace.
But the situation in erstwhile East Pakistan (now Bangladesh), which had repercussions
on the neighbouring country India, was not considered grave enough to matter for a
determination under Art. 39.
The violations of human rights and humanitarian law in internal strife are now
increasingly considered as a threat to international peace and security. The Security
Council has taken measures in the cases of Liberia, Angola, Rwanda, Burundi, Zaire,
Albania, the Central African Republic, Sierra Leone, East Timor, and Ivory Coast,95 by
relying upon the concept of a “threat to the peace” under Art. 39. More recently, in the
case of Libya where there is a civil war situation, the Security Council adopted
Resolution 1973 on 17 March 2011 under Chapter VII of the Charter, and decided to take
measures under Article 41, after determining that the situation in the Libyan Arab
Jamahiriya constitutes a threat to international peace and security.96 The resolution
demands “an immediate ceasefire” and authorizes the international community to
establish a no-fly zone over Libya and authorises all necessary means to protect civilians
and civilian-populated areas to use all means necessary short of foreign occupation to
protect civilians. It also decided to freeze all funds, other financial assets and economic
resources by all Members, which are owned or controlled, directly or indirectly, by the
Libyan authorities. Earlier by Resolution 1970 of 26 February 2011, the Security Council
imposed an arms embargo against Libya and decided to refer the situation in the Libyan
Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal
Court.97
_________________
93 GAOR 29th sess., Supp. 31, p. 142; 69 AJIL 480 (1975). The definition has been
discussed in detail in Ch. 17 supra, pp. 494-496.
94 See SC Res. 161, SCOR, Resolutions and Decisions, p. 2.
95 See, on Liberia, SC Res. 768, Nov. 19, 1993; on Angola, SC Res. 864, Sept. 15,
1993; Res. 1127, Aug. 28, 2000; on Rwanda, SC Res. 918, May 17, 1994, Res. 929, June
22, 1994; on Burundi, SC Res. 1072, Aug. 30, 1996; on Zaire, SC Res. 1078, Nov. 9,
1996; on Albania SC Res. 1101, Mar. 28, 1997, Res. 1114, June 19, 1997; on the Central
African Republic, SC Res. 1125, Aug. 6, 1997, Res. 1136, Nov. 6, 1997; on Sierra Leone,
SC Res. 1132, Oct. 8, 1997, Res. 1289, Feb. 7, 2000, Res. 1306, July 5, 2000; on East

Timor, SC Res. 1264, Sept. 15, 1999, Res. 1272, Oct. 25, 1999; on Ivory Coast, SC Res.
1572, Nov. 15, 2004.
96 The Resolution was adopted by ten affirmative votes and five States abstained:
Brazil, Germany, India and two permanent members- China, Russia.
97 In the Lockerbie Aerial Incident, SC Res. 731, Jan. 21, 1992, the Security Council
found Libya responsible for a “threat to the peace.”

A breach of the peace seemed to include the armed conflict and thus has some
commonality with “act of aggression”. The breaches of peace were found to have
occurred in the Korean conflict (1950),98 the Falkland Islands war (19 82),99 the Iran-
Iraq war (1980-88)100 and in the Iraq’s invasion of Kuwait (1990).101 However, rather
than the definition, the factual report of the situation is considered more important to
arrive at a determination under Art. 39, as was done in the cases of Korea in 1950 and
Lebanon in 1958, and the Security Council can send observer groups under Art. 34.102
Once it is determined that a threat to peace, breach of the peace or act of aggression
exists, the Security Council, before deciding about the enforcement measures under Art.
39, “may call upon the parties concerned to comply with such provisional measures as it
deems necessary or desirable”, and it will take account of failure to comply with such
provisional measures, like a cease fire (Art. 40). The Security Council has in the past
invoked Art. 40 on many occasions like in Palestine and Kashmir, when it ordered for
cease fire. The preponderant opinion finds these provisional measures as binding.103
Before any enforcement action is taken, a determination under Art. 39 must precede, even
though the Art. has not been specifically invoked or cited, like in the Korean Conflict. In
Kuwait’s case, the Security Council Res. 660 specifically cited Arts. 39 and 40. But the
mandatory nature of these measures is doubtful where the Security Council fails to make
a formal determination under Art. 39 first or cite Art. 40. The Security Council generally
avoids specifying these provisions and mentions the action under Chapter VII. For
example, in establishing a Multinational Military Implementation Force (IFOR) under the
unified command and control of NATO nations and non-NATO nations, to ensure
compliance with the framework agreement (Dayton Peace Agreement) for peace in
Bosnia-Herzegovina,104 the Security Council has acted under Chapter VII.105
There are two forms of enforcement action available to the Security Council: (i) measures
not involving the use of armed force, like the economic sanctions and severance of
diplomatic ties (Art. 41); and (ii) measures involving the use of armed force, where the
measures under Art. 41 would be inadequate (Art. 42). Measures under Art. 41 are
binding on the members, like the economic sanctions imposed on Southern Rhodesia in
1966,106 on South Africa in 19 77,107 and in the Kuwait’s case, against Iraq in 19
90.108 Acting under this Chapter,
_________________
98 SC Res. of June 25, 1950, SCOR, 5th year, Resolutions and Decisions, pp. 4-5.
99 SC Res. of April 3, 1982, UN Dot. S/PV, 2346, p. 6.
100 SC Res. 598 (1987), SCOR, 42nd year, Resolutions and Decisions, p. 5; 26 ILM
1419 (1987).
101 See E. Lauterpacht and others (Eds.), The Kuwait Crisis Basic Documents, vol. I
(Grotius Publications, Cambridge), 1991.
102 For example, UN Commission on Korea (UNCOK) and UN Observer Group in
Lebanon (UNOGIL) for Korea and Lebanon respectively.
103 Goodrich, Hambro and Simons, op. cit. 49, p. 306.
104 See Doc. A/50/790-S/1995/999, Nov. 1995.

105 See SC Res. 1031, Dec. 1995. In the Kuwait case, all but Resolution 662 were
expressly adopted under Ch. VII. SC Res. 1973, 17 March 2011 on Libya has been
similarly adopted under Ch. VII of the Charter.
106 SC Res. SC Res. 216 (Nov. 1965), 221 (April 1966) and 232 (Dec. 1966), SCOR,
21st year, Resolutions and Decisions, p. 5.
107 SC Res. SC Res. 392, June 19, 1976 and 418 (1977), SCOR, 21st year,
Resolutions and Decisions, p. 5.
108 SC Res. 661, Aug. 6, 1990.

the Security Council imposed economic sanctions against South Africa for the conditions
prevailing there.109
Arms embargo was imposed against Rwanda under the Security Council Res. 918 of May
17, 1994, and Res. 997 (1995), and against former Yugoslavia under Res. 713 (1991).
Trade embargo was imposed against Haiti under Res. 841 (June 16, 1993). But a non-
binding resolution imposing economic sanctions is also possible under Art. 39. The
enforcement actions involving armed action by air, sea or land forces, including
demonstrations and blockade under Art. 42 can be effected by the agreements made
under Art. 43 between the member States and the Council. No such agreement has ever
been concluded so far. In the Korean Conflict, where the enforcement action under
Chapter VII was taken, the United Nations Command was composed and the States
agreed to place forces at the disposal of the Council.110 In the Kuwait case (1990-91), 29
countries contributed their forces towards the United States inspired multilateral coalition
forces. In the Bosnia-Herzegovina case, the Multinational Military Implementation Force
(IFOR) was constituted of forces from NATO and non-NATO nations, with Card Bildt of
the European Union as high representative. The Military Staff Committee (Arts. 46-47) is
to advise and assist the Security Council on its military requirements for an action under
Art. 43, but so far it has never been materialised.111
It is not necessary that enforcement action should be carried out jointly by all the
members of the United Nations. The Security Council may authorise a single member to
use force in order to restore or maintain international peace and security. For example, in
the Southern Rhodesian case, the United Kingdom was authorised by the Security
Council to prevent by use of force the supply of oil reaching to the Southern
Rhodesia.112 In the case of Haiti also, the United States, along with OAS nations, was
asked to send its forces to restore democracy in Haiti by making military junta to step
down. The Rhodesian and Haiti cases have given new direction to the United Nations
enforcement measures where a single State or few States had been authorised to carry the
United Nations action which were deafly the domestic matters.
If any member or non-member State is faced with special economic problems in carrying
out the preventive measures decided by the Security Council, it may consult the Security
Council for their solution (Art. 50).113
_________________
109 See Res. 418 (1977), SCOR 32nd year, Resolutions and Decisions, p. 5.
110 Thirty-nine States offered to send forces, but finally 16 States sent the forces, see Yb.
of the UN (1950), p. 226.
111 In 1946, the Security Council requested the Military Staff Committee, consisting
of Chiefs of Staff of Permanent members, to examine Art. 43 from a military point of
view. The Committee submitted its report, but serious differences persisted between the
western powers and the USSR on many aspects of the UN forces, see SCOR, 1st year, 1st
series, 23 Meeting, Feb. 16, 1946, p. 369. In the UN practice, since the Korean conflict,
absence of agreement under Art. 43 is not regarded as an obstacle to action under Art. 42.
112 See op. cit. 106. In April 2011, the Secretary-General of the United Nations
requested the support of French forces in its operations in Ivory Coast in line with a UN
mandate to protect civilians there.

113 In the Kuwait case, by Res. 669 of Sept. 24, 1990, the Sanctions Committee
(established under Res. 661) was entrusted to examine requests made by India, Pakistan,
Bangladesh and Philippines under Art. 50, seeking exemption from the implementation
of the Resolution due to the loss suffered as a result of imposition of sanctions. Similar
request was made by Zambia when economic sanctions were imposed against Southern
Rhodesia in 1966.

