Public International Law

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Public International Law
Public International Law (Karnataka State Law University)
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International Public Law

Notes by Praveen Kumar

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Contents
UNIT 1 ..................................................................................................................................................... 4
1. Define International Law. Discuss its nature. ................................................................................. 4
2. Briefly explain the origin and development of International Law. ................................................. 8
3. What are the theories as to the basis of International Law? ....................................................... 15
4. Explain the various sources of International Law. ........................................................................ 20
5. Who are the subjects of International Law? Explain. Examine how far individuals and
international organisations are subjects of international law .............................................................. 27
6. Examine the theories as to the relation between International Law and State Law. .................. 30
7. Explain the theories relating to relationship between International law and Municipal law ...... 33
8. Whether International Law is Law in the true sense of the term? ............................................... 38
9. Write short notes on: .................................................................................................................... 42
a) Weakness of International Law. ............................................................................................... 42
UNIT – II................................................................................................................................................. 43
1. Define State. What are the essential elements of the State? Explain the different kinds of States.
43
2. What is ‘Recognition’? Explain the legal effects of recognition of a new state............................ 48
3. Briefly explain the various modes of acquiring and loss of territorial sovereignty under
International Law. ................................................................................................................................. 57
4. Problems: ...................................................................................................................................... 61
a) Problem 1 .................................................................................................................................. 61
b) Problem 2 .................................................................................................................................. 61
c) Problem 3 .................................................................................................................................. 61
d) Problem 4 .................................................................................................................................. 61
e) Problem 5 .................................................................................................................................. 61
f) Problem 6 .................................................................................................................................. 61
UNIT – III ............................................................................................................................................... 62
1. What is territorial jurisdiction of the State? State the principles governing the territorial
jurisdiction. Who are exempted from territorial jurisdiction and to what extent? ............................. 62
2. Explain personal jurisdiction and jurisdiction according to protective principle.......................... 68
3. What is State Succession? Explain the rights and duties arising out of State Succession. ........... 70
4. Discuss state responsibility. .......................................................................................................... 76
5. ‘As to inter-oceanic canals, special treaty rules are applicable.’ – Explain. .................................. 85
6. Explain ‘territorial sea’ and ‘continental shelf’. ............................................................................ 87
7. Write short note on : .................................................................................................................... 93
a) Freedom of High Seas ............................................................................................................... 93
b) Exclusive economic zone........................................................................................................... 94

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8. Problems: ...................................................................................................................................... 96
Problem 1 .......................................................................................................................................... 96
Problem 2 .......................................................................................................................................... 96
Problem 3 .......................................................................................................................................... 96
Problem 4 .......................................................................................................................................... 96
Problem 5 .......................................................................................................................................... 96
UNIT – IV ............................................................................................................................................... 97
1. What is Asylum? Explain the different kinds of Asylum recognised under International Law ..... 97
2. Discuss the various stages of concluding a Treaty. ..................................................................... 101
3. Define the term ‘Treaty’. Explain termination of treaties. ......................................................... 105
4. What is meant by extradition? State the conditions for extradition. ......................................... 110
5. Discuss the privileges and immunities of diplomatic envoys. .................................................... 116
6. What is nationality? Explain the international importance of nationality. State the different
modes of acquisition and loss of nationality. ..................................................................................... 122
7. Write short note on : .................................................................................................................. 128
a) Double Nationality .................................................................................................................. 128
b) Statelessness ........................................................................................................................... 128
c) Classification of International Treaties. .................................................................................. 129
d) Interpretation of treaties ........................................................................................................ 130
e) Consuls .................................................................................................................................... 130
8. Problems: .................................................................................................................................... 132
Problem 1 ........................................................................................................................................ 132
Problem 2 ........................................................................................................................................ 132
Problem 3 ........................................................................................................................................ 132
Problem 4 ........................................................................................................................................ 132
Problem 5 ........................................................................................................................................ 132
Problem 6 ........................................................................................................................................ 132
Problem 7 ........................................................................................................................................ 132
UNIT – V .............................................................................................................................................. 133
1. Explain the purposes and principles of United Nations Organisation ........................................ 133
2. International Court of Justice...................................................................................................... 139
3. Discuss the main features of World Trade Organisation. ........................................................... 144

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UNIT 1
1. Define International Law. Discuss its nature.

Definition
International law may be defined 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 includes also:
a. The rules of law relating to the functioning of international institutions or organisations, their
relations with each other, and their relations with states and
b. Certain rules of law relating to individuals and non-state entities so far as the rights or duties of
such individuals and non-state entities are the concern of the international community.
Discussion
This definition goes beyond the traditional definition of international law as a system composed
solely of rules governing the relations between states only.
Such traditional definition of the subject, with its restriction to the conduct of states inter se, will be
found set out in the majority of the older standard works of international law, but in view of
developments during the last five decades, it cannot stand as a comprehensive description of all the
rules now acknowledged to form part of the subject.
These developments are principally:

(i) The establishment of a large number of permanent international institutions or organisations such
as, for example the United Nations and the World Health Organisation, regarded as possessing
international legal personality, and entering into relations with each other and with states; and
(ii) The present movement (sponsored by the United Nations and the Council of Europe) to protect
human rights and fundamental freedoms of individuals, the creation of new rules for the
punishment of persons committing the international crime of genocide or race destruction, and the
imposition of duties on individuals under the historic judgment in 1946 of the International Military
Tribunal of Nuremberg, by which certain acts were declared to be international crimes, namely,
crimes against peace, crimes against humanity, and conspiracy to commit these crimes.
Both categories of developments have given rise to new rules of international law, and may be
expected to influence the growth of new rules in the future. The definition given above is intended
to cover such new rules under heads (a) and (b).
Nevertheless, from the practical point of view, it is well to remember that international law is
primarily a system regulating the rights and duties of states inter se. So much is hinted at in the very
title 'international law', or in another title frequently given to the subject-'the law of nations',
although strictly speaking the word 'nation' is only in a crude way a synonym for the word 'state'."

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Indeed, it is a very good practical working rule to regard international law as mainly composed of
principles whereby certain rights belong to, or certain duties are imposed upon, states.
Objective
The main object of international law has been to produce an ordered rather than a just system of
international relations, yet in later developments (for example, in the rules as to state responsibility
concerning denial of justice, and in the rules and practice as to international arbitration) there has
been evidence of some striving to ensure that, objectively, justice be done between states.
Moreover, apart from seeing that states receive just treatment, the modern law of nations aims at
securing justice for human beings. It is significant further that the word 'Justice' appears in the titles
respectively of the Permanent Court of International Justice and its successor the International Court
of Justice, both being judicial tribunals set up to decide disputes between states and to give
advisory opinions according to international law. That justice is a primary purpose of the law of
nations emphasises its kinship to state law.
Expression of Rules
a) Non-Binding Form
Although the principal component of the system is represented by binding rules, imposing duties
and conferring rights upon states, international lawyers have now increasingly to concern
themselves with desiderata, guidelines, and recommended standards expressed in a non-binding
form (e.g., as in the Declarations adopted by the United Nations General Assembly, the
Recommendations and, even, Resolutions of the International Labour Conference, and the
Recommendations of the periodical Consultative Meetings held under the Antarctic Treaty of 1959),
but which many states concerned feel constrained to observe.
Examples
Further relatively recent examples are those of the standards formulated in the Guidelines adopted
by the OECD (Organisation for Economic Co-operation and Development) in 1980 on the Protection
of Privacy and Transborder Flows of Personal Data, in the Code of Practice on Safety and Health in
the Construction of Fixed Offshore Drilling Installations in the Petroleum Industry adopted by the
International Labour Organisation (ILO) in 1981 and the International Code on the Marketing of
Breastmilk substitutes approved by the World Health Organisation (WHO) in the same year.
b) Quasi- Norms with Hortatory effect

These may indeed eventually evolve into binding legal rules, e.g., by general acceptance or approval
(cf art IX, para 4 of the Treaty on Antarctica of 1959 under which recommended measures may
become 'effective' upon approval by the parties concerned). These guidelines or standards are
sometimes characterised as being only of a 'hortatory' effect (urging to some course of conduct or
action; exhorting; encouraging: a hortatory speech.), and, as well, have been described by certain
French writers as 'normes sauvages', a broad translation of which expression' is 'quasi-norms'.
c) Gentlemen's Agreements
There are, apart from these, the so-called 'gentlemen's agreements', i.e. accepted undertakings
governing, e.g., the equitable allocation to different regions of the world of the number of Judges of

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the International Court of Justice that may be elected from the countries of each particular region/
or the pattern of the number of members for each region to be elected to the United Nations
International Law Commission.
d) Moral or Political Precepts;

It is also possible that treaties, or provisions in treaties, may impose no binding obligations, or be
intended not to create legal relations between the parties, but serve simply to formulate moral or
political precepts; see the judgment of Gibbs C J of the High Court of Australia in Commonwealth of
Australia v Tasmania (1983) 158 CLR 1 .
General and regional rules of international law

There is a recognised distinction between general and regional rules of international law, that is to
say between, on the one hand, rules which, practically speaking, are of universal application, and, on
the other hand, rules which have developed in a particular region of the world as between the states
there located, without becoming rules of a universal character.
Examples
The best illustration of such regional rules are those which have been commonly followed by the
group of Latin American states, for example, the special rules relating to diplomatic asylum. This so-
called 'Latin American international law' and the nature of regional rules were discussed by the
International Court of Justice in the Colombian-Peruvian Asylum Case (1950);
According to the judgments in this case:
a. Regional rules are not necessarily subordinate to general rules of international law but may be in a
sense 'complementary' or 'correlated' thereto, and
b. An international tribunal must, as between states in the particular region concerned, give effect to
such regional rules as are duly proved to the satisfaction of the tribunal.
In this connection, there may perhaps be noted also the modern tendency towards regionalism in
international organisation, reflected in the fusion of states into regional 'functional' groupings (for
example the European Economic Community (now the European Union) under the Treaty of Rome
of 25 March 1957, establishing this Community), the conclusion of regional security treaties (for
example, the North Atlantic Security Pact of 4 April 1949), the creation of regional international
organs (for example, the South Pacific Commission established in 1948), and the establishment of
regional international tribunals (for example, the European Court of Justice, and the European Court
of Human Rights).
Community Law
The common rules (including the judge-made law of the European Court of Justice) applicable within
the legal and administrative framework of the European Communities (of which the United Kingdom
became a member in 1972-1973) have developed to such an extent since 1957 as to merit the
designation of 'Community Law' (droit communautaire).

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One of the distinctive characteristics of this Community Law may be its direct applicability, in certain
cases and under certain conditions, in the systems of national law of each member of the European
Communities, with national Courts also ready to give effect to.
Community Law where its primacy or supremacy ought to be recognised, e.g., if the Community rule
or norm is clear and precise, and unconditional, without the need for further implementary action.
In the United Kingdom, the applicability of Community Law and its legal effect as such are provided
for in s 2 (1) of the European Communities Act 1972. The acceptance of the supremacy of
Community Law over national domestic law has not been uniform throughout the member states of
the Communities, with variations even in the approach of courts of the one member country.
Community Law should not be regarded as a form of regional international law, but as sui generis.
Community institutions, including the Court itself, recognise in appropriate circumstances the
binding effect of general international law, for the Community itself is an institution of international
law, being an independent sovereign entity with its own sovereign rights and its own legal system,
independent of the member states.

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2. Briefly explain the origin and development of International Law.
Introduction
The modern system of international law is a product, roughly speaking, of only the last four hundred
years. It still bears witness to the influence of writers and jurists of the sixteenth, seventeenth, and
eighteenth centuries, who first formulated some of its most fundamental tenets. It is also tinged
with political theories underlying the modern European state system with concepts such as national
and territorial sovereignty, and the perfect equality and independence of states.
Discussion
Antiquity, Before 5th Century
Any historical account of the system must begin with earliest times, for even in the period of
antiquity, rules of conduct to regulate the relations between independent communities were felt
necessary and emerged from the usages observed by these communities in their mutual relations.
Treaties, the immunities of ambassadors, and certain laws and usages of war are to be found many
centuries before the dawn of Christianity, for example in ancient Egypt and India.
There were historical cases of recourse to arbitration and mediation in ancient China and in the early
Islamic world.
In the period of the Greek City States, where the states were small and independent of one another,
evidence of an embryonic, although regionally limited, form of international law which one
authority-Professor Vinogradoff-aptly described as 'inter municipal' was present.
This 'inter municipal' law was composed of customary rules which had crystallised into law from
long-standing usage followed by these cities such as, for instance, the rules as to the inviolability of
heralds in battle, the need for a prior declaration of war, and the enslavement of prisoners of war.
These rules were applied not only in the relations inter se of these sovereign Greek cities, but as
between them and neighbouring states.
Underlying these rules were deep religious influences, characteristic of an era in which the
distinctions between law, morality, justice and religion were not sharply drawn.
In the period of Rome's dominance of the ancient world, there also emerged rules governing the
relations between Rome and the various nations or peoples with which it had contact. One
significant aspect of these rules was their legal character, thus contrasting with the religious nature
of the customary rules observed by the Greek City States.
Actually, the total direct contribution of the Greeks and Romans to the development of international
law was relatively meagre.
In the later period of Roman history with the authority of the Roman Empire extending over the
whole civilised world, there were no independent states in any sense, and therefore a law of nations
was not called for.

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Medieval period, 5th to 15th Century

Conditions favourable to the growth of a modern law of nations did not really come into being until
the fifteenth century, when in Europe there began to evolve a number of independent civilised
states.
Before that time Europe had passed through various stages in which either conditions were so
chaotic to make impossible any ordered rules of conduct between nations, or the political
circumstances were such that there was no necessity for a code of international law.
During the early medieval era, there were two matters particularly which militated against the
evolution of a system of international law:
a. The temporal and spiritual unity of the greater part of Europe under the Holy Roman Empire, was
notional and belied by numerous instances of conflict and disharmony; and
b. The feudal structure of Western Europe, hinging on a hierarchy of authority not only clogged the
emergence of independent states but also prevented the Powers of the time from acquiring the
unitary character and authority of modern sovereign states.
Modern period.
Sixteenth century
The discovery of the New World, the Renaissance of learning, and the Reformation as a religious
revolution disrupted the facade of the political and spiritual unity of Europe, and shook the
foundations of medieval Christendom.
Theories were evolved to meet the new conditions; intellectually, the secular conceptions of a
modern sovereign state and of a modern independent Sovereign found expression in the works of
Bodin (1530-1596), a Frenchman and Machiavelli (1469-1527), an Italian. Gentilis (1552-1608), an
Italian who became Professor of Civil Law at Oxford, is frequently regarded as the founder of a
systematic law of nations.
In Italy with its multitude of small independent states, maintaining diplomatic relations with each
other and with the outside world, there developed a number of customary rules relating to
diplomatic envoys, for example, their appointment, reception and inviolability.
Jurists began to take into account the evolution of a community of independent sovereign states and
to think and write about different problems of the law of nations, realising the necessity for some
body of rules to regulate certain aspects of the relations between such states.
Where there were no established customary rules, these jurists were obliged to devise and fashion
working principles by reasoning or analogy. Not only did they draw on the principles of Roman law
but they had recourse also to the precedents of ancient history, to theology, to the canon law, and
to the semi-theological concept of the 'law of nature'-a concept which for centuries exercised a
profound influence on the development of international law.
A major preoccupation of sixteenth century international law was the law of warfare between
states, and in this connection it may be noted that by the fifteenth century the European Powers
had begun to maintain standing armies, a practice which naturally caused uniform usages and
practices of war to evolve.

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Seventeenth Century
By general acknowledgment the greatest of the early writers on international law was the Dutch
scholar, jurist, and diplomat, Grotius (1583-1645), whose systematic treatise on the subject De Jure
Belli ac Pads (The Law of War and Peace) first appeared in 1625.
In his book, as befitted a diplomat of practical experience, and a lawyer who had practised, Grotius
dealt repeatedly with the actual customs followed by the states of his day.
One central doctrine in his treatise was the acceptance of the 'law of nature' as an independent
source of rules of the law of nations, apart from custom and treaties. The Grotian 'law of nature' was
to some extent a secularised version, being founded primarily on the dictates of reason, on the
rational nature of men as social human beings, and in that form it was to become a potent source of
inspiration to later jurists.
Also several Grotian doctrines have left their mark on, and are implicit in the character of modern
international law, namely, the distinction between just and unjust war, the recognition of the rights
and freedoms of the individual, the doctrine of qualified neutrality, the idea of peace, and the value
of periodic conferences between the rulers of states.
Nor should it be forgotten that for over three centuries Grotius was regarded as the historic
standard-bearer of the doctrine of the freedom of the seas by reason of his authorship of the work,
Mare Liberum, published in 1609.
Relations and intercourse by treaty or otherwise between European and Asian governments or
communities contributed to the formation of new rules. Moreover the science of international law
was further enriched by the writings and studies of a number of great jurists.
Eighteenth Century
In the eighteenth century, there was a growing tendency among jurists to seek the rules of
international law mainly in custom and treaties, and to relegate to a minor position the 'law of
nature', or reason, as a source of principles.
This tendency was extremely marked, for instance, in the case of Bynkershoek's writings and found
expression particularly also in the works of Moser, and von Martens.
There were, however, jurists who at the same time clung to the traditions of the law of nature,
either almost wholly, or coupled with a lesser degree of emphasis upon custom and treaties as
components of international law.
As contrasted with these adherents to the law of nature, writers such as Bynkershoek who attached
primary or major weight to customary and treaty rules were known as 'positivists'.
Nineteenth Century
In the nineteenth century international law further expanded. This was due to a number of factors
which fall more properly within the scope of historical studies, for instance, the further rise of
powerful new states both within and outside Europe, the expansion of European civilisation
overseas, the modernisation of world transport, the greater destructiveness of modern warfare, and
the influence of new inventions. All these made it urgent for the international society of states to
acquire a system of rules which would regulate in an ordered manner the conduct of international
affairs.
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There was a remarkable development during the century in the law of war and neutrality, and the
great increase in adjudications by international arbitral tribunals following the Alabama Claims
Award of 1872 provided an important new source of rules and principles. Besides, states
commenced to acquire the habit of negotiating general treaties in order to regulate affairs of mutual
concern.
The works of jurists belonging to a number of different nations contributed significantly to the
scientific treatment of the subject; among them were Kent (American), Wheaton (American), De
Martens (Russian), Kliiber (German), Phillimore (British), Calvo (Argentinian), Fiore (Italian), Pradier-
Fodere (French), Bluntschli (German), and Hall (British).
The general tendency of these writers was to concentrate on existing practice, and to discard the
concept of the 'law of nature', although not abandoning recourse to reason and justice where, in the
absence of custom or treaty rules, they were called upon to speculate as to what should be the law.
Twentieth Century
Other important developments have taken place in the twentieth century. The Permanent Court of
Arbitration was established by the Hague Conference of 1907. The Permanent Court of International
Justice was set up in 1921 as an authoritative international judicial tribunal, and was succeeded in
1946 by the present International Court of Justice.
Then there has been the creation of permanent international organisations whose functions are in
effect those of world government in the interests of peace and human welfare, such as the League
of Nations and its present successor, the United Nations, the International Labour Organisation, the
International Civil Aviation Organisation, and others.
And perhaps most remarkable of all has been the widening scope of international law to cover by
multilateral treaty or convention not only every kind of economic or social interest affecting states
(e.g., patents and copyright), but also the fundamental rights and freedoms of individual human
beings.
It is characteristic of the latter-day evolution of international law that the influence of writers has
tended to decline, and that modern international lawyers have come to pay far more regard to
practice and to decisions of tribunals.
New laws were formed at the Geneva Conference of 1958 on the Law of the Sea, at the Vienna
Conferences of 1961, 1963, and 1968-1969 on Diplomatic Relations, Consular Relations, and the Law
of Treaties respectively, and in the sessions 1973-1982 of the Third United Nations Conference on
the Law of the Sea (UNCLOS III).
'Natural law' writers have ceased to command the same degree of influence as formerly, perhaps
because of the emergence of a number of states outside Europe which did not inherit doctrines of
Christian civilisation such as that of 'natural law', or which possessed traditional cultures impelling
them towards differing perceptions with respect to law and legal procedure.
These new states (in particular the Afro-Asian group) have challenged certain of the basic principles
of international law, stemming from its early European evolution in the seventeenth and eighteenth
centuries, albeit they have to some extent recognised natural law in regard to certain concepts, e.g.,
self-determination.
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Above all, there is the rapidly changing world situation to which the traditional system of
international law must adapt itself. The era of East-West rivalry between blocs led by the two
superpowers has given way to a more natural-in a sense-order of things in which states are asserting
their individual self-interest. This development has its ugly side when it is impelled by ethnic or
religious intolerance or by authoritarian ideologies.
The notion of the Third World-a term coined at the Bandung Conference in 1955 to indicate states
not aligned with either the Western or the Communist blocs-has given way to a category of
'developing states', within which exists a subcategory of desperately poor 'least developed states'.
Trade has become the major concern of the developed states as they vie for markets and self
advancement, not only in traditional goods and commodities but also in technology, in which
intellectual and industrial property rights play an important role. Of particular concern to developing
states is the increasing degree to which trade, development assistance, respect for human rights,
and the protection of the natural environment have become linked, not always to their immediate
advantage.
New hope is emerging for the effective end of the threat of use of nuclear arms. Another positive
sign is the more co-operative spirit demonstrated in the United Nations Security Council since the
end of the Cold War which may enable the Charter provisions for collective world security to be
realised more effectively.
But structural and political problems remain to be solved within the United Nations system. Apart
from this, international law is now called upon to find new rules or guidelines to govern the fields of
nuclear and thermonuclear energy (indeed of all forms of energy, having regard to events since
1973, and the depletion of oil reserves), and scientific research generally, to provide special regimes
for various areas of international trade (e.g. the international sale and international sea-carriage of
goods), to regulate state activities in the upper atmosphere and in the cosmos, to protect and
control the natural environment, to control the growth of world population (cf the 'Action Plan'
adopted at Bucharest in August 1974, by the United Nations World Population Conference), to deal
with the trans-border flow of computer data so as, inter alia, to protect privacy, to develop a general
universal system to regulate key aspects of communication and dissemination of information, and to
establish a new legal regime for the exploration and exploitation of the resources of the seabed
beyond the limits of national sovereignty .
Present-day status of international law

International law, as we know it today, is that indispensable body of rules regulating for the most
part the relations between states, without which it would be virtually impossible for them to have
steady and frequent intercourse. It is in fact an expression of the necessity of their mutual
relationships. In the absence of some system of international law, the international society of states
could not enjoy the benefits of trade and commerce, of exchange of ideas. and of normal routine
communication.
The present century has witnessed a greater impetus to the development of international law than
at any previous stage of its history. This was a natural result of the growing interdependence of
states, and of the vastly increased intercourse between them due to all kinds of inventions that
overcame the difficulties of time, space, and intellectual communication. New rules had to be found
or devised to meet innumerable new situations.
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Whereas previously the international society of states could rely on the relatively slow process of
custom for the formation of rules of international law, modern exigencies called for a speedier
method of law-making. As a result, there came into being the great number of multilateral treaties
of the last 80 years laying down rules to be observed by the majority of states-'law-making treaties'
or 'international legislation', as they have been called.
Apart from these 'law-making treaties' there was a remarkable development in the use of arbitration
to settle international disputes, and at the same time the Permanent Court of International Justice
came by its decisions to make an important contribution to the growth of international law. The
mantle of the Permanent Court then descended upon its successor, the International Court of
Justice.
Nor should there be forgotten the work of codifying and progressively developing international law
at present being sponsored by the United Nations with the expert aid of a body known as the
International Law Commission, created in 1947.
It is true that in some quarters there is a tendency to disparage international law, even to the extent
of questioning its existence and value. There are two main reasons for this:
a. the generally held view that the rules of international law are designed only to maintain peace;
and
b. ignorance of the vast number of rules which, unlike the rules dealing with 'high policy', that is,
issues of peace or war, receive little publicity.
Actually, however, a considerable part of international law is not concerned at all with issues of
peace or war. In practice, legal advisers to Foreign Offices and practising international lawyers daily
apply and consider settled rules of international law dealing with an immense variety of matters.
Some of these important matters which arise over and over again in practice are claims for injuries
to citizens abroad, the reception or deportation of aliens, extradition, questions of nationality, the
extra-territorial operation of certain national legislation, and the interpretation of the numerous
complicated treaties or arrangements now entered into by most states with reference to commerce,
finance, transport, civil aviation, nuclear energy, and many other subjects.
Breaches of international law resulting in wars or conflicts of aggression and the inability of
international law to cope with such endemic problems as disarmament, international terrorism and
trafficking in conventional arms tend to receive adverse attention, and from them the public
incorrectly deduces the complete breakdown of international law.
The answer to this criticism is that even, for example, in time of war or armed conflict there is no
absolute breakdown of international law, as many rules affecting the relations of belligerents inter
se or with neutrals are of vital importance and to a large extent are strictly observed.
Another consideration is worth mentioning, namely that in the case of war or armed conflict, the
states involved seek to justify their position by reference to international law. This applies also in
'crisis' situations, short of war; for example, during the Cuban missile crisis of 1962, the United States
relied to some extent on the Inter-American Treaty of Reciprocal Assistance of 1947 as a legal basis
for its 'selective' blockade or 'quarantine' of Cuba.
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It is possible to argue further that in municipal law (that is, state law), breaches, disturbances and
crimes take place, but no one denies the existence of law to which all citizens are subject. Similarly,
the recurrence of war and armed conflicts between states does not necessarily involve the
conclusion that international law is non-existent.
Finally, it is incorrect to regard the maintenance of peace as the entire purpose of international law.
As one authority well said half a century ago, its raison d'etre is rather to:
‘Form a framework within which international relations can be conducted and to provide a system of
rules facilitating international intercourse; and as a matter of practical necessity it has, and will,
operate as a legal system even when wars are frequent.’
The same authority went on to say:
'It is, of course, true that the ideal of international law must be a perfectly legal system in which war
will be entirely eliminated, just as the ideal of municipal law is a Constitution and legal system so
perfect, that revolution, revolt, strikes, etc can never take place and every man's rights are speedily,
cheaply, and infallibly enforced.'
Lapses from such ideals are as inevitable as the existence of law itself.
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3. What are the theories as to the basis of International Law?
Basis of International Law

There are the two main theories which attempt to explain the basis of International Law-
(1) Theories as to law of Nature; and
(2) Positivism.
(1) Theories as to the Law of Nature

According to the exponents of this theory, international law is a part of the law of nature. States
follow international law because it is a part of the law of nature which is a higher law. In their view,
it is the natural law which has conferred binding force on international law.
In the beginning, Natural Law was associated with religion. The jurists of 16th and 17th centuries,
especially Grotius, secularised the concept of the Law of Nature. According to Grotius, natural law, is
the 'dictate of right reason'. His followers applied the law of nature as the ideal law founded on the
nature of man as a rational being. International Law was considered binding because it was in fact,
natural law applied to special circumstances. Vattel, Pufendorf, Christian Thamasius, etc. are other
prominent exponents of the law of the nature.
Criticism
Each follower of the natural law gives a different definition of the term of 'natural law'. They use it as
a metaphor. Different jurists ascribe different meanings to it such as reason, justice, utility, general
interest of international community etc. Thus the meaning of the term 'natural law' is very vague
and uncertain.
Besides this, the main defect of this theory is that it is not based on realities and actual practice of
the States.
(2) Positivism
Positivists base their theory on the actual practice of the States. According to them in the ultimate
analysis, will of States is the main source of international law. International Law, they say, is binding
because the States have given their consent for the rules of international law.
It is contended that although States are sovereign, yet by process of auto-limitation, they have
restricted their powers and accepted certain rules as binding upon them. Describing the positivist
view, Starke has aptly written: "International Law can in logic be reduced to a system of rules
depending for their validity only on the fact that States have consented to them."
According to Italian jurist, Anzillotti, the binding force of international law is based on a fundamental
principle known as Perra Sunt Servanda (Agreements entered into by States must be respected and
followed in good faith).
One of the weaknesses of the positivist theory is that it fails to explain the binding force of
customary rules of international law. The positivists have tried to explain this by saying that there is
an implied consent in regard to customary rules of international law.
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Criticism
Positivists views have been severely criticised by many jurists.
Following are the main points of criticism:
(1) The concept of will of State is purely metaphorical. The will of State is nothing but the will of the
people who compose it.
(2) It fails to explain the case of the admission of a new State into the family of nations. When a
State is admitted to the family of nations, international law becomes applicable to it even without its
consent.
(3) The positivists have based their theory on consent which has been severely criticised by jurists.
(4) In practice, it is never necessary to show in regard to any particular rule of customary
international law that the States had given their consent.
(5) There are some principles of international law [such as laid down in Article 2(6) of the United
Nations Charter] which are applicable even on non-members of the U.N. although they had never
given their consent for it.
(6) Moreover, it is rightly pointed out that "Declarations of will are, of course, in themselves pure
facts which have legal effects only because some rule of law gives them such effects."
(7) The positivist view fails to explain the "General Principles of Law recognised by Civilized Nations"
which has been recognized under Article 38 of the statute of the International Court of Justice. This
source has been hailed as a "refutation of the extreme positive conception of international law." It
has sounded death-knell of positivism.
True basis of International Law

According to Starke, no specific theory is capable of explaining the true basis of international law. As
a matter of fact, because of inter-dependence of States in the modern period, no State can escape
from the influence of international law.
As rightly pointed out by Cecil Hurt. "International Law is in fact binding on State because they are
States." Thus State follow international law simply because they are States.
According to Brierly, "The ultimate explanations of the binding force of all law is that man, whether
he is single, individual or whether he is associated with other men in a State, is constrained in so far
as he is reasonable being, to believe that order and not chaos is the governing principle of the world
in which he has to live."
As aptly pointed out in the Ninth Edition of Oppenheim's International Law (1992), "It is, however, in
accord with practical realities to see the basis of international law in the existence of an
international community the common consent of whose members is that there shall be a body law-
international law-to govern their conduct as members of that community. In this sense, 'common
consent' could be said to be the basis of international law as a legal system."
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Further, The common consent that is meant is not consent to particular rules but to express or tacit
consent of States to the body of rules comprising international law as a whole at any particular time.
Some other theories regarding the basis of International Law:

Following are some other theories regarding the basis or international law:
(1) Theory of consent.

This is based on the positivists' view and has been criticised earlier. This theory fails to explain the
basis of international law. According to this theory, States observe rules of international law because
they have given their consent for them,
Following are the main points of criticism of this theory:-

(i) As regards customary rules, it is not necessary to prove that States have given, their consent.
(ii) In regard to customary rules, the basis of implied consent is far from correct.
(iii) It fails to explain the case of recognition of a new State.
(iv) It fails to explain the true basis of international law even if we distort facts and try to fit them in
the theory.
(2) Auto-Limitation Theory

This theory is also based on the theory of consent and fails to explain the basis of International Law.
It is based on the presumption that State has a will. Moreover, auto-limitation is no limitation at all.
(3) Pacta Sunt Servanda

According to Anzillotti, the binding force of international law is founded on the fundamental
principles known pacta sunt servanda, which means that the agreements entered into by the States
must be followed by them in good faith. This principle, though a fundamental and very important
principle of international law, fails to explain the binding force of customary rules of international
law.
As aptly remarked by an author, "The realization that international customary law does not rest on
agreements and that the tenet of pacta sunt servanda is itself a rule of customary law led to new
formulations of the basic norm."
Kelsen himself has now decided on a formula which takes into account of usage as the fact which is
the origin of the rules of International Law, "States ought to behave as they have customarily
behaved."
(4) Theory of Fundamental Rights

This theory is based on the naturalistic viewpoint. According to this theory, before the existence of
States man used to live in natural state and possessed some fundamental rights such (as right of
independence, equality, self-preservation, etc. It is contended that like man, States also possessed
these fundamental rights, because so far there is no world authority over and above the States.
Criticism
This theory has been subjected to, severe criticism by the jurists.
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Brierly has made the following criticism: -
(i) According to this theory when a new State is admitted to the family of nations, it brings with it
certain fundamental rights which are inherent. Such rights are meaningless unless and until there is
a legal system which confers validity on them.
(ii) This theory is in favour of giving more freedom to the States and lays less emphasis on the social
relations and co-operation among the States. Into the international field the problem is not of
enhancing the freedom of States, but of restricting it so as to create social solidarity and co-
operation among the States.
(iii) Lastly, this theory regards certain fundamental rights. such as right to independence, equality.
etc. as natural rights. But as a matter of fact, these fundamental rights are as a result of historical
development.
Thus, this theory also fails to explain the basis of international law. The true basis of international
law, as pointed out earlier, is that the rules of international law are binding upon the States because
they are States. It is the fact of Statehood because of which rules of international law become
applicable to States.
Influence of Natural Law

The origin of natural law can be traced to centuries before the birth of Christ. As aptly remarked by
Dias : “No other firmament of legal or political theory is so bejewelled with stars as that of Natural
Laws, for it has engaged the attention of some of the greatest thinkers of all ages."
Credit of giving birth to natural law must go to the Greeks. After the Greeks, Romans further
developed it. The early and original law of Romans was called 'Jus civile. ' Later on, they developed
another legal system called 'Jus gentium '. It was called 'Jus gentium' because it was thought to be
the law of universal application. In the republican era of Rome, 'Jus gentium' was reinforced by
natural law or 'Jus naturale' as was commonly called. By Jus naturale the Romans meant, as pointed
out by Brierly, "the sum of those principles which ought to control human conduct, because founded
in the very nature of man as a rational and social being."
Thus, natural law was based on the rational and reasonable needs of man' s nature.
Most of the jurists admit that natural law greatly influenced the international law and gave it, its
binding force. In other words, States followed international law because it was a higher law (natural
law) applied in special circumstances.
The writers and jurists of the middle age developed law of nature in accordance with the values and
conventions of their age. In this period, natural law was linked with religion. For example, according
to St. Thomas Acquinas, natural law is a part of the law of God which man seeks through his reason.
The State of Roman Law in Europe in 16th century contributed much in the beginning of modern
international law. Before we take up the discussion of 'modern international law'. it will be desirable
here to refer briefly to the criticism of medieval conception of natural law.
Following criticism has been made of the medieval conception of natural law:
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(1) In this period, it was believed that there existed rationality in the Universe. Besides being an
exaggeration, the belief in this conception was not substantiated by the practice of the States.
(2) According to the writers of the medieval age, if there was a conflict in between positive law and
natural law. the latter would prevail. It was a very revolutionary idea and could not be accepted.
Despite the above criticism, it must be admitted that natural law emphasised the importance of
purpose behind law. It stressed that law was, not the body of meaningless set of rules, or principles
to be enforced by the Courts. In fact, law existed to achieve definite objectives.
In 18th and 19th centuries, the positivists were in vogue. The positivism was based on the actual
practice of States. It was the period of the decline of the Natural Law. The positivists denied the
existence of some purpose behind the law. According to the positivists, people will be bound to obey
law if it was created toy appropriate legislative authority or sovereign, irrespective of its being
reasonable or unreasonable. They called this law positivism or positive law, i.e., the law in fact. Thus,
in the view of the positivists, in the conflict of the positive law and natural law, former will prevail.
Twentieth century saw the revival of the Natural Law. Positivism was subjected to severe criticism.
Once again faith in natural law was reaffirmed. However, the conception of Natural Law underwent
significant changes in this period. Basing their views on Kant and Hegel, the modern writers adopted
Natural Law in accordance with times and circumstances. The chief exponents of this movement
were Stammler and Koheler. For example, Stammler admitted that Natural Law could be adopted to
the changing times and circumstances although its fundamental principles remained unchangeable.
He, therefore propounded the theory of "natural law with a variable content".
In the recent times, Prof. Fuller of America has emerged as a great exponent of natural law. He has
propounded the theory of "inner morality of law". In other words, there is an inner morality of law
and there is a definite purpose behind law. Law is not a body of meaningless rules and does not exist
for its own sake. Law exists or is created to achieve some purpose.
The concepts of Natural Law developed from time to time greatly influenced the growth of
international law. In the words of Sir Henry Maine, " The grandest function of the 'law of nature' was
discharged in giving birth to modern international law". Starke has also remarked: "Traces of 'natural
law' theories survive today, albeit in a much less dogmatic form."
There are many traces of the influence of natural law on international law. For example, the
development of human rights, system of punishment of war crimes. etc. are all due to the influence
of natural law. Thus natural law has greatly influenced international law. It may, however, be noted
that natural law kept itself aloof from the actual practice of States. This was the main defect of
natural law. It was this reason that was responsible for the decline of natural law.
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4. Explain the various sources of International Law.
Sources
Sources of international law can be classified into the following categories: -
(1) International Conventions / Treaties

(2) International Customs;
(3) General Principles of Law recognised by civilized nations;
(4) Decisions of Judicial or Arbitral Tribunals;
(5) Juristic Works; and
(6) Decisions or Determinations of the Organs of International Institutions.
The first five sources find mention in Article 38 of the Statute of International Court of Justice and
the sixth source (i.e. decisions or determinations of the Organs of International Institutions) is
conspicuous by its absence from the said Article for the obvious reason that when Article 38 was
drafted and adopted for the first time. this source was not in a sufficiently developed State.
(1) International Conventions.

The term "conventions" applies to any treaty, protocol or agreement. regardless of its title or form.
According to Article 38 of the Statute of International Court of Justice, it is the first source of
international law. In the modern period international treaties are the most important sources of
international law.
As defined by Article 2 of Vienna Convention on the Law of Treaties. 1969. "a treaty is an agreement
whereby two or more States establish or seek to establish relationship between them governed by
international law." Article 3 adds that the fact that the present convention does not apply to
international agreements concluded between States and other subjects of international law, or to
international agreements not in written form shall not affect:
(a) the legal force of such agreements;
(b) the application to them of any rules set forth in the present convention to which they would be
subject under international law independently of the convention;
(c) the application of the convention to the relations of States as between themselves under
international agreements as to which other subjects of international law are also parties.
It may be noted that Vienna Convention of Treaties, 1969 entered into force on 27 January, 1980. As
of January 2013, as many as 113 countries, even those countries which are not parties to the
Convention regard it as declaratory International Law.
International Treaties may be of following two types-

(a) Law-Making Treaties; and
(b) Treaty Contracts.
(a) Law-Making Treaties

Law-making treaties are those treaties which are entered into by a large number of States. These are
the direct sources of international law.
Law-making Treaties may be divided into following two types:
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(1) Treaties enunciating the rules of Universal International Law

Those treaties which are signed by a majority of the States are called the Treaties enunciating the
rules of universal international law. United Nations Charter is an example of such type of treaties.
(2) Those enunciating general principles

Treaties which are entered into by a large number of countries enunciated general principles of
international law 1958 and 1960. Geneva Conventions on the Law of the Sea and Vienna Convention
on Diplomatic Relations, 1961, are good examples of such types of treaties.
(b) Treaty Contracts
Treaty Contracts are those treaties which are entered into by two or more States. The provisions of
such treaties are binding only on the parties to the treaty. Such type of treaties are also the source
of international law because they help in the development of customary rules of international law.
(2) International Customs.

