Public International Law Study Material

Public International Law
LLB 4 th SEMESTER
PUBLIC INTERNATIONAL LAW
PUBLIC INTERNATIONAL LAW
Harinath J, Radhakrishna ANV and Aravinda Reddy 1

IMPORTANT SHORT QUESTIONS

SL
NO
1 MONISM
2 "A STATE IS AND BECOMES AN INTERNATIONAL PERSON THROUGH RECOGNITION ONLY
AND EXCLUSIVELY" by Oppenheim
3 NATIONALITY
4 EXTRADITION (IMP - DOUBLE CRIMINALITY)
5 FREEDOM OF HIGH SEAS
6 OUTERSPACE TREATY, 1967
7 GIVE AN ACCOUNT OF THE SECURITY COUNCIL AND VETO AND DOUBLE VETO
IMPORTANT LONG QUESTIONS
8 WHAT ARE THE SOURCES OF INTERNATIONAL LAW (CUSTOM IS VERY IMPORTANT)

9 INTERNATIONAL LAW IS NOT LAW IN THE STRICT SENSE (INTERNATIONAL LAW IS THE
VANISHING POINT OF JURISPRUDENCE)
10 RELATION BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW
11 WHAT IS STATE SUCCESSION? EXPLAIN DIFFERENT KINDS OF STATE SUCCESSION
12 MODES OF ACQUIRING STATE TERRITORY
13 EXPLAIN THE PRIVILEGES AND IMMUNITIES OF DIPLOMATIC ENVOYS (IMMUNITY FROM
THE LOCAL JURISDICTION IMPORTANT)
14 DIFFERENTIATE BETWEEN HIGH SEAS, TERRITORIAL WATERS, CONTIGUOUS ZONE AND
CONTINENTAL SHELF
15 EXPLAIN THE PURPOSE AND PRINCIPLES OF UNITED NATIONS
IMPORTANT CASES
16 DE FACTO AND DE-JURE RECOGNITION - BANK OF ETHIOPIA v. NATIONAL BANK OF

EGYPT AND LIGUORI
17 MOB VIOLENCE - INDIRECT STATE RESPONSIBILITY
18 EXTRADITION
19 DIPLOMATIC ASYLUM - COLOMBIA V PERU
20 EXPLAIN THE PRIVILEGES AND IMMUNITIES OF DIPLOMATIC ENVOYS
21 THE INTERNATIONAL LIABILITY FOR DAMAGE CAUSED BY SPACE OBJECTS, 1971
PAPER-II: PUBLIC INTERNATIONAL LAW SYLLABUS

Unit-I: Definition, Nature, Scope and Importance of International Law — Relation of

International Law to Municipal Law — Sources of International Law — Codification.
Unit-II: State Recognition — State Succession — Responsibility of States for International

delinquencies — State Territory — Modes of acquiring State Territory
Unit-III: Position of Individual in International Law — Nationality — Extradition — Asylum

— Privileges and Immunities of Diplomatic Envoys — Treaties – Formation of Treaties -
Modes of Consent, Reservation and termination.
Unit-IV: The Legal Regime of the Seas – Evolution of the Law of the Sea – Freedoms of the
High Seas – Common Heritage of Mankind – United Nations Convention on the Law of the
Seas – Legal Regime of Airspace – Important Conventions relating to Airspace – Paris,
Havana, Warsaw and Chicago Conventions – Five Freedoms of Air – Legal Regime of Outer
space – Important Conventions such as Outer space Treaty, Agreement on Rescue and
Return of Astronauts, Liability Convention, and Agreement on Registration of Space
objects, Moon Treaty - Uni space.
Unit-V: International Organizations — League of Nations and United Nations —

International Court of Justice —International Criminal Court - Specialized agencies of the
UN — WHO, UNESCO, ILO, IMF and WTO.
Suggested Readings: 1. J.G. Starke: Introduction to International Law, Aditya Books, 10th
Edition, 1989. 2. J.I. Brierly: The Law of Nations, Oxford Publishers, London. 3. Ian
Brownlie: Principles of Public International Law, Oxford Publishers, London. 4. S.K.
Kapoor, Public International Law, Central Law Agencies, Allahabad. 5. H.O. Agarwal,
International Law and Human Rights, Central Law Publications, Allahabad. 6 .S.K. Verma,
An Introduction to Public International Law, Prentice Hall of India.

SHORT ANSWERS
1. MONISM.
ANSWER: Monistic theory was pronounced in the Eighteenth Century. It was put forward by two
German scholars Moser and Martens. However, it was not until the nineteenth century that their
concepts were elaborated into a full-fledged doctrine. According to this doctrine, there exists only
one set of the legal system, i.e., the domestic legal order. It has been denied by the exponents of
this theory that International Law is a distinct and autonomous body of law. It followed that there
was obviously no need for international rules to be incorporated into municipal legislation; since
they have been made by the States themselves. The monistic doctrine was later developed in the
early twentieth century by the Austrian jurist Hans Kelsen.
According to monistic theory, municipal law, as well as International Law, are parts of one
universal legal system serving the needs of the human community in one way or the other. In the
opinion of its theorists, the two together form a single legal order. International Law is therefore
indistinguishable from the internal law of States and is of significance only as part of the universal
legal order.
In a pure monist state, international law does not need to be translated into national law. It is
simply incorporated and affects automatically in national or domestic laws. The act of ratifying an
international treaty immediately incorporates the law into national law, and customary
international law is treated as part of national law as well. International law can be directly
applied by a national judge and can be directly invoked by citizens, just as if it were national law. A
judge can declare a national rule invalid if it contradicts international rules because, in some
states, international rules have priority. In other states, like in Germany, treaties have the same
effect as legislation, and by the principle of Lex posterior derogat priori ("Later law removes the
earlier"), only take precedence over national legislation enacted before their ratification.
Features of Monism:
1. The monistic theory was pronounced in the Eighteenth century,
2. Austrian jurist Hans Kelsen has developed this theory in the early twentieth century.
3. According to Monism, there exists only one set of the legal system i.e., the domestic legal
order.
4. International law and Municipal law are the same.
5. Once the International Rule is passed, the nation follows it without any municipal law.
6. In case of contradiction between municipal law and international law, international law will
prevail over municipal law.
2. "A STATE IS AND BECOMES AN INTERNATIONAL PERSON THROUGH RECOGNITION ONLY AND
EXCLUSIVELY" by Oppenheim.
Answer: What is the recognition of State?
1) Introduction:
In the world number of states is not fixed and it is ever-changing. Due to passage of time,
old State disappears or unites with other states to form a new state or disintegrate and split into
several new states; or former colonial or vassal territories may, by a process of emancipation
(free) themselves and attain statehood. It is the process by which a political community acquires
personality in International Law by becoming a member of the family of Nations. Only by
Recognition State becomes a participant.
2) Requirements of Statehood
There is no fixed or commonly agreed that what is the minimum requirement of Statehood

for the existence of State. According to Article 1 of the Montevideo Convention, the minimum
requirements of Statehood are as follows:
(1) Permanent Population
(2) Well Organised Government
(3) Definite or Fixed Territory
(4) Capacity to enter into a relationship or an agreement with other States.
According to Kelsen, a community to be recognised as an international person must fulfil

some conditions such as the community must be a political organization, it should have control
over a definite territory, this control tends towards permanence and community thus constituted
must be independent. But International Law does not provide as to how those essential conditions
are to be determined.
3) Definitions of Recognition:
Recognition can be defined as a formal acknowledgement by an existing member of the

international community of the international personality of a State or political group not hitherto
maintaining official relations with it
a) J. Jessup:
According to J. Jessup, it is a political community acquiring or satisfying the requirements of
statehood, qualifying itself to be the member of the international community.
b) Professor Oppenheim:
"In recognising state as a member of the International community the existing state declares
that in their opinion the new state fulfils the conditions of statehood as required by international
law.
Oppenheim, who is known as the Father of International Law, gave the famous theory of
recognition in international law. The given statement by him has given rise to two theories of
recognition in international law-constitutive theory and declaratory theory. Recognition in his
terms refers to the acknowledgement of one State by another State. However, international law is
soft law and thus does not impose obligations on the States. The constitutive theory has been
adopted by Oppenheim himself and states that a State can come into existence and becomes an
international person only through recognition by other States. This theory was applied widely
during the nineteenth century for coming to a consensus on acceptance of States and was used
last in 1973 to recognize East Germany by the Western powers. The declaratory theory, on the
other hand, states that any State that fulfills the criteria of statehood as per the political definition
is a State. The need for recognition is only an affirmation of existing political territory. It is debated
to remove the element of discretion present in the constitutive theory. But there exists a
substantial debate on the two theories of recognition given the ambiguity in their definitions.
There are two main Theories of Recognition. Viz Constitutive theory and Declaratory Theory
or Evidentiary theory.
1) Constitutive Theory:
Recognition is a process whereby a State is constituted; hence it is called as a constitutive

theory. Hegel is a pioneer of this theory. Which is supported and propounded by Anzilotti,
Holland and Oppenheim.
According to Anzilotti, since the rules of International law have grown up by the common
consent of the States, is a subject of international law comes into being with the conclusion of the
first agreement as expressed by the Treaty of recognition. Such recognition is reciprocal and
constitutive, creating rights and obligations which did not exist before.
According to Holland, a State cannot be said to have attained maturity unless it is stamped
with the seal of recognition, which is indispensable to the full enjoyment of rights which it
connotes.
According to Oppenheim, a State is and becomes an international person through recognition

only and exclusively. According to the Constitutive theory, statehood and participation in the
international legal order are attained by political group only in so far as they are recognised by
established State. According to this theory, recognition gives the rights and duties to recognized
States under international law. The recognition of Poland and Czechoslovakia through the
instrumentality of the Treaty and Versailles lends support to the constitutive theory of
recognition.
Criticism -Jurists have criticized the Constitutive theory. The view of Judge Lauterpacht that there
is a legal duty on the part of the existing States to recognize any community that has in fact
acquired the characteristics of statehood, does not seem to be correct. In practice, the State does
not accept any such obligation. "The practice indicates, however, that although established States
normally recognize new States and new governments that in fact exist, they have not consented
to law norms that obligate them to do so. ”Besides this, the Constitutive theory presents several
other serious difficulties. According to this theory, if a State is not recognized it can have neither
duty nor rights under international law. This is a very absurd suggestion. If we accept this
proposition, it will create difficulties in the case of a new State which is recognized by some States
but not recognized by others. The examples of China and Bangladesh can be cited in this
connection. China was not recognized by America and other Western countries for a number of
years although China possessed all the essential attributes of the State. But to assert that China,
therefore, did not have rights and duties under international law would be an absurd proposition.
Similarly, Bangladesh was not recognised for some time by China, Pakistan, Albania, etc.
However, in support of the constitutive theory, it must be admitted that once a state is recognized
it acquires status and is recognized as such by the municipal courts of the recognising state.
2) Declaratory theory or Evidentiary Theory:

The declaratory theory is also called as an evidentiary theory. The chief exponents of this
theory are Professor Hall, Wagner, Pitt Cobbett, and Brierly. This theory requires evidence/
declaration. It is some sort of confirmation on the already existing State. It is exactly the reverse
process of constitutive theory for example first statehood then recognition.
According to Professor Hall "the State, which is theoretically a political is organized

Community, enters as of right into the family of States and must be treated according to the law as
soon as it can show the marks of statehood no state has a right to withhold recognition when it
was being earned.
According to Brierly the granting of recognition to a new state it is not a 'constitutive' but a
'declaratory' act it does not bring into legal existence a State which did not exist before. A State
may exist without being recognized, and if it does exist in fact then, whether or not it has been
formally recognized by other states, It has a right to be treated by them as a State.