Though the Security Council enjoys wide powers under Chapter VII in the maintenance
of international peace and security, it has not remained very active in taking decisions
under these provisions because of lack of unanimity of the permanent members. It has
succeeded in deciding and taking the enforcement action at two occasions, i.e., in the
Korean Conflict, because of the absence of the Soviet Union from the Security Council,
and the Kuwait case, because of the new-found friendship between the permanent
members after the end of cold-war era. However, the invasion of Iraq in March 2003 by
the United States and the United Kingdom forces (four other countries also took part in
these operations) was not authorized by the Security Council.114
In the Korean Conflict (1950-53), after the North Korean troops crossed the 38th Parallel
into South Korea on June 25, 1950, the matter was immediately debated by the Security
Council and the resolutions115 were adopted once the Security Council found that a
“breach of the peace” had been committed by North Korea and provided for a unified
command force under the overall direction of the United States.116 The resolutions were
adopted in the absence of the Soviet Union from the Security Council, which was
boycotting the Security Council meetings at that time as a mark of protest against the
Nationalist Government of China’s representation in the Security Council. After the
Soviet Union resumed its seat on August 1, 1950, the Security Council ceased to play an
active part in the conduct of the Korean War and thereafter, the General Assembly
assumed a significant role. On October 7, 1950, the General Assembly, acting on a report
from the United Nations Commission in Korea, by a resolution117 authorised the Unified
Command to cross over 38th Parallel.118
In the Kuwait case, the Security Council acted in a very swift manner, within hours of
Iraq’s invasion of Kuwait on August 2, 1990, adopting Res. 660 voted by all the
permanent members of the Security Council, condemning the Iraqi action. In a quick
span of three months, the Security Council adopted about a dozen resolutions relating to
Kuwait, condemning Iraqi invasion and determining it as “breach of the peace”.
Economic sanctions were also imposed119 which were more stringent than those
imposed against Southern Rhodesia and South Africa. But before the full impact of these
sanctions could be assessed, by Res. 678 of November 28, 1990, the Security Council
authorised member States to cooperate with the Government of Kuwait unless Iraq
comply fully with all the earlier resolutions of the Security Council by January 15, 1991,
to use all necessary means to uphold and implement Res. 660 and all subsequent relevant
resolutions and to restore international peace and security in the area. The Security
Council was to be kept regularly informed regarding the progress of actions
_________________
114 The Security Council Res. 1441, 20 Dec. 2002 did not authorise the use of force.
115 See the SC Resolutions of June 25, 27, and of July 7, 1950.
116 Resolution of July 7, 1950, SCOR, 5th year, Resolutions and Decisions, p. 5.
117 GA Res. 376, GAOR, 5th sess., Supp. 20, pp. 9-10 (1950).
118 For further details on the General Assembly’s role, see Harris, Cases and
Materials on International Law 7th ed. (Sweet and Maxwell, London), 2010, pp. 806-809.
119 SC Res. 661, August 6, 1990.

undertaken in this regard and all States were requested to provide appropriate support for
the actions.120
In pursuance of Res. 678, the coalition forces gathered in the Gulf121 at the request of
Saudi Arabia, which were to be used in the form of collective self-defence of Kuwait at
the request of the deposed Kuwaiti Government, if Iraq failed to withdraw. Like in the
Korean crisis, here also the basis of authorisation of use of force was Art. 39 rather than
Art. 42, for which agreements under Art. 43 between the Security Council and the
member States are essential. The coalition forces started air offensive against Iraq on
January 16, 1991, and the ground offensive on February 24, 1991. A temporary cease fire
was established by the Security Council Res. 686 of March 2, 1991, followed by a formal
cease fire by Res. 687 of April 3, 1991.122
Another problem of great significance, which arose out of the Iraq-Kuwait conflict was
the repressive measures adopted by President Saddam Hussain against the Iraq’s Kurdish
population, which made them to flee to neighbouring Turkey and Iran. The Security
Council while recalling Art. 2(7) of the Charter (on non-intervention), condemned the
Iraqi action against its civilian population and demanded its end, but no enforcement
action was decided. Subsequently, western nations declared a “no fly zone” in the
northern part of Iraq, an action which was not in consonance with the Charter,
particularly the matter could be considered as a domestic issue.123 The invasion of Iraq
in March 2003 was justified by the US and the UK under Chapter VII for its failure to
abide by the Security Council Resolution 687 of April 3, 1991, imposing an obligation on
Iraq to destroy all weapons of mass destruction and allow the inspection by UN weapons
inspectors of the United Nations Special Commission (UNSCOM, later UNMOVIC) who
were to work with the International Atomic Energy Agency.124 But the use of force was
not clearly authorised by the Security Council for invasion of Iraq in 2003 in any of its
resolutions.
The United Nations can intervene in the domestic matters of a State if the situation is
serious enough to be a threat to international peace and security, and it has taken a
decision for enforcement action to restore international peace and security.123 The
dispatching of the United Nations forces in Congo (ONUC) to quell civil strife could be
justified only on this ground. The force was sent at the request of the Congolese
Government to help
____________________
120 The resolution was adopted by 12 votes to two (Cuba and Yemen) with one
abstention (China). This authorisation in the resolution was more in the nature of
“recommendation” than a “decision” for furnishing armed assistance, hence, strictly
speaking, this cannot be called an enforcement action but merely a voluntary and
collective action on the part of few States.
121 Twenty-nine countries contributed their forces, commanded by the US, though
there was no mention in the Res. 678, unlike Res. of July 7, 1950, in the Korean crisis.
122 Under SC Res. 689 of April 9, 1991, 1400 strong UN Iraq-Kuwait Observer
Mission (UNIKOM) along the Iraq-Kuwait border replaced the coalition forces.

123 SC Res. 688, April 3, 1991. See UN Doc. S/PV. 2982, for the criticism of the
resolution by States which either abstained - China and India, or voted against - Cuba,
Yamen and Zimbabwe.
124 See SC Res. 1441, Dec. 20, 2002. Earlier by Res. 1205 (1998), the Security
Council condemned the decision of Iraq to cooperate with the UNSCOM in violation of
Res. 687.
125 Cf. The Spanish Question, SCOR, 1st year, 1st series, 44th Meeting, pp. 317-319.

restore peace in that territory after civil war had broken out shortly after its independence
in 1960.126 After the Belgian troops were withdrawn, the United Nations force was
maintained there to prevent the recurrence of the civil strife. The primary responsibility
fell upon the Secretary-General to carry out the mandate of the Security Council.
Subsequently, the General Assembly, acting under the “Uniting for Peace” Resolution,
authorised the continuance of the action under the Security Council resolutions.127
Nevertheless, strictly speaking, the Congo case cannot be regarded as a very clear case of
the interpretation and application of the provisions of Chapter VII and the case has
remained controversial. Sending of the Multinational Forces (IFOR) to restore peace in
former Yugoslavia for implementing peace agreement concluded between Bosnia-
Herzegovina, Croatia and Federal Republic of Yugoslavia (Serbia and Montenegro), the
Security Council acted under Chapter VII to quell civil strife. It was the first time that the
Security Council decided to establish International Police Task Force (IPTF), a UN
civilian operation, under the terms of the peace agreement.128
The States are entitled to exercise their inherent right of individual and collective self-
defence so long as the Security Council does not act in the matter to maintain or restore
international peace and security (Art. 51). The regional arrangements or agencies like
NATO or erstwhile Warsaw Treaty Organisation can take enforcement action under the
authority of the Security Council (Art. 53).129 This was done by the NATO in December
1994, and then in August-September 1995, in bombing in Bosnia-Herzegovina, as also
the Multinational Force (IFOR) acted under the control and command of the NATO to
implement Security Council Res. 1031 (December 1995). But the aerial bombing of
Belgrade and other places in Federal Republic of Yugoslavia by NATO forces for 78
days in 1999 for the alleged ill-treatment of Albanian civilians in Kosovo did not have
the sanction of the Security Council.130
(d) United Nations peacekeeping operations

The United Nations Charter does not have any specific provision using the word peace
making or “peacekeeping” operations or measures. But the institution of peacekeeping
operations has evolved in the practice of the United Nations and its legality is well
accepted. These operations are the natural corollary of the Charter provisions on the
maintenance of international peace
_________________
126 See the resolutions of July 14, 22 and Aug. 9, (1960). The decision of the Security
Council in the Congo case was criticised by certain States as it amounted to intervention
in internal conflict, see Miller, 55 AJIL 1 (1961).
127 See GA Res. of Sept. 19, 1960. In the Bangladesh case in 1971, the USSR
abstained from voting in the Security Council referring the Bangladesh issue to the
General Assembly under the “Uniting for Peace” Res., SC Res. 303, Dec. 6, 1971. In the
Suez crisis, UK and France opposed the resolution for referring the matter to the General
Assembly under “Uniting for Peace” Res., See SC Res. of Oct. 31 and Nov. 4, 1956.
128 To give effect to the peace agreement (Dayton Peace Agreement), the Security
Council adopted 3 resolutions, no. 1021, 1022 and 1023 on Nov. 22, 1995.

129 After the fall of communism in Europe and termination of the Warsaw Treaty,
Russia has joined with the NATO nations forming the association of Partners for Peace in
Nov./Dec, 1994.
130 The NATO action was considered illegal by Russia, China and India; and the
draft resolution condemning the NATO action as in breach of Art. 2(4) on March 26,
1999 was defeated.

and security. Chapters VI and VII (Art. 40) of the Charter, together provide the legal
basis for such operations. At the initial stages, these operations were fraught with
controversy, and in the case of ONUC (Congo), the Soviet Union contended that only the
Security Council is empowered to send forces under Chapter VII of the Charter, and they
are violative of Arts. 11(2) and 12 of the Charter. However, in the Certain Expenses
case,131 their constitutionality was confirmed and they were found to be in accordance
with the purposes of the United Nations to maintain international peace and security.
They have been increasingly resorted by the United Nations in the recent years and the
members are required to contribute towards the peacekeeping operations. These
operations are also in addition to enforcement action and they are mainly anti-escalation
devices or policing competence of the United Nations. They are carried out mainly where
the tensions are running high in a particular region or where the law and order situation
has broken down in the State, for example, the UN Protection Force in Bosnia-
Herzegovina to protect the civilian population (UNPROFOR).132
The first peacekeeping force was UN Emergency Force (UNEF), established by the
General Assembly in 1956, under the Uniting for Peace Resolution to supervise the cease
fire in the Middle-East after the Suez crisis, followed by ONUC in 1960, for Congo (both
these now stand disbanded). Since then such forces have been deployed in 45 cases in
many troubled areas at different times. Notable among them are: UN Good Offices
Mission in Afghanistan and Pakistan (UNGOMAP); UN Transition Assistance Group
(UNTAG) - supervised the cease fire on the Namibian border and helped in holding free
and fair elections in Namibia after independence in April 1990; UN Angola Verification
Mission (UNAVEM); United Nations Operation in Mozambique (UNOMOZ); UN
Advance Mission in Cambodia (UNTAC); United Nations Observer Group in Central
America (UNUCA); the UN Military Observer Group in India and Pakistan (Kashmir -
UNMOGTP); and United Nations Observer Mission in El Salvador (ONUSAL). At
present, there are 15 UN peacekeeping operations deployed on four continents. These
include 14 peacekeeping operations, and one special political mission in Afghanistan.
These are all led by the UN Department of Peacekeeping Operations (DPKO).133
The role of the United Nations forces in these conflict situations has been mainly to
monitor the implementation of agreements, whether cease fires or armistices. But in
recent years, the United Nations peacekeeping operations in many cases are clubbed with
enforcement and humanitarian action, as in Durfur- United Nations/African Union
Mission in Durfur (UNAMID); Congo - United Nations Organisation Stabilisation
Mission in the Democratic Republic of the Congo (MONUSCO); Ivory Coast - United
Nations Operation in Cote d’Ivoire (UNOCI); Sudan - United Nations Mission in the
Sudan (UNMIS). Earlier on similar grounds, forces were sent
_________________
131 See op. cit. 62, at p. 151.
132 The UNPROFOR was withdrawn on Dec. 20, 1995, and in its place NATO-led
IFOR took charge to implement the Bosnian Peace Agreement, replaced by the UN
Mission in Bosnia and Herzegovina (UNMIBH). The NATO-led mission in Bosnia and
Herzegovina has since been replaced by a European Union peacekeeping mission,
EUFOR. Since 1999, the UN Interim Administration Mission in Kosovo (UNMIK) is

there. In a similar manner, a NATO operation (KFOR) continues in the former Serbian
province of Kosovo.
133 For the complete list of the UN peacekeeping operations, see en.wikipedia.org/.../List
of United Nations peacekeeping missions.