International Custom used to be the most important source of international law in the past. In the
modern period, their importance has lessened. Custom is a habit which has been repeated for a long
time and has ultimately assumed the force of law. Usage is the earlier stage of the development of
custom. By usage we mean those habits which are often repeated by the States. Custom begins
where usage ends. Usages may be inconsistent and opposed to each other, but so is not the case
with custom. In the words of Viner, "A custom, in the intendment of law, is such a usage as hath
obtained the force of law." Customary rules of international law have devoloped in the following
three circumstances-
(a) Diplomatic relations between states;
(b) Practice of Organs of International Institutions; and
(c) State Laws, decisions of the State's Courts and State's Parliamentary or administrative practices.
West Rand Central Gold Mining Co. Ltd. v. R., (1905) 2 K.B. 291 (Right of passage over Indian
Territory Case) ; Portugal v. India, (I.C.J. Rep. 1960 at 6) and Paquete Havana, (1900) 175 U.S. 677 are
good examples of application of custom in international law.
Ingredients or Elements of Custom

Following are the main elements of an international custom :-
(i) Evidence of a General Practice accepted as law

Long duration is an essential element of a custom in Municipal Law. But this is not necessary for an
international custom. Article 38 of the I.C.J. directs the world court to apply international custom as
evidence of a general practice accepted ... ; law. Thus what is more important is the practice of
States accepting the practice concerned as law. In the field of international law, customs have
emerged in short duration, for example, customs relating to sovereignty over air space and the
sovereign rights over the resources of the continental shelf.
(ii) Uniformity and consistency

The custom should be uniform and consistent. But complete uniformity is not necessary.
Nevertheless, there must be substantial uniformity.
(iii) Generality of Practice
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Though universality of practice is not necessary, the practice should have been generally observed or
repeated by numerous States.
(iv)' Opinio juris ncessitatis

As pointed out by the International Court of Justice in North Sea Continental Shelf cases, (I.C.J. Rep.
1969, p. 3), .. customary practice, even when it is general and consistent, is not customary law
unless an opinio juris is present, that is to say, unless the practice is recognized as being required by
international law. It is this sense of law of legal obligation, as distinguished from motives of fairness,
convenience or morality, that underlies customary law."
Importance of custom as a source of International Law

There has been a marked decline in the importance of custom as a source of International law in the
modern times. This is mainly due to the fact that the process of development of a new custom is
very slow. However, in modern times also the development of new custom is possible and at times
customs have developed with accelerated speed. Principle relating to sovereignty over air space and
continental shelf are its glaring examples. But, in view of the accelerated speed of the changes in
International Community, custom has become an inadequate means for bringing about the desired
changes and development of international law. The development of custom is very slow and as
compared to it, rapid changes can be made through treaties so as to adopt International law in
accordance with the changing times and circumstances. The four Geneva Conventions on the Law of
Sea (1958), Vienna Convention on the Law of Treaties (1969) and U.N. convention on Law of the
Sea (1982), to quote only a few examples, bear testimony to this fact.
In South West African case, Judge Tanaka observed: "Briefly the method of generation of customary
international law is in the stage of transformation from being an individualistic process to bring a
collective process. This phenomenon can be said to be the adoption of the collective process of
international law to the reality of the growth of the organized international community. It can be
characterised, considered from the sociological viewpoint, as a transition from a traditional custom
making to international legislation by treaty. Thus, in the modern times the importance of custom as
a source of law has greatly reduced, with the simultaneous rise in importance of treaties and
conventions for the development of International law.
But as pointed out by Edward Cotlins "International organisations also contribute to the
development of customary international law by providing a clear concentrated forum for state
practice. Particularly, in the General Assembly of the United Nations, where more than 106 (now
193) member states are represented, the statements and the notes of the representatives on legal
matters provide evidence of existing customary law, as is illustrated by the discussion on, and the
adoption of, the resolution affirming the principles of the Nuremberg charter and judgment. Still,
other resolutions amount to an interpretation of the rules and principles which the charter already
contains and which are in consequence binding upon member states, authoritative by reason of the
standing of, the United Nations.
Thus, though the custom has been relegated to second place in importance, it still occupies an
important position as a source of law.
(3) General Principles of Law recognised by the civilized States.

According to Article 38 of the Statute of International Court of Justice, the general principles of law
recognised by the civilized Nations are also one of the sources of international law. This is an
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important source of law through which international law adapts itself in accordance with the
changing limes and circumstances. In the words of Lord McNair, "It describes an inexhaustible
reservoir of legal principles from which the tribunals can enrich and develop public international
law," Res Judicata, estoppel, etc are the examples of the general principles of law recognised by
civilized States. The general principles of law are those principles which are recognised by most of
the civilized States. When the court finds that a principle has received general recognition, the court
may apply it as a principle of international law.
Following are some of the important cases relating to the general principles of law recognised by
civilized States:
(a) R. Key (1876) 2 Ex. D. 63.-ln this case the court ruled that international law is based on justice,
equity and good conscience which has been accepted by long practice of States.
(b) United States v. Schooner.-In this case Justice Storey of United States of America ruled that
International Law should be based on the general principles of law recognized by civilized States. He
was giving decision relating to Abolition of System of Slavery.
(c) In the case of diversion of water from Muese, (1937) P.C.I.J. Series AlB, Fasc .. No. 70) the
Permanent Court of International Justice applied res judicata and estoppel.
(d) Chorzow Factory (Indemnity case), [Pub. P.C.U. (1938), Series A, No. 17).-
In this ca e, the Permanent Court of International Justice applied the principle of res judicata also
held that one who violates a rule is liable to make reparation.
(e) Mavrommatis Palestine Concessions Case, [Pub. P.C.I.J. (1924), Series A, No.2.]-ln this case, the
court applied the general principle of subrogation.
(f) Case concerning the Temple of Preah Vihear, [I.C.J. Rep. 1962), p. 6.- In this case, the International
Court of Justice recognised and applied the principle of estoppel.
(g) Bracelona Traction Case, Preliminary Objections, (I.CJ. Rep. (1964)"p. 6].-ln this case also the
International Court of Justice applied the principle of estoppel.
A pointed out by B. Cheng, International Courts have recognised the following general principles:
(i) good faith;
(ii) responsibility;
(iii) prescription;
(iv) in the absence of any express provisions of the contrary, every court has a right to determine the
limits of its own jurisdiction;
(v) a party to a dispute cannot himself be an arbitrator or judge;
(vi) res judicata;
(vii) in any judicial proceeding, the court shall give proper and equal opportunity of hearing to both
parties. These principles should be codified.
(4) Decisions of Judicial and Arbitral Tribunals.

The decisions of Judicial and Arbitral Tribunals are also the sources of International Law. But,
according to Article 38 of the International Court of Justice, they are subsidiary means for the
determination of the rules of law. This source includes international as well as State decisions. As
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regards the decisions of the International Court of Justice, Article 59 of the Statute of International
Court of Justice provides that they will have "no binding force except between the parties and in
respect of that particular case". Since, the doctrine of precedent do no apply in field of international
law the international judicial decisions are not generally binding. They are regarded as subsidiary
means for the determination of the rules of international Law. The arbitral decisions have still less
value because it is generally said that arbitrators work more as mediators rather than as judges.
(5) Juristic Works

The opinions of jurists are also regarded as sources of International Law. But, they are also subsidiary
means for the determinations of the rules of international law. While deciding the case, if the court
does not find any treaty or judicial decision or legislative act or any established custom, the court
may take the help of opinion of jurists as subsidiary means for the determination of rules of
international law.
(6) Decisions or determinations of the organs of international institutions.

In the modern age the decisions or determinations of organs of international institutions are also
treated as sources of International Law. In view of the constant change in the form and content of
international law, international organisations have also become a subject of international law. The
decisions and determinations of the organs of such institutions are also, therefore, regarded as the
source of international law because they held in the development of customary rules of
international law. After the establishment of U.N. most of the development of international law and
its codification has taken place through the instrumentality of international organisations. The
International Court of Justice has recognized it in a number of cases such as Certain Expenses of the
UN. (1962), South West African Cases (1966), Military and Para Military Activities ill and against
Nicaragua (1986), Effects of Awards of Compensation made by the U N. Administrative Tribunal
(1954), Application for Review of Judgment No. 158 of the UN. Administrative Tribunal and
Application for Review of Judgment No. 273 of the UN. Administrative Tribunal.
Some other subsidiary sources of International Law

Following are the other subsidiary sources of international law :-
(i) International Comity.

Since mutual relations of nations are often based on the principle of comity, international comity has
helped the development of international law. That is to say when a State behaves in a particular way
with other States, the latter reciprocate and behaves in the same way.
(ii) State Papers

In the modern period, almost all the civilized States have diplomatic relations with each other. They
send letters to each other in respect of matters of mutual interests. These letters are sometimes
published. A study of these letters reveals that certain principles are repeatedly followed by States in
their mutual intercourse. Sometimes these State papers help in the solution of a conflict or
controversy.
(iii) State guidance for their officers

It is mostly seen that a number of matters of the Governments of respective States are resolved on
the advice of their legal advisers. These advices are also, therefore, sometimes treated as sources of
international law.
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(iv) Reason
‘Reason' has occupied a special position in all ages. In modern period also it occupies an important
place. It has performed a special role in the development of international law. As pointed out by
Pollock, "The law of nations is founded on justice, equity, convenience and the reasons of the thing
and confirmed by long usage."
(v) Equity and justice

In Barcelolta Traction case." Sir G. Fitzmaurice emphasized the need for a body of rules and
principles of equity in the field of international law. "Equity is used here in the sense of
considerations of fairness, reasonableness and policy often necessary for the sensible application of
the more settled rules of law. Strictly it cannot be a source of law, and yet it may be an important
factor in the process of decision. Equity may play a dramatic role of supplementing the law or appear
unobtrusively as a part of judicial reasoning.
The principle of the 'exception' whereby existing rules are qualified to meet special cases, is a form
of equity which takes on the form of judicial legislation," Further, "equity, in the present context, is
encompassed by Article 38(1) (c) of the Statute, and not by Article 38(2), which provides : "the
provision shall not prejudice the power of the Court to decide a case ex aequo et bono if the parties
agree thereto." This power of decision ex aequo et bono involve compromise, conciliation, and
legislation in a friendly settlement. whereas equity, in English sense is applied as a part of the normal
judicial function.
In North Sea Continental Shelf Cases." the International Court of Justice also observed : "Whatever
the legal reasoning of a court of justice, its decisions must definitely be just and therefore in that
sense equitable. Nevertheless when mention is made of a court dispensing justice or declaring the
law, what is meant is that the decision find its objective jurisdiction in the consideration lying not
outside but within the rules, and in this field it is precisely a rule of law that calls for the application
of equitable principles. There is substantially no question in this case of any decision ex aequo et
bono such as would only be possible under the conditions, prescribed by Article 38 paragraph 2, of
the Court's Statute."
In the modern times more attention is being given to the principles of equity and justice. There is
some evidence of the application of the principles of equity and justice.
Three such areas were demonstrated in the North Sea Continental Shelf Cases, (1969).
They are:
(i) The Practice of States in their International Relations;
(ii) International Customary Law; and
(iii) The Administration of Justice.
The principles of equity and justice make their contribution in the international law making and in
the codification and development of international law. Recently the principles of equity and justice
have been referred time and again the context of New International Economic Order, new Law of
the Sea and in the field of Environment.
Order of use of Sources of International Law

According to Article 38 of the Statute of International Court of Justice, following is the order of the
use of sources of International Law
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(a) International Conventions,

(b) International Customs,
(c) General Principles of Law recognised by civilized nations,
(d) Judicial decisions and juristic opinion as subsidiary means for the determination of rules of
International Law.
As rightly pointed out by Manely O. Hudson, "yet Article 38 did not establish a rigid hierarchy. In
applying a provision in a convention, the Court may have to take into account the customary law
prevailing when the convention was entered into, or general principles of law, as well as judicial
precedents. A distinction may also have to be drawn between the categories Iisted, for they are not
on equal footing. While it is possible to apply conventional or customary rule of law, it seems more
proper to say that general principles of law, judicial precedent and juristic writings have only the
nature of sources from which an applicable rule may be deduced."
In Nicaragua v. U.S.A. the International Court of Justice by majority has taken the view that the
sources of International Law are not hierarchical but are necessarily complimentary and inter-
related.
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5. Who are the subjects of International Law? Explain. Examine

how far individuals and international organisations are subjects
of international law
Various theories regarding subjects of International Law.-

There are three main theories in regard to the subjects of International Law—
(1) Only States are subjects of International Law.
(2) Individuals alone are the subject of International Law.
(3) States are main subjects of international law but individuals, international organisations and
certain non-State entities are also the subjects of international law.
(1) only States are subjects of International Law: -

According to this view, only states are the subjects of international law. This view has been severely
criticised. It fails to explain the ca e of slaves and pirate who have been conferred some rights under
international law. But those who subscribe to the view that states are the only subjects of
international law. say that they are not the subjects but objects of international law. They further
point out that they get these rights only through the medium of the State. But, as Prof.
Schwarzenberger has written, it is a contradiction in term to say the individuals are not subject but
objects of international law. In his view it would be wrong to say that individual who forms the basis
of the society, may only be .an object and not subject of international law.
In Reparation for injuries Suffered in the Service of the U.N., the International Court of Justice held
that "the United Nations has the capacity to bring an international claim against the State for
obtaining reparation when an agent of the U.N. suffers injury in the performance of his duties in
circumstances involving the responsibility of a State.
Thus. "the court, by implication, rejected the proposition that states only are subjects of
international law" and hence "the traditional view that states only an: the subjects of international
law is not a rule of modem international law". It is now well-settled that besides stales, individuals,
international organisations and certain non-State entities are also the subjects of international law.
There are some International treaties wherein rights have been conferred directly on individuals.
Besides this, the development of human rights has sounded a death-knell to this theory. Individuals
can now mot only claim these rights directly, they can claim rights even against their own states.
(2) Individuals alone are the subjects of International Law. –

The chief exponent of this theory is Kelsen. Before Kelsen, Westlake had also remarked, "The
duties and rights of states are only the duties and rights of men who compose them".
According to, Kelsen both State law and international law apply on the individuals. If we make an
analysis, we find that individual is at the root of all laws. Thus, there is no real difference between
international law and State law. Kelsen, however, admit; that the difference is simply this that State
law applies on individual s immediately or directly, whereas the international law applies
'imediately'.
It may be noted that the logic behind the views of Kelsen is very strong and it is very difficult to
disprove it, although practice of the State is just contrary. In practice, international law is generally
regarded as comprising of the major part of its rules regulating the relations of State. This view
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seems to be a reaction of the view that only Stales are the subjects of international law. This is in
fact a very extreme view and cannot be regarded as completely correct. Individuals are now
recognized as subjects of international law and they can (although in a very few rather negligible
cases) even claim rights against States (including his own) but their procedural capacity to enforce
their rights is grossly deficient. Besides this, history and practice of international law shows that
States have always been, and are even now the main subjects of international law. Moreover,
present practice shows that international organisations and certain non-State entities are also to
some extent regarded subjects of international law.
(3) States are main subjects of International Law but individuals,

international organisations and certain non-State entities are also subjects of
international law. -
This view, besides making the synthesis of the first and second views goes a step ahead to include
international organisations, certain other non-State entities as subjects of international law. This is
definitely a better view than the first two views. As aptly remarked by P.E. Corbet, "To me it has long
meant that we are witnessing a transition in international legal development from a prolonged stage
in which the predominant, not to say exclusive, concern was the regulation of the conduct of State
as distinct entities to one in which equal attention is given to promoting the growth of a body of
world law transcending States. and applicable on a footing of equality of individuals, corporations,
international organisations and States".
Conclusion.-
On the basis of the above discussion, it may be concluded that not only States. individuals,
international organisations and certain other non-State entities are the subjects of international law.
The fact, however, remains that major part of the rules of international law deals with the
intercourse of States with each other.
Place of individual in International Law: -

As pointed out earlier individuals are also now treated to. be the subjects of international law. In
recent times several treaties have been entered into wherein certain rights have been conferred and
duties have been imposed upon the individuals. In this connection following may be noted:
(i) Pirates. -
Pirates are treated as enemies of mankind under international law.
Every State can apprehend and punish them.
(ii) Harmful acts of Individuals. –

Under certain circumstances States are responsible for the harmful acts of their individuals. If a
person causes harm to the personal property of the Ambassador of another State, then under
international law the State is responsible for his act. Such persons are, therefore, given stringent
punishment.
(iii) Foreigners. -
To some extent international law regulate the conduct of foreigners. It is the duty of each State to
give them those rights which it generally confers upon its own citizens.
(iv) War Criminals.

War criminal can be punished under international law.
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According to Nuremberg and Tokyo Tribunals, since war crimes are committed by the individuals, it
is by punishing them the provisions of international law can be enforced.
(v) Espionage. -
Espionage is a crime under international law and, therefore, spies can be apprehended and
punished.
(vi) The United Nations charter gives a place of importance to the individuals. The Preamble of the
Charter tarts with the words "We the people of the United Nations " Since the inception of the
United Nations, international law relating to individuals has received a great impetus. The
provisions of the United Nations Charter in this connection have been discussed under the Chapter
of "Human Rights." In 1948, the United Nations General Assembly adopted the Universal Declaration
of Human Rights. This Declaration mentions in detail the fundamental rights and freedoms of the
individuals. In 1948, the General Assembly also adopted the Genocide Convention. Yet another
landmark is the establishment of the U.N. Commission on Human Rights. An individual of any
member State of the U.N. who claims to be the victim of violation of Human Rights by his own State
may send a petition to the Commission through the Secretary-General of the U.N.
(vii) In addition to the above-mentioned examples, certain treaties and conventions have been
entered into wherein individuals have been conferred upon the rights directly. The 1965 Convention
on the Settlement of Investment Disputes between the State and the Nationals of other States is a
glaring example of such benign trend.
(viii) The International Covenant on Human Rights confer rights directly upon the individuals. These
along with the U.N. Commission on Human Rights have enabled the individuals to send petitions
even again t their own States.
Thus, slowly and gradually individuals are occupying an important place under international law. It
may, therefore, be concluded that "individual has become a subject of international law not having
the same quality as a State but capable of asserting rights himself before some international
tribunals although lacking procedural capacity to bring actions in most cases The legal order will
continue to be imperfect as long as it faces new challenges such as apartheid and modern
technological advance, and the individual as a subject of international law will continue to play an
important role in the development of the law".
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6. Examine the theories as to the relation between International

Law and State Law.
There are five theories regarding the relationship between International Law and State Law-
(1) Monism,
(2) Dualism,
(3) Specific Adoption Theory,
(4) Transformation theory, and
(5) Delegation Theory.
The two main theories are Monism and Dualism and other theories have been derived from these
two theories.
(1) Monism. -
According to this theory, law is a unified field of knowledge, no matter whether it applies on
individuals, States or other entities. Thus international law and State law are intimately connected
with each other. They are the two branches of unified knowledge of law. "According to Monist
belief, international obligation and municipal rules are facts of same phenomenon, the two deriving,
ultimately from one basic norm and belonging to the unitary order comprised by the conception of
law." In the ultimate analysis of law we find that individual is at the root of all laws. In the
ultimate analysis, all laws are made for individuals. Wright Kelsen and Duguit, etc., are some of the
prominent exponents of Monism. Theoretically and logically this appears to be the correct theory
and it is very difficult to disprove it. However, it may be noted that this theory is not based on the
actual practice of State.
(2) Dualism.-
According to this theory, international law and municipal law are two separate laws. Triepel and
Anzilloti are the chief exponents of this theory. According to Triepel, international law and State law
are different because their subject and origin are different. In his view individual is the subject of
State law whereas State is the subject of international law. Besides this, origin of the State law is the
will of State, but origin of the international law is common will of the States. It has been pointed out
earlier that besides, States, individuals, international organisations and some non-State entities are
also the subjects of international law. As regards origin of international law, the conception of State
will is not correct. It is rather metaphorical. In fact, the State will is nothing but the will of the people
who compose it. There are certain fundamental principles of international law which are binding
upon the States even against their will.
In the view of Anzilloti, the fundamental principle of international law is pacta sunt servanda (i.e.
agreements, between the States are to be respected in good faith). This can also be criticised
because this principle fails to explain the binding force of customary rules of international law.
Whether Monism or Dualism is the correct theory.-

The above discussion shows that monism is a more correct theory but it is submitted that no theory
can be complete in itself and it is not possible to include all the elements in it. The practice of
States indicates that sometimes there is a primacy of international law, sometimes there
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is the primacy of the municipal law and sometimes there is mixture of different legal systems. For
example, in the Greco, Bulgarian Communities case, the Permanent Court of International Justice
held, "it is a generally acceptable principle of international law that in relations, between powers
who are contracting parties to a treaty, the provisions of the municipal law cannot prevail over the
treaty." On the other hand. when the municipal courts find that the conflict between the
international law and municipal law is of such nature that cannot be avoided, they give primacy to
the municipal law. In this connection, Mortensen v. Peters and' Sri Krishna Sharma v. The State of
West Bengal, each situation deserves a special mention. Gould has correctly observed. "As matters
stand, each situation must be analysed by itself, including the tribunal before which litigation,
if any, is brought in order to settle the question of which two conflicting rules of law of different
orders prevail in the concrete dispute."
(3) Specific Adoption Theory.-

This theory is based on the theory of positivists.
According to this theory international law can be enforced in the field of State law only after it has
been specifically adopted by State law. This theory can also be subjected to criticism because there
are several principles of international law which are applied in the field of municipal or the State law
without specific adoption. However, this view is generally followed by States in respect of
international treaties. It is argued that unless there is specific adoption of the international treaties
such as Tokyo Convention Act, 1975 and Vienna Convention of Diplomatic Relations Act, 1972
enacted by Indian Parliament or there is some sort of transformation, international treaties as such
cannot be enforced in the municipal field. While considering the International Convention on
Civil and Political Rights the Supreme Court of India has held in Jolly George v. The Bank of Cochin
"The positive commitment of the State Parties ignites legislative action at home but does not
automatically make the covenant enforceable part of the corpus juris of India”
As regards specific adoption of international treaties by Indian parliament, the Anti Apartheid
(United Nations Convention) Act, 1981, the Anti-Hijacking Act, 1982, the Suppression of Unlawful Act
Against the Safety of Civil Aviation Act, 1982 and the International Monetary Fund and Bank
(Amendment) Act, 1982 deserve a special mention.
It may however, be noted here that there are many principles of international law (especially
customary rules) which are applied in the field of municipal law without specific adoption.
(4) Transformation Theory.-

According to the exponents of this theory, the rules of international law to be applied in the field of
municipal law must undergo transformation. This theory is also based on the theory of consent
which has been already criticised earlier. There are several law-making treaties and principles of
international law which become applicable in the field of Municipal law without undergoing the
process of transformation. The Headquarter's Agreement between the United States of America and
the United Nations is a glaring example of this.
(5) Delegation Theory.-

The critics of transformation theory have put forward a new theory called Delegation Theory.
According to this theory, the constitutional rules of international law permit each State to determine
as to how international treaties will become applicable in the field of State law. The Constitution of
each State contain provision in this connection. Thus, no transformation takes place. This theory is
based on presumption and has been severely criticized.
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Question of primacy: -
According to the dualist theory, in case of conflict between international law and State law, State
law will prevail. On the other hand Monistic writers are decided on this issue. Some jurists such as
Kelsen are of the view that in accordance with the fact and circumstances there may be the primacy
of the State law or international law as the case may be.
Criticism.-
The view that State law will prevail over international law in case of conflict, can be subjected to the
following criticisms:
(1) The view that international law derives validity from State constitution is absurd because it is
generally agreed that disappearance of State constitution will not affect the validity of the
international law.
(2) When a new State is admitted to the family of nations it becomes bound to obey the rules of
international law even against its will.
(3) Most of the States have accepted the supremacy of international law in their constitutions,
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7. Explain the theories relating to relationship between

International law and Municipal law
1. British Practice
The British Practice relating to the customary rules of international law and treaty rules is different.
A. -British Practice regarding customary rules of International Law.-

In Britain customary rule of international law are treated as part of their own law. But these rules are
subject to the following two conditions:
(i) Rule of international law should not be inconsistent with the British Statute.
(ii) When the highest Court determine the scope of customary rule of international law. all the
courts in Britain are bound by it.
The influence of the above practice is that British Court generally interpret the statutes in such a way
that they should not go against international law. Besides this, in British Courts the rule of
international law need not be proved through evidence.
There are following exceptions to the British practice in regard to customary rule of international
law-
(i) Acts of State do not come within the purview of the British Courts, no matter whether they violate
the rules of international law.
(ii) The British courts are bound by the prerogative power of Crown such as recognition of any State.
B. British Practice Regarding Treaty Rules.-

In Britain the practice relating to treaties is based on the constitutional principles governing the
relations between the executive and Parliament. The matters relating to negotiations, signatures
etc. come under the prerogative powers of the Crown. In case of some type of treaties the
parliamentary consent is necessary, while in other cases no consent is necessary for their
application.
Consent is necessary for the following types of treaties :-
(a) Treaties affecting the rights of British citizens;

(b) Treaties which amend or modify common or Statute laws of Britain;
(c) Treaties conferring additional powers on Crown; and
(d) Treaties which impose additional financial burden on the Government.
In addition to these, treaties which expressly provide that for their implementation consent of the
Parliament is required, consent of Parliament is essential for their application. The consent of
Parliament is also necessary for those treaties which cede the British territory. Other types of
treaties do not require Parliamentary consent.
II. American Practice

In America also the practice regarding customary rules and treaties rules of international law is
different.
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A. Practice regarding customary rules of International Law.-

In America the customary rules of international law are treated as a part of American law. In
Paquete Hobana, Justice Gray remarked, "International Law is a part of our law and must be
ascertained and administered by the courts of justice of appropriate jurisdiction as often as
questions of rights depending on it are duly presented for determination." The American
Courts also interpret Statutes of Congress in such a way that they should not go against
international law.
B. American practice regarding Treaty Rules.-

In America the practice relating to treaty rules is based upon the provisions of the constitution.
Article VI of the American Constitution provides that Constitution of United States, all laws made in
pursuance thereof and the international treaties entered into under the authority of the United
Nations shall be the supreme law of the land.
Thus in America International treaties have been placed in the same category as the State law.
However, it has been held by the Supreme Court of the United States of America that in case of
conflict between the Constitution and International Treaty, the Constitution shall prevail. Besides
this, in case of conflict between international treaty and Municipal law, whichever is later in date
prevails.
In America treaties are divided into two categories.-
(1) Self-executing treaties and
(2) non-self executing treaties.
Self-executing treaties become applicable in America without the consent of Congress, whereas non-
self-executing treaties require the consent of the Congress to become applicable in the field of State
law.
III. Indian Practice

Article 51 (c) of the Constitution of India provides that State shall endeavour "to ensure the respect
to international law and obligations arising out of international treaties". It has been pointed out and
rightly too, that the words "international law" mean customary rules of international law because
"international treaties" have been separately mentioned in the said provision. The above article
does not provide clear guidance regarding application of rules of international law in the field of
State law.
Moreover, Article 51 (c) is conspicuous by its silence over other sources of international law. It may
be noted here that Article 372 of the Constitution provides that the laws which prevailed before the
adoption of the Indian Constitution shall continue to prevail if they have not been specifically
repealed or they are not inconsistent with the provisions of the Constitution. As a matter of fact,
Indian practice is more or less same to that of Britain. A brief reference may be made here to the
case of Sri Krishna Sharma v. State of Bengal, wherein it was held that whenever the courts interpret
State law they should try to interpret it in such a way that their interpretation should not be contrary
to international law.
Reference may be made here to Article 253 of the Constitution which provides that 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 an
International Conference, association or other body.
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Examples of exercise of this power by the Parliament are Diplomatic Relations (Vienna Convention)
Act, 1972 to give effect to the Vienna Convention on Diplomatic Relations, 1961 and the Tokyo
Convention Act, 1975 to give effect the Tokyo Convention, 1963 on Hijacking.
It would, however, be wrong to content that implementation of every treaty would require
legislative aid. This was held by the Delhi High Court in Shiv Kumar Sharma v. Union of India (1969).
The same view was held by the Supreme Court in Maganbhai Ishwar Bhai Patel v. Union of India. In
both these cases it was held that a border settlement does not amount to cession and an agreement
to implement border settlement is equivalent to self-executing treaty and does not require any
constitutional amendment or legislative aid.
In Union of India v, Sukumar Sengupta or 'Teen Bigha' case, under 1974 agreement and 1982
agreement the Government of India had given to Bangladesh Government the facility of using the
Indian area called "Teen Bigha". As per agreement "the lease in perpetuity" of the said area had
been given for the purpose of connecting Dahagram and Angarpota with Pandbari Mouza (P.S.
Patyram) to enable the Bangladesh Government to exercise sovereignty over Dahagram and
Angarpota. Clause 2 of the agreement provided that Sovereignty over leased area shall continue to
vest in India. The rent of the lease area shall be Re. 1/- per annum but Bangladesh would not be
required to pay the said rent for the Government of India waived its right to charge the said rent.
The Supreme Court held that it was neither cession nor lease. "The concessions given to Bangladesh
over the said area might amount to servitude suffered by it in its territory, as known in International
Law".
The Supreme Court further held that since there was no cession of any part or territory not
abandonment of sovereignty constitutional amendment was not necessary and "there was no cause
to direct the legislature to amend or pass suitable laws."
In case of conflict between a provision of an international treaty such as Article of International

Covenant on Civil and Political Right to which India is a party and a provision of a State statute such
as Section 51 (proviso) and Order 21, Rule 37, Civil Procedure Code it is the latter which shall prevail
if the international treaty in question has neither been specifically adopted in the municipal field nor
has gone under transformation. This was held by the Supreme Court of India in Jolly George v.
Varghese and another. The rule laid down by the Supreme Court in this case has been implemented
by the Karnataka High Court in Civil Rights Vigilance Committee, S.L.S.R.C. College of Law, Bangalore
v. Union of India. 12 In this case, the High Court observed, " that the provision in Article 51 is not
enforceable by any court and if the Parliament does not enact any law for implementing the
obligations under a treaty entered into by the Government of India with foreign countries, courts
cannot compel Parliament to make such law. In the absence of such law, courts cannot also, in
our view enforce obedience of the Government of India to its treaty obligations with foreign
countries ".
But, the position will be different when there is no conflict between International Conventions and
the domestic law. As pointed out by the Supreme Court in Vishaka v. State of Rajasthan, in the
absence of domestic law Occupying the field to formulate effective measure to check the evil of
sexual harassment of working women at all work places, the contents of International Conventions
and norms are significant for the purpose of interpretation of the guarantee of gender equality of
right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the
safeguards against sexual harassment implicit therein. Any international convention not inconsistent
with the fundamental rights and in harmony with its spirit must be read into these provisions to
enlarge the meaning and content thereof, to promote the object of constitutional guarantee. This is
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implicit from Article 51 (c) and the enabling power of Parliament to enact laws for implementing the
International Convention, and norms by virtue of Article 253 read with Entry 14 of the Union List in
Seventh Schedule of the Constitution.
In this case, the Apex Court was dealing with the problem of sexual harassment of working women.
Delivering the judgment for the three Judge-Bench, J.S. Verma, C.J.I., observed that the meaning and
content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude
to encompass all. the facets of general equality including prevention of sexual harassment abuse.
Independence of judiciary forms a part of Our constitutional scheme. The International Conventions
(especially, Convention on the Elimination of All Forms of Discrimination against women) and norms
are to be read into them in the absence of enacted domestic law Occupying the field when there is
no inconsistency between them. 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.
In Apparel Export Promotion Council v. A. K. Chopra, the Supreme Court referred with approval the
decision in Vishaka v. State of Rajasthan for its innovative judicial law making process". In this case, a
superior officer of the corporation was found guilty of molesting and of having attempted to physical
assault to a subordinate female employee. As a punishment, he was dismissed from service. But, the
High Court held that the Occurrence as alleged had not taken place. Though the High Court did not
find fault with the finding as the unbecoming act delinquent officer or with the conduct of inquiry
yet the High Court interfered with punishment of dismissal On the ground that since the delinquent
kid not "actually molested" and had "not managed" to make physical contact with her, the
punishment of removal was not justified. The Supreme Court held that what punishment was
required to be imposed in the facts and circumstances of the case was a matter which fell exclusively
within the jurisdiction of the competent authority and did not want any interference by the High
Court. The entire approach of the High Court had been faulty. The impugned order of the High Court
cannot be sustained on this ground alone. Reversing the order of the High Court, the Supreme Court
further observed that there is another aspect of the case which is fundamental and goes to the root
of the case and concerns the approach of the High Court while dealing with cases of sexual
harassment at the place of work of female employee.
Dr. Anand, C.J.I., further observed:

"In cases involving violation of human rights the courts must for ever remain alive to the
international instruments and conventions and apply the same to a given case when there is no
inconsistency between international norms and the domestic law occupying the field. In the instant
case, the High Court appears to have totally ignored the intent and content of the international
conventions and norms while dealing with the case."
The learned C.J.I. then referred ILO Seminar held at Manila in 1993, the Convention on the
Elimination of All Form of Di crimination Against Women, 1979, the Beijing Declaration and the
International Covenant on Economic, Social and Cultural Rights and observed:
"These international instruments cast an obligation on the Indian State to gender sensitise its laws
and the court are under an obligation to see that the message of the international instrument is not
allowed to be drowned. The Supreme Court has in numerous cases emphasized that while discussing
constitutional requirements, court and counsel must never forget the core principle embodied in
international conventions and instruments and as far as possible give effect to the principles in those
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international instruments. The Courts are und. r an obligation to give due regard to international
conventions and norms for construing domestic laws more so often when there is 110 inconsistency
between them and there is a void in domestic law. "
In Chairman, Railway Board and others v. Mrs. Chandrima Das and others, the Supreme Court
observed that "the International Covenant and Declarations as adopted by the United Nations have
to be respected by all signatory states and the meaning given to the word in such declarations (for
example Universal Declaration and Declaration on the Elimination of Violence Against Women) and
covenants have to be such as would help in effective implementation of these rights. The
applicability of the Universal Declaration of Human Rights and principles thereof may have to be
read, if need be, into the domestic jurisdiction."
Starke has rightly drawn following conclusions:

(1) Customary rules of international law are treated to be part of domestic law in a large number of
states and in case they do not conflict with existing municipal law, there is no need of their specific
adoption.
(2) Only in a few States customary rule of international law, without specific adoption are applied by
municipal courts even in case of conflict with municipal statute or judge-made law.
(3) As regards practice relating to the application of treaties within the municipal sphere practice of
state is not uniform.
(4.) In large number of States, municipal courts give priority to the application of municipal law,
irrespective of the applicability of rules of international law and the question of any breach of
international law is left to be settled at the diplomatic level.
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8. Whether International Law is Law in the true sense of the term?
It will be desirable to discuss first the question whether International Law is true law or not. This
question is now only of academic interest because it has been well established for once and for all
times that International Law is true law. However, a discussion on this question is still important for
it helps to understand the nature of International Law.
Whether International Law is law in the true sense of the term or not. -
The controversy whether International Law is true law or not depends upon the definition of the
word 'law'. As remarked by Prof. Glanville L.Williams, "The largest of jurisprudential controversy that
as to the word 'law' is a verbal dispute and nothing else."
If we subscribe to the view of Hobbes, Au tin and Pufendorf, that law is command of sovereign
enforced by superior political authority, then international law cannot be included in the category of
law. On the other hand, if we subscribe to the view that the term 'law', cannot be limited to the rules
enacted by the superior political authority, then international law can be included in the category of
law.
According to Austin, law is given by a determinate superior political authority to political inferiors
and is backed by a coercive enforcement agency. Thus, according to Au tin, sanction occupies an
important place in the enforcement of law. People follow law due to sanction or coercive element
inherent in law. Hobbes also subscribes to this view. In the view of Hobbes, man is by nature nasty,
brutish and violent and fear or sanction which is inherent in law i necessary to maintain order in
society. Further, men need for their security "a common power to keep them in awe and to direct
their action to common benefit." Holland, Bentham, Jethro Brown, etc. are other jurists who deny
the legal character of international law. According to these jurists, international law lacks an
effective legislative machinery, an executive machinery and potent judiciary and above all the
sanction which is necessary for the enforcement of law.
The definition of law given by Austin is not correct. In the words of Prof. Oppenheim, "This definition
is not correct. It does not cover that part of municipal law which is termed an unwritten or
customary law. There is, in fact, no community and no State in the world which exist with written
law only." In his view, law is, "a body of rules of human conduct within a community which by
consent of this community shall be enforced by external power." Brierly and Prof. Hart have also
criticised the Austinian definition of law.
According to Brierly, "Unless we distort facts so as to fit them into the definition, it cannot account
for the existence of the English Common Law." Further, "If as Sir Frederick Pollock writes, and as
probably most competent jurists would today agree, the only essential conditions for the existence
of law are 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." Criticizing
the Austinian definition of the "law, Prof. H.L.A. Hart has also written that this concept
"plainly approximates closer to penal statutes enacted by the Legislature of a modern State than to
any other variety of law."
According to Oppenheim, the existence of law presupposes the existence of three pre-requisites :-
(i) a community;
(ii) a body of rules; and
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(iii) common consent of the community that if necessary these rules shall be enforced by an external
power. As pointed out in the Ninth Edition of Oppenheim's International Law (1992), "The three
requirements of this definition (i.e. Oppenheim's definition of law) are satisfied by international law,
to a greater or lesser extent. The States of the world do together constitute a body bound together
through common interests which create extensive intercourse between them, and differences in
culture, economic structure or political system, do not affect as such the existence of an
international community as one of the basic factors of international law. Rules for conduct of the
members of that community exist and have existed for hundreds of years. Equally, there exists a
common consent of the community of States that rules of international conduct shall be enforced by
an external power, though in the absence of a Central authority for this purpose States have
sometimes to take law into their own hands by such means as self-help and intervention " Further
outlawing of resort to force by the U.N. and steps for international enforcement action have led to
less reliance on self-help.
Most of the jurists now subscribe to the view that international law is law. It has been pointed out
that sanction is not an essential element of law. Even if it is regarded as an essential element, it
would be wrong to say that international law has no sanction behind it. Brierly has rightly pointed
out, "It is both practically inconvenient and also contrary to best juristic thought to deny its (i.e.
international law) legal character." Views of jurists, who regard international law as really law may
be summed up as follows :-
(1) The term law cannot be limited to rules of conduct enacted by a sovereign authority. It has been
established by Historical Jurisprudence that in many communities a system of law existed although
such communities lacked a formal legislative authority. As pointed out by Starke, such law did not
differ from any State law with true legislative authority.
(2) As pointed out by Oppenheim, in practice, international law is recognised as law by the States
and they consider it binding on them.
(3) Even when the States violate international law they never question its legal existence or legal
character. On the contrary, they try to interpret the rules of international law so as to justify their
conduct.
(4) The Austinian concept of law fails to account for the customary rules of international law.
(5) In the modern time, customary rules of international law are diminishing and are being replaced
by law making treaties and conventions.
(6) When international disputes arise. States, instead of relying on moral arguments base their
arguments on the provisions of treaties, precedents and opinions of jurists.
(7) In some States(For example, the USA and U.K.), international law is treated as a part of their own
law.
(8) The Statute of International Court of Justice provides that the Court shall decide such disputes as
are submitted to it in accordance with international law.
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(9) International Conferences and Conventions treat international law as law in the true sense of the
term.
(10) The United Nations is based on the true legality of international law. The Preamble to the U.N.
expresses the resolve of the member States to "establish conditions under which justice and respect
for the obligations arising from treaties and other source of International Law can be maintained.
(11) It is also pointed out that sanction is not an essential element of law. It is also a fact that people
generally follow law as a matter of habit and practice. However, international law is not completely
without sanction although the sanctions behind it are weaker as compared to State Law.
International Law operates in a decentralized system. Each state is sovereign and equal in the eye of
law. Article 59 of the statute of International Court of Justice provide that the decisions of the
International Court of Justice shall not be binding except upon a party to a dispute and only in
respect of the particular dispute. The decisions of the International Court of Justice are binding upon
the parties to a dispute. In case any party fails to comply with the decision, the Security Council on
the request of other party may make recommendations or decide upon measures to be taken
to give effect to the judgment. Besides this, war, reprisals etc. have been regarded as sanction
behind international law. Chapter VII of U.N. Charter provides for international enforcement actions.
Besides U.N. Charter each and every International organisation such as ILO, WHO, FAO, ICAO etc. has
certain sanctions in its constituent treaty.
(12) Public opinion is also considered as the ultimate sanction behind the binding force of
international law and for that matter, behind any law.
(13) Those who deny the legal character of international law emphasize that it is frequently violated.
It is true that International Law is frequently violated but it does not mean that it is not law. Even
State or municipal law is frequently violated. Frequency of violations of law and the question of
international law being law are two different things. Frequency of violations is connected with the
weakness or strength of the enforcement machinery. Though State or municipal law is frequently
violated, it is never said that it is not law. What is true of Municipal law should also hold good for
International Law.
Conclusions.
On the basis of the above arguments it may be concluded that International Law is in fact law.
International Law operates entirely in a different setting. It operates in a decentralized system. Prof.
Hart has rightly remarked, " that no simple deduction can be made from the necessity of organised
sanctions to Municipal law, in its setting of physical and psychological facts, to the conclusion that
without them international law, in its every different setting imposes any obligations, if not binding,
and so not worth the title of 'law'. As aptly remarked by Loui Henkin, "much of the
misunderstandings of international law is due to a failure to recognise law where it exists". Further,
"Fortunately, international law exists and it works-not perfectly or always but well enough and often
enough to make a considerable difference in the conduct of international affairs. Although there is
no one to determine and adjudge the law, there is wide agreement on the content and meaning of
law and agreements, even in a divided world burgeoning with new nations."
According to Starke, international law is a 'weak law' because existing international legislative
machinery operating mainly through law making convention is not comparable in efficiency to State
legislative machinery. International Law can be said to be 'weak' only when it is compared with
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municipal law. Much of the controversy relating to international law is due to the fallacy that the
system of municipal law is an ideal one and all legal systems and for that matter international law
also must conform to that ideal. Municipal law operates in a centralized system whereas
International Law operates in a decentralized system. The comparison is therefore not a happy one.
International Law must be understood in its own setting and the system in which it operates. It is as
strong and as effective as it can be under the system in which it operates.
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9. Write short notes on:

a) Weakness of International Law.
Following are the weaknesses of the International Law :-

(1) It lacks effective authority to enforce its rules.
(2) It lacks effective legislative machinery.
(3) The International Court of Justice has no compulsory jurisdiction in the true sense of the terms,
(4) The sanctions behind international law are very weak.
(5) It cannot intervene in the matters which are within the domestic jurisdiction of States.
(6) Many rules of international law are uncertain and vague.
(7) International Law has failed to maintain order and peace in the world. It is also pointed that there
is no executive in International Law and as such violations of International Law go unpunished.
As pointed out above, these so-called weakness come to light when we compare International Law
with State law which has usually a strong executive, legislature and judiciary. But a pertinent
question is why should we compare international law with State law. There can be no comparison
with two unequals. International law operates in a decentralized system whereas State law operates
in a centralized system. International law ought to be considered what it is and what it ought to be.
For example, United Nations is based on sovereign equality of all its members. Besides this, the
decision of the International Court of Justice has no binding force except between the parties and in
respect of that particular case. On the other hand. for example, Constitution of India provides that
decision of the Supreme Court is binding on all High Courts, meaning thereby on all people of India,
irrespective of whether they are parties to the case or not.
Suggestions for improving International Law :-

(1) The International Court of Justice should be given compulsory jurisdiction in the true sense of the
term,
(2) An International Criminal Court should be established to decide cases of international crimes,
(3) International Law should be properly codified and scientifically revised from time to time,
(4) The machinery to enforce the decisions of the World Court should be strengthened,
(5) The powers and scope of the activities of the International Law Commission should be expanded,
(6) The doctrine of judicial precedents should be applied in the field of international law,
(7) In order to strengthen the legislative machinery of international law. more law-making treaties
and conventions should be made and there should be a provision for their revision from time to
time,
(8) The legislative activities of the General Assembly should be further enlarged,
(9) Such activities of the U.N. should be encouraged as may develop the feelings of international
brotherhood so as to ensure the encouragement of the development of International community in
the true sense of the term,
(10) The U.N. Charter should be amended as to authorise the U.N. to intervene in such matters with
the domestic jurisdiction of States as are of international concern.
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UNIT – II
1. Define State. What are the essential elements of the State?