Conclusion
Recognition is the status of Political Community. Constitutive and declarative are the two
main theories of recognition but none of them is perfect. Each theory has its merits and demerits.
There are certain legal effects of recognition and also the consequences of non-recognition.
3. NATIONALITY.
Answer: Definition:
Individuals of a particular nation are supposed to owe allegiance to their States. Such
individuals who owe permanent allegiance to a State are known as nationals of a State.
Nationality may, therefore, be defined as the ‘status of a natural person who is attached to a State
by the tie of allegiance’. Thus, the term ‘nationality’ signifies the legal tie between individuals and
the State. Oppenheim has very rightly stated that the nationality of an individual is his quality of
being a subject of a certain State.
Nationality is the medium through which an individual can enjoy the benefits of International
Law. A State exercises jurisdiction over its nationals, travelling or residing abroad, remain under
its personal supremacy. International Law permits the exercise of such jurisdiction and sets the
limits within which it can be exercised. In Mavrommatis case, the Permanent Court of
International Justice observed that ‘It is an elementary principle of International Law that a State
is entitled to protect its subjects when injured by acts contrary to International Law committed by
another State, from whom they have been unable to obtain satisfaction through ordinary
channels. The right of protection extends to the property of the nationals as well. Further, if a
national of a State is expelled from a foreign State, it becomes the duty of the former to receive
back its nationals. The refusal to receive and the expulsion of a State’s own nationals are
inconsistent with International Law as they may involve a burden on other States which they are
not bound to undertake. Thus, in dealing with any international legal problems involving an
individual, it is always essential to know his nationality, the legal bond which ties him personally
to a given State for many purposes.
The international importance of Nationality

The laws relating to nationality have the following importance under International law:
(1) The protection of the rights of diplomatic agents is the 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 the persons of their nationality. By nationality, we may
mean loyalty towards a particular State.
(4) Nationality may also mean that the national of a State may be compelled to do military service
for the State.
(5) Yet another effect of nationality is that the State can refuse to extradite its own nationals.
(6) According to the practice of a large number of States during the war, enemy character is
determined on the basis of nationality.
(7) States frequently exercise jurisdiction over criminal and other matters over the persons of their
nationality.
Modes of Acquisition of Nationality
A person may acquire the nationality of a State in accordance with the rules of municipal law. It
implies that municipal law determines as to who may be a national of a particular State. Modes of
acquisition of nationality are therefore not uniform. They differ from State to State. Following are
the modes by which nationality may be acquired:-

1. By Birth: Nationality is conferred to a person by many States on the basis of birth. All
those persons whose birth takes place within territorial limits of a State acquire the
nationality of that State. The above principle is called jus soli. The Indian Citizenship Act
of 1955 under Section 3 had provided nationality on the basis of birth. Merely birth in the
territory of India, even though both the parents are foreigners, would make a person an
Indian citizen.
2. By Descent: Nationality of a State may also be acquired by a person on the basis of the
nationality of either parent. Thus a child may become a national of that State of which his
parents are nationals. This principle is known as jus sanguinis. Section 4 of the Indian
Citizenship Act of 1955 provides that a person may be an Indian national on the basis of
the principle of jus sanguinis.
3. By Naturalization: A person may acquire nationality through naturalization in different
ways. They are: through marriage, legitimation, option, acquisition of domicile,
appointment as Government official and grant of application. Adoption of children by
parents who are nationals of the other States also entitles the children to acquire the
nationality of his parents.
4. By Resumption: A person, who has lost his nationality by naturalization or by any other
reasons, may acquire the nationality of the same State again. The acquisition of this kind
is called reintegration or resumption.
5. By Subjugation (the act of defeating country and ruling them): A person may acquire
nationality through subjugation after the conquest. When a part of the territory of a State
or a State itself is subjugated by another State, all the inhabitants of the territory become
the nationals of the latter State.
6. By Cession: when a part of the territory of a State is ceded to another State, all the
nationals of the former acquire the nationality of the latter State.
7. By Option: When a State is partitioned into two or more States, the nationals of the
former State have an option to become the nationals of any of the successor States. The
same principle applies in the case of an exchange of territory.
8. By Registration: A person may acquire the nationality of a State through registration. The
process of registration may be different from one state to another depending upon the
laws of that State.
Modes of Loss of Nationality: A person may lose the nationality of a State in many ways. They are
as follows:
1. By Release: Some States give their citizens the right to ask to be released from their
nationality. Release occurs only when an application is made to that effect, and if it has
been accepted by the State concerned.
2. By Deprivation: A national of a State may be deprived of nationality in case of certain
happenings. Legislation of many States recognizes numerous grounds of deprivation of
nationality. For instance, if a citizen enters into foreign civil or military service without
permission, he may be deprived of his nationality.
3. By Renunciation: A person may renounce his nationality of a State. The question of
renunciation of nationality arises when a person acquires it of more than one State.
4. By Substitution: A person may lose the nationality of a State when he acquires nationality
in some other State by naturalization.
5. By Expiration: A person may lose the nationality of a State by expiration. For instance,
some State has provided by legislation that citizenship expires in the case of such of their
subjects as having left the country and stayed abroad for a certain length of time.
6. By subjugation: A person may lose his nationality through subjugation after the conquest.
When a part of the territory of a State or a State itself is subjugated by another State, all
the inhabitants of the defeated State lose their nationality i.e. creation of Bangladesh.

7. By Cession: when a part of the territory of a State is ceded to another State, all the
nationals of the former lose the nationality.
4. EXTRADITION (DOUBLE CRIMINALITY IS IMPORTANT)

Answer:
Definition
It is quite possible for a person to escape to another State after committing a crime in his own
State. Such cases have started occurring more frequently with the result of the development of
air traffic. A question arises as to whether fugitive shall be tried in the country where he has fled
away or in the State where the crime has been committed. Normally, a State finds itself in a
difficult situation to punish a person who has committed a crime elsewhere primarily because of
the lack of jurisdiction, and therefore, such persons are sometimes surrendered to the state where
the crime has been committed. Surrender of an accused or of a convict is referred to extradition.
Purpose of Extradition
A criminal is extradited to the requesting State because of the following reasons:

1. Extradition is a process towards the suppression of Crime: Normally a person cannot be
punished or prosecuted in a State where he has fled away because of lack of jurisdiction or
because of some technical rules of criminal law. Criminals are therefore extradited so that
their crimes may not go unpunished.
2. Extradition acts as a warning to the criminals that they cannot escape punishment by
fleeing to another State. Extradition, therefore, has a deterrent effect.
3. Criminals are surrendered as it safeguards the interest of the territorial State. If a
particular state adopts a policy of non-extradition of criminals they would like to flee to
that state only. The State, therefore, would become a place for international criminals.
4. Extradition is based on reciprocity. A State which is requested to surrender the criminal
today may have to request for extradition of a criminal on some future date.
5. Extradition is done because it is a step towards the achievement of international co-
operation in solving international problems of a social character. Thus, it fulfils one of the
purposes of the United Nations as provided under Para 3 of Article 1 of the Charter.
6. The State on whose territory the crime has been committed is in a better position to try
the offender because the evidence is more freely available in that State only.
Is Extradition a Legal Duty of a State?
Grotius was of the view that a State of refuge has a duty either to punish the offender or to
surrender him to the State seeking his return. The principle of ‘prosecution or extradition’ was
recognized by him as a legal duty of the State where the offender is found.
A legal duty to surrender a criminal, therefore, arises only when treaties are concluded by the
States and after the formalities have taken place which is stipulated in the extradition treaties.
Only in exceptional cases, a State may extradite a person on the basis of reciprocity. However,
this is done not because of any legal duty on their part, but because of reciprocity or courtesy.
Law of Extradition
In International Law, rules regarding extradition are not well established mainly because
extradition is a topic which does not come exclusively under the domain of International law. Law
of extradition is dual law. It has operation – national and international. Extradition or non-
extradition of a person is determined by the municipal courts of a State, but at the same time, it is
also a part of International law because it governs the relations between two States over the
question of whether or not a given person should be handed over by one State to another State.

Presently, in the absence of any multilateral treaty or Convention, extradition is done by States
on the basis of bilateral treaties. Bilateral treaties, national laws of several States, and the judicial
decisions of municipal courts led to developing certain principles regarding extradition which are
deemed as general rules of International Law. Important amongst them are as follows:
1. Extradition Treaties: The first and the foremost important condition of extradition is the
existence of an extradition treaty between the territorial State and the requesting State.
Some states, such as the United States, Belgium and the Netherlands, require a treaty as
an absolute pre-condition. The strict requirement of an extradition treaty may be
regarded as the most obvious obstacle to international cooperation in the suppression of
crimes.
2. Non-extradition of Political Offenders: It is a customary rule of International Law that
political offenders are not extradited. In other words, they are granted asylum by the
territorial State.
3. The doctrine of Double Criminality: The doctrine of double criminality, also known as dual
criminality, denotes that a crime must be an offence recognized in the territorial as well as
in the requesting State. No person is extradited unless this condition is fulfilled. The
doctrine appears to be based on the consideration that it would offend that conscience of
the territorial State if it has to extradite a person when its own law does not regard him a
criminal. The requesting State would also not ask for the surrender of a person for those
crimes which are not recognized in its State. The doctrine thus satisfies double purpose. It
helps the requesting State to enforce its criminal law, and to the territorial State in the
sense that the rule protects it from fugitive criminals.
The rule of double criminality has put a State into a difficult situation when it has to
request another State for extradition in respect of those offences which do not find a place
in the list of crimes embodied in a treaty. In order to overcome the above difficulty it is
desirable that instead of laying down the names of various crimes specifically in the
treaties, some general criterion should be adopted. For instance, any offence punishable
with a definite minimum penalty under the laws of both the States should eligible a
person for extradition appears to be more appropriate.
4. Rule of Speciality: According to this principle, a fugitive may be tried by the requesting
State only for that offence for which he has been extradited. In other words, the
requesting State is under a duty not to try or punish the fugitive criminal for any other
offence than that for which he has been extradited unless he has given an opportunity to
return to the territorial State. The rule has been made to provide safeguard to the
fugitives against fraudulent extradition. The rule of speciality is an established principle of
international law relating to extradition.
5. Prima Facie Evidence: There should be a prima facie evidence of the guilt of the accused.
Before a person is extradited, the territorial State must satisfy itself that there is a prima
facie evidence against the accused for which extradition is demanded. The purpose of
laying down the rule of prima facie evidence is to check the fraudulent extradition.
6. Time-barred Crimes: A fugitive criminal shall not be surrendered, if he has been tried and
has served sentence for the offence committed in the territorial State. Thus, extradition is
not granted if the offence for which extradition has to be made has become time-barred.
7. Extradition of Own Nationals: In many cases, a person after committing a crime in a
foreign country flees back to his own country. Whether a State would extradite such
persons, i.e., its own nationals, to a State where crime has been committed is a
controversial point and practice of States considerably differs on it. Nationals may be
extradited if there is no bar in the national extradition law or the treaty.
8. Military Offenders: Extradition treaties generally exclude military offences. Broadly,
military offences fall into two categories, i.e., those which constitute offences under
ordinary criminal law and those which relate specifically to military matters. Only the

second category qualifies as military offences in respect of which extradition will not
apply.
9. For religious crimes also persons are not extradited.
10. For extradition, it is also necessary that certain other prescribed formalities should be
fulfilled.
Cases:
Veer Savarkar case (1911): Savarkar was an Indian revolutionary who was being brought to India
to be prosecuted on the ground of crimes which he was alleged to have committed. When the
ship was in the port of Marcelese, Savarkar escaped, but later on, he was apprehended by French
police. But the Captain of the French ship returned Savarkar to the Captain of the British ship.
Sucha Singh’s case: Sucha Singh was accused of murdering Pratap Singh Kairon, the former
Chief Minister of Punjab and had fled away to Nepal and on the request of the Government of
India, the Government of Nepal after starting proceedings against him in accordance with the law
of Nepal, extradited him.
5. FREEDOMS OF HIGH SEAS.