to Somalia, Rwanda and Bosnia. In Somalia and Rwanda, the peacekeeping operations
were not a success story and the forces were withdrawn from Somalia in March 1993.
Most of peacekeeping forces deployed after the Cold War are involved in civil wars
within States rather than between States. This has extended the role of these forces
beyond traditional peacekeeping into comprehensive efforts at reconstruction,
rehabilitation and recreation of effective government, like that in Mozambique and
Haiti.134 In Cambodia, the task was to supervise the restoration of democracy, by
ensuring the fulfilment of an accord among the major parties against the efforts of one of
the parties, the Khmer Rouge to undermine it, and to help in holding elections under the
supervision of the United Nations. These forces were also involved in protecting the
relief supplies from the rival factions in the conflict-torn areas from the warring parties,
as was done in Bosnia-Herzegovina (UNPROFOR), Somalia and Rwanda. The
UNPROFOR had teamed up with the UN High Commission for Refugees (UNHCR) to
deliver humanitarian supplies in Bosnia-Herzegovina. The peacekeeping forces, called by
various names, such as the Truce Supervision Organisation, Military Observer Group,
Disengagement Observer Force, or the more commonly, the “UN Forces”, are engaged in
monitoring cease fires, border patrolling, troop disengagement supervision, maintenance
of internal security and essential governmental functions.135
The peacekeeping operations are essentially consensual in nature and no peacekeeping
forces can be stationed in the territory of a State without its consent. For example, the
UNEF operated only on Egyptian soil and was refused entry in Israel. The forces were
withdrawn from the Egyptian soil when Egypt subsequently withdrew its consent prior to
the six-day war in 1967.136 In this way peacekeeping is different from enforcement
action in which consent of the party is not necessarily required.137 However, the
Security Council may station such forces compulsorily in the territory of a State under the
enforcement action as was done with UNIKOM to monitor the line of Iraq-Kuwait border
by replacing coalition forces, under the Security Council Res. 689 of April 9, 1991.138
The peacekeeping forces are composed of military contingents of armed troops
voluntarily made available by member States and acting under the United Nations
command.139 These forces are required to remain neutral and to avoid any action that
may affect the claims of the opposing
_________________
134 The elections on the multi-party basis were held under the supervision of UN
Operation in Mozambique (ONUMOZ) in Nov. 1994 and the UN forces were withdrawn
by Jan. 31, 1995. In Haiti, UNMIH (UN Mission in Haiti) took over from the
Multinational Force in March 1995. Under the supervision of UNMIH, legislative
elections were held in July 1995 and Presidential elections on Dec. 17, 1995,
135 See L.L. Fabian, Soldiers without Enemies, Preparing the UN for Peacekeeping
(Brookings Institution, Washington D.C.) 1971, p. 17; Christine Gray, International law
and the Use of Force (Oxford University Press) 2000, pp. 150-175.
136 The UNEF was re-established by the Security Council in 1973, to supervise the
ceasefire after the Yom Kippur war in October 1973; it ceased to exist in 1979 after its
mandate came to an end.

137 The UN Secretary-General has also highlighted the consensual nature of these
forces. He stated that no peacekeeping operation “could function or even exist without
the continuing consent and cooperation of the host country”, see UN Doc. S/7906, May
26, 1967.
138 See UN Doc.S/2254, April 5, 1991, Report of the Secretary-General.
139 As of March 2008, 113 countries were contributing a total 88,862 military
observers, police, and troops.

parties.140 They may use their arms in self-defence and not beyond that.141 However,
the financing of these forces and their procurement have remained troublesome aspects so
far, and many nations stand defaulters on this account towards the budget of the United
Nations.
The United Nations Secretary-General Boutras Boutras-Ghali in his Agenda for Peace of
June 1992, proposed certain measures on the procurement of these forces. He advocated
for the national contingent of armed forces of each member nation, which should be left
at the disposal of the United Nations in its efforts of maintaining international peace and
security and their services can be utilised in the troubled areas of the world (as Standby
Forces). In a related development, a stand-by-arrangement has been initiated in 1993. The
Security Council discussed a report142 from the Secretary-General, concerning the
possible contribution of the stand-by- arrangements to United Nations Peacekeeping
operations. Under a stand-by-arrangement, a member State identifies certain resources,
such as military units, individual, civilian and military personnel (police or military
observers), specialised services, and equipment for possible use in the United Nations
Peace- Keeping operations. The United Nations can call upon these national resources in
support of its peacekeeping operations. The Security Council has expressed strong
support for stand-by-arrangements on peacekeeping.143 With the feasibility of the stand-
by- arrangements, the Security Council will be able to act in a decisive manner. The
utility of such arrangements, however, is doubtful when the Security Council has taken
action under Art. 42.
The peacekeeping operations have also given rise to a related problem of protection of
the peacekeepers that are often attacked and killed in discharging their functions.144
They are sometimes subjected to certain “terrorist” acts, such as taking them hostages and
using them as human shields, for example, in Bosnia-Herzegovina by Serbs, or detaining
them as was done
_________________
140 The French decision to send armed forces to Rwanda to stop the civilian killings
after the civil war broke there in June 1994, was considered to be a partial act by the
warring factions. The Russian representative at the time of the adoption of Res. 1004 of
July 12, 1995, on Bosnia-Herzegovina stated that UN forces should not undertake actions
which would make them party to the conflict, see UN Newsletter (July 22, 1995), vol. 50,
No. 29, p. 1. Recently, France sent the armed forces in Ivory Coast to stop the civilian
killing and to help the elected President.
141 The ONUC’s involvement in clearing the road-blocks in Katanga region in Congo
was criticised as amounting to military enforcement measure, which was beyond the
scope of “peacekeeping” and “policy” measures for which the forces were sent under the
Security Council resolutions. However, the IFOR (for Bosnia-Herzegovina) had been
authorised to take all necessary measures to defend itself from attack or threat of attack,
see SC Res. 1031, Dec. 1995.
142 Doc. S/1995/843, Nov. 10, 1995. The Report noted the confirmed commitment of
47 members to provide stand-by resources, totalling 55,000 personnel, with equipment
and logistic support. By March 2008, 113 nations are providing peacekeepers to the UN
on the basis of negotiated terms of their participation.

143 Stand-by arrangements are voluntary, and they do not constitute an automatic
obligation upon the participating member State to contribute. The Security Council met
on Dec. 20, 1995, to examine the issue of consultations between itself and troop-
contributing countries, so as to improve the efficiency and effectiveness of the
peacekeeping operations of the UN, see UN Newsletter, vol. 50 (No. 52, Dec. 30, 1995),
p. 3.
144 Up to April 2008, 2,468 people from over 100 countries have been killed while
serving on peacekeeping missions. Many of those came from India (127), Canada (114)
and Ghana (113). Thirty percent of the fatalities in the first 55 years of UN peacekeeping
occurred in the years 1993-1995.

in Somalia of US Officer Durant. The United Nations General Assembly, on December 9,

1994, adopted the Convention on the Safety of United Nations and Associated Personnel
(Res. 49/59), for the protection of peacekeepers and other persons associated with the
operations under the United Nations mandate. The Convention has yet to come into force.
The peacekeeping operations have also been undertaken outside the aegis of the United
Nations in those cases, where direct UN involvement is not considered appropriate or
feasible; the Security Council authorizes regional organisations such as the NATO, the
Economic Community of West African States or coalitions of willing countries to
implement certain peacekeeping or peace enforcement functions, like the Indian
Peacekeeping Force to help maintain peace in Sri Lanka in 1987 and later in Maldives. In
Sinai and Beirut in 1982-83, the Sinai Multinational Force and Observers (MFOs) were
stationed as a part of Camp David Pact (Middle- East Peace Treaty) of 1979, comprised
of armed units from many countries beside the United States. In 1983, MFOs were
created for Beirut. The stationing of these forces manifests the weakness of the Security
Council to discharge its “primary” responsibility of maintaining international peace and
security, but at the same time, it indicates more reliance on preventive diplomacy in
international relations.
3. The Economic and Social Council

The ECOSOC is one of the most active and important organ of the United Nations
responsible for economic and social matters. It is composed of 54 members, elected by
the General Assembly, in a phased manner (Art. 61).145 Each member has one vote and
decisions of the Council are made by a simple majority of the members present and
voting (Art. 67). Any member of the United Nations can participate, without vote, in its
deliberations on any matter of particular concern to that Member (Art. 69). The
representatives of specialised agencies may similarly be represented in its meetings (Art.
70). The Council may make suitable arrangements for “consultation”, as opposed to
“representation” for specialised agencies, with non- governmental organisations (NGOs)
concerned with matters within the Council’s competence (Art. 71).146
(a) Functions and Powers