Explain the different kinds of States.
State is the main subject of international law. According to Salmond, "State is a community of people
which has been established for some objectives such as, internal order and external security." In the
view of Oppenheim, the existence of State is possible only when the people of State have settled
under a highest governmental authority and habitually follow its order. Ideal definition of term
'State' is not possible. However, in the modern period it is finally settled as to what are the essential
elements of a State.
Essential elements of a State.-

According to Article I of Montevideo Convention, 1933, the State as a person of International Law
should possess for ingredients-
(a) a permanent population;
(b) a defined territory;
(c) a government; and
(d) a capacity to enter into relations with other States.
According to Oppenheim, population, a defined territory, government and sovereignty are the
essential elements of a State. Holland has added one more essential element namely, to some
extent 'civilisation' because of which the State becomes an international person.
Functions of State.-
The modern period has witnessed revolutionary changes in regard to functions of a State. Previously
the concept of a police State prevailed. According to this concept, essential functions of a State were
to maintain internal peace and order and to defend it from external aggression. It cannot be denied
that even today these are the essential functions of a State but in the present period the concept of
State has undergone significant changes. Instead of the concept of police State, the present concept
is that of a welfare State. That is to say, for the benefit of the people, State has to perform many
social, economic, educational and cultural functions. However, these functions may not be termed
as essential functions. They are in fact subsidiary functions although the significance of these
functions is constantly increasing.
Concept of sovereignty: -
Only sovereign States are entitled to be the members of the family of nations. In Island of Palmas
Arbitration, Max Huber has defined the term 'sovereignty' in the following words : "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 other States, functions of a State."
In the modern period, the credit of propounding the concept of sovereignty goes to Jean Bodin. In
1576, he, in his book, "De Republic". put forward the concept of sovereignty. According to him the
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essential element of sovereignty is the law making power of the sovereign. Since the sovereign
makes the law, he does not intend to bind himself by that law. He has tend to add that the sovereign
is however bound by the Divine Law. Slowly and gradually the concept of sovereignty became
distorted and it became synonymous with absolutism. In sixteenth century, Hobbes expressed the
view that by absolute and complete power of the sovereign, it came to be defined as the supreme
power over a definite territory unrestricted by any earthly power. According to Austin, sovereignty is
indivisible and illimitable.
In the modern period there have been revolutionary changes in the concept of sovereignty because
of which it is not proper to say that States sovereignty is essential, indivisible and illimitable. In the
present time, States have entered into many international treaties thereby surrendering a part of
their sovereignty. For example, the members of the United Nations have accepted many obligations
under the Charter. It has, therefore, been rightly remarked by Starke : "Sovereignty has a much
restricted meaning today than in the 18th and 19th centuries, when with the emergence of powerful
highly nationalised States, few limits on States' autonomy were acknowledged. At the present
time there is hardly a State which in the interest of the international community has not accepted
restrictions on its liberty of actions.”
In Union of India v . Sukumar Sengupta. Sabyasachi Mukharji, C.J. of the Supreme Court of India
quoted with approval the above observation of Starke. His Lordship added, "Any State in the modern
time has to acknowledge and accept customary restraints on its sovereignty in as much as no State
can exist independently and without reference to other States. Under the general international law
the concept of inter-dependence of States has come to be accepted.
Ordinarily, over one and the same territory there can be only one sovereign. In practice however,
there can be several exceptions such as:
(a) The first and probably the only real exception is the condominium which exists between two or
more States exercising sovereignty jointly over a territory e.g. condominium of Austria and Prussia
over Schleswig Holstein Lanenburg from 1864 till 1866 and condominium of Great Britain and France
over New Helerides (now the independent State of Vanuatu).
(b) One State exercising sovereignty which is, in law vested elsewhere i.e. where a territory is
administered by a foreign power with the consent of the owner State e.g., Great Britain exercised
sovereignty over Turkish Island from 1878 to 1914.
(c) Giving territory on lease or pledge by the owner State to a foreign power. For example, in 1898
China lea ed the district of Kiaochow to Germany, Wei-Hai-Wei and the land opposite the Island or
Hongkong to Great Britain, Kuang Chouwan to France and Port Arthur to Russia.
(d) Where the use, occupation and control of the territory are granted in perpetuity by the grantor
State to the other State e.g., in 1903 the Republic of Panama transferred to the United States of
America a ten mile territory for construction, administration and defence of the Panama Canal.
(e) In case of Federal State also sovereignty is divided between a federal State and its member
States.
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(f) Lastly, in case of a mandated or trust territory, the State which is given a mandated or trust
territory, exercises sovereignty over it although the territory is not its own.
Principle of the Equality of States.-

As the members of international community, in principle, all States are equal. This equality is due to
their international personality. Despite the dissimilarity in respect of their territories, population,
power. civilization, prosperity, etc. all States as international persons are equal. According to
Oppenheim following are the consequence of this legal equality:
(i) When any question is to be decided by consent each State is entitled to have one vote. But, there
are exceptions to this rule, such as the veto of one of permanent members of the 'Security Council'.
(ii) Legally the importance of the votes of the weak as well as a strong nation is same.
There are some exceptions to this rule also.
(iii) No State can exercise jurisdiction over another State. This rule has been applied by the courts in
many cases.
(iv) Generally, the courts of a State cannot challenge the validity of the official acts of another State
so far as these acts are related to the jurisdiction of that State. The cases of A.M. Luther & Co. v.
Sugar & Co.,4 and Underhill v. Hernandez.i deserve special mention in this connection.
In principle all States are equal. But in reality they are unequals in respect of their respective powers,
territory, property, etc. Oppenheim has rightly pointed out the legal equality must not be confused
with political equality. The enormous differences as regards their strength are the result of their
natural inequality which, apart from rank and titles, finds its expression in the province of policy.
Politically, States are in no manner equals.
The U.N. Charter is based on the principle of 'Sovereign equality' of States but in reality great powers
are unequal to small States (and legally also because they possess the power of veto under the
Charter). Thus, the equality of States is a general principle but there are several important
exceptions of this principle.
Different kinds of States and Non-State Entities

(1) Confederation.-
It is formed by States who are independent in the international field. Under International Law
confederation thus no international personality. The States forming confederation are not treated
as. international persons.
(2) Federal State.-

Generally a federal State is formed by the merger of two or more sovereign States: A federal State is
an international person under international law. United States of America, Switzerland and India are
good examples of federal States.
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(3) Condominium.-
Condominium is a territory where two or more States exercise sovereignty. New Hebrides is a good
example of condominium, England and France had a joint sovereignty over New Hebrides.
(4) Vassal State.-

A vassal State is a State which is under the suzerainty of another State. Its independence is so
restricted that it has no importance under international law. It is treated to be under the
international guardianship of another independent State.
(5) Protectorate State.-

A protectorate State is a State which entrusts some of its important functions to another sovereign
State. It retains a sufficient measure of sovereignty and remains a State under international law. For
example, Bhutan is a protectorate State of India.
(6) Trust Territories.-
International Position of Bhutan, Tibet, Vatican City and Commonwealth of Nations

Bhutan.-
Bhutan is a protectorate State of India. It is a hilly region in, North-East of Nepal. In 1949. through a
treaty Bhutan entrusted the matter of foreign affairs and defence to India. It thus became a
protectorate State of India. Since, a protectorate State retains a sufficient measure of sovereignty,
Bhutan remains a State under international law. In 1971. Bhutan became a member of the United
Nations.
Tibet.-
In Simla Conference, 1914, Tibet was declared a protectorate State of China. This was further
confirmed by the Treaty of 1951. China accepted Dalai Lama as the spiritual head of Tibet. Tibet was
autonomous in its internal matters, but China started interfering in the internal matters of Tibet. In
1959, the situation deteriorated so much that the conflict took the form of war between China and
Tibet. China ruthlessly suppressed the movement of the people and Dalai Lama was compelled to
leave Tibet. He fled away from Tibet and took asylum in India. China criticised action of India in
granting asylum to Dalai Lama and claimed that it was an interference in her internal affairs. At its
very face this argument is absurd because as a sovereign State, India was within her rights to grant
asylum to Dalai Lama and his followers within her territory.
Holy See or Vatican City.-

Holy See or Vatican City is a place where Pope resides. In the middle of 19th century the rulers of
Italy seized the territory of Pope and occupied his capital Rome. He, therefore, fled to his residential
place called Vatican City. In 1871 Italy granted some guarantees to Pope. Next important change
took place in 1929 when a treaty was concluded between Pope and Government of Italy. Vatican
City comprising of 100 acre of land was accepted as a State and Pope was treated as a sovereign of
this State. The present position of Vatican City is that it is an international person and possesses all
the rights and duties of a sovereign State.
Commonwealth of Nations.-
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Commonwealth of Nations is an association of those States (except Britain) which were at some time
the colonies of the British Empire, Britain, Canada, Austria, Cyprus, Nigeria, New Zealand. India,
Pakistan, Ceylon, Malaysia, Singapore, etc. are its members, Before 1948 it was called the British
Commonwealth of Nations. In 1948 the term 'British' was dropped. It is now called, the
Commonwealth of Nations. All the members of the Commonwealth of Nations are now sovereign
States. Under International Law, Commonwealth of Nations is neither a State nor a federation. It is
in fact a loose association of equal and sovereign States who are members of the United Nations and
have agreed to follow certain general principles. Thus, under International Law, Commonwealth is
not a separate independent entity.
Suspension of Pakistan from Membership of Commonwealth.-

After declaration of emergency in Pakistan by President Musharraf, Pakistan had been suspended
once again from the membership of the Commonwealth. After the removal of President Musharraf,
elections were held and democratic Government was established under the leadership of Prime
Minister Nawaz Sharif. But recently, especially in August-September 2014 there is great turmoil in
Pakistan. There are widespread protests by opposition leaders led by Imran Khan and Kadri and is
once again danger of Government being taken over by Armed Forces.
Distinction between a Neutral State and a Neutralised State.-

A neutral State is a State which does not support either belligerant State during war. A neutralised
State on the other hand is a State whose independence and territorial sovereignty is collectively
accepted by an international agreement. A neutral State may at its will, give up its neutrality, but a
neutralised State without violation of the treaty, cannot give up its neutrality. Switzerland, Belgium,
Austria are some of the neutralised States whose neutrality has been guaranteed by international
agreements. Switzerland is an ideal neutralised State because it has not even joined United Nations.
Austria became a member of the United Nations in 1955. Starke has expressed the view that a
neutralized State may become a member of the U.N. because under Article 48, the Security Council
may exempt a neutral State from giving support in any enforcement action. The view of Starke is
only partly correct because the membership of the U.N. invariably and undoubtedly dilutes the
neutrality at least to some extent because under Article 48, the Security Council may exempt neutral
States from taking part in enforcement action but that is not a mandatory provision. In case the
Security Council decides that such a State has to support the enforcement action, the neutrality of
such a State will end as regards that particular case.
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2. What is ‘Recognition’? Explain the legal effects of recognition of

a new state
Meaning and Definition of the term 'Recognition'.

In the words of Prof. Oppenheim, "In recognising a State as a member of international community
the existing States declare that in their opinion the new State fulfils the conditions of Statehood as
required by International Law."
The Institute of International Law has defined the term 'recognition' in the following words: "It is the
free act by which one or more States acknowledge the existence of the definite territory of a human
society, politically organised, independent of any other existing State and capable of observing
obligations of international community."
Conditions for recognition of a new State.-

According to Kelsen, a community to be recognised as an international person must fulfil the four
conditions-
(a) The community must be politically organised;
(b) It should have control over a definite territory;
(c) This control should tend towards permanence; and
(d) The community thus constituted must be independent.
But international law does not provide as to how those essential conditions are to be determined.
International Law leaves the members of International community free to determine whether the
States to be recognised contain essential condition of Statehood. It is because of this reason that
recognition is very often said to be a political diplomatic function.
Theories of Recognition. –
There are two main theories of recognition:
(1) Constitutive Theory, and
(2) Declaratory or Evidentiary Theory.
(1) Constitutive Theory. -

According to Oppenheim, "a State is, and becomes, an international per on through recognition only
and exclusively." According to this theory, recognition clothes the recognised State with duties and
rights under international law. Recognition is a process through which a political community
acquires international personality by becoming a member of the family of nations. Hegel, Anzilloti,
Holland, Oppenheim. etc. are the chief exponents of this theory. Judge Lauterpacht has written that
there is a legal duty on the part of the States to recognise any community that has in fact attained
Statehood. As pointed out by P.E. Corbett, "According to the constitutive theory, Statehood and
participation in the international legal order are attained by political groups only in so far as they are
recognised by established States." This theory does not conform to the practice of States. In practice
most of the States accept the declaratory theory.
Criticism.-
This theory has been severely criticised by many jurists. In practice, States do not accept any
obligation to recognise a community that has attained Statehood, although they may normally
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recognise it. According to this theory, unrecognised State can have neither rights nor duties under
international law. This is a very absurd suggestion.
(2) Declaratory Theory." –

According to this theory, statehood or the authority of the new government exists as such prior to
and independently of recognition. Recognition is merely formal acknowledgment through which
established facts are accepted. The act of recognition is merely declaratory of an existing fact that a
particular State or government possess the essential attributes of statehood as acquired under
international law. The chief exponents of this theory are Hall, Wagner, Brierly, Pitt Corbett and
Fisher. Brierly has remarked that "the granting of recognition to a new State is not 'constitutive', but
a 'declaratory' act. A State may exist without being recognised if it exists in fact, then whether or not
it has been formerly recognised by other States, it has a right to be treated by them as a State."
Criticism.-
This theory has also been subjected to criticism. The view that recognition is only a declaratory of an
existing fact is not completely correct. In fact when a State is recognised, it is a declaratory act. But,
the moment it is recognised, there ensue legal effects of recognition which may be said to be of
constitutive nature.
Conclusion.-
On the basis of the above discussion it may be concluded that recognition is declaratory as well as
constitutive. As pointed by Starke, "The truth lies somewhere between the two theories."
Oppenheim has also admitted that, "recognition is declaratory of an existing fact but constitutive in
nature." To conclude, in the words of Prof. Briggs, "Juridical theories of recognition deduced from
jurisprudential concepts fail to explain the facts of State conduct and induction from State conduct
have failed to provide a judicial, unambiguous theory of recognition."
Modes or Kinds of Recognition. –

Following are the two kinds of recognition:
(1) De facto recognition, and
(2) De jure recognition.
(1) De facto recognition.-

As pointed by Prof. Schwarzenberger, "When a State wants to delay recognition de jure of any State,
it may, in the first stage grant de facto recognition. De facto recognition is given because it is
doubted that the State recognised may not be stable or it may not be able and willing to fulfil its
obligations under international law. De facto recognition means that the State recognised possesses
the elements of statehood and is fit to be a subject of international law. According to Prof.
Oppenheim. "The de facto recognition of a State or government takes place when in the view of the
recognising State the new authority although actually independent and wielding effective powers in
the territory under its control, has not acquired sufficient stability or does not yet offer prospects of
complying other requirements of recognition such as willingness or ability to fulfil international
obligations. Further "de facto recognition is in a sense provisional and liable to be withdrawn if the
absent requirement of recognition fails to materialise." Under de facto recognition, diplomatic
relations are not established. In the view of Judge Lauterpacht, de facto recognition shows that the
recognising State wants to establish its relations with the recognised State without establishing
diplomatic relations. In the view of Judge Philip C. Jessup, "De facto recognition is a term which has
been used without precision when properly used to mean the recognition of the de facto character
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of a government, it is objectionable and indeed could be identical with the practice suggested of
extended recognition without resuming diplomatic relations."
(2) De jure Recognition.-

De jure recognition is granted when in the opinion of the recognising State the recognised State or
its government possesses all the essential requirements of statehood and is capable of being a
member of the international community. According to Phillip Marshall Brown, "Recognition de jure
results from an expressed declaration or from a positive act indicating clearly the intention to grant
this recognition, such as establishment of diplomatic relations." De jure recognition is final and
irrevocable. As pointed out by Prof. H.A. Smith, the British practice shows that three conditions
precedent are required for the grant of de jure recognition of a new State or a new government. The
three conditions are-
(a) A reasonable assurance of stability and permanence;
(b) The government should command the general support of the population; and
(c) It should be able and willing to fulfil it international obligation.
Distinction between de facto and de jure recognition." –

As pointed out by Schwarzenberger, "De facto recognition is by nature provisional and may be made
dependent upon conditions which the new entity has to comply. It differs from de jure recognition,
in that there is not yet a formal exchange of diplomatic representatives. De jure recognition is
complete, implying, full and normal diplomatic relations."
So far as legislative and other internal acts of the State recognised are concerned, there is hardly any
difference between de facto and de jure recognition. Although in de facto recognition diplomatic
relations are not established. Yet from the point of view of legal effects there is no difference
between de jure and de facto recognition. In the words of Prof. Kelsen, "From the juristic point of
view, the distinction between de jure and de facto recognition i of no importance. Any codification
of international law relating to recognition can ignore it."
In Luther v. Sagor, it was held that there is no distinction between de facto and de jure recognition
for the purpose of giving effect to the internal acts of the recognised State. The facts in this case are
as follows:
In June, 1918, Russia nationalised timber and other industries. Consequently, the Mill of the plaintiff
was acquired. In August, 1920, the representatives of the Russian Government entered into a
contract with the defendant to sell some timber, etc. The plaintiff requested the Court to declare
that all the goods purchased by the defendant under the said contract are his property. The
defendant contended that Russia was a Sovereign State and by the act of a Sovereign State, the
ownership of the plaintiff was ended.
Britain had given de facto recognition to Russia. The court decided in favour of the defendant.
Warrington, L.J. held " there is no difference for the present purpose between a government
recognised as such de jure and one recognised de facto. In the latter case, as well as in the former
the government in question acquires the right to be treated by the recognising State an independent
sovereign State, "
This rule was applied in a number of cases. For example, in Bank of Ethopia v. National Bank of Egypt
and Liquori. the Court held that in view of the fact that the British Government granted recognition
to the Italian Government as being the de facto government of the territory of Abyssinia, which was
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under the Italian control, the effect must be given to an Italian decree in Abyssinia dissolving the
plaintiff Bank appointing liquidator.
Yet another leading case which deserves mention is The Arantzazu Mendi.
In this case Lord Atkin of the House of Lords observed: "By exercising de facto administrative control,
for exercising effective administrative control, I understand exercising all the functions of sovereign
Government.. . It necessarily implies the ownership and control of property whether for military or
civil purposes, including vessels whether warship or merchantship. In these circumstances it seems
to me that recognition of a Government as possessing all those attributes in a territory while not
subordinate to any other Government in that territory is to recognise it as sovereign and for the
purposes of International Law as a foreign State." He further observed: "There is ample authority for
the proposition that there is no difference for the present purpose between a recognition of a State
de facto as opposed to de jure."
The majority of the jurists agree that so far as legal effects ore concerned there is hardly any
distinction between the two types of recognition. If, at all there is any difference between two types
of recognition, it is chiefly political rather than legal.
Recognition of Insurgency. –
Insurgency presupposes a civil war or political revolt in a State. In fact, insurgency is an intermediate
stage between tranquillity and belligerency.
Essential conditions for recognising insurgents.-

Following are the essential conditions for recognition of insurgency:-
(1) control over a considerable part of the territory;

(2) considerable support to the insurgents from the majority of the people living in the territory; and
(3) insurgents should be capable and willing to carry out international obligations.
Effects of recognition of insurgency.-

Following are the effects of recognition of insurgency:-
(I) insurgents are not treated as Pirates:

(2) the rebels of civil strife are treated as hostis generis humani (the enemy of human beings) until
they are recognised as insurgents;
(3) the international rules of war become applicable to them.
Thus, the effects of insurgency is that it partially internationalises the conflict.
Recognition of Belligerency. -
According to Jessup, "When the insurgents are well-organised, conduct hostilities according to laws
of war and have a determinate territory under their control, they may be recognised as belligerents
whether or not the parent State has already recognised that status." Belligerency is in fact final stage
of three stages of the ascending intensity of the conflict which presents a violent challenge to the
Sovereign authority within a State. The three stages are tranquillity, Insurgency and belligerency.
Essential conditions for recognition of belligerency.-

(1) The armed conflict should be of general character.
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(2) The insurgents should occupy and administer a considerable portion of the national territory.
(3) They should conduct hostilities through armed forces under a responsible authority and in
accordance with the rules of war.
(4) The hostilities should be of such magnitude that it may become necessary for the foreign State to
define their attitude towards the belligerents and the established government.
Effects of recognition of Belligerency.-

The relation between the recognised belligerent authorities , established government and the
recognising State are governed by international law rather than municipal law.
Distinction between recognition of State and government.

The recognition of a State means that the recognising State acknowledges or declares that the State
recognised possesses the essentials of statehood. Once a State is recognised, it becomes a member
of international community. But, so far as the recognition of a government is concerned, the
position is a little different. It often depends upon the facts and circumstance. If, a change in
government takes place peacefully and through constitutional means, recognition is generally
accorded as a matter of routine. But, where the change in government takes place through violent
means, recognising State considers the effects and circumstances of the case to decide whether it
should accord recognition or not. The recognising State has to ascertain whether the new
government has signs to become permanent or stable and whether it commands the majority of the
people. If, the recognising State is satisfied with these requirements, it may accord recognition.
Thus, the State continues to be a member of international community, the recognition of
government simply implies the person or group of persons who are in actual control of that state
and will represent that State in its relation with the recognising State. P.E. Corbett has suggested,
that " the decision should be in the hands of an organisation of that universality, and the U.N. is our
nearest approach. Agreement that the committees which pass upon credentials of delegates to the
General Assembly and the security Council should by their decision confirm or deny, in such a way as
to bind all members, the title of the delegates senders to govern, would be a long step in the right
direction".
Is there a duty to recognise? –

In the view of Judge Lautherpacht, international law posits a duty on the existing States to recognise
a community as and when it possesses the essential element of statehood. This view does not find
support from the practice of the tares. In practice, States have not consented to any such obligation.
Under international law, there is no obligation of any State to recognise a State as and when it
attains statehood. For example, when Bangladesh emerged as a State, Pakistan and China did not
accord recognition for some time. But by doing so they did not violate any rule of international law,
because recognition is a diplomatic political function and depends upon the discretion of the
recognising State.
Is recognition a political or discretionary act? Or Facultative Theory of Recognition.-

As pointed out earlier international law does not posit any duty on the existing State to recognise
any State a and when it attains statehood. It has been aptly remarked, "In the absence of established
rules or treaty, obligations to the contrary, recognition is a matter of discretion". According to Philip
Marshall Brown, "recognition of a new State or government is political diplomatic function .It is
determined by reason of expediency and high State policy. No State or group of persons organised
politically has legal claim to recognition, though it may possess the moral claim". The practice of
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States also shows clearly that recognition is a political function and ultimately depends upon the
discretion of the recognising State.
It has been suggested that the matter of the existence of the statehood of a new State should be
subjected to the international collective decision. According to Judge Jessup, unless a declaration is
made in regard to the existence of the statehood in any political community, the members of the
U.N. should not recognise such a State. Further, "The declaration of the General Assembly might also
include, a statement of the position that members of the U.N. would not independently accord
recognition to new States. If, this suggestion is accepted and implemented. recognition will cease to
be a political and discretionary act and will become a matter under the International Collective
Control."
Legal effect of recognition. –

Although recognition is a political diplomatic function and depends upon the discretion of
recognising State, once recognition is accorded, certain legal effects ensue.
Following are the main legal effects of recognition:

(1) The recognised State becomes entitled to sue in the courts of recognising State;
(2) The courts of the recognising State give effect to the past as well as present
legislation and executive acts of the recognised State;
(3) In regard to the property and diplomatic relations, the recognised State can claim
certain immunity;
(4) The diplomatic envoys of the recognised State get a number of privileges and
immunities in the recognising State.
Consequences of non-recognition. –
Following are the consequences of non- recognition:
(1) A non-recognised State cannot sue in the courts of the State which has not recognised. This has
been held in a number of cases such as Russian Socialist Federated Soviet Republic v. Cibraria,
Guarantee Trust Company of New York v. u.S., and U.S. v. Pink.
The British courts have also held the same view. In this connection, Re Al Fin Corporation's Parent,
and Zeiss Case, deserve a special mention.
(2) The unrecognised State can neither establish diplomatic relations nor enter into a
treaty with the States which have not recognised it.
(3) Diplomatic representatives of an unrecognised State do not possess privileges and immunities
which are generally accorded to the recognised States.
(4) An unrecognised State is also not entitled to claim its property situated in a foreign country. A
leading case on the point is Bank of China v. Wells Fargo Bank and Union Trust Co.
India's policy and attitude of recognising States and governments. –

Like all other States, India has, as a matter of routine, accorded recognition to States as and when
they attain statehood. But in certain cases she was also influenced by certain other considerations.
This is evident from her recognition of Israel, Bangladesh, East Germany, North Vietnam and
Cambodia. India gave de facto recognition to Israel in 1950. India did not establish diplomatic
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relations with Israel until 1992. In January 1992, India decided to establish diplomatic relations with
Israel. Subsequently this decision was immediately implemented and diplomatic relations were
established. India took this decision in view of changed international situation. Earlier, China, Soviet
Union and some other countries had established diplomatic relations with Israel in view of the West
Asia Peace talks which were scheduled to begin in Moscow on January 29, 1992. Since recognition is
a diplomatic political function and depends upon the discretion of the State, it is not contrary to
international law to take into account national interest and certain other matters, beside the fact of
Statehood of the State concerned. Thus, by exercising her discretion, India did not in any way violate
the rules of international law. Moreover, as pointed out earlier, that in a large number of cases India
has accorded recognition as and when a State attained Statehood. India's practice and policy in this
connection conforms to the practice of States as well as the recognised norms of international law.
Implied Recognition.-
Ordinarily recognition is an unilateral act of a State and when a state recognises another State it
makes an express declaration, either orally or in writing: but sometimes recognition may be implied.
Implied recognition may be inferred when circumstances show that the State concerned has been
accepted as a member of international community. In practice such an implied recognition may be
only de jure recognition. But under the following circumstances such recognition may also be
deemed to be de jure:
(1) When the recognised State and the recognising State enter into a bilateral treaty and formally
sign it.
(2) The beginning of formal diplomatic relations, and exchange of consuls.
In addition to the aforementioned situations, following circumstances may also indicate implied
recognition:
(1) Participation of the State concerned in a multi-lateral treaty.

(2) Participation in an international conference.
(3) The start of negotiation between the recognising and the recognised States.
Recognition subject to a condition.-

Recognition denotes that the recognised State possesses the essentials of statehood and is fit to be a
member of the international community. Therefore, any condition attached to the recognition will
be invalid while the recognition will be deemed to be valid. A pointed out by Starke, "It is true,
however, that if recognition should under international law become purely and simply the cognitive
act of registering the statehood or of government activities, it should not be subject to any such
extrinsic terms or conditions". In the words of another author, 'the very essence of recognition is
that the recognising State thereby declares that it has satisfied itself that the recognised authority
possesses the distinguishing marks of a State. To say that one recognises that has been subject to its
conduct being satisfactory in other particulars is sheer non- sense. It is like telling a pupil that her
sum is correct if she promises to be a good girl".
Collective Recognition. –
Collective recognition means the recognition granted by a number of states collectively. For
example, when a State is admitted to the United Nations it amounts to collective recognition by
those States who vote in favour of the admission of such State. But, it will not amount to recognition
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by those States who abstain or vote against the admission of the State concerned irrespective of the
fact that the State concerned may be admitted to the United Nations. This view has been expressed
by the International Court of Justice in its advisory opinion on conditions of Admission of a State to
the United Nations.
Withdrawal of Recognition.-
As pointed out earlier, recognition de facto is interim and provisional and is, therefore, subject to be
withdrawn. But recognition de jure is, final and irrevocable. Recognition, as noted earlier, denotes
the existence of the essentials of statehood in the State concerned. Once de jure recognition is
accorded it cannot be withdrawn. It may, however be noted that under international law,
recognition means that the Stale recognized has attained statehood. The simple fact of withdrawal
of recognition by a Slate would not necessarily mean that the State recognized has ceased to
be a State.
Retroactive effects of Recognition: -

De jure recognition is said to have retroactive effect, that is to say, after a State is recognised, its acts
done prior to the date of recognition are also recognised. It has been pointed, and rightly too, that
this rule is based on the policy of the State rather than 011 any juristic logic. This is generally done
with a view to establish friendly relations with the' State recognised. A leading case on retroactive
effect of recognition is Civil Air Transport Incorporated v, Central Air Transport Corporation.
In this case appellants were a registered corporation In Delware State of United States of America
and the respondents' corporation was an institution under the Nationalist Government of China.
After the Communists revolution in China, the head of the Nationalist Government, Chiang Kai Shek
fled away to Formosa. The Chairman of the respondents Corporation also fled away from Hongkong
to Peking and expressed his loyalty and allegiance towards Peking Government. Subsequently, the
Peking or Communist Government declared that the respondents Corporation was within its
property. After having fled to Formosa, Chiang Kai Shek, sold the property of the respondents
Corporation to an American firm. The property included 40 aircraft lying at airfield of Hongkong. The
court had to decide whether at the date of transaction Chiang Kai Shck Government was entitled to
sell this property? In other words, the court had to decide the retroactive effect of recognition. The
court held that the past acts of a de jure government can be valid only if such a government is the
same which had been previously granted de facto recognition. The Court further held that the
retroactive effect of de jure recognition of a government does not mean that the legal acts
performed by other de jure government will become invalid. At the date when the transaction
regarding the sale of property took place, the Nationalist Government or Chiang Kai Shek
Government of China was the de jure government of China and consequently it was entitled to sell
its property. In short, the court accepted the retroactive effect of recognition, but laid down that the
retroactive effect of recognition does not mean that the valid acts performed by a de jure
government will become invalid. Lord Simon of the Judicial Committee of the Privy Council observed
:"Primarily, at any rate, retrospectively of recognition operates to validate acts of a de facto
government which has subsequently become the new de jure government and not invalidate acts of
previous de jure government".
Estrada Doctrine.-
Mr. Estrada the Foreign Minister of Mexico, declared that a regards the establishment of diplomatic
relations with other States, the Mexico Government will be free to determine it in accordance with
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the facts and circumstances of each case. This doctrine has been criticised because it disregards the
rules of International Law and encourages individual appraisal.
Stimson Doctrine.-
This doctrine was propounded by Mr. Stimson Secretary of State, United States of America.
According to this doctrine recognition granted to any State in violation of international treaty.
particularly the Pact of Paris, 1928 (or popularly known as Kellog-Briand Pact) will be deemed to be
invalid. Although, the doctrine has much to recommend itself, it is not followed by the States. The
States refuse to accept any such obligation and treat recognition as a discretionary matter and as a
political diplomatic function.
Hallestein Doctrine.-
This doctrine was propounded in the context of the division of Germany into two parts-East
Germany and West Germany. According to this doctrine, no State should at the same time establish
diplomatic relations with East and West Germany. It need not be over-emphasised that this doctrine
is inadequate in the modem circumstances. Both the Germanys having been admitted to the United
Nations. this doctrine lost its significance. Subsequently, there has been reunification of the two
Germanys. Some upporters of Pakistan referred this doctrine in the context of Bangladesh, but as
noted earlier, this doctrine has lost all its importance and is completely inadequate in the modern
circumstances.
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3. Briefly explain the various modes of acquiring and loss of

territorial sovereignty under International Law.
Modes of acquiring territories .-

Following are the modes of acquiring territories under International Law:
(1) Occupation. -
According to Starke, "Occupation consists in establishing sovereignty over a territory not under the
authority of any other State whether newly discovered or an unlikely case-abandoned by the State
formerly in control."
A leading case regarding occupation is Island of Palamas Arbitration. (1929). In this case there was a
dispute between America and Netherlands over the Island of Palamas. America claimed to have
acquired it under a treaty of 1898 with Spain. This Island was discovered by the Spaniards. On the
other hand Netherlands claimed to have occupied it since 1700. According to the Court of
Arbitration, Island of Palamas was a part of Netherlands because although it was discovered by
Spaniards, they never occupied it and established contracts with the inhabitants of the Island. Thus,
for occupation of a territory it is not sufficient to have an intention to establish sovereignty over the
territory concerned. It is also necessary to make some actual exercise of such authority.
In Eastern Greenland case, the Permanent Court of International Justice laid down the following two
tests:
(1) For occupation it is necessary that there must be an intention and will to act as Sovereign over
the territory concerned.
(2) There should be some actual exercise or display of such authority. The facts in this case are as
follows:
On July 10, 1931. Norway declared her sovereignty over the eastern part of Greenland through a
Government decree, on the other hand, Denmark also claimed her sovereignty over the said area.
During the Second World War and afterwards several allied powers had declared that the whole
Greenland was a part of Denmark. They had also made it clear that they would not object to the
sovereignty of Denmark over the Greenland. The Foreign Minister of Norway had also accepted this
fact and had made clear the Norway would have no objection in this connection. By a majority of 12
against 2, the Permanent Court of International Justice decided that Eastern Greenland under the
sovereignty of Denmark.
The Court held: "A claim to sovereignty based not upon some particular act or title such as treaty of
cession but merely upon continued display of authority, involves two elements each of which must
be shown to exist; the intention and will to act as Sovereign, and some actual exercise or display of
such authority."
Distinction between Occupation and Subjugation.-
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As pointed out by Prof. Oppenheim, "Occupation is a mode of acquisition which differs from
subjugation chiefly in that the subjugated territory previously belonged to another State." Thus
while in the case of subjugation the territory previously belonged to another state, in case of
occupation it did not belong to any other state .
(2) Prescription.-
Yet another mode of acquiring territory is by prescription. In the words of Starke. "Title by
prescription is the result of peaceable exercise of de facto sovereignty for a very long period over a
territory subject to the sovereignty of another state." But international law does not prescribe any
fixed period for prescription.
As pointed out by an eminent writer, D.H.N. Johnson, a state may acquire some territory by
prescription only when the following conditions are fulfilled :
(i) When it has not accepted the sovereignty of any other state over the said territory.
(ii) Possession should be peaceful and uninterrupted.
(iii) Possession should be in public.
(iv) Possession should be for a definite period.
It may however, be noted that in the presence of some treaty or convention, territory cannot be
acquired by prescription through administrative acts only.
(3) Accretion.-
As pointed out by Starke, "Title by accretion occurs when new territory is added mainly through
natural causes, to territory already under the sovereignty of the acquired State." No formal act or
assertion of title is necessary.
(4) Cession.-
Territory may also be acquired through cession. It may either be a voluntary act or in consequence
of a war. Cession is generally considered valid only when the sovereignty of the territory concerned
is transferred to another State. In re Berubari Union and Exchange of Enclave, the Supreme Court of
India observed: it is an essential attribute of sovereignty that a Sovereign State can acquire foreign
territory and, in case of necessity, cede a part 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 This
power, it may be added is of course subject to the limitations which the Constitution of the State
may either expressly or by necessary implication impose in that behalf.
In Union of India v. Sukumar Sengupta, (popularly known as Tin Bigha case). Tin Bigha area was given
to Bangladesh by India under the 1974 and 1983 agreements to connect Dahagram with Panbari
Mouza (S. Patram) of Bangladesh. As per agreement "Iease in perpetuity" was given over the area at
the rate of Re. 1/2 per annum but the Government of India waived its right to charge such rent in
respect of the leased area. The Agreement provided that "Sovereignty over the leased area shall
continue to vest in India". Delivering the judgment. Sabyaschi Mukarjee, C.J. observed:
"A fortiori, the said transaction did not amount to cession of the said area of Teen Bigha in favour of
Bangladesh. Cession as understood in international law would result in an actual and physical
transfer of the said area to Bangladesh following which Bangladesh would have the exclusive right to
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treat the said transferred territory as part of its own territory and exercise full control, dominion
and right over the same. This is not the position or the situation which is contemplated under the
agreement. The rights intended to be conferred on Bangladesh under the said agreements would
amount to what is known as 'servitude' in international law."
(5) Annexation.-
A territory may also be acquired by annexation. It is, however, necessary that after conquest,
sovereignty must be established over the territory. That is to say, effective occupation after
conquest is necessary. This mode has become obsolete after the commencement of the Charter of
the U.N. Article 2 (4) of the Charter make it incumbent upon Member States 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. In view of this provision acquisition of territory by annexation is no more legal. A recent
example of this is the annexation of Kuwait by Iraq. After annexation Iraq declared Kuwait to be its
19th province. But, the Security Council of the U.N. declared the annexation of Kuwait as well as the
said declaration of Iraq as null and void. Subsequently, Kuwait was freed.
(6) Lease.-
Yet another mode of acquiring territory is by way of lease. A State may lease a part of its territory to
another State. For example, State of Malta has leased an island to Britain for sometime. Similarly,
Panama leased Panama canal area to the U.S.A.
(7) Pledge.-
Sometimes a State may pledge a part of its territory to another State in return of some money.
(8) Plebiscite.-
There is controversy as to whether a territory may be acquired through plebiscite or not. A recent
example of acquiring territory by this mode is that of West Iran which was claimed both by
Netherlands and Indonesia. A plebiscite was held under the auspices of United Nations. The people
of West Iran decided to merge with Indonesia.
Example of Kashmir.-
In case of Kashmir, Pakistan has claimed that there should be plebiscite so as to enable the people of
Kashmir to decide whether they like to merge with India or with Pakistan. In the beginning India had
agreed to hold plebiscite, but later on India contended that in view of the changed circumstances no
plebiscite, was necessary. Some jurists contend that the right of plebiscite is related to the right of
self-determination expressed in the Charter of the United Nations. But, as rightly pointed out by
Rahmat Ullah Khan the principle of self-determination applies only in the process of decolonization.
It cannot be applied to established states in their territorial disputes. It is further contended that
support for the principle of self-determination as obligatory on member state cannot be found in
Article I of the United Nations Charter. Thus, so far as legal position is concerned, plebiscite has yet
to become an obligatory norm of international law. India cannot, therefore, be rightly blamed for
violating the rules of international law, though she may be accused as she has often been done,
retracting her steps. To sum up, the Kashmir episode shows tactless handling by Indian diplomats
rather than a case of the violation of the rules of International Law.
(9) Acquisition of territorial sovereignty by newly emerged State.-