Answer: High Seas: By the term, ‘high seas’ is meant under the customary rule of International
Law that part of the sea which is not included in the territorial waters. The rule was formulated in
1609 by Grotius in his treatise Mare Liberum by arguing that the sea cannot be owned. According
to him ‘the sea is one of those things which is not an article of merchandise, and which cannot
become private property’. Hence, it follows to speak strictly, that no part of the sea can be
considered as the territory of any people whatsoever. However, the regime of the high seas has
been considerably changed under the Convention on the law of the Sea of 1982 which lays down
under Article 86 that all parts of the sea that are not included in the
 Exclusive economic zone
 Territorial sea
 Internal waters of a state
 Archipelagic waters of an archipelagic State (a group of islands).
Thus, the area of the high seas has been substantially reduced under the Convention of 1982.
Freedoms of the High Seas: Under the customary rule of International Law, high seas were free
and open to all States both for coastal and non-coastal States. ‘Freedom of the high sea’ was a
well-recognized principle which means that the high seas being common to all States, no State
may purport to subject any part of them to its territorial sovereignty. Since the open sea is not the
territory of any State, no State, as a rule, has a right to exercise its legislation, administration,
jurisdiction or police over parts of the high seas. Further, since the high seas can never be under
the sovereignty of any State, no State has a right to acquire parts of the high seas through
occupation.
Although the open sea is not the territory of any State, it is nevertheless an object of the law of
nations. Legal order was created through the co-operation of the law of nations and the municipal
laws of such States as possess a maritime flag. The following rules of the law of nations were
universally recognised.
Firstly: That every state which has a maritime flag must lay down rules according to which vessels
can claim to sail under its flags, and must furnish such vessels with some official voucher
authorising them to make use of its flag;
Secondly: Every state has a right to punish all such foreign vessels as sail under its flag without
being authorised to do so;
Thirdly: All vessels with their persons and goods are, whilst on the open sea, considered under the
sway of the flag state;
Fourthly: Every state has a right to punish piracy on the open sea even if committed by foreigners,
and that, with a view to the extinction of piracy, warships of all nations can acquire all subject
vessels to show their flag.

States had freedoms of high seas as to:
1. Navigation,
2. Fisheries,
3. Conducting scientific research,
4. Laying submarine cables and pipelines,
5. Freedom of overflight.
It was established that all vessels, public or private, on the high seas were subject to the
jurisdiction of the State under the flag of which they might sail. The Convention on the Law of the
Sea of 1982 under Article 87 has reaffirmed that the high seas are open to all States, whether
coastal or land-locked. However, its freedom shall be exercised under the conditions laid down by
this Convention and by other rules of International Law.
6. OUTER SPACE TREATY, 1967

Answer:
Outer Space
Outer space may be defined as that area of the universe where the atmosphere of the earth
ends. In other words, where aerial sovereignty of the States ends, outer space begins. It includes
all space above the lowest perigee (the point in the orbit of a satellite at which it is nearest to the
earth) achieved by any satellite put into orbit. Celestial bodies and the moon also form parts of
the space.
Law on Outer Space
The topic of outer space acquired importance in International law when the first Sputnik was
launched in the orbit by the U.S.S.R. on October 4, 1957. Since then a number of manned and
unmanned satellites and probes into outer space and celestial bodies have been launched by some
other States as well. The acts of different States in the outer space led to the United Nations to
make rules and regulations in this part of the universe. The law which has been made to regulate
the relations amongst the States and their relationship with international organizations in the
sphere of outer space, celestial bodies and Moon is called ‘Space Law’.
Outer Space Treaty of 1967:
On December 19, 1966, the General Assembly through a resolution adopted the test of the
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Celestial Bodies. The resolution was adopted unanimously. It is to be
noted that most of the principles included in the Declaration adopted in 1963 were incorporated
in the Treaty. The Treaty was opened for signature on January 27, 1967, and came into force on
October 20, 1967. As of May 2017, 106 States are parties to the Treaty. However, the Treaty is
binding not only to those States which are parties to it but all the States in view of the fact that
the rules regarding the outer space had cropped up as a customary rule of International Law.
The Treaty was a landmark on the road towards the establishment of a legal regime of outer
space. The above Treaty, commonly known as Outer Space Treaty laid down many principles
relating to the activities on outer space, celestial bodies and the Moon. Notable amongst them
are the following:-
1. Freedom of Exploration of Outer Space:
Article 1 of the Treaty provided that Outer Space, including the Moon and other celestial
bodies, shall be free for exploration and use by all States without discrimination of any kind, on
the basis of equality and, in accordance with International Law, and there shall be free access to

all areas of celestial bodies. Article I also provided that the exploration and use of outer space
including the Moon and other celestial bodies shall be carried out for the benefit and in the
interests of all countries, irrespective of their degree of economic or social development, and shall
be the province of all mankind.
2. Non-Appropriation of Outer Space:
While out space is free for the exploration and use for all the States, Article II provided that the
area cannot be appropriated by any State. No State can claim sovereignty over them by means of
use or occupation or by any other means.
3. Peaceful uses of Outer Space:
Part II of Article IV of the Treaty provides that outer space, the moon and other celestial bodies
shall be used by the States exclusively for peaceful purposes. Thus, the establishment of military
bases, installations and fortifications, the testing of any type of weapons and the conduct of
military manoeuvres on celestial bodies shall be forbidden.
4. Jurisdiction of States over Objects Launched:
The Treaty under Article VIII down that a State Party to the treaty on whose registry an object
launched into outer space is carried shall retain jurisdiction and control over them, and over any
personnel thereof while in outer space or on a celestial body.
5. International Responsibilities for National Activities:
The Treaty established the States international responsibility for all national activities in outer
space carried out by both Government and non-governmental agencies. When the activities are
carried on in outer space, by an international organisation, responsibility for compliance with this
Treaty shall be borne by the international organisation and by the State parties to the Treaty
participating in such organisation.
6. Assistance to Personnel of Spacecraft:
Article V of the Treaty provided that State parties to the Treaty shall regard astronauts, as an
envoy of mankind in outer space. They shall render them all possible assistance in the event of
accident, distress or emergency landing on the territory of another State Party. When astronauts
make such a landing, they shall be safely and promptly returned to the State of registry of their
space vehicle.
7. Promotion of International Co-operation in the Use of Outer Space:
Article X of the Treaty provided to the State Parties to the Treaty to consider on a basis of
equality any requests by other State Parties to the Treaty to be afforded an opportunity to
observe the flight of space objects launched by other States.
7. GIVE AN ACCOUNT OF THE SECURITY COUNCIL AND VETO AND DOUBLE VETO.
Answer: Security Council is a principal organ of the United Nations. Chapter V of the Charter
consisting of Articles 23 to 27 lays down the provisions relating to the Security Council.
Composition:
The Council originally consisted of eleven members, but it was enlarged to fifteen members in
1965 in accordance with an amendment to the Charter. Out of fifteen members, five are
permanent members. Their names are mentioned under Article 23, Para 1 of the Charter. They
are China, France, Russia, the United Kingdom and the United States of America.

The other ten members of the Security Council are called non-permanent members. They are
elected by the General Assembly for a term of two years, but each year election of five members
take place when the equal number of members retires after completing the term of two years.
The above system was adopted so that there may not be complete renewal of all the non-
permanent members. According to the last sentence of Article 23, Para 2, a retiring member is not
eligible for immediate re-election, and therefore many States are eligible for the membership of
the Council. Each member of the Security Council shall have one representative in the Council at
all its meetings.
Functions of the Security Council:
Functions of the Security Council may be divided into three broad categories. They are as
follows:-
1. Maintenance of International Peace and Security:
The Maintenance of international peace and security is the primary responsibility of the
Security Council. The power has been conferred to it under Article 24, Para 1 of the Charter.
The Council performs the functions relating to the maintenance of international peace and
security in two ways, i.e., by peaceful means and by taking enforcement action.
A. By Peaceful Means: Chapter VI of the Charter provides the various modes by which the
Council settles the disputes which are likely to endanger international peace and security.
If the Security Council determines that a dispute might endanger international peace and
security, it may take the following measures to settle the dispute:
(i). To call upon the parties to settle the dispute peacefully,
(ii). Investigation of the Dispute,
(iii). Recommendation for the ‘Appropriate Procedures or methods of Adjustment,
(iv). Recommendation for the terms of the settlement,
B. By taking Enforcement Action: Once the Council has determined that there is a threat to
peace or breach of the peace or an act of aggression has been committed, it is empowered
to take enforcement action under Chapter VII of the Charter.
When the Security Council has determined that the threat to the peace, breach of the
peace or any act of aggression exists, it decides as to what measures are to be taken in
accordance with Articles 41 and 42, to maintain or restore international peace and
security. These measures are as follows:
(i). Measures involving non-use of force,
(iii). Measures involving the use of armed force,
2. Miscellaneous Functions:
Besides performing its main responsibility for maintaining international peace and security, the
Council performs a number of other functions which have been conferred to it under the Charter.
Such functions are as follows:
A. Recommending the assembly for admission of a new member,
B. Suspending or expel a member,
C. Control the strategic area of the trust territories,
D. Amendment of Trusteeship agreements,
E. Appointment of Secretary-General of the United Nations,
F. Conveying a special session or an emergency special session of the General Assembly,
G. Establishing subsidiary organs.
3. Functions in Relation to International Court of Justice:
The International Court of Justice is the ‘principal judicial organ’ of the United Nations. The
Court performs its functions in accordance with the provisions of the Statute which is an integral
part of the Charter.

Veto
The United Nations Security Council "veto power" refers to the power of the five permanent
members of the UN Security Council to veto any "substantive" resolution. However, a permanent
member's abstention or absence does not prevent a draft resolution from being adopted. This
veto power does not apply to "procedural" votes, as determined by the permanent members
themselves. A permanent member can also block the selection of a Secretary-General, although a
formal veto is unnecessary since the vote is taken behind closed doors.
Veto Power, Article 27, Para 3 stipulates that the decisions on non-procedural matters shall be
taken on a vote of nine members of the Council including the concurring votes of the permanent
members. It means that no decision can be taken by the Council on such matters if a dissenting
vote is given by any permanent member. It implies that if a permanent member wishes that no
decision should be taken by the Council on any particular issue, it has a power to do so by giving
dissenting vote. Thus, by giving a dissenting vote a permanent member has a power to block the
issue in the Council. In other words, if the concurring vote is withheld by any permanent member
the proposal shall be deemed vetoed, i.e., it could not be validly adopted. This power of the
permanent members is known as the veto power. However, the term 'veto' does not find a place
in the Charter of the United Nations.
The veto power is controversial. Supporters regard it as a promoter of international stability, a
check against military interventions and a critical safeguard against US domination. Critics say
that the veto is the most undemocratic element of the UN, as well as the main cause of inaction
on war crimes and crimes against humanity, and is rendered mostly useless against notable
human rights abuses of larger powers like the United States, China and Russia.
Double Veto
The right of veto may be exercised by the permanent members of the Security Council on two
different occasions.
Firstly, at the time of deciding the nature of matter, i.e., whether the matter is procedural or non-
procedural. If the President of the Council decides that a particular matter is procedural, it
becomes non-procedural if the veto power is exercised on the decision of the President. And
secondly, when the Council is deciding on any non-procedural matter. Thus, a permanent member
first asserts that the matter is not a procedural but a non-procedural matter. It, therefore, makes
a matter non-procedural from procedural by exercising the veto power. When a matter becomes
non-procedural, it may again exercise the veto power at the time of deciding on that very matter.
The combined effect of the above is that the Council cannot take a decision even on procedural
matters if the same has been made non-procedural by the exercise of the right of veto by any
permanent member. The exercise of veto power on two different occasions has been referred to
as ‘double veto’. The right of double veto was exercised by Russia in the Spanish case,
Czechoslovak case, and in the Greek case. In the Formosa case and the Laos case it was attempted
but not actually exercised.
LONG ANSWERS
8. WHAT ARE THE SOURCES OF INTERNATIONAL LAW (CUSTOM IS VERY IMPORTANT)

Answer: it is an obligation on the subjects of International Law to observe the rules of