Though a principal organ of the United Nations, the ECOSOC operates under the
authority of the General Assembly (Art. 60), and it discharges all those functions enlisted
in Chapter IX (Arts. 55-60) of the Charter. It works in furtherance of the United Nations
aims of promoting economic and social progress and development, better standards of
human welfare, and universal respect for and observance of human rights and
fundamental freedoms (Art. 55). The ECOSOC
_________________
145 The ECOSOC’s original membership of 27 was doubled by Res. 2847 (xxvi) in
1963, which is distributed among Africa: 14, Asia: 11, Latin America: 10, Western
Europe and others: 13, and Eastern Europe: 6.
146 The “consultative status” has been granted to organizations with a basic interest in
all the activities of the Council (category A), and those with special competence in some
aspects of the Council’s work (category B), or those by means of ad hoc consultation

make significant contribution in the working of the Council (“The Register” category).
The Council of Europe has adopted a Convention in 1986 on the Recognition of the
Legal Personality of International Non-Governmental Organisations.

enters into agreements with specialised agencies, established by inter-governmental

agreements, having responsibilities and engaged in economic, social, cultural,
educational, health and related fields, and bring them into relationship with the United
Nations, and coordinate their activities (Arts. 57 and 63). The ECOSOC thus functions as
a conduit between the specialised agencies and the Organisation which shall make
“recommendations for the coordination of the policies and activities of the specialised
agencies” (Art. 58).
The ECOSOC only has “recommendatory” power and does not enjoy any “executive”
power. Its functions and powers are enlisted in Art. 62. Accordingly, it has the power to
make or initiate studies and reports with respect to economic, social, cultural,
educational, health, and related matters and may make recommendations in this regard to
the General-Assembly - where its action is required in budgetary matters; to the United
Nations members - where legislative action is required to give effect to the Council’s
resolutions; and to the concerned specialised agencies. As much of the work related to
these matters falls within the purview of the specialised agencies, the Council’s job is
mainly confined to coordination of their activities and avoiding any duplication in their
job (Art. 63). In the field of human rights, it may make recommendations for the purpose
of promoting respect for and observance of human rights and fundamental freedoms for
all. It receives reports from the specialised agencies on the steps taken to give effect to its
recommendations, and communicate these reports with its observations to the General
Assembly (Art. 64).
The Council may prepare draft conventions for submission to the General Assembly
which adopts them and opens them for signature by States, viz., the Convention on the
Prevention and Punishment of the Crime of Genocide was so adopted. It is also
empowered to convene international conferences on matters falling within its
competence. The international conferences need not solely be conferences of States, and
may be non-governmental in character as well.
The ECOSOC may furnish any information to the Security Council and assists the
Security Council upon its request (Art. 65). It also performs such other functions that fall
within its competence and those assigned to it by the General Assembly. With the
approval of the General Assembly, it assists the members of the United Nations and
specialised agencies (Art. 66). It has played a pivotal role in providing technical
assistance to developing countries, which was initially carried out by the ECOSOC
independently but since 1965, it is carried out by the UNDP.147
To execute its functions and to create better coordination among specialised agencies, it
is authorised to create any number of commissions (Art. 68). In the economic field, it has
created five regional commissions, viz., the Economic Commission for Europe (ECE) for
Africa (ECA), for Latin America (ECLA), Economic and Social Commission for Asia
and the Pacific (ESCAP, earlier it was ECAFE—Economic Commission for Asia and Far
East), and Economic and Social Commission for Western Asia (ESCWA, replacing
ECWA—Economic Commission for Western Asia). In these commissions, even the non-
members are associated with their work. In the social and human rights fields, the
Council has created a number of “functional” commissions,148 such as the commissions
on human rights, for social development, population,

_________________
147 See GA Res. 2029 (XX) of 1965.
148 See Bowett, op. cit. 1, p. 64 et seq.

narcotic drugs, status of women, and the Statistical Commission comprising of

independent experts. It also has created certain other bodies, like the Office of the UN
High Commission for Refugees (UNHCR), UN Industrial Training and Research
(UNITAR), UNICEF, and Drug Supervisory Body, etc. However, the dissatisfaction with
the Council’s activities led to the creation of UNCTAD and UNIDO (UN Industrial
Development Organisation) - the autonomous bodies directly responsible to the General
Assembly. But in pursuance of the General Assembly’s insistence on decentralisation of
the economic and social activities, and to streamline the Council’s work, the regional
commissions have assumed increasing importance to foster regional cooperation in recent
years.
(b) Coordination of the Work of Specialised Agencies

The Council’s main task is related to the coordination of the work of the specialised
agencies (Art. 63(2)). The United Nations, through its organs - the General Assembly, the
Security Council, or the ECOSOC, makes recommendations for the coordination of the
policies and activities of the specialised agencies (Art. 58), and seeks regular reports from
these agencies to ensure the execution of those recommendations ( Art. 64). In fact, the
ECOSOC is an executive arm of the United Nations to scrutinise the activities of these
agencies and to create an organic unity and avoid duplication in their functions.
The specialised agencies are brought into relationship with the United Nations through
agreements. These agreements have to be approved by the General Assembly (Art.
63(1)). A Special Committee entrusted with this task is known as the Committee on
Negotiations with Inter-Governmental Agencies which, at the instructions of the Council,
negotiate with the intergovernmental organisations. At present, such agreements exist
with ITU, UPU (Universal Postal Union), ILO, FAO, IMF, IBRD, IFC (International
Finance Corporation), UNESCO, ICAO, WHO, WMO (World Meteorological
Organisation) and the IMO (International Maritime Organisation, replacing the earlier
Inter-governmental Maritime Consultative Organisation—IMCO).149 These agreements
between the ECOSOC and the specialised agencies have some common features, viz., to
send regular (or annual) reports to the Council, and to assist the General Assembly or the
Security Council. There may also be clauses to establish associate regional offices with
the United Nations.
As a measure of coordination, there is a provision for reciprocal representation between
the ECOSOC, its subsidiary organs, and the specialised agencies at each other’s meetings
without a right to vote (Art. 70).150 They are also empowered to propose and place
agenda items on a reciprocal basis at each others meetings. There is also reciprocal
exchange of information and documents. The specialised agencies may also attend and
participate in the subsidiary bodies, main committees of the General Assembly and the
United Nations conferences. But in the matter of Fund (IMF), World Bank and Finance
Corporation, there exists less reciprocity and in their
_________________
149 Except the UPU, all other specialised agencies have been authorised by the
General Assembly under Art. 96(2) to request advisory opinions of the ICJ on legal
questions arising within the scope of their activities.

150 Such provisions also exist with certain regional organisations such as with the
OAS (its Charter) and the EU (Art. 238 of the Treaty of Rome).

loan and financing policy, the General Assembly or the ECOSOC has to respect their
autonomy and these agencies can only give “due consideration” to their proposals.
In furtherance of coordination, a “single unified international civil service”, with similar
terms of service and recruitment policies, has been strived, and specialised agencies agree
to develop “common personnel standards”. There is a fair uniformity in staff rules and
regulations, and various secretariats of these agencies either follow the UN
Administrative Tribunal or the ILO Administrative Tribunal for the settlement of
conflicts in service matters. There is a UN Joint Staff Pension Fund, wherein several
agencies participate. There also exists the International Civil Service Advisory Board
which advises the Administrative Committee on Coordination (ACC).
The ACC consists of the UN Secretary-General, the administrative heads of specialised
agencies, and the Director-General of the IAEA in pursuance of Art. XI of the Agreement
with the IAEA. The ACC, directly or through its sub-committees, reviews the work of
various organisations in order to avoid duplication and set priorities. It is assisted by the
Organisational Committee and inter-agency consultative committees - Consultative
Committee on Administrative Questions, and on Substantive Questions. The Director-
General for Development and International Economic Cooperation and the administrative
heads of various programmes under the United Nations also participate in the ACC
meetings. The ECOSOC has its own Committee for Programme and Coordination to
overview the activities of the United Nations in the economic, social, human rights and
development fields.151 It holds joint meetings with ACC and the Advisory Committee
on Administrative and Budgetary Questions. The budget of the specialised agencies is
considered by the Council’s Advisory Committee on Administrative and Budgetary
Questions, and the agencies attention is drawn to the comments made there and in the
Fifth Committee (Administrative and Budgetary Committee) of the General Assembly.
Once the budget is approved by the policy-making body of the Organisation, the total
amount is apportioned among the member States in shares determined by the policy-
making body.
The coordination of the work with and between the specialised agencies, however, has
not been found very satisfactory, and the ECOSOC has been criticised by developing
countries for doing too little and remaining a forum for discussion only without any
substantive results. The developed countries criticise it for diversifying its activities too
greatly with duplication, seeking wrong priorities and not proper budgeting. There is a
serious problem of coordination and budgeting. On December 19, 1986, the United
Nations General Assembly adopted a resolution to give effect to the recommendations
made in the 1986 Report of the Group of High-Level Inter-governmental Experts to
Review the Efficiency of the Administrative and Financial Functioning of the United
Nations. According to the resolution, the ECOSOC assisted by other bodies, particularly
the Committee for Programme and Coordination, has to strive for better coordination
after an in-depth study of inter-governmental structure in the economic and social fields
by avoiding duplication, through streamlining and reducing overlapping.
On the other hand, there has been a general practice of cooperation among the specialised
agencies in their common fields of activity, and inter-agency consultation is often held,
for example,

_________________
151 The Committee was established in Aug. 1962 as the Committee on Coordination,
with an original membership of 16, later increased to 21, and after 1988, its membership
has been raised to 34, elected for three years. The geographical distribution of
membership is as follows: Africa—9, Asia—7, Latin America and Caribbean States—7,
Eastern Europe—4, and Western Europe and others—7.

on the technical assistance, all the agencies are represented on the Inter-agency
Consultative Board of the UNDP. They have also adopted rules providing for prior
consultation before taking action in matters of their common concern. The coordination is
sought at the national level as well. The member-nations to these agencies have to ensure
that their efforts in each organisation are co-ordinated to achieve the goals of those
organisations.152
4. The Trusteeship Council

The United Nations trusteeship system and the Council are discussed in Chapter 4 above.
5. The International Court of Justice

A detailed treatment of the ICJ has been done in Chapter 16.
6. The Secretariat
The Secretariat of the United Nations consists of the administrative staff of the United
Nations, headed by the Secretary-General who is appointed by the General Assembly
upon the recommendation of the Security Council (Art. 97). The Secretary-General as the
chief administrative officer of the United Nations acts in that capacity in all the meetings
of the Security Council, the General Assembly, the ECOSOC and the Trusteeship
Council, and performs all other functions entrusted to him by these organs. For example,
he has often been entrusted by the Security Council and the General Assembly to bring
peace in troubled regions by holding negotiations with the warring factions, like in
Afghanistan, or to execute the decisions of these bodies, like in Bosnia-Herzegovina,153
or in the Kuwait case, before the coalition forces launched air attacks against Iraq in
January 1991. The Secretary-General is required to make an annual report to the General
Assembly on the work of the Organisation (Art. 98). He may also bring to the attention of
the Security Council any matter which in his opinion threatens the international peace
and security (Art. 99).
The international character of the Secretariat has been specifically safeguarded by Arts.
100-101 of the Charter. The officials are responsible only to the Organisation and the
corresponding duty is imposed on States to respect their international character. The Staff
Regulations have further strengthened their international status, which provide rules for
their appointment, recruitment and conditions of service. But whether the officials of the
United Nations are liable to “loyalty” investigations by the country of their nationality for
their anti-national or subversive activities, has remained a thorny issue. The Special
Commission of Jurists established by the Secretary-General, in November 1952
concluded that failure to testify amounts to “serious misconduct” and a “fundamental
breach” of the contractual obligations of the personnel, who should abide by the laws of
their country, particularly if the headquarters of the organisation are situated in that
country (as it happened in this case, the US national in the US charged
_________________
152 See the GA Res. of Nov. 20, 1947.