Yet another method of acquiring territorial sovereignty is through the emergence of a newly
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independent State. This is particularly true in case of those states who were previously the colonies
of some states. In this connection the difficulty is how the territory which was previously part of
another State can acquire sovereignty after becoming independent. This has been aptly explained by
Starke in the following words: "This abstract difficulty may be resolved by treating the people of the
territory, as such, provided they have sufficient degree of political maturity, as having or acquired
sovereignty pending attainment of statehood. Upon the foundation of new State, there is simply a
crystallisation of the situation, territorial sovereignty of the people than becoming that of the State
itself."
Modes of loss of territory.-

Following are the modes through which a territory may be lost:
(1) Cession.-
As one State acquires the territory through cession, the other State looses it.
(2) Operation of Nature.-

Sometimes a State may lose its territory through the operation of nature such as earthquake, etc.
(3) Subjugation.-
A state may acquire territory through the operation of nature.
(4) Prescription.-
When a state occupies a particular territory for a long period then it is entitled to acquire it through
prescription. On the contrary the state which had occupation over it earlier may lose it.
(5) Revolt.-
Sometimes a state may lose its territory and a new state may emerge.
For example, as a result of revolt, Pakistan lost the territory of East Pakistan and a new State of
Bangladesh emerged.
(6) Dereliction.-
When a state renounces a part of its territory or fails to exercise or slackens to exercise sovereignty
over it, then it may lose such territory. Such examples are however, very rare in history.
(7) Losing a Territory by Granting of Independence to a colony.-

Britain, France and other imperialist states lost territories during last few decades by granting
independence to colonies or otherwise acquiring of independence by the colonies.
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4. Problems:
a) Problem 1
A state claims sovereignty over an island on the ground that it has discovered the same, but
“A” state has no effective sovereignty over the island. “B” state also claims sovereignty on
the same island on the ground it has effective control and sovereignty over the island for the
last three hundred years. Which state has sovereignty over the island?
b) Problem 2
"X" Company is registered in India. Its shareholders are nationals of England. The property of
"X" Company, situated in Japan, was damaged due to the negligence of policemen of Japan.
England claims compensation on behalf of the Company before International Court of
Justice. Can it succed ?
c) Problem 3
K, an American national, published in Texas a label against a Mexican Citizen. Later, K is in
Mexico on a temporary visit and is arrested by the Mexican Government for Prosecution.
Advice K.
d) Problem 4
In a dispute between State ‘A’ and State ‘B’ over an Island ‘C’, State ‘A’ claims the title to it
on the basis that State ‘X’ had discovered that Island first and it sold the same to State ‘A’.
But State ‘B’ argues that the Island is in its continuous peaceful possession for more than 70
years and hence it had right over it. Decide.
e) Problem 5
State ‘A’ was accorded recognition on a condition that, it shall not impose any religious
disabilities on its subjects. State ‘A’ commity breach of this condition. Can the recognition
given to it be withdrawn ?
f) Problem 6
A is a new state which is not yet recognised by state B. A state wants to file a suite against a
company in the courts of state B. Can it do so ?
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UNIT – III
1. What is territorial jurisdiction of the State? State the principles

governing the territorial jurisdiction. Who are exempted from
territorial jurisdiction and to what extent?
As pointed by an author, "State Jurisdiction is the power of the State under international law
to govern persons and property by its municipal law. It includes both the power to rescribed
rules (prescriptive jurisdiction) and the power to enforce them (enforcement jurisdiction).
The latter includes both executive and judicial powers of enforcement. Jurisdiction may be
concurrent with the jurisdiction of other States or it may be exclusive. It may be civil or
criminal. The rules of State jurisdiction identify the person and the property within the
permissible range of State's law and its procedures for enforcing that law. They are not
concerned with the content of a State's law except in so far as it purports to subject a person
to it or to prescribe procedures to enforce it."
State jurisdiction means "essentially the extent of each State's right to regulate conduct on
the consequence of events. " A State may regulate its jurisdiction by legislation, through it
courts or by taking executive or administrative action. State jurisdiction concern both
international law and internal law of the State. While the former determines the permissible
limit of a State's jurisdiction in the various form it may take, the latter prescribes the extent
to which and manner in which the State in fact assert its jurisdiction. Though the relationship
between jurisdiction and sovereignty is close, jurisdiction is not co-extensive with State
sovereignty.I Each State ha normally jurisdiction over all persons and 'things within its
territory.
Territorial Sovereignty.-
As pointed out by Max Huber, "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 function of a State." Thus, territorial
sovereignty denotes that the State may enact binding law within its territory. Further, it is
some times said that territorial sovereignty is indivisible, but, there have been instances in
international practice both of division of sovereignty and of distribution of the components
of sovereignty." As a matter of fact in the modern period it is generally accepted that
sovereignty of State is neither indivisible nor illimitable. In the interest of international
community, States accept a number of restrictions upon their sovereignty. As rightly
remarked by Starke, " 'Sovereignty' has a much restricted meaning today than in the
eighteenth and nineteenth centuries, when, with the emergence of powerful highly
nationalized States, few limits on States’ autonomy were acknowledged. At the present time
there is hardly a State which in the interests the International community 'has not accepted
restrictions on its liberty of action."
The old notion of sovereignty that it is "essential, indivisible and illimitable" is no more
tenable. In Union of India v. Sukumar Sengupta.t the Supreme Court observed;
" it is now considered and accepted as both divisible and limitable, and we must
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recognise that it should be so. Sovereignty is limited extremely by the possibility of a general
resistance. Internal sovereignty is paramount power over all action within, and is limited by
the nature of the power itself. Further "Sovereignty is a quality of right. It is a bundle of
rights. It depends on the facts and the circumstances of each case. Any State in the modem
times has to acknowledge and accept customary restraints on its sovereignty inasmuch as no
State can exist independently and without reference to other States. Under the general
international law the concept of inter-dependence of States has come to be accepted.
It may be noted here, that jurisdiction of a State is not always co-incident with its territory.
There may be certain situations and circumstances wherein a State may not be able to
exercise the jurisdiction within its territory and vice-versa. It may exercise jurisdiction in
certain cases outside its geographical limits. A State may not be able to exercise jurisdiction
in respect of the:
(1) Diplomatic agents;
(2) Foreign Embassies;
(3) Foreign Sovereigns;
(4) International organisations;
(5) Immunity in respect of public property of a foreign sovereign State;
(6) Foreign Troops; and as a result of
(7) Extradition Treaties.
International Servitudes.-
According to Oppenheim, International servitudes are those exceptional restrictions through
which a State may exercise certain rights over the territory of other States. To quote his very
words, "State servitudes are those exceptional restrictions made by the treaty in the
territorial premises of a State by which a part or whole of its territory is in a limited way
made perpetual to serve a certain purpose of interest of another State."
In the view of Oppenheim servitudes may be of the following four types:

(1) Positive.-
The example of a positive servitude is that when a State permits another State to do some
work over a certain part of its territory.
(2) Negative.-
A negative servitude may arise when a State claims that other States should not use its
territory or a part of it in a particular way and if this claim is accepted by the State
concerned.
(3) Military.-
Military servitudes arc generally to fulfil military requirements.
For example, the State of Malta has given an island to Britain on lease so that Britain may
have its military base over it.
(4) Economic Servitudes.-

The example of an economic servitude is that when one State allows another State certain
commercial or transport facilities in its territory. Economic servitudes are very common.
The acceptance of servitude does not represent any negation of sovereignty. The term
"servitude" means nothing more than accepted restrictions and grant of servitude does not
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amount to cession of teritory. In Teen Bigha case or Union of India v . Sukumar Sen
Gupta, the Supreme Court was considering the question of giving of Tin Bigha area by
India to Bangladesh to connect Dahagram with Panbari Mauza (S. Patrarn) of Bangladesh.
The Supreme Court held that concessions given to Bangladesh over the said area might
amount to servitude suffered by India in its territory us known in international law.
Sabyasachi Mukharji. C. J. observed: the complexities of the modern developed societies

need peaceful consistence, if the world is to survive. Amicable and peaceful settlement or
boundary disputes are in the interests of the international community. The older and
absolute ideas of sovereignty and independence has thus to be modified in the dawn of the
21 st century."
Criminal Jurisdiction in International Law: -

There is a great controversy among the States in regard t criminal jurisdiction under
international law. Following are some of the prevalent views in this connection:
(1) According to the first view, each State can exercise criminal jurisdiction only within its
territory, known as the theory of 'territoriality of criminal jurisdiction'. Great Britain,
America, and some other States subscribe to this theory.
(2) The second view is the modification of the first view. France, Germany, etc. are of the
view that each late is entitled to exercise jurisdiction within its territory, but there are some
exceptions to this rule, i.e., a State may exercise criminal jurisdiction even outside its
territory on the economic grounds and on the ground of national security.
(3) Those countries (such a Turkey, Italy) which do not subscribe to the theory of
territoriality of criminal jurisdiction have put forward a new theory known as extra
territoriality of criminal jurisdiction. The exponents of this theory contend that crime is a
social evil and it is in the interest of whole international community to ensure that the
criminals do not go scot free and are duly punished.
A leading case on the extra-territoriality of criminal jurisdiction is S. C;. Lotus. The

facts in this case are as follows:
In 1926, in open or High Seas, a French Mail ship named S. S. Lotus collided with a Turkish
ship named BOZ Kourt. As a consequence of collision, the Turkish ship sank resulting in the
death of 8 Turkish nationals. After the collision, when S. S. Lotus reached Constantinople,
Mr. Demons a French national and the officer on the Board were arrested and proceedings
were started against them according to the criminal law of Turkey. Mr. Demons argued in
the Turkish Court that it had no jurisdiction to try him.
The Court rejected the said contention. of Mr. Demon and convicted him. The French
Government protested against the said act of Turkey and claimed that Mr. Demons should
be immediately released. The French Government claimed that Turkey had no jurisdiction
to try and punish Mr. Demons, In its support France cited Article 15 of the Convention of
Lausanne, 1923 and claimed that Turkey had violated the said provision. In order to resolve
the dispute. France and Turkey signed a special agreement according to which it was
decided to refer the matter to the Permanent Court of International Justice for its decision.
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The Court had to decide whether Turkey violated Article 15 of the Convention of Lausanne,
1923. Article 15 provided the following: "Subject to the provisions of Article 16, all questions
of jurisdiction shall as between Turkey and other contracting parties be decided in
accordance, with the principles of International Law."
The Permanent Court of International Justice gave its decision in favour of Turkey.
The Court gave its verdict that by prosecuting and convicting Mr. Demons Turkey did
not violate International Law, The Court laid down the following principles:
(1) Under International Law no State can exercise jurisdiction over the territory of another
State. In this sense, jurisdiction is essentially territorial. This rule is however not absolute and
admits certain exceptions.
(2) International Law does not prohibit a State to exercise jurisdiction over an act which has
taken place outside its territory. In other words, it may be said that in certain cases and
circumstances the theory of extra territoriality applies. It is not necessary for a State to show
a specific rule of International Law for exercising jurisdiction over acts which have taken
place outside its territory.
(3) The contention of the French Government that it was necessary for the Turkish
Court to show some specific rule of International Law authorising it to exercise jurisdiction
over acts committed outside its territory was rejected.
(4) Even the States which believe in the principle of territoriality of criminal jurisdiction
under International Law admit that the crime will be treated to have been committed in
their territory if any element of it is related to their own territory.
(5) If the effects of a crime fall upon the territory of a Slate, then that State gets jurisdiction
over the crime. In the present case, the effect of the crime committed on the board of S. S.
Lotus fell upon the Turkish ship Boz Kourl. Hence, Turkey acquired jurisdiction over such
crime although the crime was committed outside its territory. There was no such rule of
International Law as might prevent Turkey from prosecuting and punishing Mr. Demons.
(6) Under International Law, there was no such rule according to which criminal jurisdiction
could be exercised only by the country of which the flag is flowing on the ship. In short, in
certain cases gnd circumstances, a State may exercise criminal jurisdiction outside its
territory.
On the basis of the aforesaid: principles and facts of the case the Permanent Court of
International Justice gave the verdict that by prosecuting and convicting Mr. Demons,
Turkey did not violate International Law and in particular, Article 15 of the Convention
of Lausanne, 1923.
N.B. It may, however, be noted that the above decision in this case has become obsolete as
regards collision cases because Article 11 (1) of the Geneva Convention on the High Seas,
1958 provides: "In the event of collision or any other incident of navigation concerning a
ship on the High Seas, involving the penal or disciplinary responsibility of the master or any
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other persons in the service of the ship, no penal or disciplinary proceedings, may be
instituted against such persons except before the judicial or administrative authorities either
of the flag state or of the state which a person is a national." This provision without any
change has been incorporated in Article 97 (1) of U.N. Convention on the Law of the Sea,
1982. Earlier a similar provision was made in Brussels Convention of 10 May, 1952 relating
to criminal jurisdiction in matters of collision or other accidents of navigation.
U.N. Crime Commission.-

Growing crime rates are threatening to become a Universal phenomenon comparable to
ecological disaster. 114 State Ministers met in Versailles (France) in November, 1991 and
voiced their concerns and considered the creation of an effective U.N. Crime Prevention and
Criminal Justice Programme. These concerns were affirmed by the General Assembly of the
U.N. on 18th December, 1991.
The Assembly unanimously called for the creation of a new Commission-Commission on

Crime Prevention and Criminal Justice as a functional body of the Economic and Social
Council. The General Assembly dissolved the existing committee on Crime Prevention and
Control and decided that the funds would be made available for the new Commission.
The inaugural session of the Commission on Crime Prevention and Criminal Justice-the
newest body of the Economic and Social Council-was held at Vienna from 21 st to 30th April.
1992. It approved an omnibus draft resolution which could serve as a blueprint for the
future activities of the U.N. Crime Prevention and Criminal Justice Programme.
Priority areas of the commission will include national and international crime; organized
crime; economic crime including money laundering; the role of criminal law in the protection
of the environmental crime prevention in urban areas; and juvenile and violent criminality. It
may also be noted here that the Ninth U.N. Congress on the Prevention of Crime and the
Treatment of Offenders was held in 1995.
Extra-territoriality.-
According to the theory of extra-territoriality, in some cases, persons, property etc. may be
situated physically within the territory, yet the State cannot exercise jurisdiction over them,
vice versa, the property or persons may not be within the territory of the State may be able
to exercise jurisdiction over them. As pointed out by Brierly, "Extra territoriality is a legal
fiction by which certain persons or things are deemed for the purposes of jurisdiction and
control outside the territory of a State in which they really are, and will be that of some
other State."
The theory of extra-territoriality applies on the following cases:
(1) Sovereign and high officers of foreign State.-

When sovereign rulers or high officers of foreign State visit other States, they are ordinarily
regarded to be outside the jurisdiction of visiting State.
(2) Diplomatic Agents.-

The diplomatic agents are also immune from different types of jurisdictions of States in
which they are appointed. In recent years, it has, however, been recognised that they get
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these immunities and privileges not because they are outside the jurisdiction of the State to
which they are appointed or visit, but, because of the special functions that they perform
(Ex-parte Petrof, 1971 ).
(3) Public vessels of foreign States.-

Public vessels of foreign States generally treated to be outside the jurisdiction of foreign
States where they may be for the time being.
(4) Armed forces of foreign States.-

The armed forces of foreign States also enjoy certain immunities from the jurisdiction of
foreign State where they are stationed for the time being. (Schoner Exchange Me Faddon).
(5) International organisations.-

International organisations are also accorded certain immunities and privileges. These
immunities and privileges however generally depend upon the agreements entered into
between the International organisations and the State concerned. For example, there is an
agreement between the. U.N. and America regarding the headquarters of the U.N. There are
similar agreements in respect of International Labour Organisation, UNESCO, W.H.O. and
other specialized agencies of the U.N.
State Jurisdiction According to the Universal principle: -

As pointed out by Starke, "An offence subject to universal jurisdiction is one which comes
under the Jurisdiction of all States wherever it be committed. In a much as by general
admission the offence is contrary to the interests of the international community, it is
treated as a delict jure gentium and all States are entitled to apprehend and punish the
offenders.
Clearly the purpose of conceding universal jurisdiction is to ensure that no such offence
goes unpunished”. Further "There are probably two clear cut cases of universal jurisdiction,
namely, the crime of piracy jure gentium, and war crimes "
Since 'piracy' as defined in Article 15 of the Geneva Convention on the High Seas, 1958
includes illegal acts or violence, detention or any act of depredation etc. against aircraft also,
a case can be made cut that the universal jurisdiction principle should apply to the crime of
aircraft hijacking also. The features of Hague and Montreal Covenants on hijacking have
brought the offence of hijacking very near to piracy under international customary law.
Thus, it may be concluded that the principle of universal jurisdiction applies to piracy and
war crimes and to some extent also to aircraft hijacking. It may be suggested that it will be in
the interest of international community to extend the principle of universal jurisdiction of
some other international crimes such as genocide and apartheid and an international
Criminal Court should be established to try persons accused of the said international crimes.
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2. Explain personal jurisdiction and jurisdiction according to

protective principle.
Personal Jurisdiction
Personal, as distinct from territorial jurisdiction, depends on some quality attaching to the
person involved in a particular legal situation which justifies a state or states in exercising
jurisdiction in regard to that person. Practically, the jurisdiction is only employed when the
persons concerned come within the power of the state, and process can be brought against
them. This will occur generally when a person enters the territory of the state either
voluntarily or as a result of successful extradition proceedings.
According to present international practice, personal jurisdiction may be exercised on the

basis of one or other of the following principles:
(a) Active nationality principle
Under this principle, jurisdiction is assumed by the state of which the person, against whom
proceedings are taken, is a national. The active nationality principle is generally conceded by
international law to all states desiring to apply it. There is indeed a correlative principle of
the law of extradition that no state is bound to extradite from its territory a national guilty of
an offence committed abroad.
(b) Passive nationality principle

Jurisdiction is assumed by the state of which the person suffering injury or civil damage is a
national. International law recognises the passive nationality principle only subject to certain
qualifications. Thus it would appear from the Cutting Case that a state which does not admit
the passive nationality principle is not bound to acquiesce in proceedings on this basis
brought against one of its nationals by another state. The justification, if any, for exercising
jurisdiction on this principle is that each state has a perfect right to protect its citizens
abroad, and if the territorial state of the locus delicti neglects or is unable to punish the
persons causing the injury, the state of which the victim is a national is entitled to do so if
the persons responsible come within its power. But as against this, it may be urged that the
general interests of a state are scarcely attacked 'merely because one of its nationals has
been the victim of an offence in a foreign country'." The passive nationality principle is
embodied in several national criminal codes, in particular the codes of Mexico, Brazil, and
Italy. Great Britian and the United States, however, have never explicitly admitted the
propriety of the principle, but in the Diplomatic Security and Anti-Terrorism Act 1986, the
United States claims jurisdiction over persons who kill US nationals abroad with the
intention of coercing, intimidating, or retaliating against a government or people (whether
that be the United States or not).
In the Lotus Case. Judge J. B. Moore, an American judge on the Permanent Court of
International Justice, declared that an article of the Turkish Penal Code whereby jurisdiction
was asserted over aliens committing offences abroad 'to the prejudice' of a Turkish subject
was contrary to international law, but it is not clear to what extent other members of the
court shared or differed from this view.
4. JURISDICTION ACCORDING TO THE PROTECTIVE PRINCIPLE
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International law recognises that each state may exercise jurisdiction over crimes against its
security and integrity or its vital economic interests. Most criminal codes contain rules
embodying in the national idiom the substance of this principle, which is generally known as
the protective principle.
In Joyce v DPP, the House of Lords seems to have held that the English common law
recognises a principle of jurisdiction akin to the protective principle, namely that an alien
owing some kind of allegiance to the Crown may be tried by British courts for the crime of
treason committed abroad. Underlying the House of Lords decision is the consideration that
such a crime is one directly against the security and integrity of the realm, and its reasoning
is applicable to other statutory offences of similar scope (for example, against the Official
Secret Acts).
The rational grounds for the exercise of this jurisdiction are two-fold:
i. the offences subject to the application of the protective principle are such that their
consequences may be of the utmost gravity and concern to the state against which they are
directed;
ii. unless the jurisdiction were exercised, many such offences would escape punishment
altogether because they did not contravene the law of the place where they were
committed (lex loci delicti) or because extradition would be refused by reason of the political
character of the offence.
The serious objection to the protective principle is that each state presumes to be its own
judge as to what endangers its security or its financial credit. Thus in many cases, the
application of the protective principle tends to be quite arbitrary.
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3. What is State Succession? Explain the rights and duties arising

out of State Succession.
Definition.
Oppenheim has described 'State Succession' in the following words:-
"A succession of international person occurs when one or more international persons take
place of another international person, in consequence of certain changes in the latter's
conditions."
Ordinarily the practice of States shows that no general succession takes place.
However, most of the jurists agree that when an international person is extinct or
disappears then some of its rights and obligations are succeeded by other international
persons which take its place. The rule of State succession was incorporated from the Roman
Law by Grotius. In Roman Law, when a person died his rights and duties were succeeded by
his successors. This principle was applied by Grotius in international law also. Later on
certain international treaties were entered into to develop the rules of State succession. The
Law of State succession is still developing. The United Nations Conference on Succession of
States in respect of Treaties adopted on 23 August' 1978 a convention known as Vienna
Convention on Succession of States in Respect of Treaties.
It may also be noted here that the term 'State succession' is a misnomer. It is inaccurate
because it is based on municipal law analogy of the actual demise of a person and the
transmission of his rights and liabilities to his successor. The practice of States shows that no
general succession takes piace with the extinction of a State as an international person its
rights and duties as a person also disappear. However, most of the jurists now agree that
when an international person extincts, some of its rights and obligations are succeeded by
other international persons which take its place.
Kinds of State Succession.-

State successions a.re of two types-
(1) Universal Succession, and
(2) Partial Succession.
(1) Universal Succession.-

Universal Succession takes place under the following circumstances:-
(a) when a State is completely merged with another State; either through subjugation or
voluntary merger; and
(b) when a State breaks into several parts and each part becomes a separate international
person.
(2) Partial Succession.-

Partial succession takes place:-
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(a) when a part of the State revolts and after achieving freedom becomes a separate
international person. The breaking away of Bangladesh and becoming a separate
international person is a glaring example of partial succession;
(b) when a part of a State is ceded to another State:

STATE UCCESSION
(c) when a sovereign State loses part of its independence by joining the federal State
or when a State accepts the suzerainty or becomes a protectorate of another State.
Principle of the Continuity of States.-

The succession of Government is based on the principle of the continuity of States. The
change in the Government of a State does not affect the legal personality of the State. The
new Government succeeds to the rights and obligations of the predecessor Government.
This principle is based on the common interests of international community. The importance
of the international agreements will suffer a setback in case the treaty obligations are
disregarded in consequence of the change of Government of a State. But, as pointed out by
Prof. D.P.O. Connell, the treaties entered into by a State come to an end in case it is
completely absorbed in another State. This rule al 0 applies, in a case when a part of State
revolts and after becoming an international person, refuses to follow the treaties entered
into by it parent State. For example, Bangladesh is not bound by treaties entered into by
Pakistan.
In the Tinoco Arbitration Great Britain, Costa Rica (1923), Mr. Taft Arbitrator quoted with
approval the following observation of Dr. J. B. Moore:
" though the government changes, the nation remains, with rights and obligations
unimpaired The principle of continuity of States has important results. The State is bound by
engagements entered into by Government that have ceased to exist, the restored
government is generally liable for acts of the usurper. In the view of Mr. Taft, this Statement
of law "announces the general principle which has such universal acquiescence as to become
well settled international law".
Rights and Duties arising out of State Succession.-

(1) Political rights and duties.-
No succession takes place in respect of political rights and duties, hence succeeding State is
not bound by the political treaties of the former State such as treaties of peace or neutrality.
(2) Local rights and duties.-

A genuine succession takes place in respect of local rights and duties, such as , land, rivers,
roads, railways, etc. In the case of German Settlers in Poland, Permanent Court of
International Justice, in its advisory opinion, held that private rights do not end by the
change of sovereignty.
(3) State property.-

Article 11 of the Vienna Convention on State Property, Archives and Debts, 1983 provides
that unless otherwise agreed the passing of State property will take place without
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compensation. Article 12 provides that property rights and interests owned by a third State
should not be affected by a succession of State.
Article 13 asks the predecessor State to take all measures to prevent damage or destruction
to State property which passes to successor State. Regarding State succession in case of
newly independent States, Article 15 allows special reference to be made to bilateral
agreements between the predecessor State and the newly independent State but it shall not
infringe the principle of the permanent sovereignty of every people over it wealth and
natural resources.
It may, however, be noted that Vienna Convention on State Property Archives which was
adopted and signed on 8 April, 1983 has not entered into force. For becoming effective it
requires 15 States to be bound by it. As of August, 2009 only 7 (seven) States have so far
ratified it. One of the main flaws of the Convention is heavy reliance throughout on equity as
a guiding principle. Another defect is that it has been pointed-cut is unique emphasis on
succession of States in a simple case of independence, typically from a colonial power.
Moreover, this Convention does not seem to be useful guide to settling the complex
problems of succession resulting from the break up of a State.
(4) State- Archives.-

Article 25 of the Vienna Convention on State Property, Archives and Debts, 1983 lays
emphasis on preserving the integral character of groups of State archives of the predecessor
State. Article 28 of the convention provides that the passing or appropriate reproduction of
State archives of the predecessor State to a newly independent successor State should be
determined by agreement in such a manner that "each of those States can benefit as widely
and equitably as possible" from those archives. Bilateral agreements between the two States
should not "infringe the right of peoples of those States to development to information
about their history and to their cultural heritage."
(5) State or Public Debts" .-

Article 36 of the Vienna Convention on State Property Archives and Debts, 1983 provides
that the succession of a State does not as such affect the rights and obligations of creditors.
Further, when the successor State is a newly independent State, no State debt shall pass to
the new State unless an agreement between two States provides otherwise, according to
the convention. Such an agreement however, "shall not infringe the principle of the
permanent sovereignty of every people over its wealth and natural resources, nor shall its
implementation endanger the fundamental economic equilibria of the newly independent
State" (Article 38). In case of separation of part of the territory the State debt of the
predecessor State should pass to the successor State in an "equitable proportion" taking into
account the property, rights and interest passing to the successor States (Article 40).
(6) Contracts.-
Majority of jurists are of the view that the succeeding States should be bound by the
contract entered into by the extinct State. But in West Rand Central Gold Mining Co. Ltd. v.
King, it was held that the succeeding State was entitled to decide whether it will accept the
financial obligations of the former State. Until it accepts the financial obligations of the
former State, it will not be bound by them.
(7) Concessionary contracts.-
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By concessionary contracts we mean the contracts through which certain concession such as
digging of mines. laying of railways, etc. are granted. Since these are of mostly local nature,
the succeeding State is bound by them. Much will, however, depend upon the facts and
circumstances of each concession or contract.
(8) Laws.-
So far as the laws of the former State are concerned, civil law continues until it is changed by
the succeeding State.
(9) Unliquidated damages for Torts.-

No succession takes place in respect of unliquidated damages for torts. But, the succeeding
State will be bound if the former State had accepted or had decided to pay compensation.
(10) Nationality.-
The nationals for the former State loose their nationality at the extinction of the State and
become the nationals of the new international person. Generally such nationals are given a
certain period within which they have to decide whether they will continue their loyalty
towards the former State or will accept the citizenship of the succeeding State.
(11) Succession to property in foreign States.-

The succeeding State becomes the successor of the property of the extinct State situated in
foreign country.
(12) Succession of States in respect of treaties. –

On 23rd August, 1978, a convention known as the Vienna Convention on Succession of
States in Respect of Treaties has been adopted. This Convention entered into force on
November 6, 1996. Article 1 of the convention which deal with the scope of the convention
provides that it applies to the effects of a succession of States in respect of treaties between
States. The convention deals with cases of succession of ,States under three main headings:
(i) succession in respect of part of a territory;

(ii) newly independent States, i.e., States which emerged from former dependent territory;
and
(iii) uniting and separating of States.
While it retains from the last category of cases, the principle of de jure continuity in force
at the date of the, succession of States (Articles 31 and 34), it enunciates, in the case of
newly independent late the 'clean State principle' i.e., the new State's general freedom
from obligation in respect of its predecessor's treaties, a principle held to be fully
consistent with that of self-determination. Article 16 of the convention provides that a
newly independent State is not bound to maintain in force. or to become a party to, any
treaty by rea on only of the fact that at the date of the succession of States, the treaty was
in force in respect of the territory to which the succession of States relates. As regards
succession in respect of part of territory (i e., first category mentioned above). Article 15
provides that when part of the territory of a Stat, r v hen any territory for the
international relations of which a State is responsible, not being part of the territory of
that State, become part of the territory of another State:
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The convention on Succession of State in respect of Treaties, 1978 was signed on

August 22, 1978 and came into force on November 6, 1996. So far 21 states have ratified
the convention. It may however, be noted that convention has generated a lot of
controversy because it distinguishes between newly independent states (i.e., those which
were formerly colonies) and cases of separation of parts of states (i.e., all other new
states).
Article 16, states that all newly independent states receive "a clean state" whereas
Article 34 (1) provides that all other new states remain bound by the treaty obligation of
the state from which they separated. Article 17 states that newly independent states join
multilateral treaties to which their former colonizers were a party without the consent of
other parties in most circumstances on the other hand. Article 9 provides that all other
new states may only join multilateral treaties to which predecessors states were a part
with the consent of other parties.
(a) treaties of the predecessor State cease to be in force in respect of the territory to which
the succession of States relates from the date of succession of States; and
(b) treaties of the successor State are in force in respect of the territory to which the
succession of States relates from the date of succession of States unless it appears from the
treaty or is otherwise established that the application of the treaty to that territory would be
incompatible with the object and purpose of the treaty or would radically change the
conditions for its operation.
The convention also provides procedures of settlement of disputes under Articles 41

to 45 and a conciliation machinery is provided in Annex to the Convention.
Succession regarding membership of the United Nations.-

No succession takes place in respect of the membership of the United Nations. A State may
become a member of the United Nations by fulfilling the formalities required under the
United Nations Charter. That is to say, an application for admission of a State should be
recommended by the Security Council and the General Assembly should elect it as a
member by the two-thirds majority. After the partition of India (into India and Pakistan)
Pakistan claimed to have become a Member of the United Nations through succession
because India was an original member of U.N. But. this view was rejected by the General
Assembly. Subsequently, Pakistan had to apply for the membership and was admitted as
a new member.
Succession in International Organization.-

As pointed out by Prof. Oppenheim. "While as a rule devolution of rights and competencies
is governed either by constituent instrument of the organs in question or by special
agreements or decisions of their organs. the requirement of continuity of international life
demands that succession should be assumed to operate in all cases where that is consistent
with or is indicated by the reasonably assumed intention of the parties as interpreted in the
light of the organisation in question."
The law regarding succession of international organisation has been clarified by the
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International Court of Justice in its advisory opinion of 1950 in the status of South
West-Africa. South-West Africa was entrusted to South Africa under the Mandatory
Commission to develop it and to make it independent, if and when its people were
capable of governing themselves. After the dissolution of the League of Nations, the
functions of the Mandatory Commission were succeeded by the Trusteeship Council one
of the; organs of the United Nations. But. South Africa claimed that after the dissolution
of the League of Nations. she was not bound to follow the control and supervision of the
United Nations in respect of the South-West Africa. South Africa claimed that South
West Africa (Namibia) had become an integral part of South West Africa. The General
Assembly, therefore, referred this matter to the International Court of Justice for its
advisory opinion. The International Court of Justice advised that the Mandatory
Commission was an institution of International Status and the Mandatory Commission
had created International Status of South Africa which could not be modified unilaterally
by South Africa. The Court also pointed out that the nature. functions and objectives of
the Mandatory Commission and the Trusteeship Council are same. Keeping in view the
desirability of the requirement of continued international life, the World Court opined that
the Trusteeship Council succeeded all the functions of the Mandatory Commission.
Consequently. the South-West African Republic was a trust territory under the control of
the Trusteeship Council and hence South Africa was bound to follow the directions and
control of the Trusteeship System of the United Nations. The Court also laid down that if
the nature, functions and objectives of the new international organisation and extinct
international organisation are same. then succession may take place in regard to the
functions and powers of the extinct organisation.
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4. Discuss state responsibility.

Meaning of 'State Responsibility'.-
According to Starke, "The rules of international law as to State responsibility concern the
circumstances in which, and the principles whereby, the injured State becomes entitled to
redress for the damage suffered."
The law relating to State responsibility is in developing State and probably it may be
developed to a stage wherein States may be held responsible for the violations of
international law and international crimes. The State responsibilities during the wars have
been generally accepted in Article 5 of Hague Convention, 1907. It provides that if a
belligerent State violates rules of war, it shall be responsible for the payment of
compensation. it shall also be responsible for all acts committed by persons forming part of
its armed forces. The U.N. International Law Commission has started a few years ago the
efforts to codify the rules governing State responsibility as a general and independent topic.
The International Law Commission on its first reading provisionally adopted Draft Articles on
State Responsibility. Article 1 of Draft Articles provides about the responsibility of a state for
its internationally wrongful acts. It provides that every internationally wrongful act of a state
entails the international responsibility of that state.
Article 2 provides that every state is subject to the possibility of being held to have
committed an internationally wrongful act entailing its international responsibility.
Article 3 deals with elements of an internationally wrongful act of a state. It provides that
there is an internationally wrongful act of a state when:
(a) that conduct consisting of an action or omission is attributable to the state under
international law; and
(b) that conduct constitutes a breach of an international obligation of the State.
Article 4 says that an act of a state may only be characterised as internationally wrongful by
international law. Such characterisation cannot be affected by the characterization of the
same act as lawful by international law.
As regards consequences of an internationally wrongful act, Article 42 (1) states that the
injured state is entitled to obtain from the state which has committed an internationally
wrongful act full reparation in the form of restitution in kind compensation, satisfaction and
assurance and guarantee!! of non-repetition either singly or in combination. The provisions
relating to settlement Of disputes arc contained in Draft Articles 54 to 60.
Original and Vicarious Responsibility.-

Original responsibilities of the State are for the works of its Government and the vicarious
responsibilities are for its citizens and the works done by its agents. In the words of
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Oppenheim, "original responsibility is borne by State for its own-tha is for its government's
action and such actions of the longer agents or private individuals as are performed at the
government's command or with its authorisation the responsibility of State for acts other
than their own is a vicarious responsibility. Since, the law of nations is primarily though not
exclusively a law between States only, it must make every State in a sense responsible for
certain internationally injurious acts, committed by its official, subjects and such aliens as
are temporarily residents of its territory."
State Responsibility in different fields

(1) International delinquency.-.
As pointed out by Prof. Oppenheim, "every neglect of an international duty constitutes an
international delinquency and the injured State can, subject to its obligations of pacific
settlement through 'reprisals' or even war, compel the delinquent State to fulfil its
international duties."
Starke has explained the term "international delinquency" in the following words: "In
practice, most cases of responsibility, at least before international tribunals, arise out of
wrongs alleged to have been committed by the State concerned. By wrong in this
connection is meant the breach of some duty which rests on a State at International Law
and which is not the breach of a purely contractual obligation. To such wrongs, more
frequently the term 'international delinquency is applied Most of cases that come
under this head concern injurie suffered by citizen abroad Generally speaking, a person who
goes to live in the territory of a foreign State must submit to it laws; but, that is not to say
that certain duties under international law in respect to the treatment of that person do not
bind the State. Examples are the duty of the State to provide proper judicial remedies for
damage suffered, and the duty to protect alien citizens from gratuitous personal injury by its
officials or subjects."
Notion of Imputability._
The notion of imputability is important in respect of international delinquency. If, an agency
of a State cause injury to the citizen of another State, former State will be liable to the latter
State if the said act in law is imputed to the state. Imputability depends Upon two conditions
(i) conduct of a State organ or official in breach of obligation under international law and
(ii) according to international law, breach will be attributed to the State.
A State become internationally responsible for the breach only if breach is imputable to the
State.
(2) State responsibilities for the acts of aliens.-

It is generally agreed that aliens living in a State should be given same rights which are given
to the citizens of that State. It is the responsibility of the State to protect the right of aliens
in the same way as they protect the rights of their own citizens.
State responsibilities towards alien may be of following types;
(a) State responsibility for the acts of individuals._
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If a citizen of a State caused damage or harm to an alien, that alien gets the rights to file a
suit for the compensation according to the law of that State. In case the decision of a State
Tribunal is arbitrary and against ju tice, the alien may approach his home State to settle the
matter through political means so as to ensure that the matter is decided in accordance with
the principle of international law.
(b) State responsibility for the acts of Mob Violence.-

A State may be held responsible for the harm caused to the aliens by mob violence only
when it has not made due diligence to prevent it. But, this is a very uncertain and ambiguous
principle because 'due diligence' to prevent mob violence depends upon the time, fact and
circumstances. The test is so ambiguous that it has often led the jurists to remark that there
is no responsibility at all in respect of mob violence. But, mi is not a correct view and does
not find support from countries such as England and America. If, the alien person is some
officer of a foreign country then the State responsibility is further increased.
The responsibility of the State also extends to the officers or servants of the international
organisations. A brief reference may be made here to the case of Reparation or Injuries
Suffered in the-Service of the United Nations.
In this case Count Bernadotte along with a French observer was appointed by the United
Nations Security Council to mediate in the conflict between Arab and Jews in Palestine. On
September 17, 1948, when he was in the area of Jerusalem, occupied by Israel, he and the
French observer were murdered. The question arose whether the United Nations could
claim reparation for his death. The matter was referred to the International Court of Justice
for its advisory opinion. The World Court held that United Nations is an international person
and under international law it has rights and duties; that it can claim damages or
compensation for the injuries or loss suffered by the persons working under its service or
auspices. The Government of Israel paid the money in the form of compensation but made it
clear that it did not accept any obligation under international law in this connection.
(c) The State responsibility for the acts of insurgents.-

In this connection the general rule is that it is the responsibility of the State to try to prevent
the violent acts of revolutionaries. According to Fenwick, State responsibility for the acts of
insurgents is different from State responsibility for the acts of mob violence. In his words,
"The very existence of organised revolution raises a presumption of 'due diligence' on the
part of the State for suppressing it since the Government had an immediate interest In sueh
lin open attack upon its authority. "
A brief reference may also be made here of Calvo Doctrine.
Calvo Doctrine. –
It was propounded by Mr. K. Calvo of Argentina. In his view during civil war the State is not
responsible for the losses suffered by alien persons because if the responsibility is accepted,
big nations will get an excuse to intervene in the weaker States. Many States, such as,
America and England do not accept this doctrine.
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They point out, since the revolt or insurrections are frequent in the States, the presumption
that the States made 'due diligence' becomes weak.
Reference may also be made here to the insertion of Calvo clause in contracts providing for
the resolution of any dispute arising out of the contract by national courts and preventing
the home government of the alien concerned from making diplomatic intervention. As
pointed out by Starke, "The object of such a clause (i.e., Calvo clause) is to ensure that legal
disputes arising out of the contract shall be referred to the municipal courts of the State
granting the concession or other right, and to oust the jurisdiction of international arbitral
tribunals or to prevent any appeal for diplomatic action to the national State of the company
or individual enjoying the concession 'etc. Further, he summarises his conclusions in respect
of the Calvo clause in the following words:
(1) In so far such clause attempts to waive in general the sovereign right of a state to protect
its citizens, it is to that extent void.
(2) ..... .it would be obviously improper for the individual to treat the State which he seeks
redress as no inferior and untrustworthy country and to apply for his government's
intervention without making any claim in the local court.
(3) Whenever such a stipulation purports to bind the claimant's Government not to
intervene in respect of a clear violation of international law, it is void.
(4) To sum up, it may be said that Calvo clause is ineffective to bar the rights of States to
protect their nationals abroad, or to release States from their duty to protect foreigners on
their territory."
Thus the Calvo clause is ineffective to bar the rights of States to protect their national
abroad or to release States from their duty to protect foreigners on their territory.
(3) State responsibility for the acts of governmental organs.-

A State is responsible for the act performed by its representatives or high officials towards
alien persons. The State will be responsible only to the extent when the officials concerned
act beyond their powers and jurisdiction. Similarly the State is responsible for the acts of its
judicial organs .
(4) State responsibility for contracts with foreigners.-

As a matter of fact, the State is not responsible under international law if there is a breach of
contract entered into by a State with aliens. However, the alien person may avail the local
means available to him in the law of the State concerned. If he fail to get the desired
remedy, he may approach his home state to pursue the matter.
(5) Responsibility for the breach of treaty or contractual obligations.-

State responsibility as a result of the breach of the treaty will depend upon the provisions of
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the treaty. If there is a breach of treaty obligation, the State concerned shall be responsible
to pay the compensation. This was held by the Permanent Court of International Justice in
Chorzo Factory (Indemnity) Case, The World Court also held, although the rights of the
individual are different from those States, yet they may be taken into account while
assessing the damages.
As pointed out earlier, a breach of a contract by a State with the national of another State
does not give rise to any State responsibility in this connection. But, if a State enters into a
treaty with another State that the contracts entered into by its nationals shall be respected,
a breach of such contract will give rise to the State responsibility. That was held in Anglo-
Iranian Oil Co. Cases.
(6) State Responsibility in respect of Expropriation of Foreign Property.-

There is a great, controversy in regard to the expropriation of foreign property situated in a
State. However, in the modem period, significant changes have taken place in this
connection. Till the 19th century, if any State expropriated the foreign property it was
considered to be the violation of international law making the said State liable for the same.
But, in the modern period, in view of the complete control of States over their Economic
system and in consequence of the nationalisation of different industries, it has become
difficult to recognise such expropriation as the violation of international law. It may be noted
here that the term 'Expropriation' includes nationalisation and confiscation of property.
On the basis of practice, principles and decided cases, it may be that expropriation of reign
property may be valid only when there has been no irregularity or discrimination with the
foreigners. This was held in Anglo-Iranian Oil Co. Ltd. v. Jaffrate. There has been the constant
development of the law relating to the expropriation of foreign property. In 1952, the
General Assembly approved the concept of Economic Self-determination through a
resolution [General Assembly Resolution 626 (vii) of 21st December, 1952.]. The said
resolutions were referred in Anglo-Iranian Co. Ltd. v. S.U.P.O.R. and Anglo-Indian Oil Co. Ltd.
v. Idemstu Kosan Kabushiki Kaisha.
In 1958, a Commission on Permanent Sovereignty over Natural Resources was established.

On the basis of the report of this Commission, the Economic and Social Commission passed a
resolution in 1962 which declared that in case of expropriation, nationalisation, or
requisitioning the owner shall be given appropriate compensation in accordance with the
rules in force in State taking such measures in the exercise of its own sovereignty and in
accordance with International Law." In 1965, the Third Committee of General Assembly
adopted a draft article for Human Rights covenant which provided: "The people may, for
their own ends, freely dispose of their natural wealth and resources without prejudice to any
obligation arising out of international economic co-operation based upon the principle of
mutual benefit, and International Law. In no case may a people be deprived of its own
means of subsistence."
Thereafter, such type of provisions were included in Human Rights Covenants, 1966. In this
connection 1965 Convention on the Settlement of Investment Disputes between States and
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national of other States also deserves a special mention. In this convention, an endeavour
has been made to establish international procedure and machinery for the settlement of
investment disputes between States and nationals of other States. On 17th December, 1973,
the General Assembly passed a resolution [Resolution 317 (xxviii)] on Permanent
Sovereignty over Natural Resources wherein it affirmed "that the application of the principle
of nationalization carried out by States, as an expression of their sovereignty in order to
safeguard their natural resources, implies that each State is entitled to determine the
amount of possible compensation and the mode of payment, and that any disputes which
might arise should be settled in accordance with the national legislation of each State
carrying out such measures "
On December 13, 1974, the U.N. General Assembly adopted by an overwhelming majority a
Charter of Economic Rights and Duties of States. It has been hailed by some developing
countries as an "economic Magna Carta". The resolution was passed by a majority of 120 to
6 with ten abstentions. The resolution proclaims that each State has the right "to freely
exercise full and permanent sovereignty over its wealth and natural resources, to regulate
and exercise authority over foreign investments within its nation jurisdiction, and to
nationalise, expropriate or transfer the ownership of foreign property.
It further provides that "appropriate compensation" should be paid in cases of

nationalisation by the State adopting such measures, taking into account its relevant laws
and regulations and all the circumstances which the State considers pertinent. In case of
any dispute or controversy relating to compensation, it should be settled under the
domestic laws of the nationalising State and its tribunals unless it is freely and mutually
agreed by all States concerned that other peaceful means be sought on the basis of
sovereign equality of States and in accordance with free choice of means. United States,
Britain, Denmark, Germany and Luxemburg voted against the resolution while other
affluent members, Austria, Canada, France, Ireland, Israel, Italy, Japan, the Netherlands,
Norway and Spain abstained. Despite this, it would not be wrong to say that "the new
Charter marks the beginning of new phase in international relations, even if interested
power may be expected to defy and sabotage it."
(7) State Liability for Acts of Multinational Corporation.-

There is lack of definite international law in respect of liability of transnational or
multinational Corporations. The Charter of Economic Rights and Duties adopted by the
General Assembly on 12th December, 1974, recognises the right of each State "to regulate
and supervise the activities of transnational Corporations within its national jurisdiction and
take measures to ensure that such activities comply with its laws, rules and regulations and
conform with its economic and social policies." But developed countries such as U.S., U.K.,
Federal Republic of Germany and Japan voted against this. In M. C. Meh v. Union of India.'
more popularly known as Oleum Gas Leak Case, the Supreme Co of India held "the
enterprise must be under an obligation to provide that the hazardous inherently dangerous
activity, in which it is engaged must be conducted with the highest standard of safety and if
any harm results on account of such activity the enterprise must be absolutely liable to
compensate for such harm and it should be no answer to the enterprise to say that it had
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taken all rea on able care and that the harm occurred without any negligence on it part.. the
enterprise is strictly and absolutely liable to compensate all those who are affected by the
accident and such liability is not subject to any of the exception which operate vis-a-vis the
tortious principle of strict liability under the rule in Rylands v. FLetcher."
In Bhopal Gas Leak Case, the Supreme Court got a golden opportunity to further develop the
above rule but the court abdicated its responsibility and even before the challenge to the
Bhopal Gas Disaster (Processing of Claim) Act, 1985 was decided, the court passed
settlement order awarding a very meagre sum and ended all criminal and civil liability in
respect of the Bhopal Ga Leak Disaster. The settlement order has been severely criticised."
As remarked by Mr. P.N. Bhagwati. retired Justice of the Supreme Court of India, "The
Bhopal Gas has come to a disturbing end and in an unprecedented manner. The
multinational has won and the people of India have lost. What has happened is unfortunate
and distressing. The Supreme Court has lost the opportunity of advancing human right
jurisprudence from the Third World point of view and failed to meet the expectation of the
people of India – the constituency of the court."
One of the most objectionable points in this connection was that the validity of the Bhopal
Gas Leak Disaster (Processing of Claim) Act, 1985 had already been challenged through a
petition. Before passing the Settlement Court, the Supreme Court should have first decided
the validity of the Act which empowered the Union of India to enter into compromise with
the Union Carbide Corporation. Later on, however, the Supreme Court upheld the validity of
the Act in Charan Lal Sahu v. Union of India. As the Settlement order of 14th February, 1989
had already preceded it the judgment lost much of its significance and was considered by its
critics as a mere formality.
Reference may also be made here to the petition for the review of the Settlement Order
dated 14th February, 1989. In Union Carbide Corporation v. Union of India, the Supreme
Court upheld its order dated 14th February, 1989 the Supreme Court rejected most of the
arguments including the application of the principle of M. C. Mehta v. Union of India put
forward against the Settlement Order. The Supreme Court, however, set aside the quashing
and termination of the criminal proceedings brought about by the orders dated 14th and
15th February, 1989.
The Public Liability Insurance Act, 1991.-

The inadequacy of the Indian law to provide adequate relief to the victims of Oleum Leak
Gas case and Bhopal Gas Leak case had been proved beyond reasonable doubt.
Consequently, the Indian Parliament enacted the Public Liability Insurance Act. 1991. This
Act received the assent of the President on 22nd January, 1991. The Preamble of the Act
makes it clear that the aim of the Act is to provide for public liability insurance for the
purpose of providing immediate relief to the persons affected by accident occurring while
handing any hazardous substance and for matters connected therewith or incidental
thereto. As regards liability to give relief in certain case on principle of no fault, Section 3 of
the Act provides:
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(1) Where death or injury to any person (other than a workman) or damage to any property
has resulted from an accident, the owner shall be liable to give such relief as is specified in
the Schedule for such death, injury or damage.
(2) In any claim for relief under sub-section (I), the claimant shall not be required to plead
and establish that the death, injury or damage in respect of which the claim has been made
was due to any wrongful act, neglect or default of any person. The amount of compensation
fixed in the Schedule is as follows:
(i) Reimbursement of medical expenses incurred to a maximum of Rs.12,500 in each case.
(ii) For fatal accidents the relief will be Rs. 25.000 per person in addition to reimbursement
of medical expenses, if any, incurred on the victim up to a maximum of Rs. 12,500.
(iii) For permanent total or permanent partial disability or other injury or sickness, the relief
will be
(a) reimbursement of medical expenses incurred if any, upto a maximum of Rs. 12,500 in
each case and
(b) cash relief on the basis of percentage of disablement as certified by an authorised
physician. The relief for total permanent disability will be Rs. 25,000.
(iv) For loss of wages due to temporary disability, which reduces the earning capacity of the
victim, there will be a fixed monthly relief not exceeding Rs.1,000 per month upto a
maximum of 3 months provided the victim has been hospitalized for a period exceeding 3
days and is above 16 years of age.
(v) Upto Rs. 6,000. depending on the actual damage, for any damage to private property.
It may, however, be noted that the courts of States where multinational corporations
operate possess jurisdiction over such corporations and their, i.e. in respect of their
properties situated in the host State. If the acts of such corporation cause loss to the person
or property of citizens of the State, then action can be taken against the Corporation
according to the law of that State.
Defences to State Liability:

Articles 29 to 35 of the 1980 Draft Articles on State Responsibility submitted by International
Law Commission deal with the defences to State Responsibility. They are following:
(1) Consent;
(2) Counter measures in respect of an internationally wrongful act;
(3) Force majeure and fortuitous event;
(4) Distress;
(5) State of necessity;
(6) Self defence: and
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(7) Reservation as to compensation for damages.
Vienna Convention on Civil Liability for Nuclear Damage, 1963.-

A diplomatic conference was held at International Atomic Energy Agency Headquarters in
Vienna on 8-12 September, 1997. This conference adopted a Protocol to amend in the Civil
Liability for Damage, 1963. It also adopted a supplementary convention on supplementary
compensation for nuclear damage.
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5. ‘As to inter-oceanic canals, special treaty rules are applicable.’ –

Explain.
Inter-Oceanic Canals.-
Inter-Oceanic Canals are the canals which connect international water-ways and are available for the
shipping of all states. Their use control are governed by international treaties. The most important of
oceanic canals the following:
(1) Suez Canal.-

It is the most famous Inter-Oceanic Canal. In the beginning it was under the control of French
Government. Later on, it came under the control of British Government in 1954. A treaty was
concluded between British and Egypt whereby Britain withdrew its forces from the Suez Canal. In
1956, Suez Canal was nationalised by Egypt. France. Britain and Israel reacted strongly against this
action of Egypt and made a joint armed-intervention to prevent Egypt from nationalising the Suez
Canal. The problem was resolved through the efforts of Russia, Security Council and the General
Assembly. Subsequently, an agreement was entered into whereby it was provided that the Suez
Canal remain aloof from international politics and all the states shall have the right of shipping over
this canal. However. Egypt would be entitled to realise taxes from the ships passing through the
canal. In the Arab-Israel conflict. the Canal was greatly damaged and had to be closed for several
years. After the cease-fire between Israel and Egypt. the latter cleared the canal. But, later on it was
again opened for shipping etc. by states.
(2) Keil Canal.-

It is another important inter-oceanic canal connecting Baltic Sea and North Sea. In the beginning this
canal was under the control of Germany. After the First World War, it was thrown open for all the
states. A leading case relating to Keil Canal is S.S. Wifllbled0I1.11 In this case, the Permanent Court
of Justice held that the canal should remain open for all the states who are not at war with Germany.
If. some states are on war and Germany remains neutral in that war. even then the canal should
remain open for such states.
The facts of this case are as follows:
Article 380 of the Treaty of Versailles, 1919, provides that the Keil Canal shall remain open for the
merchants and warships of all those states who are not at war with Germany. On March 21. 1921.
the German Authorities stopped a British ship named S.S. Wimbledon on the ground that it
contained military equipment being shipped to Poland who was at war at that time with Russia. The
German Authorities contended that allowing the ship to pass through the Keil Canal would amount
to violation of the German neutrality. The prominent allied nations filed case against Germany in the
Permanent Court of International Justice. Deciding in favour of the allied nations the World Court
held that under Article 380 of the Treaty of Versaille. Germany 'was bound to allow the passage
through Keil Canal. to the S. S. Wimbledon. The Court, therefore. ordered that Germany should pay
compensation for violation of its treaty obligations.
(3) Panama Canal.-
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Panama Canal connects Atlantic Sea with the Pacific Sea. Under the Treaty of 1901 the Panama
Canal came under the control of United States of America. This is a very important canal for
commercial and transport purposes, Recently there has been a lot of controversy between
Panama and America regarding the control and use of this Canal. In March, 1973. the Security
Council held a session on Panama. In the said session a proposal was brought which could have
removed the control of America over this canal. But, this proposal was vetoed by America. America,
however, expressed desire to enter into fresh treaty with Panama in connection with the use and
control of this canal. Subsequently. Panama and the United States agreed on certain principles
regarding the use and control of the canal and on the basis of the said principles, they hope to enter
into a treaty in near future.
After prolonged negotiations for more than three years, the U.S.A. and Panama finally signed on 7th
September, 1977 two treaties-(i) A treaty guaranteeing the permanent neutrality of the canal; and
(ii) A basic treaty governing the use and defence of the canal through December 1999, changing the
status of the Panama Canal. One of the two treaties provides that the U.S.A. will turn over control of
the canal and the canal zone to Panama by the end of this century. The other treaty allows the U.S.A.
to defend the strategic water way if needs be, for an indefinite period. The treaties guarantee the
permanent neutrality of the canal.
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6. Explain ‘territorial sea’ and ‘continental shelf’.
The Law Of The Sea Under The Regimes Established By The United Nations Convention Of 10
December 1982
Definitions (Part I)
The principal definitions for the purposes of the Convention are contained in article 1, which
constitutes Part I. The term 'Area' is defined to mean the seabed and ocean floor and subsoil thereof
beyond the limits of national jurisdiction. The article also defines' Authority' (the International Sea-
Bed Authority), 'activities in the Area' (exploration and exploitation of resources), 'pollution of
the marine environment' (emphasising deleterious effects, the creation of hazards and the
impairment of quality), 'dumping' (emphasising the deliberateness of
the disposal of wastes, etc), and 'States parties'.
The Territorial Sea and Contiguous Zone (Part Il)

Article 2 proclaims that the sovereignty of a coastal state extends beyond its land territory and
internal waters and in the case of an archipelagic state, its archipelagic waters, to the territorial sea,
the superjacent air space and the bed and subsoil thereof (cf articles 1-2 of the Geneva Convention
of 1958 on the Territorial Sea and Contiguous Zone). The breadths and limits of the territorial seas of
states are covered in articles 3-7, under which the limit is not to exceed 12 nautical miles measured
from baselines, the normal baseline being the low-water mark as shown on large- scale charts
officially recognised by the coastal state. However, in the case of islands situated on atolls or of
islands having fringing 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 state. Straight baselines are
permissible according to the conditions laid down in article 7 (cf article 4 of the 1958 Convention),
which to a large extent embodies the principles affirmed in the Anglo-Norwegian Fisheries Case.
Such lines joining 'appropriate points' may be drawn f r'l calities' where the coastline is deeply
indented and cut into, or if there is an offshore fringe of islands in the immediate vicinity. 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. Lines
as drawn must not depart to any appreciable extent from the general direction of the coast, and the
sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to
the regime of internal waters. The lines are not to be drawn to and from low-tide elevations, unless
lighthouses or similar permanent installations above sea level have been built thereon, except where
the lines drawn in such circumstances have received 'general international recognition'. If the lines
are, in principle, permissible, account may be taken in determining particular lines of economic
interests peculiar to the region concerned, the reality and the importance of which are clearly
evidenced by long usage. The system of such lines is not applicable if the effect is to cut off the
territorial sea of another state from the high seas, or an EEZ.
Article 8 is similar to article 5 of the 1958 Convention, but, unlike the latter pro provision, reserves
the position of archipelagic waters; subject to that position, waters on the landward side of the
territorial sea baseline form part of the internal wat waters of the coastal state. Moreover, if a
baseline has been drawn in compliance with article 7, thereby enclosing as internal waters areas not
previously considered to be such, there shall exist a right of innocent passage in such waters. Article
9, dealing with the mouths of rivers, is similar to article 13 of the 1958 Convention; where a river
flows directly into the sea, the baseline is to be a straight line across the river mouth between points
on the low-water mark of the river banks.
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Article 10 (cf article 7 of the 1958 Convention) deals with bays, the coasts of which belong to a single
state. For the purposes of the Convention, a bay is in effect defined 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', and the area of the indentation must be as
large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of
that indentation. Where, because of the presence of islands, an indentation has more than one
mouth, the relevant semi-circle is to be drawn on a line as long as the sum total of the lengths of the
lines across the different mouths, islands within the indentation being included as if they were part
of the water area of the indentation. If 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; but if the distance between the
marks exceeds 24 nautical miles, a straight baseline of 24 nautical miles is to be drawn within the
bay so as to enclose the maximum area of water possible with the line. The above-mentioned
principles do not apply to 'historic bays’ or in any case where the baselines method under article 7
(see above) has been applied.
Articles 11-13 deal with harbour works, roadsteads and low-tide elevation (cf articles 8, 9 and 11 of
the 1958 Convention). Under article 11, for the purpose of delimiting the territorial sea, the
outermost permanent harbour works that form an integral part of the harbour system are to be
regarded as forming part of the coast, but offshore installations and artificial islands are not to be
considered as permanent harbour works. Article 12 provides that roadsteads normally used for the
loading, unloading and anchoring of ships are to be included in the territorial sea. A low-tide
elevation is defined by article 13 as a 'naturally formed area of land which is surrounded by and
above water at low tide but submerged at high tide'. Where such an elevation is situated wholly or
partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island,
the low-water mark on that elevation may be used as the baseline for measuring the territorial sea.
On the other hand, where a low-tide elevation 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.
Article 15 deals with the delimitation of the territorial sea between states with opposite or adjacent
coasts (cf article 12 of the 1958 Convention); neither of the two states is entitled, failing agreement
between them to the contrary, to extend its territorial sea beyond 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 subject to the exception of cases of
'historic title' or other special circumstances of divergent limitation.
The rules concerning innocent passage in the territorial sea are contained in articles 17-32, and are
more extensive in range than the corresponding articles 14-23 in the 1958 Convention, while also
taking into account technological developments. The right of innocent passage attaches to ships of
all states, whether coastal or land-locked, but there is no provision for innocent overflight by alien
aircraft. The expressions 'passage' and 'innocent' are defined in article 18 and article 19 respectively.
Normally, passage must be continuous and expeditious, but may include stopping and anchoring
only in so far as these are incidental to ordinary navigation or are rendered necessary by force
majeure (that is, Act of God), or distress, or for the purpose of rendering assistance to persons, ships
or aircraft in danger or distress. To be 'innocent', passage must not be prejudicial to the peace, good
order or security of the coastal state, nor in breach of the Convention or of other rules of
international law. Twelve categories of activities are specified as rendering a passage by a foreign
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vessel 'prejudicial to the peace, good order or security of the coastal state, including threats or use
of force, weapon exercises, collecting information prejudicial to the defence of the coastal state,
pollution, interference with systems of communication, and the launching or landing or taking on
board any aircraft. Submarines and other underwater vehicles are required to navigate on the
surface and to show their flag.
Article 21 deals with the subject matters of the laws and regulations which a coastal state may adopt
with respect to innocent passage; as might be expected, they include the safety of navigation,
protection of navigational aids, cables and pipelines, prevention of illegal fisheries, and prevention of
customs, fiscal, immigration and health Hen . Such laws and regulations are not to apply to the
design or construction, etc, of foreign ships unless these were giving effect to accepted international
norms. Foreign ships in innocent passage are to comply with duly made laws and regulations of the
coastal state. Under article 22, the coastal state may designate sea lanes and prescribe traffic
separation schemes, in particular for tankers, nuclear-powered vessels and ships carrying hazardous
substances. These lanes and schemes must be clearly indicated. Foreign nuclear-powered ships and
ships carrying nuclear or other hazardous substances must carry documents and observe the special
precautionary measures established for such ships by international agreements (article 23). At the
same time, duties have been imposed on coastal states by article 24, which prohibits requirements
serving to hamper or impair innocent passage, or operate in a discriminatory manner. Nonetheless,
article 25 empowers coastal states to take steps to prevent a passage which is not innocent, even to
the extent of suspending a right of passage if the suspension is essential to protect the security of
the coastal state concerned. No charge may be levied in respect of the exercise of a right of innocent
passage, except non-discriminatory charges for services rendered (article 26).
The thorny subject of the exercise of criminal and civil jurisdiction on board foreign ships, whether
merchant ships or government ships operated commercially, in passage through the territorial sea, is
dealt with in article 27 and article 28, respectively (cf articles 19 and 20 of the 1958 Convention).
Under paragraph 1 of article 27, the criminal jurisdiction of a coastal state is not to be exercised 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, save
only in the following cases:
a. if the consequences of the crime extend to the coastal state concerned;
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.
Except as provided in the Parts of the Convention dealing with the EEZ or the protection of the
marine environment the coastal state may not exercise criminal process or undertake ElI1Y criminal
investigation on board a foreign ship in the territorial sea as to a crime committed before its entry
therein. In determining whether or how an arrest is to be made, the authorities are to have regard
to the interests of navigation.
Civil jurisdiction is provided for in a different manner. The coastal state is not to stop or divert a
foreign ship in the territorial sea for the purpose of exercising civil jurisdiction in relation to a person
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on board the ship. Nor may the coastal state levy execution against or arrest the ship for the
purpose of an civil proceedings, save only in respect of obligations or liabilities assumed orincurred
by the vessel itself in the course of or for the purpose of its voyage through the coastal state's
waters. These prohibitions are, however, without prejudice to the coastal state's right to take
measures of civil process against a foreign ship in the territorial sea after leaving internal waters.
Warships are defined and treated in a separate category in articles 29-32 ( cf. article 23 of the 1958
Convention). A warship not complying with the coast state's laws and regulations as to passage in
the territorial sea and disregarding a request to conform thereto, may be required to leave the
territorial sea immediately (article 30). The flag state is to bear 'international responsibility' for
damage to the coastal state due to such non-compliance by a warship or other government ship
operated for non-commercial purposes, or due to the breach by such vessels of the Convention or
other rules of international law (article 31). Leaving aside articles 17-26 (see above) and articles 30-
31, nothing in the convention is to affect the immunities of such ships.
The contiguous zone

As to the contiguous zone, article 33 (cf article 24 of the 1958 Convention) lays it down that the
coastal state may in such zone exercise the control necessary to prevent infringement of its customs,
fiscal, immigration or sanitary laws and regulations within its territory or territorial sea, and punish
any such infringements. However, the contiguous zone is not to extend beyond 24 miles from the
baselines from which the breadth of the territorial sea is measured.
The continental shelf

Part VI (articles 76-85; cf articles 1-15 of the Geneva Convention of 1958 on the Continental Shelf)
deals not only with the continental shelf, but with the continental margin. In fact, the continental
shelf is defined by reference to the continental margin as follows (see paragraph 1 of article 76): 'The
continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that
extend beyond its territorial sea throughout the natural prolongation of its land territory to the
outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured where the outer edge of the continental margin
does not extend up to that distance.'
This paragraph thus recognises both a fictitious and an actual continental shelf. The fictitious one is
where the natural prolongation of a state's territory under the sea extends to a distance of less than
200 nautical miles; in that case the state is deemed to have a continental shelf extending beyond the
geographical limit to the legal limit of 200 miles, which, in turn, is co-incident with national rights to
the seabed granted to each coastal state as part of its EEZ (see above). This politically-inspired elision
of two historically quite separate concepts has all but killed the relevance of geomorphological
factors in the delimitation of overlapping continental shelves where the distance between the two
opposite states is less than 400 nautical miles (see further below). It is only where the natural
continental shelf extends beyond 200 nautical miles from the coastal state that the concept of
natural prolongation again becomes pertinent.
The criterion of exploitability as determining the outer limit of the shelf, to be found in article 1 of
the 1958 Convention, has been discarded. In paragraph 3 of article 76 the continental margin is
described as comprising 'the submerged prolongation of the land mass of the coastal state', and as
consisting of 'the seabed and subsoil of the shelf, the slope and the rise', but as not including 'the
deep ocean floor with its oceanic ridges or the subsoil thereof'. Thus, geological criteria, both of a
territorial and marine nature, have been adopted.
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The outer limits of both shelf and margin are governed, albeit not very clearly, by paragraphs 4-7 of
article 76. It is necessary first to refer to paragraph 7 which provides that, where a shelf extends
beyond 200 nautical miles from the territorial sea baselines, the coastal state concerned shall
delineate the shelf's outer limits by straight lines not exceeding 60 nautical miles in length,
connecting fixed points defined by co-ordinates of latitude and longitude. Under paragraph 4 of the
same article, wherever the continental margin extends beyond 200 nautical miles from the territorial
sea baselines, the coastal state concerned is to establish the outer edge of the margin by either:
i. a line delineated in conformity with paragraph 7 by reference to the outermost 'fixed points', at
each of which the thickness of sedimentary rocks is at least 1 % of the shortest distance from such
point to the foot of the shelf; or
ii. a line delineated in conformity with paragraph 7 by reference to 'fixed points' not more than 60
nautical miles from the 'foot' of the continental slope, such foot to be normally the point of
maximum change in the gradient at its base.
However, under paragraph 5, the ‘fixed points' under (i) and (ii) either shall not exceed 350 nautical
miles from the territorial sea baselines or shall not exceed 100 nautical miles from the 2,500 metre
isobath. The convoluted if not turgid character of these provisions is further compounded by the
declaration in paragraph 6 that, notwithstanding the provisions of paragraph 5, the position is that
on 'submarine ridges', not being elevations that are natural components of the continental margin
such as the plateaux, rises, caps, banks and spurs of the margin, the outer limit of the continental
shelf is not to exceed 350 nautical miles from the territorial sea baselines.
There is somewhat more precision in the remaining paragraphs, 8-10 of article 76. Information on
shelf limits outside the 200-mile belt is to be submitted by the coastal state to the Commission on
the Limits of the Continental Shelf set up under Annex II of the convention. Shelf limits established
by the coastal state on the basis of the Commission's recommendations are to be 'final and binding'
(paragraph 8). The coastal state is also to deposit with the United Nations Secretary-General charts
and relevant information permanently describing the shelf's outer limits, to which the Secretary-
General shall give due publicity (paragraph 9). Nothing in article 76 is to prejudice the question of
delimiting the shelf between states with opposite or adjacent coasts (paragraph 10).
Article 77 defines the rights of the coastal state over the shelf in a manner which differs but little
from article 2 of the 1958 Convention. That state has sovereign rights over the shelf for the purpose
of exploring and exploiting its 'natural resources', these rights being exclusive in the sense that if it
does not explore or exploit these, nobody can undertake activities without its express consent; nor
do the rights depend on occupation, effective or notional, or on any express proclamation. The
expression 'natural resources' embraces not only the mineral and other non-living resources of the
seabed and subsoil, but also living organisms belonging to sedentary species, ie 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. Thus free-swimming fish or free-moving
crustaceans are not, in this context, within the meaning of the expression 'natural resources'.
Articles 78-81 clarify some of the limits of these rights; they are not to affect the legal status of the
superjacent waters or the air space above these, nor is their exercise to impair navigation or other
rights and freedoms of other states under the Convention, such as, specifically, the laying of
submarine cables and pipelines, although the delineation of the course of the pipelines is subject to
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the coastal state's consent. As in the case of the EEZ, under article 60 (see above), the coastal state is
to have the exclusive right to construct, etc, artificial islands, installations and structures on the
shelf, and the provisions otherwise of article 60 are to apply mutatis mutandis in respect of these.
Moreover the coastal state is to have the exclusive right to authorise and regulate drilling on the
continental shelf for all purposes.
Article 82 provides, in effect, for a penalty to be paid by states blessed by nature with a continental
shelf extending beyond 200 miles. Where exploitation of the natural non-living resources occurs on a
shelf area seaward of 200 nautical miles to the edge of the continental margin, the coastal state
must make payments, or contributions in kind, to the International Sea-Bed Authority, established
under Part XI of the Convention (see below). The first five years of production are free of the duty to
make payment, but 1 % of the volume or value of production becomes payable in the sixth year,
rising annually by 1 % until pegged at 7% after the twelfth year of production. The Authority will
distribute the payments or contributions to other states parties to the Convention 'on the basis of
equitable sharing criteria, taking into account the interests and needs of developing states,
particularly the least developed and land-locked among them' (article 82(4)). Obviously, these
provisions cannot be regarded as customary law; their practical effect will depend upon the
participation of the 'margin states' and the major sea-bed mining states in the Convention regime.
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7. Write short note on :

a) Freedom of High Seas
High seas
The regime of the high seas is covered in Part VII, divided into two sections, section 1, 'General
Provisions' (articles 86-115' cf articles 1-37 of the Geneva Convention of 1958 on the High Seas), and
section 2, 'Conservation and Management of the Living Resources of the High Seas' (cf articles 1-22
of the Geneva Convention of 1958 on Fishing and Conservation of the Living Resources of the High
Seas).
Dealing first with the provisions in section 1, one may see from article 86 how the Convention has
revolutionised the traditional concept of the high seas. The area of waters corresponding to the
concept has shrunk drastically, so that Part II, bearing the title 'High Seas' applies only to all those
parts of the sea not included in the EEZs, in the territorial seas or internal waters of states or in the
archipelagic waters of archipelagic states. It is thus in regard to this negatively defined maritime area
alone that the freedoms of the high seas specified in article 87 are solely applicable; under this
article, such 'high seas' are entirely and fully open to all states, coastal or land-locked, with freedoms
of navigation, overflight, laying of submarine cables and pipelines, construction of artificial islands
and other installations, fishing and scientific research (subject to Part VI on the continental shelf and
Part XIII as to marine scientific research), all such freedoms to be exercised with due regard to the
interest of other states exercising the same freedoms.
A number of fundamental propositions are enunciated in the subsequent articles. The high seas
(within the meaning of Part VII) are to be reserved for peaceful purposes (article 88), no part thereof
may be the subject of a claim of sovereignty (article 89), every state has the right to sail thereon
ships flying its flag (article 90), and every state is to fix (he conditions for the grant of its nationality
to ships, for the registration of ships in its territory, and the right to fly its flag, while ships have the
nationality of the state whose flag they are entitled to fly, provided that there exists a 'genuine link'
between the state and the ship (article 91). Article 92 (similar to article 6 of the 1958 Convention) is
concerned with the status of ships as such; they may sail under the flag of one state only, and save in
exceptional cases provided for in international treaties or in the Convention, are to be subject to the
exclusive jurisdiction of that state on the high seas (emphasis added; by thus subjecting ships to the
exclusive jurisdiction of the flag State, the doctrine laid down by the decision of the Permanent
Court of International Justice in the Lotus Case was negated).
The principle laid down in article 92 of the Convention does not necessarily endorse the doctrine
that a ship bearing the national flag of a state is for purposes of jurisdiction treated as if it were
territory of that state, on the principle that it is in effect a 'floating island"." The latter expression is
purely a metaphor, and is one which was criticised in R v Gordon-Finlayson, exp An Officer, in that
case, it was pointed out that a ship is not part of the territory of the flag state, but jurisdiction is
exercisable over the ship by that state in the same way as over its own territory." Nonetheless, this
concept of the notional territoriality of vessels on the high seas had continued, prior to the United
Nations Convention on the Law of the Sea of 1982, to receive recognition and application.
A ship may not change its flag during a voyage, or while in a port of call, save in the case of a real
transfer of ownership or change of registry. A ship that sails under the flags of two or more states,
using them according to convenience, may not claim any of the nationalities with respect to any
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other state, and may be assimilated to a ship without nationality (article 92). Article 92 does not
address what is more popularly called a 'flag of convenience', namely the case where a ship has only
one flag but is registered in a state offering favourable 'open registry' conditions for foreign ship
owners. These states are nevertheless subject to the stipulations of articles 91 (genuine link
between ship and flag state) and 94 (effective exercise of control). These provisions do not affect the
case of ships in the official service of the United Nations and its related agencies which fly the flag of
the organisation in question (article 93).
Article 94 proceeds to detail the duties lying upon a flag state with respect to its ships on the high
seas. The general principle is proclaimed in paragraph 1 that 'every state shall effectively exercise its
jurisdiction and control in administrative, technical and social matters' over its ships. The rest of the
article sets out the measures which are to be taken, including, in particular, the maintenance of a
proper register, and an elaborate enumeration of steps to be taken for the maintenance of safety at
sea.
The question of jurisdictional immunity is dealt with in articles 95-96. Warships on the high seas are
completely immune from the jurisdiction of any state other than the flag state, and so also are ships
owned or operated by a state and used only on government non-commercial service.
Article 97 deals with the important matter of penal jurisdiction in cases of collisions or other
incidents of navigation. Like article 92, which was in more general terms (see above), it negates the
doctrine laid down by the Permanent Court of International Justice in the Lotus Case, above, by
providing that where, in such cases, the penal or disciplinary responsibility of the master or of any
other person in the service of the ship is involved, no penal or disciplinary proceedings may be
instituted against such latter persons except before the judicial or administrative authorities of the
flag state or of the state of which such person is a national. No arrest or detention of the ship, even
as a measure of investigation, shall be ordered by any authorities other than those of the flag state.
Under article 98 states are under a duty to require masters of ships flying their flags to render
assistance in cases of danger, distress and collisions.
b) Exclusive economic zone

UNCLOS III will perhaps always be remembered in the history of international law as having given
birth to, or at least nurtured to full strength, the concept of the exclusive economic zone (EEZ). The
Convention deals with the EEZ in Part V, consisting of no less than 21 articles (articles 55-75). The
establishment of an acceptable regime for the EEZ occupied much of the time of UNCLOS III,
although the concept itself found ready approval. It has revolutionised the law of the sea.' The
United States, although opposed to the Convention, nevertheless by the Presidential Proclamation
of 10 March 1983 explicitly recognised and adopted the concept.
First, there is its definition in articles 55 and 57 as an area beyond and adjacent to the territorial sea,
not extending beyond 200 nautical miles from the baselines from which the breadth of the territorial
sea is measured (that is, the 200 miles are not measured from the seaward outer limits of the
territorial sea).
Second, within this zone , the adjacent coastal state does not have the equivalent of territorial
sovereignty, but sovereign rights for the purpose of exploring, exploiting, conserving and managing
the resources of the EEZ, and jurisdiction, with due regard to the rights of other states, with respect
to the establishment and use of artificial islands and structures, marine scientific research, and the
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protection and preservation of the marine environment (article 56). Other rights are specified in the
remainder of Part V. Broadly speaking, in the EEZ the traditional freedoms of the high seas, for
example, navigation, overflight, and the laying of cables and pipelines are unaffected, but in the case
of conflicts as to rights and jurisdiction, these are to be resolved 'on the basis of equity and in the
light of all the relevant circumstances' (article 59).
Most of the thorny problems and difficulties relating to the working in practice of the coastal state's
control over its EEZ are dealt with in articles 60-68, namely the construction of artificial islands,
installations and structures by the coastal state (article 60), the conservation and utilisation of the
living resources of the EEZ, with special provisions as to certain species, eg highly migratory species
such as tuna, and marine mammals. It is beyond the scope and purpose of the present book to
traverse in detail the provisions contained in these articles. Rights of participation by land-locked
states and geographically disadvantaged states 'on an equitable basis' in the exploitation of an
appropriate part of the surplus of the living resources of the EEZ (to be worked out through
agreements) are conferred by articles 69-70, which articles are, however, not to apply in the case of
a coastal state 'whose economy is overwhelmingly dependent on the exploitation of the living
resources' of its EEZ (article 71). It remains to be seen whether articles 69-70 will prove to be of
concrete value to the states for the benefit of whom these articles were drafted. Being no more than
agreements to agree, the articles are inherently weak.
As was to be expected, there is an article, article 73, setting out the limits subject to which a coastal
state may enforce the laws and regulations governing the exercise of its sovereign rights and its
jurisdiction in the EEZ. Article 73 instances such measures as boarding, inspection, arrest and judicial
process, and the penalty of imprisonment for any breaches is excluded. It may be said that in this
area a broad and general discretion in the exercise of their powers in the EEZ has been left to coastal
states.
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8. Problems:
Problem 1
The king of state “A” during his stay in state “B” promised to marry Miss Bobby.
Subsequently the king refused to marry her. Miss Bobby wants to file a suit against the king
in state “B”. Can she do so?
Problem 2
A Portuguese subject residing in India is mobbed and his property plundered by the mob.
India is refusing to pay damages to Portugal, Portugal blockades the Indian coast and orders
the capture of Indian vessel. Advice Portuguese to claim damages.
Problem 3
A company registered in India was carrying on trade in Sikkim before it become part of India.
The Government of Sikkim confiscated a few consignments sent to company’s office in
Sikkim from India. The Company claims two consignments or their value from the
Government of India. Is the Sikkim can claim it ? Decide.
Problem 4
‘A’ an American citizen was arrested in Mexico for having published in Texas an article
alleged to constitute a libel on a Mexicon citizen. Can Mexico prosecute him ?
Problem 5
Three American citizens were attacked by a mob in Mexico. The Mayor of Mexico
ordered the troops to protect them. Troops instead of protecting them opened fire
on American and killed them. Is Mexico liable ?
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UNIT – IV
1. What is Asylum? Explain the different kinds of Asylum

recognised under International Law
Meaning and Definition.

By the term "Asylum" we generally mean the shelter and active protection which is extended to a
political refugee from another State by it State which admits him on his request. As pointed out by
Starke. Asylum involves two elements:
(1) A shelter which is more than a temporary refuge; and
(2) a 'degree of active protection on the part of the authorities which have control over the territory
of asylum.
Right to Asylum:
According to Article 14 of the Universal Declaration of Human Rights. "Everyone has a right to seek
and enjoy in other countries asylum from prosecution." It may however. be noted that the
Declaration simply recognizes the right of asylum. it does not grant right to receive asylum. Thus
although everyone has a right to seek asylum yet there is no corresponding duty of States to grant
asylum.
As pointed out by Prof. Oppenheim: "The so-called right of asylum is nothing but the competence of
every State to allow a prosecuted alien to enter and to remain on it territory under its protection
and thereby to grant asylum to him. Such fugitive enjoys the hospitality of the State which grants
him asylum; but it might be necessary to place him under surveillance or even to intern him at some
plac~ tn the interest of the State which is seeking him to prosecute him'. For it is the duty of every
State to prevent individuals living in its territory from endangering the safety of another State by
organising-hostile or by preparing common crime against its head. members of its government or its
property." .
Types of Asylum and the distinctIon between them.

Asylum may be classified into two categories-
(i) Territorial asylum; and
(ii) Extra-territorial asylum.
Territorial Asylum.
Territorial asylum is granted by a State in its own territory and is considered as an attribute of
territorial sovereignty of the State which grant asylum. On March 28. 1945. a convention on
territorial asylum was adopted at Caracas.
Article (1) of the said Convention runs as follows: "Every State has the right in exercise of its
sovereignty to admit into its territory such persons it deems advisable.
This right has also been recognised in the draft declaration on Asylum adopted by the United
Nations Human Rights Commission. Article 3 of the said Declaration provides:
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"No one seeking or enjoying asylum in accordance with the Universal Declaration of Human Rights
should except for overriding reasons of the population, be subjected, to measures such as rejection
at the frontier. return or expulsion which would result in compelling him to return to or to remain in
a territory if there is a well-founded fear of prosecution endangering his life. physical integrity or
liberty in that territory.
The above principle has also been incorporated in Articles 31, 32 and 33 of Refugee Convention of
1951. Convention Relating to Status of Refugees, 1951 has 147 parties.
Example of Dalai Lama and his Tibetan followers.

The grant of asylum to Dalai Lama and his followers was an indication of the exercise of territorial
sovereignty by India. India as a sovereign State was within her girths to grant asylum to Dalai Lama
and his followers in the territory of India.
Example of influx of refugees from Bangladesh.

As pointed out earlier, each sovereign Stare can admit or grant asylum to any individual within its
territory. India was within her right to grant asylum to millions of refugees from East Pakistan (Now
Bangladesh) who fled from their native land due to repressive policies followed by and ruthless
prosecution caused by the military regime of General Yahya Khan.
Extra-territorial or diplomatic asylum.

A State may also grant asylum in its Embassy in foreign countries or in its public vessels. Extra-
territorial or diplomatic asylum may be classified into following categories:
(a) Asylum in foreign Legation or Diplomatic Embassies

Since granting of diplomatic asylum involves a derogation from the sovereignty of the State
international law ordinarily does not recognise a general right of a head of mission to grant asylum in
the premises of legation. In order to grant diplomatic asylum, it is necessary to establish its legal
basis in each particular case. Because of the obvious reason that such a decision leads to the
withdrawal of the offender from the jurisdiction of the territorial State and constitutes an
intervention in matters which are exclusively within the competence of that State. This was held by
the International Court of Justice in the case of the Asylum (Columbia v. Peru). In the view of Starke
asylum may be granted in the legation premises in the following exceptional cases:
(i) Asylum may be granted, for a temporary period, to Individuals who are physically in danger from
mob-violence or in case of fugitive who is in danger because of political corruption in the local State.
ii) Asylum may also be granted where there i s a well-established and binding local custom.
(iii) Asylum may also be granted if there is a special treaty between territorial State and the state of
the legation concerned.
A leading case on asylum in foreign legations is Haya Dela Torra case [I.C.J. Reports (1951) p. 71 J.
The facts of this case: Haya Dela Torra, a Peruvian citizen, was charged with rebellion. Columbia
granted him Asylum, in her embassy in Peru. After granting asylum, Ambassador of Columbia
requested Peruvian Government to provide facility to enable Columbia-to take Haya Dela Torra
outside Peru. This request was made on the basis of Bolivian Agreement, 1911 and Pan American
Havana Convention on Asylum, 1928. Columbia contended that asylum was granted because Haya
Dela Torra was accused of a political crime. Peru did not agree with this contention and rejected this
request. The matter was referred to the International Court of Justice. The Court held that
"Columbia as the State granting asylum is not competent to qualify the offence (as political) by a
unilateral and definitive decision, binding on Peru". However, the Court held that Peru had failed to
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prove that Haya Dela Torra was accused of an ordinary crime, and not a political crime. The Court
added that asylum to Haya Dela Torra had been irregularly granted because three months had
passed after the uppression of the military rebellion which clearly showed that the urgency
prescribed by Havana Convention as a condition for the granting of asylum had ceased to exist. But,
since Haya Dela Torr was a poiitical offend'er the Court held that despite the fact that asylum had
been irregularly granted, Columbia was not bound to surrender Haya Dela Torra. The International
Court of Justice held: "to infer an obligation to surrender a person to whom asylum has been
irregularly granted would be to disregard both the rule of the extra legal factors involved in the
development of asylum in Latin America and the spirit of Havana Convention."
(b) Asylum in Consular premises.

The above principles also apply in case of the grant of asylum in consular premises .
(c) Asylum in the premises of International Institution.

Generally speaking international law does not recognise any rule regarding the grant of asylum in
the premises of International Institution. However, temporary asylum may be granted in case of
danger of imminent violence.
(d) Asylum in War Ships.

There is a controversy in regard to the grant of asylum in War Ships. Some writers are of the view
that asylum can be granted in war ships in the territorial waters of a Coastal State. On the other
hand, some writers have expressed the view that such fugitive should be immediately handed over
to the local police. But, it is conceded that asylum may be granted to political offenders.
(e) Asylum in Merchant Vessels.

Since merchant vessels do not enjoy immunity from local jurisdiction, they are not competent to
grant asylum to local offenders.
Distinction between Territorial and Extra-territorial Asylum.

The distinction between territorial and extra-territorial asylum has been aptly explained by the
International Court of Justice in the Asylum case (Columbia v . Peru). "In the case of extradition
(territorial) asylum the refugee is within the territory of the State of refuge. A decision with regard to
extradition implies only the normal exercise of territorial sovereignty, the refugee outside the
territory of the State where the offence was committed, a decision to grant asylum in no way
derogates from the sovereignty of that State. In the case of diplomatic asylum in no way derogates
from the sovereignty of that State. In the case of diplomatic asylum, the refugee is within the
territory of the State where offence was committed. A decision to grant diplomatic asylum involves a
derogation from the sovereignty of that State. It withdraws offenders 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 such particular case.
To sum up, in case of territorial asylum international law allows a State to grant asylum in exercise of
its territorial sovereignty. It mayor it may not be treated as friendly act, but there can be no legal
objection to the grant of Asylum by a State within its territory. In case of diplomatic asylum, the
position is entirely different. Since, the offender is within the territory of the State where asylum is
to be granted, it is obvious a derogation of the sovereignty of that State and, therefore, in such a
case asylum may granted only in exceptional cases and it is necessary to establish its legal basis in
each particular case.
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Asylum and extradition are mutually exclusive or Asylum stops, as it were, where extradition
begins.
As noted earlier, asylum is the projection which a State grants in its territory or in some other place
under control of certain of its organs to person who comes to eek it. On the other hand, extradition
is the surrender or delivery of the fugitive criminal to the State on whose territory the alleged
criminal happens to be. The institution of asylum confers right upon the State to bring the person
concerned within its jurisdiction. In case of territorial asylum, the person is in the territory of the
territorial State and hence under its jurisdiction. By granting asylum, it grants protection to the
person concerned in its territory. In case of diplomatic Asylum, the person is not under the
jurisdiction of the State granting Asylum protection is granted to the person concerned and he is
brought under the jurisdiction of the granting State. It therefore, involves derogation from the
sovereignty of the territorial State for through the institution of the Asylum the person concerned is
withdrawn from the jurisdiction of the territorial State.
In both types of asylum, however, the ultimate purpose is to accord protection to the refugee or
person concerned and to bring him under the jurisdiction of the granting State. The institution of
tradition does just the reverse. In case of extradition the fugitive criminal is in the territory and
under the jurisdiction of the territorial State and either under an extradition treaty (or arrangement)
or otherwise, it surrenders or returns the fugitive criminal to the State where he is alleged to have
committed the crime. Thus, the fugitive criminal who is under the jurisdiction of the territorial State
is transferred to the jurisdiction of the State where he is alleged to have committed the crime. Thus.
Asylum and extradition are mutually exclusive. Once the territorial State decides to extradite the
fugitive criminal. the question of asylum does not at all arise, that is to say, Asylum stops where
extradition begins. On the other hand, once the State concerned decides to grant asylum to a
person. the question of his extradition at least for the time being does not at all arise. But. after a
State has granted asylum to refugee or fugitive criminal it may subsequently decide to extradite him
at the request of the State where he is alleged to have committed the crime or to which State he
belongs.
To conclude in the words of Starke, "The liberty of a State to accord asylum to a person overlaps to a
certain extent within its liberty to refuse extradition or rendition of him at the request of some other
State. an overlapping best seen in the grant, commonly of asylum of political offenders, who
correspondingly are not as a rule extraditable. Asylum stops as it were where extradition or
rendition begins and this interdependence makes it convenient to consider the two subjects
together."
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2. Discuss the various stages of concluding a Treaty.
Definition
In the word of Prof. Oppenheim. "International Treaties are agreements of a contractual character
between States or organisations of States creating legal right and duties." According to Article II of
the Vienna Convention on the Law of Treaties , 1969, treaty is "an agreement whereby two or more
States establish or seek to establish relationships between them governed by international law,"
Vienna Convention on the Law of Treaties. 1969 was signed at Vienna on May 23, 1969. It entered
into force on January 27. 1980. As of April 2014, 114 Countries have become parties to the Vienna
Convention on the Law of Treaties, 1969. Fifteen countries have neither signed but not ratified the
Convention. Sixty six U. N. Members have neither signed nor ratified the Convention. Those states
that have not ratified it yet may still recognise it as binding upon them in as much as it is the
restatement of customary law. However, it may be noted that this convention does not apply to
agreements which are not in written form. Since International organisation are also subjects of
international law, a treaty may also be entered into by international organisations. A treaty creates
binding obligation on the State or international organisations who are parties to it.
Basis of Binding Force of International Treaties Pacta Sunt Servanda

In the view of Italian Jurist Anziliott, Pacta sunt Servanda is the basis of the binding force of
international law. This principle means that states are bound to fulfil in good faith the obligations
assumed by them under agreements. According to Prof. Oppenheim, " treaties are legally binding
because there exist a customary rule of international law, that treaties are legally binding because
there exists a customary rule of international law, that treaties are binding. The binding effect of
that rule rests in the last resort on the fundamental assumption which is neither consensual nor
necessarily legal of the objectively binding force of international law". This assumption is frequently
expressed by the norm or principle, 'pacta sunt servanda'. The international Court of Justice has
described it as 'a time honoured basic principle'. In the words of Edward Collins "perhaps most
fundamental principle of international law and surely the basic principle of treaty is that of "pacta
sunt servanda As pointed out by Hans Wehberg. Few rules for the ordinary society have such a
deep moral and religious influence as the principle of the sanctity of contracts: Pacta sunt servanda.
n Further. "The principle of sanctity of the contracts is an essential condition of life of any social
community. The life of international community i based not only on relations between states but
also to an ever-increasing degree of relations between tares and foreign corporations can exist
without the principle of "pacta sunt servallda. " In it advisory opinion in 1922 on the Designation of
Workers Delegation in the International Labour Conference, the Permanent Court of International
Justice emphasised that the contractual obligation was not merely "moral obligation" but was "an
obligation by which. in law. the parties are bound to another". Later on, the international Court of
Justice in its advisory opinion in 1951 on the Reservation to the Genocide Convention stated that
"None of the contracting parties is entitled to frustrate or impair by means of unilateral decisions or
particular agreements, the object and raison. de'etre of the convention." This principle has been
incorporated in Article 26 of the Vienna Convention on the Law of Treaties, 1969, which provides
that every treaty in force is binding upon the parties to it and must be performed by them in good
faith.
Parties Competent to make a Treaty.-

Only sovereign states or international organisations can be parties to an international treaty.
Requirement of Free Consent in respect of International Treaties.-
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It is fundamental principle of law of contracts that there should be free consent of the parties.
Consent procured by coercion or fraud cannot make the contract binding. In international treaties
also, ordinarily free consent is required. But this rule has not been strictly applied in the field of
international law. In case of international treaties this rule is very flexible. There were many
International treaties which were made through coercion or fear, yet they were considered as
binding. For example, the conquered State imposes its conditions, the vanquished State and compels
it to sign it. The treaties entered into after the First and Second World Wars are glaring examples of
such type of treaties. According to Grotius such treaties shall be valid. In view of another jurist (Hall)
such treaty shall be valid only when its object is valid.
The Vienna Convention on the Law of Treaties, 1969, has entered all ambiguities in this convention
and has provided definite rules. Article 51 of the Convention provides that the expression of a State's
consent to be bound by a treaty which has been procured by the coercion of its representatives
through acts or threats directed against him shall be without any legal effect. Article 52 further
provides: A treaty is void if its conclusion has been procured by the threat or use of force in violation
of the principle of international law embodies in the Charter of the United Nations. In the Fisheries
Jurisdiction case the International Court of Justice had also occasion to consider the validity of
treaties concluded under coercion. The opinion of the court in this connection has been aptly
summarised by a writer, in the following words:
" I. Under the principles of contemporary International law, found their expression in the Charter of
the United Nations and the Vienna Convention on the Law of Treaties, a treaty concluded under the
threats or use of force is void.
2. The allegation that a given treaty is concluded under coercion is an accusation of a very serious
nature, and it cannot be based on the ground of a vague general charge, or fortified by evidence in
its support.
3. By reason of the seriousness of this accusation the question whether a given treaty is vitiated by
coercion should be decided by an international body preferably, the International Court of Justice."
Various Modes by which a State may express its consent to be bound by a treaty
The consent of a state to be bound by a treaty may be expressed by following s
(1) Signature,
(2) By an Exchange of instruments constituting a treaty.
(3) By Ratification, acceptance or approval,
(4) By Accession,
(5) By any other means if so agreed.
Formulation of treaties
Following are the main steps in the formulation of a treaty:
(1) Accrediting of persons on behalf of contracting parties.-

That i to say, first step in the formulation of a treaty is that states authorise some representatives to
represent them for the negotiations, adoption and signature of a treaty.
(2) Negotiations and adoption.
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(3) Signatures.
(4) Ratification.-
After negotiations, is the adoption and signatures of the treaty the authorised representatives of the
state, the next important rather most important is the ratification of a treaty. This will be discussed
in detail under separate heading.
(5) Accession and Adhesion.-

Those states who have not signed a treaty may also it later on. This is called accession. A treaty
becomes law when it has been ratified a prescribed number of states. Even after a treaty comes into
force, other states may or adhere to that treaty. This is called adhesion.
(6) Entry into force.-

After a treaty has been ratified it comes into force. Generally, comes into force after it has been
ratified by a prescribed number of states. But sometimes, the parties may provide that it will come
into force immediately after the signature.
(7) Registration and publication.-

The next important step is the registration publication of the treaty. Article 102 of th United Nations
Charter provides for the strati on and publication of every international treaty entered into by the
members of United Nations. The object behind this provision is to prevent secret treaties. But a does
not become invalid simply because it has not been registered with the United Nations. The effect of
Article 102 is that if a treaty is not registered with the United Nations, it cannot be invoked before
any organ of the United Nations. As pointed out by Starke, "The object of Article 102 is to prevent
the practice of secret agreement between and to make it possible for the people of democratic
states to repudiate such treaties publicly disclosed."
(8) Application and enforcement.-

The last step of a treaty is its application and enforcement.
Ratification of a treaty.-
In the words of Starke, " the ratification is the approval by the head of the state or the government
of signature appended to the treaty by the duly appointed plenipotentiary". According to Article II of
the Vienna Convention on the Law of Treaties, 1969, "ratification is the international act... .........
whereby a state establishes on the international plain its consent to be bound by a treaty."
Ordinarily a treaty comes into force when it has been ratified by the prescribed number of states.
However, it would be wrong to say that a treaty can never come into force unless and until it has
been ratified by the prescribed number of states. A state under certain circumstances may be bound
by a treaty even though it has not ratified it. Much depends upon the intention of the parties.
According to Article 14 of the Vienna Convention on the Law of Treaties, 1969, a state becomes
bound by a treaty when it ratifies it positively or it becomes bound by the treaty under the following
circumstances:
(1) When there is a provision in the treaty to that effect;
(2) When the parties express the view that the ratification is necessary. In such case treaty becomes
enforceable as law only after the ratification.
(3) When the treaty is signed under the condition that ratification is necessary; or
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(4) When the intention of the ratification is evident from the circumstances and talks during
negotiations.
According to Starke, following are the reasons for the ratification of a treaty:-
(1) Through the process of ratification the states get an opportunity to consider in detail the treaty
which has been signed by their representatives.
(2) On the basis of the principle of sovereignty, each state is entitled to keep itself away from the
treaty or repudiate it, if it so desires.
(3) Sometimes the provisions of the treaties requires some change in the state law and the time
between the signature and ratification utilised for incorporating the change in the state law.
(4) Lastly, on the basis of the democratic principles, the governments of the states get an
opportunity to respect public opinion in respect of the treaties or to get the consent of the
Parliament.
However, if the parties so desire a clear intention is expressed in the treaty that ratification is not
necessary or that they should come into force immediately after the signature, then a treaty may
come into force even before ratification. There have been some examples of such treaties coming
into force even before ratification.
Is there a duty to Ratify.

International law does not impose any duty upon state to ratify a treaty signed by its
representatives. It depends upon the sweet-will of the state concerned whether to ratify or not to
ratify a treaty. This is based on the principle of the sovereignty of the state. Every sovereign state is
entitled to keep away from the treaty or to repudiate it if it so desires. Thus under international law,
there is no general duty imposed upon a state to ratify a treaty.
Consequences of Non-Ratification of a Treaty.-

If a treaty is to come into force only after ratification and state does not ratify it then such a state
will not be bound by the treaty without ratification. However, as pointed out earlier whether a
treaty is to come into force after ratification or without ratification depends upon the intention of
the parties. The practice of the state, however, shows that they do not regard themselves bound by
a treaty unless and until they ratify it.
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3. Define the term ‘Treaty’. Explain termination of treaties.
Definition
In the word of Prof. Oppenheim. "International Treaties are agreements of a contractual character
between States or organisations of States creating legal right and duties." According to Article II of
the Vienna Convention on the Law of Treaties , 1969, treaty is "an agreement whereby two or more
States establish or seek to establish relationships between them governed by international law,"
Vienna Convention on the Law of Treaties. 1969 was signed at Vienna on May 23, 1969. It entered
into force on January 27. 1980. As of April 2014, 114 Countries have become parties to the Vienna
Convention on the Law of Treaties, 1969. Fifteen countries have neither signed but not ratified the
Convention. Sixty six U. N. Members have neither signed nor ratified the Convention. Those states
that have not ratified it yet may still recognise it as binding upon them in as much as it is the
restatement of customary law. However, it may be noted that this convention does not apply to
agreements which are not in written form. Since International organisation are also subjects of
international law, a treaty may also be entered into by international organisations. A treaty creates
binding obligation on the State or international organisations who are parties to it.
Basis of Binding Force of International Treaties Pacta Sunt Servanda

In the view of Italian Jurist Anziliott, Pacta sunt Servanda is the basis of the binding force of
international law. This principle means that states are bound to fulfil in good faith the obligations
assumed by them under agreements. According to Prof. Oppenheim, " treaties are legally binding
because there exist a customary rule of international law, that treaties are legally binding because
there exists a customary rule of international law, that treaties are binding. The binding effect of
that rule rests in the last resort on the fundamental assumption which is neither consensual nor
necessarily legal of the objectively binding force of international law". This assumption is frequently
expressed by the norm or principle, 'pacta sunt servanda'. The international Court of Justice has
described it as 'a time honoured basic principle'. In the words of Edward Collins "perhaps most
fundamental principle of international law and surely the basic principle of treaty is that of "pacta
sunt servanda As pointed out by Hans Wehberg. Few rules for the ordinary society have such a
deep moral and religious influence as the principle of the sanctity of contracts: Pacta sunt servanda.
n Further. "The principle of sanctity of the contracts is an essential condition of life of any social
community. The life of international community i based not only on relations between states but
also to an ever-increasing degree of relations between tares and foreign corporations can exist
without the principle of "pacta sunt servallda. " In it advisory opinion in 1922 on the Designation of
Workers Delegation in the International Labour Conference, the Permanent Court of International
Justice emphasised that the contractual obligation was not merely "moral obligation" but was "an
obligation by which. in law. the parties are bound to another". Later on, the international Court of
Justice in its advisory opinion in 1951 on the Reservation to the Genocide Convention stated that
"None of the contracting parties is entitled to frustrate or impair by means of unilateral decisions or
particular agreements, the object and raison. de'etre of the convention." This principle has been
incorporated in Article 26 of the Vienna Convention on the Law of Treaties, 1969, which provides
that every treaty in force is binding upon the parties to it and must be performed by them in good
faith.
Termination of the treaties

A treaty may be terminated by :
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(a) operation of law, and
(b) by act of the parties.
By operation of law.-
A treaty may be terminated by operation of law in any of the following ways:-
(a) Extinction of either party to a bilateral treaty.
(b) Out-break of war.-

According to the traditional view, all treaties come to an end at the outbreak: or war. But the
position has changed in the modern times. In this connection Starke has briefly summed up the
modern position in the following words:
(i) treaties between belligerent states for which general, political and good relations are essential
cease at the outbreak of war;
(ii) treaties relating completed situation such as fixation of boundaries remain unaffected by war;
(iii) treaties dealing with the rules of war, such as Hague Conventions 1899, and 1907 and the
Geneva Convention, 1949, remain in force and binding upon the parties.
(iv) some multilateral treaties relating to health service, protection of industrial property, etc. are
simply suspended at the outbreak of war and revived at the end of war;
(v) sometimes a treaty may expressly provide as what would happen in case of the outbreak of war.
Thus according to the modem practice all treaties are not terminated at the outbreak of war. Some
treaties are completely terminated, others remain unaffected whereas some treaties are simply
suspended during the war.
(c) A material breach of a bilateral treaty.
(d) Impossibility of performance.-

According to Article 61 of the Vienna Convention of the Law of Treaties impossibility of performance
is also one of the grounds of termination of treaties.
(e) Rebus sic stantibus.-

Rebuj' sic stantihus is also a ground for avoidance of treaty. This will be discussed in detail under a
separate heading.
(f) Expiration of fixed term.
(g) Successive denunciation.-

According to Article 55 of the Vienna Convention on the law of Treaties successive denunciation of a
treaty may also lead to its termination.
(h) Jus Cognes or Emergence of a new Peremptory Norms of International Law.-

According to Article 64 of the Vienna Convention, if a new peremptory norm of general international
law emerges any existing treaty which is in conflict with that norm becomes void and terminates.
Important maxims relating to the Law of Treaties.-

Following are the important maxims relating to the law of treaties:-
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(1) Pacta terties nee nocent flee prosunt.
(2) Pacta Sunt Servanda.
(3) Rebus sic stantibus.
(1) Pacta terties nee nocent nee prosunt

It is fundamental principle of the Law of Contract that only parties to a contract are bound by the
contract. Similarly, it is general principle of International law that only a party to an international
treaty is bound by it. This principle is expressed in a Latin maxim called 'pacta terties nee nocent ne
prosunt'. This principle has been incorporated in Article 34 of the Vienna Convention on the Law of
Treaties, 1969. This principle is subject to certain exceptions contained in Articles 35 to 38. They are:
(i) Treaties which concern the right of the third party (Article 36). Under this provision even third
party can be conferred some rights under the treaty.
(ii) Multilateral treaties declaring the established customary rules of international law may bind even
non-parties (Article 38),
(iii) Multilateral treaties which create new rule of international law may also bind non-parties. For
example, Article 2 (6) of the U.N. Charter provides that non - members shall act in accordance with
the purpose of the U.N. Charter.
(iv) Some universal treaties such as a U.N. Charter may apply to even non-parties.
(v) When a treaty imposes some obligation on a third party and third party accepts that obligation,
then such a third state party becomes bound by that treaty, (Article 35)
(2) Pacta Sunt Servanda.

-N.B.- This has already been discussed earlier under
heading 'Basis of the Binding Forces of International Treaties'.
(3) Rebus Sic Stantibus

The maxim rebus sic stantibus means that when the fundamental or material circumstances under
which a treaty is concluded are changed, then this change becomes a basis for the avoidance,
change or termination of the treaty. As pointed out by Edward Collins, "It is widely recognised that if
fundamental change in the circumstances upon which a treaty rests take place these change may be
invoked as a ground for the termination of the treaty. This principle known as Doctrine of Clausula.
'Rebus sic standibus is based on the assumption that there is an implied clause in every treaty that
provides that the agreement is binding only so long as the material circumstances on which it rests
remain unchanged."
The principle of rebus sic stantibus has been subject to criticism by several jurists. According to
Starke, rebus sic stantibus is one of the enigmas of international law. Its scope or application is
uncertain, practice is inconsistent and International law tribunal fight shy of committing themselves
to the pronouncements or decision: involving it." It may be noted here that this observation does
not find place in the la t two editions of Starke's book. The reason for that is that since Article 62 of
the Vienna Convention on the Law of Treaties, 1969 provides for fundamental change of
circumstances as one of the grounds for termination of treaties and determines the scope and limit
of the application of this ground, rebus sic stantibus is no more an enigma of international law. The
operation of the doctrine is necessarily limited for the simpler reason that it is the foundation of the
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law to enforce contracts or treaties even when they become burdensome for the party bound by
them. However, some writers have supported this principle and have expressed the view that it is a
good principle and should be given due recognition. As pointed out by Brierly, "In short, the clausula
is a rule of construction which secures that reasonable effect shall be given rather than an
unreasonable one which would result from a literal adherence to its expressed term only." i.:e
further adds, "The doctrine rebus sic stantibus is clearly reasonable doctrine which it is right that
international law should recognise." It may, however, be submitted that the doctrine rebus sic
stantibus should be clearly defined and should not be allowed to erve as a means to break
international agreements by providing an excuse for the breaches of the treaty obligation that states
find inconvenient to fulfil. Article 62 (1) of the Vienna Convention on the Law of Treaties. 1969,
exhibits awareness of thi difficulty by allowing the invocation of the clausula only, if:
(a) the existence of the circumstances (which have changed) constitute an essential basis of the
consent of the parties to be bound by the treaties; and
(b) the effect of the change is radically to transform the extent of obligation still to be performed
under treaty.
Article 62 (2) excludes treaties that fixed boundaries from the operations of the doctrine in order to
avoid an obvious source of threat to the peace.
Jus Cogens
The provision relating to Jus Cogens is one of the most controversial provision incorporated in the
Vienna Convention on the Law of Treaties, 1969. Article 53 of the Vienna Convention provides that a
treaty is void, if at the time of its conclusion, it conflict with a peremptory norm of general
international law. A peremptory norm of general international law i 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 f general international law having
the same character.
Reference may also be made to Article 64 of the Vienna Convention which is a corollary of Article 53
referred above. Article 64 provide 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.
While the principle was being formulated by the International Law Commission, majority of jurists
from the de v eloping and European countries favoured the incorporation of the principle of jus cog
ens and attached great importance to it. They expressed the view that a treaty conflicting the
existing or new rule of jus cogens should be regarded void: on the other hand, majority of
international lawyers from western Europe expressed considerable alert. For example, Prof.
Schwarzenberger expressed the view that international law "does not know of any jus cogens," But
diametrically opposite view was expressed by Prof Verdoss who contended that certain principles
embodied in Article 2 of U.N. Charter possess the character of jus cog ells. It may be noted here that
great difficulty will be experienced in the application of the rule of jus cogens.
Thus, there was a controversy in respect of the formulation of the rule of Jus Cogens. A compromise
formula was brought forth by a group of African and Asian delegations led by Nigeria, and this is now
embodied in Article 66 of the Vienna Convention. Article 66 provides that if, under paragraph 3 of
Article 65, no solution has been reached within a period of 12 months following the date on which
the objection was raised, anyone of the parties to a dispute concerning the application or the
interpretation of Article 53 or 64 may, by a written application, submit it to the International Court
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of Justice for a decision unless the parties by common consent agree to submit the dispute to
arbitration. This is undoubtedly a great achievement.
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4. What is meant by extradition? State the conditions for

extradition.
Basis of the principle of Extradition

Each State exercises complete jurisdiction over all the persons within its territory. But a difficult
problem arises when a person after committing crime runs away to another country. In such a
situation, peace and order can be maintained only when there is international co-operation among
the States. There is, therefore, a social need to punish such criminals. In order to fulfil this social
necessity, the principles of extradition has been recognised. It may, however, be noted that in the
absence of any general convention on extradition, it mostly depends upon bilateral treaties. As
pointed out by Edward Collins: "The inability of a State to exercise its jurisdiction within the territory
of another State would seriously undermine the maintenance of law and order if there were no co-
operation in the administration of justice. The awareness among national decision-makers of the
social necessity of jurisdiction co-operation is illustrated by the wide-spread practice of returning a
person who is accused or who has been convicted of a crime to the State in which the crime was
committed.
Meaning and definition of the term 'extradition'.

In the words of Oppenheim, "extradition is the delivery of an accused or a convicted individual to the
State on whose territory he is alleged to have committed, or to have been convicted of a crime, by a
State on whose territory the alleged criminal happens to be for the time being." As pointed out
earlier, under international law extradition, is mostly a matter of bilateral treaties. There is no
general duty of States in respect of extradition of criminals.
Non-extradition of Political Crimes"

It is a well-established principle of international law that persons accused of political crime are not
extradited although sometimes a problem arises as to what is a 'political crime'. The practice of
non-extradition of political crime began with the French Revolution of 1789. Later, on, other states
followed the practice. In the modern period all the States recognise this principle.
A leading case of non-extradition of political crime is Re Castioni. In this case extradition of a man
named Castioni was demanded by the Swiss Government. Castioni was accused of murdering a
Member of the State Council of the Canton of Taconite. Political discontent was going on in the said
Canton for some time. An armed mob attacked the Municipal Palace and killed a member of the
State Council. There was evidence that the shot had been fired by Castioni. But the Queen's Bench of
England held that Castioni had committed a political crime and, therefore, he could not be
extradited.
In another case, Re Munier the accused was an anarchist and was charged with causing two
explosions in a Paris Caffe and some barracks. After committing the crime he fled away to England.
The French Government requested for the extradition. The accused contended that he cannot be
extradited because he was accused of a political crime. In this case the accused did not belong to any
particular political party. He was anarchist and was opposed to all sorts of Governments. The Court
ordered for his extradition and held that this was not a political crime. The Court also tried to explain
the question as to what is a 'political crime'. In the view of the Court when the crime is committed
for furtherance of political objectives, it will be a political crime. For example, when there are two or
more than two political parties in a State and each party endeavours to form its own Government
and a crime i committed to achieve this objective then it will be called a political crime. In the
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present case, the accused did not belong to any party, and therefore, the Court rules that this was
not a political crime.
Some essential conditions for Extradition or Restriction on Surrender:

(1) As pointed out earlier it is a well established principle that persons accused of political crime are
not extradited although there is controversy as to what is a political crime. This has been discussed
above.
(2) Person accused of military crimes are also not extradited.
(3) Persons accused of religious crimes are also not extradited.
(4) Rule of Speciality.
When an accused is extradited then the receiving State must try him for that specific offence for
which his extradition was sought for. For example, in U.S. v. Rouscher the respondent was got
extradited by America on the ground that he, while being a servant in a ship had run away after
murdering a fellow servant. But in America Rouscher was tried for grievously hurting a man named
Janssen.
The Supreme Court of America held that whenever a person is brought within the jurisdiction of the
Court under an Extradition Treaty, then he could be tried for the specific offence for which his
extradition had been sought for. The same law prevails in India. This is called the rule of speciality.
(5) Double Criminality.

The specific offence for which hi extradition is sought for, must be an offence in the State requesting
for extradition and the State extradited accused. This is called the rule of double criminality.
(6) Prima facie case.

There should be sufficient evidence for the crimes for which extradition is requested. It should prima
facie appear that the accused has committed the crime. In the Tarasov Extradition case (1963), the
accused was di charged by the Court because no prima facie case was made out against him. The
evidence adduced was inadequate to establish a prima facie ca e against fugitive criminal. The Court
observed that to constitute a prima facie case in extradition case following requirements are
essential :
(a) the witness would be entitled to a reasonable degree of credit;
(b) the degree of proof should be higher than in ordinary criminal prosecutions and
(c) the evidence must be incontrovertible leading to the probable and strong presumption of the
offence against the accused.
The fact in this case are as follows:
On 5th January, 1963 the Minister of Counsellor of the Embassy of the U.S.S.R. in India made a
requisition under Section of the Indian Extradition Act, 1962, requesting the Government of India to
institute proceedings against V.S. Tarashov a Soviet citizen who was alleged to have committed theft
on a board of a Soviet oil tanker "Tcheronovci" in which he was employed as an electrician and
mechanic. The fugitive criminal denied these allegations and stated that he had been arrested on
28th November, 1962 on the complaint of the said offence but the Presidency Magistrate, Calcutta
had discharged him for want of evidence. His further contention was that the Soviet Government
had fabricated the said charge against him because he had sought political asylum from the United
States Government. Thus, the Magistrate had to decide whether a prima facie case was made out
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against the fugitive criminal. The Magistrate held that no prima facie case was made out and hence
he discharged the fugitive criminal on the following grounds:
(i) Evidence adduced was inconsistent and inadequate to establish a prima facie case against the
fugitive criminal.
(ii) The requirements of Section 31 (c) were not complied with. Section 31 (c) of the Act required a
'formal treaty' and not an agreement, '[he notification issued by the Government of India extending
the application of the Act to the Soviet Union could in no case be called a formal treaty.
On the basis of the above observations, the Magistrate concluded that Tarasov could not be
surrendered to the foreign State.
(8) The conditions mentioned in the extradition treaty and other formalities must be also Complied
with. In this connection Savarkar's case (1911) deserves a special mention.
Savarkar was an Indian revolutionary who was being brought to India to be prosecuted. When the
ship was in the Port of Marcelese, Savarkar escaped. He was later on apprehended by the French
Naval Police. But, the Captain of the French Ship returned Savarkar to the Captain of the British Ship
under the wrong impression that it was his duty to do so. Later on. the French Government
requested the British Government to return Savarkar on the ground that the rules relating to his
extradition were not strictly observed. This case was entrusted to the Permanent Court of
Arbitration for its award. The Permanent Court of Arbitration in its award made it clear that
international law does not impose any obligation to return the criminals after getting them
successfully extradited. But, this view has been severely criticised in French and Indian circles. It is
pointed out that the above rule is not based on the sound principle of justice.
(9) When a person is accused of having committed a crime and his extradition is sought for, it is not
necessary that the accused must be present in the State where the alleged crime was committed.
For example in Rex v. Godfrey, Godfrey was a member of a firm which carried its trade in England.
The members of the said firm obtained some goods on the false pretext in Switzerland. Godfrey was
in England at that time. Yet at the request of the Switzerland, the court ordered the extradition of
Godfrey. The same view had been held by the Supreme Court in Mobarak Ali Ahmad v. State of
Bombay. In this case the court held: "The fastening of criminal liability on a foreigner in respect of
culpable acts or omissions of India which are judicially attributable to him notwithstanding that he
corporeally present outside India at the time, is not to give any extra-territorial operation to the law:
For it 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, of his presence in India for the trial can be secured."
(10) Bilateral Treaty.-Extradition is generally a matter of bilateral treaty. It has been held that there
must be a 'formal treaty' not simply an agreement or notification. This was held by the first-class
Magistrate in New Delhi in the Tarasov Extradition case
(i) Generally States do not allow the Extradition of their own citizens. But, this has been criticized.
Some Indian Cases of Extradition.-
(1) Savarkar' case.-
N.B. - This case has already been di cussed earlier.
(2) Dr. Ram Babu Saxena v. State. _
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This case deals with Section 7 of Indian Extradition Act, 1903. Dr. Ram Babu Saxena was an employee
under U.P. Civil Service and was deputed to the Tonk State. Tonk was an Indian State and it had an
Extradition Treaty with the British Government according to which both states were bound to
extradite certain person who were accused of certain specified crimes. Dr. Ram Babu Saxena was
later on living in the district of Nainital. It was contended that while serving in Tonk State, he
committed crimes of Extortion under Section 383 and Cheating under Section 420. Dr. Ram Babu
Saxena argued in defence that British Government had an Extradition treaty with the Tonk State and
that treaty did not provide for crimes for which his extradition was being claimed. Hence he could
not be extradited under Section 7 of the Extradition Act, 1903. In this connection he made specific
reference of Section 18 of the Extradition Act, 1903 which provided that no extradition could be
made against the provisions of the treaty. Since, the treaty did not mention the specific crime for
which his extradition was sought. he contended that it was beyond the jurisdiction of the Court and
the whole proceedings were illegal. But, the Supreme Court of India held that Section 7 of Indian
Extradition Act was rightly applied and he could be extradited. The Supreme Court held the Act does
not derogate from any such treaty when it authorised the Indian Government to grant extradition
for some additional offence, thereby enlarging, not curtailing, the power of the other party to claim
surrender of criminals. Nor does the Act derogate in the true sense of the term from the position of
an Indian subject under the Treaty of 1869." B.K. Mukerjee, J., observed: "When as a result of
amalgamation or merger, a State looses its full and independent power of action over the subject-
matter of a treaty previously concluded the treaty must necessarily lapse''. His Lordship concluded: "
The Extradition Treaty between the Tonk State and the British Government in 1869 is not capable of
being given effect to in the present day in view of the merger of the Tonk State in the United States
of Rajasthan. As no treaty rights exist, section 18 of Extradition Act, has no application and as Section
7 of the Act has complied with there is no ground up n which we can interfere". Thus, the Supreme
Court dismissed the appeal.
(3) Sucha Singh's case.-

Sucha Singh who was accuse j of having murdered Pratap Singh Kairon, the former Chief Minister of
Punjab, had fled away to Nepal. The Government of India, requested the Nepalese Government for
his extradition. The Government of Nepal started proceeding against Sucha Singh and after being
satisfied that there was a prima facie case against him, extradited him.
(4) Dharam Teja's case.

Dharam Teja, who was the Managing Director of the Jayanti Shipping Corporation, was accused of
having embezzled and bungled crores of rupees, had ned away from India. In order to escape his
arrest he ran away from one country to another. When he was in Ivory Coast, the Government of
India requested for his extradition. The Government of Ivory Coast refused to extradite Dharam Teja
as there was no extradition treaty between Ivory Coast and the Government of India. Later on when
Dharam Teja was in London, the Government of India requested the British Government to extradite
him. The British Government started proceeding against Dharam Teja and after being satisfied that
there was a prima facie case against him, extradited him in pursuance of the extradition treaty
between the two countries. Subsequently, Dharam Teja was tried in India and was convicted on
several charges.
(5) Tarasov Extradition case.

This case has been discussed earlier.
Extradition Treaty Between India and Germany.

India and Germany signed an extradition treaty in Berlin on 27th June, 2001. The treaty will enable
the two countries to extradite a person wanted in "extraditable offences". Under the treaty
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"extraditable offences" are the offences which are punishable under the laws of both the States and
are punishable by a term of imprisonment of not less than one year. Extradition shall also be granted
in respect of an attempt or conspiracy to commit, or aiding, abetting, inciting or participating as an
accomplice in the Commission of an extraditable offence.
Case of Extradition of Famous Music Director of Bollywood Nadeem.-

Famous Music Director of Bollywood Saifi Nadeem Akhtar, popularly known as 'Nadeem ' has been
accused of involvement of murder of music baron Gulshan Kumar. Before the police in India could
arrest him, he fled to England. The Government of India sought his extradition. India and Britain had
signed an extradition treaty in 1992. This treaty came into effect from 15th November, 1993 after
having been satisfied by the Parliaments of both countries. The Mumbai Police tiled the charge sheet
of the case in the British Crown Prosecution Office which would outline the details of the extradition
case before the Bow Street Court. Mere submission of the charge-sheet or asset was not sufficient.
The Mumbai Police was required to prove sufficient corroborating evidence of Nadeem's
involvement in murder of Gulshan Kumar for extradition to take place. That is to say, it was required
to establish that Nadeem was prima facie involved in the murder of Gulshan Kumar. Taking
advantage of the complex British process for extradition Nadeem was getting the case delayed. The
British Court was not satisfied with evidence produced by Mumbai Police. Thus the British Court held
that the evidence produced before it was not sufficient for extradition of Nadeem. Despite this initial
success, Nadeem has probably lost his chance of returning to India. He would have to seek political
asylum in Britain or shift to a third country. On the part of Mumbai Police, the main setback was the
denial and change of confessional statement by its main witness.
Extradition of Abu Salem.

Abu Salem was wanted for being tried on account of several crimes. The prospects of his extradition
from Portugal were brightened when in January 2005, the Supreme Court of Portugal while deciding
on two petitions filed by Salem and the C.B.I. (India) through the Portuguese prosecutor general,
ruled that Salem could be extradited to India for his trial in major offences over there. Consequently,
at last Abu Salem was extradited from Portugal to India in November, 2005.
U.K.-India Treaty on Extradition

In the first week of January, 1992 during his visit to India, British Home Secretary Kenneth Baker
offered to sign an extradition treaty regarding extradition and confiscation of funds of terrorists and
drug traffickers operating from Britain. Thus step was taken to deter drug traffickers and terrorists in
Punjab and Kashmir. The treaty was later on signed at London by Home Minister S.B. Chavan and his
British counterpart, Home Secretary Kenneth Clarke on 22 September, 1992. While the extradition
treaty was to be approved by the British Parliament, the confiscation agreement came into force
with Immediate effect. The treaty was signed on 15th November, 1993.
Indo-American Treaty on Extradition.

India and America have been cooperating with each other for a long time in regard to terrorism and
extremists. America has cooperated with India in past in respect of extradition of criminals. In recent
past America extradited the accused Daya Singh Lahoria at the request of India.
India and America therefore, decided to enter into a formal treaty and America signed an extradition
treaty in June, 1997 at Washington. It is a modern treaty and deal the new and latest trends on
extradition. The Treaty contains exhaustive provision for the enforcement of law.
Extradition Treaty Between India and Hongkong.
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An extradition treaty between India and Hong Kong was signed in June 1997. The treaty was signed
before a few day of transfer of sovereignty on Hong Kong from Britain to China. Since China has
declared that it will respect all treaties entered into before Hong Kong became a part of China. It is
hoped that Hong Kong will abide by the treaty.
Indo-Russia Extradition Treaty:

India has also signed an extradition treaty with Russia. Recently i.e., on April 16, 2000, the treaty has
been ratified by President Vladmir Putin of Russia.
Case Relating to Extradition of Quattrochi.

Quattrochi, a man of Italian origin, is accused of Bofors commision Bribery ca e. Presently when he
was living in Malaysia. India made a formal request to Malaysia to extradite Quattrochi so that he
could be tried in India. The lower court of Malaysia rejected the request for extradition and set
Quattrochi free. He had been on bail since his arrest in September, 2000. India filed an appeal again t
this order in the High Court there. India sent an advocate to argue the case and sought the
permission of Attorney General there for the appearance of the advocate on behalf of India. But the
Indian advocate was not allowed to appear. The extradition of Quattrochi became difficult because
India had no extradition treaty with Malaysia.
However, to pursue the case further, a two-member CBI team was sent to assist Malaysian lawyers.
However, in the second week of May, 2004, the two-member CBI team was asked to return home
without completing its work.
The Attorney-General released the money of Quattrochi seized in Bank at the instance of the
Government of India stating that there was no evidence again t Quattrochi. The opposition party
raised this matter in the Indian Parliament but the Government defended its stand by stating that
this was done by CBI and that the Government had nothing to do with it. The CBI nailed this lie by
stating that it was still proceeding with the case of Quattrochi. However later on the CBI admitted its
responsibility in the matter. Thereafter, due to the opposition and pressure of the opposition parties
and allied parties of the UPA, the Government asked, rather was forced to ask, the London Bank not
to release the money to Quattrochi. But before this could be done, Quattrochi had withdrawn the
entire money from the Bank. Thus, whatever strength was there in the case was lost by the said act
of the UPA Government led by the Congress party. Undoubtedly, all this happened due to lack of
political will. Thus, this most unprecedented thing that happened in this was that before the case
could come to its logical conclusion the money of Quattrochi that was in London Bank and was
seized at the request of the Government of India was, ironically released at the request of the
Government itself. Thus, when a Government can go to such an extent. There is no possibility at all
for the ca e to come to its logical conclusion.
Extradition of Abu Salem.

Abu Salem was one of the most wanted accused persons in case of Mumbai Blasts of 1993. He was
living in Portugal and the Government of India sought his extradition. After long drawn legal battle in
Portugal, the Supreme Court of Portugal ruled in the last week of January, 2005 that Salem could be
extradited to India for the trial in major offences. Thus Abu Salem was extradited to India and is
facing trial in India. His wife, Monica Bedi was also extradited to India and faced trial. Subsequently,
however no charges were proved against her and she was released.
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5. Discuss the privileges and immunities of diplomatic envoys.
Classification
In accordance with their status the following classification of diplomatic agents was first made in the
Congress of Vienna, 1815:
(i) Ambassador and Legates;
(ii) Minister Pleni-potentiary and Envoys Extra-ordinary; and
(iii) Charge d'affairs.
Some change was brought about in the above classification by the Congress of Aix-la-Chappele,
1818. In this Congress, a fourth category of diplomatic agent namely, Ministers Resident was added,
and kept on the third place in order of priority. Thus the diplomatic agents were then classified as
follows:
(i) Ambassadors and Legates.

They are the diplomatic agents of first category and are the representative of completely sovereign
States. The representatives appointed by Pope are called Legates.
(ii) Ministers Pleni-potentiary and Envoys Extra-ordinary.

Being the second category of diplomatic ag IUS, these representatives enjoy lesser privileges and
immunities as compared with those of the first category.
(iii) Ministers-Resident
This category was added in 1818 by the Congress of Aix-la-Chappele. They are below the second
category and enjoy lesser privileges and immunities.
(iv) Charge d'affairs.

Charge d'affairs are the diplomatic agents of the last category. They are not appointed by the head
of the state. They are appointed by the Foreign Minister of State and in rights and duties they are
considered below the Ministers-Resident.
But the category of Minister -Resident was subsequently dropped in the Vienna Convention on
Diplomatic Relations, 1961. This Convention was adopted on April 18, 1961 and came into force on
April 24, 1964. The category of Ministers-Resident having been dropped. Article 14 of the Vienna
Convention on Diplomatic Relations, 1961, now once again recognises the following three categories
of diplomatic agents:-
(1) Ambassadors or Nuncios accredited to Heads of States, and other Heads of Missions of
equivalent rank;
(2) Envoys, Ministers and Internuncios accredited to Heads of States; and (3) Charge d'affairs
accredited to Ministers of Foreign Affairs.
Article 14 (2) further provides that apart from precedence and etiquette there is hardly any
difference between the diplomatic agents of above-mentioned categories.
Vienna Convention on Diplomatic Relations, 1961.-

Vienna Convention on Diplomatic Relations was adopted on 18 April, 1961. It entered into force on
24 April, 1964. Its articles are considered a cornerstone of modern international relations.
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As of August 2014, 190 Countries (United Nations members except Antigua, Barbados, Republic of
Palau, Soloman Islands, South Sudan find Republic of Vaniluas) have become parties to the Vienna
Convention on Diplomatic Relations, 1961.
The basis of immunities and privileges of Diplomatic Agents.

According to the traditional view, diplomatic agents enjoy immunities and privileges because they
are deemed to be outside the jurisdiction of the State in which they are appointed. i. e., they enjoy
these immunities and privileges on the basis of the theory of extra-territoriality. But in the recent
times this theory has been discarded. Prof. Oppenheim has rightly pointed out that diplomatic
agents enjoy privileges and immunities not because they are deemed to be outside the jurisdiction
of the State; but because of the special functions that they perform. Fenwick also subscribes to this
view. In Bergman v. De Sieyes, the District Court of New York held ' that a Foreign Minister is
immune from the jurisdiction, both criminal and civil, of the Courts in the country to which he is
accredited, on the grounds that he is the representative, the alter ego, of his sovereign who is of
course, entitled to such immunity, and that subjection to the jurisdiction of the courts would
interfere with the performance of the duties as such Minister. In 1971, in Ex Parte Petroff the
Supreme Court of Australia criticised and discarded the theory of extra-territoriality. In this case, two
citizens of Australia criticised and discarded the theory of extra-territoriality. In this case, two
citizens of Australia were accused of having thrown some explosive substances on the Soviet
Chancery situated in Canberra. Criminal proceedings were started against two accused according to
the criminal law of Australia. It was argued on behalf of the accused persons that on the basis of the
theory of extra-territoriality, the Chancery of Soviet Union situated in Canberra, should be deemed
to be outside the territorial jurisdiction of Australia and hence they could not be prosecuted under
the Jaw of Australia. The Supreme Court of Australia rejected the argument and upheld the
conviction of the said two accused persons. The Supreme Court of Australia made it clear in an
unequivocal terms that the diplomatic agents enjoy certain immunities and privileges because of the
special functions that they perform. Thus the theory of extra-territoriality has been discarded and
the functional theory is now generally accepted as correct.
Immunities and Privileges of Diplomatic Agents

Following are the immunities and privileges of diplomatic agents.
(1) Inviolability of the person of Envoys.

It is a well established principle of international law that the person of envoys is regarded inviolable.
This principle has been incorporated in Article 29 of the Vienna Convention on the Diplomatic
Relations, 1961. Article 29 provides: "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 ro prevent any attack on his person, freedom or dignity."
Torture of Indian Diplomat in Pakistan (1992)

On 24th May 1992, an Indian diplomat, Rajesh Mittal was tortured and interrogated for nearly
eleven hours. Later on he was expelled on charges of obtaining secret documents. Mr. Mittal’s
family watched as he was dragged from his car in front of his home. Mr. Mitral, a counsellor of High
Commission was proceeding toward the High commission when three cars belonging to Pakistani
Intelligence Agencies blocked Mr Mittal's car. He was forcibly pulled out of his car, bundled into one
of the Pakistani Intelligence Agencies car and taken away. Mr. Mitral was ordered to sign a
confession. Probably after that he was tortured. He was given even electric shocks. Later on, Mr
Mittal's condition became quite serious and he remained under medical treatment for a
considerable period of time. It may be noted that a month prior to this incident, a Pakistani diplomat
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was expelled from India on espionage charges. Mr Mittal's torture was probably in retaliation of the
said Indian action.
In retaliation the next day, i.e., 25 May, 1992, India declared two Pakistani diplomats, councillor
Zafarul Hassan and Sayed Fayaz Mahmood Endrabi persona non gratia, i.e., undesirable persons and
asked Pakistani High Commission to withdraw them within 48 hours.
Pakistan did not allow an Indian air Force Plane to land in Islamabad to fly back home Rajesh Mittal,
senior Indian diplomat whose condition continued to be serious. Later on, an Indian civilian plane
was sent to fly back home Rajesh Mittal. On 26th May, 1992, India decided to call off the foreign
secretary level talks. Thus, India-Pakistan relations reached a new low as a result of above
mentioned actions.
Inviolability of the person of diplomatic envoy is a well-recognized principle of International law. This
is clear from Article 29 of the Vienna Convention on Diplomatic Relations, 1961 a noted above. The
receiving State shall treat him with due respect and shall take appropriate steps to prevent any
attack on his person, freedom and dignity. Even when a diplomat' s conduct is objectionable or he is
alleged to have interfered in internal matters of the receiving State or is guilty of any crime, the
utmost that can be done is to declare him persona 1/011 gratia, and may be asked to leave the
country within a specified time. This provision finds mention in Articles 9 and 43 of the Vienna
Convention. Thus when prior to Mittal's incident, India declared a Pakistani diplomat persona non
gratia, it was in conformity with Vienna Convention and rules of International law. But the torture of
Indian diplomat, Mr. Mittal by Pakistani intelligence enshrined in Article 29 of the Vienna Convention
on Diplomatic Relations, 1961.
The principle of the inviolability of the person of the diplomatic envoy and the obligation of the
receiving State to protect the personnel of the mission was upheld and reaffirmed by the
International court of Justice in the case of the United States Diplomatic and consular Staff in
Tehran.
Subsequent Indian action in retaliation to declare two Pakistani diplomats persona non gratia was
also in conformity to Vienna Convention on Diplomatic Relations, 1961. According to Article 9 of the
Convention, the receiving state may at any time and without having to explain its decision, notify the
sending State that the head of the mission or a member of the diplomatic mission is persona non
gratia or that any other member of the staff of mission is not acceptable. Thus India's actions were
throughout in conformity with the rule of International Law and established norm of international
relations on the other hand Pakistani action of torturing Indian diplomat was not only barbaric and
primitive but was also a flagrant violation of the rules of international law including Vienna
Convention on Diplomatic Relations 1961 and established norms of International relations.
(2) Immunity from criminal jurisdiction of courts.

The diplomatic agents are immune from criminal jurisdiction of the court of the States in which they
are appointed. If a case is filed in a court of law against diplomatic agent, it is sufficient for such an
agent to inform the court that he is immune from the jurisdiction of the court. It may, however, be
noted that if the diplomatic agent does not claim such an immunity and presents unconditionally
himself personally in the court, then it will be deemed that he has waived his immunity. In such a
case, he will be deemed to be within jurisdiction of the court.
(3) Immunity from Civil Jurisdiction.

The diplomatic agents are also immune from the jurisdiction of the civil court. Suits for recovery of
debts, breach of contract, etc. cannot be filed against diplomatic agents. The diplomatic agents enjoy
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this immunity not only in the State in which they are appointed, but also in those States through
which they pass to join their place of office. For example, in Bergman v. De Sieyes, the respondent
was French Minister for Bolivia. While he was going from France to Bolivia and was passing through
New York, the plaintiff started civil process against him. The defendant argued that being a
diplomatic agent, he was immune from the civil process. Accepting the argument of the defendant
the court rejected the suit filed by the plaintiff. It may be noted here that Article 31 of the Vienna
Convention on Diplomatic Relation which recognises this immunity provides three exceptions. That
is to say, the rule of immunity from civil and administrative jurisdiction will not apply in the following
three cases:
(i) A real action relation to private immovable property situated in the territory of the receiving
State, unless he holds it on behalf of the sending State for the purpose of the mission;
(ii) 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; and
(iii) an action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions.
In India, for filing the suits against foreign states diplomatic agents, consent of central Government is
essential. This provision is contained in Section 86 of the Civil Procedure Code, 1908.
(4) Immunity regarding residence.

The residences of diplomatic agents are generally regarded inviolable.
(5) Immunity from being present as witness.

Diplomatic agents cannot be presented as witnesses in the court. But a Diplomatic agent may
himself waive this immunity and personally present himself in the court as a witness. In such a case,
he cannot consequently claim his immunity.
(6) Immunity from taxes.

Under International Law the diplomatic agents are also immune from payment of taxes, etc. These
immunities are incorporated in Articles 34 to 36 of Vienna Convention on the Diplomatic Relations.
These articles are, however, conspicuous by their silence regarding the payment for facilities
provided by the receiving State and enjoyed by the diplomatic agents. As a matter of fact this is done
on the basis of reciprocity.
(7) Immunity from police rules.

The diplomatic agents are also immune from the police rules of the State in which they are
appointed.
(8) Right to worship.

The diplomatic agents enjoy the right to worship. They are free to follow any religion or perform the
religious rituals and ceremonies, etc. in their own way.
9) Right to exercise control and jurisdiction over their officers and families.
Diplomatic agents also have the right to control and jurisdiction over their officers and their families.
(10) Right to travel freely in the territory of the receiving State.-

Under Article 26 of the Vienna Convention on Diplomatic Relations, 1961, the diplomatic agents can
travel freely in the territory of the receiving States. This is, however, subject to the condition that
they cannot go to the prohibited place or to the place which are important from the point of view of
security of the receiving State.
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(11) Freedom of communication for official purposes.

According to Article 27 of the Vienna onventi n n Diplomatic Relations, 1961, the diplomatic agents
have freedom to communicate with the home tate in connection with their functions and duties.
(12) Immunity from the local and military obligations.

The diplomatic agents are also immune from any local or military obligations. This provision finds
mention in Article 35 of the Vienna Convention on Diplomatic Relations, 1961.
(13) Immunity from Inspection of Personal Baggage.-

Article 36 (2) of the Vienna Convention provide that personal baggage of diplomatic agent be xempt
from inspection, unless there are serious grounds for presuming that it contains articles not covered
by exemption mentioned in paragraph of this article or articles the import of which is prohibited by
the law or controlled by the quarantine regulations of the receiving state. State inspection shall be
conducted only in the presence of the diplomatic agent or his authorised agent.
(14) Immunity from Social Security Provisions.-

According to Article 33 of the Vienna Convention, a diplomatic agent hall with respect to service
rendered for the sending State be exempt from social security provisions which may be in force in
the receiving State.
Termination of Diplomatic Mission.

A diplomatic mission may be terminated in any of the following ways:
(1) Recall of Envoy.

At any time, the appointing State may recall its envoy.
(2) Notification in regard to envoys functions.

The appointing State may end the term and functions of an envoy through notification.
(3) On the request of the receiving State.

The diplomatic mission may also be terminated on the request of the receiving State. This may take
place when the relations between the receiving and the appointing State are strained.
(4) By delivery of passport.

Delivery of the passport to diplomatic envoy is yet another way of terminating his diplomatic
mission. Such a step is taken only when either the war has broken out in between the appointing
and the receiving State or some other grave situation has arisen.
(5) Persona-non-gratia.
This term means undesirable person. At any time and without assigning any reason the receiving
State may declare any Diplomatic envoy as persona-non-gratia. Such a declaration terminates the
diplomatic mission immediately. This provision finds mention in Articles 9 and 43 of the Vienna
Convention on Diplomatic Mission, 1961.
(6) End of the object of the mission.

The diplomatic mission comes to an end when the object of the mission has been achieved.
(7) Expiration of the Letter of Credence.

The diplomatic mission of an envoy also comes to an end after the expiration of the period for which
he was appointed.
In addition to the above ways, diplomatic mission may also be terminated or may come to an end on
account of any of the following reasons:-
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(i) Death;
(ii) Removal from post;
(iii) Breaking of diplomatic relations;
(iv) Constitutional changes;
(v) Revolutionary changes in Government;
(vi) End of the work of the mission by some Conference;
(vii) War; and
(viii) Change in the post of diplomatic agent.
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6. What is nationality? Explain the international importance of

nationality. State the different modes of acquisition and loss of
nationality.
Nationality
"Nationality" is the status of natural person who is attached to a State by the tie of allegiance".' In
the words of Hyde. "Nationality refers to the relationship between a State and an individual which is
such that the former may with reason regard the latter as owing allegiance to itself. According to
Starke, nationality may be defined, " ............. as the status of membership of the collectivity of
individuals whose acts, decisions and policy are vouchsafed through the legal conception of the
State representing those individuals" Fenwick defines the term 'Nationality' in the following words :
"Nationality" may be defined as the bound which unites a person to a given state which constitutes
his membership in the particular stage; 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." In the famous case of Re
Lynch, the British Mexican Claims Commission defined the term 'Nationality' in the following words:
"A man's nationality forms a continuing state of things and not a physical act which occurs at a
particular moment. A man's nationality is a continuing legal relationship between the sovereign
State on the one hand and the citizen on the other. The fundamental basis of man's nationality is
membership of an independent political community. This legal relationship involves tights and
corresponding duties upon both on the part of the .citizen no less than on the part of the State". A
similar definition has been given by the International Court of Justice in Nottebohm case (second
phase).
It is clear from the above definitions that the basis of nationality is the membership of an
independent community.
Development of the Law of Nationality.

The rules of nationality are determined by State laws. But due to lack of uniformity in State laws in
regard to nationality. many difficulties were experienced. Consequently difficult problems of
statelessness, double nationality, etc. arose. In Hague Conference of 1930, an endeavour was made
to end the conflicts arising out of divergent State laws in respect of nationality, Consequently, a
Convention on the Conflict of Nationality Laws was signed and adopted. In this Convention an
attempt was made to resolve the problems relating to nationality and statelessness. Besides this,
Convention on the Nationality of Married Women was adopted in 1957. Moreover, Convention on
the Reduction of Statelessness was adopted in 1961.
International Importance of Nationality.

Nationality is often determined by State laws. As pointed out by Oppenheim, nationality is the link
through which an individual can enjoy the benefit of International Law. Under International Law,
nationality has often been used as a justification for the intervention of government to protect
persons and property in another country. It may, however be noted that International Law does not
create a correlative right in favour of the individuals. It creates rights in favour of the States whose
nationals they are. In Panevezys Saldutiskis, case, the Permanent Court of International Justice
observed: " .......... in the taking up the case of one of its nationals, by resorting to diplomatic action
or international judicial proceedings on his behalf, a state is in reality asserting its own rights, the
right to ensure in the person of its nationals, respect for the rules of international law. The right is
necessarily limited to intervention on behalf of its own nationals because in the absence of special
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agreement, it is the bond of nationality between the State and individual which alone confers upon
the State the right of diplomatic protection. and it is as a part of the function of diplomatic
protection that the right to take up a claim and ensure respect for the rule of international law must
be envisaged."
As pointed out by Starke, the laws relating to nationality have following importance under
international law:
(1) The protection of rights of diplomatic agents is in consequence of nationality.
(2) If a State does not prevent offences of its nationals or allows them to commit such harmful acts
as might affect other States, then that State shall be responsible for the acts committed by such a
person.
(3) Ordinarily, states do not refuse to take back the persons of their nationality. By nationality we
mean loyalty towards a particular State. Nationality may also mean that the nationals of a State may
be compelled to military service for the State.
(4) Yet another effect of nationality is that the State can refuse to extradite its own nationals.
(5) According to the practice of large number of States during war, enemy character is determined
on the basis of nationality.
(6) According to theory of extra-territoriality, states exercise jurisdiction over civil and criminal
matters over the persons of their nationality.
In Blackmer v. U.S.A.,8 it was held by the U.S. Supreme Court that since the petitioner was the
citizen of U.S.A., the U.S. could retain its authority over him and he was bound by its laws even while
living in the foreign country in which he resided. This principle was reaffirmed by the U.S. Supreme
Court in Skiriotes v. State of Florida.
Distinction between Nationality and Domicile

It has been pointed out earlier that basis of nationality, is the membership of a man with an
independent munity. On the other hand domicile denotes the residence of the person. Thus, there a
great difference between "Nationality' and 'domicile'. While nationality denotes the relation of a
man with his nation which protects him and the person is bound to follow the rules enacted by that
State, on the other hand, domicile denotes the residence of the person. Consequently, a person may
require nationality through domicile. In different countries there are different rules and processes in
regard to the acquisition of nationality through domicile.
In Boldrini v. Boldrini, it was held that a man may change his domicile without losing or changing his
nationality. Conversely, it has been held in Wahl v. A.G., that a man may change his nationality
without a change of his domicile. The Indian courts have also applied these principles. Attaullah v.
Attaullah, and Michael Anthony Rodrigues v. State of Bombay, 13 deserve mention in this
connection. The fact that a person acquired British Nationality would not imply that he had acquired
the domicile of U.K. too. This was held by the Calcutta High Court in S.P. Chouse v. Deputy
Controller. Reserve Bank of India. 14 It has been aptly remarked: "Though the two concepts are
quite independent of each other, but sometimes. "domicile" is made one of the important criterion
for the acquisition of the nationality or citizenship of a country."
Distinction between Nationality and Citizenship.

Often nationality and citizenship are considered to be synonymous of each other. But, the fact is
otherwise. There is a great difference between nationality and citizenship. But, the fact is otherwise.
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There is a great difference between nationality and citizenship. By nationality under international
law, we mean the legal relationship which exists between the nation and the State. Citizenship on
the other hand, denotes the relation between the person and the State law. In other words we may
say, through nationality the civil and natural rights of a person may come under international law
whereas the rights of citizenship are the sole concern of the State law. It is possible that all the
citizens may possess the nationality of a particular State. but it is not necessary, that all the nationals
may be the citizens of that particular State. Citizens are those persons, who possess full political
rights in that State. But a person who possesses only nationality in a particular State may possess all
political rights. Thus, there is a great difference between nationality and citizenship. The distinction
between 'nationality' and citizenship has been aptly summed up in the following words. "It is
'nationality' only which is of significance to international law and not 'citizenship' though the two
terms are so many times used interchanging and though in the municipal laws of some countries
only the term citizenship, I has been used 'nationality' is the quality of belonging to a particular State
by which the person is internationally known; whereas 'citizenship' denotes the municipal status of a
person under consideration as possessing the highest or at least a certain higher category of political
rights and duties established by the nation's or State's constitution. And since the list of concrete
rights and duties that constitute citizenship differs from country to country. it has also been said:
"There is no universal definition of citizenship when citizenship ceased to be synonymous with
nationality.
Citizens are included in nationals, but not all nationals are citizens. In most of the larger modern
States, there are nationals who either lack citizenship altogether or who have only a local and
limited citizenship."
It may be noted here that the Indian Citizenship Act, 1955 does not make any distinction between
the words 'nationality' and 'citizenship'. Section 2 (1) (b) of the Act defines the term 'citizen' in the
following words: "Citizen in relation to a country specified in the First Schedule, means a person who
is a citizen or national of that country under the citizen hip or nationality law for the time being in
force in that country. Similarly, Section 2 (1) (c) provides: "citizenship" or nationality in relation to
country specified in the First Schedule means an enactment of the legislature of that country which,
at the request of the Government of that country, the Central Government may, by notification in
the official Gazette, have declared to be an enactment making provision for the citizenship or
nationality of that country.
Modes Of Acquisition And Loss Of Nationality

Modes of Acquisition of Nationality:
Following are the modes of acquisition of nationality:
(1) By Birth.
A person acquires nationality of the State where he is born. He also acquires the nationality of his
parents at the time of his birth.
(2) By Naturalization
Nationality may also be acquired by naturalization. When a person living in foreign State acquires
the citizenship of that State then it is said to be acquired nationality through naturalization. In
Nottebohm case, the International Court of Justice decided that in respect of grant of nationality
there is no obligation of the states if that man has no relationship with the State of naturalization.
In this case the court applied the principle of 'effective nationality', A brief reference of this may be
made here.
Nottebohm Case.
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Born in 1881 in Germany, Nottebohm went to Guatemala in 1905. But he continued his business
relations with Germany and went to Germany several time. After 1931, he visited his brother in
Liechtenstein. In 1938, he left Guatemala. After reaching Leichtenstein, he through his attorney,
submitted an application for naturalisation as a citizen of Leichtenstein, and the same was granted in
October. 1939. He returned to Guatemala at the beginning of 1940 on Leichtenstcin-passport and in
Guatemala his change of nationality was enrolled on the Register of Aliens. As a result of war
measures. his property was taken in 1943 and he was arrested and transferred to the U.S.A. After
being refused re-admission to Guatemala in 1946, Nottebohm went to Leichtenstein. In 1951
Leichtenstein filed a case against Guatemala in the International Court of Justice. The World Court
had to decide whether by the fact of grant of nationality by naturalization to Nottebohm by
Leichtenstein would directly entail an obligation on the part of Guatemala to recognise
Leichtenstein's right to exercise its protection over Nottebohm. Propounding the principle of
effective nationality ' the World Court observed:
"It must ascertain whether the factual connection between Nottebohm and Leichtenstein in the
period preceding contemporaneous with and following his naturalisation appears to be sufficiently
close, so preponderant in relation to any connection which may have existed between him and any
other States that it is possible connection which may have existed between him and any other States
that it is possible to regard the nationality conferred upon him real and effective, as the exact
judicial expression of social fact, of a connection which existed previously or came into existence
thereafter."
The Court noted that Guatemala was the main centre of Nottebohm's business and he remained
there for as many as 34 years. Even after his removal in 1943. As a result of war measures.
Guatemala remained main seat of his business. As compared to this his connections with
Leichtenstein were extremely tenuous. At the time-of his application for naturalisation, he had
neither any settled abode nor resided in that country for a long time. Nor did he intend to transfer
his business activities to Leichtenstein. Applying the above principle, the International Court of
Justice held, by a majority of eleven votes to three, that Nottebohm did not enjoy the nationality of
Leichtenstein.
(3) By Resumption.
Sometimes a person may lose his nationality because of certain reasons. Subsequently, he may
resume his nationality after fulfilling certain conditions.
(4) By Subjugation.
When a State is defeated or conquered then all the citizens acquire the nationality of the conquering
State .
(5) Cession.
When a State has been ceded in another State, then the people of the territory which has been
ceded acquire the nationality of the State in which their territory has been merged.
In addition to the above mentioned mode there may be some other circumstances whereby a
person may acquire nationality. For example, if a person is appointed in the public service of another
State, then acquires the nationality of that State.
Loss of nationality.
Following are the modes of loss of nationality:
(1) By ReIease
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In some States, law provides that the citizens may lose the nationality by release. In the loss of
nationality by release it is necessary to submit an application for the same. If the application is
accepted, the per on concerned is released from the nationality of the State concerned.
(2) By Deprivation
In certain States, law provides that if the nationals of that State without seeking prior permission of
the government obtains employment in another State, then he may be deprived of hi nationality.
(3) Long Residence Abroad.

Yet another mode of loss of nationality is the long residence abroad. The State law of many States
contain provisions in this connection. Thus , if a person resides for a long period abroad then his
nationality ends.
(4) By Renunciation.
A per on may also renounce his nationality. The need for renunciation arises when a person acquires
nationality of more than one State. In such a condition he has to make a choice as to of which
country he will remain the national. Consequently, he has to renounce the nationality of one State.
(5) Substitution.-
Some States provide for the substitution of 'nationality. According to this principle, a person may get
nationality of a State in place of the nationality of another State. This is called nationality by
substitution whereby he loses the nationality of one State and acquires the nationality of another
State.
Citizenship Law in India

Article 5 of the Constitution of India provides: "At the commencement of this Constitution, every
person who has his domicile in the territory of India and-
(a) who was born in the territory of India; or
(b) either of whose parents have been in the territory of India; or (c) who has been ordinary resident
in the territory of India for not less than five years immediately preceding such commencement shall
be citizen of India".
Articles 6 and 7 deal with the rights of citizenship of certain persons who have migrated to India
from Pakistan and certain migrants to Pakistan respectively. Article 8 deals with the rights of
citizenship of certain persons of Indian origin residing outside India. Article 9 provides that persons
voluntarily acquiring citizenship of a foreign State shall cease to be Indian citizens. It says: "No
person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue
of Article 6, or Article 8, if he has voluntarily acquired the citizenship of any foreign State."
Article 10 provides (hat every person who is or is deemed to be citizen of India under the
abovementioned shall, subject to the provisions of any law that may be made by Parliament,
continue to be such citizen. Lastly Article II confers powers on the Parliament to regulate the right of
citizenship by law. It says: "Nothing in the foregoing provisions of this Part shall derogate from the
power of Parliament to make any provisions with respect to the acquisition and termination of
citizenship and all other matters relating to relationship."
The (Indian) Citizenship Act, 1955.-
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ln pursuance of Article 11 noted above, the Parliament passed the Indian Citizenship Act in 1955. As
noted earlier, Section 2 (1) (b) defines the word 'citizen'. For the acquisition of Indian citizenship, the
Act of 1955 recognises following modes:
(i) By birth (Section 3);
(ii) By descent (Section 4);
(iii) By Registration (Section 5);
(iv) By Naturalization (Section 6);
(v) By Incorporation of Territory (Section 7); and
(vi) By Resumption of Re-integration (Section 8 (2).
Loss of Citizenship.
A person may lose Indian citizenship or nationality in any of the following ways:
(i) renunciation (Section 8);
(ii) By termination (Section 9);
(iii) By deprivation (Section 10).
Commonwealth Citizenship.
Section 11 provides that every person who is citizen of a commonwealth country specified in the
First Schedule shall, by virtue of that citizenship. have the status of a Commonwealth Citizen in India.
This provision was enacted with a view to give effect to the understanding arrived at between
Commonwealth countries in 1947. But the Commonwealth citizenship in it elf does not confer any
rights or privilege on any person. Section 12 (I) clearly provides that Central Government may, by
order notify in the Official Gazette, make provisions on a basis of reciprocity for the conferment to
all or any of the rights of a citizen of India on the citizens of any country specified in the First
Schedule. Last but not the least, Section 18 confers owner on the Central Government to make rules,
by notification in the official Gazette, to carry out purposes of this Act. In exercise or this power, the
Central Government made the Citizenship Rules, 1956 to carry out the purposes of the Act.
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7. Write short note on :

a) Double Nationality
Double Nationality and Nationality of Married Woman.
Because of the conflict of the laws of nationality of different countries, a situation often arises when
a person may possess nationality of more than one State, To give example of such a case is that of a
woman, who after her marriage acquires the nationality of her husband and also continue to possess
her original nationality. The double nationality may also be acquired by birth if the parents are at the
time of birth in a State whose nationality they do not possess. Consequenily, treaties may provide
that the person may, by their will, select their nationality. The Hague Conference of 1930. made an
attempt to remove the difficulty arising out of double nationality in consequence of war. Articles 3
to 6 of the Hague Convention contain the provisions in this connection. For example Article 5
provides that such a person shall be treated in their State as if he has only one nationality. The third
State ill either recognise the nationality of the State where he often reside or will recognise the
nationality which is more relevant in accordance with the facts and circumstances of each individual
case. Articles 8 to II provide for the nationality of married women. In these provisions, an endeavour
has been made to remove the difficulties. According to the principles contained in these provisions if
a woman marries, then she will automatically acquire the nationality of her husband. In the recent
times the Convention on the Nationality of Married Women is yet another significant attempt to
remove the difficulties and problems arising out of the double nationality.
Reference may also be made to the Universal Declaration of Human Rights, 1948. Article 15 (2)
further provides that no one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality. It is very unfortunate that the International Covenant on Civil and Political
Rights, 1966 has not incorporated the right of everyone to a nationality and the right not to be
deprived of one's nationality. The covenant, however, affirms the right of every child to acquire a
nationality.
b) Statelessness
Statelessness.
Sometimes it so happens that a person does not possess the nationality of any State. Such a state is
referred to as the state of statelessness. In Stoeck v. The Public Trustee,24 it was held that it is
generally agreed that if a person is not a national of any State, he will be called a stateless person.
Lord Russell observed that such a status is recognised by British law as well as International Law. At
present this is one of the burning problems of International Law. The person who does not possess
the nationality of any nation cannot exercise the rights conferred upon him by international law.
Prof. Oppenheim has compared such persons with the ships who are floating in the open sea,
without flag of any country. Serious attempt to remove the difficulties arising out of statelessness
was made in the Hague Convention of 1930. Later, on, after the establishment of United Nations,
attention, was given to remove the difficulties arising out of this problem. According to Article 15 of
the Universal Declaration of Human Rights, each person is entitled to have nationality and the
nationality of any person cannot be taken away or snatched arbitrarily. The Universal Declaration of
Human Rights inspires the State to regulate their conduct in accordance with the provisions of the
Declaration: so far as the problem of statelessness is concerned.
The International Law Commission considered the subject of statelessness together with the
question' of nationality between 1952 and 1954. In 1954, the General Assembly decided to convene
a conference to conclude a convention on reduction of Statelessness. The conference was called in
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1959 and was adopted in 1961. The Convention on the Reduction of Statelessness (1961) was
adopted on 30th August, 1961. This convention entered into force on December 13, 1975. As of 11th
December 2010, 37 Countries have become parties to the Convention. India is not a signatory to this
Convention. It provides that a party to the Convention shall grant its nationality to a person born in
its territory who would otherwise be Stateless. Such a nationality shall be granted either by birth or
by operation of law. Further, a child born in the wedlock in a territory of a party to the convention,
and whose mother is national of that state, shall get that nationality in case the child would
otherwise be stateless. The convention also provides that a contracting state shall grant its
nationality to a person who is born in its territory and who would otherwise be stateless and on
account of certain reason he is unable to acquire the nationality of the contracting State. But, this is
subject to certain conditions including condition that at the time of the person's birth the nationality
of one of his parents was that of the contracting state. Article 7 of the Convention provides that a
person shall not be deprived of his nationality, so as to become stateless, on the ground of
departure, residence abroad or failure to register. Last but not the least, Naturalization shall not
result in loss of nationality unless the person concerned acquires another nationality.
Starke has rightly pointed out, "It is a condition which not only means great hardship and lack of a
security for individuals; but involves the existence of a serious gap in the application on International
Law." Starke has pointed out the following remedies to remove the statelessness:
(1) It should be the duty of the States either to regard definite nationality of the person or not to
recognise it. In this connection, Hague Convention is the first important step to remove the
difficulties arising out of Statelessness and to lessen the number of persons who do not possess the
nationality of any state. In recent times, Convention on the Reduction of the Statelessness, 1961, is a
significant improvement on the provisions of the Hague Convention and goes a long way to remove
the number of such persons, who do not possess the nationality of any other State.
(2) It should also be the duty of the State not to deprive the nationality of persons unless and until
there is sufficient cause for it.
(3) Stateless persons should liberally be granted nationality.
(4) Stateless persons should be conferred upon some rights through international treaties. In this
connection Geneva Convention on the Statutes of Refugees, 1951, and Status of Stateless Persons,
1957, deserve a special mention.
The Convention Relating to Status of Refugees, 1951 and Protocol thereof both have 147 parties as
of 11th June, 2013. The Convention Relating to Status of Stateless Persons, 1957, had 82 countries as
of February 2014.
Thus, we see that effort have been made to remove the number of Stateless persons under
international law but still there are many difficulties in this connection. Much haw been done in this
connection but much still remains to be done.
c) Classification of International Treaties.

Classification of Treaties.-
Mc Nair has classified treaties under the following categories:
(1) Treaties having the character of conveyances,
(2) Treaty Contracts.
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(3) Law-making Treaties, and
(4) Other treaties, such as the Treaty of Universal Postal Union.
Oppenheim has classified treaties into the following two categories:
(1) Law Making Treaties; and
(2) Treaties for other purposes.
d) Interpretation of treaties
Interpretation of a Treaty.-
Foll wing are the general principle of interpretation of treaties:
(1) Grammatical Interpretation.-

In the first instance the words and phrases are considered according to their plain and natural
meaning. This is called grammatical interpretation of treaty.
(2) Object and Context of the Treaty.-

In case the words and phrases are ambiguous, they are con id red keeping in view the general object
and context of the treaty.
(3) Reasonable and Consistency.-

Treaties are generally interpreted so as to give reasonable and consistent meaning of the phrases
and words.
(4) Principle of Effectiveness.-

Treaties are interpreted in such a way as may appear to be most effective and useful.
(5) Recourse to extrinsic material.-

According to Article 31 (1) of the Vienna Convention on the Law of Treaties , 1969, "a treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to the term of the
treaty in their context and in the light of its object and purposes." Thus, in some cases recourse may
be had to the extrinsic material, although ordinarily the treaties are interpreted on the basis of the
words and phrases that have been used in the treaties.
e) Consuls
Consuls are the representatives of their States but they are not diplomatic agents. Their main
function is to look after the commerce and trade interests of their countries. In recent years, the
activities of the consuls have increased manifold. In view of the important function that they
perform a Convention was adopted at Vienna on April 24, 1963. It came into force on 19th March,
1967.
As of April 2014, 177 Countries have become parties to the Vienna Convention on Consular
Relations, 1963.
The conference which adopted Vienna Convention on Consular Relations, 1963 also adopted the
Optional Protocol Concerning Acquisition of Nationality, Optional Protocol Concerning Compulsory
Settlement of Disputes, the Final Act and the four resolutions annexed to that Act. It was
implemented or April 14, 1964.
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In March 2005, the U.S. pulled out of the Optional Protocol, which allows compulsory jurisdiction
over disputes arising under the convention.
It may be noted here that the Convention and the Optional Protocol came into force on 19 March,
1967.
Classification of Consuls.-
(1) Consuls-General-
Consuls-General are generally appointed in main commercial cities and are heads of the consul
offices.
(2) Consuls.-
They are appointed at small cities and assist the work of Consul-General.
(3) Vice-Consuls.-
They are below the Consuls and in some States they are appointed by the Consuls-General.
(4) Consul-Agents.-
They are of the last category and are appointed either by the Consul-General or in some States even
by the Consul.
Functions of the Consul.

Following are the functions of the consul:
(1) They protect the commercial interest of their States.
(2) They supervise and look after shipping, etc., of their countries.
(3) They look after the interests of their citizens and assist them in getting passport etc.
(4) They perform certain other functions for the citizen of their States such as to testify signatures,
registration of marriage, birth, death etc.
Rights and Immunities of Consuls.

As pointed out earlier, Consuls are not diplomatic agents. Therefore, they are not entitled to the
immunities and privileges of the diplomatic agents. But such immunities and privileges may be
conferred upon them on the basis of bilateral treaties or on the basis of reciprocities . Because of the
increasing importance of trade and commerce in the modern time, generally the consuls are also
given the same immunities and privileges as are enjoyed by the diplomatic agents.
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8. Problems:
Problem 1
“X” an Indian politician to avoid arrest by the Lok Yuktha authorities take refuge in a
merchant ship of state “Y” which is stationed in territorial sea of India. Can Indian
Lokayuktha authorities arrest him?
Problem 2
The diplomat of State "A" was supplying weapons to a banned out fit in violation of Local
Laws, in State "B". When he was caught, he claims diplomatic immunity. Can he succeed ?
Problem 3
‘A’ a citizen of the state ‘X’, while serving as soldier ran away to neighbouring State ‘Y’, as he
was fed up with army dicipline. On a request by state ‘X’ for extradition of ‘A’ state ‘Y’ police
arrested ‘A’. ‘A’ filed a writ petetion in the courts of state ‘Y’. Contending that he was not
extraditable. State ‘Y’
Problem 4
Mary a Russian ambassador’s wife in New Delhi has opened a beauty parlour in New Delhi.
Rekha an Indian woman who went to the parlour, suffered facial injury by the treatment
given by Mary. Rekha filed a suite against Mary to recover damages. Mary pleads diplomatic
immunity. Decide.
Problem 5
Mr. ‘Pinto’ was a clerk at Indian Embassy in England. He was dismissed from service on the
charge of stealing documents. On the same day, the Indian Ambassador waived his
immunites in this respect. Mr. Pinto was arrested and tried. He claimed that being a servant
of diplomatic envoy he was immuned from the court proceedings. Whether he succeed in
this case ? Give reason.
Problem 6
Three Indian fisherman involved in a case of alleged drug trafficking in Sri Lanka. They were
arrested by the Sri Lankan Navy. The Colombo High Court awarded death penalty to three
Indian fisherman. Now can Indian Diplomatic envoys release these three Indian fisherman ?
Give reason.
Problem 7
A team of USA military troop was on the ground in Iraq against the Jihadists. Is USA
violated any rule of International Law ? Give reason
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UNIT – V
1. Explain the purposes and principles of United Nations

Organisation
Origin.
After the first World War the League of Nations was established but it failed to prevent the Second
World War. The Second World War once again compelled the nations of the world to endeavour to
establish an international organisation which could prevent future war and maintain peace and
security in the world. During the Second World War it elf the great power had started making efforts
in this direction. Their efforts led to the holding of the San Francisco Conference in which the United
Nations Charter was adopted and signed by 51 nations of the world. After the Charter was ratified by
the prescribed number of states, it came into force on October 24, 1945. Thus, the United Nations
was finally established. It may, however, be noted that it was the untiring efforts for a number of
years which led to the establishment of the United Nations. The more important factors and efforts
which led to the establishment of the United Nations may be briefly mentioned below:-
(I) The Declaration of St. James Palace (June 12, 1941)
(2) The Atlantic Charter (Aug. 14, 1941)
(3) The United Nations Declaration (January 1, 1942)
(4) Moscow Declaration (October 30, 1943)
(5) The Tehran Conference (December 1, 1943)
(6) Dumbarton Oaks Conference (1944)
(7) The Yalta Conference (Feb. 11, 1945)
(8) San Francisco Conference (June 25, 1945)
Preamble- of the United Nations Charter.

The Preamble indicates that the Charter of the U.N. is born as a result of the experiences of a
devastating war and that it holds out hope for a lasting peace based on recognition of fundamental
human rights which have been the casualties of war, on a recognition of sovereign equality of all
State and no better economic and social conditions for the millions who have been victims of the
oppressions and exploitation.! It is significant to note that as compared to the world, "The High
contracting parties" used in the covenant of the League of Nations, the Charter uses the words, "We
the people of the United Nations". It is pointed out, and rightly too, that it is not by accident that
these words occur in this Preamble. It is up to the statesmen and the people they represent to make
a success of the United Nations. In the view of Schuman the use of these words in the Charter is
misleading because "those who drafted it spoke for governments, not people and established not a
federation of peoples, but a league of States. Fulfilment of hopes of its founders required continuing
co-operation among great powers. With the advent of 'cold war' these hopes faded." The preamble
itself later on uses the words "our respective governments". But, it must be conceded that there is
vast difference between the altitudes and concepts on the Covenant and the Charter about
individuals. While emphasis and prominence have been given to the "High Contracting Parties" in
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the Covenant, the Charter has given a place of significance to human rights and fundamental
freedoms. Moreover, it has also been rightly pointed out whatever might be the interpretation given
to the preamble, it has to be admitted that the teeming millions all over the world opined for a
world organization which would ensure peace and security and that the Charter reflects the
prevailing mood of mankind in spite of many failures and frustrations which the Organisation
suffered from time to time.
Legal Character of the United Nations –

Ordinarily, the United Nations is considered to be an association or organization of Slates. But, it
should be noted here that the United Nations also has a distinct legal personality of its own apart
from those of its members. It has its Headquarters and officials. According to Article 104 of the
Charter, the Organization 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 fulfilment of its purpose. Article 105
further 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 purpose. Similarly,
representatives of the Members of the United Nations and officials of the Organisation shall enjoy
such privileges and immunities as are necessary for the independent exercise of their functions in
connection with the Organization. Thus, the United Nations is a legal person and is a subject of
International Law. The United Nations is capable of holding and disposing of property and can enter
into contract. In this connection. the General Assembly of the United Nations adopted the
Convention on the Privileges and Immunities of the United Nations in 1946. Article 1 of the
Convention 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.
With a view to give effect to this Convention of India, the Parliament of India enacted the United
Nations (Privileges and Immunities) Act, 1947 .Act No. XLVI of 1947). The Schedule to the Act
describes in detail the Juridical personality, rights in respect of property,6 facilities in respect of,
communications, etc. and representatives of Members etc. of the United Nations.
It is clear from the above discussion that the United Nations is a legal person and a subject of law.
This was confirmed by the International Court of Justice in its advisory opinion Reparation for
injuries suffered ill the Service of the United Nations. The World Court said that the United Nations is
an international legal person which' has right and duties under international law. It can claim
compensation for injuries suffered by persons in Its service. But, It may be noted here that under the
Charter, power to enter contract, generally has not been conferred on the United Nations. On behalf
of the organization it can enter into those contracts or agreements which are mentioned in the
specific provisions of the Charter. For example, it can enter into agreements with specialized
agencies.
The United Nations has now attained near universality. At present there are as many as 192 member
states which are parties to the Charter of United Nation.
Purposes of United Nations

The purposes of the United Nations are mentioned in Article I of the Charter. They are-
(a) To maintain International Peace and Security.
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The most important purpose of the United Nation is to maintain international peace and security.
Article 1.1 provides that one of the purposes of the United Nations is to "maintain international
peace and security" and to that end, "to take effective and collective measures for the prevention
and removal of threat to the peace, and for the suppression of act of aggression or other breaches of
peace and to bring about by peaceful means and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situation which may lead to
a breach of peace. This purpose is so important that it led Prof. Han Kelsen to remark, "The purpose
of the United Nations is world peace."
(b) To Develop Friendly Relations among Nations.

Yet another purpose of the United Nations is to develop friendly relations among nation on respect
of the principle of equal right and self-determination if peoples and to take other appropriate
measures to strengthen universal peace.
It may be noted here that the principle of elf-determination has become a binding principle of
international law in the context of colonialism. This is due to the resolution of the General Assembly,
especially the Declaration on the Granting of Independence to Colonial Countries and Peoples
[Resolution 1514 (XV) of 14 December 1960]. This principle was subsequently reaffirmed by the
General Assembly through several other resolutions, As pointed out by an author, " within the
context of colonialism self-determination has become a peremptory norm of international law
whereby a state's title to a territory having colonial status is void." However, it cannot be applied to
established State in their territorial disputes. This is clearly prohibited by the General Assembly
Resolution 1514 (XV) of 14th December, 1960 itself.
(c) International Co-operation in Solving International Problems of Social, Cultural and

Humanitarian character.
The third purpose of the United Nations i to achieve international co-operation in solving
international problem of economic, social, cultural and humanitarian character and promoting and
encouraging respect of human rights and fundamental freedom for all without distinction as to race,
sex, language or religion.
(d) To make the United Nations a centre for the attainment of above common ends.
The last purpose of the United Nations is to make it a centre for harmonising the actions of the
nations in the attainment of the above mentioned ends.
Principles of the United Nations

Article 2 of the United Nations describes the principles of the United Nations and provides that the
organisation and its members, in pursuit of the purposes described in Article I, shall act in
accordance with the following principles:-
(1) The Principle of Sovereign Equality of all Members.

The first principle of the United Nations is that the organisation is based on the principle of
sovereign equality of all members. Thus, in the eye of law all members are equal. It may, however,
be noted that it is to an absolute principle and admits certain exceptions. For example, the
Permanent Members of the Security Council possess more powers than other members. For decision
on all important matters in the Security Council the affirmative votes of all the permanent members
is essential. Similarly, no amendment of the charter can take place unless and until it is accepted or
ratified by five permanent members.
(2) Members to fulfil in good faith the obligations assumed by them.
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The second principle of the United Nations is that all members, in order to ensure to all of them the
rights and benefits resulting from the membership shall fulfil in good faith the obligations assumed
by them in accordance with the present Charter.
(3) Peaceful Settlement of International Disputes

According to the third principle of the United Nations all members shall settle their international
disputes by peaceful means in such a manner that international peace and security and justice are
not endangered.
(4) Principles of Non-Intervention

The fourth principle of the United Nations is that all members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political independence of
any state, or any other manner inconsistent with the purposes of the United Nations.
(5) Members to Assist the United Nations in Common Action.

The fifth principle of the United Nations is that all members shall give the United Nations every
assistance in common action it takes in accordance with the present Charter and shall refrain from
giving assistance to any state against which the United Nations is taking preventive or enforcement
action.
(6) Non-members also to act in accordance with the Principles of the United Nations for the
maintenance of International Peace and Security.
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.
(7) Non-Intervention in Domestic Matters of Member States.

Seventh and the last principle of the United Nations prohibits the United nations to intervene in the
domestic affairs of a member State. It provides that nothing contained in the present Charter shall
authorise the United Nations to intervene in the matter which are essentially within the domestic
jurisdiction of any State or shall require the members to submit such matters of settlement under
the present charter. This principle will, however, not apply if the United Nations takes any
enforcement measures under Chapter VII of the Charter. This principle undoubtedly, is a great
limitation upon the powers of the United Nations. But, the term 'domestic jurisdiction' is very vague.
Its meaning changes with the change of time and circumstances. Sometime matters which were
considered to be within the domestic jurisdiction of the State at the time of the establishment of the
United Nations are now considered matters of international concern. Racial discrimination,
apartheid, etc. are glaring examples of such matters. It is therefore very difficult to lay down any
general guideline as to what is a matter within the domestic jurisdiction of any state. As pointed out
by Judge Lauterpacht, "that any matter which is regulated by international law may not be a matter
within the domestic jurisdiction of any State."
Membership
Charter of the United Nations provides for two types of members:
(i) Original Members, and
(ii) States admitted as members according to Article 4 of the Charter.
Original members of the United Nations are those members which participated in the United
Nations Conference on International Organisation at San Francisco or previously signed the United
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Nations Declaration of January 1, 1942 and subsequently signed the present Charter and ratified it in
accordance with Article 110 of the Charter.
As regards the admission of members, Article 4 of the Charter provides that a State may be admitted
to the United Nations on the affirmative recommendation of the Security Council and by election of
the General Assembly by two-third majority. Admission of states being an important matter, it is
necessary that the Security Council must recommend it by a majority of 9 members including the
five permanent members. Further, Article 4 provides that for a State to become a member of the
United Nations:
(i) It must be a State;
(ii) It must be peace-loving;
(iii) It must accept the obligations of the Charter;
(iv) It must be willing to carry out those obligations; and
(v) It must be able to carry out those obligations.
It may, however, be noted that the practice of the member states while voting on the question of
admission of a State to the United Nations is inconsistent with the provisions mentioned above. A
pertinent question arose whether a member-State while voting on admission of a new State can
make its vote subject to the condition that it will give its affirmative vote only when some other
particular State is also admitted. Russia made this condition in respect of admission of Italy and
Finland. The General Assembly of the United Nations referred this matter in 1948 for the advisory
opinion of the International Court of Justice. The International Court of Justice opined that a State-
member while voting on the admission of a new State is not entitled to make its consent to the
admission of an applicant dependent on the fulfilment of the conditions other than those prescribed
in Article 4. Despite this legal opinion, the Security Council could not make its affirmative
recommendation on the application of the admission of certain states because of the exercise of
Vetoes by Great Powers. On November 22, 1949, the General Assembly can admit a state as
member of the United Nations in case the Security Council has failed to make any recommendation.
The International Court of Justice opined that, "It was necessary to have an affirmative
recommendation of the Security Council as well as that of the Assembly before a member state
could be admitted to the organisation." Thus, practice of States is inconsistent with the provisions of
the Charter. America blocked the admission of South and North Vietnam by exercising its first veto in
the Security Council in 30 years. America contended that she would give her affirmative vote if South
Korea was also admitted. Thus, America resorted to an action for which she used to criticise Russia.
Present Number of Members.

At present, there are 193 members of the U.N. Southern Sudan is the 193rd member of the United
Nations.
Principal organs of the U.N.

There are the 6 principal organs of the United Nations:
(1) General Assembly;
(2) Security Council;
(3) The Economic and Social Council;
(4) The Trusteeship Council;
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(5) The Secretariat, and
(6) The International Court of Justice.
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2. International Court of Justice

Composition
According to Article 7, International Court of Justice is one of the principal organs of the United
Nations. It is the chief judicial organ of the United Nations and is based upon a Statute which is
integral part of the United Nations Charter (Article 92). All members of the United Nations are ipso-
facto the members of the Statute of the International Court of Justice. Any State which is not a
member of the United Nations may also become a party of the Statute of the International Court of
Justice on the recommendation of the Security Council and on the conditions laid down by the
General Assembly (Article 93). The International Court of Justice consists of 15 Judges which are
elected by the General Assembly and the Security Council separately. These judges are elected for a
term of 9 years and can also be re-elected after the expiry of their term. All the decisions of the
Court are made on the basis of the majority of the judges. The President of the Court is empowered
to give casting vote in case of a tie.
Law applied by the International Court of Justice

According to Article 38 (1) of the Statute of the International Court of Justice, the Court shall decide
the disputes submitted to it in accordance with International Law and shall use the sources of
international law in the following order:
(1) International conventions;
(2) International customs;
(3) General principles of law recognised by civilised nations; and
(4) Judicial decisions or the works of jurists, etc. as a subsidiary means for determining the rule of
International law.
Ex aequo et bono
Article 38 (2) provides that this provision [i. e., Article 38 (1)] shall not prejudice the power of the
Court to decide a case ex aequo et bono, if the parties agree thereto. As pointed out by Manely O.
Hudson, in a case, where parties agree that the court may decide e. aequo et bono, the provision of
the statute enables the Court to go outside the realm for reaching its decision. But as remarked by
Ian Brownlie, "The exercise of this power, which has not yet occurred, may not be easy to reconcile
with the judicial character of the tribunal."
Binding force of the decisions of the International Court of Justice.-

According to Article 59 of the Statutes of the International Court of Justice, the decision of the court
shall not have a binding force except upon the parties to a dispute and only in respect of a particular
dispute between them.
Jurisdiction
The International Court of Justice is open for all states of the world Only the states may be a party to
any dispute before the Court. Individuals cannot be a party to a dispute before the Court.
International organisations may request the Court, to give advisory opinion on legal matters.
Broadly speaking, the jurisdiction of the Court may be divided into the following two main heads:-
(1) Contentious ; and (2) Advisory.
(1) Contentious Jurisdiction.

Contentious jurisdiction may be further divided into the following two heads:-
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(1) Voluntary jurisdiction, and
(2) Optional Jurisdiction.
The jurisdiction of the Court may be classified into the following categories:
(1) Voluntary Jurisdiction.

In accordance with Article 36 (1) of the Statute of the International court of Justice, the Court has
jurisdiction over all such cases which the parties entrust to it and also those matters which are
expressly mentioned to be within the jurisdiction under the United Nations Charter or under
International Treaties. This type of jurisdiction is called voluntary jurisdiction.
(2) Optional Jurisdiction

Article 36 (2) of the Statute confers optional jurisdiction upon the court which provide that the
existing parties to the Statute may confer compulsory jurisdiction upon the Court by making such
declaration in respect of any other state which also accept similar obligations. This can be done
without any special agreement to the same effect. This is called optional jurisdiction of the Court.
Under this provision, the State party to the Statute may confer compulsory jurisdiction upon the
Court in respect of the following matters:
(i) Interpretation of a Treaty;
(ii) Any question of International Law;
(iii) The existence of any fact which if established would constitute a breach of international
obligation;
(iv) The nature and the extent of the reparation to be made for the breach of an international
obligation.
As pointed out by Prof. Kelsen, the jurisdiction conferred upon the Court under Article 36 (2) is not,
in fact, "compulsory jurisdiction, because for the creation of such jurisdiction the prior consent of
the party is necessary." Judge Hudson, Schwarzenberger and Jessup have also expressed the same
view. As pointed out by P.E. Corbett, "An International legal order without compulsory jurisdiction
come very close to being a contradiction in terms." A of July 1998, sixty states had accepted the
jurisdiction of the Court. Since 1946, the ourt ha: delivered 76 ( seventy-six) Judgments under
contentious Jurisdiction.
(II) Advisory jurisdiction.

The International Court of Justice may also give advisory opinion to the Security Council and the
General Assembly and also to other organs of the United Nations and the specialised agencies of the
United Nations if they are authorised by the General Assembly in this connection.
Article 65 of the Statute of the international Court of Justice provides that the Court may give an
advisory opinion on any legal question at the request of whatever body may be authorised by or in
accordance with the Charter of the U.N. to make such a request.
Article 68 of the Statute further provides that in the exercise of it advisory functions the Court shall
further be guided by the provisions of the present statute which apply in contentious cases to the
extent to which it recognizes them to be applicable.
As pointed out by Dr. Nagendra Singh, advisory opinions of the court are not binding yet they are
authoritative statements of the existing law and their disregard will lower the prestige of the court.
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He has suggested that the advisory jurisdiction of the court should be increased and strengthened.
Since 1946 the World Court has given 24 advisory opinions.
Interim Measures or Relief

Article 41 of the Statute of the International Court of Justice provides that the Court shall have
power to indicate, if it considers that circumstances so require, any provisional measures which
ought to be taken to preserve the respective rights of either party. Further, pending the final
decision, notice of the measures suggested Shill! forthwith be given to the parties and to the
Security Council. Thus the device of interim measures of protection evolved for the purpose of
ensuring interim justice pending the final judgment. However, as pointed out by the International
Court of Justice on September, 11, 1976 in Aegean Sea Continental Shelf case (Greece v. Turkey).The
Court may not indicate interim measures where it finds that the alleged breach if established "is one
that might be capable of reparation by appropriate means."
Preliminary objections.
A party to the dispute before the Court may make preliminary objections. For example, the
defendant state may submit that the matter is within its domestic jurisdiction. In the Interhandel
case (Preliminary objections), the International Court of Justice held that an international dispute
relating to a treaty or custom cannot be regarded as a matter within the domestic jurisdiction of a
state. While giving the final decision in a case, the Court shall not be bound by its decisions on
preliminary objection in that case.
Court's competence for Determination of its own competence.

Article 36, paragraph 6 provides that in the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of the Court. In Fisheries Jurisdiction (U.K. v.
Iceland), the Court held that it had jurisdiction, to decide the case. This case concerned the
declaration of Fisheries jurisdiction by Iceland. Britain filed the case against Iceland but the latter
had contended that the Court had no jurisdiction to decide the case. In Aegean Sea Continental Shelf
case (Greece v. Turkey) decided on 19 December, 1978, the International Court of Justice held that it
had no jurisdiction to entertain the application filed by the Government of the Hellenic Republic (i.e.,
Greece) on 10 August, 1976. In this case, the Minister for Foreign Affairs of the Hellenic Republic
transmitted to the Registrar of the Court an Application instituting proceedings against the Republic
of Turkey in respect of a dispute concerning the delimitation of the continental shelf appertaining to
Greece and Turkey in the Aegean Sea, and the rights of the parties there over. The Government of
Turkey, on the other hand, inter alia, contended that the Court had no jurisdiction to entertain the
application.
Problem of the Enforcement of the Judgments of the International Court of Justice.-

Under Article 94 of the U.N. Charter, the Security Council is empowered to implement the judgments
of the International Court of Justice in case one of the parties fails to implement it and the other
party to the dispute brings the matter to the Security Council. The problem of enforcement of the
judgments of the World Court which came before the U.N. was not experienced by the League of
Nations. For example, in Corfu Channel case, Albania refused to implement the decision of the court.
A similar problem arose in Nuclear Test case.6 This problem also arose when on 15 December, 1979,
the International Court of Justice indicated provisional measures in case concerning United States
Diplomatic and Consular Staff ill Tehran (U.S. v. Iran). The framers of the Charter were of the view
that enforcement of judgments was not the function of the Court and they entrusted this work to
the Security Council. However. as pointed out by Fawcett. except in Corfu Channel case. the problem
of the enforcement never seriously arose and even in that case on the refusal of Albania to pay
compensation. England had confiscated Albanian money in England. The problem of the
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enforcement of judgments of the court has once again assumed serious magnitude in the case
Concerning Military and Para-Military Activities in and Again t Nicaragua (Nicaragua v. U.S.). On
refusal of the U.S. to comply with a decision of the Court. Nicaragua invoked Article 94. paragraph 2
of the U.N. Charter. Thus. "there are not more than a few cases out of many hundreds which have
involved the refusal by the losing party to give effect to an award rendered." Though charter has
empowered Security Council to implement the decision of the court if one of the parties to dispute
before the court it is doubtful whether it will be able to exercise this power effectively if the loosing
party is one of the permanent members of the Security Council or even a member of the U.N. which
has the support of any such permanent member. The case of Nicaragua v. U.S. (1986) is a glaring
example of this.
Contribution of International court of Justice in the development of International Law.

It is one of the functions of the United Nations to make the progressive development of
International Law and its codification. The International Court of Justice as the chief judicial
organisation of the United Nations has done commendable work in this connection. The World Court
has contributed much in the progressive development of International Law. The International Court
of Justice has been able to make the progressive development of International Law in the following
ways:
(i) When there is no International Treaty or Convention a particular point in dispute. the Court. as
provided under Article 38 of the Statute of International Court of Justice can apply the general
principles of law recognised by civilised states and thereby contribute to the progressive
development of International Law.
(ii) It clarifies the vague rule of International Law.
(iii) Although Article 59 of the Statute of the International Court of Justice, undermines or even
prohibits doctrine of precedent by providing that the decision of the Court shall not be binding
except upon the parties to a dispute and only in that dispute. yet Court does not ordinarily deviate
from its past decision.
(iv) By interpreting charter or other treaties.
Reference may be made here to a few cases wherein the World Court has helped the development
of International Law. In Anglo Norwegian Fisheries case, the World Court clarified the law relating to
delimitation of fisheries zone and the method of measurement of territorial sea. In the Corfu
Channel case, the Court clarified the law relating to self-defence in the foreign territory,
intervention, innocent passage through maritime belt. etc. In Nuclear Test case, the Court by
granting an injunction restraining France from conducting planned nuclear tests. made it clear by
implication that a State is not authorised to do anything within its territory if it affects the health and
well-being of other States. That is to say, every sovereign State is free to do whatever it likes within
its territory provided that its acts do not affect the other sovereign States.
In case concerning U.S. Diplomatic and Consular staff in. Tehran (U.S. v. Iran) in 1979, the court
clarified the law relating to diplomatic and consular envoys. especially their immunities.
In case concerning the Continental Shelf (Tunisia/Libya), Judgment dated 2 February, 1982, case
concerning Delimitation of the Maritime Boundary in the Gulf of Main Area (Canada v. U.S.),
judgment of 12 October, 1981. case concerning Continent Shelf (Libya v. Malta), Judgment of 5 June,
1985, the World Court has classified the law relating to delimitation of continental shelf between
adjacent states. In case concerning Military and Para-Military, Activities in and Against Nicaragua
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(Nicaragua v. United States). Judgment of 27 June. 1986. the International Court of Justice has
interpreted the U.N., Charter provisions relating to intervention. The Court has also clarified
customary law relating to intervention.
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3. Discuss the main features of World Trade Organisation.
Background.
Briuon Woods conference held in 1944 was the starting point for a new world order. It was
envisaged that the new world economic order would be organised around three international
institutions –
(i) The International Bank for Reconstruction and Development (IBRD also called the World Bank),
(ii) International Monetary Fund (IMF) and
(iii) International Trade Organisations (I.T.O.).
While the first two institutions were established and exist even today, the third institution i.e. I.T.O.
never came into existence. After the approval of the Governments of the U.S. and the U.K.,
proposals for the establishment of I.T.O. were discussed at an international conference on Trade and
Development first in London in 1946, then at Geneva and finally in Havana in 1947- 1948. A charter
for an I.T.O. was signed by 53 nations. In order to come into force it was required to be ratified by
the member nations. The I.T.O. never came into existence as the U.S. Senate not prepared to ratify
it. So was the case of other countries. The U.S. Senate did not ratify it because it was not prepared to
accept a formal structure of the I.T.O.
On the other hand, U.S., U.K. and some other developed nations were keen to ensure reduction of
trade barriers. Some of the participants in the London Conference on Trade and Development
requested that simultaneously with the continuing discussions of Trade Charter at Geneva, extensive
trade tariff negotiations be started. 23 nations participated in these negotiations and as a result of
this an extensive set of bilateral trade concession were then extended to all participants and were
incorporated in a General Agreement on Tariff and Trade. 1947. Since the Charter of the I.T.O. had
not come into existence, the U.S. and other countries wanted the implementation of the General
Agreement on Tariff and Trade (GATT) as early as possible. Since the implementation of some of the
clauses of GATT required parliamentary approval in some of the countries, the GATT itself could not
be applied with a view to overcome this difficulty a "Protocol of Provisional Application" (PPA) was
signed in the late 1946 by 22 original members of GATT. The Protocol came into effect on January I.
1948 and GATT was applied through this Protocol.
According to the preamble of the GATT the main objectives were to--
(i) raise the standard of living:
(ii) ensure the full employment to increase the volume of real income and effective demand;
(iii) ensure better utilization of resources of the world;
(iv) ensure expansion of production and International Trade.
Since the establishment of the GATT, eight rounds of negotiations to reduce the tariffs and trade
barriers in the trade in goods have been held. These rounds are of negotiations are given below:-
(1) The Geneva Round (1947);
(2) The Amnesty Round C 1949);
(3) The Torguay Round (1950-1951);
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(4) The Geneva Round (1955 - 1956);
(5) The Dilten Round (Geneva) (1960-1961);
(6) The Kennedy Round (1964- 67);
(7) The Tokyo Round (I 73-) 979);
(8) The Uruguay Round (September 1986 to December, 1993).
Uruguay Round.
The Uruguay Round of discussions started in Uruguay in September, 1986 and culminated on
December 15, 1993. Delegations from 117 countries accepted by consensus a GATT World Trade
Treaty to open international markets and to ensure global economic growth into the twentieth
century. The Dunkel Draft Text or Dunkel Package or the Dunkel Draft Act embodying the results of
Uruguay Round of Multi-Lateral Trade Negotiation was released on 20th December, 1991. The
Uruguay Round of Multi Lateral Trade Negotiations were concluded on 15th December, 1993. As
many as 125 countries including India igned the Final Act on April 15, 1994 at Marrakesh (Morocco).
Thus the General Agreement on Tariff and Trade (GATT) 1994 more popularly known as the Dunkel
Agreement, finally emerged as World Trade Organisation (WTO) in 1995.
Establishment of WTO.
A a result of the culmination of Uruguay Round of GATT Negotiations for more than seven years at
Marrakesh (Morocco) on April 15, 1994. The new World Trade Organisation (WTO) which came into
effect on January 1, 1995, replaced the GATT. The world treaty signed by 125 countries including
India was estimated to add an annual $ 235 billion to the world economic income within a decade.
The treaty was expected to boost World Trade by $ 755 billion each year by 2005, i.e., a decade after
it taken effect on 15th April, 1994. Since then two more members joined and by 18th December,
2005 WTO comprised of 150 members. At present it has 159 members.
W.T.O. is in fact the main organ for implementation of Multilateral Trade Agreements. It is the
negotiating forum for the members. It can be regarded as the third economic pillar of World Wide
Trade and Commerce dimensions along with the International Monetary Fund (IMF) and
International Bank for Reconstruction and Development (the World Bank) W.T.O. headquarters are
located at Geneva (Switzerland).
Membership.
There are two types of members.
(i) original; and
(ii) other members.
The original members comprise :
(a) the members of the GAIT as on the date of entry into force of the agreement; and
(b) the European communities which accept this Agreement and the Multi Trade Agreements and of
which schedules of Concessions and Commitments are annexed to the GAIT 1994 and for which also
Schedules of specific Commitments are annex to the General Agreement on Trade in Services.
Besides the original members, other states may accede to this Agreement and the Multilateral Trade
Agreements annexed thereto. The decision on accession is taken by the Ministerial Conference by a
two-thirds majority of the member. The W.T.O. is tending to become universal organisation.
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As on August 19, 2005, there were 148 members of the organisation. Since then two more countries
joined WTO and thus by 18th December, 2005, WTO comprised 150 members.
Withdrawal from Membership.

Any member may withdraw from this agreement by giving a written notice to the Director-General
of the W.T.O. The withdrawal takes effect after the expiry of six months.
Structure.
The W.T.O. consists of following bodies-
(1) The Ministerial Conference.

It is the highest body comprising of the representatives of all members. It IS the executive of the
W.T.O. and carries out function of W.T.O. It meets at least once every two years.
(2) The General Council.

It is also comprised of the representatives of all members. It meets between the meetings or
Ministerial Conference and carries out the functions of the W.T.O.
(3) The Dispute Settlement Body
(4) Trade Policy Review Body
(5) The Committee on Trade and Development, the Committee on Balance of Payment Restrictions
and Committee in Budget and Administration
(6) Bodies provided under the Plurilateral Trade Agreements
(7) The Secretariat.
The Secretariat is headed by a Director-General appointed by the Ministerial Conference. On May

13, 2005. Pascal Lamy was elected the Director General. He took over from Supachai Panit Chipakdi
on September 1,2005.
Functions of W.T.O.
According to Article III of the Agreement following are the functions of the W.T.O.:
i) to facilitate the implementation operation, administration and the promotion of the agreement
(i.e. of 1994) and the Multilateral Trade Agreements and also of the Plurilateral Trade Agreements;
(ii) to provide the forum for negotiations among its members in respect of muliitrade relations,
regarding their matters under the agreements of GATT and also to provide a forum for further
negotiations among its members regarding their multilateral trade relations and a framework for
implementation of the result of such negotiations;
(iii) to administer the rules and procedures governing the settlement of disputes;
(iv) to administer the Trade Policy Review Mechanism (TPRM):
(v) to cooperate with International Monetary Fund (IMF), the International Bank for Reconstruction
and Development [IBRD or the World Bank] and its affiliated agencies to bring about greater
coherence in global economic policy making.
Dispute Settlement Mechanism.

Following are the main stages in settling disputes under the W.T.O. :
(i) Consultation;
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(ii) Establishment of a Panel;
(iii) Report of the Panel;
(iv) Adoption of Panel Report;
(v) Appellate Review before Standing Appellate Body (SAB);
(vi) Implementation.
Meetings of the Ministerial Conference.-

As noted above, the Ministerial Conference meet at least once in every two years. So far it has held
following meetings-
(1) The First Ministerial Conference, 1996 (Singapore).
(2) The Second Ministerial Conference, 1998 (Geneva).
(3) The Third Ministerial Conference, 1999 (Seattle, U.S.)
(4) Fourth Ministerial Conference, November 2001 [Doha (Qatar)].
(5) Fifth Ministerial Conference, September, 2003 [Cancun (Mexico).
(6) The Hong Kong (Sixth) Ministerial Conference (December, 2005).
(7) Seventh Ministerial Conference, 2009 (Geneva).
The 7th Ministerial Conference of WTO was held in Geneva (Switzerland) from 30th November to
December 2, 2009. The general theme for discussion was "me WTO, the Multilateral Trading y t m
and the current Global Economic Environment".
On 30th November, 2009, Pascal Laung urged unity in efforts to conclude Doha Round next day i.e.
December 2, 2009, Ministers showed political energy for ending Doha Round.
In his report to the General Council on 17th November, 2009, Pascal Laung said that while the
upcoming WTO Ministerial Conference would not be a negotiating session, it would be a platform
for Ministers to review the functioning of the House "including Doha Round" to end a number of
strong signal to the world with respect to the entire WTO water front of issues from monetary and
severally to disputes, accession, and for trade, technical a i tan - and inter-national governance.
However, the impasse still remained.
Efforts to remove deadlock occurring at Doha Round of Talks.-

Efforts to end the deadlock that took place at Doha Conference were being made for several years.
The main reason for the deadlock was the reluctance of America to reduce agricultural subsidies .
These efforts were given more importance in May, 2007 when the main members of World Trade
Organisation met at Paris and Brussels. On 17 May, 2007 countries met for trade talk in Economic
Cooperation and Development Organisation. Commission of European Union, Peter Madelson and
American Trade Representative, Susan, Schwah, Indian Commerce Minister Kamal Nath an I Finance
Minister of Brazil, Celso Amories utilized the opportunity of holding talks during such talks.
It may be remembered that Doha talks remained suspended since July 2006. Therefore, in April 2007
Chief Agriculture Treaty negotiator, Crawford Falconer put some ideas before the parties to move
further the issues and proposed that agriculture subsidy be reduced by 19 billion dollar every year.
147

lOMoARcPSD|2265983
According to the Director General of WTO, Pascal Lamy, talk were rapidly proceeding towards
consensus.
But unfortunately there was an upset after some time. Talks among America, European Union,
Brazil, India G-14 proved to be unsuccessful. Secondly, a greater upset occurred when American
Congress refused to enhance the term of Trade Tribunal (TPA). This indicated that Doha talks would
remain suspended until new President was elected in America.
The Chairman of Committee on Agriculture submitted on 11 August, 2008 his report on Ministerial
talk. On 21-29 July talks the Minister-continued talks till late night. In G-7 talks Australia, Brazil,
China. European Union, Japan and India participated in talks. In Green-room session, representatives
of 30 countries participated. Besides, almost every day whole members participated in Trade Talks
of Committee.
In his report of 3rd February, 2009 General Council, Director General. Pascal Lamy told that the
progress made was accepted in informal meetings of 2008. He also said that he was looking forward
with hope the ensuing talks of G-20 in April. On 9 February, 2009 informal meeting of Trade Policy
Review Body, Director-General, Pascal Lamy warned about the progress in trade talk on financial
basis that in view of deadlock every member of WTO's future progress has become very feeble. This
especially applied to developing countries.
As regards agricultural talks, Chairman of Agriculture Talks, Crawford Falconer told the members on
12 February, 2009 that he had started talks with individual representatives of different groups and
that such talks would continue for several weeks.
148

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lOMoARcPSD|2265983

Public International Law

Public International Law (Karnataka State Law University)

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International Public Law

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1. Define International Law. Discuss its nature.

These developments are principally:

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b) Quasi- Norms with Hortatory effect

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d) Moral or Political Precepts;

General and regional rules of international law

According to the judgments in this case:

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2. Briefly explain the origin and development of International Law.

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Medieval period, 5th to 15th Century

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Present-day status of international law

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The same authority went on to say:

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3. What are the theories as to the basis of International Law?

Basis of International Law

(1) Theories as to the Law of Nature

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True basis of International Law

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Some other theories regarding the basis of International Law:

(1) Theory of consent.

Following are the main points of criticism of this theory:-

(iii) It fails to explain the case of recognition of a new State.

(2) Auto-Limitation Theory

(3) Pacta Sunt Servanda

(4) Theory of Fundamental Rights

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Brierly has made the following criticism: -

Influence of Natural Law

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4. Explain the various sources of International Law.

(1) International Conventions / Treaties

(1) International Conventions.

International Treaties may be of following two types-

(a) Law-Making Treaties

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(1) Treaties enunciating the rules of Universal International Law

(2) Those enunciating general principles

(b) Treaty Contracts

(2) International Customs.

Ingredients or Elements of Custom

(i) Evidence of a General Practice accepted as law

(ii) Uniformity and consistency

(iii) Generality of Practice

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(iv)' Opinio juris ncessitatis