International Law. A question arises as to from where such rules have come into existence in
International Law? Methods by which these rules have been discovered or created are known as
the sources of International Law. In the absence of any codified law on the sources of
International Law, Article 38 of the Statute of the International Court of Justice has shed some
light on this.
Following are the sources of International Law:
1. Custom: Custom is the original and the oldest source of International Law and at a time it
was the most important amongst the sources. Custom is the foundation stone of the
modern International Law. It was so because a large part of International Law consisted of
customary rules. Oppenheim defines custom as a clear and continuous habit of doing
certain actions which have grown up under the aegis of the conviction that these actions
are, according to International Law, obligatory or right. They evolve through the practices
of and usages of nations and their recognition by the community of nations. Customary
rules are referred to those rules which are practised by most of the States, if not by all,
through ages by way of habit.
Formation of a Customary Rule: Customary International Law results from a general and
consistent practice of States which is followed by them from a sense of legal obligation. A
question arises as to when a general practice or usage is regarded as to have transformed
into a customary rule? Since custom is not a law creating fact customary rules do not grow
up by themselves. It is a necessary condition for the creation of a customary rule that at
least some States should initiate that a particular rule exists.
In order to establish the existence of an international custom, primarily three elements
are required to be present which are duration, continuity and generality.
A. Duration: when a particular usage is practised by the States for a long duration, it has
a tendency to become custom.
B. Uniformity or Consistency: A practice is required to be followed consistently by the
States. In the words of the Permanent Court of International Justice in the Lotus case,
the practice should be ‘constant and uniform’.
C. Generality: It is essential that usage should be practised by most of the States in order
to transform into a custom. The above implies that there is no rule which prescribes
that the consent of all States is a necessary condition for the formation of a customary
rule.
It is an important matter to see as to how international custom will be applied in
international law. There are two leading cases on the point:
(a). West Rand Central Gold Mining Company Ltd. V. R (1905) – In this case, a test
regarding the general recognition of custom was laid down. The Court ruled that for a
valid international custom it is necessary that it should be proved by satisfactory evidence
that the custom is of such nature that it has received general consent of the States and no
civilized State shall oppose it.
In a case concerning Military and Para-military Activities in and against Nicaragua, the
World Court observed:
“If a state acts in a way prima facie incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications contained within the rule itself, then,
whether or not the state’s conduct is, in fact, justifiable on that basis, the significance of
that attitude is to confirm rather than to weaken the rule”.
(b). Right of Passage over Indian Territory case [Portugal v. India]. In this case, the
International Court of Justice pointed out that when in regard to any matter or practise,
two States follow it repeatedly for a long time, and it becomes a binding customary rule.

2. Treaties: At present, international treaties are the most important source of International
Law. Article 38(1)(a) of the Statute of the International Court of Justice lays down that the
Court while deciding any dispute shall apply internal conventions, whether general or
particular, establishing rules expressly recognised by the contesting States, in preference
to other sources of International Law. Treaties, therefore, have acquired dominant
importance in International Law.
3. General Principles of Law Recognised by the Civilized Nations: Although custom and
treaties are in practice the principal sources of International Law, they cannot be regarded
as its only sources. General principles of law recognised by civilized nations were inserted
under Article 38(3) of the Statute of the Permanent Court of International Justice. The
same text has been included under Article 38(1)(C) of the Statute of the International
Court of Justice.
Examples of principles which have been recognised are good faith, reciprocity,
presumption, estoppel and res judicata.
4. Judicial Decisions: Judicial decisions are the subsidiary means for the determination of
rules of law and they, therefore, are the subsidiary and indirect source of International
law. It is so because the decisions of the courts do not create any precedent. They have
no binding force except to the parties to a particular case. However, ‘subsidiary’ does not
mean secondary. In many areas of international law judicial decisions constitute the best
means of ascertainment of what the law is.
5. Writings of Jurists: The Statute of the International Court of Justice lays down that the
teachings of the most highly qualified publicists of the various nations are a subsidiary
means for the determination of rules of law.
6. Equity: The term, as a source of International Law, is used in the sense of considerations
of fairness, reasonableness and policy often necessary for the sensible application of the
more settled rules of law.
7. Resolutions of the General Assembly: Resolutions of the General Assembly of the United
Nations do not possess legal character, and as such are not binding on the States. They do
not create any legal obligations on its members irrespective of the fact that they have
been adopted unanimously or by overwhelming votes or even if their contents are matters
of common interest to all the States.
9. INTERNATIONAL LAW IS NOT LAW IN THE STRICT SENSE (INTERNATIONAL LAW IS THE
VANISHING POINT OF JURISPRUDENCE).
Answer: There is a controversy as to the true nature of International law. Some jurists regard it as
a law while some other jurists argue in negative and hold that International law is not a true law.
Meaning: The expression ‘International Law’ was coined for the first time by Jeremy Bentham in
1780. The term International Law is synonymous with the term law of nations. It is a body of rules
and principles which regulate the conduct and relations of the members of the international
community. International law is the set of rules generally regarded and accepted as binding in
relations between states and nations. It serves as the indispensable framework for the practice of
stable and organized international relations. International law differs from national legal systems
in that it primarily concerns nations rather than private citizens.
Aim of International Law: International law aims to achieve:-

 International peace and security and

 Promotion of friendly relations among the member states (the members of the
International Community i.e. United Nations).
Definition: It is very difficult to define International Law. There are many definitions given by the
scholars, subject experts and international jurists. Prominent among them are given below:
 Prof. L. Oppenheim- Law of Nations or International Law is the name for the body of
customary and conventional rules which are considered legally binding by the civilized
states in their intercourse with each other.
 J.L. Brierly- The Law of Nations or International Law may be defined as the body of rules
and principles of action, which are binding upon civilized states in their relations with one
another.
 Torsten Gihl- The term International Law means the body of rules of law, which apply
within the International Community or society of Sates.
 In Queen v. Keyn, 2 Ex. D. 63, 153, 154 (1876). LORD COLERIDGE, C.J., defined International
law in the following words: “The law of nations is that collection of usages which civilized
States have agreed to observe in their dealings with one another.”
 Gray says International law or the Law of Nations is the name of a body of rules which
according to their usual definitions regulate the conduct of states in their intercourse with
each other.
Public and Private International Law: International law may further be broken down as
public or private. Public International law covers the rules, laws and customs that govern and
monitor the conduct and dealings between nations and/or their citizens. The UN deals largely with
public international law. Private International law (Conflict of laws) handles disputes between
private citizens of different nations.
Public international law concerns the treaty relationships between the nations and persons
which are considered the subjects of international law. Norms of international law have their
source in either:
 Custom, or customary international law (consistent provincial practice accompanied by
opinio Juris),
 Globally accepted standards of behaviour (peremptory norms known as jus cogens or ius
cogens), or
 Codifications contained in conventional agreements, generally termed treaties.
Article 13 of the United Nations Charter obligates the UN General Assembly to initiate studies and
make recommendations which encourage the progressive development of international law and
its codification. Evidence of consensus or state practice can sometimes be derived from
intergovernmental resolutions or academic and expert legal opinions (sometimes collectively
termed soft law). Public International Law is commonly known as International Law or Law of
Nations. As discussed earlier, it regulates the relations among the members of the international
community which includes individuals also.
Private International Law , on the other hand, is that branch of International Law, which
determines or decides law applicable to the disputes or issues involving more than one nation and
determines the court having jurisdiction to decide the issue. Private International Law is
essentially a part of municipal law. Dicey calls it ‘Conflict of Laws’ since it deals with rules
regulating cases in which municipal laws of different states or nations come into conflict. Such

conflicts may arise with regard to domicile, marriage, divorce, wills, contracts etc. Hence, its also
called as inter-municipal law.
Is International Law a True Law….? There had been a great controversy as to the question,
whether international law is a law or not. Some answered the question in affirmative while others
in negative. These two views can be explained as under-
Not a Law- Supporters of this view are-
 John Austin- a leading English writer on Jurisprudence answered the question in negative.
According to him, International Law is not a true law, but a code of rules and conduct of
moral force only. He holds that International Law is no law as it does not emanate from a
law giving authority and has no sanction behind it. Austin described International Law as
positive international morality consisting of opinion or sentiments current among nations
generally.
 Hobbes and Pufendorf- also answered the question in negative by saying that there is no
positive law of nations properly invested with true legal force and binding as the
command of a superior.
 Holland- observed that International Law differed from ordinary law and not supported by
the authority of a state. According to him, the law of nations is but private law ‘writ large’.
In this view of the matter, he called “International Law as the vanishing point of
Jurisprudence”. According to him, rules of International Law cannot be kept into the
category of law because it lacks sanction, which is an essential element of municipal law.
 Jeremy Bentham and Jethro Brown are the other prominent jurists who also deny the legal
character International Law.
International Law Is a Law- supporters of this view are-
 Hall and Lawrence, on the other hand, answered the question in affirmative. According to
them, International Law is habitually treated and enforced as law, like certain kind of
positive law; it is derived from custom and precedent which form a source of International
Law.
 Pitt Cobbett observed that International Law must rank with the law and not with
morality.
 Sir Frederick Pollock writes the only essential conditions for the existence of law are the
existence of political community and the recognition by its members of settled rules
binding upon them in that capacity. International Law seems on the whole to satisfy these
conditions.
Thus it is clear from the above discussion that the solution for the above question depends
upon the definition of law, which one may choose to adopt.
10. RELATION BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW.

Answer:
Introduction:

Apparently, there seems no relationship between international law and municipal law. But if
examined with philosophical eve then it would seem that there is a relationship between both the
legal orders. The test to observe the relationship between the two systems may be conducted in
case of a conflict between the two legal orders. The situation would arise that what law shall be
applicable to the case in question.
Relationship between Municipal Law and International Law :
As to the relationship between Municipal Law and International Law, there are many theories the
most prominent ones of which may be discussed as under:
1. Dualistic theory:
Dualists emphasize the difference between national and international law and require the
translation of the latter into the former. Without this translation, international law does not exist
as law. International law has to be national law as well, or it is no law at all. If a state accepts a
treaty but does not adapt its national law in order to conform to the treaty or does not create a
national law explicitly incorporating the treaty, then it violates international law. But one cannot
claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot
apply it. National laws that contradict it remain in force. According to dualists, national judges
never apply international law; only international law that has been translated into national law
will be applied.
According to the dualist view, the systems of International Law and Municipal Law are separate
and self-contained to the extent to which rules of the one are not expressly or tacitly received into
the other system. In the first place, they differ as regards their sources. The sources of Municipal
Law are customs grown up within the boundaries of the State concerned and statutes enacted
therein while the sources of International Law are customs grown up within the Family of Nations
and law-making treaties concluded by its members. In the second place, Municipal Laws regulate
relations between the individuals under the sway of a State or between the individuals and the
State while International Law regulates relations between the member States of the Family of
Nations.
Lastly, there is a difference with regard to the substance of the law in as much as Municipal Law
is a law of the sovereign over individuals while International Law is a law between sovereign
States which is arrived at an agreement among them. The latter is, therefore, a weak law
2. Monistic theory:
Monists assume that the internal and international legal systems form a unity.
Both national legal rules and international rules that a state has accepted, for example by way of
a treaty, determine whether actions are legal or illegal. In most monist states, a distinction
between international law in the form of treaties, and other international law, e.g. jus cogens is
made. International law does not need to be translated into national law. The act of ratifying
international law immediately incorporates the law into national law.
A judge can declare a national rule invalid if it contradicts international rules because, in some
states, the latter has priority. In other states, like in Germany, treaties have the same effect as
legislation, and by the principle of lex posterior, only take precedence over national legislation
enacted before their ratification.