153 See SC Resolutions 1021, 1022 and 1023 of Nov. 22, 1995, on Bosnia-
Herzegovina; see also UN Newsletter, vol. 52 (No. 40, Oct. 4, 1997), p. 7 on
Afghanistan.

with subversive activities directed against the US government), making them liable to
dismissal.154 However, it is doubtful whether they are liable to dismissal on the grounds
of privilege. On the other hand, the UN Administrative Tribunal opined that summary
dismissal as against other disciplinary measures is not permissible.155 The
Administrative Tribunal of the ILO has similarly held in number of cases that the refusal
to answer loyalty interrogation is not a sufficient ground for declining to renew the
appointment of the officials.156 Thus, in the absence of clear conventional rules, the
matter is confusing.157
IV. SPECIALISED AGENCIES AND THE ILO

As stated above, the various “specialised agencies” constituted through inter-
governmental agreements are brought into relationship with the United Nations. These
agencies have specific objects towards which their activities are directed. Thus, the
IBRD, IFC, IDA and IMF are engaged in the economic development and reconstruction
of the territories, consultation and collaboration in the monetary matters. The FAO is
concerned with the improving of the living standards and the nutrition of peoples. The
developments in the areas of education, culture and science are the domain of the
UNESCO. Public health of the people is the concern of the WHO. The agencies like
UPU, IMO, ITU, WIPO, ICAO, WMO, UNIDO and the like perform different varieties
of functions as indicated in their titles, and their powers are limited by their constitutions.
Their plenary organ, where all the members are represented, usually consists of members
States elected according to a set procedure. The voting pattern of the United Nations, i.e.,
each member has one vote, is normally followed except in financial institutions where
weighted voting is observed, which is based on the member’s contribution towards the
organisation’s capital.
Apart from specialised agencies, there are also some other inter-governmental
organisations which have been brought into special working relationship with the United
Nations and its specialised agencies active in their areas of operation, viz., the IAEA
which has entered into special agreements with specialised agencies having particular
interest in atomic energy, and the GATT (now replaced by World Trade Organisation)
which was working in close liaison with the UNCTAD, a subsidiary organ of the United
Nations.158
The ILO
Among the specialised agencies of the United Nations, the ILO has its unique pattern of
membership, voting and binding nature of its instruments, because of its history. The
ILO, created as a part of the Treaty of Versailles 1919 (Part XIII), but founded as an
independent body, linked to the League to some extent, i.e., all members-of the League
were automatically members of
_________________
154 The Secretary-General acting on this opinion, dismissed those employees, see UN
Bulletin (1952), vol. 13, pp. 601-603. .

155 See Harris v. Secretary General of the UN (1953), judgments of the UN Adm.
Tribunal No. 29-38, AT/Dec/29-38. The Secretary-General was asked to reinstate those
employees or pay damages, he did the latter.
156 NESCO-Duberg’s case (1955), see Advisory Opinion of the ICJ in (1956) ICJ
Rep., p. 77.
157 See Bowett, op. cit. 1, pp. 88-90.
158 Starke termed such organs as “related agencies”, see Starke, op. cit. 2, p. 661.

the ILO, though non-members of the League could also become its members. To bring it
within the fold of the United Nations, its constitution was amended in 1945 and 1946,
thereby making it a specialised agency. But a member of the United Nations is not
automatically a member of the ILO, though it is entitled to become a member by
acceding to its constitution unconditionally. Non-members of the United Nations can be
admitted to membership by two-thirds votes of the ILO members.
The principal aim of the ILO is the improvement of conditions of labour, and to achieve
minimum as well as uniform labour standards throughout the world. It strives to achieve
higher standards of living and social justice through the regulation of working hours,
labour supply and prevention of unemployment, protection of workers against sickness
and industrial injury, equal pay for equal work, by recognising workers’ right of
association, providing facilities for vocational and technical training, and transfer of
labour. It is increasingly indulging in imparting expert advice and technical assistance to
States in human resource development, productivity and management, beside in
education and development to improve the working environment, occupational health and
safety, social security and workers’ education.
Because the ILO aims at promoting the interests of a part of the population within a State,
rather than the State as such, it has a unique constitution of its plenary and other organs,
which consists the representatives not only of governments but of employers and
employees. The ILO consists of a General Conference, the Governing Body, and the
International Labour Office.
The General Conference, which meets at least once a year, is composed of four members
from each member State, two being government delegates and two non-governmental
delegates representing employers and work-people (employees) of that member State
(Art. 3) who are also designated by the government. But these two non-governmental
delegates must be chosen in agreement with the industrial organisations, most
representatives of employers and workpeople in the country. The non-governmental
delegates have equal rights with the governmental delegates. The delegates speak and
vote independently. This aspect is of great significance, which cut across the national
boundaries and forges alignment on the basis of common interests of groups. Decisions
are taken by two-thirds majority. Decisions of the Conference are in the form of
Conventions, or Recommendations for national legislation by a State. However, States
are not bound to give effect to a Recommendation (also termed as “standard-defining
instrument”159) or ratify a Convention, but they must bring them before their competent
national legislative body for its ratification, legislation or otherwise (Art. 19 of the ILO
Constitution). If ratified, necessary steps must be taken to give effect to its provisions.
Reservations to the conventions are inadmissible as violative of the rights of the non-
governmental members of the Conference.
Member-states are also bound to make annual reports on the measures taken by them to
give effect to the conventions ratified by them. The associations of employers and
workpeople can make representations to the International Labour Office for State’s
failure to comply with the convention. The Governing Body of the ILO may invite the
reply of the State on such a representation and may publish the representation and the

reply, if any. Complaint can also be made by another State, and that will be looked into
by the Commission of Inquiry,
_________________
159 Ibid, p. 659.

the State affected by its report may appeal to the ICJ whose decision in the matter will be
binding.160
The Governing Body of the ILO, like the General Conference, also has a tripartite
character. Its total membership of 56 consists of 28 government representative, 14
employers’ representatives and 14 of the work-people. It is the executive organ of the
Organisation, which meets several times a year. Its main functions are related to the
general supervision of the International Labour Office, formulation of policies and
programmes, the setting the agenda for meetings of the Conference, drafting budget
proposals for the Organisation, appointment of the Director-General, supervision of the
work of various committees and commissions, and also to look into the representations
received against a State for the non-compliance with a convention. Decisions are taken by
simple majority by the representatives on the governing body, except when the
constitution requires a two-thirds majority.
The International Labour Office is the secretariat of the Organisation, representing the
civil service or administrative staff and performs the functions similar to those the United
Nations secretariat.
_________________
160 In Feb. 1962, the Governing Body of the ILO appointed the first Commission of
Inquiry on the complaint of Ghana against Portugal for the alleged violation of the
provisions of the Convention Concerning the Abolition of Forced Labour, 1957, in the
Portuguese African territories. Synilar inquiries were also conducted against Liberia,
Poland and FRG.

Page 606

Page 607
Index
A
Accession, to a treaty (see Treaties)
Accretion
mode of acquiring state territory, 137-138
Acquisition
State territory, modes of, 133 et seq.
territory in polar regions, 143
Antarctic region (South Pole), 143-145
Arctic region (North Pole), 143 Act of State
acts jure gestionis, 185-187
acts jure imperii, 185-187
Adoption of a treaty (see Treaties)
Afghanistan, recognition of government, 118
African Charter on Human and Peoples’ Rights, 276
Commission on human rights and peoples’ rights, 276
Aggression (see also Use of Force)
act of aggression, determination under the Charter, 588
definition, 494-496
General Assembly, resolution of, 494
Agreement on the Rescue of Astronauts, 158, 161
Aircraft, hijacking of, and India, 202-203
Hague Convention on unlawful seizure of, 199
jurisdiction over, 196 et seq.
Montreal Convention, 199-201
Protocol to Montreal Convention, 201
Airspace
aerial instrusion, 154 et seq.
civil aircraft, 154-156
military aircraft, 156-157
U-2 Incident, 157
bilateral agreements, 153-154
Bermuda Agreement, 153
Chicago Convention, 149, 152 et seq.
five freedoms of, 151
freedom of innocent passage, 149-150
Guatemala Protocol, 150
IATA, 154
Paris Convention, 149-150
Rome Convention, 150
scheduled international air services, 152-153
sovereignty in, 149 et seq.
Warsaw Convention, 150

Hague Protocol, 150

American Convention on Human Rights, 274
American Court on Human Rights, 274
Inter-American Commission on Human Rights, 274
Annexation
mode of, 139 et seq.
non-recognition, doctrine of, 139
Antarctica
Antarctica Treaty, 143-145
Convention for the Conservation of Antarctica Marine Living Resources, 144
Convention for the Conservation of Antarctica Seals, 144
Convention on the Regulation of Antarctica Mineral Resources Activities, 144
sector principle and territorial claims, 143-145
Arbitration
and judicial settlement, 458-459
compromis, 455-456
definition and meaning of, 453-454
finality of arbitral verdict, 456-457
international arbitration, development of, 454
Hague convention on, 457
jurisdiction and procedure of arbitral tribunals, 456
Permanent Court of Arbitration, 455-456
Archipelagic
States, 390
territorial sea of, 390

Page 608 INDEX
waters, 391
Asylum, 247 et seq.
diplomatic, 248-251
extra-territorial, 248
meaning of, 247
Montevideo Convention on Political, 250
in the premises of international institutions, 251
on warships, 251-252
right of, 252-253
territorial, 248
B
Baltic Republics, recognition of, 108
Bangladesh
claim over New Moore Island, 136
Farakka Barrage dispute, 169-170
Indian-intervention in East Pakistan, 487
lease of “Teen Bigha” to, 138-139
principle of self-determination, and, 85
recognition of, 111
Bantustans, non-recognition, 84-85
Baselines (see Territorial sea)
Bays (see also Sea) historic title, 166
maritime belt of, 389-390
Belligerency
duties of belligerents, 544
rights of belligerents, 545
jus angariae, 545
right to visit and search, 545
Blockade aim of, 549
end of, 551
essentials of, 549
continuous maintenance, 551
declaration and notification, 550
effectiveness, 550
impartiality, 550
long distance, 552
navicerts, 553
pacific, 483
ship warrants, 553
strategic and commercial, 550
Bricker Amendment, 69
Britain

customary international law in, 62-65

recognition, practice on, 120-122, 127-128
treaty practice, 65-67
C
Cabotage, 152
Canals, 147-148
Cession, 138-139
Charter of Economic Rights and Duties of States, 21
new States and, 21
Chernobyl Incident, 163
Convention on Assistance in the .case of a Nuclear Accident, 163
Convention on Early Notification of a Nuclear Accident, 163
Convention on Nuclear Safety, 163
nuclear safety and environment,337-338
Civil War
Congo, 593-594
Former Yugoslavia, 594
intervention by invitation, 487
treatment of civilians in, 529-530
Vietnam, 488
Conciliation (see also Dispute Settlement), 451
Conflict of Laws (see Private International Law) Congo
civil strife, 593
legality under the Charter, 595
UN forces (ONUC), 594
Consular Relations, 221
Vienna Convention Consuls, 221
Privileges and immunities, 222-223
Contiguous Zone (see Sea)
Continental Shelf (see also Sea)
concept and definition, 403-404
Convention, Geneva, 384
Convention, Law of the Sea, 385
delimitation of, 405 et seq.
equidistance/special circumstance rule, 406
equitable principles, 406-407
delineation of, 404 et seq.
Exclusive Economic Zone, 410
rights of the coastal State, 405
Truman Proclamation, 402
Contraband absolute, 546
conditional or relative, 546
confiscation and condemnation of, 548
destination, 547

continuous transportation, 547

Page 609 INDEX
continuous voyage, 547-548

London Declaration, 546
meaning of, 546
nevicerts, 553
prize courts role, 548
ship warrants, 553
Conventions (see Treaties)
Convention on the Law of the Sea (see Sea)
Covenant on Civil and Political Rights, 258
Covenant on Economic, Social and Cultural Rights, 258
Custom
a source of international law, 27 et seq.
essentials of,
opinio juris sive necessitatis, 27
Practice of international organisations, 32-33
role of opinio juris, 34
State practice, 28 et seq.
usage, 27
Customary International Law, 62
before municipal courts Britain, 62
European States 70-71
India, 61 Russia 71-72 U.S., 67
environment, 312-316
human rights, 254
D
Declaration on the Granting of Independence to Colonial Territories and Peoples, 87
Decolonisation Committee, 87
East Timor, 91
Gibralter, 138
Diplomatic Agents
classification and precedence, 206
jurisdictional immunity, 212
prevention and punishment of crimes against internationally protected persons,
convention, 205
persona non grata,220
rights and privileges,
immunity and third States, 218-219
immunity from taxes, 215
personal inviolability, 211-212
rationale of, 207
termination of immunities, 188
Diplomatic Relations (see also Diplomatic Agents) Congress of Vienna, 204
Vienna Convention, 204

accredition of heads of mission, 206-207

administrative, technical staff of the mission, 216-217
duration of immunity, 217-218
effects of outbreak of war, 503
functions of a diplomatic mission, 205
termination of the mission, 220-221
waiver of immunity, 219-220
Disputes (settlement of), 447 et seq.
amicable means of settlement, 448 et seq.
arbitration (see Arbitration)
Bryan arbitration treaties, 452
compulsive or coercive means, 479 et seq.
diplomatic means
conciliation and enquiry, 451
good offices and mediation, 450
negotiation, 449
Dogger Bank case, 452
fact finding commission, 452-453
permanent commissions of inquiry, 452
meaning, 447-448
judicial settlement (see International Court of
Justice), 458 et seq.
arbitration,
ex aequo et bono, 448, 459
legal and political disputes, 447-448 Manila Declaration, 449 United Nations role
General Assembly, 447 et seq
Security Council, 447 et seq
Domicile
basis of nationality, 232
naturalisation, requirement of, 232-233
E
Economic and Social Council Law-making function, 599
membership, 598
functions and powers, 598
specialised agencies, coordination among, 600-602
Economic Warefare, 545 et seq.
blockade (see Blockade) contraband (see Contraband)

Page 610 INDEX
Environment
“Agenda 21”, 332-333
Convention on Biological Diversity, 331
Conventions for protection, 315-317
Earth Summit, 327
Earth watch, 319
ENMOD Convention, 524
Environment and development, conference (Rio de Janerio), 327 et seq.
Framework Convention (Climate Convention), 328 et seq.
Kyoto Protocol 329 et. seq.
GEMS, 321
general principles of international law, 312
sic utere tuo ut alienum non laedas, 313
Habitat conference, 322
INFOTERRA, 321
Institutional and financial arrangements, 320- 321
Nairobi Declaration, 324
nuclear weapons, effect on, 519-520
Ozone layer, convention and protocol. 326
Stockholm Conference, 317
Action plan on, 319
Declaration on, 318
UNEP, role of, 321
World Commission on Environment and Development (Brundtland Report), 325-326
European Human Rights Convention, 268
Commission, 268-270
Court, 271-274
European Union
international organisation, as a, 554
regional law of, 3
treaty-making power, 559
Exclusive Economic Zone (see also Sea) concept, 398
coastal State, rights, 399
delimitation of, 401
exclusive fishing zone,
concept of, 399
geographically disadvantaged State, rights in, 400
Indian position, 401-402
land-locked States, rights in, 401
Expropriation
attitude of new nations, 19
Extradition, 239 et seq.
definition and basis, 239-240
expulsion, and, 240-241

procedure and law

extraditable crime, 242
extraditable person, 241
political offenders, 242-244
principle of speciality, 245
rendition distinguished, 240
F
Falkland Islands
Britain’s claim, basis, 141-142 Force
conflict situations, 590-594
enforcement action by Security Council, 588
right of hot pursuit, reasonable force, 416
use of force, UN Charter, 493 et seq.
Foreign Armed Forces, 194
India-Sri Lanka Accord, 195-196
jurisdictional immunity, 194-195
Foreign Public ships, 192
“floating island” theory, 193
jurisdictional immunity, extent, 193-194
rationale, 193-’94
state-owned commercial ships, 194
Foreign Sovereign
and territorial jurisdiction, 182-192
Indian position, 189-192
rationale of jurisdictional immunity, 183-184
sovereign immunity, 182
waiver of immunity, 183
Foreign States
jurisdictional immunity, 182-192
extent and rationale, 183-187
Indian legal practice, 189-192
Fundamental Rights, doctrine of, 12
G
General Agreement on Tariffs and Trade (GATT) application, 355
legal personality, 557
relationship with UN, 574, 603
General Assembly (see also United Nations) dispute settlement, role, 478
constitutive, 581
deliberative, 575
disarmament, 578
elective, 580
financial, 579-580
legislative, 581-582

Page 611 INDEX
supervisory, 579
Uniting for Peace resolution, 576
resolutions,
bindingness of, 582
source of international law, 51 et seq.
structure, 574
voting, 575
General Principles of Law estoppel, 43-44
rule of equity, 44-45
Geneva Conventions (see also Sea) continental shelf, 384
fishing and conservation of living resources of the high seas, 384
territorial sea and contiguous zone, 383
H
Hague Conventions arbitration under, 454
conciliation commissions, 452-453
duties of belligerents, 544
good offices and mediation, 450
guerilla warfare, rules and provisions, 511
land warfare, laws on, 508 et seq.
maritime warfare, 515
opening of hostilities, 502
pacific settlement of disputes, 17-18
Permanent Court of Arbitration, 455
regulations on occupied territory, 526
rights and duties of neutral powers, convention, 539
universality and, 554
war crimes, punishment, 531
High seas (see also Sea) freedoms of, 411
hot pursuit, right of, 415
Indian position, 417
jurisdiction in collision cases, 412
piracy, 414
rights and duties of States, 413
right to visit foreign merchant vessel, 413
unauthorised broadcasting, 413, 414
Hostages, Convention against the taking of, 225- 226
Human Rights
Committee on the Elimination of Discrimination against Women, 267
conventions and declarations, 255-259
enforcement machinery
Committee for the Elimination of Racial Discrimination, 265-266

Committee against Torture, 266

Covenant on Civil and Political Rights, 262- 263
Covenant on Economic, Social and Culture Rights, 264-265
Optional Protocol, 263
UN Human Rights commission, 259-262
UN Human Rights Council, protection and enforcement of women’s rights 266-268
world conference on, 267
world summit on social development, 267-268
I
India
continental shelf, 410
customary international law, practice, 72-74
diplomatic relations, 204
immunities, 213-215
enforcement of human rights, 277-280
Exclusive Economic Zone, 401-402
extradition, law on, 246-247
high seas, 417
hijacking, 202-203
historic waters, 167
India-China border conflict, 490
intervention in East Pakistan, legality of, 487
law on prize courts. 549
Maritime Zones Act, 397-398
nuclear explosion at Pokharan, 520
Nuclear Proliferation Treaty, and, 521-522
recognition, practice, 118
release of Pakistani POWs, 513
sovereign immunity, 189-192
Tashkent Declaration, 513
territorial waters, 397
treaty-making, 349-350
UN (Privileges and Immunities) Act, 560
Terrorism, 446
Individual
Geneva conventions, humanitarian law, 104
rights of, 101
slaves, 99

Page 612 INDEX
subject of international law, 99 et seq.