In its most pure form, monism dictates that national law that contradicts international law is
null and void, even if it predates international law, and even if it is the constitution. It maintains
that the subject of the two systems of law namely, International Law and Municipal Law are
essentially one in as much as the former regulates the conduct of States, while the latter of
individuals.
According to this view, the law is essentially a command binding upon the subjects of the law
independent of their will which is one case in the States and the other individuals.
According to it International Law and Municipal Law are two phases of one and the same thing.
The former although directly addressed to the States as corporate bodies are as well applicable to
individuals for States are only groups of individuals.
3. Transformation Theory:
According to this theory, it is the transformation of the treaty into national legislation which
alone validates the extension to individuals of the rules set out in international agreements. The
transformation is not merely a formal but substantial requirement. International Law according to
this theory cannot find a place in the national or Municipal Law unless the latter allows its
machinery to be used for that purpose.
This theory is fallacious (based on a false idea, in-correct or wrong) in several respects.
1. In the first place, its premise that International Law and Municipal Law are two distinct
systems is incorrect.
2. In the second place the second premise that International Law binds States only whereas
municipal law applies to individuals is also incorrect for International Law is the sum of the
rules which have been accepted by civilized states as determining their conduct towards
each other and towards each other’s subjects.
3. In the third place, the theory regards the transformation of treaties into national law for
their enforcement. This is not true in all cases for the practice of transforming treaties into
national legislation is not uniform in all the countries. And this is certainly not true in the
case of law-making treaties.
4. Delegation Theory:
According to this theory, there is the delegation of a right to every State to decide for itself
when the provisions of a treaty or convention are to come into effect and in what manner they are
to be incorporated in the law of the land or municipal law. There is no need for transformation of
a treaty into national law but the act is merely an extension of one single act. The delegation
theory is incomplete for it does not satisfactorily meet the main argument of the transformation
theory. It assumes the primacy of international legal order but fails to explain the relations
existing between municipal and international laws.
It is settled by the leading English and American decisions that International Law forms part of
the municipal law of those countries. The United States has unambiguously applied the doctrine
that International Law is part of the law of the land.
All international conventions ratified by the USA and such customary International Law as has
received the assent of the United States are binding upon American Courts even if they may be

contrary to the statutory provisions. There is a presumption in cases of conflict that the United
States Congress did not intend to overrule International Law.
11. WHAT IS STATE SUCCESSION? EXPLAIN DIFFERENT KINDS OF STATE SUCCESSION.
Answer: ‘State succession’ is meant the substitution of one State by another over territory. It
signifies the transfer of rights and duties from one international person to another in consequence
of a territorial change. Oppenheim lays down that ‘a succession of international persons occurs
when one or more international persons take the place of another international person, in
consequence of certain changes in the latter’s condition. The Vienna Convention on Succession of
States in Respect of Treaties of 1978 defines State succession likewise by stating under Article 2(1)
(a) as the replacement of one State by another in the responsibility for the international relations
of territory. Thus, a case of succession arises only when one subject of International Law enters
into rights of another.
The definition applies to all the cases of State succession except to that of mandate or trust
territory when it is not sovereignty but a special type of legal competence is replaced. A State
which has replaced another is called the ‘Successor State’, or in some case ‘new State’. However,
the expressions ‘Successor State’ and ‘new State’ are not synonymous. The former is wider in the
application. The term ‘new State’ signifies a State which has arisen from succession were a
territory, which previously formed part of an existing State, has become an independent State.
The State which has been replaced is known as the ‘parent’ of ‘Predecessor State’.
Kinds of State Succession:

State succession may occur in a number of ways, for instance, dismemberment of an existing
State, secession, annexation, cession, merger and decolonization of all or parts of an existing
State. The above may be divided broadly into universal succession and partial succession.
1. Universal Succession:
In cases where the personality of the Predecessor State is completely destroyed and is
absorbed by another international person, the succession is termed ‘universal’ or total. It may
take place either through a voluntary merger or through annexation or subjugation. Thus, it was
total succession when Prussia annexed Hanover in 1866 or the South African Republic was
annexed by Great Britain in 1901, Korea by Japan in 1910, Austria by Germany in 1938. Universal
succession also takes place when a State voluntarily merges with another State. Unification of
Germany with the result of the merger of German Democratic Republic with the Federal Republic
of Germany in 1990 is an instance of universal succession.
2. Partial Succession:
When a part of the territory is severed from the parent State and personality is affected only to
the extent by which the territory is transferred, what results is partial succession. Partial
succession takes place, for instance, either by succession, i.e., separation from the parent State, or
by cession, or by conquest and annexation of a part, or by dismemberment i.e., when a State is
replaced by two or more States. The secession of Estonia, Latvia and Lithuania in 1991 from the
U.S.S.R. of Slovenia and Croatia from Yugoslavia in 1992, creation of Bangladesh by severing part
of Pakistan and South Sudan from Sudan in 2011 are the examples of partial succession. Further,
replacement of the Soviet Union by 12 sovereign States in December 1991 and the replacement of
Czechoslovakia by the Czech Republic and the Slovak Republic on January 1, 1993, are the
examples of the partial succession.
It is to be noted that in both types of State succession there is a common factor, i.e., one or
more sovereigns substitute for another, and therefore, the distinction is merely an abbreviated
way of defining the extent of the change and the transmission of the rights and obligations of the
old State to the new State.

12. MODES OF ACQUIRING STATE TERRITORY

Answer: Acquisition of a territory by a State means the acquisition of sovereignty over such
territory. An existing State may acquire the territory which may already be under the sovereignty
of another State or which may not belong to any State, i.e., res nullius. While the former is called
the derivative mode of acquisition wherein acquisition enlarges the territory of one State and
which inversely is the loss of another State, the latter is called original mode of acquisition
wherein territory of one State is enlarged without the loss of the territory by another State.
Following are the different modes by which a State may acquire territory:-
1. Occupation:
The term ‘occupation’ has been derived from the Roman term occupation which means the
acquisition of res nullius, i.e., a territory capable of being brought under territorial sovereignty but
not yet so brought. In the same way, occupation in International Law means an act of
appropriation by a State over a territory which does not belong to any other State. Such territory
may be uninhabited such as an island, or maybe inhabited by persons whose community is not
considered as a State.
Possession and Administration are the two essential factors required to constitute an effective
occupation. For possession, the territory must be taken under the state’s sway (corpus) and with
the intention of acquiring sovereignty over it (animus). Possession generally involves a settlement
and some sort of formal act which announces and shows the intention of the occupying state.
After taking possession, the state has to establish an administrative system within a reasonable
period of time. Administrative function is necessary because only then is the possessor state
exercising sovereignty over the territory.
2. Annexation:
By the term, ‘annexation’ is meant the forcible acquisition of territory by one State at the
expense of another. When a State annexes the territory-either entire territory or a part of it, it
establishes its sovereignty over the annexed territory. In contrast to other methods of acquiring
territorial sovereignty or acquisition by an international legal transaction, the element of force
plays a decisive role. An annexation can only be said to have taken place when not only the
territory in question has been occupied but also the intention to appropriate it permanently has
been shown. The intention may be indicated by making some notification to annex the territory
and the same must be recognized by several other powers.
3. Accretion:
Accretion is the name for the increase of land through new formations. Such new formations
may be only a modification of the existing state territory, for instance, where an island rises within
a river or a part of a river, which is totally within the territory of one and the same State; and in
such case, there is no increase of territory to correspond with the increase of land. New formation
through accretion may be artificial or natural. They are artificial if they are the outcome of human
work. They are natural if they occur through the operation of nature, and within the sphere of
natural formations different kind must again be distinguished –namely, alluvions (adding to the
area of land by deposition), deltas, new-born islands and abandoned river-beds.
4. Prescription:
Prescription is the acquisition of territory by an adverse holding continued for a certain length
of time peacefully. If a State exercises control over a territory continuously for a long time
without any interruption and possess it de facto, the concerned territory becomes a part of that
State. The mode is known as a prescription. Before the acquisition of a territory could be made

through prescription, three conditions are required to be satisfied. Firstly, possession of territory
should be peaceful and without any interruption. Secondly, it should be continuous, and thirdly,
possession should be held fairly for a long time.
5. Cession:
Cession is the transfer of sovereignty over a definite territory by one State to another State.
Oppenheim defines cession of State territory as the transfer of sovereignty over State territory by
the Owner State to another State. The State to whom the territory is transferred is called
acquiring State, and the State which allows transferring its territory is referred to as ceding state.
6. Award:
Territory may be acquired by a state through adjudication by judicial organs such as
International Court of Justice, ad hoc arbitral tribunals or conciliation commissions. If a given
territory, which is a part of one State, and later, after an objection is raised by another State, is
submitted to the judicial organ for settlement which gives the award in favour of the latter, the
title is regarded as to have passed through the award.
7. Plebiscite:
A State may also acquire territory if the inhabitants of a given territory wish to merge it with
another State. It may be noted that the question of ascertaining the wishes of the people arises
where there is a dispute as to the status of a given territory.
8. Lease:
The territory may also be acquired through a lease. A State may give its territory to another
State under lease for a certain period. In the Panama Canal’s case, a lease was granted to the
United States in perpetuity. The United States was given the occupation and control of the area
concerned over and below the surface for the construction and protection of the canal.
9. Pledge:
Sometimes there arise certain circumstances under which a State becomes compelled to pledge
a part of its territory in return of some amount of money for which it is in dire need. In this case,
also, a part of sovereignty over the territory concerned is transferred. For example, in 1768, the
Republic of Geneo had pledged the island of Corsica to France.
10. Acquisition of territorial sovereignty by newly emerged State:

Yet another method of acquiring territorial sovereignty is that of a newly emerged State. This is
particularly true of those States who were previously the colonies of some States and later on
were liberated.
Modes of loss of state territory:

Acquisition of a State territory by one State, except in the case of occupation, is a loss of State
territory for another State. Thus, a State may lose territory by:
1. Secession,
2. Grant of Independence by the Metropolitan State,
3. Dereliction (or Abandonment or Relinquishment),
4. Vanishment (or Disappearance).
5. Prescription.
6. Revolt.
7. Subjugation.

13. EXPLAIN THE PRIVILEGES AND IMMUNITIES OF DIPLOMATIC ENVOYS (IMMUNITY FROM THE
LOCAL JURISDICTION IS IMPORTANT)
Answer:
The system of appointment of an agent to act as representative of king or ruler, for the purpose
of doing work in other countries or to perform some function has been in vogue from time
immemorial.
This is the system in the international world, this type of person is known as 'DIPLOMATIC
REPRESENTATIVE' or 'DIPLOMATIC AGENT'. Special importance is given to such person in
international law. Such type of person has many immunities and privileges. And having some
duties which are understood by a brief explanation as following as under-
CLASSIFICATION OF DIPLOMATIC AGENT-The diplomatic agent has been classified according to
their status and functions, it was again dropped by 1961 convention on Diplomatic relations.
The classification of diplomatic envoys is as follows:

1)-AMBASSADORS AND LEGATES- Ambassador and legates are the diplomatic agents of the first
category. They are the representatives of the completely sovereign states. They are either
appointed as ambassador or permanent representative of their respective countries in the United
Nations. The representatives appointed by the pope are called legates.
2)-MINISTERS PLENI-POTENTIARY AND ENVOYS EXTRAORDINARY-Minister - pleni-potentiary and
envoys extraordinary are the diplomatic agents of the second category and as compared to the
diplomatic-agents of the first category, they enjoy less privilege and immunities.
3)-CHARGE D’AFFAIRES-Charge-d-affairs are the diplomatic agents of the last category. The main
reason for this is that they are not appointed by the head of the state. They are appointed by the
foreign ministers of states. In right and status, they are considered below the minister resident.
It was made clear in Article-14(2) of the Vienna Convention on diplomatic relation that apart
from precedent and etiquette, there is hardly any difference between the diplomatic agents of the
above-mentioned categories. Obviously, there is no difference so for as their privilege and
immunity are concerned.
Basis of Diplomatic immunity and privileges

Different international jurists have divergent views as to the basis for giving immunities to
diplomatic agents. Their views led to the emergence of three important theories which are as
follows:
 Extra-territorial Theory: This theory is also known as the fictional theory. According to this
theory, diplomatic agents are considered not be within the territorial jurisdiction of the
State to which they are accredited, but to all times within that of the sending State. Extra-
territorially of diplomatic agents means that though diplomats physically present upon the
soil of the country to which they are accredited but they remain for all purposes on the
soil to which they represent.
 Representational Theory: According to this theory, diplomatic agents are regarded as
personal representative of the sovereign of the sending State. Therefore, they are given
the same degree of privileges and rights which are given to the head of the sending State.
 Functional Theory: According to this theory, diplomatic agents are given immunities
because of the nature of their functions. The duties which the diplomats perform are far
from easy. In other words, their actions of duties are of typical or some special nature.
They are allowed immunities from the legal and other limitations of the State to which
they are accredited to effectively perform the tasks they are allotted.
IMMUNITIES AND PRIVILEGES OF DIPLOMATIC AGENTS-Several immunities and privileges have

been given to diplomatic agent under international law. S.S.DHAWAN has considered these
immunities and privileges the main base of international law. These immunities and privileges are
as follows-
1) – INVIOLABILITY (incapable of being violated) – It is a well-recognised principle of international

law that the person of Envoys in regarded inviolable. In international law, diplomatic agents have
been given sufficient personal security. This immunity is recognised under Vienna convention
1961. In Article 29 of the said convention, it has been said that "Diplomatic agents will enjoy
physical inviolability. He will not be liable to any form of arrest or detention. Honourable
treatment will be given to him by taking or keeping state and every effort shall be made to
maintain his freedom and reputation as intact."
But if the behaviour and conduct of diplomatic agent are found to be objectionable and if a charge
is imposed upon him of interference in internal affairs of keeping state, then he may be declared
as PERSONA NON GRATA and may be asked to leave the country (Article- 9 and 43 of Vienna
convention 1961), Indian diplomatic agent in Pakistan RAJESH MITTAL was tortured by officers of
an intelligence agency of Pakistan on 25th may 1992 and with the result, India declared two
Pakistani diplomatic agents in India as PERSONA NON GRATA and was asked to leave India is a
good example of this.
2)-IMMUNITY FROM CIVIL ADMINISTRATIVE JURISDICTION- It is a well-established principle of

international law that the diplomatic agents enjoy immune from civil and administrative
jurisdiction.
Under this immunity:-
1)- no suit can be filed against the diplomatic agent for recovery of debt.
2)- he cannot be arrested in action for debt recovery.
3)- his property cannot be ceased and sold.
3)-IMMUNITY FROM CRIMINAL JURISDICTION -Diplomatic agents have also been given immunity
from criminal jurisdiction. Under Article 31 of Vienna convention 1961, it has been provided that
"diplomatic agents shall be immune from the criminal jurisdiction of the state". It means that the
keeping state shall not prosecute and penalise any diplomatic agent under any circumstance. Even
he cannot be arrested. But it does not mean that he can behave as he likes in keeping state. It is
his duty that he should obey all rules and laws of keeping state and should not do such an act
which is inconsistent with the internal system of keeping state. If any misconduct is done by him,
the keeping state may suspend him and ask him to leave the country.
For example- in 1995 the first secretary sultan Mahmood Dehadar in Afghan embassy was
suspended by government of India in Delhi in consequence of criminal charge and misconduct and
was sent back to Afghanistan. This immunity is not available to children and relatives of diplomatic
agents who are not residing with them.
4)-IMMUNITY REGARDING RESIDENCE-There is the inviolability of residence of a diplomatic agent.

Entry in house and even his house cannot be searched. If there is any person hidden in his house
to whom the police want to arrest, normally the diplomatic agent surrenders such person to the
police.
5)-IMMUNITY FROM GIVING EVIDENCE IN THE COURT-Diplomatic agent is immune from
presenting himself for giving evidence in the courts. He cannot be made bound for giving evidence
in the court. In Article-31(2) of Vienna convention, it has been said: "NO DIPLOMATIC AGENT WILL
BE MADE BOUND FOR GIVING evidence IN A COURT AS WITNESS". But if any diplomatic agent
wants to give evidence at his own then he will be allowed to present himself in a court for giving

evidence.
6)-IMMUNITY FROM PAYMENT OF TAXES-In international law, the diplomatic agent is immune
from payment of taxes and customs duties. According to Article 34 and 36 of Vienna convention
"A DIPLOMATIC AGENT SHALL BE IMMUNE FROM PAYMENT OF ALL TYPES OF TAXES AND DUTIES".
But if any diplomatic agent wants to pay taxes in exchange for enjoyment of facilities of water and
electricity he will be allowed to pay. But if he does not pay any tax, no legal action will be taken
against him.
7) - IMMUNITY FROM POLICE RULES AND REGULATIONS-Diplomatic agents are immune from
police rules and regulations. If he obeys these rules: it will be treated as his good manners towards
the state for maintenance of good relations.
8)-RIGHT OF WORSHIP AND DEVOTION TO GOD- Diplomatic agent have the right to worship
according to his own consciousness is his embassy. But he does not enjoy the right to preach his
own religion and to make the citizens of keeping states bound to participate in his worship and
devolution.
9)-IMMUNITY FROM LOCAL AND MILITARY OBLIGATIONS- According to Article-35 of Vienna
convention 1961, the diplomatic agent has been immune from local and military obligations.
10)-RIGHT TO EXERCISE CONTROL AND JURISDICTION OVER THEIR OFFICERS AND FAMILIES.
11)-FREEDOM OF COMMUNICATION FOR OFFICIAL PURPOSE-This freedom has been conferred
upon by Article-27 of Vienna convention on the diplomatic relations, 1961. This Article provides
that they have the freedom to communicate with their home-state in connection with their
functions and duties.
12)-RIGHT TO TRAVEL FREELY IN TERRITORY OF THE RECEIVING STATE- This new right has, for the
first time been introduced in Article-26 of the Vienna Convention on Diplomatic relations, 1961.
Article 26 provides that diplomatic agents can travel in the territory of the receiving state subject,
of course, to the condition that they cannot go to the prohibited places or the places which are
important from the point of view of the security of the receiving state.
13)-IMMUNITY FROM SOCIAL SECURITY PROVISIONS-According to Article 33, a diplomatic agent
shall with respect to services rendered for the sending State be exempt from social security
provisions which may be in force in the receiving state.
14)-IMMUNITY FROM INSPECTION OF PERSONAL BAGGAGE-Article 36(2) of Vienna convention
1961 provides that the personal baggage of a diplomatic agent be exempt from inspection.
14. DIFFERENTIATE BETWEEN TERRITORIAL WATERS, CONTIGUOUS ZONE, CONTINENTAL SHELF

AND HIGH SEAS.
Answer:

Territorial Sea (formerly called as the Territorial Waters/Maritime Belt)

The sovereignty of the State is confined not only to the waters and land lying within its
boundaries. It also extends to a part of the sea which is adjacent to the coastal State. These
waters are contained in a certain zone or belt called ‘Marginal Zone’ or Marginal Belt’ and the
rights which the coastal states enjoy are called the maritime rights. Territorial sea, therefore, may
be defined as that part of the sea which is adjacent to the coast and over which International Law
permits the coastal States to exercise sovereignty subject only to a general right of innocent
passage on the part of foreign shipping. The possession of this territory is neither optional, nor
dependent upon the will of the State, but compulsory. It is different from the internal waters in
the sense that internal water lies within the boundaries of the State, and they are used exclusively
by the States themselves. Right of innocent passage is not available with respect to internal
waters. It is also different from the high seas which are free to the commerce and navigation of all
the States. The Convention on the Law of the Sea of 1982 has laid down that ‘the sovereignty of a
coastal State extends’ beyond its land territory and internal waters to an adjacent belt of the sea is
described as the territorial sea’.
Two important aspects are involved in the concept of the territorial sea. They are the breadth
of the territorial sea and the rights of States over the territorial sea.
1. The breadth of Territorial Sea: Although it has been generally accepted that the State
exercises sovereignty over territorial waters, controversy arises as to its breadth.
Customary international law does not prescribe any definite rule in this regard. The extent

of the territorial jurisdiction was based on the ‘Cannon shot’ rule. Since a cannonball
could travel three miles, this became the accepted territorial waters limit.
However, Convention of 1982 has settled the controversy by providing under Article 3,
that every State has the right to establish the breadth of its territorial sea up to a limit not
exceeding twelve nautical miles measured from baselines. The breadth of the territorial
sea as provided under the Convention on the Law of the Sea of 1982 is acceptable to most
of the States. About 90 States including India have adopted legislation extending the
maximum breadth of the territorial sea to twelve nautical miles. Article 15 of the 1982
Convention lays down that in those cases where the coasts of two States are opposite or
adjacent to each other, 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. The above rule is subject to the
exception of cases of historic title or other special circumstances to delimit the territorial
seas of the two States in a way which is at variance therewith.
2. Rights of States over Territorial Sea: although the coastal State exercises sovereignty over
the territorial sea, certain rights are also exercised by other States.
A. Rights of Coastal States: the sovereignty of the coastal States extends to the territorial
sea. Consequently, they have complete dominion over this part of the sea except that
of the right of innocent passage and transit by vessels of all nations.
B. Rights of Other States: It is a customary rule of International law that territorial sea is
open to merchant vessels of all the States for navigation. Such vessels have a right of
innocent passage through the territorial sea of a State. Thus, every State has the right
to demand that in time of peace its merchantmen may inoffensively pass through the
territorial sea of every other State. This is a corollary of the freedom of the open sea.
Contiguous Zone
The contiguous zone is that part of the sea which is beyond and adjacent to the territorial
waters of the coastal State. The coastal State does not exercise sovereignty over this part of the
sea, however, it may take appropriate action to protect its revenue and like matters. In other
words, police and revenue jurisdiction of the coastal States extend to the contiguous zone.
Geneva Convention on Contiguous Zone of 1958 recognized the right of the coastal States under
Article 24, para I which says that ‘the coastal States may exercise the control necessary to
(a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its
territory or territorial sea;
(b) Punish infringement of the above regulations committed within the territory or territorial sea.’
The Convention of 1982 made similar provisions under Article 33.
The limit of a contiguous zone has been extended by the Convention of 1982 which provided
under Para 2 of Article 33 that it may not extend beyond twenty-four nautical miles from the
baselines from which the breadth of the territorial sea is measured. Thus, the area of the
contiguous zone would be 12 miles beyond the territorial sea.
Continental Shelf
The concept of the continental shelf is mainly co-related with the exploitation of the natural
resources from the sea adjacent to a territorial sea. It was therefore of little importance until the
exploitation of natural resources become technically possible. The concept acquired significance
when it was propounded by the U.S. President Truman on September 28, 1945, through two
proclamations. Proclamations, after stressing the need for the recourse of petroleum and other
materials, laid down that such resources underlie in many parts of the continental shelf of the
coasts of the United States and with the modern technological progress their utilization is
possible.

Definition and outer Limit of Continental Shelf: The 1982 Convention has defined the term
continental shelf under Para I of Article 76 by stating that the continental shelf of a coastal State
comprises the sea-bed 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.
High Seas (refer 5th question for more elaboration)

By the term, ‘high seas’ is meant under the customary rule of International Law that part of the
sea which is not included in the territorial waters. The rule was formulated in 1609 by Grotius in
his treatise Mare Liberum by arguing that the sea cannot be owned. According to him ‘the sea is
one of those things which is not an article of merchandise, and which cannot become private
property’. Hence, it follows to speak strictly, that no part of the sea can be considered as the
territory of any people whatsoever. However, the regime of the high seas has been considerably
changed under the Convention on the law of the Sea of 1982 which lays down under Article 86
that all parts of the sea that are not included in the
 Exclusive economic zone
 Territorial sea
 Contiguous Zone
 Continental Shelf
 Internal waters of a state
 Archipelagic waters of an archipelagic State.
Thus, the area of the high seas has been substantially reduced under the Convention of 1982.
15. EXPLAIN THE PURPOSE AND PRINCIPLES OF UNITED NATIONS.