State and, 227 et seq.
treaty-making power, 346-347
Internal waters, 164
Internal rivers, 165
natural boundaries, 165
navigable river, 165
thalweg, 165
International Atomic Energy Agency (IAEA) privileges and immunities, 196
status under UN, 574, 603
International Civil Aviation Organization (ICAO) law-making and regulatory functions,
562
International Court of Justice ad-hoc judges, 462
advisory jurisdiction, 473
organs authorised to seek, 473
procedure, 475
appointment of judges, 460-461
Root-Phillimore plan, 460
compromis, 463
contentious jurisdiction, 463
forum prorogatum, 464
creation of, 459
individuals and other bodies, locus standi,462
non-members, 460
optional clause, compulsory jurisdiction, 465
et seq.
enforcement of judgements, 473
in camera hearing, 471
intervention by third State, 473
non-compliance with judgments, 476
organisation, 460 et. seq.
preliminary objections to jurisdiction, 471
procedure of, 470
reciprocity, 466
reservations, 467
provisional measures, 471-472
rules of the Court, 460
UN and, 460-461
International crimes Categories, 441
International criminal tribunals
International Criminal Tribunal for Rwanda, 430-431
International Criminal Tribunal for the former Yugoslavia, 429-430, 431
International Criminal Court Chambers, 435
Composition, 434

Creation, 432-433
Jurisdiction, 436 et seq
Organisation, 434
Prosecutor, the office, 435
Registry, 435-436
International Labour Organization, 603
International Law Commission
codification of international law, and, 22-24, 562
establishment, 581
General Assembly and, 581
reservations to treaties, report by, 357-358
International Monetary Fund, 562
agreement with UN, 600
privileges and immunities, 196
regulatory functions, 562
voting in, 603
International Organizations ASEAN, 554
Concert of Europe, 554
Congress of Vienna, 554
Convention on the Representation of States with international organisations, 224
European Atomic Energy Agency, 98
European Coal and Steel Community, 98
European Union, 96
General Convention on the Privileges and Immunities of the UN. 560
international personality of, 97, 556-557
law-making and regulatory functions, 556
legal capacity
express powers, 558,
implied powers, 558
treaty-making power, 558
specialised agencies, 603
status and role, 555 et seq.
Vienna Convention, 559
International Personality
capacity to enter into a treaty, 559
entities, 346
international organisations, 556
International Rivers, 167
Declaration of Paris, 37
final act of the Congress of Vienna, 37

Page 613 INDEX
freedom of navigation, 37
Indus Water dispute, 169
non-navigational uses of international water courses, 23
International Sanctions
action taken under the UN Charter, 589 et seq
diplomatic protests, 8
enforcement action, 8, 588 et seq.
expulsion from the organization, 9
self help and counter-measure, 9
suspension of membership, 9
severance of diplomatic ties, 9, 589
war crimes trial, 530
Intervention, 484
civil war, in, 484-485
coercive measure, 479
Cuban “quarantine”, 485
duty of non-intervention, 485
Indian intervention in Bangladesh, 487
“intervention by invitation”, 487-488
legality, 85
Monroe Doctrine, 485
humanitarian grounds on, 486
Islands
artificial, 400
continental shelf of, 410
definition, 391
territorial sea of, 391
J
Judicial decisions
international tribunals of, 46-48
municipal tribunals of, 48-49
Jurisdiction, State civil, 172-173
criminal 173
nationality principle, 177-178
active, 177
passive, 177-178
over aircraft, 196-203
Tokyo Convention on hijacking, 196
protective principle, 178-180
territorial, 173-177
objective, 176-177 et seq.

subjective, 174-175
universality principle, 180-182
Juristic work, 49 et seq.
impact of jurists, 19
jus cogens, 8, 366 et seq.
K
KAL Incident, 155-156
Kellog-Briand Pact (Pact of Paris), 9,492
neutrality and, 540
State practice on war and, 492
Korean Conflict, 585, 590
“Uniting for Peace Resolution” and, 576
Kuwait case, 590-591
enforcement action in, 590
“no fly zone” in Iraq, 593
L
Land-locked State (see also Sea) convention on transit-trade of, 418
definition, 417
Nepal, case of, 418
League of Nations covenant of, 564
and war, 492
and neutrality, 540
failure of, reasons, 565-566
functioning of, 564 principal organs of, 564
settlement of disputes, conciliation, 452
withdrawal from membership, 565
Leases, 148
Hong Kong, Treaty of Nanking, 148
Teen Bigha, agreements between India and
Bangladesh, 148
M
Mandate territories, 93 et seq.
international personality of, 96
Maritime Belt (see Territorial Sea)
Mediation, 450-451
Monroe Doctrine, 485
Municipal Law
application before international tribunals, 59 et seq.
relationship with international law, 54 et seq.

N
Namibia (see South-West Africa)
National Waters (see Internal Waters)
Nationality, 227 et seq.

Page 614 INDEX
Acquisition domicile, 232

jus soli, jus sanguinis, 230-231
naturalisation, 232-235
and citizenship, 229 double, 236-237
Hague convention on conflict of (Nationality)
laws, 237
loss,
involuntary, 236
substitution, 236
voluntary renunciation, 235
Naturalisation (see Nationality)
Negotiation
mode of dispute settlement, 449-450
Neutral State
Altmark case. 543
rights and duties, 542 et seq.
un-neutral service, 544
doctrine of contraband, 546
Neutralisation
and neutrality, distinction, 538
Belgium, 538
meaning, 538
Switzerland, 538
Neutrality
development of, 538
kinds of, 538
League of Nations Covenant, 540
Land Lease Act, 539, 540
London Declaration, 539
UN Charter and, 540 et seq.
military pacts, 542 New States
attitude towards international law, 19-20
role in codification of law, 20
non-refoulement, 252
Non-Self governing territories
Declaration on the Granting of Independence to Colonial territories and peoples, 87
Decolonisation Committee, 87
East Timor, 91
Gibralter, 138
Right of Self -determination, 89-90
Treaty-making moves, 346
Western Sahara, Green March, 89
Nuclear Weapons
Comprehensive Test Ban Treaty, 520, 522

convention on inhuman weapons, 523

Mutually Assured Destruction (MAD), 523
Non-Proliferation Treaty, 521
Nuclear Test Ban Treaty, 520
nuclear weapons, use of, 524
Strategic Defence Initiative (Star War), 523
Nuremberg Tribunal
agreement on, 102
war crimes, 530
O
Occupation, 134 seq.
acquisitive prescription, 137
contiguity, theory, 137
continuity, theory, 137
principle of effectiveness, 134-135
prescription differentiated, 140-141
terra nullius, 136-137 Outer space, 157 et seq.
cujus est solum, doctrine, 157
COPUOS, 158
delimitation of boundary, 157-158
Liability Convention, 162-163
Moon Agreement, 163-164
remote sensing, principles, 159
satellites, manned and unmanned, 157
Treaty, 159-162
P
Palau (Pacific Islands), 96, 579
Palestine Liberation Organisation (PLO), 106-107
Panama Canal, 147-148
Hay-Varilla Treaty, 147
Peace-Keeping Forces Agenda for peace, 597
composition, 597
convention on the Safety of UN and associated personnel, 225, 561, 598
privileges and immunities, 561-562
role in conflict situations, 595-596
Peace-keeping operations current operations, 595
legal basis. 595
nature, 596
operations outside the UN, 598
stand-by-arrangements, 597
Permanent Court of Arbitration (see also Arbitration), 18

Page 615 INDEX
Permanent Court of International Justice establishment, 46-47

relationship with ICJ, 470
statute, 459, 460
Piracy, jure gentium, 50
Ponsonby rule, 349
Positivism, theory of, 13
Prescription, 140 et seq,
acquisitive and extinctive, 140-144
occupation, and, 140-141
Private International Law (conflict of laws). 4-5
Prize Court, 548
Indian law on, 549
Protectorates, 91 et seq.
Bhutan, 93
Liechtenstein, 93
Monaco, 93
treaty-making power of, 559
R
Rann of Kutch, 142 Recognition
collective, 113-115
conditional, 119
constitutive theory, 110-111
de jure and de facto, 120-124
declaratory theory, 112
duty to recognise, 112-113
Estrada doctrine, 117
express, 108
governments, 115-119
implied, 108
insurgency and belligerency, 130-132
legal consequences, 126-127
non-recognition, doctrine of,
Stimson doctrine, 128-130
retroactive effect, 124 et seq.
Tobar Doctrine, 117
withdrawal, 119-120
Rendition, 240
Reprisals, 480 et seq.
S
San Marino, 93 Satellites (see Outer Space)

Sea, Law of, 383 et seq.

I. UN conference, 383
II. UN conference, 384
III. UN conference (UNCLOS-III), 384
Agreement on the implementation of deep seabed mining, 422
Convention, Law of the Sea, 383-385
contiguous zone, 398
continental shelf, 402
enclosed or semi-enclosed sea, 417
exclusive economic zone (EEZ), 398-399
high seas, 411 et seq.
freedoms of, 411-412
jurisdiction in collision cases, 412-413
rights and duties of States, 413
International Seabed Authority, 420-421
land-locked State, 417-418
marine environment, protection and preservation, 424
maritime belt (territorial sea), 387
parallel access, 419-420
pioneer investors, 422-423
preparatory commission, 421
provisional Understanding Regarding Deep Seabed Matters, 421
seabed area, 419 et seq.
Secretary-General, 602
Sector Principle, 143
Security Council (see also United Nations) decisions of, bindingness, 583
dispute settlement, 477
dispute and situation, 587
pacific settlement, 587-588
domestic matters, 589
powers and functions, 586
amendment of the Charter, 586
constitutive, 586 elective, 586
international peace and security, maintenance of, 587
supervisory, 586
preventive (enforcement) action, 588
structure, 582
voting, 583
Self-defence
against terrorism, right, 498
Anticipatory, 497
collective, 500
inherent right, 596
right to intervene, 484

Page 616 INDEX
Entebbe Incident, 498

Gulf of Tonkin incident, 501
Vietnam, 488
Security Council and, 594
Self-Determination, principle of, 87
Bangladesh, 85-86
Falkland Islands, 141-142
Freedom movements, 87
right to, 85-86 Servitudes, 145 et seq.
praedium dominans and praedium serviens, 145-147
Teen Bigha, status, 147
Ships, enemy character, 507
South-West Africa
and trusteeship system, 95, 96
creation and continuation, mandate, 95-96
national liberation movement, SWAPO
non-recognition, 128-130
recognition, 105
Sovereign Immunity concept, 182
extent, 184-187
rationale, 183-184
restrictive immunity, 185-187
waiver, 183
Special Missions, 223
liaison mission, 561
UN practice, 561
Specialized agencies, 603
administrative committee on co-ordination, 600
consultative committee on administrative questions, 601
functions, 600
joint staff pension fund, 601
single unified international civil service, 601 State
criterion of Statehood, 82-87, 106
immunity, 182-183
European convention on State Immunity, extent of, 184-187
waiver of, 183
mini or micro State, 86-87
recognition, 105 et seq.
subject of international law, 81 et seq.
State-will, 55-56
Statelessness
Convention on the Reduction of, 238
Convention on the Status of Stateless persons, 238
State responsibility

Content of, 297

Non-repetition, 297 Reparation, 298-299
Compensation, 300
Restitution, 300
Satisfaction, 391-392
Defences, 293
Circumstances precluding wrongfulness, consequences, 297
Consent, 294
Countermeasures, 294-295
Distress, 296
Force majeure, 295
Necessity, 296
Self-defence, 294
Diplomatic protection, 305
Claims rule, 306
Corporations, 308-309
Natural persons, 306-307
Elements of, 285
Conduct attributable, 285-289
Breach, 289-290
Causation, 290-291
International obligation, 289
Obligation in force, 292
Issues of admissibility, 302 et seq.
Local remedies, exhaustion, 310-311
Stockholm Declaration, 242-243
(see Environment) Straits
breadth, 165 passage through, 394
Suez Canal
Convention Respecting Free Navigation of, 147
T
Terra Nullius, 133-134
Territorial Jurisdiction (see Jurisdiction)
Territorial Sea (see also Sea) archipelagos, 390-391
bays, 389-390
breadth, 387-389
low-water line, 388
straight baseline, 388-389
coastal State, rights and duties in, civil jurisdiction, 395-397

Page 617 INDEX
criminal jurisdiction, 395-396

delimitation, 391-392
historic title, 391
innocent passage, 392-393
islands, 391
passage of warships, 393-394
transit passage, 394-395
Territorial Sovereignty, 133
Territory, State, 133 loss of, 142
mandates and trust territories, 93-94
protected territories, 91-93
Terrorism
Anti-terrorism efforts, 444
United Nations, 444-445
Regional efforts, 445-446
India, 446
Crime, 441
Definition, 442
hijacking, 196 et seq.
UN peacekeepers, protection against, 597
Tokyo Tribunal, 102
Treaties
amendment, 380 et seq.
of multilateral treaties, 381-382
modification, 382
and custom, 39-40
breech of treaty, 370-372
conclusion of subsequent, 369-370
convention, the Vienna, 340-342
definition, 342-343
effects of outbreak of war, 503
entry into force, 354-355
general and particular, 38-39
interpretation
application, as distinguished from, 374
multilingual treaties, 380
preparatory work, 379-380
principle of effectiveness, 377-378
subsequent practice, 378-379
textual approach, 375-377
law-making treaty, 38
law and practice of, 340 et seq.
making of,
accession, 353-354

adhesion, 353-354
adoption of text, 350-351
ratification, 352-353
signature, effect of, 351-352
pacta sunt servanda, 363
reservations, 355-360
India’s accession to
IMCO, 355
rebus sic slantibus, 373-375
supervening impossibility of performance, 372-373
termination and suspension
operation of law through, 370-375
third parties and, 360-361
legislative and constitutive treaties, 361-362
validity, 363 et seq
coercion, 365-366
conflict with jus cogens, 366-368
error, 364-365
fraud and corruption, 365
violation of domestic law, 363-364
will of the parties, 368-369
without a provision on, 369
Trusteeship Council (see also
United Nations), 94 et seq.
strategic area of Palau, 579
trusteeship system, 94-96
West Irian, 96
U
UN Administrative Tribunal jurisdiction, 582
regulatory functions,562-563
statute, 582
United Nations
diplomatic privileges and immunities, General Convention, 559-562
international character, 602
legal personality, 556-557
membership, 571-573
admission, 571-572
expulsion and suspension, 573
withdrawal from, 572-573
organs, 566-567
ECOSOC (see Economic and Social Council)
General Assembly 598-602
ICJ (see International Court of Justice)
Secretariat, 602-603
(see also Secretary-General)

Security Council, 602-603

Page 618 INDEX
Trusteeship Council, 602

peace-keeping forces, expenditure, 558
purposes and principles, 567-568 et seq.
non-intervention principle, 569-571
non-members, obligations, 569
sovereign equality, 568
UNCITRAL
law-making function, 563
subsidiary organ, 600
UNIDROIT (Rome International Institute for the Unification of Private Law), 563
United States
customary international law, practice, 67-68
headquarter agreement with OAS, 560
with UN, 560
recognition, practice, 120-124
executive agreements, 348
making of treaty 348-350
Uniting for Peace Resolution, 576-578
Usage 27
V
Vienna Convention
Consular Relations, 221, 581
Diplomatic Privileges and Immunities, 204, 559,
581
Law of Treaties, 558, 581
Law of Treaties between States and International
Organisations
or between International Organisation, 558, 581-582
Representation of States in their relations with International
Organizations of universal character, 559
Vietnam War
Paris agreement on ending the war and restoring peace, 491
Right of collective self-defence, 488
Veto (see also Security Council), 584
Dispute and situation, 585
Double veto, 584
Korean conflict and, 585,590
W
War, 489 et seq

aerial, laws of, 517-518

animus belligerendi, 490-491
belligerent occupation of enemy territory, 526-529
end of occupation, 528-529
Israeli occupied territories, 526-527
civilian persons, treatment during, 525-526
civil war, 529-530
humane treatment, 525-526
Geneva Convention on civilian persons, 525-526
Protocol I, 525
combatants, non-combatants, 509-510
commencement of, 502
commercial relations, 504 concept, 490-491
diplomatic and consular relations, 503
doctrine of postliminium, 536
effects of outbreak of, 503-507
enemy character corporations, 506
goods, 507
individuals, 505
ships, 507
enemy property, 505 et seq
private, 505
public, 505
guerilla warfare, 511
Hague conventions on the opening of hostilities, 502
insurgents, status, 529
International Committee of the Red Cross (ICRC) role, 530
international humanitarian law, 507-508
land warfare, 508-509
methods and means,514-415
lawful, unlawful combatants, 509-510
laws of war (jus in helium), 507 et seq
conventions related to, 507-508
legality of atomic or nuclear warfare, 518, 521
levees en masse, 510
maritime warfare, laws of, 515-516
prisoners of war, treatment, 512-514
Geneva Convention III on POWs, 512-513
right to wage war under
Covenant of the League of Nations, 492
Pact of Paris, 492-493
UN Charter, 493 et seq.

Page 619 INDEX
State of war, 502 et seq.

termination of armed hostilities and, 534
treaties, effect of, 503-504
war crimes, 530-534
War Crimes
Draft code of offences against the peace and security of mankind, 534
grave offence, 530
grave breaches, Geneva Conventions, 534
Hague conventions on, 531
Nuremberg Tribunal, 531-533
orders of superiors, defence, 533-534
Tokyo Tribunal, 531-532
Treaty of Versailles on, 531
Warships
asylum on, 251-252
civil and criminal jurisdiction over, 395-397
definition, 393
right of passage in territorial sea, 393-391
Waters (see also Territorial Waters) historic, 166-167
internal, 164-165 Watercourses
convention on non-navigational uses of international watercourses, 23, 171
World Health Organisation (WHO) law making function of, 562


An Introduction To Public International Law by S K Verma 2nd Edition PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

An Introduction To Public International Law by S K Verma 2nd Edition PDF

Uploaded by

Copyright:

Available Formats

https://t.

An Introduction to Public International Law

Downloded From Telegram: Law College Notes & Stuffs

Law College Notes & Stuffs

Exclusive group for Law Students

Join Us Here for More Materials

Published by: Satish Upadhyay, Satyam Law International

Downloded From Telegram: Law College Notes & Stuffs

Preface to the Second Edition

Downloded From Telegram: Law College Notes & Stuffs

Page viii PREFACE

Downloded From Telegram: Law College Notes & Stuffs

Downloded From Telegram: Law College Notes & Stuffs

A. Transformation or Specific Adoption Theory 58

Downloded From Telegram: Law College Notes & Stuffs

Downloded From Telegram: Law College Notes & Stuffs

Page xii CONTENTS

B. Rights, Privileges and Immunities of Missions and Diplomatic

Downloded From Telegram: Law College Notes & Stuffs

Page xiii CONTENTS

B. Breach of an International Obligation 289

Downloded From Telegram: Law College Notes & Stuffs

Page xiv CONTENTS

E. Conflict with a Norm of Jus Cogens 366

Downloded From Telegram: Law College Notes & Stuffs

C. Developments after 1982 421

Downloded From Telegram: Law College Notes & Stuffs

Page xvi CONTENTS

A. Belligerent Occupation of Enemy Territory 526

Downloded From Telegram: Law College Notes & Stuffs

Downloded From Telegram: Law College Notes & Stuffs

Page xviii TABLE OF CASES

Baby Boy case, 276

Downloded From Telegram: Law College Notes & Stuffs

Page xix TABLE OF CASES

D. P.P. v. Doot, 174

Downloded From Telegram: Law College Notes & Stuffs

Page xx TABLE OF CASES

Haile Salassie v. Cable and Wireless Ltd., 124, 125

La Grand Case (Merits), 60, 70, 286, 298, 301, 364

Downloded From Telegram: Law College Notes & Stuffs

Downloded From Telegram: Law College Notes & Stuffs

Page xxi TABLE OF CASES

Nabob of Carnatic v. East India Co, 80 Nanka v. Government of Rajasthan, 76

Downloded From Telegram: Law College Notes & Stuffs

Page xxii TABLE OF CASES

Downloded From Telegram: Law College Notes & Stuffs

Page xxiii TABLE OF CASES

T.K. Varred v. State of Travancore Cochin, 73 Tacna-Arica Arbitration, 371 Tag v.

Downloded From Telegram: Law College Notes & Stuffs

Page xxiv TABLE OF CASES

Tunis-Morocco Nationality Decrees case, 228 Turkey-Iraq Frontier, 379

Velasquez v. Honduras, 275 Vervaeke v. Smith, 64

West Rand Central Gold-Mining Co. Ltd. v.

Zamora case, 64, 549

Downloded From Telegram: Law College Notes & Stuffs

I. NATURE OF INTERNATIONAL LAW

Downloded From Telegram: Law College Notes & Stuffs

Downloded From Telegram: Law College Notes & Stuffs

Page 2 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Downloded From Telegram: Law College Notes & Stuffs

Downloded From Telegram: Law College Notes & Stuffs

international personality”.12 Starke similarly defines it as that body of law “which is