Answer: The failure of the League of Nations on the one hand and the horror and ruthless
destruction caused by the Second World War, on the other hand, disturbed many minds,
especially in Allied countries. They expressed the desire to establish peace even when the War
was in progress. In order to achieve it, frantic efforts to create an international organisation had
begun as early as in 1941. Deliberations became intense after the termination of the war which
resulted in the creation of the United Nations Organisation on October 24, 1945.
Purposes of the United Nations

The purposes for which the United Nations was established are laid down in Article I of the
Charter. They are as follows:-
1. To maintain International Peace and Security:
The urgent and fundamental need at the time of the creation of the United Nations was the
freedom from war and fear of war, and therefore, Article I, Para 1 of the Charter provided that the
primary purpose of the UN shall be ‘to maintain international peace and security’.
2. To Develop Friendly Relations among Nations:
In order to prevent clashes between nations, it was thought essential to develop friendship
among nations, i.e., friendship based on respect for the principles of the equal rights and the equal
rights of self-determination of peoples.
3. To Achieve International Co-operation:
Article 1, Para 3 of the Charter lays down two purposes of the UN which are closely related to
each other. Firstly, to achieve ‘international co-operation’ in solving international problems of an
economic, social, cultural or humanitarian character, and secondly, ‘international co-operation’ in
promoting and encouraging respect for human rights, and fundamental freedoms for all without
distinction to race, sex, language or religion.

4. To make the United Nations an International Forum for Harmonisation:

The fourth purpose of the UN was laid down under Article 1, Para 4 of the Charter which states
that the UN, being the principal World Organisation shall serve as a ‘centre for harmonizing the
actions of nations in order to achieve these common ends’. Thus, the UN is an international forum
where World problems – bilateral, regional or global are discussed and it often evolves global
policies for States to implement. The greatest advantage of this forum is that it represents the
entire international community.
Principles of the United Nations

Having set forth for the agreed purposes, the Charter laid down the basic principles under
Article 2 on which the Organisation is founded. These principles are the general obligations which
bind each Member State and the Organisation as a whole. They are as follows:-
1. The Principle of Sovereign Equality: Article 2, Para 1 of the Charter lays down that the UN is
based on the ‘sovereign equality of all its members’. It implies that all the members of the
United Nations are equal irrespective of their size and resources. It may be noted that the
principle of sovereign equality is a principle of International Law which the Charter has simply
reaffirmed.
2. The Principle of the Fulfilment of Obligations: Article 2, Para 2 of the Charter lays down that
all members of the UN shall fulfil in good faith the obligations assumed by them in accordance
with the Charter. This is also a basic principle of International Law which is known as pacta
sunt servanda.
3. The Principle of Peaceful Settlement of International Disputes: Article 2, Para 3 of the Charter
provides that ‘all Members shall settle their international disputes by peaceful means and in
such a manner that international peace and security, are not endangered’.
4. The Principle of Non-use of Force: The Charter under Article 2, Para 4 stipulates that all
members shall refrain in their international relations from the use of force or threat of force
against the territorial integrity or political independence of any State, or any other manner not
consistent with the independence of any State, or in any other manner not consistent with the
purposes of the UN.
5. The Principle of Assistance to the United Nations: Article 2, Para 5 of the Charter lays down
two ways by which a State against which the UN is taking ‘preventive and enforcement
action’, and secondly, all the members shall support the Organisation ‘in any action’ that it
takes in accordance with the ‘Charter’.
6. The Principle for the Non-Member States: Article 2, Para 6 of the Charter lays down that the
obligations which are to be carried on by the non-members of the UN by stating that ‘the
Organisation shall ensure that States which are not Members of the UN act in accordance with
these Principles so far as may be necessary to maintain international peace and security.
7. Principle of Non-intervention in Domestic Matters of a State: Article 2, Para 7 of the Charter
lays down that the UN shall not intervene in matters which are essentially within the domestic
jurisdiction of any State, or compel any member to submit such matters to settlement by the
UN.
CASES
16. Immunities and Privileges of Diplomatic Agents.
A. A diplomat of State ‘X’ was arrested in state ‘Y’ on the charge of spying. State ‘X’ request for
return of the Diplomat. Discuss (Aug-18).
B. The diplomat of state ‘A’ was supplying weapons to a banned outfit in violation of local laws,
in-state ‘B’. When he was in court, he claims diplomatic immunity. Can he succeed? (May-17).
C. ‘A’ a foreign diplomat causes injury to ‘B’ in a road accident. ‘B’ wants to claim damages from
‘A’. Can he do so? (May-15).

D. A diplomatic agent committed a traffic offence. Can the local court try him in the state where
he is functioning? (Aug-13).
E. ‘X’ a diplomatic agent takes a house rent and refused to pay the rent, can the house owner file
a civil suit against the diplomatic agent? (May-15).
F. A diplomatic envoy representing state X in state Z. While shopping purchases a pair of shoes
in a store but refuses to pay the sales tax on the shoes. Examine the legal position. (July-
2012).
ISSUE:
Is the diplomat immune from local (Civil and Criminal) Jurisdiction? Yes.
Can the diplomat be arrested? No.
RULE:
Vienna Convention of 1961 lays down the different immunities and privileges which are granted
to the diplomatic agents, one of the immunity is “immunity from the local jurisdiction”.
Article 31, paragraph 1 of the Vienna Convention provides immunity from the local jurisdiction.
Diplomatic agents enjoy immunity from the jurisdiction of the local Courts. The immunity
extends to criminal jurisdiction as well as to civil and administrative jurisdiction.
A. Criminal Jurisdiction: Article 31, paragraph 1 of the Vienna Convention provides that ‘a
diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State’. The above provisions conform to the customary rules of International Law. Thus,
receiving states have no right, in any circumstances whatever, to prosecute and punish
diplomatic agents.
B. Immunity from Civil and Administrative Jurisdiction: Diplomatic agents are immune from
civil and administrative jurisdiction is a well-recognized principle of International Law. No
civil action of any kind as regards debts and the like can be brought against them in the
civil court of the receiving State. They cannot be arrested for debts, nor can their
furniture, their cars, and the like, be seized for debts. They cannot be prevented from
leaving the country for not having paid their debts, nor can their passports be refused to
them on this account.
APPLICATION:
The example of George Gyllenborg, 1712 may be cited in this connection. He was an
Ambassador of Sweden in England and he was arrested on the charge of conspiracy against
George I, the King of England, if a case is filed in a court against a diplomatic agent, then it is not
necessary for him to present himself personally in the court. It is sufficient for him to send the
message that he is a representative of a sovereign State and is outside the jurisdiction of the
court. But if he does not take this ground and presents himself personally and unconditionally in
the court then it will be deemed that he has waived his immunity and he will then be deemed to
be within the jurisdiction of the court.
CONCLUSION:
In the above-stated cases, the diplomats are immune from the civil and criminal jurisdiction of
the receiving state. They cannot be arrested and prosecuted. However, the Vienna Convention
provides some exceptions to the Civil and Administrative immunity, when the diplomat entering
into a contract for his personal use e.g. buying a property for his personal use, the immunity is not
available.
17. THE INTERNATIONAL LIABILITY FOR DAMAGE CAUSED BY SPACE OBJECTS, 1971.
A. State ‘A’ launches on earth satellite which falls on the territory of State ‘B’. State ‘A’ asks for
its return while State ‘B’ counter-claims for damage caused to its property.

B. A satellite launched by ‘X’ state falls on the territory of state ‘Y’ and caused damage, is ‘X’
state internationally liable for the damages caused to state? (May-2015).
C. State ‘A’ launches a satellite in outer space and the satellite while falling on the earth causes
damage to state ‘B’. Discuss the liability of state ‘A’. (July-2012).
ISSUE:
Is the launching state responsible for the damage caused by the satellite? Yes.
RULE:
The Convention on International Liability for Damage Caused by Space Objects (1971): The
Convention provided international rules and procedures concerning the liability of launching
States for damage caused by their space objects. The Convention under Article 2 ensures prompt
and full compensation for any damage caused by the space object on the surface of the earth or to
aircraft or aircraft in flight. The expression damage has been defined under Article 1 which says
that damages mean loss of life, personal injury, impairment of health, loss or damage to property
of States or of persons, or property of inter-governmental organisations. If a space object has
been launched by more than one State they shall be jointly and severally liable for any damage
caused.
APPLICATION:
The falling of “Skylab” in July 1978 raised the question of applicability of Liability Convention of
1971. Put in orbit in 1973 by NASA of America, it was expected to re-enter earth’s atmosphere in
1980. It fell well in advance in July 1979. Though causing panic in India and abroad, it, in fact, fell
in the sea causing no damage to any country. Moreover, irrespective of the fact whether a state
was a party to the convention or not, every state is responsible for the damage caused by its space
objects. American President had offered well in advance to pay compensation for any damage
caused by the falling of ‘Skylab’. Even the absence of such an offer America would have been
internationally liable under the customary international law for any damage caused.
CONCLUSION:
In the above case, the launching State is responsible and should compensate for the loss caused
by its space objects, the payment of compensation should be prompt and full.
18. INDIRECT STATE RESPONSIBILITY.

A. ‘X’, who is a citizen of State ‘A’ while on a tour on the territory of State ‘B’ was killed by a mob
during the local riots. Examine the liability of State ‘B’. (May-2016).
B. A, a foreign citizen is injured in an unanticipated mob attack, in the country X. Can the Y, the
country to which A belongs claim damages from X? (May-2014).
ISSUE:
Is State ‘B’ responsible for the death of ‘X’? Yes.
Under which rule State ‘B’ is responsible? Under indirect state responsibility.
RULE: (AS PER INTERNATIONAL LAW COMMISSION, ARTICLE 2)

Under indirect State responsibility, it is an obligation of a State to prevent its own subjects as
well as foreign subjects living within its territory from committing such acts which may cause
injury to other States.
A State is responsible for the damage caused by a group of individuals or by a mob.
Responsibility of a State for mob violence may arise in two ways.
Firstly, a State shall be responsible if foreign public or private property is damaged by the mob
violence due to substantial neglect to take reasonable precautionary or preventive action. In

other words, the responsibility of a State arises where a State has not taken due diligence to
prevent the mob-violence.
Secondly, State is also responsible where mob violence takes place due to the indifferent attitude
of its organs, i.e., if the wrongful act is done with the connivance of its organs.
APPLICATION:
The case concerning the United States Diplomatic and Consular Staff in Tehran which involved the
acts of rioters and other militants who attacked and occupied U.S. diplomatic and consular
premises in Iran. The rioters and militants also seized the occupants and held them as hostages.
The International Court of Justice held Iran responsible for the acts of the militants on the U.S
Embassy.
CONCLUSION:
In the given case the State ‘B’ is responsible for the death of ‘X’ under indirect responsibility
and should compensate for the death of ‘X’.
19. EXTRADITION.
A. ‘X’ sought the extradition of ‘A’ who is accused of an offence in state ‘X’ but is not an offence
in state ‘Y’ to which ‘A’ escaped. Is extradition allowed? (May-2014).
B. A person commits an offence on the territory on state B and flees to state A. Examine the
legal possibilities for extradition. (July-2012).
C. State ‘A’ obtains the custody of an accused person who took refuge in state ‘B’, and by
extradition but by means involving a violation of the law of the latter state. Can he plead that
this circumstance constitutes a bar to his trail in the farmer state? (July-2019).
ISSUE:
Can State ‘X’ succeeds in extraditing accused ‘A’? No
Why State ‘X’ cannot extradite ‘A’? Because of the lack of ‘double criminality’.
RULE:
Presently, in the absence of any multilateral treaty or Convention, extradition is done by States
on the basis of bilateral treaties. Bilateral treaties, national laws of several States, and the judicial
decisions of municipal courts led to developing certain principles regarding extradition which are
deemed as general rules of International Law. Important amongst them are as follows:
1. Extradition Treaties: The first and the foremost important condition of extradition is the
existence of an extradition treaty between the territorial State and the requesting State.
Some states, such as the United States, Belgium and the Netherlands, require a treaty as
an absolute pre-condition. The strict requirement of an extradition treaty may be
regarded as the most obvious obstacle to international cooperation in the suppression of
crimes.
2. Extradition of Political Offenders: It is a customary rule of International Law that political
offenders are not extradited. In other words, they are granted asylum by the territorial
State.
3. The Doctrine of Double Criminality: The doctrine of double criminality, also known as dual
criminality, denotes that a crime must be an offence recognized in the territorial as well as
in the requesting State. No person is extradited unless this condition is fulfilled. The
doctrine appears to be based on the consideration that it would offend that conscience of
the territorial State if it has to extradite a person when its own law does not regard him a
criminal. The requesting State would also not ask for the surrender of a person for those
crimes which are not recognized in its State. The doctrine thus satisfies double purpose. It

helps the requesting State to enforce its criminal law, and to the territorial State in the
sense that the rule protects it from fugitive criminals.
The rule of double criminality has put a State into a difficult situation when it has to
request another State for extradition in respect of those offences which do not find a place
in the list of crimes embodied in a treaty. In order to overcome the above difficulty it is
desirable that instead of laying down the names of various crimes specifically in the
treaties, some general criterion should be adopted. For instance, any offence punishable
with a definite minimum penalty under the laws of both the States should eligible a
person for extradition appears to be more appropriate.
4. Rule of Speciality: According to this principle, a fugitive may be tried by the requesting
State only for that offence for which he has been extradited. In other words, the
requesting State is under a duty not to try or punish the fugitive criminal for any other
offence than that for which he has been extradited unless he has given an opportunity to
return to the territorial State. The rule has been made to provide safeguard to the
fugitives against fraudulent extradition. The rule of speciality is an established principle of
international law relating to extradition.
5. Prima Facie Evidence: There should be a prima facie evidence of the guilt of the accused.
Before a person is extradited, the territorial State must satisfy itself that there is a prima
facie evidence against the accused for which extradition is demanded. The purpose of
laying down the rule of prima facie evidence is to check the fraudulent extradition.
6. Time-barred Crimes: A fugitive criminal shall not be surrendered, if he has been tried and
has served sentence for the offence committed in the territorial State. Thus, extradition is
not granted if the offence for which extradition has to be made has become time-barred.
7. Extradition of Own Nationals: In many cases, a person after committing a crime in a
foreign country flees back to his own country. Whether a State would extradite such
persons, i.e., its own nationals, to a State where crime has been committed is a
controversial point and practice of States considerably differs on it. Nationals may be
extradited if there is no bar in the national extradition law or the treaty.
8. Military Offenders: Extradition treaties generally exclude military offences. Broadly,
military offences fall into two categories, i.e., those which constitute offences under
ordinary criminal law and those which relate specifically to military matters. Only the
second category qualifies as military offences in respect of which extradition will not
apply.
9. For religious crimes also persons are not extradited.
10. For extradition, it is also necessary that certain other prescribed formalities should be
fulfilled.
APPLICATION:
Veer Savarkar case (1911): Savarkar was an Indian revolutionary who was being brought to
India to be prosecuted on the ground of crimes which he was alleged to have committed. When
the ship was in the port of Marcelese, Savarkar escaped, but later on, he was apprehended by
French police. But the Captain of the French ship returned Savarkar to the Captain of the British
ship.
Sucha Singh’s case: Sucha Singh was accused of murdering Pratap Singh Kairon, the former
Chief Minister of Punjab and had fled away to Nepal and on the request of the Government of
India, the Government of Nepal after starting proceedings against him in accordance with the law
of Nepal, extradited him.
CONCLUSION:
Case A: In this case, the essential rule of ‘double criminality’ is missing and extradition is not
possible.

Case B: In this case, for extradition, the essentials what we have discussed under ‘Rules” should
be followed, like extradition treaty, double criminality etc.
20. DIPLOMATIC ASYLUM.

A. ‘X’ a political rebel of state ‘A’. The ambassador refused to hand over ‘X’ to state ‘A’ can
asylum be granted to ‘X’. (Aug-2018).
B. ‘X’ a national of country ‘Y’ after committing a criminal offence take shelter in ‘A’s diplomatic
office, which is in ‘Y’ country. Can A’s country diplomat give asylum to ‘X’? (May-15).
ISSUE:
Can an ambassador provide asylum? Yes.
Can asylum be provided in embassy premises? Yes, can be provided.
What kind of asylum it is called? It is called as an extra-territorial asylum.
RULE:
 Universal Declaration of Human Rights under Article 14 (Para 1) lays down that ‘everyone
has a right to seek and to enjoy in other countries asylum from persecution’.
 General Assembly of United Nations unanimously adopted a resolution in 1967 entitled a
Declaration on Territorial Asylum which states that ‘no one shall be subjected to measures
such as rejection at the frontier, expulsion, or compulsory return to any State where he
may be subjected to persecution.
APPLICATION:
When asylum is granted by a State on its territory, it is called territorial asylum and when
asylum is granted by a State at places outside its own territory, it is called extra-territorial asylum.
Thus, asylum given at legations, consular premises, and warships are instances of extra-territorial
asylum.
When asylum is granted by a State within its embassy premises situated in foreign countries, it
is known as an asylum in legation or diplomatic asylum. Diplomatic asylum is based on the
consideration that embassy premises are regarded to be outside the jurisdiction of the territorial
State, and therefore it is inviolable. The Head of the mission may grant asylum to a person on the
premises. However, asylum may be granted to individuals in legation premises in the following
cases:
Firstly, as a temporary measure, to individuals physically in danger from a mob or the fear of the
government. It implies that asylum is given to a person whose life has become unsecured. But it
is granted as a temporary measure.
Secondly, it is granted by those States where there is a binding local custom in this regard, and
Thirdly, when there is a treaty between the territorial State and the State which is represented by
the legation concerned.
CASE: Over summer 2012, tensions accumulated in the relations between Ecuador and the United
Kingdom, and almost lead to a diplomatic disaster. But this is not a dispute between just two
States, it may well be seen as a clash between ideologies and two fronts, i.e. between States
which recognise or reject the right to grant diplomatic asylum. The centrepiece of this quarrel is
Julian Assange, an Australian best known as the founder, spokesman and editor-in-chief of
WikiLeaks.
Since November 2010, Assange is wanted by the Swedish authorities in relation to a rape and
sexual assault investigation. Because he was living in the United Kingdom when the European
Arrest Warrant was issued, they applied for the extraction of Assange to Sweden. He decided to
fight against the extradition, but his steps were unsuccessful on all levels. Finally, on 14 June 2012,
Assange had exhausted all remedies available in the United Kingdom, but the decision to extradite
him to Sweden remained in force. He was given 14 days to appeal to the European Court of

Human Rights, but he decided to pursue an unusual alternative. On 19 June, Assange entered the
Ecuadorian embassy where he asked for the protection of the Ecuadorian government. The latter
informed, on the same day, the British government that it was considering Assange’s request. On
16 August, Ecuador informed the world that they have decided to grant Assange diplomatic
asylum.
CONCLUSION:
In the above case, the diplomat can give asylum to ‘X’ in his Embassy premises under extra-
territorial jurisdiction and he can refuse to handover ‘X’ to State ‘A’.
21. DE FACTO AND DE-JURE RECOGNITION.

A. The Government of State ‘A’ is overthrown and the rebels establish a new Government. State
‘B’ continues to recognize the old Government as de-jure Government but accords de facto
recognition to the new Government. The new Government files a suit in State ‘B’ against a
bank for recoveries certain money belongs to it as the lawful representation of the State. How
would you decide? (July-2019).
B. A newly formed de facto government claimed that its rights and status would prevail over a
displaced de-jure government. The de-jure government opposed the claim of de facto
government, decide? (Aug-2018).
ISSUE:
Are both the de facto and de-jure recognition similar regarding economic, political and trade
matters? Yes.
RULE:
It is to be noted that by granting de facto recognition to a State, the recognizing State secures
certain advantages especially economic. It enables it to protect the interests of its citizens in the
de facto recognized State. Further, it also enables the recognizing State to acknowledge the
external facts of political power, and protect its interest and trade in the de facto recognized
State.
APPLICATION:
In Luther v. Sagor, it was laid down 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 authority. This
rule has been applied in numerous cases.
The above case is similar to the case of Bank of Ethiopia v. National Bank of Egypt and Liguori,
the Court held that in view of the fact that the British Government recognised the Italian
Government as being the de facto government of the area of Abyssinia then under Italian Control,
an effect must be given to an Italian decree in Abyssinia dissolving the plaintiff bank and
appointing a liquidator. Further, immunity in the Courts of recognising State, and a State’s
international responsibility for wrongful acts remain the same whether it is ruled by a de facto or a
de-jure Government.
CONCLUSION:
In the given case State ‘A’ will recover the due amounts, for financial transactions there is no
difference between de-facto and de-jure recognition.

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Public International Law

PUBLIC INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW

Harinath J, Radhakrishna ANV and Aravinda Reddy 1

IMPORTANT SHORT QUESTIONS

IMPORTANT LONG QUESTIONS

8 WHAT ARE THE SOURCES OF INTERNATIONAL LAW (CUSTOM IS VERY IMPORTANT)

16 DE FACTO AND DE-JURE RECOGNITION - BANK OF ETHIOPIA v. NATIONAL BANK OF

PAPER-II: PUBLIC INTERNATIONAL LAW SYLLABUS

Harinath J, Radhakrishna ANV and Aravinda Reddy 2

Unit-I: Definition, Nature, Scope and Importance of International Law — Relation of

Unit-II: State Recognition — State Succession — Responsibility of States for International

Unit-III: Position of Individual in International Law — Nationality — Extradition — Asylum

Unit-V: International Organizations — League of Nations and United Nations —

Harinath J, Radhakrishna ANV and Aravinda Reddy 3

Harinath J, Radhakrishna ANV and Aravinda Reddy 4

(1) Permanent Population

(2) Well Organised Government

(3) Definite or Fixed Territory

(4) Capacity to enter into a relationship or an agreement with other States.

According to Kelsen, a community to be recognised as an international person must fulfil

Recognition can be defined as a formal acknowledgement by an existing member of the

Recognition is a process whereby a State is constituted; hence it is called as a constitutive

Harinath J, Radhakrishna ANV and Aravinda Reddy 5

According to Oppenheim, a State is and becomes an international person through recognition

2) Declaratory theory or Evidentiary Theory:

According to Professor Hall "the State, which is theoretically a political is organized

Harinath J, Radhakrishna ANV and Aravinda Reddy 6

The international importance of Nationality

Modes of Acquisition of Nationality

Harinath J, Radhakrishna ANV and Aravinda Reddy 7

Harinath J, Radhakrishna ANV and Aravinda Reddy 8

4. EXTRADITION (DOUBLE CRIMINALITY IS IMPORTANT)

A criminal is extradited to the requesting State because of the following reasons:

Harinath J, Radhakrishna ANV and Aravinda Reddy 9

Harinath J, Radhakrishna ANV and Aravinda Reddy 10

5. FREEDOMS OF HIGH SEAS.

Harinath J, Radhakrishna ANV and Aravinda Reddy 11

States had freedoms of high seas as to:

6. OUTER SPACE TREATY, 1967

Harinath J, Radhakrishna ANV and Aravinda Reddy 12

2. Non-Appropriation of Outer Space:

Harinath J, Radhakrishna ANV and Aravinda Reddy 13

Harinath J, Radhakrishna ANV and Aravinda Reddy 14

8. WHAT ARE THE SOURCES OF INTERNATIONAL LAW (CUSTOM IS VERY IMPORTANT)

Harinath J, Radhakrishna ANV and Aravinda Reddy 15

Answer: it is an obligation on the subjects of International Law to observe the rules of

Harinath J, Radhakrishna ANV and Aravinda Reddy 16

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

Harinath J, Radhakrishna ANV and Aravinda Reddy 17

Harinath J, Radhakrishna ANV and Aravinda Reddy 18

Not a Law- Supporters of this view are-

International Law Is a Law- supporters of this view are-

10. RELATION BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW.

Harinath J, Radhakrishna ANV and Aravinda Reddy 19

Relationship between Municipal Law and International Law :

Harinath J, Radhakrishna ANV and Aravinda Reddy 20

Harinath J, Radhakrishna ANV and Aravinda Reddy 21

Kinds of State Succession:

Harinath J, Radhakrishna ANV and Aravinda Reddy 22

12. MODES OF ACQUIRING STATE TERRITORY

Harinath J, Radhakrishna ANV and Aravinda Reddy 23

10. Acquisition of territorial sovereignty by newly emerged State: