CONTENTS

Chapter Chapter Name

Page
1. Human Rights No.
A. What are human rights
1-14
B. The right to a healthy environment
C. The right
to development
4
D. The right to information

2. Human Rights Under the Constitution of India 10

A. Fundamental Rights 15-25
Fundamental Duties 15
CDirective Principles of State Policy 19
D. Judicial activism (Protection of human
rights by courts in 20
Indial
3. The Protection of Human Rights 21
Act, 1993
A. Background of
the Act 26-37
B. Aims and 26
objects and coming into force of the Act
C.Definition of "human rights" under the Act 28
D. Constitution of the National 28
Human Rights Commission
E. Functions of 29
the National Human Rights Commission
F. Powers of
the National Human Rights Commission 30
G. Procedure followed by 31
the National Human Rights Commission
H. Application of the Act 32
to armed forces
L 33
State Human Rights Commisions
J. Human Rights Courts 34
35
KBar of limitation
35
L Concluding remarks
36
A. International Declarations, Conventions and Organisations
38-72
A. Universal Declaration of Human Rights (UDHR)
38
B. International Covenant on Civil and Political Rights (ICCPR)
43
C. International Covenant on Economic,
Social and Cultural Rights ICESCR)
47
Chapter Chapter Name Page No.

D. American Convention on Human Rights (ACHR) 48

E. European Convention on Human Rights (ECHR) 51
F. European Social Charter (ESC 53
G. United Nations Economic and Social Council (ECosoc) 54
H. The Center for Human Rights & the United Nations High
Commissioner for Human Rights 55
L
International Labour Organisation (1LO) 57
J. UN Conference on Human Environment
(The Stockholm Conference) & UNEP 61
KAgenda21 64
L United Nations Educational, Scientific and
Cultural Organisation (UNESCO) 66
M. United Nations International Children's Emergency Fund (UNICE) 68
u N. United Nations Development Programme (UNDP) 71

5. Protection of Human Rights of Women 73-91

A. Protection of women under the Constitution of India 73
B. Protection of women against sexual harassment 76
C. Protection of women under the National Commission for
Women Act 80
D. Protection of women under other laws 83
E Protection of women under CEDAW and other
international conventions 85

6. Protection of Human Rights of Children 92-105

A. General 92
B. Protection of children under the Constitution of India 93
C Protection of children under the Commission for Protection of
Child Rights Act 96
D. Protection of children under other laws 97
E. Protection of children under the International Convention on
the Rights of the Child 99
F. Child abuse 102

1. Protection of Human Rights of Prisoners 106-114

Chapter Chapter Name Page No0,
8. Protection of Minorities, Scheduled Castes and
Scheduled Tribes 115-120
A. The National Commission for Minorities 115
B. The National Commission for Scheduled Castes and
Scheduled Tribes 118

9 Role of Non-governmental Organisations (NGOs)

in the Protection of Human Rights 121-126

Appendix I: Fundamental Rights, Fundamental Duties and Directive

Principles under the Constitution of India 127-140

Appendix II : Protection of Human Rights Act, 1993 141-157

(UDHR)
Appendix II: Universal Declaration of Human Rights 158-163

International Convention on Civil and

Appendix V: Political Rights (ICCPR 164-181

Appendix V: Convention on Elimination of all forms of Discriminatio

Against Women (CEDAW) 182-193

Multiple Choice Questions (With Answers) 194-201

+
 1
HUMAN RIGHTS

The rights of every man are

diminished when the rights of
one man are threatened.
Jaka RKennady.

This Chapter is discussed under the following heads:

A. What are human rights M.U. = Mumbai
University 1
B. The right to a healthy environment
C. The right to development
D. The right to information.

A. WHAT ARE HUMAN RIGHTS

Human rights are the basic rights and freedoms that every person Define *Human
in the world is inherently entitled to. Every person, by virtue of his or her rights. (2 marks)
being human, possesses certain basic and inalienable rights, referred M.U. Apr. 2008
to as human rights. Such rights are vested in a person from the moment Nov. 2010o
of his birth and may therefore be considered to be his birthrights, Nov. 2012
irrespective of his caste, creed, religion, sex or nationality. Every human Jan. 2018
being is entitled to some basic rights, which no one can take away. As Dec. 2019
such rights are absolutely necessary for the moral and material upliftment
MCQ No.1
of a human being and for his well-being, they are also referred to as
basic rights, fundamental rights, inherent rights, natural rights and
birthrights.
The concept of human rights (sometimes referred to as "the State and explain
common language of humanity) is closely inter-woven with the idea of what are human
human dignity. As observed by Justice J. S. Vema, a former Chief Justice rlghts.
of India, "Human dignity is the quintessence of human rights". All those M.U. Nov. 2008

rights which are essential for the protection and maintenance of human Apr. 2010
Apr. 2011
dignity can be called human rights.
The World Conference on Human Rights (1993) also stated, in its MCQ No. 2
Vienna Declaration, that all human rights derive from the dignity inherent
in the human person and that the human person is the central subject
of
human rights and fundamental freedoms.
1
 2 HUMAN RIGHTS

What do you According to Dr. D. D. Basu, human rights Include those areas
mean by "human
rlghts"?
individual or group freedom that are Immune from governmentaof
(2 marks)
marks) interference. These are thus nights which no one can be deprived of
M.U. Nov. 2009 Justice Krishna lyer, in his Tagore Law Lectures, said
"Human rights are writ on a large canvas, as large as the
sky. The law-makers, lawyers, and particularly the Judges,
must make the printed text vibrant with human values"
In Ram Deo Chauhan v. Bani Kant Das (AlR 2011 SC 615), Ganguit
J. of the Supreme Court made the following observation:
The term human rights' is a broad concept and cannot be
straitjacketed within narrow confines. Any attempt to do so
would truncate its all-embracing scope and reach, and
denude it of its vigour and vitality"
One significant development of international law in recent years is
MCQNo.3 the recognition of the fact that protection of an individual's human rights
can no longer be completely entrusted to the state. This is reflected in
the number of Conventions and Declarations adopted by the United
Nations (UN) and its agencies in the last few decades, in furtheranceof
the pledge of member nations of the UN to promote universal respect
for, and observance of, human rights and fundamental freedoms.
The Universal Declaration of Human Rights marks an important
milestone for people all over the world because it is founded on three
key principles. Human rights are inalienable:; no one can ever take them
away. Human rights are also indivisible: a person cannot be entitled to
some of them and denied some others. Finally, human rights
are interdependent: they are all part of a larger framework and work
together so that every human being can enjoy a safe, free and productive
life.

HuMAN
RIGHS

The International Human Rights Day is celebrated on December

MCQ No.4 10 every year- the date on which the Universal Declaration of Human
Rights was adopted by the UN in 1948.
 HUMAN RIGHTS

MCO No. 5
Human rights are also enshrined in the Constitution of India in the
form of fundamental rlghts. (See Chapter 2.)

Kinds of Human Rights

As human rights are generally indivisible and interdependent, is
it What are the kindd
of Human Rights?
often considered a fallacy to talk of kinds of human rights. The Universal (2 marks)
Declaration of Human Rights (discussed at length in Chapter 4) did not M.U. Apr. 2018
catagorise the different kinds of human rights. Rather, it simply
enumerated them in different Articles. However, subsequent
developments have given rise to the notion that all human rights can be
(ii)
divided into two broad categories: (i) civil and political rights and
social, economic and cultural rights.
Civil and political rights
Civil rights are those which are related to the protection of life and MCQ No. 6
personal liberty. They enable a person to live a dignified life. These rights
include the right to life, liberty and security, the right to privacy, freedom
of movement and freedom of thought, conscience and religion. Political
rights, on the other hand, are those basic rights which allow an individual
to participate - directly or indirectly- in the political activities of the state.
These include the right to vote, the right to be elected, the right to take
part in the conduct of public affairs, etc.
Civil and political rights are sometimes looked upon as negative
rights in the sense that the state is required to abstain from doing anything
that would violate or severely restrict such rights. Several fundamental
rights guaranteed by the Constitution of India, as forinstance, the right MCQ No. 7
to freedom of speech and expression (Art. 19),. protection of life and
personal liberty (Art. 21) and protection against arest and detention
(Art. 22) fall under the category of civil and political rights.

Economic, social and cultural rights

Economic, social and cultural rights guarantee minimum necessities Name any three
of life to a human being. These rights are based on the concept of social economic, social
and cutural rights.
equality, and include the right to food, clothing, housing, the right to
(2marks)
work, the right to education, etc. These rights are more of positive rights, M.U. Apr. 2010
because they require an active intervention ofthe state-and not merely
an abstention on its part.
Economic, social and cultural rights are also part of the Indian
Constitution, as for instance, the right to education (Art. 21A), freedom
to manage religious affairs (Art. 26), protection of interests of minorities
(Art. 29) and the right of minorities to establish and administer educational
institutions (Art. 30).
 HUMAN RIGHTS

Concluslon
Although the UN has recognised the above two sets of rights In
separate Covenants, it is important to note that both the categories
of
rights are equally important and there is an inextricable relationshin
between them. It is increasingly being realised-particulariy in developing
countries-that civil and political rights make little sense unless they are
accompanied by economic, social and cultural rights.
This view is reflected in the International Human Rights Conference
held in 1968, which stated in its final proclamation as under
Since human rights and fundamental freedoms are
indivisible, the full realisation of civil and political rights,
without the enjoyment of economic, social and cultural
rights, is impossible."
Explaln Evolution Likewise, the General Assembly of the UN concluded in its
of International
Human Rights Law
Resolution in 1977 that all human rights are indivisible and
and the Role of UN interdependent. The Vienna Conference, 1993, also emphasized
that
in that process. "all human rights are universal, indivisible,
interdependent and inter
M.U. Apr. 2016 related. The international community must treat human rights globally in
a fair and equal manner on the same footing and with the same
MCQ No. 8, 9 emphasis."

Sources of International Human Rights Law

The end of the world wars and the creation of the UN were
accompanied by extensive development of human rights law.
International human rights law today is derived from sources similar to
those which form the basis of public international law: (i) treaties, (i)
custom, (i) general principles of law recognized by civilised nations
and (iv) judicial decisions and writings of eminent jurists. Additionally,
resolutions of the UN General Assembly and official documentation of
the UN and its subsidiary bodies (such as reports of the UN Human
Rights Council) have contributed significantly to the development of
intemational human rights law.

B. THE RIGHT TOAHEALTHY ENVIRONMENT

There are two views when "environment" is looked at from the angle
of human rights. The first is that the right to a healthy environment is
itself a human right (as provided, for instance, in the American Convention
on Human Rights). The second-and more common-view is that human
rights related to environment can be derived from other human rights
like the right to life, the right to health, etc. This (second) view found
support at the Stockholm Conference in 1972 and is also reflected in
the pronouncements of the Indian judiciary. (The Stockholm Conference
 HUMAN RIGHTS

is discussed in Chapter 4,and judicial pronouncements in Chapter 2,

under the heading 'Judicial activism')
In furtherance of the second view, the International Covenant on
Economic, Social and Cultural Rights provides for the right to enjoyment
of just and favourable conditions of work, which include a right to a
decent living for oneself and one's family and a right to safe and healthy
working conditions. Moreover, the Covenant provides for a right to an
adequate standard of living, including food, clothing and housing and
the right to enjoy the highest attainable standard of physical and mental
health. The aforesaid rights are directly affected by the environment.
The Rio Declaration, 1992, in particular, recognised the critical role
that the exercise of human rights plays in environmental maters. In
2010, the United Nations General Assembly endorsed the human right
to safe and clean drinking water and sanitation.
Judge Weeremantry of the International Court of Justice, in his
opinion in the Case Concerning the Gabcikovo-Nagymaros Project
summarised the interdependence of human rights and environment
protection in the following words:
"The protection of the environment is . a vital part of
contemporary human rights doctrine, for it is a sine qua non
for numerous human rights such as the right to health and the
right to life itself. It is scarcely necessary to elaborate on this,
as damage to the environment can impair and undermine all
the human rights spoken of in the Universal Declaration and
other human rights instruments."
In the context of Indian laws, S. 2(a) of the Environment Protection Define the term
Act, 1986, defines environment to include 'water, air and land and the "environment".
(2 marks)
inter-relationship which exists among and between water, air and land
M.U. Apr. 2011
and human beings, other living creatures, plants, micro-organisms and
property.
As observed by Arijit Pasayat, J. in K. M. Chinnappa v Union of
India (AIR 2003 SC 724), "Environmental law is an instrument to protect
and improve the environment and control or prevent any act or omission
polluting or likely to pollute the environment."
Laws related to environment
In India, there are several laws and regulations which have been Name any two leg
enacted to protect and preserve the environment, as for instance, the islations relating
to protection of
Environment Protection Act, 1986, the Water (Prevention and Control of environment in
Pollution) Act, 1974, the Air (Prevention& Control of Pollution) Act, 1981, Indla. (2 marks)
the Noise Pollution (Regulation and Control) Rules, 2000, the Indian M.U. May 2014
Forest Act, 1927, the Wild Life (Protection) Act, 1972, the Forest
(Conservation) Act, 1980, eto.
6 HUMAN RIGHTS

Constitutional provislons
Apart from the above Acts which were specifically enacted t-
promote a pollution-free environment, the provisions of the Indiar
Constitution are also to be kept in mind. Art. 21 of the Constitutior
provides that no person shall be deprived of his life or personal libert
except according to procedure established by law. Although there is ne
direct mention of "environmenf in this Article, and there is no specífic
express fundamental right guaranteeing the right to a pollution-fre
environment, thanks to the judicial activism of the Supreme Court ane
various High Courts, the right to a clean, healthy and polution-free
environment has now acquired the status of a fundamental right unde
Art. 21 of the Indian Constitution.
The Forty-second Amendment ofthe Constitution in 1976 added
new dimension to the lIndian Constitution in the shape of Art. 51A, whict
provides for "Fundamental Duties". This Article now imposes ter
fundamentalduties of all citizens of India. Clause (9) of Art. 51
specifically deals with protection of the environment and provides that i

shall be the duty of every citizen of India to protect and improve the
natural environment including forests, lakes, rivers and wild life and te
have compassion for living creatures.
The Forty-second Amendment of the Constitution also introducec
a new directive principle (Art. 48A) for the protection of the environment
thus making the Indian Constitution one of the few Constitutions ofth
worid which are specifically committed to the cause of ecology ane
environmental protection. The said Article provides that "the State sha
endeavour to protect and improve the environment and to safeguare
the forests and wild life of the country."
Green Courts and the National Green Tribunal
Time and again, the Supreme Court had suggested tha
"environment courts' be established in India, or a Bench of every Hig
Court be designated only for hearing matters relating to environmen
This long-standing suggestion for "green courts" appeared to have beer
ignored until Parliament finally passed the National Green Tribunal Ac
in 2010. Under this Act, a National Green Tribunal has been constituter
to provide for enforcement of laws relating to the environment. The
Tribunal has original and appellate jurisdiction on environmenta
questions arising out of seven specified Acts. The Tribunal is als
empowered to provide relief and compensation to victims of pollutior
and other environmental damage. Appeals from all orders of the Tribuna
lie to the Supreme Court.
 HUMAN RIGHTS 1

Judiclal activism in the field of protection of environment

Courts in India have always been anxious to protect the Write a short note
on Right to
environment. Judicial activism is thus seen at its best in this field. Although healthy environ
the right to health and a pollution-free environment, as well as clean ment.
water and smokeless and unpolluted air is not specifically guaranteed M.U. Nov. 2013
as a fundamental right by the framers of the Indian Constitution, thanks
to the verdicts of the Supreme Court and the various High Courts, tod Write a short note
on: Human Rights
it enjoys the status of a fundamental right.
me the environ
and
A reference may be made to the topic, 'Judicial activism'in Chapter ment.
2, from which it will be clear that courts have spelt out and recognised M.U. Nov. 2011

several human rights, including those relating to environment, although

Such rights do not find a specífic mention in the Indian Constitution. In
doing so, the judiciary has gone more by the spirit of the Constitution
rather than its letter or bare wording.
A special mention needs to be made here
of Justice Kuldeep Singh, whose laudable
judgments have earned him the title of 'the
Green Judge'. Whether it related to putting the
lid on pollution around the Taj Mahal in Agra
or closing hazardous factories in Delhi or
striking down dubious leases given to Span
Motels by the then Minister for Environment,
the Green Judge broke new grounds in
environment protection. Not content with
merely passing orders, he insisted on closely monitoring their
implementation by a not-so-willing executive. And that, he said, was
judicial activism.
Conclusion
It is now well-settled in international human rights law that Explain the prin-
ciple of Substan-
environmental protection forms an integral part of human rights. As it is tlal Development
clear from the above, the Indian Parliament and judiciary have recognised and the Polluter
the link between human rights and the environment and have therefore pays princlple with
enacted tough laws to protect and promote a pollution-free environment. the help of rel
evant International
The right to a healthy environment is now recognised as a fundamental Declaration and
right under the Indian Constitution. The Precautionary Principle and the Case Law.
Polluter Pays Principle are deeply entrenched in the environmental law M.U. Apr. 2016
of the country. Due credit deserves to be given to thejudicial activism of
the Supreme Court for its pioneering role in developing environmental
jurisprudence, which will go a long way to ensure a pollution-free
environment in the country.
In conclusion, it may be said that India has several well-drafted
laws In force for the protection of the environment. However, the real
 HUMAN RIGHTS

problem lies in the implementatlon and enforcement of these laws. It,

therefore, one sees the environment being brazenly polluted, even today.
the blame cennot be placed on insufficiency of laws-but rather on their
poor and casual enforcement, coupled with the callous (and often.
dishonest) approach of those in charge.
[A reference may be made to the topic, 'Judicial activism' in
Chapter 2 of the book for cases in which the Supreme Court
and the High Courts have delivered landmark judgments in
the field of environment protection.]

C. THE RIGHT To DEVELOPMENT

The right to development was first recognized in 1981 in Article 22
MCQ No. 10 of the African Charter on Human and People's Rights, where it was
declared that "All people shall have the right to their economic, social
and cultural development with due regard to their freedom and identity
and in the equal enjoyment of the common heritage of mankind."
What Is the The right to development was subsequently proclaimed by the UN
meaning of right to
development?2 in 1986 in the Declaration on the Right to Development (UN Declaration),
which was adopted by a UN General Assembly resolution to which India
(2 marks)
M.U. Nov. 2008 is a party. The right to development is a group right of people, as opposed
Apr. 2009 to an individual right, and was reaffimed by the 1993 Vienna Declaration
Nov. 2009 and Programme of Action.
Nov. 2010 The right to development includes:
Nov. 2013
full sovereignty over natural resources;
Nov. 2014
Apr. 2016 self-determination;
Dec. 20166 popular participation in development;
May 2019
equality of opportunity; and
the creation of favourable conditions for the enjoyment of
other civil, political, economic, social and cultural rights.
The human person is identified as the direct beneficiary of the right
to development. The right to development can be invoked both by
individuals and by people in general. It imposes obligations (i) on
individual States - to ensure equal and adequate access to essential
resources, and (ii) on the intenational community - to promote fair
development policies and effective international cooperation.
The right to development provides a comprehensive framework
and approach to the policies and programmes of all relevant actors at
the global, regional, sub-regional and national levels, as this right:
integrates aspects of both human rights and development
theory and practice
 HUMAN RIGHTS

encompasses all human rights-clvil,

political, economic, social
and cultural;
requires active, free and meaningful
participation.
The Preamble to the UN Declaration
that "development is a comprehensive (referred to above) states
political process, which economic, social, cultural and
aims at the constant improvement of
being of the entire population and all the well
of
active, free and meaningful participationindividuals on the basis of their
in
distribution of benefits resulting therefrom" development and in the fair
The UN Declaration specifically lays
down, inter alia, as follows:
1. The right to development is
an inalienable human right by virtue
of which every human person
and all people are entitled to
participate in, contribute to, andenjoy economic,
social, cultural
and politlcal development, in which all
human rights and
fundamental freedoms can be fully realised.
2. The human right to development
also implies the full realisation
of the right of people to self-determination,
which includes the
exercise of their inalienable right to full
sovereignty over all
their natural wealth and resources.
3. The human person is the central subject of
development and
should be the active participant and beneficiary
of the right to
development.
4. States have the primary responsibility for the
creation of national
and international conditions favourable to
the realisation of the
right to development.
Art. 10 of the Vienna Declaration
and Programme of Action states:
"The World Conference on Human
Rights reaffirms the right to
development as a universal and inalienable
right and an integral part of
fundamental human rights."
The Rio Declaration on Environment
and Development recognises
the right to development as one of its 27 principles.
Principle 3 of the
Declaration states: "The right to development
must be fulfilled so as to
equitably meet developmental and environmental
needs of present and
future generations."
Art. 21 ofthe Constitution India
of guarantees the rightto life-and
the right to development is now accepted as part of
this fundamental
right.
 10 HUMAN RIGHTS

D. THE RIGHT To INFORMATION

RIGHT TO
INFORMATION

Write a short note The word information' is a term derived from the Latin words
on Rlght to Tomation'and forma', meaning 'giving shape to something' and torming
Informatlon.
o09
M.U. Apr. 2009
a patterm', respectively. The right to information denotes the right to
Nov. 2010 request and obtain information and data ofpubiicimportance which is in
possession of the government and its agencies. Every citizen has a right
to know how the Government is functioning. The right to information
empowers every citizen to seek any information from the Government,
inspect any Government document and make copies thereof.
Information is indispensable for the functioning of a true democracy,
People have to be kept informed about current affairs and broad issues
- political, social and economic. Free exchange of ideas and free debate
are essentially desirable for the good governance of any democracy.
In recent years, many countries like USA, Canada, Australia, New
Zealand, Sweden and Malaysia have passed lawa provlding for the right
of access to administrative information. The new Constltution of
South
Africa specifically provides the Right to Information In its Bill of Rights
thus giving it an explicit constitutional status.
In India, there is no explicit mention of the right to information in
the Constitution. However, Art. 19(1) (a) of the Constitution guarantees
the fundamental right to free speech and expression. The prerequisite
for enjoying this right is knowledge and information. Therefore, the right
to information is considered to be a constitutional right, being an aspect
of the right to free speech and expression, which includes the right to
receive and collect information. This would also help the citizens peform
their fundamental duties as set out in Article 51A of the QConstitution. A
fully informed citizen would certainly be better equipped to perform his
fundamental duties.
The need for this right has been widely felt in all sectors of the
country and this has also received judicial recognition in several landmark
judgments of the Supreme Court. Thus, for instance, in State of UP v
Raj Narain, (AIR 1975 SC 865), the court observed that in a responsible
government like that of India, where all the agents of the public must be
 HUMAN RIGHTS
11

responsible for their conduct, everything cannot be a secret.

of this country have a right to know every public The people
act, everything that is
done in a public way by their public functionaries.
Again, in 1982, in PGupta v Union of India [AIR
1982 SC (149)].
popularly known as the Judges' Transfer Case, the
Supreme Court
negatived the claim of the Government of India in respect of the
disclosure
of certain documents. The Supreme Court, by a generous
interpretation
of the guarantee of freedom of speech and expression,
elevated the
right to know and the right to information to the status of a fundamental
right, on the principle that certain unarticulated rights are imminent
and
implicit in the constitutional guarantees.
Observations such as those referred to above had little immediate
effect on national legislation and it was only in 2005 that, under
tremendous pressure from all sides, the Lok Sabha and Rajya Sabha
passed a Bill which received the President's assent on 15th June, 2005,
and came on the statute book as the Right to Information Act, 2005 ("the
RTI Act"). The Act provides effective access to all Indian
citizens, to
information which is under the control of the public authorities and
promotes a high degree of transparency in the working of every public
authority.

ck
ionsy

The main object of the Act is to empower the citizens, promote

transparency and accountability in the working of the Government, curtail
corruption, and make Indian democracy work for the people in the real
sense. It goes without saying that an informed citizen is better equipped
to keep necessary vigil on the government and make it more accountable
to the governed. The Act is thus a giant step towards keeping the citizens
Informed about the activities of the Government. A citizen now has the
right to seek such information from a public authority as is held by that
public authority or which is held under its control. Thus, the Act provides
a powerful tool in the hands of the citizens to get information from the
Government as a matter of right.
 HUMAN RIGHTS
12
Commission is constitutedat
Central Information established in
Under the Act, a Information Commisslons
nationail level, with State every public authority to
the makes it obligatory for
each state. The Act Information Officers or
officers as Central Public
designate as many Officers (as the case may be) in all administrative
State Public Informationit as may be
necessary to provide information to
units or offices under information under the Act. Although private bodies
persons requesting for public utility
ambit of the Act, privatised
are not directly within thewithin the scope thereof, their privatisation
companies continue to be
notwithstanding.
"information" has been given a
very broad connotation
The term any form-including records
covers any material in
underthe RTIAct. It advices, press releases, circulars
opinions,
documents, memos, e-mails,
logbooks, contracts, reports, papers, samples, models, data
orders, any private
form and information relating to
material held in any electronic authority under any other law
public
body which can be accessed by a
for the time being in force.
right:
The right to information includes the
to inspect works, documents and
records;
of documents or
to take notes, extracts or certified copies
records;
to take certified samples of material; and
floppies,
to obtain information in form of printouts, diskettes,
tapes, video, cassettes or in any other electronic mode or
through printouts.
Any person who desires to obtain any information under the Act,
must make a request in writing or through electronic means, English
in

or Hindi or in the official language of the area in which the application is

being made, accompanied by the prescribed fee. When making the
application, the applicant is notrequired to give any reason for requesting
the information or any other personal details, except those that may be
necessary for contacting him.
In the normal course, information to an applicant is to be supplied
within thirty days from the receipt of the application. Ifinformation sought
concerns the life or liberty of a person, it is to be supplied within forty
eight hours.
Ifthe applicant's request is rejected, the officer must communicate
to the person making the request, () the reasons for such rejection;
i)the period within which an appeal against such rejection may be
preferred; and (i) the particulars of the appellate authority.
 HUMAN RIGHTS 13

The Act also provides for a rather long list of information which is
exempt from disclosure, as for instance, the following:
Information, the disclosure of which would prejudiclally affect
the sovereignty and integrity of India, the security, strategic,
scientific or economic interests of the State, relations with
foreign State or lead to incitement to an offense;
information which has been expressly forbidden to be published
by any court of law or tribunal or the disclosure of which may
constitute contempt of court;
information, the disclosure of which would cause a breach of
privilege of Parliament or a State Legislature;
information received in confidence from a foreign Govemment;
information, the disclosure of which would endanger the life or
physical safety of any person or identify the source of
information or assistance given in confidence for law
enforcement or security purposes;
information which would impede the process of investigation
or apprehension or prosecution of offenders;
cabinet papers, including records of deliberations of the Council
of Ministers, Secretaries and other officers.
Appeals
If an applicant is not supplied the information within the prescribed
time of thirty days or forty-eight hours, (as the case may be) or if he is
not satisfied with the information furnished to him, he may prefer an
appeal to the first appellate authority under the Act within a period of
thirty days. The appellate authority must dispose of the appeal within a
period of thirty days or, in exceptional cases, within forty-five days of the
receipt of the appeal.
If the first appellate authority fails to pass an order on the appeal
within the prescribed period or if the appellant is not satisfied with the
order of the first appellate authority, he may prefer a second appeal with
the Central Information Commission within ninety days.
Penalty
If the concerned officer has, without any reasonable cause, refused
to receive an application for information or has not furnished information
within the specified time or has denied the request for information in a
mala fide manner or knowingly given incorrect, incomplete or misleading
information or destroyed information which was the subject-matter of
the request or obstructed in any manner in furnishing the information,
such an officer exposes himself to a penalty of 250/- per day until the
14 HUMAN RIGHTS

application Is accopted or the information is furnished, as the

case ma
be. However, the total amount of such a penalty cannot excee
25,000/-. Ifthe defence of such an officer is that he acted reasonabl.eed
and diligently, and in the case of denial of a request, that such a deniat
was justified, the burden of proving this is on the concerned officer, lal
Overriding effect of the Act
The RTI Act has over-riding effect vis-à-vis other laws, Inasmuch
much
as the provisions of this Act have effect notwithstanding anythino
inconsistent therewith contained in the Officlal Secrets Act, 1923, and
any other law for the time being in force. and

he
ou he cop nomason
t
 2
HUMAN RIGHTS UNDER
THE CONSTITUTION OF INDIA

This Chapter is discussed under the following four heads:

A. Fundamental rights
B. Fundamental dutles
C. Directive Principles of State Policy
D. Judiciail activism (Protection of human rights by courts in India).

A. FUNDAMENTAL RIGHTS
Every democratic system of government regards certain human
rights as fundamental. These rights are so regarded because they are
vitally necessary for the attainment by the individual of his full moal and
spiritual stature. Without these rights, the individual's moral and spiritual
life would remain stunted and he would not be able ta develop his full
potential. Such are the rights enshrined in Part ll of the Constitution of
India. No wonder Part l of the Indian Constitution containing the
fundamental rights is often regarded as "the heart of the Constitution'
The inclusion of fundamental rights in the constitution of a country
is for the purpose of preserving certain fundamental human rights, which
are not only to be protected by the state, but which contains an area
wherein the state has no right to interfere. As once observed by Justice
Jackson, "The purpose of such rights is to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the
reach of majorities and officials, and to establish them as legal principles
to be applied by the court. One's right to lfe, liberty and property, to free
speech and free press, freedom of worship and assembly and other
15
 16 HUMAN RIGHTS

fundamental rights may not be submitted to vote. They depend orn

on the
outcome of no election."
Under Art. 13 of the Constitution, all pre-Constitutional and.
Constitutional laws, in so far as they areinconsistent with the fundamst
fundame
post
rights guaranteed by the Constitution are, to the extent of
inconsistency, void-and can be so declared by theSupreme Cou such
ta
the High Courts (under Art. 32 and Art. 226 of the constnd
respectively). The inclusion of fundamental rights in the Inution
Constitution is to ensure that certain human rights are not only Drotan
acted
by the state, but they also constitute a field where the state has no
rigt
to interfere.
The importance of fundamental rights in a democratic setup cC
be over-emphasized. As observed by Kania J. of the Supreme
nnot
Court
"Fundamental rights are express constitutional provisions
limiting legislative power and controlling the temporary will
of
a majority by a permanent and paramount law settled by the
deliberate wisdom ofthe nation."
Fundamental Rights in the Constitution of India
The fundamental rights guaranteed by the Constitution of India i
n
Part l1 thereof, can be divided into the following ten categories:
1. Right to equality (Arts. 14-18)
2. Right to freedom (Art. 19)
3. Protection against conviction (Art. 20)
4. Protection of life and personal liberty (Art. 21)
MCQ No. 11 5. Right to education (Art. 21A)
6. Protection against arrest and detention (Art. 22)
7. Rights against exploitation (Arts. 23 & 24)
8. Right to freedom of religion (Arts. 25-28)
9. Cultural and educational rights (Arts. 29 & 30)
10. Right to constitutional remedies (Art. 32)

1. Right to equality (Arts. 14 18)

Art. 14 of the Constitution provides that the state shall not deny to
any person equality before the law or the equal protection of the laws
within the territory of India. This cherished right of equality establishes
the rule of law in India and is available to all -citizens as well as non
citizens.
Art. 15 then prohibits discrimination against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them. It also
 HUMAN RIGHTS UNDER THE CONSTITUTION OF INDIA 17

allows the State to make speclal provisions for women and children and
for socially and economically backward classes.
Art. 16(1) guarantees equality of opportunity to all citizens in matters Explain Art. 16(1)
of the Constitution
relating to employment or appointment to any office under the State. It
of Indla.(2 marks)
also empowers the State to make reservations in favour of any backward M.U. Apr. 2010
classes of citizens [Art. 16(4)]. It is also clarified that offices connected
with religious or denominational institutions may be reserved for members
professing any particular religion or belonging to a particular denomination
Art. 16(5
Art. 17 abolishes untouchability and forbids its practice in any form,
whereas Art. 18 abolishes the conferment of titles by the State.

2. Right to freedom (Art. 19)

Art. 19 of the Constitution guarantees the following seven important Name amy four per-
sonal freedoms
freedoms to all citizens of India: gven by Art 19 of
1. Freedom of speech and expression the Indian Consti-
tutlon. (2 marks)
2. Freedom of assembly M.U. Nov. 2014
3. Freedom to form associations and unions
4. Freedom to move freely throughout India
Name two rights
5. Freedom to reside and settle in any part of India whlch are not
6. Freedom to acquire, hold and dispose of property (After 1978, available to aliens
in India. (2 marks)
this is no more a fundamental right.)
M.U. May 2013
7. Freedom to practise any profession.
These freedoms are, however, not absolute, but are subject to
reasonable restrictions.
3. Protection against conviction (Art. 20)
Art. 20 offers a triple protection in respect of conviction for offences,
as under
(1) Art. 20(1) Protection against ex post factorlaws, that is, no What do you
person can be convicted for any offence except for violation of understand by
double jeopardy?
a law which was in force at the time of the offence or be (2 marks)
subjected to a penalty greater than the one in force at the time M.U. May 2013
he committed the offence.
(2) Art. 20(2): Protection against double jeopardy, that is, no
person can be prosecuted and punished for the same offence
more than once.
(3) Art. 20(3) : Protection against self-incrimination, that is, no
person accused of any offence can be compelled to be
witness against himself.
 18 HUMAN RIGHTS

4. Protectlon of llfo and porsonal liborty (Art. 21)

Write a short note Art. 21 contains the most cherished guarantee and provides
on Right to that
no person shall be deprived of his life or personal lberty except accordino
Educatlon.
to the procedure established by law. The expression 'personal liberte
M.U. Apr. 2016
has been given an interpretatlon of the widest possible amplitude, a
courts have held that this Article contains several rights not enumeratedand
therein, as for instance, the right to privacy, the right to a healthv
environment, the right to live with human dignity, the right against custodia
dlal
violence, etc., as discussed later in this Chapter.
5. Right to education (Art. 21A)
What Is the right to After the 2002 Amendment of the Constitution, the right to education
education guaran
toed under Art.
is a fundamental right in India. Art. 21A provides that the State shal
21-A of the Constl- provide free and compulsory education to all children between the 80e
tutton of Indla?
(2 marks)
ofsix and fourteen in such manner as the State may, by law, determine.
M.U. May 2015 6. Protection against arrest and detention (Art. 22)
Art. 22 grants certain rights to persons detained under
ordinans
laws as wll as those subject to preventive detention.

7. Rights against exploitation (Arts. 23 & 24)

Explain Artlcle 23 Traffic in human beings, begar and other forms of forced labour
of the Constitutlon are prohibited by At. 23 and made punishable. Under Art. 24, no child
of Indla. (2 marks)
2010
M.U. Nov. 2010
below the age of fourteen years can be employed to work in any factory
or mine or engaged in any other hazardous employment.
8. Right to freedom of religion (Arts. 25-28)
Art. 25 guarantees freedom of conscience and the right to freely
profess, practise and propagate religion.
Art. 26 grants a right to every religious denomination or any
section thereof to manage its religious affairs.
Art. 27 lays down that no person can be compelled to pay any
taxes, the proceeds whereof are specifically used for the
promotion or maintenance of any particularreligionor religious
denomination.
Art. 28 provides that educational institutions wholly maintained
out of State funds cannot provide religious instruction.
9. Cultural and educational rights (Arts. 29 & 30)
Art. 29 provides for the protection of interests of minorities, whereas
Art. 30 confers a right on minorities to establish and administer
educational institutions of their choice.
 HUMAN RIGHTS UNDER THE CONSTITUTION OF INDIA 19

10. Right to constltutional romodios (Art. 32)

Art. 32 guarantees a right to move the Supreme Court for the What ls An 32 o
onforcement of fundamental rights and empowers the apex court to issue the Consthtonot
appropriate directions or orders or writs, including writs in the nature of India? (2 marks)
habeas corpus, mandamus, prohibition, certiorarl and quo warranto, MU. May 2013
whlchever may be appropriate, for the enforcement of such rights.
MCO No. 12
[A reference may be made to Appendix I for the entire list of
the fundamental rights as contained in the Constitution of
India. 1

B. FUNDAMENTALDUTIES
Part IV-A
Art. 51A, which was inserted in 1977, provides for eleven funda MCQ No. 13
mental duties of every citizen of India, and lays down that that it shall be
duty of every citizen of the country:
(a) to abide by the Constitution and respect its ideals and
institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national
struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of
India;
(d) to defend the country and render national service when called
upon to do so;
(e) to promote harmony and the spirit of common brotherhood
amongst all the people of India, transcending religious, linguistic
and regional or sectional diversities and to renounce practices
derogatory to the dignity of women;
() to value and preserve the rich heritage of our composite culture;
(9) to protect and improve the natural environment including
forests, lakes, rivers and wild life, and to have compassion for
living creatures;
(h) to develop scientific temper, humanism and the spirit of inquiry
and reform;
() to safeguard public property and to abjure violence;
0) to strive towards excellence in all spheres of individual and
collective activity, so that the nation constantly rises to higher
levels of endeavour and achievement
(k) who is a parent or guardian, to provide opportunities for
education to his child or ward, as the case may be, between
the age of six and fourteen years.
 20 HUMAN RIGHTS

C. DIRECTIVE PRINCIPLES OF STATE POLICY

Write a short note The Directive Principles of State Policy, contained in Part I.
on Directlve Constitution, embody socio-economic goals which the nation is exnhe
Princlples of State axpected
Pollcy and Human to achieve. Although they are not enforceablein a court oflaw, thted
RIghts. nevertheless fundamental in the governance of the countryand itre
M.U. Apr. 2012 duty of the State to apply these principles when framing laws. the
Nov. 2012 The most important Directive Principles can be summari narised
Doc. 2016
under as
a

Securing a social order to promote the elfare of the

the people.
Den.
IS. 38]
2. Securing adequate means of livelihood to all citizens
and women. [S. 38(a)]
men
3. Securing that the ownership and control of material resos.
are so distributed as best to subserve the common good.ces
38(b)] [S.
Securing that the operation of the economic system doee
besi
result in the concentration of wealth to the common detrimenot
IS. 38(0)
Explain Art. 38(d) 5. Securing that there is equal pay for equal work for both
men
of the Indlan and women. [S. 38(d)]
Constitution.
(2 marks) 6. Securing that the health and strength of workers are not
M.U. Apr. 2009 abused. [. 39(e)]
Nov. 2011 7. Securing that children are given opportunities and facilities s to
t
develop in a healthy manner. [S. 39()]
Name directive
principles related 8. Securing that the operation of the legal system promotes justice
to the rights of on a basis of equal opportunity, and providing free legal aid to
workers. (2 marks) ensure that opportunities for securing justice are not denied to
M.U. May 2012 any citizen by reason of economic or other disability. [Art. 39A1
Nov. 2015
9. Taking steps to organise village panchayats. [Art. 40
Write a short note 10. Making effective provisions for securing the right to work, to
on Rights of education and to public assistance in cases of unemployment,
workers under In- old age, sickness and disablement. [S. 41]
dian Constitution.
M.U. May 2017 11. Making provisions for securing just and humane conditions of
work and for maternity relief. [S. 42]
Explaln Art. 42 of 12. Securing to all workers, work, a living wage, conditions of work
the Constitution of
Indla. (2 marks)
ensuring a decent standard of life and fullenjoyment of leisure
M.U. Nov. 2009 and social and cultural opportunities. [Art. 43]
13. Taking steps to secure the participation of workers in the
management of undertakings, establishments and other
organisations engaged in any industry. [Art. 43A
 HUMAN RIGHTS UNDER THE CONSTITUTION OF INDIA 21

14. Securing a uniform civil code throughout the territory of India

for all citizens of the country. [Art. 44]
15. Provision of early childhood care and education for all children
until they complete the age of six years. [Art. 45]
16. Promoting the educational and economic interests of the
Scheduled Castes, Scheduled Tribes and other weaker
sections of the people. [Art. 46]
17. Ralsing the level of nutrition and the standard of living and the Explain Art. 47 of
improvement of public health. [Art, 47] the Constitution of
India. (2 marks)
18. Organising agriculture and animal husbandry on modern and M.U. Apr. 2011
scientific lines. [Art. 48]
19. Protecting monuments, objects and places of artisticor historic
interest. [Art. 49]
20. Taking steps to separate the judiciary from the executive in
public services. [Art. 50]
21. Protection of international peace and security, maintaining just
and honourable relations between nations, fostering respect
for international law and treaty obligations and encouraging
settlement of international disputes by arbitration. [Art. 51]
[A reference may be made to Appendix I for the list of the
Directive Principles as contained in the Constitution of India. ]

D. JUDICIAL ACTIVISM
(PROTECTION OF HUMAN RIGHTS BY
COURT IN INDIAA)
The human rights guaranteed by the Constitution of India have What is meant by
been briefly listed above. As noted earlier, the right to enforce fundamental judicial activism?
rights is itself a fundamental right under Art. 32 of the Constitution. Explain the role of
the courts in
However, all such rights would remain "paper rights" unless there is an enforcing human
active judiciary to protect and enforce these rights. It is here thatjudicial rights.
activism of the Suprenme Court and the High Courts is seen at its best. M.U. May 2013
Thejudiciary has always stepped in to fill the lacuna left by the legislature
and the executive, and has come to the aid of the common man when
the other two organs of the govemment have failed to provide any relief. Write a short note
on : Role of the
In all cases where human rights have been sought to be enforced, Supreme Court in
the courts have relaxed the requirement of locus standi, allowing any protecting and
public-spirited individual or organisation to file a writ petition. Thus, for enforcing human
rights.
instance, the Supreme Court has observed that citizens who had formed M.U. Nov. 2008
a society were subject to fundamental duties under Art. 51 (g) of the Nov. 2009
Constitution, and therefore, did have locus standi to move the court to Apr. 2010o
 22 HUMAN RIGHTS

prevent ecological degradation. (Goa Foundation v. State of c

f Goa,
2000 Bom. 318) AIR
Dlscuss In detall So also, the courts have not insisted on the fulfillment ne
the role of the
Supreme Court In
requirements of a writ petition when the question concerns the formal
of human rights. Courts have often taken suo motu action in the
me
jiolatlon
the protection of atter,
human rights In often based on media news like newspaper reports. In sever cases
Indla. courts have converted telegrams received by Judges into ann
M.U. Nov. 2008 writ petitions. (See D. K. Basu v. State of West Bengal and Prem
Prem.riate
Nov. 2009 Delhi Administration, discussed below.) Shankar
Shukla v.
Apr. 2010
Generally speaking, the law requires a litigant to exhates
Apr. 2011
remedies under the general law before fling a writ petition.
st allhis
Nov. 2012 Howehis
petition. Howe vever,
the matter of enforcement of fundamental rights, courts have e, in
in
interests of justice, issued appropriate orders even in cases w in the
the
petitioner has not exhausted all the other remedies availableto he the
ere
to him.
In most cases, writs have been filed when the petitionere
have actually been violated. However, in fit cases, the Coutehts ghts
arts
entertained writ petitions even when there is an imminent daneave
such a right would be violated, as for instance, in Ujjan Bal vnger that
U. P (AIR 1962 SC 162)
3ai v. hat
State of

Discuss the Impor The Supreme Court and various High Courts have, in num merous
tant contributions cases, stepped in to avert or cure a violation of human rights. The cases
made by the judl- which appear below are only a few instances of thisjudicial activisn
ciary In the uplift
ment of human In D. K. Basu v. State of West Bengal, a telegram addressed th
to
rights in India. Chief Justice of India drew the attention of the Supreme Coeto
M.U. Nov. 2013 cases of widespread custodial torture and custodial deathsiinja
Apr. 2016 and police lock-ups. This telegram was converted into a writ pet
and the apex court laid down eleven guidelines to be followed in
cases of arrest and detention. (D. K. Basu's case is discie lat
"The Judiclary has
always been ac
length in Chapter 7.)
tive." Explain the Likewise, in Charles Shobraj v. Superintendent Central Jail, Tiha
concept of judiclal (also discussed in Chapter 7), the Supreme Court observed that that
activism in the
Implementation of
handcuffing of a prisoner, unless absolutely necessary, is rima
International con- facie inhuman and repugnant to Art. 21 of the Constitution. As
ventions for safe observed by Justice Krishna lyer in that case, "Imprisonment does
guarding human not spell farewell to human rights."
rights of citizens,
with the help of In one case, despite a Magistrate's directions not. to produce a
landmark Su prisoner in court in handcuffs unless absolutely necessary, he was
preme Court Judg-
ments
nevertheless produced handcuffed on every occasion. He,
M.U. Nov. 2015
therefore, addressed a telegram to the Judges of the Supreme
Court, who converted it into a habeas corpus petition, and granted
the necessary relief to the prisoner. (Prem Shankar Shukla v. Delhi
Administation, AIR 1966 SC 2957)
 HUMAN RIGHTS UNDER THE CONSTITUTION OF INDIA
23

Long before the Constitution was amended to include the

right to Dlecuss the role o
education as a fundamental right, the Kerala High Court had ruled 8.G. In Improve-
that this right was implicit in the right to life and personal liberty. ment o1 Righte
(P Cherriyakaya v. Unlon of India, AIR 1994 Ker. 27) relating to healthy
environment.
LIkewise, freedom of the press is not specifically mentioned in Part M.U. May 2017
ll of the Constltution. The Supreme Court has however ruled, time
and again, that the freedom of speech and expression includes Establish the links
the freedom of the press, and is therefore available to the same between emviron-
ment and human
extent and is subject to the same restrictions. (See, for instance, rights. Show, with
Romesh Thappar v. State of Madras, AIR 1950 SC 241) relevant case law,
It has been held that the freedom of how the quality o
speech does not include the ife Is Included im
freedom to use loudspeakers. In fact, freedom from tormenting the right to fe as
sounds is, in the opinion of the apex court, guaranteed by the guaranteed by Art
Constitution of India. (P. A. Jacob v. Superintendent of Police, 21 of the Consti
Kottayam, AIR 1993 Ker 1) tution of lIndia.
M.U. Nov. 2003
The same feeling is reflected in the judgment of the Calcutta High
Court when it held that the indiscriminate use of microphones and "The right to a
loudspeakers during daily pujas and other religious activities violates clean and heathy
a citizen's right to sleep and his right not to hear. (Biranganga environment Is a
Religious Society v. The State, (1996) 100 CWN 617) iundamental
rlght." Explaln
Perhaps the most innovative approach to Article 51A(g) was evolved with reference to
in L. K. Koolwal v. State of Rajasthan (AIR 1988
Raj 2), where the case law.
petitioner prayed for a writ of mandamus to be issued to the Jaipur MU. Nov. 2012
municipality to discharge its 'primary duty' and remove the filth,
a short note
rubbish, night soil, odour and other noxious and offensive matter Write on Right to
which resulted in an acute sanitation problem and health healthy environ
hazard
for Jaipur citizens. Adopting a novel approach, ment.
the High Court held
that while Article 51A(g) is ordinarily regarded as the duty M.U. Nov. 2013
of citizens,
it creates a right in favour of the citizens to
move the Court to enforce
the State to perform its duties. The court therefore gave Write an essay on
the Human Rights and
administration six months to clean up the entire city
of Jaipur, the environment.
dismissing the plea of lack of staff and of funds. Are laws In Indla
In M.C. Mehta v. State of Tamil adequate to pro
Nadu (discussed in Chapter 6), the tect the environ
Supreme Court laid down important guidelines to protect children ment7
from economic and social exploitation. M.U. Apr. 2009
Likewise, in Vishal Jeet v. Union of India
(also discussed in Chapter
6), the apex court gave stringent directions Write
to prevent flesh trade on a short note
and sexual exploitation of children, pointing out Judlclal
that the objectives actlvism In
contained in Art.39 of the Constitution reflect the great
anxiety of environment law.
the framers of the Indian Constitution to protect and M.U. Nov. 2014
safeguard the
interests and welfare of children in the country.
 24 HUMAN RIGHTS

When the question before the Kerala High Court (in F K Hussaln
v Union of India, AlR 1990 Ker. 321) was whether the rln
rights
clean water and unpolluted air are attributes of the rig to to
t tolfe
guaranteed by Article 21, it answered this question in the irmative
and added:
Explain the con
cept of Right to The right to life is much more than the right to animanimal
healthy environ existence and its attributes are manifold, as life itse.
ment with the help The right to sweet water and the nght to free air are the
the
of Supreme Court attributes of the right to life for these are the basic
Judgments.
elements which sustain life itself"
M.U. Jan. 2018
Dec. 2019 The above view of the Kerala High Court found strong supp
port a
year later when Justice K. N. Singh of the Supreme Court a
to
obse erved
that "the right to live includes the right enjoyment of pollut
free water and air for full of
enjoyment life. (Subash Kumarv. s
ash Kumarv
Bihar, St
of AIR 1991 SC 420)
The Supreme Court has reiterated that the right to live in a pollution
free environment is a facet of Art. 21 of the Constitution in A
Mehta v. Union of India (AIR 1989 SC 1986).
Slow poisoning via environmental pollution has also been held
be violative of the right to life under Art. 21. (T. Damodar Rao
t
The Special Officer, Municipal Corporation ofHyderabad, AIR 1987
A.P. 171)
It has also been held that non-smokers have a right to be protected
against the adverse effects of "passive smoking", thus justifyina a
ban on smoking in public places. (Muri Deora v. Union of India. dia,
AIR 2002 SC 40)
In the Taj Mahal Case, the Supreme Court ordered industries in
the TTZ (Taj Trapezium Zone) to stop functioning and relocate to
alternate sites, as they were polluting the atmosphere by usino
coal and coke as industrial fuel. (M. C. Mehta v. Union of India,
(1997) 2 SCC 353)
Likewise, when a public interest litigation was filed to protect the
city of Delhi from the environmental pollution caused by hazardous
and noxious industries operating in the city, the Supreme Court
ordered 168 such industries to be shifted or relocated to other
places. (M. C. Mehta v. Union of India, (1996) 4 SCC 750)
The Patna High Court also has held that since protection of the
environment is now a fundamental duty under Art. 51A(g) of the
Constitution, the State was obliged to ensure that it directed the
closure of a tyre rethreading plant set up in a residential area,
which

was emitting carbon dioxide and other obnoxious gases, causing

great harm to the residents of the locality as well as to the
 HUMAN RIGHTS UNDER THE CONSTITUTION OF INDIA 25

environment. (Sitaram Chhaparia v. State of Bihar, AlIR 2002 Pat

134)
The Supreme Court has observed that Arts. 39, 47 and 48A (all
dealing with directive principles) collectively cast a duty on the State
to secure the health of the people and protect and improve the
environment. (M. C. Mehta v. Unlon of India, (2002) 4 SCC 356)
The Andhra Pradesh High Court went a step further and held that
In view of Arts. 48A and 51A(g), protection of the environment is
not only the duty of every citizen, but also the obligation of the
State and all other State organs, including the judiciary. (T
Damodhar Rao v. The Special Officer, Municipal Corporation of
Hyderabad, referred to earlier)
Likewise, the High Court of Himachal Pradesh has observed that,
in Arts. 48A and 51A(g), there is both a constitutional pointer to the
State and a constitutional duty on the citizen, not only to protect
and improve the environment, but also to safeguard the forests,
the flora and fauna, the rivers and lakes and all other water
resources of the country. (Kinkri Devi v. State, AIR 1988 H. P.4)

0 -
 3
THE PROTECTION OF
HUMAN RIGHTS ACT, 19

National Human
Rights Commission

The following topics are discussed in this Chapter:

What are the A. Background of the Act
sallent features of
the Protection of B. Aims and objects and coming into force of the
Human Rights Act, C. Definition of "human rights" under the Act
19937
M.U. Nov. 2009 D. Constitution of the National Human Rights Com
E. Functions of the National Human Rights Comm
F. Powers of the National Human Rights Commis
GProcedure to be followed by the National H
Commission
H. Application of the Act to armed forces
I. State Human Rights Commissions
J.Human Rights Courts
K. Bar of limitation
L. Concluding remarks

A. BACKGROUND OF THE ACT

The establishment of a national institution to proteca
human rights plays an important role in the good gove
country. Such an institution serves a useful purpose frome
Firstly, it assists the judiciary in the performance of its dui
it complements the judiciary by monitoring
the functic
agencies in the country responsible for the prevention
human rights. Lastly, t can make a significant contributia
ofthe government in developing a human rights culture by
aware of their rights.
26
 THE PROTECTION OF HUMAN RIGHTS ACT, 1993 27

The idea of setting up a national institution for protection of human

rights in every country was conceived by UNEScO as far back as in
1946. Twenty years later, the General Assembly of the United Nations
(UN) adopted a resolution in 1966 for the creation of a national
Commission on Human Rights in all member states (including India). In
1970, it was agreed that the setting up of such a body should be decided
by the government of each country in light of the traditions and institutions
in that country.
The question came up again in the World Conference on Human
Rights, when member states of the UN were urged to strengthen their
national structures and institutions for the protection and promotion of
human rights. However, there was not much progress at the international
level in this direction, and it was only after the Vienna Declaration that
several countries set up national institutions like human rights
commissions and ombudsmen.
In the course of the proceedings of the Social, Humanitarian and
Cultural Affairs Committee of the UN (commonly referred to as "the Third
Committee"), India showed a keen interest in the establishment ofsuch
an institution in every country. It introduced a Draft Resolution
emphasizing the importance of the independence and integrity of such
a body. It went a step further to request the UN Secretary-General to
submit a Report to the General Assembly of the UN, within a period of
two years, regarding the functioning of such institutions in different
countries and their contribution in implementing human rights.
This bold stand taken by India on an international platform, though
laudable, was in stark contrast with the fact that no such institution had
yet been set up in India. It was only in the early 1990s that India felt the
pressure from other countries to establish a human rights commission
in the country. Further pressure also came from the domestic front in
view of the political unrest and violence that erupted at that time in various
parts of India, and in particular, in Jammu and Kashmir, Punjab and
Andhra Pradesh.
Almost as a knee-jerk reaction to the mounting international and
domestic pressure, the government urgently introduced a hurriedly
irafted Bllin the Lok Sabha in May 1992. The Bill was then referred to
the Parliamentary Standing Committee, which sat on it for a long time.
More than a year passed by without any enactment, during which period
national and international pressure and criticism kept on increasing.
UItimately, without due deliberations or political or national discussions
or debates, on September 28, 1993, the President ofIndia promulgated
an Ordinance providing for the establish ment of a Human Rights MCQ No. 14, 15
Commission in India. About four months later, both Houses of Parliament
 28 HUMAN RIGHTS

passed the Protection of Human Rights Act, which replaced th

Ordinance. he earlier
S.3 of the Act provides that the Central Government shall .
MCQ No. 16 a body called the National Human Rights Commission (NHRCltuts
contrast to this mandatory provision, S. 21 of the Act meekly Instarkstar
lays
that a State may constitute a Human Rights Commission atdow
the
down
level. State

B. AIMS, OBJECTS AND COMING INTO

FORCE OF THE ACT
The aim and purpose of the Act, as containedin
in its Preamble
Preamblo .
set up: ,isto
A National Human Rights Commission,
State Human Rights Commissions (at the state ate level)
levell
Human Rights Courts and
for the "better protection of human rights in India".
Although the Bill received the President's assentand and was notified
n
in January, 1994, S. 1 of the Act gives it a retrospective effect
MCQ No. 17 by pro iding
that it shall be deemed to come into effect on September 28, 1993
date on which the Ordinance had been promulgated. the

C. DEFINITION OF "HUMAN RIGHTS

UNDER THE ACT
The definition of the expression "human rights", contained in
s
2(d)of the Act is interesting. The term is defined therein as followe
Define "human "Human rights" means the rights relating to life, liberty, equality
rights" under the and dignity of the individual guaranteed by the Constitution or
Protection of
Human Rights Act,
embodied in the intemational covenants and enforceable by
1993. Explain the cOurts in lIndia".
role of the NHRC. The expression "international covenants" used in the above
M.U. May 2012
definition seems to be an obvious reference to international covenants
Nov. 2015
like the International Covenant on Civil and Political Rights (ICCPR), the
International Covenant on Economic, Social and Cultural Rights
(ICESCR) and other similar covenants to which India is a party.
It is pertinent to note that these Covenants are not directy
enforceable in Indian courts. That being so, their inclusion in the above
definition appears to be totally superfluous, with the result that the
definition of "human rights" stands restricted to the rights guaranteed by
the Indian Constitution, that is, the fundamental rights contained in Part
 THE PROTECTION OF HUMAN RIGHTS ACT, 1993 29

ll of the Constitution, which are in any case fully enforceable under Art.
32 and At. 226 of the Constitution.
At the time of passing of the Bill, fundamental rights did exist as
part of the Constitution. However, there was a growing concern about
mass violations of human rights all over the country and it was expected
that the new law would address these concerns. Evidently, the existing
laws and procedures were being reviewed by the government with a
view to bring about greater accountability and transparency in the
enforcement of human rights in India. With al the conferences and
seminars where wide-ranging discussions and debates took place
preceding the introduction of the Bill, one would have expected a more
comprehensive enactment than one which confines the scope of human
rights to those rights already guaranteed by the Constitution. This may
be looked upon as the biggest lacuna in the Act, and one wonders how
the Act can give 'better protection of human rights' (as claimed in the
Preamble) than what existed before the Act was passed. Or, is this just
one more instance of the misplaced enthusiasm with which new laws
are passed in India - often in response to magnanimous international
obligations hurriedly undertaken by the country?

D. CONSTITUTION OF THE NATIONAL

HUMAN RIGHTS COMMISSION
S. 3 of the Act provides for the establishment of a National Human State the compesi-
Rights Commission (NHRC), consisting of the following five members, tion and funetionss
of the National
namely, Human Rights
a Chairperson, who is a former Chief Justice of the Supreme Commisslon.
Court M.U. Dec. 2019

one member who is, or has been, a Judge of the Supreme

Court;
one member who is, or has been, the Chief Justice of a High MCQ No. 18

Court; and
two members, being persons having knowledge of, or practical
experience in, matters relating to human rights.
These members (including the Chairperson) are appointed by the On whose
President of India on the recommendation of a Committee headed by recommendation,
the Presldent of
the Prime Minister of India. All members hold office for. a period of five Indla appoints the
years or until the age of 70 years, whichever is earlier. On ceasing to Chalrperson of the
hold office, such persons are not eligible for any further appointment NHRC? (2 marks)
under the Government of India or the Government of any State. M.U. Apr. 2018
Thus, the two basic qualifications of the Chairman of the NHRC
MCQ No. 19
are that he/she should be a former Chief Justice of the Supreme Court
 30 HUMAN RIGHTS

State 8ny two and under the age of seventy. Additionally, his or her nam. ame
quallficatlons of recommended by the Committee referred to above., should
the Chalrperson of be
the National The first Chairperson of the NHRC was Justice Ranaesnath
Mis
Human Rights a former Chief Justice of India. The other Chief Justices ofIndia Mishra.
w
Commisslon. became Chairpersons of the Commission were JusticeVenkata Ve
M.U. May 2015 Justice Verma, Justice Anand and the rather controvereichalla
Belakrishnan (who came under a cloud for allegedly owa
slal dug
ownin Justice
asse
disproportionate to his income). In February 2016, Justice H.L assets
ex-Chief Justice of India, was appointed as the Chairmanoof Dattu
Df
Write a short note th
National When the NHRC discharges any function listed in clausee
on
Human Rights of S. 12 (below), the following three persons are also deemed
R
s (b)to
Commisslon.2008
members of the NHRC, namely, -
deemto (
to be
M.U. Nov. 2008
Apr. 2010 (a) the Chairperson of the National commission for
Nomen;
Wor
Nov. 20100 ommission
(b) the Chairperson of the National Commission
for Minoritie
n
Jan. 2018 and es
(c)the Chairperson ofthe National Commission for
Schedule
Castes and Scheduled Tribes.
The headquarters of the NHRC are in Delhi. However. th
can establish offices in other cities in India with the previousAnNHRC
evious approval
the Central Government. of

E. FUNCTIONS OF THE NATIONAL

HUMAN RIGHTS COMMISSION
State the composl Under S. 12 of the Act, the ten functions of the NHRC are to
tlon and functlons (a) inquire, suo motu or on a petition presented to it by a victim.
of the Natlonal ctim or
Human Rights
any person on his behalf, into any complaint of violation
violationo
Commisslon. human rights or abetment thereof, or negligence in the
M.U. Dec. 2019 prevention of such violation by a public servant;
(b) intervene in any proceeding involving any allegation of violation
Name two func of human rights pending before a court, with the approval c
tlons of the Na
tlonal Human such court;
Rights Commls (c) visit, under intimation to the State Government, anyJail ora
slon. (2 marks)
M.U. Nov. 2012
other institution under the control of the State Governmen
May 2017 where persons are detained or lodged for purposesd
treatment, reformation or protection or to study the living
Dlscuss the role of conditions of the inmates and make recommendations thereon
the NHRC In the (d) review the safeguards provided by or under the Consttufon
protectlon of
or any law for the time being in force for the protection of hume
human rlghts.
M.U. Apr. 2009 rights and recommend measures for their effectie
Nov. 2011 implementation;
 THE PROTECTION OF HUMAN RIGHTS ACT, 1993 31

Explain In detall
(o) review the factors, Including acts of terrorism, thatinhibitthe the functioning of
enjoyment of human rights, and recommend appropriate the National Hu-
remedial measures; man Rights Com
mission (NHRC)
() study treaties and other international instruments on human and discuss somne
rights and make recommendations for their effective of the recomme
implementation; datlons made by
the NHRc.
(9)undertake and promote research in the field of human rights M.U. Apr. 2018
(h) spread human rights literacy among various sections of society
and promote awareness of the safeguards available for the Explain the
protection of these rights through publications, media, seminars functions and
powers of the
and other available means;
NHRC.
) encourage the efforts of non-governmental organisations and M.U. May 2019
institutions working in the field of human rights;
0) perfom such other functions as it may consider necessary for
the promotion of human rights.
Under the Human Rights (Procedure) Regulations, 1994, no fees
are payable when filing complaints under the Act and the NHRC may,in
its discretion, accept complaints filed through telegram or fax.

F. POWERS OF THE NATIONAL

HUMAN RIGHTS COMMISSION
Powers relating to inquiries
Under S. 13 of the Act, when inquiring into any complaint under the
Act, the NHRC has all the powers ofa civil court under the Civil Procedure
Code, 1908, in respect ofthe following six matters, namely,
(a) summoning and enforcing the attendance of witnesses and
examining them on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court
or office;
(e) issuing commissions for the examination of witnesses or
documents; and
() any other matter which may be prescribed.
Powers relating to investigation
Under S. 14 of the Act, for the purpose of conducting any
investigation pertaining to an inquiry under the Act, the NHRC may utilise
the services of any officer or investigation agency of the Central
Government or any State Government. Such an officer or agency may:
 32 HUMAN RIGHTS

(a) summon and enforce the attendance

of anu
oxamine him; person
(b) require the discovery and production of any do ar
(c) requisition any public record or copy thereof ment,
from a
an
any
offic
G. PROCEDURE TO BE FOLLOWED
THE NATIONAL HUMAN RIGHTS COMMIS: BY
Under S. 17 of the Act, when inqulring into any complaint
of human rights, the NHRC can call for any information sintofviolalio
the Central Government or a State Government. If
of Violas
or report
such information or report, the NHRC is satisfied that no fthPort
If on
the rece fror
ceipt
eceipt
is required or that the required action has already further o

concerned government, it may close the complaint an en ter

been takenin inqu-
nquir

complainant accordingly. If it is not so satisfied, the by th

inform
an inquiry into the complaint.
NHRCOrm th
If the information or report called for as
above is
the NHRC within the time stipulated by it forthis purposenot received
to inquire into the complaint. iteived b
procee-
After completing its inquiry, the NHRC may
take anv of
listed below:
(a) discloses a violation of human
If the inquiry
rights hu .
servant or negligence on his part to prevent a publi.
the NHRC can recommend to the such a vio
concerned goveoatiom
authority that proceedings be initiated to ment
prosecute o-

person or that any other action be taken

against uch
himn
NHRC may deem fit. as the
(b) The NHRC may approach the Supreme
appropriate High Court for such directions, Court o the
orders Orhe
may be deemed necessary.
In NHRC vs. State of Arunachal Pradesh (1996 SCOC
7421 th
the
NHRC approached the Supreme Court under Article
Constitution for protection of the Chakma refugees ofthe 32
MCQ No. 20
from tho
Chittagong Hills tribal areas of Bangladesh, whose life and
security was threatened by local politicians and youth leader
in the state of Arunachal Pradesh. The Supreme
Court granted
relief to the refugees after recording a violation of Articles 14
and 21 of the Constitution.
(c) The NHRC may recommend to the concerned governmentor
other authority, the granting of such immediate interim reliefto
the victim or members of his/her family, as the NHRC may
consider necessary.
 THE PROTECTION OF HUMAN RIGHTS ACT, 1993 33

It is clear from the above that the NHRC has no powor to pess eny
order or give any relief on its own in the coase of a violation of human
rights- however gross such a violation may bo. All it can do is to make
a recommendation to the concemed authority or approach a court of
law for orders or directions.
Perhaps the most glaring example of how powertess the NHRC is
when it took suo motu action on the communal riots that took place in
Gujarat in early 2002. A team of the NHRC visited the state, made aa
complete investigation and inquiry in the matter and prepareda
confidential report in which it came to the conclusion that the State
Government had "failed in its primary and inescapable responsibility to
protect the life, liberty and dignity of the citizens. The release of this
sensitive report was initially withheld to provide an opportunity to the
Gujarat State Government to comment on its contents. Unfortunately
the Gujarat Government did not bother to respond. The report was then
made public and there was nothing further that the NHRC could do.
Sadly, the matter ended there.

H. APPLICATION OF THE ACT TO ARMED FORCES

If a complaint is received by the NHRC as regards a violation of
human rights by members of the armed forces, its powers andjurisdiction
are even more restricted. In such cases, it can only seek a report
regarding the matter from the Central Govemment. On receipt of the
report, it may either make its recommendations to the Central
Government or it may decide not to proceed further with the complaint.
The Central Government, in turn, must inform the NHRC about the action
taken on such recommendations within a period of three months or such
further time as may be allowed by the NHRC. It is also obligatory on the
NHRC to publish a report setting out the recommendations made by it
to the Central Government (as above) and the action taken by the said
government on such recommendations. (S. 19)
Significantly, a very broad connotation has been given to the
expression "armed forces". Under S. 2(a) of the Act, the expression
"armed forces" means the naval, military and air forces and includes
anyotherarmed forces ofthe Union, which would include the BSF (Border
Security Forces) and other para-military units.
Itis generaily felt that keeping the armed forces, BSF, etc. practically
out of the reach of the NHRC is notjustified- all the more so, when one
recalls the excesses and atrocities committed in the recent past by the
army and para-military forces in several parts of India, and in particular
in Kashmir and the North-East. In fact, the NHRC itself had made a
recommendation to the Central Government that at least para-military
 4 HUMAN RIGHTS

forces be brought within its jurisdiction- a

not accopted by the Central Government recommendallon wh
Many human rights organisations such was ch
as Amnesty Inta.
and the Human Rights Watch have condemned human matlona
India particularly in Kashmir and the North-East-whers rights a
abus
sbuse
executions. 'disappearances and torture are quite extra-jsdlcial
in
strong protests have been held against the Armedfrequent Sev
Force
wide powers Ins (Spe
Powers) Act (AFSPA)which gives the military (Spec
areas to arrest and even the right to shoot and kill, disturber
which i 'distua
facilitated gross abuse of human rights with mpunity, is bed h
vicious cycle of violence and mayhem. thus fuelinhas
a
1, STATE HUMAN RIGHTS COMMISSIONS
Who constitute the s. 21 of the Act envisages the establishment Huma
State Human Commissions at the state level, as for of
Rlghts Commis instance, the Maharashtra9ht
Rights Commission, and provides that aState may hts
raHuman
uman
slon? constitute
Rights Commission at the State level. Such a Commission Human
(2 marks)
M.U. Jan. 2019 five members as under: consists
istsof
a Chairperson, who is an ex-Chief
Justice of a High
one member who is, or has been, a Co
ourt
Judge of a High
High
one member who is, or has been, a District Cou
Judge in
and s
thatState
two members, being persons having knowledge
experience in, matters relating to human of, or nra
rights.
The above appointments are made by the Governor
of the s
the recommendations made bya Recommendatior Committee on
o
by the Chief Minister of the State. head
State Commission is authorised to inquire into human richt
violations only in respect of matters which fall within List II rights
(State
and List lll (Concurrent List) of the Seventh Schedule of the Constit
of India. However, if any such matter is already being inquired inta hu
the NHRC or by any other Commission duly constituted under
any law
in force, a State Commission ould have no jurisdiction to
inquire into
such a matter.
Subject to what is stated above, the powers and functions of a
State Commission are the same as those of the NHRC.
From the language of the Act, it is clear that the establishment ofa
State Commission is not mandatory, but is left entirely on the discretion
of every State. So far, State Commissions have been established in
twenty-three States and Union Territories although many of them ar
-

currently not functional. Interestingly, some States have openly declare

 THE PROTECTION OF HUMAN RIGHTS ACT, 1993

their Inability to set up a State Commission, citing financial constraints

or non-availability of judiclat personnel as the main reasons
In a Report submitted by the NHRC some years ago, it was
lamented as under:
The National Hurman Rights Commission cennot but observe,
once again, that it is disappointed with the slow paca with
which State Governments are acting to constitute State Humnan
Rights Commissions.

J. HUMAN RIGHTS COURTS

s. 30 of theAct provides that, for the purpose of providing speedy
trials of offences arising out of violations of human rights, the State
Government may, by notification and with the concurrence of the Chief
Justice of the High Court, specify for each district. a Court of Sessionto
be a Human Rights Court to try offences relating to violations of human
rights. This provision does not, however, apply if a Sessions Court is
already specified as a special court or if a special court has already
been established for dealing with offences relating to violation of human
rights. Special Public Prosecutors are also to be appointed for such
courts under S. 31 of the Act.
From the language of S. 30 of the Act, it is clear that there is no
obligation on the State Government to set up such courts. The section is
merely an enabling section, and the establishment of human rights courts
all over the country continues to remaina distant dream.

K. BAR OF LIMITATION
The NHRC and State Commissions have no jurisdiction to inquire
into any matter after the expiry of one year from the date on which the
act constituting the violation of human rights is alleged to have been
committed. [S. 36(2)]
The NHRC had earlier interpreted this provision generously to mean
that even if such an act was committed more than a year ago, the
Commission would have jurisdiction in the matter if its effects continued
to be felt later on, by invoking the principles of continuing wrong and
recurring course of action. However, the Supreme Court did not accept
this broad view, observing that such an interpretation would make S.
36(2) a dead letter. (N. C. Dhoundial v. Union of India, 2003 (10) SCALE
609)
The Supreme Court has also held (in Paramjit Kaur v. State of
Punjab, (1999) 2 SCC 131) that ina case where the NHRC proceeds to
investigate and inquire into a violation of human rights pursuant to the
36 HUMAN RIGHTS

directions of the Supreme Court under Article 32 of

bar contained in Section 36(2) will not apply. In such
thoc...
onstllullon
aneve
does not tunction under the provisions of the Act, but as. thn.
assisting the Supreme Court in the discharge of its an heNHRC
expert
constitutl
under Article 32. body
In addition to the above, Regulation 8 of
Commission (Procedure) Regulations, 1994, providesHuman
the .manpowe
powers

complaints of the following nature will not be entertained Ri

ghts
hurdina
namely, the
complaints with regard to matters which
ich are sub-judic
complaints which are vague, anonymous psea ce,
or eudonymou
complaints which are of a frivolous nature;
and ous
complaints which lie outside the purview
of thee NHRC.
Ar.

L. CONCLUDING REMARKSs
Itis certainly laudable that India is one of those
countries
triesthatha
a special institution at the national level to deal with violat
rights. Eversince its inception, the NHRC has handled ationofhuman have
complaints like unlawful detention, false charges and
voof hum
ustypes
false implication
implicatior
failure on the part of the police to take action, custodial violen. o
deaths, encounter deaths, harassment of prisoners, ce,custodial
commnustoda
sexual harassment and dowry deaths. olence,
A critical analysis of the Act, however, leads to
a conclhe
the country could have done much better in this regard.
Keepin
slonthatthas
that that the Bill in question was introduced and passed inmind
with the same hurry as the earlier Ordinance in Pa rliament
amen
in the mattter
promulgated, it is not surprising that the Act suffers was
was
infirmities, some of which are the following:
from severa
eral
The definition of "human rights" is practically restrictedto
fundamental rights guaranteed under the Indian to the
Constitur
When there is already an efficient redressal
machinery
violation of such rights (in the shape of the Supremefort
Cod
and the High Courts), one wonders as to what purpose out
served by the National and State Human Rights Commissin. is
ons
under the Act. Is it seriously contended that such Commission
are armed (or imagined to be armed) with more jurisdiction
or
greater powers than the supreme Court or the High Courts?
One would have expected that a body such as the NHRC
which consists of the highest judicial officers, would be armed
with plenary powers to pass far-reaching orders including
interim orders-in cases ofviolations of human rights. Howeve
 THE PROTECTION OF HUMAN RIGHTS ACT, 1993 37

as seen above, tho NHRC hes no powor to pass any such

order of give ony Immediato Interim rollof on its owm in the
case of a violation of human rlghts however gross such a
violation may be. All it can do is to make o recommendation to
the concerned authority or approach a court of law tor its orders
and directions. Instead of the NHRC being a tiger that protects
human rights, it is being regarded as a "loothless tiger that
only roars now and then but never bites.
Thus, although on paper it appears that the NHRC is fully
equipped to handle any situation, in practice, when the
government and in particular a State government
- refuses
to comply with its recommendation, the Commission is quíte
powerless. The fate of the NHRC's report on the communal
riots in Gujarat in 2002 (referred to earlier) is only one such
instance that shows that if the Commission's report is ignored,
the matter ends there.
The virtual exclusion of the armed forces from the ambit of the
Act is yet another feature of the Act that is open to attack
Members of the armed forces and the para-military forces
cannot be regarded as persons above the law or persons who
can blatantly indulge in violation of human rights. As stated
above, the NHRC itself has recommended that such an
exclusion is unjustified.
Again, the establishment of a State Human Rights Commission
is left entirely on the discretion of every State, with the result
that, so far, only twenty-three States and Union Territories have
set up State Commissions. It is safe to come to a logical
conclusionthat more the violations of human rights in a given
State, the less interested would such a State be to establish
Such a Commission. The noble purpose of the legislation is
thus lost even at the State level.
Lastly, it is totally in the discretion of a State Government
whether or not to designate a separate Human Rights Court
as provided by the Act. No wonder this provision remains only
on paper in several parts of the country.
 4
INTERNATIONAL DECLARATIONS
CONVENTIONS & ORGANISATIONN

Todeny people their humanrightsi to chalenge their veryhuma

manity
Nelson Mandela
This Chapter is discussed under the following heads:
A. Universal Declaration of Human Rights (UDHR)

B International Covenant on Civil and Political Rights (ICCR

C. International Covenant on Economic, Social and
Cultural P
(ICESCR)
D. American Convention on Human Rights (ACHR)
E. European Convention on Human Rights (ECHR)
F European Social Charter (ESC)
G United Nations Economic and Social Council (ECOSODc
H. The Center for Human Rights & the United Nations
Commissioner for Human Rights Hig
International Labour Organisation (ILO)
J. UN Conference on Human Environment
(The Stockhol
Conference) and the UN Environment Programme (UNEP
K. Agenda-21
LUnited Nations Educational, Scientific and Cultural
Organisation (UNESCo)
M. United Nations International Children's Emergency
Fund
(UNICEF)
N. United Nations Development Programme (UNDP)

A. UNIVERSAL DECLARATION OF HUMAN RIGHTS

(UDHR)

The Universal Dectaration of

HUMAN RIGHTS
38
 INTERNATIONAL DECLARATIONS, CONVENTIONS & ORGANISATIONS 39

December 10 is celebrated every year as the Internatlonal Human MCa No. 21, 22,
23 and 24
Rights Day, because it was on this day - in 1948 - that the Universal
Declaration of Human Rights (UDHR) Wwas adopted by the General
Assembly of the United Nations (UN) at Palais de Challot in Paris. This
Declaration represents the first global expression of rights to which all
human beings are inherently entitled.

aNorld Human
Nights Day
M r

The UDHR was adopted by the UN by a vote of 48 (including India)

in favour and 0 against. However, eight countries (including USSR and
Saudi Arabia) abstained from voting. Drafted by a Committee consisting MCQ No. 25, 26
of representatives from all over the world, with Mrs. Eleanone Roosevelt
as the Chairperson, this document sets out, for the first time in human
history, fundamental human rights which are to be protected on a
universal basis.
The UDHR contains a Preamble and 30 Articles which lay down
basic human rights which were later elaborated, extended and
expanded in subsequent international treaties and declarations, regional MCQ No. 27
declarations on human rights and in the Constitutions and domestic laws
of various countries. Even today, it stands as the foundation of all UN
activities relating to human rights.
The UDHR is also proclaimed to be a common standard of
achievement forall people and all nations, to the end that every individual MCQ No. 28
and every organ of society shall strive by teaching and education-to
-

promote respect for the rights and freedoms contained in this document.

Contents of the UDHR

nveTS
Hum
 40 hHUMAN RIGHTS
Dlscuss the Unl- The UDHRis divided into two parts: the Preamble, which
versal Declaratlon the reasons why this Declaration was signed and 30 ArticlaCiben des.
Df Human Rlghts,
1948. basic human rights. thatllst
M.U. Nov. 2008 The Preamble states that the "disregard and contempt
Apr. 2011 rights have resulted in barbarous acts which have for human
h
human
Apr. 2012 outrag
conscience of mankind". This seems to be a direct referene the
May 2013 War
atrocities committed in the course of the Second World War. the
objective ofthe UDHR was to present ideal human rights and The main
May 2019

in order to inspire all persons and countries to work for free

Write short note their nredoms
gressive
on Unlversal realisation, so that such "barbarous acts" would remain
emain a thing
Declaratlon of past. of the
Human Rlghts. The aims and objects of this Declaration are reflected in Pe
M.U. Nov. 2013
May 2017
which states that: its
its Preamble

The recognition of the inherent dignity and of

inalienable rights of all human beings is the equ
equal ang
What are the the foundatiorand
sallent features of freedom, justice and peace in the world.
the Universa
It is essential that human rights shoul
Declaratlon of be protected byh.
Human Rights, rule of law. by the
1948? It is essential to promote the development
M.U. Apr. 2011 of friendly relatione
between nations. tions
Name any three The people of the United Nations have reaffirmed
their faith in
oblectives of the equal rights for men and women and are determined
UDHR. (2 marks) to promote
social progress and better standards of life.
M.U. Nov. 2010
Nov. 2011 The UN has, in its Charter, reaffirmed its faith in fundamental
human rights, in the dignity and worth of the human person
Explaln in detall and in the equal rights of men and women.
the Unlversal The member states of the UN have pledged themselves to
Declaratlon of
Human Rights and
achieve the promotion of universal respect for, and observance
Its relevance In the of human rights and fundamental freedoms.
Modern World. Articles 1 to 30 of the Declaration lay down a comprehensive listo
M.U. Apr. 2018
human rights - civil, political, social and economic some of which are
MCO No. 29
summarised below.
1
Art. All human beings are born free and equal in dignity and
rights.
Art. 2 :Everyone is entitled to all rights and freedoms, despte
differences in race, colour, sex, language, religion, politicd
or other opinion, national or social origin, property, birthar
otherstatus
person
Art. 3 :Everyone has the right to life, liberty and security of
an
Art. 7 All are equal before the law and are entitled without
discrimination to equal protection of the law.
ERNATIONAL DECLARATIONS, conVENTIONS& ORGANISATIoNs 41

Art. 9 No one shall be subjected to arbitrary arrest, detention or

exile.
Art. 10 Everyone has the right to a fair and public hearing by an
independent and impartial tribunal
Art. 11 Everyone charged ith a penal offence is to be presumed
innocent until proved guilty. No person can be held guilty
for any act or omission which did not constitute a pena
offence at the time when it was committed. Nor can a
heavier penalty be imposed than the one that was
applicable at the time when the offence was committed.
(Protection against ex post facto laws)
Art. 12: No one is to be subjected to arbitrary interferencewith his
privacy, family, home or correspondence.
Art. 13: Everyone has the right to freedom of movement and
residence and the right to leave any country, including his
own.
Art. 16: Everyone has the right to marry and have a family.
Art. 18:Everyone has the right to freedom ofthought, conscience
and religion.
Art. 24: Everyone has the rightto rest and leisure.
Art. 30: No State, group or person has any right to engage in any
activity or to perform any act that may destroy any of the
above rights and freedoms.
al effect of the UDHR
Mrs. Eleanore Roosevelt, the Chairperson of the drafting Committee
e UDHR, proclaimed that the UDHR was being adopted as a
ration rather than as a treaty, because she believed that it would
a strong infiuence on global society. In other words, the Declaration
egally binding on its signatories -an aspect which has sometimes
regarded as its greatest drawback.
Although not legally binding, it is still a potent instrument that is
to apply moral and diplomatic pressure on states that violate the
ples enshrined in the Declaration. It
has often been contended
ecause countries have consistently invoked the UDHR for almost
ty years, it has become binding as a part ofcustomary international
n fact, in 1968, the United Nations Intermational Conference on
n Rights agreed that the Declaration "constitutes an obligation for
embers of the international community" to protect and preserve
hts of its citizens.
 42 HUMAN RIGHTS

Despite lacking in legal efficacy,the UDHR has

of Judiclaldecisions
as beenrolledy
and profusely clted in support in several ted
in casos where particular rights guaranteed under the al cou
that country have been upheld and violatlons of suchOmo rights oslclay
as for instance: denound
1. Courts in Italy have taken the view that tho UDHR
e
than a mere declaration of intent. Rather, it is a DH s
of law which must be deemed to have9ener oecome m
prind
domestic ltalian law. (Ministry of Home Afe Come Pri

2. The High Court of Tanzania referred to Article

vr
International Law Reports, Vol. 40 at p. 1911 fairs v. Kem par

(Right to equality) when declaring as unconst ofth 7 the

of Tanzanian customary law which discri onal
women. (Ephratim v. Pastory, Internationat
LawReportsage
87 at p. 106)
ris,
3. Courts in Chile have accepted the UDHR. Ras a
customary international law" and have cited
"declaratio
several decisions. the
documer

Write a short note 4. The Constitution ofIndia contains elaborate provislons

on: Indla and the protection of the rights contained in the Up
HR.Ind for
Unlversal Declara- have relied on the UDHR when interpretingfundamental
tlon of Human quaranteed by the Constitution. Thus, thendamentC
Rights. remeCourt
M.U. Apr. 2010
observed that although the DHR may not be Coun
legally
itshows how India understoodtthe nature of huma rights bind
binc
the Indian Constitution was adopted. (Keshavar rightsy
Compare the pro State of Kerala, AIR 1973 SC 1461) Bha
visions of UDHR Likewise, the Supreme Court has observed that the
vis-a-vis the Indlan applicabilia
pplicabi
Constitutlon. the UDHRand the principles contained therein can be rea neer
into the domestic jurisprudence of India. (Chairman Rly. if neec
if
M.U. Dec. 2019
Boarddv..
C. Das, AlR 2000 SC 988)
A similar approach was adopted by the Supreme Courti
MCQ No. 30 Education Society v. State of Bombay (AIR 1954 SC 561) andicom
Gandhi v. Union of India (AIR 1978 SC 597).
[ Protection of human rights in the Constitution of India has
been discussed in Chapter 2.] has

Critical appraisal of the UDHR

There is no doubt that the UDHR has set a common standam
achievement for the international community. It reflects fundame
beliefs shared by countries around the orld regarding human righ
is a profoundly important document for people all over the wortdbeca
it is founded on three key principles. Human rights are inalienabe
 INTERNATIONALDECLARATIONS,
convENTIoNS&ORGANISATI
one can over take them away.
cannot be entitled to some Human rights are oiso
of them and denied some i
human rights are intordependent. 9iy,
and work together, so that they are all partof a
all human beings can la eriork
productive life. erijoy ae, tree and
John Humphrey has
Mankind. The UDHR is called this Declaration the Magna Carta
regarded
and is reflected in and recognised as the touchstone of human rg
the world. Pope John Paul labeledby almost oveny written consttuto
HR it as "one of the
time". In a statement on espressíon
of the human conscience of our highest
2003, Marcello Spatafora of the December 10.
European
human rights at the centre of the frameworkUnion observed that "t placed
shaping relations within the international of principles and obligatons
community.
According to the Guinness Book
of World Records, the UDHR
the most wldely translated document in is
more than 400 different languages. In the world- with translations in
Declaration was celebrated, accompanied 2008, the 60th anniversary of the
by year-long activities
the theme, Dignity and Justice for All. around
he
Critics have, however, pointed a
finger at several deficiencies of
this Declaration, and in particular, the following
1. It is not binding on the states,
as it is only a declaration, or at
best, a recommendation. (This
has been discussed above.)
2. It does not contain any provision
for its implementation which
is left entirely to the goodwill of all
the member countries.
It does not contain any
provision for its amendment. The notions
and norms of "human rights" do change
from time to time, and
what was adequate seventy years ago may
not be so today.
4. Some ofthe rights enumerated
are very general in nature as
for instance, Art. 24, which provides
that everyone has the
right to rest and leisure.

B. INTERNATIONAL COVENANT
ON CIVIL
AND POLITICAL RIGHTS
(ICCPR)
The International Covenant on Civil and Political
Rights (ICCPR) is
a multilateral treaty adopted by the UN General Assembly
on December
16, 1966, which attempts to secure
the protection of civil and political
rights. It came into force on March 23, 1976 (as at
least thirty-five states
had to ratify it before it became operational). Today, it
has more than
150 members, including India. Its main object is to commit
the signatory
states to respect the civil and political rights of individuals, including
 44 HUMAN RIGHTS
L
the right to life, freedom of religion, freedom of snon
assembly, electoral rights, rights to due process ch, eodom
and a fair dos
rial, etc.
In whlch year was
the ICCPR adopted
and when dld It
come Into force?
(2 marks)
M.U. May 2013 International Covenant on
Civil and P'olitical Rights
Explain In detail The underlying aim and objective ofthe Covenant
the maln objects,
slgnificance and member states, that is, those states which have is to
to ensuret
ensure
signlficance and
Importance of the
Internatlonal
ICCPR, make available to everyone, the basic socialed and
and economic freedoms enumerated in the Covenant
signed
a
and ratified
,Politi
Convention on have ratified the Covenant are obliged to "protect ntries
Clvil and Polltical and preserv
human rights" and are "compelled to take dministrative, tha
Rights. e the
theba
basic
legislative measures in order to protect the rights judici
M.U. Apr. 2010 enshrine judicla.
licial,
and
and to provide an effective remedy". Article 1 of thetreaty
What are
the
the right of self-determination conferred on all persons,Covenante irea
the
andaeals ealswith
wi
objects of the obligation on the state to protect and respect nposes
InternatlonaI its realisation. The rights included in the
this right and .Oses promote
n
an
Convention on Covenant are
Civll and Political
available to all persons without any discrimination
or
heote
to oe
distinction made
Rights? (2 marks) on race, religion, colour, sex, language, political
opinion, nation08sed base
sed
M.U. Nov. 2008 origin, birth or other status.
The three international declarations, the
MCQ No. 31, 32
Covenant on Economic, Social and Cultural PR, the International
the Universal Declaration of Human Rights (UDHR), Rights CR) and
Explain the sallent are lon
upon collectively as the International Bill of oftenlooked
features of the Human Rights.
International Con The ICCPR is divided into six parts, containing
ventlon on Clvl two Optional Protocols were signed by some 53 Articles. Later
and Politlcal of the signatories tothe
Rights. original Covenant.
M.U. Apr. 2008 Part 1 (Article 1) recognises the right of
Nov. 2008 determination, including the right to freely all people to sel
Apr. 2009
o09 status, pursue their economic, social and cultural determine their political
Nov. 2011 goals and manage
and dispose oftheir own resources.
MCQ No. 33 Part 2 (Aticles 2- 5) obliges signatory
parties to pass legislation
wherever necessary, to give effect to the rights
recognised in the
What Is ICCPR and Covenant, and to provide an effective legal remedy
ICESCR? for any violationof
those rights. It also requires that such rights be
(2 marks) recognised without
distinction of any kind, such as race, colour, sex,
M.U. Apr. 2016 language, religlon.
political orother opinion, national or social origin, property,
birthorother
 INTERNATIONAL DEcLARATIONS, CONVENTIONS & ORGANISATIONS 45

status, and to ensure that they are enjoyed by all persons, including
Women.
Part 3 (Artlcles 6- 27) is the heart of the Covenant as it lays dawn
a comprehensive list of substantive rights and fundamental freedoms,
as for instance:
Protection of an individual's "nheraont right to lite and taking Name two rights
positive measures to reduce infant mortality and increase life concerning the
expectancy. family guaranteed
under the ICCPR.
The right to marry and found a family. M.U. May 2015
Recognition of the family as the natural and fundamental group
unit of society. MCO No. 34

Protection of the family by society and the state.

Rights of children (status as minors, nationality, registration
and name).
Prohibition of torture and cruel, inhuman or degrading
punishment.
Prohibition of medical and scientific experimentation on
prisoners without their consent.
Prohibition of slavery and enforced servitude.
Recognition of the rights to liberty and security of the person. MCQ No. 35
Prohibition of arbitrary arrest and detention.
Prohibition of the use of imprisonment as a punishment for
breach of contract.
Part 4 (Articles 28- 45) governs the establishment and operation
of the Human Rights Committee and deals with the reporting and
monitoring of the Covenant.
Part 5 (Articles 46 & 47) clarifies that the Covenant is not to be
interpreted as interfering with the operation of the United Nations or the
inherent right of all people to enjoy and utilise fully and freely their natural
wealth and resources'
Part 6 (Articles 48-53) governs ratification, coming into force and
amendment of the ICCPR.

Monitoring of the ICCPR: The International Human Rights

Committee
The /CCPR is monitored by the International Committee on Human MCQ No. 36
Rights, also known as the Human Rights Committee, constituted under
Art. 28 of the Covenant. This Committee is composed of eighteen
independent experts who are persons of high moral character and
recognised competence in the field of human rights. Due consideration
 46 HUMAN RIGHTS

is to be given to persons having legal experiencece in

in the fiel
fiela
perusal of the constitution of the Committee
both past d. ca
an A Aretul
reveals that most of the members have a legal background present
judges, lawyers or law teachers. either
The four main functions of the Committee are: as
(a) examination of reports filed by state parties:
(b) adoption of general comments on Articles
of the cCPR
t

(c) consideration of individual complaints

Protocols; and der the
under
Optic
(d) assessment of inter-state complaints.
Write a short note Optional Protocols to the lCCPR
on The two
optional Protocols There are two Optional Protocols to the ICCPR.
of the International effect in 1976 and the second in 1991. The First The frstcame
Convention on Protocol
Civll and Political
Human Rights Committee to entertain individual enablesinto
comables
communications. The Second Protocol enjoins
Rights. memheplaints the
M.U. Nov. 2007 necessary steps to abolish the death penalty. states and
totake
First Optional Protocol
The First Optional Protocol, which came
into force
1976, recognises the fact that the purposes on Mearch
of the ICCParch 23,
23
better achieved if the Human Rights Committee ould
WOuld ba
Covenant) is authorised to receive and consider (set up un be
der the
individuals claiming to be victims of violations communicatio ons
the
of
by the Covenant. It is, however, necessary that the rights guaraanteed
from
Sfrom

exhausted all available domestic remedies such an individua

before he files a ual has
before the Committee. complaint
The Committee cannot consider anonymous
complaints which it considers to be an abuse of complaintets or
this right or those whi
are incompatible with the provisions of the which
ICCPR. Likewise
Committee cannot consider complaints from
individuals in coint the
which are not parties to this Optional Protocol. ntrles
More than a hundred states have ratified
this Protocol. India
however, has not done so. a,

Second Optional Protocol

The Second Optional Protocol, which came into
force on July 11,
1991, aims at abolishing the death penalty in all
countries which have
signed and ratified this Protocol. This Protocol is based on
the conviction
that abolition ofthe death penalty would contribute to the enhancement
of human dignity and progressive development of human rights.
 INTERNATIONAL DECLARATIONs, cONVENTIONS & ORGANISATIONS 47

More than seventy states have ratified this Protocol. The states
which are parties to this Optional Protocol (as for instance, Austria
Belgium, Denmark, Finland, taly, etc.) must include, in the reports v/hich
they submit to the Human Rights Committee in accordance with the
provisions of the /CCPR, information on the measures that they have
adopted to give effectto the present Protocol. India is, however, not a
party to this Protocol, as it retains the death penalty as part of its criminal
jurisprudence.

C. INTERNATIONAL COVENANT ON ECONOMIC,

SOCIAL AND CULTURAL RIGHTS
(ICESCR)
The Intemational Covenant on Economic, Social and Cultural Rights xplain ICESCR
(ICESCR) is a multilateral treaty adopted by the United Nations General (2 marks)
Assembly on December 16, 1966, and it came into force on January3, M.U. May 2012
1976. India ratified the Covenant on April 10, 1979. The ICESCR commits
its signatory parties to work toward the granting of economic, social,
and cultural rights to individuals, including labour rights and the right to
health, the right to education, and the right to an adequate standard of
living. The Covenant is monitored by the UN Committee on Economic,
Social and Cultural Rights, and is divided into the following five parts:
Part 1 recognises the right of all people to self-determination,
including the right to freely determine their political status, pursue their
economic, social and cultural goals, and manage and dispose of their
own resources. It recognises a negative right of people not to be deprived
of their means of subsistence, and imposes an obligation on those parties
responsible for non-self-governing and trust territories (colonies) to
encourage and respect their self-determination.
Part 2 establishes the principle of "progressive realisation". It also
requires the rights to be recognised without discrimination of any kind
as to race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. The rights can
only be limited by law in a manner compatible with the nature of the
rights and only for the purpose of promoting the general welfare in a
democratic society.
Part 3 lists the economic, social and cultural rights covered by the
Covenant, including the following:
the right to work, under just and favourable conditions, with
the right to form and join trade unions
>the rightto social security, including social insurance;
 HUMAN RIGHTS
PTr '
the right to family life, including pald parental leave
protection of children; ndthe
the right to an adequate standard of living, inet.
adequate food, clothing and housing and the continuous cluding
con
improvement of living conditions;
the right to health, and in particular, the highest a
standard of physical and mental health; alnable
the right to education, including free universal
education, generally available secondary education primary
cation anriman
and equally
accessible higher education; ually
the right to participate in cultural life.
Part 4 governs reporting and monitoring of the Covenant. nant and
steps taken by the parties to implement it. the
Part 5 governs ratification, coming into force and amenda
the Covenant. of
D. AMERICAN CONVENTION ON HUMAN RIGHT
(ACHR)
America did not invent human rights. in a very real sense.man
nights invented America.
Jimmy Carter
Write a short note The American Convention on Human Rights (ACHR) is ar
on Amerlcan convention dealing with human rights. Also known as gional
the Pact
Convention on
José, it was adopted in San José, Costa Rica,,November 22, 196of San
Human Rights. 9
M.U.Apr. 2011 came into force on July 18, 1978. Membership of the ACHR is and hd
Nov. 2012 all member States of the Organisation of American States (OAS
Nov. 2013 As per its Preamble, the main purpose and objective of
Nov. 2015 the
Convention is "to consolidate, within the framework of democra
May 2017
institutions, a system of personal liberty and social justice based
Jan. 2018
respect for the essential rights of man". Some of its important provisions
may be summarised as under
Chapter 2 Chapter 2, the pivotal part of the Convention, runs into
twenty-three Articles, laying down a list of individual civi
and political rights to be made available to all persons
in the member States, as for instance:
The right to life from the moment of conception
The right to personal liberty
The right to humane treatment
The right to a fair trial
 INTERNATIONAL DECLARATIONS, CONVENTIONS & ORGANISATIONS 49

The right to freedom from ex-post facto laws

The right to privacy
The right to freedom of thought and expression
The right to freedom of conscience
The right to a familyy
The right to nationality
The right to participate in government
Rights of the child.
Chapter 3 Just one Article in Chapter 3 deals with economic, social
and cultural rights. On account of the somewhat cursory
treatment given to this aspect of human rights, an
Additional Protocolwas incorporated to ACHR in 1988
to elaborate on these rights.
Chapter 4 This Chapter lays down the circumstances in which
certain rights guaranteed by the Convention may be
suspended, as for instance, when there is an MCQ No. 37
emergency. It also prescribes the formalities to be
complied with for such suspension. Most importantly,
it provides that certain specified rights cannot be
suspended, as for instance, the right to life, the right to
a family, the rights of a child, and so on.
Chapter5 With a view to maintain a balance between rights and
duties, Chapter 5 declares that certain responsibilities
go hand-in-hand with the rights guaranteed by the
Convention, namely, that-
every person has responsibilities to his family, his
community, and mankind; and
the rights of each person are limited by the rights of
others, by the security of all, and by the just demands
of the general welfare, in a democratic society.
Chaps. 6-9: Chapters 6 to 9 contain detailed provisions for the
g creation and governance of the two bodies entrusted
with overseeing and implementing the ACHR, namely,
the Inter-American Convention on Human Rights and
the Inter-American Court of Human Rights.
In 1988; the parties to the ACHR added the first Protocol to the
Convention, providing for economic, social and cultural rights, as for
instance, the following:
50 HUMAN RIGHTS

The right to work

The right to social security
The rightto health
The right to a healthy environment
A second Protocol was added to the ACHR in 1990
abolish the death penalty. Interestingly, Trinidad and Tobago eeking
this Convention in 1998 over the issue of the death penalty der to
y.
Implementation machinery under the ACHR
As stated above, the ACHR has established the
Inter.A.merican
Commission on Human Rights, based Nashington
DC, SA.
Commission consists of seven members who are persons USA Thi
character and recognised competence in the field ofhuman of igh This
moral
ain function of the Commission is to promote respect ghts.The
In exercise of this mandate, the Commission
f humanright
for
seeks to rights
awareness of human rights amongst American people
The Inter-American Court of Human Rights,
also
ACHR, is based in San Jose, Costa Rica and consists set p by the
of seve n the
who are nationals of member States. These Judges are Judges
individual capacity for a period of six years. However, electe intheir
can be nationals of the same State. Five of the seven
no two Judges ne
.

Judges constit
the quorum for the Court.
State parties as well as the Inter-American Commission
can submit
a case to the Court, whose judgement is final and is not subiecttum
The Court also enjoys advisoryjurisdiction. The Court submits an
Report to the General Assembly of the OAS, and is required t Annual a
in particular, the cases in which a Member State has
not complier
its judgment, making pertinent recommendations on such with
non
compliance.
In 2012, Venezuela denounced the Convention,
accusing the Coud
and the Commission of to
trying undermine the stability of the govemmer
ent
of that country by interfering with its domestic affairs.

Canada's membership of the ACHR

Interestingly, Canada has signed the Convention but has not ve
ratified it. At one point of time, it publicly declared that it was, in principle
in favour of the Convention and was seriously considering ratifyingit
The main reason behind Canada's hesitation seems to bethe
unconditional pro-life provisions of the Convention, and in particuler
Art. 4, which guarantees the right to life from the moment of conception
This conflicts with the political thinking in Canada, where abortiont
legal.
INTERNATIONAL DECLARATIONS, CcONVENTIONS & ORGANISATIONS
51

Some political thinkers are of the view that one way out would be Name any two
for Canada to ratify the Convention with a reservation as regards abortion. Intern ational
In fact, this is exactly what Mexico did when it ratified the reglonal treaties
ACHR. However, concernn9
if Canada were to do this, it would then
contradict its avowed political protection of
and legal policy that no country should make any reservation when human rights.
ratifying a human rights treaty. M.U. Nov. 2014

E. EUROPEAN cONVENTION ON HUMAN RIGHTS

(ECHR)
The European Convention on Human Rights (ECHR) is a regional What does the
treaty for the protection of human rights and fundamental European Conven-
freedoms in
Europe. Earlier known as the Convention for the Protection of tlon on Human
Human Rights concerned
Rights and Fundamental Freedoms, it was signed at Rome on Novembeer
with? (2 marks)
4, 1950, and came into force on September 3, 1953. All member States M.U. Jan. 2019
of the Council of Europe are parties to the Convention. The signatory
states oblige themselves to secure certain rights to persons within their
jurisdiction. Write a short note
The ECHR was formulated by the Council of Europe after the on European
Convention on
Second World War and drew its inspiration from the aftermath of this Human Rights.
war. The guiding spirit behind this venture was the British lawyer and M.U. Nov. 2008
MP Sir David Maxwell-Fyfe, who had first-hand experience on how Nov. 2009
international justice could be effectively implemented. With his May 20122
assistance, the former French Minister and freedom-fighter, May 2013
Piere-Henri May 2014
Teitgen, submitteda Reportto the Council's Assembly, proposing a list
of human rights, most of which were drawn from the Universal Declaration May 2015
Apr. 2016
of Human Rights. After extensive debates, the Assembly sent a final
May 2019
proposal to the Committee of Ministers of the Council, and ultimately
the ECHR was drafted with a view to securing effective political
democracy.
Althougha modern style of drafting is reflected in this document,
its roots can be traced to earlier documents on human rights, and in
particular, the English Bill of Rights, the American Bill of Rights and the
French Declaration of the Rights of Man.
The Convention consists of five Sections, divided into several
Articles. The main rights and freedoms are contained in Section I. Articles
2 to 18 of this Section set out the basic rights and freedoms guaranteed
by the ECHR. Most of these Articles are divided into two parts. The first
part sets out the right and the second lists the exceptions and limitations
on such a right.
Some of the rights contained in Section I of the Convention are:
Everyone's right to life shall be protected by law.
 52 HUMAN RIGHTS

Noone shall be subjected to torture or to inhuman.

human
treatment as punishme ordegrading
No one shall be held in slavery or
servitude,
Everyone charged with a criminal offence
innocentuntil proved guilty according to shall be
law. Presum
esumed
Everyone has the right to freedom of thought,
religion. nsclence
Con

Everyone has the right to freedom of and

expression.
Men and women of marriageable age
ve the right
have
andfounda family. rie
to tomarry
The enjoyment of the above rights
and
secured without discrimination on any free s shal
race, colour, language, religion, political ground such shat
such ass
national or social origin, association or other as
with aa national opinion,
opin
property, birth or other status.
mir
The ECHR envisages the establishment
of
Human Rights, based in Strasbourg. A strong the European Euror
provided under which even one individual redress m chanism
Cou
COut
in a member
complaint, alleging a violation of his rights State can is
guaranteed file
such a violation underthe
A judgment of the Court finding file
he ECA
ECHR, aa
MCQ No. 38 concermed State which is obliged to execute is bindinng
the same. A on the
On the
known as the European Commission of Cormmission
Commission") is also set up for the Human
effective implementationRigh
The establishment of a Court to protect
of t the
HR
individuals from
rights violation is a unique feature of this Convention from human
because uman
a platform to individuals of member States to ovides
before a judicial forum. The Commission
redress their grieva
monitors the execution nces
Court's judgments and ensures that the
payment of compensation f the
of
ordered by the Court is made to the person as
Convention have been infringed. The whose rights th
ECHRis under
rights convention that embodies such a highperhaps the only hunm numan
individuals. Of course, member level of protection
States can also file complaints n s
other member States- but such complaints against
are rather rare.
The protection ofhuman rights and their
individuals is thus a novel and innovative
enforcement by aggrieved
feature of the ECHR; it provides
for an active role for individuals in
member States to ensure that their
human rights are duly respected. The Convention
important role for individuals in the arena thus ensures a
of Public International Law
where States were hitherto the traditionally
accepted actors, and individua
persons had no major role to play.
INTERNATIONAL DECLARATIONS, CONVENTIONS & ORGANISATIONS 53

F. EUROPEAN SOCIAL CHARTER

(ESC)
The European Social Charter (ESC) is yet another regional treaty What Is the
signed at Turin (in ltaly) on October 18, 1961, and came into force on European Soclal
Charter?
February 26, 1965. It was adopted by the Council of Europe to develop (2 marks)
and protect social and economic rights and achieve greater unity among M.U. Nov. 2010
its members for the purpose of safeguarding and realising the ideals
and principles which are their common heritage.
Part ofthe Charter contains a list of nineteen social and economic
rights, as for instance, -
Everyone shall have the opportunity to earn his living in an
occupation freely entered upon.
All workers have the right to just conditions of work.
All workers have the right to safe and healthy working
conditions.
Children and young persons have the right to special protection
against the physical and moral hazards to which they are
exposed.
Employed women, in case of maternity, and other employeed
women as appropriate, have the right to special protection in
their work.
Everyone has the right to appropriate facilities for vocational
guidance.
Everyone has the right to appropriate facilities for vocational
training.
All workers and their dependents have the right to social
security.
Everyone has the right to benefit from social welfare services.
Migrant workers have the right to protection and assistance in
the territory of any other Contracting Party.
The ECS does not envisage any judicial body to implement its
provisions. The implementation system under the Charter consists of a
biennial report to be filed by each Contracting Party with the Secretary
General of the Council of Europe, detailing the implementation of the
rights under the Charter. These reports are then examined and necessary
recommendations are made to the concerned State. It is clear that this
procedure is practically less effective than the one under the European
Convention on Human Rights (discussed earlier in the Chapter). Perhaps
the only usefulness of this process is that adverse public opinion can be
 HUMAN RIGHTS
52
a
Noone shall be subjectedto torture or
toinhuman
nanor
treatment as punishment. degrarti
degradi
No one shall be held inslavery or servitude.
Everyone charged with a criminal offence
innocent until proved guilty according shau
to law. pres.
presume
Everyone has the right to freedom of
thought,
religion. conscien
Everyone has the right to freedo of
cean
expression
Men and women of marriageable age
have the
the right
and found a family.
toman
The enjoyment of the above rights
and
secured without discrimination on any freedom
ground suchshall
race, colour, language, religion, political
shall
as sex
national or social origin, association with or other One
property, birth or other status. a national opinio
mi
minorit,
The ECHRenvisages the establishment
of the European
Human Rights, based in Strasbourg. A strong Cour
provided under which even one individual in redress
a member hanism
complaint, alleging a violation ofhis rights State i
guaranteed under can fle.
A judgment of the Court finding such a theECH
violation
MCQ No. 38 concemed State which is obliged to execute is bindin
the same. A ng on On th
th
known as the European Commission of Commissior
Human
Commission") is also set up for the effective implementationRights
the
The establishment of a Court to protect individuals ofthh
rights violation is a unique feature of thisConvention from humas
because itp
platform to individuals of member States to redress
before a judicial forum. The Commission monitors
their grievances
the execution of
Court's judgments and ensures that the
payment of compensation a
ordered by the Court is made to the person
whose rights under the
Convention have been infringed. The ECHR
is perhaps the only humar
rights convention that embodies such a
high level of protection t
individuals. Of course, member States can
also file complaints agains
other member States- but such complaints are
rather rare.
The protection of human rights and their enforcement
by aggrieve
individuals is thus a novel and innovative
feature of the ECHR; it provides
for an active role for individuals in member
States to ensure that their
human rights are duly respected. The Convention thus ensures
a
important role for individuals in the arena of Public International Lax
where States were hitherto the traditionally accepted actors, and individus
persons had no major role to play.
INTERNATIONAL DECLARATIONS, CONVENTIONS & ORGANISATIoNS 53

F. EUROPEAN SoCIAL CHARTER

(ESC)
The European Soclal Charter (ESC) is yet another regional treaty What is the
signed at Turin (in ltaly) on October 18, 1961, and came into force on European Soclal
February 26, 1965. It was adopted by the Council of Europe to develop Charter?
(2 marks)
and protect soclal and economic rights and achieve greater unity among M.U. Nov. 2010
its members for the purpose of safeguarding and realising the ideals
and principles which are their common heritage.
Partl of the Charter contains a list of nineteen social and economic
rights, as for instance,
Everyone shall have the opportunity to earn his living in an
occupation freely entered upon.
All workers have the right to just conditions of work.
All workers have the right to safe and healthy working
conditions.
Children and young persons have the right to special protection
against the physical and moral hazards to which they are
exposed.
Employed women, in case of maternity, and other employed
women as appropriate, have the right to special protection in
their work.
Everyone has the right to appropriate facilities for vacational
guidance.
Everyone has the right to appropriate facilities for vocational
training.
All workers and their dependents have the right to social
security.
Everyone has the right to benefit from social welfare services.
Migrant workers have the right to protection and assistance in
the territory of any other Contracting Party.
The ECS does not envisage any judicial body to implement its
provisions. The implementation system under the Charter consists of a
biennial report to be filed by each Contracting Party with the Secretary-
General of the Council of Europe, detailing the implementation of the
rightsunder the Charter. These reports are then examined and necessary
recommendations are made to the concerned State. It is clear that this
procedure is practically less effective than the one under the European
Convention on Human Rights (discussed earlier in the Chapter). Perhaps
the only usefulness of this process is that adverse public opinion can be
 HUMAN RIGHTS

generated against a defaulting State, which could nudge it int.

the mandates of the Charter. obsening

G. UNITED NATIONS ECONOMIC AND

cOUNCIL (ECOSOC)
OCIAL
What Is ECOSOC? The United Nations Economic andSocial Council
(2 marks)
(ECO.
principal organ of the UN founded in 1945, has been directly
M.U. Nov. 2010 OC).
with the protection and promotion of human rights. It reoncern.
is ponsible ned
coordinating the economic, social and related ted work of
specialised agencies of the UN and their functional ofble
fourteenfor

commissions. ECOSOC has more than fifty members, and regiona

aOurt
incluc
The members are elected for a three year term by
the General ng India.,
na
of the UN. holds a four-week session each year in
It As
July, held in emby
years in New York and Geneva. The president is
term and chosen from the smll or mid-sized powers
elected fora
represer
ena
alternate
ne-year
ECOSOC sented
on
With a view to effectively implementing human
rights, ECo:
has established a Commission on Human Rights, with
more
member governments. The Commission meets in Geneva tha fifty
c
annuall it
more often, whenever necessary) and reports to
ECOSoc which or
turn reports to the General Assembly of the UN. in
The Commission on Human Rights prepares
recommendatin.
dations
and reports in respect of:
the protection of minorities;
> international declarations and conventions on civil
status of women, the freedom of information
liberties,
and simnilar
.
matters;
international Bills of Rights; and
the prevention of discrimination on grounds of race, Sex
language or religion.
The Commission has also been given the power to carry out studies
make suitable recommendations and draft new international treaties.n
the last two decades, the Commission has also turned its attention to
rendering advisory services and technical assistance to states which
need to overcome obstacles in securing the enjoyment of human rights
by all persons.
ECOSOC has a broad responsibility for nearly 70% of the human
and financial resources of the entire UN system, including fourteen
specialised agencies, nine Functional Commissions and five Regiona
Commissions.
 INTERNATIONAL DECLARATIONS, cONVENTIONS &ORGANISATIONS S5

Since 1998, ECOSOC has also held a meeting every year in April
with finance ministers heading key committees of the Wold Bank and
the International Monetary Fund. It serves as the central forum for
discussing international economic and social issues, and for formulating
policy recommendations addressed to member states and the United
Nations system. A number of non-governmental organisations have been
granted 'consultative status' to the Council.

H. THE CENTER FOR HUMAN RIGHTS

&
THE UNITED NATIONS HIGH COMMISSIONER
FOR HUMAN RIGHTS
The Center for Human Rights was established in Geneva to co What is the
ordinate human rights activities. It prepared reports and publications Center for Human
Rights 7
and gave technical assistance and advisory services to various
(2 marks)
governments. In September, 1997, the Center lost its independent identity
M.U. Nov. 2009
when was
it merged with the UN High Commissioner for Human Rights.
In December 1993, the General Assembly of the UN created the
post of a UN High Commissioner for Human Rights to promote and What do you mean
protect the effective enjoyment of civil, political, economic, social and by UN Commis-
sloner for Humann
cultural rights by all persons. Rights?
The High Commissioner advises the Secretary-General of the UN (2 marks)
on policies of the UN in the area of human rights. It is his responsibility M.U. Apr. 2010
to ensure that substantive and administrative support is given to all the
projects and activities of human rights programmes.
The Commissioner is a person of high moral standing and personal Write a short note
integrity, possessing a great amount of expertise in the field of human on UN High
rights and an excellent knowledge and understanding of diverse cultures. Commissioner for
His name is approved by the General Assembly of the UN and his formal Human Rights.
appointment is made by the UN Secretary-General. His office is located M.U. Nov. 2009
at Geneva, with a branch office in New York. The Commissioner holds
office for a period of four years and a geographical rotation is kept in
mind when making appointments.. The first UN High Commissioner for
Human Rights was Mr. Jose Lasso of Ecuador. The High Commissioner
is assisted in the performance of his duties by a Deputy High
Commissioner, who acts as the Officer-in-charge in the absence of the
High Commissioner
The maln functions and the specific responsibilities of the High
Commissioner include the following:
 RIGHTS
HUMAN
enjoymentt by persons
efective all
56 protect the political social rigt
promote and economic,
To cultural, development.
all civil,
right to
technin
of including cal fin
rights to states.d
including the services, inancia
advisory human which reque
To
provide field of
assistance in the
services. educational and public informatio
nd puhi
such UN rights.
co-ordinate human
To field of obstacles
programmes in the removing come in
role in ths
an active
realisation of
humar
man rights and in prevent
To play rights all
all over the wor
way of the
full
violations of human rights
continuation of governme ts in order tosecu
the dialogues with
engage in
To
human rights.
respect for co-operation for thee
the protection
Dro.
international an
To enhance human rights.
safeguard of rights and protectio
promotion of human
co-ordinate the
To
activities. strengthen and streamline the
rationalise, adapt, rightsi U
r to improveh
To field ofhuman
machinery in the
effectiveness
efficiency and
& Human Rights
Database
Hotline
Human Rights High Commissioner for Hume
United Nations
meant by
In 1994, the
Rights Hot Line, which is
a 24-hourfacegh
What Is
Rlghts Hof established a Human
the High
Commissioner for Hima manRigh
Human the Office of
LIne? (2 marks) line that allows react rapidly
ly to humar rigth
Switzerland, to monitor and
M.U. Nov. 2005 in Geneva, available to victims of human
Line is righs
emergencies. The Hot non-governmental organisations T
violations, their relatives
and
valuable to those wishing
to establish urgent. oote
Line is especially Htim
Office of the High Commissioner for
ife-saving contact with the 41-22-917-00
Rights. The fax number
ofthis Hot Line in Geneva is:
In addition to the above,
a Human Rights Database has he
rapporte
created in Geneva to gather
information for use by special
religiou
who are responsible for investigating questions such as
intolerance, torture, racism and freedom of expression.
The databa
contains information that will eventually be available by
electronic mear
to human rights rapporteurs and experts worldwide.
measures are designed to improve the timely fo
Both the above
ofinformation from and to the special rapporteurs from anywhere int
world, and form the basis of an electronic network linking the globe
 INTERNATIONAL DECLARATIONS, CONVENTIONS& oRGANISATIONS $7

MCO No. 39
I. INTERNATIONAL LABOUR ORGANISATION
(ILO)

Labour rights or workers' rights are a group of legal rights relating Write a short note
to labour, relations between workers and their employers, usually on: ILO.
M.U. Nov. 2009
governed by labour and employment laws. In general, debates revolving
Nov. 201
around the rights of wokers relate to negotiating workers' pay, benefits, Nov. 2013
and safe working conditions. One of the most central of these rights is May 20155
the right to unionize. Unions take the benefit of collective bargaining and Nov. 2015
industrial action to increase their members' wages and otherwise improve Jan. 2018
their working situation. Labour rights can also take the form of workers
having a democratic voice in decision and policy-making and even holding What is meant byy

shares in their employers' companies. The labour movement initially LO? (2 marks)
focused on this right to unionize, but attention has now shifted to several MU. Nov. 2011
other areas.
The International Labour Organisation (ILO) was founded in 1919
in the wake of a destructive war, to pursue a vision based on the premise
that universal and lasting peace can be established only ifit is based on
socialjustice. In 1946, it became the first and the only tripartite specialised
agency of the UN. Today, with 187 Member States, including India, the
ILO brings together governments, employers and workers' representa-
tives to set labour standards, develop policies and devise programmes
promoting decent work for all women and men.
This unique tripartite structure of the ILO gives an equal voice to
workers, employers and governments, so as to ensure that the views of
all three are closely reflected in labour standards and in shaping policiess
and programmes. The rationale behind the tripartite structure is the
creation of free and open debate among governments and social
partners.
What Is ILO? State
The main aims of the ILO are to promote rights at work, encourage wo oblectlves of
decent employment opportunities, enhance social protection and ILO.
ILOo. (2 marks)
strengthen dialogue on work-related issues. The ILO is devoted to M.U. Nov. 2012
 58 HUMAN RIGHTS

promoting socialjustice and internationally recognised hin-

an
rights and pursuing its founding mission that social justice andlabr
universal and lasting peace in the industrial world. isessentia
The ILO registers complaints against entities
international rules; however, it does not impose nat viola
govemments. anctions

Membership of the ILO

The ILO constitution permits any member of
the UN
UN tot
tobeco
member of the LO. To gain membership, a nation must
Com
obligationsst inform
Director-General that it accepts all the obligations
constitution. Other states can be admitted by two-thirds of the the L
votes
r
delegates, including two-thirds vvote of government of
ILO General Conference.
delegates, of
al a
One exception to the above is the case of the Cook
is not a member of the UN, but is a member of the ILOIslands Wh
hand, States like Bhutan, Monaco and North Korea
S,on
theott
are members
UN, but not of the ILO.
of
Composition of ILO
Explaln ILO, Its The ILO consists of three principal organs:
composltlon, role (a) An International Labour Conference consisting
and functions. of representu
M.U. Apr. 2012 tives of all its members;
May 2014 (b) a Governing Body consisting of 56 persons;
and
Dec. 2019 (c) an International Labour Office controlled
by the Govem
Body.
The Governing Body, which is the most important
functin.
onary
the ILO, is the executive council ofthe ILO. It is composed
of go
ment representatives, 14 workers' representatives, and 14 28 goven-
nploye
representatives. This body elects, from time to time, one Chairmana
nanare
two Vice-Chairmen. It is mandatory that one of them must
be a De
representing a government, another representing employers perstt
and
third representing workers.
The Governing Body also appoints the Director-General of
International Labour Office, who is entrusted with the responsibilityet
efficiently conducting the working of that Office and for dischargings
other duties as may be assigned to him.
The Governing Body also draws up the agenda for each session
the International Labour Conference, adopts the draft programme zt
budget of the organisation for submission to the conference, reque
information from member states concerning labour matters, apor
Commissions of Inquiry and supervises the work of the Internaio
Labour Office.
 INTERNATIONAL DECLARATIONS, cONVENTIONS & ORGANISATIONS 59

The ILO Declaration

In 1998, the 86th International Labour Conference adopted
the Declaration on Fundamental Principles and Rights at Work. This
declaration contains four fundamental policies, namely, -
1. The right of workers to associate freely and bargain collectively
2 The end of forced and compulsory labour.
3. The end of child labour.
4. The end of unfair discrimination among workers.
The ILO asserts that its members have an obligation to work towards
fully respecting these principles emboded in relevant ILO Conventions.
These /LO Conventions have now been ratified by most member states.
Child labour and forced labour

CHILD
5TOPBOUR.
ZA

The ILO's International Programme on the Elimination of Child

Labour (IPEC) was created in 1992 with the overall goal of the
progressive elimination of child labour, which was to be achieved through
strengthening the capacity of countries to deal with the problem, and
promotinga worldwide movement to combat child labour. IPEC currently
has operations in 88 countries, with an annual expenditure on technical
cooperation projects that has crossed $ 74 million. It is thus the largest
programme of its kind globally and the biggest single operational
programme of the lLO.
The ILO has considered the fight against forced labour to be one
of its main priorities. During the years between the two World Wars, the
issue was mainly considered to be a colonial phenomenon, and LO's
concern was to establish minimum standards protecting the inhabitants
of colonies from the abuses committed by economic interests. After 1945,
the goal became to set a uniform and universal standard, determined by
 60 HUMAN RIGHTS

the higher awareness gained during World War l

o politically
economically motivated systems of forced labour.
and

To protectthe right of labourers and tor fixing minim

ILO has also evolved the Minimum Wage-Fixing Machinery imwages
onvention,
1928, the Minimum Wage Fixing Machinery(Agriculturevent
onvention,
1951 and the Minimum Wage Fixing Convention, 1970,
wage law standards. as minim
nimum

Statistical information provided by ILO

The ILOis also a major provider of labourstatistics. Labourstat
tatisica
are an important tool for its member states to monitor theie.
rogress
towards improving labour standards. As part of its statistical
work,
maintains several databases. This database cOvers eleven maiordILo
series for over two hundred countries. In addition, it publishes numh
a
ofcompilations of labour statistics, such as the Key Indicators of Latee
Markets, which cover twenty main indicators on labour participation rates
employment, unemployment, educational attainment, labour and
cost
economic performance.
Contribution of ILO
In support of its goals, the IL0 offers unmatched expertise
and knowledge about the world of work, acquired over nearlyore
hundred years of responding to the needs of people all over thewort
for decent work, livelihood and dignity. It serves not only its tripartie
constituents, but also society as a whole, in a variety of ways, including
formulation of international policies and programmes
promote basic human rights, improve working andlivng
conditions, and enhance employment opportunities;
creation of international labour standards, backed by a uniq
system to supervise their application
cooperaun
an extensive programme of international technical
Tormulated and implemented in an active partnersnip ractia
constituents, to help countries put these policies into pie
in an effective manner; and
 INTERNATIONAL DECLARATIONS, CONVENTIONS & ORGANISATIONS 61

training, education and research activities to help advance a

of these efforts.
In 1969, 1LO received the Nobel Peace Prize for improving peace
among classes, pursuing decent work and justice for workers and for
providing technical assistance to other developing nations.

J. THE UN CONFERENCE ON THE HUMAN

ENVIRONMENT
(THE STOCKHOLM CONFERENCE) & UNEP
The United Nations Conference on the Human Environment was Discuss the impor
an international conference convened under the auspices of the United tance of environ
Nations, and was held in Stockholm, Sweden, from June 5 to June 16, ment related
conventions in the
1972. Also referred to as the Stockholm Conference, it was the UN's improvement of
first major conference on international environmental issues. It marked global environ
a turning point in the development of international environmental policies mental conditions.
and laid the foundation for global environmental governance. The meeting M.U. May 2014

was the first major international gathering of nations to address the

world's environmental problems.

When the UN General Assembly decided to convene e 1972

Stockholm Conference at the initiative of the Government of Sweden to
host it, UN Secretary-General,U Thant, invited Maurice Strong to lead
it as Secretary-General of the Conference, as the
Canadian diplomat
had initiated and already worked for over two years on the project.
This was the first UN Conference that focused on international
environmental issues, and reflected a growing interest in conservation
issues worldwide. The final declaration of the Stockholm Conference
was an environmental manifesto that was a forceful statement of the
finite nature of Earth's resources and the necessity for humanity to
safeguard them. The Stockholm Conference also led to the creation of
the United Nations Environment Programme (UNEP) in December 1972
to coordinate global efforts to promote sustainability and safeguard
the
natural environment. (See UNEP, below.)
 62 HUMAN RIGHTS

the
What was the maln The main aim of the Conference was to safeguard to natural
oblect of the esources of the world and maintain the earth's capacity produce
Stockholm Confer-
ence? (2 marks) renewable resources.
by delegations from 114
M.U. Apr. 2012 The Stockholm Conference was attended it was boycotted by Soviet.
Nov. 2014 governments, including India. Interestingly, Democratic
exclusion of the German
bloc countries because of the
not hold a UN seat at the time. The
Republic (East Germany), which did influenced international
during the conference
documents created
environmental law. One notable
example was the final declaration, which
the environment. The motto of the
elucidated 26 principles conceming
"Only One Earth, a revolutionary concepDt
Stockholm Conference was
of its time. The conference
also produced the "Framework for
containing 109 specific
Environmental Action", an action plan natural-resource
recommendations related to human settlements, aspects
social of the
management, pollution, educational andorganizations.
environment, development and international are
the Stockholm Declaration
Some of the principles accepted at
and colonialism
Human rights must be asserted, apartheid
condemned.
Natural resources must be safeguarded.
resources must be
The Earth's capacity to produce renewable
maintained.
Wildlife must be safeguarded.
to clean
Pollution must not exceed the environment's capacity
itself.
Damaging oceanic pollution must be prevented.
Development is needed to improve the environment.
Environment policy must not hamper development.
Developing countries need money to develop environmental
safeguards.
environment
Rational planning should resolve conflicts between
and development.
Governments should plan their own appropriate pollution
policies.
Science and technology must be used to improve the
environment.
Environmental education is essential.
One seminal issue that emerged from the conference is the
recognition of poverty alleviation for protecting the environment. The
Indian Prime Minister, Mrs. Indira Gandhi, in her speech at the
RATIONS, CONVENTIONs & ORGANISATIONS 63

ly focused on the connection between ecological

rty alleviation.
note that this conference, and more importantly
nces preceding it, had a real impact on the
of the European Community (that later became
or example, in 1973, the European Union created
onsumer Protection Directorate, and composeo
Action Program. Such increased interest and
arguably paved the way for
further understanding
ich has led to such agreements as the Kyoto
Agreement, and has been a foundation
of modern

Environment Programme (UNEP)

ons Environment
Programme (UNEP) is an What is UNEP ?
that coordinates the environmental activities
of (2 marks)
eloping countries in implementing
environmentally M.UL Apr. 2011
=tices. It was founded in June 1972,
as a result of Dec. 2016
ference on the Human Environment, and has its
=ighborhood of Nairobi, Kenya. UNEP
also has
various country offices. Its regional offices are in
sia Pacific (Beijing), West Asia (Cairo). Europe
Vienna), Latin America (Brazil) and North
America

UNEP
is to provide leadership and to encoura
or the environment by inspiring, informing, and
people to improve their quality of life without
ture generations. Its mandate is to co-ordinate
ronmental policy consensus by keeping the global
ew and bringing emerging issues to the attention
international community for consideration and
 62 HUMAN RIGHTS

What wan tho maln The maln alm of the Conforenco was to safoguard tho natural
object of the rosources of the world and maintaln the oarth'o capacity to proc
8tockholm Conter
once? (2 marka) ronewablo resources.
M.U. Apr. 2012 Tho Stockholm Conferonco was ottondod by dologatlons from 114
Nov. 2014 govornmonts, including Indla. Intorostingly, it was boycoltod by Sovlot.
bloc countrlos bocause of the oxclusion of tho Gorman Domocratie
Ropublc (East Gormany). which dld not hold a UN seat at the time, Th
documents croatod during the conferenco Influoncod intornationai
environmontal law. Ono notablo oxamplo was tho final doclaration, which
olucidatod 26 princlplos concerning tho onvironmont. Tho motto of the
Stockholm Conforonce was "Only Ono Earlh", a rovolutionary concent
of Its time. Tho conforonco also producod the "Framowork for
Environmental Actlon", an actlon plan containlng 109 spoclfic
rocommondatlons rolated to human sottloments, natural-rosourca
management, pollutlon, oducational and soclal aspocts of th
onvironment, dovolopment and internatlonal organizations.
Some of tho principlos accopted at tho Stockholm Declaratlon ar:
Human rights must bo assertod, apartheld and colonlalism
condemned.
Natural rosourcos must be safoguardod.
The Earth's capacity to produco renowablo rosourcos mustbe
maintainod.
Wildlifo must bo safoguardod.
Pollutlon must not oxcood tho environment's capaclty to clean
itoolf.

Damaging ocoanc pollutlon must bo provontod.

Dovolopmont is nooded to Improve the onvironmont.
Environmont pollcy must nothampordovolopmont.
Doveloping countrlos nood monoy to dovolop onvlronmontal
oafoguards.
Ratlonal planning ehould rosolvo conflcts botwoon onvironment
and dovolopmont.
Govornmontae ohould plan tholr own approprlato polluton
pollcleo.
Sclonco and tochnology must bo usod to Improvo the
onvlronmont.
Envlronmontal oducatlon is ossontlal.
Ono somlnal lseuo that omorgod from tho conforonco lo tho
rocognltlon of poverly olloviotlon for protocting tho onvlronment. 1ho
Indlan Primo Ministor, Mrs. Indlira Gandh, In hor spooch at tno
INTERNATIONAL DECLARATIONS, CONVENTIONS& ORGANISATIONS 63

Conforonco, Buccossluilly focusod on the connection betvween ecological

managoment and povorly allovlatlon.
It ls Intorostlng to note that this conferonce, and more importantly
conforoncoB proceding it, had a real Impact on the
the Bclontlflc
onvironmontal polliclos ol tho Europoan Community (that later became
Unlon). For oxample, in 1973, the European Union created
ho Europoan
the Environmental and Consumer Protection Directorate, and composed
the first Environmontal Action Program. Such increased interest and
rasgarch collaboratlon arguably paved the way for further understanding
of alobal warming, which has lad to such agreements as the Kyoto
Prolocol and the Parls Agreoment, and has been a foundation of modern
onvironmenlallsm.

The United Nations Environment Programme (UNEP)

Tho United Nations Environment Programme (UNEP) is an What is UNEP7
intornational institutlon that coordinatos the environmental activities of (2 marks)

the UN and assists devaloping countrios In implementing environmentally M.U. Apr. 2011

9Ound pollcles and practices. It was founded in June 1972, as a result of Dec. 2016

the Uniled Nations Conference on the Human Environment, and has its
headquarters in the neighborhood of Nairobi, Kenya. UNEP also has
six reglonal officos and various country offices. Its regional offices are in
Africa (Addis Ababa), Asla Pacific (Beijing), West Asia (Cairo), Europe
(Brussels, Moscow and Vienna), Latln America (Brazil) and Noth America
(Now York)

UNEP
UNtai Dhtbnw tinyrwnpnt inaovinty

UNEP's mlsslon Is to provide loadership and to encourage

partnership in caring for tho onvironment by inspiring, informing, and
onablIng natlons and pooplo to improve thoir quality of life without
compromisng that of futuro gonerations. Its mandato is to co-ordinate
ho dovolopmont of environmental policy consensus by keeping the global
Onvironmont undor review and bringing omorging issues lo the attention
Ol governmonts and the International community for conslderation and
aclon.
 64 HUMAN RIGHTS

Its main functions are:

Name any three >to assess global environmental trends;
functlons of UNEP
to develop international environmental instruments;
(2 marks) and
M.U. Nov. 2011 to strengthen institutions for the wise management
of the
ne
environment.
Its activities cover a wide range of issues regarding the atmosphero
ere,
marine and terrestrial ecosystems, environmental govemance gree
and green
economy. It has played a significant role in developing internationol
environmental conventions, promoting environmental science And
information and illustrating the way in which they can be implemented in
conjunction with policy, working on the development and implementation
of policy with national governments, regional institutions in conjunction
with environmental NGOs. UNEP has also been active in funding and
implementing environment-related development projects.
UNEP has also aided in the formulation of guidelines and treaties
on issues such as the international trade in potentially harmful chemicals
transboundary air pollution, and contamination of international waterways,

K. AGENDA 21

Agenda
What is meant by Agenda 21 is a voluntary action plan developed by the United
Agenda-217 Nations and national govemments at the Earth Summitin Rio de Janero,
ma
(2 marks)
M.U. Apr. 2010
Brazil, in 1992. It is a non-binding, voluntarily implemented action plan
of the United Nations with regard to sustainable development. It is an
Nov. 2010
Nov. 2012
action agenda for the UN, other multilateral organizations, and individual
govemments around the world that can be executed at local, national,
u
and global levels. The 21" in Agenda 21 refers to the 21 cenlury.
has been afirmed and modified at subsequent UN conferences.
At the Summit, govemmental leaders around the world agreed 0n
the need to become more sustainable to meet today's needs without
sacrificing the future. Agenda 21 presents a vision showing how all e
voluntay
ofgovemnent-especially in the developing world-can take
INTERNATIONAL DECLARATIONS, CONVENTIONS &ORGANISATIONS 65

poverty and pollution, conserve natural resources and

action to combat
manner. One hundred and seventy-eight nations,
develop in a sustainable
including india, have adopted the
Agenda.

Agenda 21 is thus a comprehensive plan of action to be taken

alobally, nationally and locally by
organisations of the United Nations,
Governments, and major groups in every area in which human life
impacts the environment.
Development (CSD) was created
The Commission on Sustainable
in December
1992 to ensure effective follow-up and to monitor and report
on implementation of the
agreements at the Iocal, national, regional and
international levels. It was agreed that a five year review of the Earth
Summit progress would be made by the United Nations General
Assembly meeting in a special session.
The fullimplementation of Agenda 21, the
Programme for Futher
Implementation of Agenda 21 and the Commitments to the Rio principles,
on Sustainable
were strongly reaffirmed at the World Summit
Development held in Johannesburg, South Africa from August 26 to
September 4, 2002.
Agenda 21 is not a treaty or a legally binding document and does
not in any way infringe upon the sovereignty of any nation, state or local
government. It is a 300-page document divided into 40 chapters that
have been grouped into the following four sections:
Section I: Social and Economic Dimensions
Section is directed toward combating poverty, especially
I

in developing countries, changing consumption patterns, promotng

health, achieving a more sustainable population and sustainable

settlement in decision making.
Section II : Conservation and Management of Resources for
Development
Section II covers atmospheric protection, combating deforestation
protecting fragile environments, conservation of biological diversity
(biodiversity)., control of pollution and the management of biotechnology
and radioactive wastes.

Section Ill : Strengthening the Role of Major Groups

This Section includes the roles of children and youth, women,
NGOs, local authorities, business and workers and strengthening the
role of indigenous people, their communities and the farmers.

Section IV: Means ofImplementation

Implementation of Agenda 21 includes science. technology
ransfer, education, international institutions and financialmechanisms.
 66 HUMAN RIGHTSni

L. UNITED NATIONS EDUCATIONAL, SCIENTIFIC

AND CULTURAL ORGANISATION
(UNESCO)

UNESCO

Where Is the The United Nations Educational, Scientific and Cultural Organisation
Perm anent (UNESCO) is a specialized agency of the United Nations (UN). With its
headquarters of
UNESCO7 permanent headquarters in Raris, France, UNESCO Currently has 195
(2marks) Members and 8 Associate Members. It is also a member of the United
M.U. May 2013 Nations Development Group. India has been a member of UNESco
since 1946.
What is UNESCO? UNESCO's aim (in its own words) is "to contribute to the buildingof
(2 marks) peace, the eradication of poverty, sustainable development and
M.U. May 2014 intercultural dialogue through education, the sciences, culture,
communication and information".
What are the main
objectives of The main objectives of UNESCO are
UNESCO? (a) to attain quality education for all and lifelong learning;
(2 marks)
(b) to mobilise scientific knowledge and policy for sustainable
M.U. Nov. 2009
development;
Name any two (c) to address emerging social and ethical challenges;
Important features (d) to foster cultural diversity, intercltural dialogue and a culture
of UNESco of peace; and
(2 marks)
M.U. Nov. 2015
(e) to build inclusive knowledge societies through information and
communication.
Write a short note UNESCO pursues its objectives through five major programs:
on: UNESCO. Education
M.U. Apr. 2012
Nov. 2013 Natural Sciences
Jan. 2019 Social and Human sciences
Culture, and
MCQ No. 40
Communication and Information.
Currently, UNESCO focuses, in particular, on two global priorities:
Gender equality and Africa. Projects sponsored by it include literacy.
technical, and teacher-training programmes, international science
 NTERNATIONAL DECLARATIONS, CONVENTIONS &ORGANISATIONS
INTERNATI 67

nrogrammes, the
programmes, the promotion of Independent media and freedom of the
nress, regional and cultural history projects, the promotion of cultural
ersity, international cooperation agreements to secure the world
cultural and natural heritage and the preservation of human rights.
UNESCO Is often called the intellectual agency of the UN. At a
world is looking for new ways to build peace and
time when the
ustainable development, it is necessary that people rely on the power
af intelligence to innovate, expand their horizons and sustain the hope
humanism. UNESCO's aim is to bring this creative intelligence
of a new
to build the defences of peace and the conditions for
to life and
sUstainable development in the minds of people all over the world.

Governing bodies of UNESCO

UNESCO has two governing bodies: The General Conference and
Board.
the Executive
The General Conference
The General Conference consists of the representatives of the State
Members of UNESCO. meets every two years, and is attended by
It

Member States and Associate Members, together with observers for

non-Member States, intergovernmental organisations and NGOs. Each
country has one vote, irrespective of its size or the extent of its
contribution to the budget.
The General Conference determines the policies and the main lines
of work of the Organisation. Its duty is to set the programmes and the
budget of UNESCO. It also elects the Members of the Executive Board
and appoints the Director-General every four years. The working
languages of the General Conference are Arabic, Chinese, English,
French, Russian and Spanish.

The Executive Board

The Executive Board consists of fifty-eight members, elected by
the General Conference. The choice of these representatives is largely
a matter of the diversity of the cultures and their geographical origin.
SKilful negotiations always take place before a balance is reached among
the different regions of the world in a way that refilects the universality of
the Organisation.
The Executive Board meets twice a year and is in charge of the
overall management of UNESCO. It prepares the work of the General
onference and ensures that its decisions are properly carried out. The
Tunctions and responsiblities of the Executive Board are derived primarily
om
the Constitution and from rules or directives laid down by the General
Gonference.
 68 HUMAN RIGHTS

Every two years, the General Conference assigns specifics

a
the Board. Other functions stem from agreements concluderd betwee
UNESCO and the United Nations and other specialised agenc
agencies
s
inter-governmental organisations. an

M. UNITED NATIONS INTERNATIONAL

CHILDREN'S EMERGENCY FUND
(UNICEF)

What is meant by
unicef
United Nations International Children's Emergency Fund (UNICEA
UNICEF? is an international charity programme, with headquarters in New Yor
(2 marks)
City in USA. It provides long-term humanitarian and developmental
M.U. Nov. 2010
assistance to children and mothers in developing countries.
MCQ No. 41, 42 UNICEFwas created on December 11, 1946 to provideemergency
food and medicine tothe children of war-ravaged Europe. After 195
What is the object the fund directed its efforts toward general programs for the improvement
of UNICEF? of children's welfare,-particularly in less-developed countries and in
(2 marks)
various emergency situations. In 1954, UNICEF became a permanent
M.U. May 2013
part of the United Nations system, and today, it is active in more than
Dec. 2016
400 countries. As one historian has put it, "When UNICEF came into
existence, there was one central idea in its institutional mind: to provide
Write a short note extra rations mostly milk, vitamins and cod-liver oil -forfeeding hungry
on : UNICEF. children in countries ton apart by war"
M.U. Apr. 2010
UNICEFs Supply Division is based in Copenhagen and serves as
Nov. 2011
the primary point of distribution of essential items such as vaccines,
Nov. 2015
medicines for children and mothers with HIV, nutritional supplements,
emergency shelters and educational supplies.
Explain UNICEF. UNICEFs mission is to:
M.U. May 2013
to advocate for the protection of children's rights, help mee
their basic needs and expand their opportunities to reach ther
full potential;

mobilize political will and material resources to help counine

and
respond in emergencies to relieve the suffering of children
those who provide their care;
 INTERNATIONAL DECLARATIONS, CONVENTIONS & ORGANISATIONS 69

promote the equal rights of women and girls and support their
full participation in the development of their communities; and
work towards the human development goals, and the peace
and social progress enshrined in the Charter of the United
Nations.
The core areas of the work of UNICEF are the following:
HIVIAIDS
Children
Child survival and development
Child protection
Basic education and gender equality
Policy advocacy and partnership.

Organisational Structure and Funding

The Executive Board is the governing body of UNICEF, providing MCQ No. 42
inter-governmental support and oversight to the organisation in
accordance with the overall policy guidance of the United Nations General
Assembly and the Economic and Social Council. It reviews UNICEF
activities and approves its policies, country programmes and budgets.
The Board consists of thirty-six Members elected by the United
Nations Economic and Social Council, usually for three-year terms,
representing the five regional groups of Member States at the United
Nations. Its work is coordinated by the Bureau, comprising the President
and four Vice-Presidents, each officer representing one of the five
regional groups.
The Executive Board meets three times in a year at the UN
headquarters in New York. The Office of the Secretary of the Executive
Board supports and services the Executive Board. It is responsible for
aintaining an effective relationship between the Executive Board and
the UNICEF secretariat.
Each country office where the organisation operates carries out
UNICEFs mission through a unique programme of cooperation
developed with the host government. This five-year programme focuses
on practical ways to realise the rights of children and women. Their needs
are analyzed in a situation report produced at the beginning of the
programme cydle. Regional offices guide this work and provide technical
assistance to country offices as needed.
The overall management and administration of the organisation
takes place at UNICEFs headquarters in New York, where global policy
on children is shaped. Whereas its
specialised offices (the Supply
Division) in Copenhagen provide essential items as the majority of life
70 HUMAN RIGHTS

saving vaccine doses for children in developing countries, UNICEFal

also
operates the Innocenti Research Centre in Florence, which assists
ith
fund-raising and liaison with poliocy makers
Contributing substantially to UNICEFs reach to the common man
are the thirty-six National Committees for UNICEF. These non.
governmental organisations promote children's' rights, raise funds. sell
UNICEF greeting cards and products, create key corporate and civil vil
society partnerships, and provide other invaluable support.
UNICEF relies on contributions from governments and private
donors. Governments contribute two-thirds of the organisation's
resources and private groups and over six million individuals contributa
the rest.
Landmark Achievements of UNICEF
1953 UNICEF began a successful global campaign against
yaws, a disfiguring disease afecting millons of children.
1959 The UN General Assembly adopted the Declaration ofthe
Rights of the Child, which defines children's rights t
protection, education, health care, shelter and good
nutrition.
1961 UNICEF expanded its interests from child heath to child
education, starting with support to teacher training and
classroom equipment in newly independent countries.
1965 UNICEF was awarded the 1965 Nobel Peace Prize "for
the promotion of brotherhood among nations."
1982 UNICEF launched the Child Survival and Developmen
Revolution based on four simple, low-cost techniques
growth monitoring, oral rehydration therapy, breastfeeding
and immunisation.
1989 The Convention on the Rights of the Child was adopted by
the UN General Assembly, to become the most widely and
rapidly accepted human rights treaty in history.
1990 UNICEF organised the World Summit for Children wih
in
heads of State and Government at the United Nations
New York City.
evey
2001 The Global Movement for Children began mobilizing
citizen of every nation to change the world with children
The 'Say Yes for Children' campaign builds on tns
momentum, with millions ofchildren and adults around tn
world pledging their support for critical actions to improv
children's lives.
 DECLARATIONS CONVENTIONS &ORGANISATIONS 71
TIONAL
INTERNATION

landmark Special Session of the UN General Assembly

002 - A
200
was convened to review progress since the World Summit
for Children
in 1990 and re-energize global commitment
rights. It was the first such Session devoted
to children's to include them as
exclusively to children and the first
officlal delegates.

UNICEFIndia
commenced its work in India in 1949, is the single
INICEF, which
organisation in the country. With its network of thirteen state
argest UN poorest and most
UNICEF focuses attention on the
offices, alongside its work at the national level.
disadvantaged communities,
to ensure
primary UNICEF programmes in India are designed
The as
women and children are able to access basic services such
that facilities, and that these services
water, health and educational
clean UNICEF reaches out directly to
high quality. At the: same time,
are of to ensure their children
to help them realise what they must do
farilies celebrities, including
UN/CEF India also works with an array of
thrive. Indian
of the Indian Cricket Team and leading actors from the
members
industry, as well as hundreds of thousands of unnamed volunteers
film together, they
who tirelessly give
their time and energy to ensure that,
potential
child realise his or her full
are able to help every

N. UNITED NATIONS DEVELOPMENT PROGRAMME

(UNDP)
(UNDP) was created What is UNDP?
The United Nations Development Programme (2 marks)
in 1965, by merging of the United
by the General Assembly of the UN M.U. May 2015
Nations Expanded Programme of TechnicalAssistance
(created in 1949)
and the United Nations Special Fund (established in 1958).
UNDP assists its partners to achieve sustainable, people-centered
with
development through an integrated approach that links policy
planning and programming, for promoting results based
management,
Tormulating quality safeguards and learning equally from failures and
sucoesses. Headquartered in New York City, UNDP advocates change
to
and connects countries to knowledge, experience and resources help
people build a better life. It provides expert advice and training, and
grants support to developing countries, with increasing emphasis on
assistance to the least developed countries.
UN
he status of UNDP is that of an executive board within the
General Assembly. The UNDPAdministrator is the third highest-ranking
oficlal of the UN after the UN Secretary-General and the Deputy
Secretary-General.
 72 HUMAN RIGHTS

To encourage global development, UNDP focuses on pove.

reduction, HIVIAIDS, democratic governance, energy and environm
social development and crisis prevention and recovery. UNDe
encourages the protection of human rights and the empowerment also
women in all of its programmes. The UNDP Human Development Re of
ofmce publishes an annual Human Development Report to measure
analyse developmental progress. d
UNDP is funded entirely by voluntary contributions from mnembe
nations. The organisation currently operates in 177 countries, where it
works with local governments
and develop local capacity. Additionally,
meet development challenge
to
the UNDPworks internationalt
to help countries achieve the Millennium Development Goals. Currenti
the UNDP is one of the main UN agencies involved in the developmer
of the Post-2015 Development Agenda.
Although most countries of the world are currently going througha
critical time, UNDP sees this period as a huge opportunity to advanc
the global sustainable development agenda. Recently, world leaders
adopted the 203O Agenda for Sustainable Development to continue the
work of the Millennium Development Goals. UNDP is working to
strengthen new frameworks for development, disaster risk reductionand
climate change. t supports the efforts of all countries to achieve the
new Sustainable Development Goals, or Global Goals, which will guide
global development priorities for the next 15 years.
UNDP focuses on helping countries build and share solutions in
three main areas:
Sustainable development
Democratic governance and peace-building
Climate and disaster resilience.
In all its activities, UNDP encourages the protection of human rights
and the empowerment of women, minorities and the poorest and most
ulnerable, to achieve the eradication of poverty, and the reduction of
equalities on a global basis.
[Note:A comprehensive book entitled 'The United Nations
Development Programme,A better way?, published in 2006,
gives an excellent insight into the history and working of the
UNDP.]
 5
PROTECTION OF HUMAN RIGHTSs
OF WOMEN

Human rights are women's rights and women's rights are human
rights wHillaryClnton

WOMEN
THSFRONTLNEOE ENDERS AT

SEXROSNG IOUSTICE

kADNOCATNGKaODNGNG.COMAITED

The following topics are discussed in this Chapter:

Write an essay on:
A. Protection of women under the Constitution of India Human Rights and
B. Protection of women against sexual harassment Women.
M.U. Nov. 2010
C. Protection of women under the National Commission for May 2012
Women Act
D. Protection of women under other laws
How does the
E Protection of women under the Convention on the Elimination
Constitutlon of
of All Forms of Discrimination Against Women (CEDAW) and Indl
Indla safeguard
other international conventions. the rights and
InterestsS of
Women?
A. PROTECTION OF wOMEN UNDER M.U. Apr. 2011
THE CONSTITUTION OF INDIA May 2017
Various provisions of the Constitution of India refilect the ideal of nie
Discuss, wlth case
genderequalty.Whereas Art. 14 of the Constitution guarantees equalily laws, the funda
a (men and women), Art. 15 ensures that the State cannot discriminate mental rlghts of
against any citizen of India, inter alia, on grounds of sex. Likewise, there women under the
can be no discrimination on
the ground of sex with regard to acces to Constitutlon of
Snops, public restaurants, hotels, places of public entertainment or the Indla.
use of wells, tanks, M.U. May 2013
bathing ghats and public resorts maintained wholly
Jan. 2019
73
 74 HUMAN RIGHTS

empow
or partly out of state funds. Going a step further, Art. 15(3) wers
for women and children.
the state to make special provisions
In 1992, the Constitution was amended to enable reservation
seats for women in panchayats and municipaiues. A SImilar move
and state legislatur
now afoot to extend such a reservation to central ures.
Fundamental Duties, also contain
Art. 51A, which deals with reno
whereby a duty is cast on every citizen of India to bunce
provision women.
to the dignity of
practices which are derogatory
above, several Directive Pinciples of State Pa.
In addition to the
equality for women. Although the Direct
also seek to ensure a status of
MCQ No.43 in a court of law, they are neverthel
Principles are not enforceable country. Some of these directives
fundamental in the governance of the
are the following:
to direct its policy towards securina
ng-
Explain the (a) Art. 39 enjoins the State
have
Princlple of 'Equal that all citizens-men and women-equaly the right
ht
Pay for Equal means of livelihood;
to an adequate
Work' enshrined In work for both men and
the Constltution of that there is equal pay for equal
Indla. (2 marks) women;
M.U. Apr. 2016
May 2019
thatthe health and strength of workers-including women
- are not abused.
(b) Art. 42 calls upon the State
to make provisions for just and
relief.
humane conditions of work and for maternity
to secure a
(c) Art. 44 provides that the State shall endeavour
uniform civil code for all its citizens. If implemented,
this

Directive Principle would go a long way in establishing gender

Name two land.
mark Judgments
on the rights of
women. (2 marks)
M.U. Nov. 2012
protection of women's rights, as will be clear from the following
1.
State the Important
provislons lald
down In the Con-
stltutlon for en
hancing the posl-
tlon of women In
Indla. Explain wlth
the help of land-
mark Judgments of 2.
the Supreme Court
of Indla.
M.U. Nov. 2013
Apr. 2016
equality in personal matters like marriage, divorce,
adoption,
guardianship, et.
it comes to
Courts in India have been equally vociferous when cases
Foreign
The Supreme Court has held that a provision in the Indian to
Service Rules, which required a female member of the Service
before
obtain the previous permission of the Government in writing
the
she could get married, was clearly discriminatory. Likewise,
marne
cOurt also struck down another Rule which provided that no
woman would be entitled, as of right, to be appointed to the sa0
Service. (C. B. Muthamma v. Union of India, AIR 1979 SC 1868)
In Air India v. Nergesh Meerza (AIR 1981 SC 1829), the Supre
Court struck down a Rule made by Air India under whichthe serviud
of an air-hostess could be terminated on her pregnancy. 1ned
observed that such a rule would obstruct the ordinary course
 PROTECTION OF HUMAN RIGHTS OF wOMEN 75

human nature and would amount to a cruel insult to Indian

womanhood by interfering with a woman's personal life.
3. The Supreme Court has also ruled that it cannot be said that upon
getting maried, the stridhan property of the married woman has to
be placed in the custody of her husband. (Pratibha Rani v. Suraj
Kumar, AIR 1988 SC 628)
In Maya Devi v. State of Maharashtra, (1986 1 SCR 743), a
requirement that a married woman required the consent of her
husband before applying for public employment was struck down
as invalid and unconstitutional. The court observed that such a
requirement would be a complete obstacle to the concept of
women's equality.
In Anyj Garg v. Hotel Association of India (AIR 2008 SC 663), S. 30
of the Punjab Excise Act, 1914, was challenged before the Delhi
High Court. This section prohibited employment of women in any
premise where liquor was consumed (for example, bars). The High
Court struck down this provision as being violative of Art. 19(1)(g).
Art. 14 and Art. 15 of the Constitution. On appeal, the Supreme
Court affirmed the decision of the High Court and took the view
that instead of prohibiting enployment of women in bars, the State
should focus on factors by which unequal consequences of sex
differences can be eliminated in such cases.
. In Neera Mathur v. LIC (1992 1 SCC 286), the Supreme Court held
that LIC's act of collecting roving information and unnecessary
personal details of its female employees would amount to an
invasion of their right to privacy.
The Supreme Court has clarified that the mandate of Art.21, which
prohibits deprivation of life and personal liberty except according
to the procedure established by law, is applicable to all -and not
only to the State. Thus, in Nilima Priyadarshini v. State of Bihar
(1988 SCc (Cri) 138), the apex court exercised its habeas corpus
jurisdiction in the case of detention of a woman by a private person.
In one case, the Supreme Court observed that since India has
ratified the CEDAW, a duty is cast on the country to honour the
obligations imposed by this Convention. Unless appropriate
legislation is passed to give legal effect to the Convention, rights
conferred on women by the Convention would remain meaningless
to a large number of women in India, due to their poverty, ignorance
and illiteracy. (Madhu Kishwarv. State ofBihar, AIR 1996 SC 2178)
The Supreme Court has also observed that the message of
international conferences like the CEDAW and the Beijing
 76 HUMAN RIGHTSeT

Declarations is "loud and clear". International instrumentssuch

se
these cast an obligation on the country to gender-sensitize
an itslaws,
and courts are under obligation to ensure that the message
these international instruments is not allowed to be drow of
of

(Apparel Export Promotion Council v. A. K. Chopra, AIR 19900 99SC

625)
[CEDAW and the Beijing Declarations referred to above atne
discussed later in this Chapter.]

B. PROTECTION OF WOMEN AGAINST

SEXUAL HARASSMENT
In Vishaka & Others versus State of Rajasthan & Others (A.lp
1997 S. C. 3011), the Supreme Court sought to redress the violation
the rights of working women under Articles 14, 15 and 21 of th
McQ No. 44 Constitution of India, which, in the words of the court, had becoma '
recurring phenomenon". By laying down a set of guidelines, the cout
endeavoured to ensure a safe working environment for women. The
Supreme Court also stressed the urgent need for passing the necessar
laws for the protection of the rights of working women to fill the legislative
vacuum in this regard in India.
For more than thirteen long years, this "legislative vacuum' remained
unattended, and it was only in 2010 that a Bill was introduced in
Parliament and the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act was ultimately passed in
2012.

What amounts to "sexual harassment"

Under S. 2(n) of the said Act, the expression "sexual harassmenf
has been given an inclusive definition. It is defined to include any one or
more of the following unwelcome acts or behaviour (whether directyor
by implication) namely,
() physical contact and advances; or
(i) a demand or request for sexual favours; or
(ii) making sexually coloured remarks; or
(iv) showing pornography; or
()any otherunwelcome physical, verbal or non-verbal condu
of a sexual nature.
S.3 ofthe Act provides that no woman shall be subjected to sex
narassment at any workplace' (which term has been given a
connotation by the Act). The section then lays down that
anyin
following circumstances, amongst others, if it occurs or is
pi
 PROTECTION OF HUMAN RIGHTS OF WOMEN
71

relation to or connected with any act or behaviour of sexual harassment,

may amount to sexual harassment:
() implied or explicit promise of preferential treatment in her
employment; or
()implied or explicit threat of detrimental treatment in her
employment; or
(i) implied or explicit threat about her present or future employment
status; or
interference with her work or creating an intimidating or
(iv)
offensive or hostle work environment for her; or
() humiliating treatment likely to affect her health or safety.
Constitution of Internal Complaints Committee
Under S. 4 of the Act, every employer of a workplace must constute Discuss the devek
a Committee, to be known as the Internal Complaints Committee, opment of law
consisting of the following members to be nominated by the employer, concernlng pre-
vention of sexual
namely harassment at the
(a) a Presiding Officer who should be a woman employed at a workplace in India
senior level at the workplace from amongst the employees; with reference to
the Vishaka case
(b) not less than two Members from amongst employees, and subsequent
preferably committed to the cause of women or who have had legislation on this
experience in social work or have legal knowledge; subject
M.U. May 2015
(c) one member from amongst non-governmental organisations
or associations committed to the cause of women or a person
familiar with the issues relating to sexual harassment.
Additionally, at least one-half of the total members nominated as
above, should be women.

Inquiries into allegations of sexual harassment

Any aggrieved woman may file a written complaint of sexual
harassment at the workplace to thelInternal Complaints Committee within
a period of three months from the date of incident and in case of
a
series of incidents, within a period of three months from the date of last
incident. In a fit case, the Committee may, for reasons to be recorded in
Writing, extend this time limit for upto another three months, if
itis satistied
that the circumstances prevented the woman from filing a complaint
within the said period. If
such a woman is unable to make a complaint
on account of
her physical or mental incapacity or death or otherwise,
ner legal heir or
such other person as may be prescribed may make the
complaint. (S. 9)
 HUMAN RIGHTrs

Committee must then inguire into tne complaint,

to the em On
The
inquir provide a report of its findings ava er
of the made available
be
O letion
period often days. Such a report must also
wrnina
concerned parties.
to he
the conclusion that th
allegation
Where
against
the Internal Comittee
the respondent has
arrives
been
at
proved, it must recom e
to the employer: a misconduc+
i) to take action for sexual harassmnent aS
of the service rulesappi In
with the provisions
accordance
to the respondent;
from the salary or wages of the respondent, Sttel
i) to deduct, to be paid to the aggrien
sum as it may consider appropriate
woman or to legal heirs,
her as itmay determine in accordan
with the provisions of the Act.
the paidsums to be to the aggrieved womer
man
When determining regard to
as above), the Committee nmust
(a) the mental trauma, pain,
have
suffering and emotional distrese
ess
caused to the aggrieved woman;
(b) the loss in the career opportunity
due to the incident of sexual
harassment;
(c) medical expenses incurred by the victim for physical or
treatment;
psychiatric
(o) the income and financial status of the respondent;
(e) feasibility of such payment in lump sum or in installments.
When any such recommendation has been made, the employer
ct upon it within s/xty days of the receipt of the recommendation.
ng ihe pendenCy of an inquiy,
on a written request
may recommend
made by
to the
rieved woman, the Committee
other
transfer theaggrieved woman orthe respondent to any
rkplace; or
rant leave to the aggrieved woman upto a period of three
hs; or
woman as may D
t such other relief to the aggrieved
ed.
e Commttee comes to a conclusion that the allegatou
the
to
ent has ot been proved, it must recommend the
tion is required to be taken in the matter. f
ew that the allegation against the respond the
"eved woman or any other person making
 PROTECTION OF HUMAN RIGHTS OF wOMEN 79

complaint has made the complaint knowing it to be false, or that the

adgrieved woman or any other person making the complaint has
nroduced any forged or misleading document, it may recommend to the
employer to take action against the woman or the person who has made
the complaint, accordance
in with the service rules applicable to such a
person. However, a mere inability to substantiate a complaint or provide
adequate proof need not attract such action against the complainant

Duties of the employer

S.19 of the Act imposes certain duties on the employer. It provides
that every employershall
(a) provide a safe working environment at the workplace
(b) display at any conspicuous place in the workplace, the penal
consequences of sexual harassment and the order constituting
the Internal Committee;
(c) organise workshops and awareness programmes at regular
intervals for sensitising the employees with the provisions of
the Act, and orientation programmes for the members of the
Internal Committee;
(d) provide necessary facilities to the Internal Committee for
dealing with complaints and conducting an inquiry:
(e) assist in securing the attendance of the respondent and
witnesses before the Internal Committee;
() make available such information to the Internal Committee as
it may require, having regard to the complaint made under the
Act;
g) provide assistance to the woman if she chooses to file a
complaint in relation to the offence under the Indian Penal Code
or any other law;
(h) cause to initiate action under the Indian Penal Code or any
other law for the time being in force, against the perpetrator,
) treat sexual harassment as a misconduct under the service
rules and initiate action for such misconduct;
) monitor the timely submission of reports by the Internal
Committee.

Punishment for offences under the Act

If the employer fails
(a) to constitute an Internal Committee (as above), or
(b) to take action (as above), or
 80 HUMAN RIGHTS

(c) contravenes or attempts to contravene or abets contraventins

of other provisions of the Act or any rules made thereunder"
he becomes punishable with fine which may extend to 50,000.
If any employer who has been previously convicted under theAct Ars
becomes to
is subsequently convicted of the same offence, he liable to
been imposed on
() twice the punishment, which might have na
first conviction;
i) cancellation of his licence or withdrawal, non-renewal or
local
cancellation of the registration by the Government or
authority required for carying on his business or activity

NATIONAL
C. PROTECTION OF WOMEN UNDER THE
COMMISsION FOR WOMEN ACT
Write a short note The National Commission for Women (NCW) is a statutory body
National
on National set up in January 1992 pursuant to the provisions of the
Commission for Commission for Women Act, 1990, with a view to:
Women.
M.U. Dec. 2019 review the Constitutional and legal safeguards for women;
recommend remedial legislative measures;
facilitate redressal of grievances; and
advise the Govemment on all policy matters affecting women.
The objective of the NCW is to represent the rights of women
in

India and to provide a voice for their issues and concerns. It regularly
publishesa monthly newsletter, "Rashtra Mahila" in Hindi and English.
Under S. 16 of the said Act, the Central Government must consult this
Commission in all major policy matters affecting women.
Under S. 3 of the Act, the Commission consists of:
Discuss the com- (a) a Chairperson (who should be committed to the cause of
position of the Women) to be nominated by the Central Government;
Commission for
Women in India (b) five Members to be nominated by the Central Government
and its functions. from amongst persons of ability, integrity and standing, who
M.U. Nov. 2008 nave had experience in law or legislation, trade unionism,
management of an industry or organisation committed to
increasing the employment potential of women, Women
Write two Impor
tant functions of voluntary organisations (including women activist1s
National Commis- administration, economic development, health, education o
sion for women. social welfare;
(2 marks)
(It is, however, mandatory that at least one Member must D
M.U. Jan 2018
from amongst persons belonging to the Scheduled Castes and
one from the Scheduled Tribes.)
 PROTECTION OF HUMAN RIGHTS OF WOMEN 81

(c) a Member-Secretary to be nominated by the Central

Government, who must be
(i)an expert in the field of management, organisational
structure or sociological movement, or
() an officer who is member ofa civil service of the Union or
of an all-India service or holds a civil post
under the Union
with appropriate experience.
The Chairperson and every Member holds office for such period,
not exceeding three years, as may be specified by the Central
Government in this behalf.
Some of the functions of the Commission (under S. 10 of the Act)
are:
(e) to investigate and examine all matters relating to the safeguards Discuss the role of
provided for women under the Constitution and other laws; the National
Commission for
(b) to present to the Central Government, annualy and at such Women the
in
other time as the Commission may deem fit, reports upon upliftment of
working of those safeguards; women's rights in
India.
(c) to review, from time to time, the existing provisions of the M.U. May 2014
Constitution and other laws affecting women and recommend
amendments thereto so as to suggest remedial legislative
measures to meet any lacunae, inadequacies or shortcomings
in such legislations;
(d) to take up the cases of violation of the provisions or the
Constitution and of other laws relating to women with the
appropriate authorities;
(e) to look into complaints and take suo motu notice of matters
relating to
() deprivation of women's rights;
(i) non-implementation of laws enacted to provide protection
to women and to achieve the objective of equality and
development;
(Im) non-compliance of policy decisions, guidelines or
instructions aimed at mitigating hardships and ensuring
welfare and providing relief to women, and take up the
issues arising out of such matters with the appropriate
authorities;
(to participate and advise on the planning process of socio
economic development of women;
9) to evaluate the progress of the development of women under
the Union and any State;
 82 HUMAN RIGHTS

(h) to inspect or cause to be inspected, any jail, remand honhe me,

of custody where wom
women's institution or other place men
and take up
are kept as prisoners or otherwise, with
necese
authorities for remedial action, found
if 3sary,
concerned
a large body
) to fund litigation involving issues affecting of
women;
G) any other matter which may be
referred to it by the Cen entral
Government.
to in clause (D)) above are to be lai
The Annual Reports referred laid
a
with memorandum explai
before each House of Parliament, along on recommendatin.
ain-
to be taken the
ing the action taken or proposed non-acceptance,
tions
anv.
reasons for the if any,of
relating to the Union, and the
any of such recommendations.
When investigating any
matter referred to in the above clause
powers of a civil court trying a suit and
the Commission has all the
matters:
particular, in respect of the following
any person from
(a) summoning and enforcing the attendance of
any part of India and examining him on oath;
of any document;
(b) requiring the discovery and production
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any Cout
or office;
(e) issuing commissions for the examination of witnesses and
documents; and
() any other matter which may be prescribed.
In keeping with its mandate, the Commission has, in the past
initiated various steps to improve the status of women and has
worked

for their economic empowerment ever since its inception.

The
Gender
Commission has visited all the States after which it has prepared
Profiles to assess the status of women and their empowerment.
The Commission has received a large number of
complaints and
It has taken
acted suo motu in several cases to provide speedy justice.programmes,
up the issue of child marriage, sponsored legal awareness
Dowry
MCQ No. 45 Parivarik Mahila Lok Adalats and reviewed laws such as Indian
Prohibition Act, 1961, Pre-natal Diagnostic Techniques Act, 1994,
Act, 19
Penal Code 1860 and the National Commission for Women exper
to make them more stringent and effective. It has constituted
conducte
committees on economic empowerment of women,
Workshops and seminars for gender awareness and has undertak
politics
several drives for equal representation for women in jobs,
women, P
religion. It has campaigned against dowry, exploitation of
 PROTECTION OF HUMAN RIGHTS OF WOMEN 83

violence women, etc.

abuses against women, female foeticide, against
in order to generate awareness the society against these social evils.
in

Recently, the Commission summoned actor Salman Khan in connection

with a derogatory remark allegedly made by
hir

D. PROTECTION OF WOMEN UNDER OTHER LAWs

7HERECAN BE
NO
HUMAN RIGHTS
WITHOUt
MOME'S RIGHIS
Several laws have been enacted by Parliament for the protection
of women whilst many other laws contain provisions for safeguarding
their interests. Some of these enactments are briefly discussed below.
The Indian Penal Code, 1860 (as amended from time to time)
contains several provisions which protect the rights of women, as for
instance, provisions relating to offences affecting decency and public
morals (Ss. 292-294 of the Code), causing dowry death and subjecting
a wife to cruelty, which are now distinct offences under S. 304B and S.
498A of the Code, respectively. Assault on a woman, with the intention
of outraging her modesty, is also an offence under S. 354 of the Code.
In 2013, new provisions were added to the Code to provide for
punishment for sexual harassment (S. 354A), assault or criminal force
with the intent to disrobe a woman (S. 354B), voyeurism (S. 354C) and
stalking (S. 354D). The definition of 'rape' was also enlarged in that
year, and now, the offence includes acts like insertion of an object into
the private parts of a woman and the application of a man's mouth to
such parts. (S. 375). Gang rape and rape by persons in authority attract
more severe punishment under the Code, as amended.
Offences relating to marriage are also covered by the Code. Thus,
bigamy is punishable under Ss. 494 and 495 of the Code and adultery
under S. 497. A husband who subjects his wife to cruelty is also
punishable under S. 498A of the Code.
Sale or purchase of minors for the purpose of prostitution, illicit
intercourse or any unlawful or immoral purpose is punishable under Ss.
372 and 373 of the Code. Criminal intimidation, insut and annoyance
are also punishable under Ss. 503-510 of the Code.
84 HUMAN RIGHTS lrmrs
The Commission of Sati (Prevention) Act, 1987, containe
comprehensive definition of the term 'satr and provides strino a
punishment for attempts to commit sati, abatement of sati and glorificatio
ation
of sati. The Act also empowers the Collector or the District Magistrate to
prohibit the doing of any act toward the commission of sati by any Dersrson
in any area specified by him. The Collector or the District Magistrate
e is
also empowered to seize funds or property if he has reason to believa
that any funds or property have been collected or acquired for the purposse
of glorification of sati.
The Dowry Prohibition Act, 1961, seeks to curb the social evil called
dowry, which had assumed enormous proportions in India. The word
dowry'has been given a wide definition and any agreement for the givina
or taking of dowry has been declared to be void. Stringent punishments
(imprisonment of not less than five years and fine notbeing less than
15,000) have been prescribed for anyone who gives or takes or abets
the giving or taking of dowry. The Act also bans dowry advertisements
and makes them punishable. All offences under the Act are non-bailable
and non-compoundable. The Act also envisages the appointment of
Dowry Prohibition Officers to ensure that the provisions of the Act
are
complied with.
The Indecent Representation of Women (Prohibition) Act, 1986,
covers indecent representation of women in all forms, books, pamphlets,
slides, films, advertisements, drawings, painting. photographs, etc., and
makes the same punishable with imprisonment and fine. The Act defines
indecent representation' as depiction in any manner, of a woman, her
fom or body (or any part thereof) in such a way as to have the effect of
being indecent or derogatory to, or denigrating women or is likely to
deprave, corrupt or injure public morality or morals.
The Protection of Women from Domestic Violence Act was passed
in 2005 to afford effective protection to women who are victims of violence
of anykind within the family. The term"domestic violence" is defined in
S. 3 of the Act, and elaborate provisions are made to protect women
from such violence. In particular, it is provided that on receipt of an
application under the Act, a Magistrate may, after hearing both the sides,
pass a protection order in favour of the complainant, prohibiting the
respondent inter alia from committing any act of domestic violence, or
aiding or abeting in the commission of acts of domestic violence, or
attempting to communicate in any form whatever, with the aggrieved
person-including personal, oral or written or electronic or telephonic
contact, or causing violence to dependents and other relatives of the
aggrieved person.
The Immoral Traffic (Prevention) Act, 1956, was passed by
Pariament pursuant to the International Convention for the Prevention
 PROTECTION OF HUMAN RIGHTS OF WOMEN 85

ofImmoral Traffic, signed at New York on May 9, 1950. It extends to the

whole of India, and punishes acts like keeping a brothel or allowing
whole
nremises to be used as a brothel, or living on the earnings of prostitution,
or procuring or inducing or recruiting, transporting, transferring. harboning
person for the purpose of prostitution and committing
or receiving a
trafficking in persons.
The Equal Remuneration Act, 1976, makes provisions for payment
to men and women and for preventing
of equal remuneration
discrimination on the ground of sex, in the matter of employment and
connected matters. Violations of the Act are punishable with
imprisonment or fine or both. The Supreme Court has held that if lady
stenographers are paid salaries at a lower rate than what was paid to
a
male stenographers, it would be violation of the Act. (Mackinnon
Mackenzie& Company. Ltd. v. Audrey D'Costa, AlR 1987 SC 1281)
Several other enactments like the Maternity BenefitAct, 1961, the
Pre-natal Diagnostic Techniques Act, 1994, and the Medical Termination
of Pregnancy Act, 1971, also contain protective provisions relating to
Women.

E. PROTECTION OF WOMEN UNDER THE

cONVENTION ON THE ELIMINATION OF ALL FORMS
OF
DISCRIMINATION AGAINST WOMEN (CEDAW)
AND OTHER INTERNATIONAL CONVENTIONS

() CEDAWw

CEDA
What Is CEDAW?
The Convention on the Elimination of All Foms of Discrimination (2 marks)
against Women was adopted by the UN General Assembly on December M.U. Nov. 2012
78, 1979. It came into force on September 3, 1981, after the required Apr. 2018
number of States (20) ratified it. Today, more than a hundred countries
(Uncluding India) are proud signatories to this Convention, familiarly MCQ No. 46, 47
 86 HUMAN RIGHTS

What are the refered to as CEDAW. India joined the Convention on July 30,.
salent features of 19a
80
CEDAW? Explaln l and ratiffed it on July 9, 1993.
In detall. The unique contribution of this Convention, often acknowleda
M.U. Apr. 2010 as the Magna Carta of Women's Rights or the Intemational Bill of Rioh
for Women, is that it brings into focus one-half of humanity which wets
What is Magna was
hitherto denied a footing of equality with the other half. The CEDAWw
Carta? (2 marks)
spells
M.U. Apr. 2016
out the real meaning of gender equality and lays down various
Jan. 2018
ways in which it can be achieved. It provides an action-agenda to
May 2019 followed by its signatories to achieve the notion of equality envisaged hu
oy
it. All countries which are parties to the CEDAW have given
an
Write a short note undertaking to put its provisions into practice in their respective countries
on : CEDAW. Every such country is also bound to submit a National Report, at least
M.U. May 2017
once in every four years, specitying the steps taken by it to comply withwith
May 2019
the provisions contained in this Convention.
Dec. 2019
In a span of 30 Articles, the CEDAW seeks to abolish all forms
of
What are the three discrimination against women and thus usher in an era of true gender
maln objects of equality. Interestingly, it is the only international convention that affirms
CEDAW? the reproductive rights of women, and targets culture and tradition as
(2 marks) influential forces that shape gender roles and family relations. (Arts. 11,
M.U. Apr. 2010
12 &16.)
The main objectives of CEDAWare:
To establish the principle of equality between men and women;
To abolish all discriminatory laws;
To adopt appropriate laws prohibiting discrimination against
Women;
To establish tribunals and other institutions to ensure the
effective protection ofwomen against all inds of discrimination;
and
To end all acts of discrimination against women by persons,
organisations and enterprises.
It is also clarified that nothing in the Convention is to affect any
provision which is more conducive to the achievement of equality between
men and women contained in the legislation of a member State or in any
other intemational convention, treaty or agreement in force in a member
State.
By accepting the Convention, member States commit themseives
o fufill the main objectives of CEDAW, and to take all necessay
measures at the national level, to achieve the full realisation of the rights
conferred on women by the Convention. In particular, member States
agree to undertake a series of measures to end discrimination against
women in all forms.
 PROTECTION OF HUMAN RIGHTS OF WOMEN

CEDAW Is formulated in six languaoges English, French,

The
RuSsian,
A
Chinese and Arabic -each of which is declared to be
Spanish,
authentic.
equally
CEDAw
Important provisions of
CEDAW is consd
Preamble explicitly admits that "extensive discrimination against
The the Magna
continue: to exist", and highlights the fact that suchdisciminationreds
Carta of women's
women
principle of equality of rights and respect for human dignity. nghts. Expldn the
violati the
unusually long Preamble, Art. of the Convention defines varlous
1 provisions
After an following words: of CEDAW.
"discriminationagainst women"in the MU. Nov. 2009
"discrimination against women" shall mean any
The term sex.
exclusion or restriction made on the basis of
distinction,
which has the effect
or purpose of impairing or nullifying the
women, irrespective of
recognition, enjoyment or exercise by
their marital status,
ona basis ofequality of men and women,
fundamental freedoms in the political,
of human rights and
any other field.
economic, social, cultural, civil or
a whole gamut of issues relating to women
The Convention covers
right to vote; from politics to employment; from
from education the
to
to health, including matemity, family planning
the right to work to the right
it is perhaps the only human rights treaty
and child rearing. Interestingly,
that makesa direct reference family
to planning, when it confers on all
women the right to decide freely "on the number and spacing of their
children".
Under Art. 2 of CEDAW, al the member States agree to adopt a
policy of eliminating discrimination against women, and for this purpose,
to do the following:
(a) To embody the principle of the equality of men and women in
their national constitutions;
(6) To adopt appropriate legislative and other measures, including
sanctions where appropriate, prohibiting all discrimination
against women;
(c) To establish legal protection of the rights of women on an equal
basis with men and to ensure the effective protection of women
against any act of discrimination;
(d) To refrain from engaging in any actor practice ofdiscrimination
ainst women and to ensure that public authorities and
institutions act in conformity with this obligation;
) To take all appropriate measures to eliminate discrimination
agalnst women by any person, organisation or enterprise;
88 HUMAN RIGHTS TL
( To take all appropriate measures, including legislation.
tion, to
modify or abolish existing laws, regulations, customs
and
practices which constitute discrimination against women:
(g) To repeal all national penal provisions which constitt ute
discrimination against women.
The Convention also aims to eliminate discrimination againes gainst
Women in the public and political lite of the country, and to ensure to t
Women, on equal terms with men, the right:
to vote in all elections and public referenda and to be eligihla
for election to all publicly elected bodies;
gbe

to participate in the formulation of government policy and the

implementation thereof and to hold public ofice and perfom m
all public functions at all levels of government; and
to participate in non-governmental organisations and
associations concerned with the public and political life of the
country. (Art. 7)
As several countries do not allow women, and especially married
women, to choose their own nationality, CEDAW also provides that:
The State shall grant women equal rights to acquire, change
or retain their nationality, and ensure that marriage to an alien
or the change of nationality by the husband does not
automatically change the wife's nationality to that of her
husband or render her stateless.
The State shall ensure that women have equal rights with men
as regards the nationality of their children. (Art. 9)
Special provisions are made in At. 10 to place women on an equal
footing with men in the field of education. Thus, for instance, it is
mandated that the State must take all appropriate measures to ensure
access to the same curricula, the same examinations, teaching staff
with qualifications of the same standard and school premises and
equipment of the same quality.
In order to prevent discrimination against women on the grounds
of mariage or maternity and to ensure their effective right to work, Art
11 calls upon States to take appropriate measures:

(a) to prohibit dismissal on the grounds of pregnancy or of

maternity leave and discrimination in dismissals on the basis
of marital status;
(6) to introduce maternity leave with pay or with comparable socla
benefits without loss of former employment, seniority or soca
allowances;
(c) to encourage the provision of the necessary supporting socla
services to enable parents to combine family obligations Win
 PROTECTION OF HUMAN RIGHTS OF WoMEN 89

work responsibilities and participation in public ife, in particular

through promoting the establishment and development of a
network of child-care facilities;
to
td) to provide special protection women during pregnancy in
types of work proved to be harmful to them.
Special provisions are also made as regards problems faced by
women in rural areas. Art. 14 inter alia provides that the State must
right
ensure that rural women have the
in the elaboration and implementation of
to participateplanning at all levels;
development
to have access to adequate health care facilities, including
information, counseling and services in family planning
education, formal and non
>to obtain all types of training and
formal, including that relating to functional literacy, as well as,
inter alia, the benefit of all community and extension services.
in order to increase their technical proficiency:
to participate in all community activities;
in relation to
to enjoy adequate living conditions, particularly transport
housing, sanitation, electricity and water supply, and
communications.
Provisions are also made to end discrimination against women in
matters relating to marriage and family relations. Under Art. 16, every
of men and
State is inter alia obliged to ensure, on a basis of equality
women
the same right to enter into marriage;
the same right freely to choose a spouse and enter into
to
marriage only with their free and full consent
the same rights and responsibilities during marriage and at its
dissolution;
the same rights to decide freely and responsibly on the number
and spacing of their children;
the same personal rights as husband and wife, including the
right to choose a family name, a profession and an occupation;
the same rights for both spouses in respect of the ownership,
acquisition, management, administration, enjoyment and
disposition of property.

Implementation Provisions
Committee
Art. 17 of CEDAW provides for the establishment of a
on the Elimination of Discrimination Against Women. This Committee
consists of 23 experts of high moral standing and competence in the
90 HUMAN RIGHTS

field. Although such experts are nominated by the member States, tha
serve on the Committee in their personal capacity. hey
The members of this Committee are elected at a meeting held
the UN headquarters by secret ballot, from a list of persons nominat at
by the member States. Each member State can, however,
ated
minate
only one person from amongst its nationals.
Within one year from joining the CEDAW, every member Stat
must file a Report stating what legislative, judicial, administrative or othete
ther
measures it has adopted to give effect to the provisions of Convention
tion
and what progress has been made in this regard. Thereafter,
such
Report is to be filed by every member State at least once in every fota
ur
years.
The Committee meets annually for a period of not more than two
weeks to consider the Reports filed as above. In turn, the Committee
submits an annual Report to the General Assembly of the UN, on its
activities, which includes suggestions and general recommendations
based on the Reports filed by the member States and the information
received by the Committee.

Resolution of Disputes
If there is any dispute between two or more member States as
regards the interpretation or application of the provisions of the CEDAW,
which is not settled by negotiations, the same is to be submitted to
arbitration at the request of either party to the dispute. If, within six
months
of such a request, the parties are not able to agree on the organisation
of such an arbitration, any party to the dispute can refer the same to the
International Court of Justice.

Optional Protocol
In October, 1979, the UN General Assembly adopted an Optional
Protocol to this Convention. States which have ratified this Protocol
recognise that CEDAWis competent to receive and consider complaints
from aggrieved individuals and groups. The
Protocol thus offers a new
opportunity to women-individually or in groups-to file
direct complaints
against discrimination or unequal treatment meted out to
them by
member States.
[ CEDAW is reproduced in Appendix V. ]

() OTHER INTERNATIONAL CONVENTIONS

Apart from CEDAW, one must also take note
of other internationa
conferences held during the UN sponsored International Women's
Decade (1976-1985) in Mexico, Copenhagen and Nairobi. A fourth Worid
 PROTECTION OF HUMAN RIGHTS OF WOMEN 91

nce on Women was also held in Beijing in 1995. All these

Conference
nferences have greatly enhanced international awareness of the plight
fwomen and have helped to clear the path in the direction of gender
equality.
The Beijing Conference, for instance, emphasized that "women's
and called for the eradication of certain traditional
iahts are human rights'
cUstoms and practices, cultural prejudices and religious extremism. A
draft Program of Action prepared at this Conference identified twetve
critical areas of concern with reference to the rights of women.
The UN General Assembly convened a Special Session on Women
in 2000, also
sometimes referred to as "Beijing+5. Delegates attending
this Conference were in general
agreement that whilst some progress
had indeed been made to achieve the goals set out Beijing five years
in
still achieved total equality between the
ago, no country in the world had
sexes in law or in practice.
Further Conferences were also held, as for instance, "Beijing
10T

in 2005, to review the

progress made in the past and to identify the
areas which were still open to gender discrimination.
Judicial notice of International Conventions
The implementation of these international conventions has also
received the attention of the judiciary in India from time to time. Thus,
the Supreme Court has observed that since India has ratified the CEDAW.
a duty is cast on the country to honourthe obligations imposed bythe
Convention. Unless appropriate legislation is passed to give legal effect
to the Convention, rights conferred on women by the Convention would
remain meaningless to a large number of women in India, due to their
poverty, ignorance and illiteracy. (Madhu Kishwar v. State of Bihar, AIR
1996 SC 2178)
The Supreme Court has also observed that the message of
international conferences like the CEDAWand the Beijing Declarations
is "loud and clear. International instruments such as these cast an
obligation on the country to gender-sensitize its laws, and courts are
under an obligation to ensure that the message of these intemational
instruments is not allowed to be drowned. (Apparel Export Promotion
Council v. A. K. Chopra, AIR 1999 SC 625)

International Women's Day is celebrated every year on March 8.

 6
PROTECTION OF HUMAN RIGHTS
OF CHILDREN

A child shows a man as morning showstheday" Milton

2AA.

The following topics are discussed in this Chapter:

A General
B. Protection of children under the Constitution of India

C Protection of children under the Commission for Protection of

Child Rights Act, 2005
D. Protection of children under other laws
E. Protection of children under the International Convention on
the Rights of the Child
F. Child abuse.

A. GENERAL
Although all human beings are born equal, yet, because of their
age or tenderness or immaturity, some of them become susceptible to
exploitation. One such vulnerable group is children.
Under international human rights law, children enjoy two types of
human rights. Firstly, they have the same human rights as are enjoyed
by adults, although some such rights, as for instance, the right to marry
are dormant until the child attains a particular age. Secondly, they enjoy
special human rights which are necessary to protect them during the
period of their childhood.
The rights of children are defined in many ways, including a wide
spectrum of civil, political, economic, social and cultural rights. Children
enjoy special rights which place a claim on society to protect them from
92
 PROTECTION OF HUMAN RIGHTS OF CHILDREN 93

which they are likely to be subjected because of their

harm to
dependency. This rigntis somotimes called tho right to empowerment
protection.
or the right to
The United Nations guidelines outline the rights of a chifd as the *3
Provision, Protection and Participation. Firstly, a child has the right
Ps:
to adequate provision tor a good standard of living, education,
play and
creation. Secondly a child has the right to protection from abuse,
negleci exploitation and discrimination. Lastly, a child has the right to
oarticipate in community programmes and youth activities.
In India, children enjoy special protection under the Constitution of
dia, under several Acts which have been enacted specially for them,
nder certain Acts applicable to all and under international conventions.
und
All of these are briefly discussed
in this Chapter.

B. PROTECTION OF CHILDREN UNDER THE

CONSTITUTION OF INDIA
There are several provisions of the Constitution of India which
directly or indirectuy provIde tor the protection of the human rights of
children. The most important of these provisions are discussed belaw in
brief.

Fundamental Rights
Several Articles in Part ll of the Constitution (Fundamental Rights)
protect the rights of children, as for instance, the following:
Art. 15 of the Constitution prohibits any discrimination on the Give two impor-
grounds of religion, ace, caste, sex or place of birth, and tant provisions ef
specifically empowers the State to make specíal provisions the Constitution of
India relating to
for women and children. rights of chlldren
After 2002, the right to free education has been made a (2 marks)
fundamental right under Art. 21A of the Constitution. The said M.U. May 2014
Article provides that the State shall provide free and compulsory
education to all children between the ages of six and fourteen
En
Explain the
years in such manner as the State may, by law, determine.
fundamental rights
Traffic in human beings, begar and otherforms offorced labour and dlrective
are prohibited by Art. 23 of the Constitution and such activities principles relating
have been specifically declared to constitute offences. to protection of
child rights.
No child below the age of fourteen years can be employed to M.U. May 2012
Work in any factory or mine or engaged in any hazardous Jan. 2019
employment. (Art. 24)
No citizen of India (child or otherwise) can be denied admission MCQ No. 48

in any educational institution maintained by the State or securing

 94 HUMAN RIGHTS

aid out of State funds, only on grounds of religilon, race, caste

or language. (Art. 29)
All minorities, whether based on religion or language, have
the right to establish and administer education institutions of
their choice. (Art. 30)
The courts have given a wide and meaningful interpretation to the
above provisions of the Constitution in several cases, some which are
discussed below.
Considering the scope and ambit of Art. 23 at great length, the
Supreme Court has observed that it is not only begar that is prohibited
by this Article, but also forced labour in whatever form it may manifest
itself, because it is violative of human dignity and is contrary to basic
human values. (People's Union for Democratic Rights v. Union of India.
AIR 1982 SC 1473)
In the above case, it was contended that the Employment of Children
Act, 1938, was not applicable to construction activities. Rejecting this
argument, the apex court held that this was certainly hazardous work
and no child below the age of fourteen years could be employed in such
an industry
In M. C. Mehta v. State of Tamil Nadu (AIR 1997 SC 699),
the
Supreme Court prescribed certain guidelines to protect children from
economic and social exploitation. These guidelines were directed to be
applied to several industries in the country like the match industry in
Sivakasi, Tamil Nadu, the diamond polishing industry in Surat, the glass
industry in Ferozabad, the lock industry in Aligarh, etc.
In Bandhu Mukti Morcha v. Union ofIndia (AlR 1984 SC 802), the
Supreme Court struck down certain forms of bonded labour and directed
the government to examine whether labourers were made to provide
forced labour in certain industries, pointing out the constitutional obligation
of the government under Art. 23 of the Indian Constitution.

Directive Principles of State Policy

Several provisions of Part IV of the Constitution of India (Directive
Principles of State Policy) also contain references to protection of
MCQ No. 49 children's rights. Although such Directive Principles are not enforceable
in a court of law, they are nevertheless
fundamental in the governance
of the country and it is the duty of the State to implement
them by suitable
legislation. These provisions are mainly the following:
The State shall strive to promote the welfare of all people (adults
as well as children) by securing and protecting, as effectively
as it can, a social order in which social, economic and political
justice shall inform all institutions of national life. (Art. 38)
 PROTECTION OF HUMAN RIGHTS OF CHILDREN 95

The State shall direct its policy towards securing that the health
and strength of workers and the tender age of children are not
abused. (Art. 39)
The State shall direct its policy towards securing that children
are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity. (Art. 39)
The State shall direct its policy towards securing that childhood
and youth are protected against exploitation and moral and
material abandonment. (Art. 39)
The State shall make provisions for securing just and humane
conditions of work and for maternity relief. (Art. 42)
Art. 44 calls upon the State to endeavour to secure a uniform
civil code for its citizens. Ifimplemented, this would bring about
uniformity in personal matters like minority, adoption and
guardianship of children, efc.
The State shall endeavourto provide early childhood care and
education for all children until they attain the age of six years.
(Art. 45)
The State shall raise the level of nutrition and the standard of
D living of the people and improve public health. (Art. 47)
In Vishal Jeet v. Union of India (1991 (1) SCC 283), the Supreme
Court passed stringent directions to prevent flesh trade and sexual
exploitation of children, ordering a CBI inquiry into the matter. The court
pointed out that the objectives contained in Art. 39 of the Constitution
reflect the great anxiety of the framers of the Constitution to protect and
safeguard the interests and welfare of the children of the country. The
court further noted that, in spite of stringent provisions of the law, the
desired results have not been achieved, and even today. there is a
remarkable degree of ignorance, callousness and culpable indifference
in this regard.
In M. C. Mehta v. State of Tamil Nadu (referred to earlier).
emphasizing the importance of the Directive Principles, the Supreme
Court observed that the spirit of the Constitution requires that children
should not be employed in factories, as childhood is the formative period
of a person. This provision has, however, remained a far cry' in the
country, said the apex court.

Fundamental Duties
Art. 51A of the Constitution, inserted by the Forty-second
Amendment in 1977, provides for several fundamental duties of citizens
of the country. Originally, there was no provision in this Article specifically
relating to children. However, under the Eighty-sixth Amendment of the
 96 HUMAN RIGHTS

Constitution in 2002, it is now provided that it shall be the duty of even.

parent and guardian to provide opportunities for education to his or h her
child or ward who is between the ages of six and fourteen years.

C. PROTECTION OF CHILDREN UNDER

THE COMMISSION FOR PROTECTION OF
CHILD RIGHTS ACT, 2005
The National Commission for Protection of Child Rights (NCPCR
was set up in March 2007 under the provisions of the Commission for
Protection of Child Rights Act, 2005, where a child is defined as a persn son
under the age of eighteen years.
Name two objects The mandate of the NCPCR is to ensure that all laws, policies
of the National programmes and administrative mechanisms are in consonance with
Commisslon for
the perspective of child rights as enshrined in the Constitution of India
the Chlid.
(2 marks)
and the UN Convention on the Rights of the Child. The basic aim of the
M.U. May 2013 Act is to protect children's rights by establishing Commissions for the
protection of the rights of children at the national and state levels.
Ss. 3 to 12 of the Act deal with the consttution of the Commission,
Name two func which consists of a Chairperson and six members, of whom at least two
tlons of the
Natlonal Commis
members should be women. The functions of the Commission are set
slon for the Chlid. out in S. 13 of the Act, and include the following:
(2 marks) to examine and review the safeguards provided by laws in
M.U. Nov. 2015 force in the country for the protection of child rights and to
recommend measures for their effective implementation;
to present to the Central Government annually and at such
intervals as the Commission may deem fit, reports on the
working of such safeguards;
to inquire into violations of child rights and recommend initiation
of proceedings in such cases;
to examine all facts that inhibit the enjoyment of rights of
children affected by terrorism, communal violence, domestic
violence, natural disasters, HIV, AIDS, trafficking, maltreatment.
torture, exploitation, pornography and prostitution and
recommend appropriate remedial measures
to look into matters relating to children in need of special care
and protection;
to undertake and promote research in the field of child rights,
to inspect, or cause to be inspected, any juvenile custodial
home or any other place or residence or institution meant for
children,
 PROTECTIONOF HUMAN RIGHTS OF CHILDREN 97

to Inquire into complaints and take suo motu notice of matters

relating to deprivation and violation of child rights, non
implementation of laws providing for the protection an
development of children, etc.
24 of the Act contain provisions for the constituton of
Ss. 17 to
Commissionsffor protection of child rights, whereas Ss. 25 and 26
state
the establishment of Children's Courts. Interestingly, the
deal with
establishment of Commissions at the state level and courts for children
made mandatory by the Act, leaving it to the discretion of
have.not been
evey state whether or notto establish these important institutions.

D.
PROTECTION OF CHILDREN UNDER OTHER LAWS

HILDREN'S
RIGHTS

KO THEM. INANO THEM.

FEND YHM
Apart from specific provisions in the Constitution of India, several
other laws have been enacted in the country to provide for the protection
of children's rights, some of which are briefly discussed below.
The Indian Penal Code, 1860, contains several provisions which
protect children. Thus, no act of a child under the age of seven years iS
an offence under the Code (S. 82). As regards children between the
ages of seven and twelve years, any act is not an offence if such a child
has not attained sufficient maturity to understand and judge the nature
and consequences of his conduct (S. 83). Again, sale and purchase
minors for the purpose of prostitution, ilicit intercourse or any other
unlawful or immoral purpose is punishable under Ss. 372 and 373 of the
Code.
The Juvenile Justice (Care & Protection of Children) Act, 2000,
which came into force on April 1, 2001, defines a juvenile as a person
under the age of eighteen years. The Act aims at providing a juvenile
Justice system for juveniles in conflict with the law and those in need of
care and protection, by adopting a child-friendly approach in the
adjudication and disposal of criminal matters in the best interest of
nidren and for their rehabilitation, keeping in view, their development
needs. Parliament has enacted this law bearing in mind the standards
98 HUMAN RIGHTS

prescribed in the Convention on the Rights of the Child, the U.N. Stands.
Minimum Rules for the Administration of Juvenile Justice, 1985
Beijing Rules), the U.N. Rules for the Protection of JuvenilesDepri
Deprived
of their Liberty (1990) and other international instruments.
The Prohibition of Child Mamage Act, 2006 (which replaced th
Child Marriage Restraint Act, 1929) prohibits the solemnisation othe
marriages. The Act defines a "child" as a male belo the age of twenty ild
one years and a female below the age of eighteen years. A mary
where either party is a child is considered to be a child marriage. le
the earlier legislation, where there was no provision for voidabili
such a marriage, the new legislation makes a child marriage voidable a
the option of the contracting party who was a child at the time of
mar
riage.
The Act also lays down some cases in which the marriage of a minoe
is
void, and not merely voidable.
The Child Labour (Prohibition & Regulation) Act, 1986 lays doun own
where and how children can work and where they cannot. The main aim
of the Act is to abolish child labour from certain industries completek
and to regulate child labour in others where child labour is pemitted.
per the Act, "child" means any person who has not completed his
fourteenth year of age. The Act prohibits children from working in
specified occupations like catering at railway establishments, construction
work on the railway or anywhere near the tracks, plastic factories
automobile garages, etc. The Act also prohibits children from working in
places where certain processes are being undertaken, as for example,
beedi making, tanning, soap manufacture, brick kilns and roof tiles units
etc. The Act further provides for the establishment of a Child Labour
Technical Advisory Committee which is responsible for advising the
government in the matter.
Under the Children (Pledging of Labour) Act, 1933, any person
employing or making agreements with the child's parents or his guardians
for the child's labour is punishable. Parents or guardians who give a
pledge or make an agreement for children's services in return for payment
or any benefit and the employer who makes the agreement with the
parents or guardians for employing the child, are punishable with fine.
The Young Persons (Harmful Publications) Act, 1956 was passed
to prevent the dissemination of certain publications harmful to young
persons. The Act defines a'young person' as person underthe ag8
twenty years. It prohibits publications which could corrupt a childora
young person and incite him to commit crimes of violence or crueiya
contravention of the provisions of this Actis punishable with imprisonnu
and fine.
 PROTECTION OF HUMAN RIGHTS OF CHILDREN 99

of the Infant Milk Substitutes, Feding Bottles and

The purpose
1s to promote breast feeding of new-born children
Infant Foods Act 1992
and infants. It also ensures that infant foods are regulated and used
anoropriately. This Act provides that no person can advertise, promote
appropriately
people to believe that infant food, feeding bottles and infant
Ormislead are an acceptable replacement of mother's milk. The
milk substitutes
Aet reguires that every manufacturer, supplier or distributor of infant
faod and infant milk substtutes must put warning labels on the product
which gives clear instructions
tor use, nutritonal information, ingredients.
manufacture and expiry dates, etc.
Apart from the above, there are other enactments which deal with
Children Act, 1960, the
nrotection of children, as for instance, the
Employment of Children ACt. 1938, the Protection of Children from Sexual
Reformatory Schools Act, 1897, etc.
Offences Act, 2012, the
NGOs in the
There are several organisations, associations and
country whose aim is to educate children and protect their rights, thereby
for instance, the following:
ensuring due compliance with CRC, as
the Children
POSave
Child Rights and You (CRY)
World Vision, India
o Smile Foundation
Child Development Center
Bal Vikas Dharna
Bachpan Bachao Andolan
oAkansha Foundation
o Abhilasha Foundation.

E. PROTECTION OF CHILDREN UNDER THE UN

CONVENTION ON THE RIGHTs OF THE CHILD

In
1959, the General Assembly of the UN adopted the Declaration
of the Rights of the Child, which was the first major intemational
 100 HUMAN RIGHTSl

Write a short note consensus on the fundamental principles ofchildren's rights. Also refer.
on:Convention on
to as the Geneva Declaration of the Rights of the Child, it is a histo
storic
the Rights of the
Chlld document because it recognised and afirmed, for the first time, th
M.U. Nov. 2013 existence of specific rights of children and the responsibility of adiu
What are the rights towards them. The Declaration inter alia recognised ten specific rich
of chlidren as per of the child, as for instance, the right to equality, the right to speeial
the conventlon on protection, the right to a name and nationality, the right to adequa
Rights of Child? nutrition, housing and medical services, the right to free education an
Discuss. and
M.U. May 2017
recreational activities, etc.
Jan. 2018 This Declaration was followed by the Convention on the Righte
Write a short notes
the Child, discussed below. The lntemational Labour Organisation (lL
0)
on Rights of chil nad also initiated the process of gradual elimination of child lab
and
dren In the Indlan the protection of children form industrial exploitation.
Constitutlon. The United Nations Convention on the Rights of the Child (often
M.U. May 2019
eferred to as CRC or CROC or UNRC) Is a human rights treaty which
Define "child" as sets out the civil, political, social and cultural rights of children. Under
defined In the
this Convention, a 'child is defined as a human being who is under th
Convention on the
Rights of the age of eighteen years unless the age of majority is attained by
-
such a
Child, 1989. child earlier under the local laws of a Member State. The UN General
(2 marks) Assembly adopted the convention on November 20, 1989, and it came
M.U. May 2013 in force on September 2, 1990, after it was ratified by the required
MCQ No. 50 number of nations.
What are the Countries which have ratified the CRC are bound by its provisions
oblects of the ind such compliance is monitored by the UN Committee on the Rights
International Con
vention on the
ofthe Child. Currently, 196 countries are parties to the Convention. India
Rights of the ratified the CRC on December 11, 1992. It has agreed, in principle, to all
Chlld? (2 marks) Articdes ofthe Convention, with certain reservations made with relation
M.U. Apr. 2009 to some of its provisions relating to child labour (as there is no blanket
What are the ban on child labour in India, except in hazardous industries).
sallent features of The most important provisions of CRC are summarised below.
the Convention on
the Rights of the State Parties recognise that every child has the inherent right
Chlld, 19897 to life.
M.U. Nov. 2010
State Parties shall ensure, to the maximum extent possible,
What Is the status the survival and development of the child.
of human rights of
children In Indla? States Parties shall respect and ensure the rights set forth in
Explain with refer- the Convention to every child within their jurisdiction without
ence to CRC provl discrimination of any kind, irrespective of the child's or his or
sions, constitu-
tional provislons
her parents or legal guardian's race, colour, sex, language.
and important religion, political or other opinion, national, ethnic or social
case law. origin, property, disability, birth or other status.
M.U. Nov. 2014
States Parties shall take all appropriate measures to ensure
May 2015
that the child is protected against all forms of discrimination or
 PROTECTION
OF HUMAN
RIGHTS OF
CHILDREN
Dunishment on 101
the basis of the
aninions, or beliefs status, actvities,
of the child's
family members. parents, legal expressed
guardians, or
In all actions concerning children,
whether undertaken
or private social welfare institutions, by pubic
authorities or legislative courts of law,
bodies, the best administrative
shall be a primary consideration. interests of the child
State Parties undertake to ensure
and care as is necessary tor his the child such protection
or her well-being,
account the rights and taking into
duties of his or her
guardians, or other individuals legally parents, legal
responsible for him or
her, and, to this end, shall take all
appropriate legislative
administrative measures. and
State Parties shall ensure that the institutions,
facilities responsible for the care or services and
protection of children shall
conform with the standards established
by competent
authorities, particularly in the areas of
safety, health, in the
number and suitability of their staf, as well
as competent
supervision.
State Parties shall undertake all appropriate legislative,
administrative and other measures for the implementation
of
the rights recognised in the Convention.
The child shall be registered immediately after birth and shall
have the right from birth to a name and the right to acquire a
nationality.
The child shall have the right to freedom of expression,
including the freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the fom of art, or through any other media
of the child's choice.
State Parties that recognise or permit the system of adoption
shall ensure that the best interests of the child shall be the
paramount consideration, and they shall recognise the right of
every child to a standard of living adequate for the child's
physical, mental, spiritual, moral and social development.
State Parties undertake to protect the child from all forms of
sexual exploitation and sexual abuse.
to
State Parties shall ensure that no child shall be subjected
treatment or
torture or other cruel, inhuman or degrading
imprisonment
punishment. Neither capital punishment nor ife
imposed for offences
without possibility of release shall be
years of age.
committed by persons below eighteen
 102 HUMAN RIGHTS

For the purpose of examining the progress made by the

State.
which are parties to the Convention, in achieving the realisation af
obligations undertaken in the Convention, a Committee on the Right
the Child has been established, which carries Out the functions
tions specife
s
of
in the Convention.

F. CHILD ABUSE

We won about
whatachid
wlbecome
tomorrowyet we
forgetthat hel
Someone today
Sde usher

Art. 25(2) of the Universal Declaration of Human Rights (discusse

Write an essay on: in Chapter 4) provides that childhood is entitled to special care
Human rights and and
chlid abuse.
assistance. Likewise, the Intermational Covenant on Civil and Polical
M.U. Nov. 2009
Rights (also discussed in Chapter 4) lays down that every child shall
Nov. 2011 have the right to such measures of protection as are required by reason
of his physical and mental immaturity.
Write a short note As stated earlier in this Chapter, the Declaration of the Rights of
on : Human rights the Child was adopted by the UN General Assembly in 1959, and it laid
and child abuse.
M.U. Apr. 2011
down ten specific rights of a child. This was followed by the Convention
onthe Rights of the Child (CRC) also discussed earlier in this Chapter
In addition to the above, there are several specific provisions in the
Constitution of India which ensure the care and protection of a child.
All the international conventions and the constitutional provisions
have one common aim: To protect children by giving them specific human
rights, thereby putting an end to child abuse in all its forms.
Child abuse' is a term which refers to physical, sexual or
psychological maltreatment or mistreatment of a child, often coming from
a parent or a guardian or other caregiver.
CHILDHELP, an NGO based in Arizona, USA, answers the question,
What is child abuse? in the following words:
Child abuse is when a parent or caregiver, whether through
action or inaction, causes injury, death, emotional harm or
risk of serious harm to a child, including neglect, physical
abuse, sexual abuse, emotional abuse or exploitation."
 PROTECTION OF HUMAN RIGHTS OF CHILDREN 103

ofchild abuse on the victim are serious and long-lasting.

The effects
includes depression, anxiety, mental illness, psychiatric problems,
Itdevelopmental problems, emotional insecurity, sexual dysfunction, loss
self-esteem, sexually transmitted diseases like HIV, etc.
of
Child abuse takes various forms. Perhaps the commonest
or hitting or
nhysical abuse, which takes the fom spanking children
of
them, pulling their ears or boxing them - or even
kicking or slapping
children.
burning or scalding
Sexual abuse is said to take place when an adult or older adolescent
child for his own sexual pleasure and stimulation. It takes
ahuses a
various forms like forcing a child to engage in sexual activities or indecent
exposure of the child's genitals, display of pornography or using the
material. A survey conducted in the USA
child to produce pornographic
interviewed
revealed that 25% of women and 15% of men who were
children. In a similar study
stated that they were sexually abused as
conducted in India, 76% of the respondents stated that they had been
abused as children, 40% of them stating that the culprit was a member
of the family
Child neglect, that is, failure of the parent or guardian to provide
clothing and
the child with essential necessities like food, medical care,
safety is also looked upon as a form of child abuse.
Yet another form of child abuse is FGM (female genital mutilation),
which is prevalent in many countries of the world even today. It is
estimated that more than 200 million girls (most of them being fifteen to
nineteen years old) have been subjected to this barbarous ritual all over
the world. Amnesty International has launched a strong drive protesting
against FGM.
Child marriage is also looked upon as a form of child abuse.
international study revealed that India has more child brides than any
other country, accounting for as much as 40% of all child marriages in
the world.
 104 HUMAN RIGHTS

Another fom of child abuse prevalent in many cOuntries is traffic

in children. This involves the recruitment, transportation and
usin
children for the purpose of exploitation (including sexual exploitati
bonded labour, begging and drug couriering. The International La
Organisation (ILO) has estimated that more than 1.2 million children
trafficked every year.

Child labour, yet another form of child abuse, refers to

the
What is meant by employment of children in factories and hazardous industries. Such
an
chlld labour? act deprives a child of his childhood and is mentally, physically,
(2 marks)
sociall
and morally harmful and dangerous. It also deprives the child from
M.U. Apr. 2010
attending regular school and comes in the way of his self-development
ILO has classified child labour as a form of child abuse. International
covenants as well as local laws enacted in several countries have sought
to abolish the evils of child labour- or at least to minimise it.
The Constitution of India provides specific protection to children
and lays down that no child below the age of fourteen years can be
employed in any factory or mine or engaged in any hazardous
employment. (Art. 24)

n
STOPCHILDLÄBOUR
Specific provisions have also been made in several statutesto
prohibit employment of children, as for instance, the Indian Factones
ACt, 1948, he Indian Mines Act, 1952, the Apprentices Act, 1961, tn
ano
Beedi and Cigar Workers (Conditions of Employment) Act, 1966
various Shops and Establishments Act in force in various States.
 PROTECTION OF HUMAN RIGHTS OF CHILDREN 105

The Employment of Children Act, 1938, was the first statutory

actment in India tto deal with the problem of child labour. The Supreme
enactment
ourt rejected th
Court the argument that the Act would not apply to construction
ctivities in Delhi at the time of ASIAD, and held that construction work
ertainly a hazardous activity. (People's Union for Democratic Rights
.Union ofIndia, AlR 1983 SC 1473)
The same view was expressed a year later in Labourers, Salal
Hvdel Project v. State of J & K(AIR 1984 SC 177), where the Supreme
Court reiterated that constructon work is a hazardous employment, and
ehildren below the age of 1ourteen years cannot be employed in such
activities.
Another bold piece of legislation is the Child Labour (Prohibition&
Regulation) Act, 1936, which prohibits employment of children in certain
occupations and processes and imposes stringent punishment (jail
sentence and fine) for violation of its provisions.
The Supreme Court has also laid down exhaustive guidelines to
protect the economic, sOCialand humanitanian rights of millions ofchildren
who are engaged in employment. The apex court has directed the
creation of a fund called the Child Labour Rehabilitation-cum-Welfare
Fund, where employers of children are obliged to deposit large sums of
money. (M. C. Mehta V. State or amil Nadu, AlR 1997 SC 699)
If implemented effectively, the above guidelines of the Supreme
Court were expected to go a long way in addressing the problem ofchild
labour in India. However, when the National Human Rights Commission
carried out a review of what was happening in Maharashtra, Rajasthan,
Orissa and U.P, it found the situation to be far from satisfactory. It
concluded that widespread child labour continues to persist in India
Child labour is today not only an economic compulsion of poor families,
but is also a consequence of extreme social and economic exploitation.
The total prevention of child abuse, and particularly child labour, in
India, a country with more than 380 milion children, the largest child
population in the world, still remains a distant dream.
 PROTECTION OF HUMAN RIGHTS
OF PRISONERS

"Inour wortd, prisoners are still laboratoñes of torture, warehous

in which human commodities are sadistically kept and where
spectrums of inmates range from driftwood juveniles to heroic
dissenters. aJustice V,R.Krishnalyer

Interestingly, Lord Macaulay, who drafted the Indian Penal Code,

was in favour of drastic punishments like the death penalty, solitary
confinement-and even whipping. On the other hand, the Father ofthe
Nation, Mahatma Gandhi, was a champion of the reformative theory of
punishment, and advocated the humanist, compassionate and
corectional approach to punishment. According to him, the only legitimate
process of civilised justice is to restore the prisoner to the status of an
ordinary, law-abiding citizen.
Wrlte a short note The Indian Constitution does not expressly confer any specific or
on :Human rights separate rights on prisoners. However, several rights falling under Part
of prisoners and Ill of the Constitution (Fundamental Rights) are also available to those
the Indian
Constitution. in jail albeit with necessary modifications. The Supreme Court has
M.U. Nov. 2012 observed that prisoners retain all rights enjoyed by freelitigants,excep
those necessarily lost by reason of their confinement (Charles snou
V. Superintendent, Central Jail, Tihar (AIR 1978 SC 1514). As Justice

Krishna lyerobserved in that case, 'Imprisonment does not spell fare

to fundamental rights.
106
 PROTECTION OF HUMAN RIGHTS OF PRISONERS 107

In other words, prisoners continue to enjoy all fundamental rights

including in particular, those conferred by Arts. 14, 19, 20, 21 and 22
extent.
although to a imited
Apart from fundamental rights, Art. 39-A, which is a Directive
Principle of State policy, cals upon the State to secure that the operatio
system promotes justice on the basis of equal opportunity.
of the legal
mandated to provide free legal aid to ensure that
The State is also
nnortunities for securing justice are nof denied to any citizen by reason
opport
or other disabilities.
of economic
Additionally, provisions which protect certain rights of prisoners are
found in the Indian Penal Code 1860, the Indian Evidence
also to be
Act, 1872, the Prisons Act, 1894, the Prisoners Act, 1900, the Prisoners
(Attendance in Courts) ACt, 1955, the Criminal Procedure Code, 1973
and the Model Prison Manual, 2016.
Although stringent provisions exist on paper, it is generally felt that
more in their breach than in their observance. It is
thev are observed Explain the human
has stepped in, remedying the situation which the rights available to
here that the judiciary
convicts and
leaislature and the executive could not. is abundantly clear that the
It
prisoners with the
courts have championed the rights of prisoners, and for this purpose, help of case law.
given a broad and wholesome interpretation to several provisions of the
M.U. May 2012
Constitution of India. Some such rights are discussed below.
Critically examine
Right to Legal AidI Assistance the rights of
Art. 39 of the Constitution (referred to above), though not convicts and
prisonerss.
enforceable in a court of law, interalia imposes a mandate on the State
M.U. May 2006
to provide free legal aid to ensure that opportunities for serving justice Apr. 2007
are not denied to any citizen by reason of economicor other disabilities. Nov. 2008
Pursuant to this constitutional directive, Parliament has enacted Apr. 2009
the Legal Services Authorities Act, 1987, under which legal aid is Nov. 2009
guaranteed and various State Governments have framed legal aid Apr. 2010
schemes. Apr. 2011
Apr. 2012
right to free legal aid was considered forthefirst time by the
The
Supreme Court in M. H. Hoskot v. State of Maharashtra (AIR 1978 SC
Dec. 2019

1548), where the accused was charged with forgery of a college degree Write a short note
certificate. The Court held that the right to legal aid is one of the on any five rights
ingredients of fair procedure. The Court ruled that free legal assistancee of prisoners in
India.
should be provided to all accused who are poor, irrespective of the
M.U. Nov. 2014
Severity of the crime and that such
assistance should be given at very
stage of the case and not only at the trial stage.
Write a short note
A year on : Human rights
later, in Hussainara Khatoon v. Home Secretany, State of
Sinar (AIR 1979 SC 1369), and convicts.
the Supreme Court reiterated the above M.U. Apr. 2009
PIniple. It observed
that the accused is not given an opportunity to
if
 108 HUMAN RIGHTS
Critically examine be represented by a lawyer, it would amount to a denial of liberty
the rlghts of an in.
Art. 21 of the Constitution. Further, the trial itself may be vitiated an
accused nthe
M.U. Nov. 2005 ground of violation of Art. 21.
Nov. 2006 In Khatri v. State of Bihar (AIR 1981 SC 928), also referred
t
Nov. 2007 the Bhagalpur Blinding Case, certain blind inmates who were tried
the Magistrate were not given legal aid. The reason given was that no
Wrlte any two of them had asked for such assistance. Rejecting this argument
rights of prisoners
at the time of Supreme Court held that there was a constituttonal obligation to provid vide
arest. (2 marks) legal assistance to an indigent accused, and that the exercise of
M.U. Jan 2018 right is not conditional upon the accused asking for such assistan
The Court therefore held that this was a gross violation of the princinl
MCQ No. 51 laid by it in Hussainara Khatoon's case (above).
Legal aid is, thus, no longer a matter of charity or benevolence, but
but
has become a constitutional right and the legal machinery is expecter
to deal specifically with the same.

Right to Speedy Trial

It isan unfortunate fact that statistics reveal that about 80% o
prisoners in India are under-trials. The concept of giving them a fair and
speedy trial remains a distant dream.
The right to a speedy trial came up for the comment of the Supreme
Court in Hussainara Khatoon's case (above), where the apex court noted
the shocking state of afairs" in the administration ofjustice in the county
It noted that an alarmingly large number of men and women are behind
bars, awaiting trial. Many of them are charged with offences where the
maximum punishment would be a jail sentence for a few months-or
maybe, one or wo years. And yet, they have been languishing in jails
from three to ten years. And in many cases, their trial had not even
begun. The court held that a procedure which keeps such a large number
of people behind bars for so long is violative of Art. 21 of the Constitution.
The right to a speedy trial was elaborately explained by the Supreme
Court in several other cases also, as for instance, in Mathew Areepamlu
v State of Bihar (AIR 1984 SC 1895), Shaheen Welfare Asso. v. Union
India (1984 (6) SCC 731) and Rej Deo Shama v Stateof Bihar(2000
of
(1) BLJR 37).

Rights Against Inhuman Treatment, Handcuffs and Fetters

The Supreme Court has, in various cases, taken a serious note of
the inhuman treatment of prisoners and has issued appropriate directions
to the prison and police authorities to safeguard the rights of those ln

prison and police lock-up.

 PROTECTION OF HUMAN RIGHTS OF PRISONERS 109

InKishore Singh v. State of Rejasthan (AIR 1981 SC 625), the

Supreme Court has held that the use of third degree methods used by
the policeto
extract contessions from prisoners is violative of Art. 21 of
Constitution.
the
Likewise, in Raghubir Singh v. State of Bihar (AIR 1987 SC 149),
its anguish over police torture and upheld
the Supreme Court expressed
the life sentence awarded to a Police Oficer who was responsible for
in the police lock-up.
the death of prisoner
a

The Supreme Court has also observed, time and again, that
prisoners, and in particular, under-trial prisoners, should not be
handcuffed in the absence of justifying circumstances. (How far this
mandate of the apex court is observed in practice is, however, debatable.)
Prem Shankar Shukla v. Delhi Administration (AIR 1966 Sc
In
2957), although the Magistrate had directed that the prisoner should not
be brought to court in handcuffs, unless absolutely necessary, he was
nevertheless handcuffed on every such trip. He therefore addressed a
telegram to the Judges of the Supreme Court, who converted the
telegram into a habeas corpus petition. The court observed that to
handcuff a person is to punish him in a humiliating manner. The minimum
freedom of movement which a detainee is entitled to under Art. 19, cannot
be cut down by the application of handcuffs. These must be used only
as a last resort-as there are other methods ofensuring the securityof
a prisone.
this case, the Supreme Court also struck down a provision in the
Ih
Punjab Police Rules which discriminated between the rich and the poor
prisoners when determining which prisoners were to be handcufed.

in
In Charles Shobraj v. Supt, Central Jail, Tihar (referred to eartier
this Chapter), Justice Krishna lyer observed:
"Handcuffing is prima facie inhuman and therefore.
unreasonable and at first flush, arbitrary. In the absence of
Tair procedure and monitoring, to inflict
irons' is to resort to
Zoological strategies repugnantto Article 21.
110 HUMAN RIGHTS

In SunilBatra v Delhi Administration (AIR 1978 sC 1675

Supreme Court observed that keeping a prisoner continuously in fete
day and night, reduces him to the status of an animal and that this Cr
and unusual treatment is against the spirit ofthe Indian Constitution

Rights in the Matter of Narco-analysis and Brain-mapping

With advances in scientific technology, narco-analysis, brain.
mapping and polygraph tests have emerged as favorite tools
of
investigation all overthe world for eliciting the truth from accused persons
Human rights organisations all over the world, however, protested
strongly, saying that this is an atrocity to the human mind and a breach
of the right of privacy.
The Supreme Court had to consider the constitutional validity nf
such methods of investigation in Prem Shankar Shukla v. Delhi
Administration, (1980 3 SCC 526), where it was held that narco-analysis
brain-mapping and polygraph tests are unconstitutional and violative of
human rights. The court accepted the view that such tests violate Art
20(3), under which a person cannot be forced to give evidence against
himself.
It was argued before the Supreme Court that many criminals would
escape conviction if such tests are not allowed. However, the court
reiterated that these tests can be carried out only with the consent of the
accused.
Right to Consult a Lawyer and to Meet Relatives and Friends
In Sunil Batra's case (discussed earlier), the Supreme Court
recognised the ight of prisoners to be visited by their relatives and friends.
The court favoured such visits, subject to search, discipline and other
security measures. It observed:
Visits to prisoners by family and friends are a solace in
insulation and only a dehumanised system can derive vicarious
delight in depriving prison inmates of this humane amenity."
Again, in Francis Coralie Mullnin v. The Administrator, Union Territory
of Delhi(AlR 1981 SC 746), the Supreme Court ruled that the right to
life and liberty includes the right to live with human dignity. Therefor
detenue would be entitled to meet family members, friends and lawyers,
without any severe restrictions.

Right to Freedom of Speech and Expression

The fundamental right to freedom of speech and expression Is nol
lost to a prisoner just because he is in jail. In State of Maharashtra v
Prabhakar Panduranga (AIR 1966 SC 424), it was held that the rightto
personal liberty includes the right to write a book and get it published. l.
 PROTECTION OF HUMAN RIGHTS OF PRISONERS 111

therefore, a detenue is denied this right without the authority of law, t

wOuld amount to a violation of Art. 21 of the Constitution.

In the above case, the detenue was writing a book on the theory of
olamentary particles. It purported to be a book meant to educate the
avman on the quantum theory. The court observed that such a subject
is purely of scientific interest, and it possibly cannot cause any prejudice
of India, public safety or maintenance of public order. In
to the defence
the court upheld the decision of the Bombay High
the circumstances,
Court to allow publication of the manuscript and dismissed the appeal
Maharashtra.
filed by the State of

Right to Reasonable Wages

or
Ifa prisoner has been asked to provide labour services in jail, he
payment which is appropriate for such labour or service.
is entitled to a
amount to forced labour' prohibited by Art. 23 of the
f not, it would
Constitution.
In Mahammad Giasuddin State (1977 3 SCC 287), the Supreme
v.

minimum
Court held that wages paid to a prisoner should not be below the
wages fixed by law.
Again, in Gurudev Singh v. State ofH.P (AIR I992 HP 70), a Division
Bench of the Himachal Pradesh High Court made the following
observations:
Ifa prisoner is sentenced to rigorous imprisonment, it is lawul
to employ him to do hard labour- whether he consents to it or
not.
However, every prisoner should be paid equitable wages for
the work done by him.

Guidelines of the Supreme Court in D. K. Basu's case

In D. K. Basu v. State of West Bengal (AIR 1997 SC 610), a case Elaborate the
rights of prisoners
where a telegram addressed to the Chief Justice was converted into a with the help of D.
writ petition, the Supreme Court dealt with custodial deaths and various K. Basu's case and
forms of custodial torture and cruel, inhuman and degrading treatment other Supreme
of prisoners and other persons being questioned by the police. Court judgments.
M.U. Nov. 2015
After commenting on the fact that the word "torture has not been
defined by any Indian statute, the Supreme Cout remarked that torture
Is today synonymous with the darker side of human
civilization. It
ODserved that custodial torture is a naked violation of human dignity
Which destroys the individual. It is a calculated assault on human dignity
and whenever human dignity is wounded, civilisation takes a step
infliction
Dackwards. What is of real concern in such cases is not only the
of bodily pain, but also the mental agony which a person undergoes
within the four walls of the lock-up or police station.
112 HUMAN RIGHTS

The Court observed that if the functionaries of the law themselvas ves
a
breed contempt for the law
Decome law-breakers, it is bound to and
encourage lawlessness. Every man would tend to become a laW unt nto
The police Is, no doubt, under
himself and this would lead to anarchism. der
no
him; Dut the law does
a duty to arrest a criminal and interrogate
to torture the accused while in
allow the use of third degree methods
As observed by the Supreme
police custody with a view to solve the crime.
society can permit it
Court, "The end cannotjustify the means. No
India protects life and personal
In Art. 21 of the Constitution of
India,
deprived of his life or personal
liberty by providing that "no person shall be
established by law". The Coie
liberty except according to procedure
personal liberty" includes the righ
observed that the expression "life or a
it would also include within itself.,
to live with human dignity, and thus
by the State. Art. 22 of the
guarantee against torture and assault
Constitution guarantees protection against arrest and
detention in certain
as well as the rights of
cases, laying down the procedural requirements
are contained in the Criminal
the person arrested. Detailed provisions
Procedure Code regarding powers of arrest and the
safeguards which
to protect the interests of the
are required to be followed by the police
provisions, mornina
arrested person. However, in spite of all these
newspapers carry, almost every day, reports of dehumanising
torture,
in the words of the
assault, rape and deaths in police custody, and
Supreme Court, "Society's cry forjustice becomes louder."
The Court, in this case, formulated the following eleven guidelines
to be adhered to in all cases of arrest and detention, until legal provisions
are made in that behalf. The Court further directed that failure to comply
with these requirements would render the concerned Officer liable for
departmental action and such a person would also be punished for
contempt of court.
1. The police personnel carrying out the arrest and handling the
interrogation of the arestee should bear accurate, visible and clear
identification and name tags with their designations. The particulars
of all such police personnel who handle interrogation of the arrestee
must be recorded in a register.
2. The police officer carrying out the arrest must prepare a memo ot
arrest at the time of the arrest and such memo is to be attested by
at least one itness, who may be either a member of the family o
the arrestee or a respectable person of the locality from where the
arrest is made. Such a memo is also to be countersigned by
arrestee and must contain the time and date of arrest.
 PROTECTION OF HUMAN RIGHTS OF PRISONERS 113

or detained and is being held in

rson who has been arrested
person
A station or interrogation centre or other lock-up,
3. ustody in a police
to
ntitled to have one friend relative or other person known
or
is informed, as soon as practicable, that he has been arrested
him
nd he is being detained at the particular place, unless the
and that witness
aftesting
attesting of the memo of arrest is himself such a friend or
arrestee.
relative of the
a
of arre: and venue of custody of an arrestee must
The time, place
4. notified by the police, in cases where the next friend or relative
be arrestee livesoutside the district or town, through the Legal
ofthe
Organisation in the District and the Police Station of the area
Aid
concerned, telegraphicaly within a period of eight to twelve hours
after the arrest.
must be made aware of his right to have
The person arrested soon as he is put
someone informed of his arrest or detention as
5.

under arrest or isdetained.

in the Diary at the place of detention
An entry must be made
6 regarding the arrest of the person, which must also disclose the
person who has been informed of
name of the next friend of the
particulars of the police officials in
the arrest and the names and
whose custody the arrestee
is.

The arrestee should, where he so

requests, also be examined at
7.
minor injuries, if any, present on
the time of his arrest for major and
must be signed both by the
his or her body. The "Inspection Memo"
arrestee and the police officer effecting the arrest and its copy
provided to the arrestee.
8. The arrestee should be subjected to medical examination every
48 hours during his detention in custody by a doctor on the panel of
approved doctors appointed by the Director, Health Services of the
concerned State or Union Territory.
9 Copies of all the documents, including the memo of arrest referred
to above, should be sent to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during9
interrogation, though not throughout the interrogation.
11. A Police Control Room should be provided at all district and State
headquarters, where information regarding the arrest and the place
of custody of the arrestee should be communicated by the officer
causing the arrest, within twelve hours of efecting the arrest, and
Such information should be displayed on a conspicuous notice board
in the Police Control Room.
114 HUMAN RIGHTS

Observations of the Supreme Court of USA

The US Supreme Court has observed that "life' does not
ot mean
mere animal existence. A prisoner, whether a convictct or an undean a
an under-
a detenue, does not cease to be a human Deing just because rialot
se
prison. Therefore, he cannot be deprived of his human rights. e isin
ho
enjoy all the rights which a free man enjoys- but with certain res
He ca
estricti
The importance of human rights cannof be over-emphasiserd ons
the sacred duty of the court- as the custodian and protector itis
ofhuman
rights-to ensure that no breaches are committed in this regard. (M
v. People of linois, 198 11.77)
Conclusion
From what is stated above, it is clear that courts in India
have
b.
championed the rights of prisoners and have indeed fought to
ensu
that they are not deprived of such rights. However, even today,
thestate
of persons in prisons in India is a pitiable one. Clearly, prison
offii
are either ignorant of the directives of the Supreme Court or they disnl
spay
an attitude of casual indifierence in the matter. Until thismindset
mindset chang
change
prisoners in India may, unfortunately, continue to be deprived of their
heir
human rights.
 8
PROTECTION OF MINORITIES,
SCHEDULED CASTES AND
SCHEDULED TRIBES

Two topics
are discussed in this Chapter:
A. The National Commission for Minorities
B. The National Commission for Scheduled Castes and
Scheduled Tribes.

A. NATIONAL COMMISSION FOR MINORITIES

n the longrun,it would be in the interests of all to forget that thereis

anything like amajorityora minonity in this country, and that in India.
there is only one community Sardar Vallabhai Patel
India is a multi-cultural and multi-religious nation. Whereas close Write a short note
to 80% of the country's population is Hindu, several minonties consttute on: Minorities
the rest of India's vast population. It was therefore thought fit to constitute Commission.
M.U. Nov. 2005
a National Commission for Minorities (NCM), by passing the National
May 2006
Commission for Minorities Act in 1992. The basic object of the Act was Nov. 2009
toprotect the interests of the minority communities. namely. the Muslims Nov. 2010
Christians, Sikhs, Buddhists and Zoroastrians (Parsees) and to evaluate Nov. 2011
the progress of their development. In 2014, the Government of India Nov. 2012
accorded the minority status also to the Jains (vide a Notification dated Nov. 2015
January 27, 2014). Apr. 2018
Interestingly, even before any legislation in this respect was passed May 2019
by the Central Government, several states (including Maharashtra,
115
116 HUMAN RIGHTS

Assam, Bihar, Uttar Pradesh, West Bengal and others) had set in
suct
Commissions at the State level. Utar Pradesh was the first to do h
passing an Executive Order to that effect, albeit without a proper daby
abate
on the constitutional tenability of such a step. The UP Minori
Commission was- strangely a one-Member Commission consies Sing
of Dr. Sampurnanand, a devout Hindu and a Sanskrit and Hindi schol
Fourteen years later, this one-man Commission was expanded into i
ten-member body. a
Under the National Commission for Minorities Act, the NCMi
consist of one Chairperson, one Vice-Chairperson and five Memhe mbers,
all of whom hold office for three years at a time. These persons, asw
w well
as the employees of the NCM, are deemed to be public servante within
the meaning of S. 21 of the Indian Penal Code.
The NCM adheres to the United Nations Declaration of 1ph
December 1992, which states that "States shall protect the existenco
of
the national or ethnic, cultural, religious and linguistic identity of minoritiae
within their respective territories and encourage conditions for tha
promotion of that identity." Every year, December 18 is observed asa
Minorities Rights Day in the country.
The functions of the Commission, based in New Delhi, are to:
(a) evaluate the progress of the development of minorities under
the Union and States;
(b) monitor the working of the safeguards provided in the
Constitution and in laws enacted by Parliament and the State
Legislatures
(c) make recommendations for the effective implementation of
safeguards for the protection of the interests of minorities by
the Central Government or the State Governments;
(d) look into specific complaints regarding deprivation of rights
and safeguards of the minorities and take up such matters
with the appropriate authorities;
(e) cause studies to be undertaken into problems arising out of
any discrimination against minorities and recommend
measures for their removal;
() conduct studies, research and analysis on the issues relating
to socio-economic and educational development of minorities
(g) suggest appropriate measures in respect of any minority to be
undertaken by the Central Government or the Stale
Governments;
(h) make periodical or special reports to the Central Government
on any matter pertaining to minorities and in particular ns
difficulties confronted by them; and
 PROTECTIONOF
MINORITIES,
SCHEDULED
CASTES
undertake any other matter 117
Central Government. which may
be referred to
performing itby the
lhen any ot the functions
Commission covered
d) above, the has all the powers by clause (a), (b) or
d particular, of a civil court
uit, an In in respect of the
following matters, trying a
summoning and enforcing namely,.
the attendance
any part of India and examining of any person
from
him on oath;
requiring the discovery
and production of
any document,
receiving evidence on affidavit;
requisitioning any public
record or copy thereof
or office and from any court
issuing commisslons for the examination
of witnesses
documents. and
The recommendations made by the Commission under
clause (c)
ahove are to be laid by the central Government before the Lok Sabha
and the Rajya Sabha, along with a Memorandum
explaining the action
taken, or proposed to be taken, on the
recommendations of the
Cammission and the reasons for non-acceptance, if
any, of any such
recommendations. If any such recommendation relates to a matter with
which a State Government is concerned, the recommendation
mustalso
he sent to the Governor of that State, who must place it before the State
Legislature with a similar Memorandum.

Cases
1. Shaik Nasar Saheb v. Maulana Azad National Urdu University,
In Dr.
the Petitioner had applied for the post of a Lecturer at a University
After the interviews were over, six candidates were selected, and
some others were put on the Waiting List. The Petitioner's name
was No. 2 on this List. Appointment letters were then issued to the
six selected candidates and also to two others, who were No.
1

and No. 3 on the Waiting List. Dr. Shaik made several inquiries
and filed RTI queries to find out why he was discriminated against
- but was not given much information. He therefore
approached
sidelined because of his
the NCM, alleging that he was being
minority status.
Petitioner was not
defence, the University argued that the
In
the required
selected probably because he did not possess both the
hearing
gualfications. Rejecting this contention, and after
dated October 2014, 1,
Sides, the Commission, vide its Order lf candidates
victim of injustice.
concluded that the Petitioner was a
this should have been
were to be appointed from the Waiting List, which their
of merit, namely, the order in
aone strictly on the basis
 118 HUMAN RIGHTS

names appeared on the List. The NCMtherefore took the view t

the University ought to undo this injustice and appoint him tat
post. In case there was no vacant post, a new post could be crea
ated
for him.
In Sewa Singh v. FCI (Fertilizer Corporation of India), the Petiti.
22. one
approached the NCM for regularisation of his government
on a lease basis. It was shown to the Commission that asers
units of FCI were closing down, a voluntary Separation Sch
was offered to the employees. The Petitioner had opted fe
Scheme and had also vacated the government quarters
n
allotted to him. However, some time later, he unauthorier sedly
occupied the same premises after breaking the Company's
Company'sloc lock,
In the course of the hearing before the NCM, when
the
ons, he
Petitioner was called upon to make his submissions, he refused
refused
do so and insisted on an interim order being passed in his favOur
After perusing all the documents brought on record, the Commissio
Commis
concluded that there was material
no to suggest that the Petitiane
was discriminated against because he belonged to a minori
community, as alleged by him. The commission came to a
conclusion that the Petitioner had not approached it with clean
hands, and therefore, no intervention of the Commission Was
warranted. The petition was accordingly dismissed vide tha ne
Commission's Order dated October 15, 2014.

B. THE NATIONAL COMMISSION FOR SCHEDULED

CASTES AND SCHEDULED TRIBES

moneyorpower b for
yggastirouchatthyis a fgt aganst he Oursis he struggle no br
redamaion ofhuman dignily-Dr BRAnbeka
irnre invnsrtyatna and he
untouchabiliy
Gandhiji worked all his life to create awareness about
sategua
Write a short note and Dr. Ambedkarhad the vision to predict that constitutional
on to preve
National were absolutely necessary in post-independent India
Commisslon for exploitation of persons belonging to the Scheduled Castes (SCs)athe
Scheduled Castes. of
o
M.U. May 2015 Scheduled Tribes (STs). Before independence, these sections and
Indian society were suffering from extreme social, educationad and
economic backwardness on account of primitive practice
 PROTECTION OF MINORITIES, SCHEDULED CASTES 119

lack of safeguards
lack of their interests and socio-econornic
stitions and
-titions
development.
Constitution has, therefore, made important provisions MCO No. 52
The Indian
neglected classes who form a sizable portion of the countr/'s
for these alia in Articles 338 to 342 of the Constitution.
populati inter
Constitution had originaly provided for a single Commission
The
the National Commission for Scheduled Castes
SCs and STs, namely,
for Scheduled Tribes. This Commission was to consist of a Chairperson,
and ice-Chairperson and five ther members, all to be appointed by the
a under his hand and seal. (The 89 Amendment now
resident ofIndia
Pres Commissionfor SCs and another one for STs
provides for a separate
Chapter.)
as discussed later in this
Constitution deemed it fit to set up this
The framers of the
to
Commission as a national advisory body advise the government on
hroad policy issues and
levels of development of these neglected
sections of the population.
It is the duty of the Commission
to present to the President of India,
annually or at such other times as the Commission may deem
fit, reports
provided for SCs and STs. These reports
on the working of the safeguards
are to be laid before the Lok Sabha and the Rajya Sabha, along
with a
Memorandum explaining the action taken, or proposed to be taken, on
the recommendations of the Commission and the reasons for non-
acceptance, if any, of any such recommendations. If any such report
relates to a matter with which a State Governmer is concermed, the
report must also be sent to the Govenor of that State, who must place
it before the State Legislature with a similar Memorandum.

The powers and duties of the Commission, as enumerated in the

Constitution are six, namely,
(a) to investigate and monitor all matters relating to the safeguards
provided for the SCs and STs under the Constitution or under
any other law for the time being in force or under any order of
the Government and to evaluate the working of such
safeguards
(6) to inquire into specific complaints with respect to the deprivation
of rights and safeguards of the SCs and STs;
)to participate and advise on the planning process of socio-
economic development of the SCs and STs and to evaluate
the progress of their development under the Union and any
State;
(a) to present to the President, annually and at such other times
as the Commission may deem fit, reports uponthe workingof
those safeguards;
120 HUMAN RIGHTS

reports, recommendations as to the meae

(e) to make, such
in
by the Union or any State for the effa
thatshould be taken
and other measura for
implementation of those safeguards s
protection, welfare and socio-economic developmen o
the
the SCs and STS; and to
to discharge such other functions in relation the proter ction,
( advancement of the s SCe
welfare and development and
may, subject to the provisions of anylaw
STs as the President
rule specify.
made by Parliament, by
matter referred to in clause (a) above.
When investigating any
referred to in clause (b) above
inquiring into any complaint
civil court trying a suit, particula
Commission has all the powers of a
matters, namely,-
in respect of the following six
(a) summoning and
enforcing the attendance of any person from frn
him on oath;
any part of India and examining
(b) requiring the discovery and
production of any document;
affidavits;
(c) receiving evidence on
(d) requisitioning any public record
or copy thereof from any cout
or office;
examination of witnesses and
(e) issuing commissions for the
documents;
may, by rule, determine
() any other matter which the President
The Constitution also makes it mandatory for
the Union and every
on all major policy matters
State Government to consult the Commission
affecting the SCs and STs.
The first Commission under Art. 338 of the
Constitution was set up
in August 1978 under the chairmanship of Shri Bhola
Paswan Shastri.
only one
As stated earlier, originally, the Constitution envisaged
Amendment
Commission for both SCs and STs. However, under the 89"
came into force on February 19, 2004),
the
of the Constitution (which the
erstwhile single body was replaced by two separate Commissions,
National
National Commission for Scheduled Castes and the
Commission for Scheduled Tribes.
[A reference may also be made to the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, which
gives further protection to the SCs and STs. ]
 9
ROLE OF NON-GOVERNMENTAL
ORGANISATIONs (NGOS) IN THE
PROTECTION OF HUMAN RIGHTS

Several organisations around the world dedicate their efforts to Explain: Role of
nrotecting human rights and ending the wide-spread abuse of human NGO's in the
rights. Major human rgnts organisations maintain extensive websites Protection of
documenting violations and calling for remedial action, both at a Human Rights.
Overnmental and grass-roots levels. Public support and condemnation M.U. Nov. 2009
goV
Nov. 2012
of abuses is important to their success, as human rights organisations
May 2013
are most effective wnen their calls tor reform are backed by strong public Nov. 2015
opinion and advocacy.
Jan. 2018
A Non-Governmental Organisation (NGO) is a non-profit voluntary Apr. 2018
organisation of community persons, volunteers, civilians and citizens. Jan. 2019
NGOS are registered under the relevant laws of the country, but are
managed by its members and associated persons, independently from
government control.
NGOS work to improve the policies, enhance the work pattern,
improve and implement the welfare and development schemes of
Government and causes for human welfare. NGOs serve as
organisations to advocate, promote and monitor human right issues,
education, health, environment and other welfare and development aims,
objects and issues. They operate, organise, manage, support and run
programmes, activities, projects and works at local, regional, national
and international levels according to the requirements and operational
capacity of the organisation.
At the global level, the champions of human rights have most often
been citizens and NGOs, and not government officials. In particular,
NGOs have played a primary role in focusing the attention of the
international community on human rights issues. NG0s monitor the
actions of governments and pressurise them to act according to human
rights principles.

NON-GOVERNMENTAL ORGANISATIONS IN INDIA

Several NGOs based in India are dedicated to the protection of Write an essay on
human rights. Some of them, along with their activities and achievements, any three NGOs in
are discussed below. India.
M.U. Apr. 2011
The Centre for Development and Human Rights
The Centre for Development and Human Rights (CDHR) is a non-
Parusan NGO based in New Delhi. It is registered under the Societies
121
122 HUMAN RIGHTS

Registration Act, 1860, and aims to promote social and global justic
through human rights. It seeks to strengthen the field of all human rights
developing the tools for achieving their respect, protection and fulfillment
While it recognises the interdependence and indivisibility of all human
rights, its special focus is on economic, social and cultural rights, which
concern essential values for a life of dignity and treedom food.
education, health, housing, social security and work, among others.
,
The efforts of this NGO are guided, not only by the vision and
principles established by the Universal Declaration of Human Rights
and the International Convention on Economic, Social and Cultural
Rights, but also by the thoughts of Mahatma Gandhi and Dr. B. R
Ambedkar, whom it regards as sources of inspiration in its mission to
respect, protect, and fulfill human rights and to promote a human rights.
based framework for development.
Vigil India
Vigil India Movement (or Vigil India) is a non-governmental
organisation based in Bangalore that aims to protect and promote human
rights in India. Founded in 1977, it is one ofthe country's leading human
rights organisations focusing on the rights of Dalits, tribals, children and
Women.
In 1998, Vigil India launched the Institute of Human Rights under
Mr. Justice M.N. Venkatachaliah, a former Chief Justice of India and
former Chairman of the National Human Rights Commission. The
Institute is a training programme for human rights activists which aims
to "train trainers" for grass-roots education in human rights in the country.

Confederation of Human Rights Organisations

The Confederation of Human Rights Organisations (CHR0) is a
human rights organisation based in Kerala, which keeps a close watch
on human rights and human rights violations all over India, and particularly
in the State of Kerala. It has published many research reports and papers
with the help of other international human rights organisations like Human
Rights Watch International.
CHRO aims to protect, uphold and strengthen the rights of
traditionally exploited and oppressed social segments of tribals, Dalits,
minorities, backward castes, women, children and victims of State
Violations. It has conducted public trials and fact-finding sessions at
different places of Kerala, where it feels that the judiciary and polio
have failed to punish human rights violators.
Human Rights Protection Group
The Human Rights Protection Group is a Chandigarh-based human
rights organisation and protest group led by Prabhloch Singh. n8
 NON-GOVERNMENTAL ORGANISATIONS (NGOS) 123
ROLE OF

earned an interesting name,

earned Middle Finger Protests, from
organisation
organs championed during the Jessica Lal murder trial, the Sippy
protests it Aarushi
Jyoti murder case, the murder case
e
the murder case, the
Nirbhaya case.
andthe
Ensaaf justice) is a non-profit organisation based in
Ensaar (meaning
ab, which works to achieve justice for mass state crimes in India,
we
Punjab,
pun on Punjab, by documenting abuses, bringing perpetrators
with focus survivor It has established an international
justice, and assisting
to innovative and effective advocacy, working with India's
tation for
preemine human rights attorneys and leading human rights
world.
organisations all over the
Ensaafhas established
In a short
period of five years of its operation,
innovative and effective advocacy. In many
international reputation for
an
af its initiatives, it has
partnered with prominent international
Watch, Intermational Center for
organisations, including Human Rights
Transitional Justice, the Redress
rust, Harvard Law School's Human
Program, Center for Human Rights and Global Justice (affiliated
Rights Human Rights.
NYU Law School) and the South Asia Forum for
to the

Manab Adhikar Sangram

Samiti
Manab Adhikar Sangram Samiti is
aregional non-profit human rights
in 1991 by Parag Kumar Das along with
NGO in Assam. It was founded
a group of intellectuals and
journalists of Assam.
protection and promotion of
This NGO has been working on the
rights education and mass
human rights (both civil and political), human
rights violations,
mobilisation, resistance and documentation of human
in Assam by the
etc. It has also challenged the human rights violation
Indian Army, paramilitary forces and the state
police.

NON-GOVERNMENTAL ORGANISATIONS OUTSIDE INDIA

field of human
There are several international NGOs operating the
in
International, discussed
ights, of which the most renowned is Amnesty
at length in this Chapter. Three other notable organisations are also
discussed in short.
Amnesty lnternational
What Is Amnesty
lawyer,
On November 19, 1960, when Peter Benenson, an English International?
was commuting in the London Underground, he came across a (2 marks)
newspaper article which reported that two Potuguese students had been M.U. May 2009
Sentenced to seven years imprisonment for "having drunk a toast to May 2012
liberty. May 2014
 124 HUMAN RIGHTS

AMNESTY AMNE
NTEPNATONAL

Write a short note This inspiring moment gave birth to a unique movement and
on Amnesty became the starting point of an extraordinary social revolution in the
International.
field of human rights. It marked the birth of one of the most successf
M.U. Apr. 2007
Apr. 2008
global NGOs focused on human rights, and which has today a following
Nov. 2008 of over seven milion members and supporters-Amnesty International
- often referred to as Al or just Amnesty.
Nov. 2011
Dec. 2016 Amnesty was founded in London in 1961, following the publication
Dec. 2019 of Benenson's article, 'The Forgotten Prisoners' in The Observer on
May 28, 1961. Originally, itwas the intention of Peter Benenson to launch
an appeal in Britain to obtain an amnesty for prisoners of conscience all
MCQ No. 53
over the world. In course of time, however, Al became a globally
successful movement in the field of human rights.

Explain:Amnesty The stated objective of Amnesty is "to conduct research and

International. generate action to prevent and end gross abuses of human rights and
M.U. May 2013 to demand justice for those whose rights have been violated". The six
areas in which Al primarily operates are:
Rights of women, children and minorities
Abolition of the death penalty
MCQ No. 54
Abolition of torture in all its forms
Rights of refugees
Rights of prisoners of conscience
>Protection of human dignity.
 NON-GOVERNMENTAL ORGANISATIONS (NGOS) 125
ROLE OF
cases,
to capital punishmentin all Write two Impor
Interestingy.Amnestyis opposed tant features of
Interesne crime committed or the circumstances surrounding Amnesty Interna
irespective dividual in question or the method of execution. tiona? (2 marks)
crime or the M.U. Apr. 2016
the also
also strongly opposed female genital mutilation (FGM), also
Alhas
Al has circumcision, which is rampant in several countries. It
female
knownas that more than 200 million girls, mostly between the ages
barbarous ritual all over the
d 19, ha
19, have been subjected to this
and
of 15
world. are to end extra-judicial
specific aims of the organisation
Other 'disappearances', criminalise abortion, ensure free
executions,
all child
children worldwide, promote economic, social and cultural
ucation to all
marginalised communities, ensure a prompt and fair trial for
htsfor prisoners and uphold the rights of refugees, migrants and
political prisoners
all political
all seekers.
asylum protection of human
activities directly pursued for the
Apart from include areas like helping
Amnestys nternational activities also
rights, sending observers to court trials, making
the families of prisoners,
finding asylum - and even
representations to governments and wonder A/has been awarded
No
employment-overseas for prisoners. Europe and
United Nations, the Council of
consultative status by the
UNESCO.
human rights organisations, Amnesty
In the field of international name recognition,
perhaps the longest history and the broadest
has rights
and is believed by
many to set the standards for the human
Nobel Peace Prize foor
movement globally. In 1977, it was awarded the
torture and in 1978, it was the proud recipient
of
its campaign against
Human Rights. In 1984, it received the Four
the UN Prize in the Field of
Freedom Award for promoting freedom of speech.
from like-minded
Amnesty is financed largely by fees and donations
It claims that it does not
people and organisations all over the world.
so
accept donations from governments or governmental organisations,
that it may maintain full independence from all
political ideologies and
of record that
economic and religious interests. However, it is a matter
UK Department
Amnesty has, in the past, accepted donations from the
of International Development, the European Commission, the
US State
Department and the Rockefeller Foundation.
The vision of Al is implicit in one of its mottos:
BETTER TO LIGHTA CANDLE THAN TO CURSE THE DARKNESS.
In its own words,

When the last prisoner of conscience has been freed, when

ne last torture chamber has been closed, when the United
126 HUMAN RIGHTS

Nations Declarationof Human Rights is a reality for the world's

people, will our work be done."
The Human Rights Actlon Center
The Human Rights Action Center is a non-profit organization based
in Washington, DC, USA, headed by Jack Healey, a world-renowned
human rights activist and pioneer. The Center works on issues of the
Universal Declaration of Human Rights and uses the arts and
technologies to innovate, create and develop new strategies to ston
human rights abuses. It also supports other human rights groups all
over the world.
Human Rights Watch
Human Rights Watch, based in New York, USA, is dedicated
protecting the human rights of people around the world. It investigates
and exposes human rights violations, holds abusers accountable, and
calls upon governments and those who hold power to end abusive
practices and respect international human rights law.
This NGO documents human rights abuses around the world, with
the ultimate goal of ending them and bringing the perpetratorstojustice
In its own words:
Change doesn't come easily, and in some cases, it can be
painfully slow. And it rarely comes from our efforts alone, but
rather from the combined efforts of numerous groups and
activists. Progress can take many forms- laws are changed,
investigations launched, international pressure is applied,
perpetrators brought before courts-buteach is a step forward
in the pursuit of justice and the promotion of human rights.
Here, we document developments that mark progress in the
many issues we work on around the world."
Human Rights Without Frontiers
Human Rights Without Frontiers (HRWF), based in Brussels in
Belgium, focuses on monitoring research and analysis in the field of
human rights, as well as promotion of democracy and the rule of law at
the national and international level.
A recent case where HRWF campaigned and helped achieve
positive results was when the decision of the Supreme Court of Nepal
on a human rights issue was finally implemented by the Govenment of
Nepal on March 2, 2016, under immense pressure from HRWF, Nepa.

k
 Appendix - I
EUNDAMENTAL RIGHTS AND DIRECTIVE
Fu
INCIPLESS IN THE CONSTITUTION OF INDIA
FUNDAMENTAL RIGHTS
[PART II of the Constitution]
General

Definition
12.
unless the context otherwise requires, "the State" includes the Government
Part,
te this Government and the Legislature ofeach of the States and
ament of iIndia and the
Parliament Govemment
and orother authorities within the territory of India or under the control of the
alllocal
India.
of Note
fundamental rnghts listed below
definition of the word, "State, is important, as
The given a very broad interpretation by
taken away by the State. This word has been
Can be
annot bodies like the Intermational Airport Authorty
Supreme Court and the High Courts, and
the Ltd., universities and nationalised banks have been held
the Bharat Petroleum Corporation
ambit of this term.
the
to fall within
with or in derogation of the fundamental rights
13. Laws inconsistent
territory of India immediately before the commencement of
(1) Alllaws in force the
in

this Constitution, in so far as they

are inconsistent with the provisions of this Part
inconsistency, be void.
shall, to the extent of such
(2) The State shall not make any
law which takes away orabridges the rights coriered
by this Part and any law made in
contravention of this clause shall, to the extent of
the contravention, be void.
(3) In this article, unless the context otherwise requires,
notification,
(a) "law" includes any Ordinance, order, bye-law, rule, regulation,
custom or usage having in the territory of India the force of law
(b) "laws in force" includes laws passed or made by a Legislature or other
competent authority in the teritory of India before the commencement of this
Constitution and not previously repealed, notwithstanding that any such law
or any part thereof may not be then in operation either at all or in particular
areas.
4) Nothing in this article shall apply to any amendment of this Constitution made
under article 368.
Right to Equality
14. Equality before law
ne State shall not deny to any person equality before the law or the equal protection
of the laws
within the territory of India.
127
128 HUMAN RIGHTS

15. Prohibition of discrimination on grounds of religlon, race, caste, sex or place of

birth
(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any
of them, be subject to any disability, liability, restriction or condition with regard to.
(a) access to shops, public restaurants, hotels and places of public entertainment
or
(b) the use of wells, tanks, bathing ghats, roads and places of public resat
aintained wholly or partly out of State funds or dedicated to the use of the
general public
(3) Nothing in this article shall prevent the State from making any special provision
for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from
making any special provision for the advancement of any socially and educational
backward classes of citizens or for the Scheduled Castes and the Scheduled
Tribes.
16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against in respect
of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing,
in regard to a class or classes of employment or appointment to an office under
the Government of, or any local or other authority within, a State or Union
territory.
any requirement as to residence within' that State or Union territory prior to such
employment or appointment.
for the
(4) Nothing in this article shall prevent the State from making any provision
reservation of appointments or posts in favour of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the services
under the State.
fo
(4A) Nothing in this article shall prevent the State from making any provision
or
reservation in matters of promotion, with consequential seniority, to any class
Castes
classes of posts in the services under the State in favour of the Scheduled
and the Scheduled Tribes which, in the opinion of the State, are not adequaley
represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacane
with any
of a year which are reserved for being filled up in that year in accordance
separate
provision for reservation made under clause (4) or clause (4A) as a
 APPENDIX-I 129

vacancies to be filled up in any succeeding year or years and such class

class of
ceacancies shall not be considered together with the vacancies of the year in
being filled up for determining the ceiling of ffty percent. resenvation
which they are
of vacancies of that year
on total number
Mothing in
Nothing this article shall affect the operation of any law which provides that the
in thisa
(5) incumbent of an office in connection with the affairs of any religious or
denominational institution or any member of the governing body thereof shall be a
or belonging to a particular denomination.
person professing a parucular region
Untouchability
Abolition of
17.
Untouchability" is abollshed and itis pracice in any form is forbidden. The enforcement
shall be an offence punishable in accordance
disability arising out of untouchability"
ofany
with law.

18.
Abolition of titles
milltary or academic distinction, shll be conferred by the
d1 No title, not being a
State.
India shall accept any title from any foreign State.
(2) No citizen of
(3) No person who is
not a citizen of India shall, while he holds any office of profit or
trust under the State, accept without the consent of the President any title from
any foreign State.
(4) No person holding any office of profit or trust under the State
shall, without the
consent of the President, accept any present, emolument, or
ofmice of any kind

from or under any foreign State.

Right to Freedom
19. Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right
(a) to freedom of speech and expression;
b) to assemble peaceably and without arms;
(c) to form associations or unions or co-operative societies;
(d) to move freely throughout the teritory of India,
(to reside and settle in any part of the territory of India; and

(9) to practise any profession, or to carry on any occupation, trade or business.

(2) Nothing in
sub-clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-
clause in the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States. public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence.
130 HUMAN RIGHTS

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existina
law in so far as it imposes, or prevent the State from making any law imposing, in
the interests of the sovereignty and integrity of India or public order, reasonable
restrictions on the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existina
law in so far as it imposes, or prevent the State from making any law aw imposing,
imposing, inin
the interests of the sovereignty and integrity of India or public order or morality
asonable restrictions on the exercise of the ight conterred by the said sub
clause.
(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making any law
imposing, reasonable restrictions on the exercise of any of the rights conferred hy
the said sub-clauses either in the interests of the general public or for the protection
of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing, in
the interests of the general public, reasonable restrictions on the exercise of the
right conferred by the said sub-clause, and, in particular, nothing in the said sub.
clause shall affect the operation of any existing law in so far as it relates to, or
prevent the State from making: y law relating to,
() the professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business, or
(i) the carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.
20. Protection in respect of conviction for offences
(1) No person shall be convicted of any offence except for violation of a law in force at
the time of the commission of the Act charged as an offence, nor be subjected to
a penalty greater than that which might have been inflicted under the law in force
at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offenoe more than
once.
(3) No person accused of any offence shall be compelled to be a witness against
himself.
21. Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure
established by law.
21A. Right to education
The State shll provide free and compulsory education to all chldren of the age of Sk
to fourteen years in such manner as the Sate may, by law, determine.
 APPENDIX-1 131

Protection against arrest and detention in certaln cases

22. be detained in custody without being informed, as
1) No person wnoIs arrested shall
to
soon as may be, of the grounds for such arrest nor shall he be denied the right
consult, and to be defended by, a legal practitioner of his choice.
person who Is afrested and detained in custody shall be produced before
(2 Every within a period of twenty-four hours of such arrest, excluding
the nearest magistrate
time necessary for the journey from the place of arrest to the court of the
the
magistrate and no such person shall be detained in custody beyond the said period
without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply-
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any
law providing for
preventive detention.
(4) No law providing for preventive
detention shall authorise the detention ofa person
for a longer period than three months unless-
qualified
(a) an Advisory Board consisting of persons who are, or have been, or are
to be appointed as, Judges of a High Court has reported before the expiration
of the said period of three months that there is in its opinion sufficient cause
for such detention:
Provided that nothing in this sub-dlause shall authorise the detention of
any person beyond the maximum period prescribed by any law made by
Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made
by Parlament under sub-clauses (a) and (b) of clause (7).
(6) When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall, as soon
as may be, communicate to such person the grounds on which the order has
been made and shall aford him the earliest opportunity of making a representation
against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred
to in that clause to disclose facts which such authority considers to be against the
public interest to disclose
(7) Parliament may by law prescribe-
(a) the circurnstances under which, and the class or classes of cases in which, a
person may be detained for a period longer than three months under any law
providing for preventive detention without obtaining the opinion of an Advisory
Board in accordance with the provisions of sub-clause (a) of clause (4);
(6) the maximum period for which any person may in any class or classes of
cases be detained under any law providing for preventive detention; and
132 HUMAN RIGHTS

(c) the procedure to be followed by an Advisory Board in an inquiry under sub

clause (a) of clause (4)
Right against Exploitation
23. Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable
in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service
for public purposes, and in imposing such service the State shall not make any
discrimination on grounds only of religion, race, caste or class or any of them.
24. Prohibition of employment of children in factories, etc.
No child below the age of fourteen years shall be employed to work in any factory or
mine or engaged in any other hazardous employment.
Right to Freedom of Religion
25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part,
all persons are equally entitled to freedom of conscience and the right freely to
profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the
State from making any law
(a) regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice
(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
Explanation I: The wearing and carrying of kirpans shall be deemed to be included in
the profession of the Sikh religion.
Explanation Il: In sub-clause (b) of clause (2), the reference to Hindus shall be
construed as includinga reference to persons professing the Sikh, Jain or Buddhist religion,
and the reference to Hindu religious institutions shall be construed accordingly.
26. Freedom to manage religious affairs
Subject to public order, morality and health, every religious denomination or any section
thereof shall have the right-
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
 APPENDIX-1
133
Ereedom as to payment of taxes for promotion
of any particular
No person shall be compelled to pay any religion
raoriated in payment of expenses for taxes, the proceeds of which are specifically
the promotion or maintenance
religion or religlous denomination. of any particular
A Freedom as to attendance at religious instruction
or religious worship
educational institutions. in certain
)No religious instruction shall be provided
in any
educational institution wholly
maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational
institution which is administered
by the State but has been established under any
endowment or trust which requires
that religious Instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised
by the State or receiving
aid out of State funds shall be required to take part in any religious
instruction that
may be imparted in such institution or to attend any religious worship
that may be
conducted in such institution or in any premises attached thereto unless
such
person or, if such person is a minor, his guardian has given his consent thereto.
Cultural and Educational Rights
29. Protection of interests of minorities
(1) Any section of the citizens residing in the tertory of India or any part thereof
having a distinct language, script or culture of its own shall have the right to conserve
the same.
(2) No citizen shall be denied admission into any educational institution maintained
by the State or receiving aid out of State funds on grounds only of religion, race,
caste, language or any of them.
30. Right of minorities to establish and administer educational institutions
to
(1) All minorities, whether based on religion or language, shall have the right
institutions of their choice.
establish and administer educational
acquisition of any property of an
(1A) In making any law providing for the compulsory
by a minority, referred to in
educational institution established and administered
amount fixed by or determined under
clause (1), the State shall ensure that the would not restrict orabrogate
property is such as
such law for the acquisition ofsuch
the right guaranteed under that clause. discriminate against
to educational institutions,
(2) The State shall not, in granting aid under the management of a
ground that it is
any educational institution on the
or language.
minority, whether based on religion (Forty-fourth
of property] Repealed by the Constitution
1.Compulsory acquisition
Amendment) Act, 1978.
134 HUMAN RIGHTS

Saving of Certain Laws

31A. Saving of laws providing for acquisition of estates, etc.
(1) Notwithstanding anything contained in article 13, no law providing for
(a) the acquisition by the State of any estate or of any rights therein or the
extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited
period either in the public interest or in order to secure the proper management
of the property, or
(c) the amalgamation of two or more corporations either in the public interest or
in order to secure the proper management of any of the corporations, or
(o) the extinguishment or modification of any rights of managing agents,
secretaries and treasurers, managing directors, directors or managers of
corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any
agreement, lease or licence for the purpose of searching for, or winning, any
mineral or mineral oil, or the premature termination or cancellation of any
such agreement, lease or licence,
shall be deemed to be void on the ground that it is inconsistent with, or takes away
or abridges any of the rights conferred by article 14 or article 19:
Provided that where such law is a law made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been
reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition
by the State of any estate and where any land comprised therein is held by a
person under his personal cultivation, it shall not be lawful for the State to acquire
any portion of such land as is within the ceiling limit applicable to him under any
law for the time being in force or any building or structure standing thereon or
appurtenant thereto, unless the law relating to the acquisition of suchland,building
or structure. provides for payment of compensation at a rate which shall not be
less than the market value thereof.
(2) In this article,-
(a) the expression "estate" shall, in relation to any local area, have the same
meaning as that expression or its local equivalent has in the existing law
relating to land tenures in force in that area and shall also include-
() any jagir, inam or muafi or other similar grant and in the States of Tamil
Nadu and Kerala, any janmam right;
(i) any land held under ryotwari settlement;
(i) any land held or let for purposes of agriculture or for purposes ancillay
thereto, including waste land, forest land, land for pasture or sites o
 APPENDIX- 135

buildings and other structures occupied by culivators of land, agricultural

labourers and village artisans;
"rights", in relation to an estate, shall include any rights vesting
(b) the expresslon
in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under
ralyat or other intermediary and any rights or privileges in respect of land
revenue.
Regulations
31B.
Validation of certain Acts and
provisions contained in article 31A, none of
without prejudice to the generality of the
Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof
the void, or ever to have become void, on the ground that such Act
shall be deemed be
toi
with, or takes away or abridges any of the rights
Regulation or provision is inconsistent
notwithstanding any judgment, decree or
conferred by, any provisions of this Part, and
arder of any court or Tribunal to the contrary, each of the said Acts and Regulations shall,
Sublect to the power of any
competent Legislature to repeal or amend it, continue in force.

31C. Saving of laws giving effect to certain directive principles

Notwithstanding anything contained in article 13, no law giving effect to the policy of
the State towards securing fall or
any of the principles laid down in Part IV shall be deemed
tobe void on the ground that it is inconsistent with, or takes away or abridges any of the
rights conferred by article 14 or article 19; fand no law containing a declaration that it is for
giving effect to such policy shall be called in question in any court on the ground that it does
not give effect to such policy:
Provided that where such law is made by the Legislature of a State, the provisions of
this article shall not apply thereto unless such law, having been reserved for the consideration
of the President, has received his assent.

31D. Repealed by the Constitution (Forty-third Amendment) Act, 1977.

Right to Constitutional Remedies
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2 The Supreme Court shaill have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo waranto and
certiorari, whichever may be appropriate, for the enforcement of any of the
fundamental rights.
) Without prejudice to the powers conferred on the Supreme Court by clauses (1)

a2 Parliament may by law empower any other court to exercise within the
local limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause (2).
4)
ne right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.
32A.
**.
Repealed by the Constitution (Forty-third Amendment) Act,
1977.
 tegrorisi

egaeii=

ng umshment
fr these etst=
shdi.as scen as ma Ser
*elas farpresaroinguTSNTS

imeciately teftre te MES

Ewth reszect te any
NR

RIT anentet e
 APPENDIX- 137

tlon: In this article, the expression "law in force" has the same meaning as in
Exp
article 372.
DIRECTIVE PRINCIPLES OF STATE POLICY

Part IV ofthe Constitution ]

Definition
36.
context otherwise requires, "the State" has the same meaning
In this Part, unless the
as in Part l
in this Part
37.
Application of the principles contained
in this Part shall not be enforceable by any court, but the
The provisions contained
down are nevertheless fundamental in the governance of the country
nincioles therein laid
principles in making laws.
and it shall be the duty of the State to apply these

38. State to
secure a social order for the promotion of welfare of the people
to promote the welfare of the people by securing and
(1) The State shall strive
protecting as effectively as it may a social order in which justice, social, economic
life.
and political, shall inform all the institutions of the national
to minimise the inequalities in income, and
(2) The State shal, in particular, strive
endeavour to eliminate inequalities in status, facilities and opportunities, not
only
amongst individuals but also amongst groups of people residing in different areasS
or engaged in different vocations.
39. Certain principles of policy to be followed by the State
The State shall, in particular, direct its policy towards securing-
(a) that the citizens, men and women equally, have the right to an adequate means of
livelihood;
(6)that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;
(C)that the operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment
(d) that there is equal pay for equal wok for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of
Chidren are not abused and that citizens are not forced by economic necessity to
enter avocations unsuited to their age or strength;
that children are given opportunities and facilities to develop in a healthy manner
youth are protected
dnd in conditions offreedom and dignity and that childhood and
against exploitation and against moral and material abandonment.
39A. Equal
justice and free legal aid
State shall secure that the operation of the legal system promotes justice, on a
cIs of equal opportunity, and shll, in particular, provide free legal aid, by suitable legislation
138 HUMAN RIGHTS

or schemes or in any other way, to ensure that opportunities for securing Justice are
not
denied to any citizen by reason of economic or other disabilities.
40. Organisation of village panchayats
The State shall take steps to organise village panchayats and endow them with such
powers and authority as may be necessary to enable them to function as units of self
government.
41. Right to work, to education and to public assistance in certain cases
The State shal, within the limits of its economic capacity and development, make
effective provision for securing the right to work, to education and to public assistance in
cases of unemployment, old age, sickness and disablement, and in other cases of
undeserved want.
42. Provision for just and humane conditions of work and maternity relief
The State shall make provision for securing just and humane conditions of work and
for maternity relief.
43. Living wage, etc., for workers
The State shall endeavour to secure, by suitable legislation or economic organisation
or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage,
conditions of work ensuring a decent standard of life and full enjoyment of leisure and
social and cultural opportunities and, in particular, the State shall endeavour to promote
cottage industries on an individual or co-operative basis in rural areas.
43A. Participation of workers in management of industries
The State shall take steps, by suitable legislation or in any other way, to secure the
participation of workers in the management of undertakings, establishments or other
organisations engaged in any industry.
44. Uniform civil code for the citizens
The State shall endeavour to secure for the citizens a uniform civil code throughout
the territory of India.
45. Provision for free and compulsory education for children
The State shall endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children unti
they complete the age of fourteen years.
46. Promotion of educational and economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sectlons
The State shall promote with special care the educational and economic interests or
the weaker sections of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social injustice and all forms ofexploitaio
47. Duty of the State to raise the level of nutrition and the standard of lIving and to
improve public health
 APPENDIX- 139

regard the raising of the level of nutrition and the standard of living of
The State shall
and tthe improvement of public health as among its primary duties and, in rticular,
I

its people
the State shall endeavour to bring about prohibition of the consumption except for medicinal
purp of intoxicating drinks and of drugs which are injurious to health.

48,
Organisation of agriculture and animal husbandry
to agriculture and animal husbandry on modern
The State shall endeavour organise
cientific lines and shall, in particular, take steps for preserving and improving the
of cOws and calves and other milch and draught
hreeds, and prohibiting the slaughter,
cattle.
48A. Protection and improvement of environment and safeguarding of forests and
wild life
environment and to safeguard
The State shall endeavour protect and improve the
to
life of the country.
the forests and wild
49. Protection of monuments and places and objects
of national importance
Itshall be the obligation of the State to protect every monument or place or object a
artistic or historic interest, declared by or under law made by Parliament to be of nationa
export, as the
importance, from spoliation, disfigurement, destruction, removal, disposal or
case may be.
50. Separation of judiciary from executive
The State shall take steps to separate the judiciary from the executive in the public
services of the State.
51. Promotion of International peace and security
The State shall endeavourto
(a) promote international peace and security;
(b) maintain just and honorable relations between nations;
()foster respect for intermational law and treaty obligations in the dealings oforganized
peoples with one another, and
(d) encourage settlement of international disputes by arbitration.

FUNDAMENTAL DUTIES
Article 51A]
51A. Fundamental
duties
t shall be the duty of every citizen of India
(a)to abide by the Constitution and respect its ideals and institutions, the national
Flag and the National Anthem;
(6) to cherish and follow the noble ideals which inspired our national struggle for
freedom;
140 HUMAN RIGHTS

(C)to unphold and protect the sovereignty. unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e)to promote harmony and the spirit of common brotherhood amongst all the people
of India transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women;
()to value and preserve the rich heritage of our composite culture;
to protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and refor;
i) to safeguard public property and to abjure violence;
G) to strive towards excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavour and achievement;
(k) who is a parent or guardian, to provide opportunities for education to his child or,
as the case may be, ward, between the age of six and fourteen years.

+
 Appendix
THE PROTECTION OF II
HUMAN RIGHTS
ACT, 1993
[8th January, 1994]
An Act to provide for the constitution of a National
Human Rights Commission,
Luman Rights Commissions in States and Human Rights State
Courts for better protection
human rights and for matters connected therewith or incidental of
thereto.
Be it enacted by Parliament in the Forty-fourth Year
of the Republic of India
as follows:

Chapter
PRELIMINARY
1. Short title, extend and commencement
(1) This Act may be called the Protection of Human Rights Act, 1993.
(2) It extends to the whole of India:
Provided that it shall apply to the State of Jammu and Kashmir only in so far as it
pertains to the matters relatable to any ofthe entries enumerated in Listl or List ll
in the Seventh Schedule to the Constitution as applicable to that State.
(3) It shall be deemed to have come into force on the 28th day of September, 1993.

Note
Although the passed by Parliament received the assent of the President of lindia in
Bill
January, 1994, the Act has been given a retrospective effec from September 28, 1993,
the day on which the Ordinance preceding the Act had been promulgated.
2. Definitions
(1) In this Act, unless the context othenwise requires,
includes any
(a)"armed forces" means the naval, military and air forces and
other armed forces of the Union;
State
the Chairperson of the Commission of the
or
()Chairperson" means
Commission, as the case may be;
Commission constituted
(C)Commission" means the National Human Rights
under section 3; dignity of
relating to life, liberty, equality and
(d)human rights" means the rights Constitution or embodied in the Intemational
the individual guaranteed by thecourts in India;
Covenants and enforceable by section
Rights Court specifed under
"Human Rights Court" means the Human
(e)
30; International Covenant
on Civil and
Covenants means the Economic, Social and
()International International Covenant on
Political Rights and the
141
142
HUMAN RIGHTS

Cultural Rights adopted by the General Assembly of the United

Nations
Natin
the 16h December, 1966; on
(g) Member means a Member of the Commission or of the State Commi.
as the case may be, and includes the Chairperson;
(h) "National Commission for Minorities" means the National
Commiseie
Minorities constituted undersection 3 of the National Commission on for
for Minorit
Act, 1992;
() "National Commission for the Scheduled Castes and Scheduled
Tribes"
the National Commission for the Scheduled Castes and Scheduled me T
referred to in article 338 of the Constitution; ribes
)National Commission for Women" means the National Commission
Women constituted under section 3 of the National Commission Wo for
for Nomen
Act, 1990 (20 of 1990)
(k) notification" means a notification published in the Official
Gazette:
(0) "prescribed" means prescribed by rules made under this Act;
(m) "public servant" shall have the meaning assigned to it in
section 21 of the
Indian Penal Code, 1860;
(n) State Commission" means a State Human Rights Commission
constituted
under section 21.
(2) Any reference in this Act to a law, which is not in force in the State of Jammu
and
Kashmir, shall, in relation to that State, be construed as a reference to a
coTesponding law, if any, in force in that State.
Note
S. 2 of the Act defines various terms used in the Act. The most significant- and the
most controversial- definition is of the term "human rights.

ChapterI
THE NATIONAL HUMAN RIGHTS cOMMISSION
3. Constitution of a National Human Rights Commission
(1) The Central Government shall constitute a body to be known as the National
Human Rights Commission to exercise the powers conferred upon, and to perform
the functions assigned to, it under this Act.
(2) The Commission shall consist of-
(a) a Chairperson who has been a Chief Justice of the Supreme Court
(6) one Member who is, or has been, a Judge of the Supreme Court:
(c) one Member who is, or has been, the Chief Justice of a High Court
(d) two Members to be appointed from amongst persons having knowledge o
or practical experience in, matters relating to human rights.
 APPENDIX-I1 143

National
Chairpersons of the National Commission for Minoríities, the
The
(3) Commission for the Scheduled Castes and Scheduled Tribes and the Nationa
for
Commission for Women shall be deemed to be Members of the Commission
of Tunctions specified in clauses (b) to () of section 12.
the discharge of
There shall be a Secretary-General who shall be the Chief Executive Officer
shall
(4) There of
Commission and shall exercise such powers and discharge such functions
the
as it may delegate to him.
the Commission may,
headquarters of the Commission shall be at Delhi and the Commission
The
approval of the Central Government, establish offices at other
with the previous
lIndia.
places in
Members
Appointment of Chairperson and other
other Members shall be appointed by the President by
4. wa
) The Chairperson and
under his hand and seal.
this sub-section shall be made after
Provided that every appointment under
of a Committee consisting of-
obtaining the recommendations
Minister-Chairperson;
(a) the Prime
(b) Speaker of the House
of the People-Member,
Ministry of Home Affairs in the Government of India
(C) Minister-in-charge of the
- Member
People-Member,
(d) Leader of the Opposition in the House of the
in the Council of States-Member,
(e) Leaderof the Opposition
States Member
) Deputy Chairman of the Council of
or sitting Chief Justice
Provided further that no sitting Judge of the Supreme Court
consultation with the Chief Justice
of a High Court shall be appointed except after
of India.
invalid merely by reason
(2) No appointment of a Chairperson or a Member shll be
of any vacancy in the Committee.
5. Removal of a Member of the Commission
(1) Subject to the provisions of sub-section (2), the Chairperson or any other
Member
of the Commission shall only be removed from his office by order of the President
on the ground of proved misbehaviour or incapacity after the
Supreme Court, on reference being made to it by the President, has, on inquiry
held in accordance with the procedure prescribed in that behalf by the Supreme
Court, reported that the Chairperson or such other Member, as the case may be.
Ought on any such ground to be removed.
(2) Notwithstanding anything in sub-section (1), the President way by order remove
from office the Chairperson or any other Member the Chairperson or such other
if

Member, as the case may be,

(a) is adjudged an insolvent; or
144 HUMAN RIGHTS

gages during his term of office in any paid employment ment outside
of his office; or the
h
dutles
(c) is unfit to continue in office by reason of infirmity of mind or body;
or
(d) is of unsound mind and stands so declared by a competent courtt
or
s
(e) is convicted and sentenced to impisonment foran an offencewhich
of the President involves moral turpitude.
inthe
which in the opinion

6. Term of office of Members

(1) A person appointed as Chairperson shall holdooffice for a term of five
yearsfrom
the date on which he enters upon his office or until he attains the age
years, whichever is earlier.
romventy

(2) A person appointed as a Member shall hold office fora term offive
years from
r
date on which he enters upon his office and shall be eligible for reappointmenttthe
another term of five years:
Provided that no Member shall hold office after he has attained the age
of seventy
years.
(3) On ceasing to hold office, a Chairperson or a Member, shall be ineligible futha
for
employment under the Government of India or under the Government
of any State
7. Member to act as Chairperson or to discharge his functions In certain
circumstances
(1) In the event of the occurrence of any vacancy in the office of
the Chairperson by
reason of his death, resignation or otherwise, the President may, by notification,
authorise one of the Members to act as the Chairperson until the appointment of
a new Chairperson to fll such vacancy.
(2) When the Chairperson is unable to discharge his functions owing to
absence on
leave or otherwise, such one of the Members as the President may, by notification,
authorise in this behaf, shall discharge the functions of the Chairperson unti the
date on which the Chairperson resumes his duties.
8. Terms and conditions of service of Members
The salaries and allowances payable to, and other terms and conditions of service of
the Members shall be such as may be prescribed:
Provided that neither the salary and allowances nor the other terms and condition, or
service of a Member shall be varied to his disadvantage after his appointment.
9. Vacancies, etc., not to invalidate the proceedings of the Commission
No act or proceedings of the Commission shall be questioned or shall be invalidae
merely on the ground of existence of any vacancy or defect in the constitution of the
Commission.
10. Procedure to be regulated by the Commission
(1) The Commission shall meet at such time and place as the Chairperson maythink
fit.
 APPENDIX-1
145

Commission shall regulate its own procedure.

(2) The
de
and decisions of the Commission shall be authenticated by the Secretary
ll orders and
All
(3) Commission duly authorised by the Chairperson
aneral or any other officer of the
behalf.
in this
staff of the Commission
Offices and other
11.
The Central Govemment shall make available to the Commission-
(1)
officer Of the rank of the Secretary to the Government of Indi who shall
(a) an
Secretary-General of the Commission; and
be the
(hl such
police and investigative staff under an officer not below the rank of a
officers no staff as may be necessary
Director General of Police and such other
pertormance of the functions of the Commission.
for the efficient
may be made by the Central Government in this behalf,
(2 Subject to such rules as
may appoint such other administrative, technical and scientific
the Commission necessary.
staff as it may consider
allowances and conditions of service of the officers and other staff
21 The salaries,
appointed under sub-section (2) shall be such as may be prescribed.

Chapter ll
FUNCTIONS AND POWERS OF THE COMMISSION

12. Functions of the Commission

all or any of the following functions, namely-
The Commission shall perform
(a) inquire, suo motu or on a petition presented to by a
it victim or any person on his

behalf, into complaint of-

) violation of human rights or abetment thereof;o
(i) negligence the prevention of such violation, by a public servant;
in

(b) intervene in any proceeding involving any allegation of violation of human rights
pending before a court with the approval of such cout
(c)visit, under intimation to the State Government, anyjailor any other institution
under the control of the State Government, where persons are detained or lodged
for purposes of treatment, reformation or protection to study the living conditions
of the inmates and make recommendations thereon;
(d) review the safeguards provided by or under the Constitution or any law for the
time being in force for the protection of human rights and recommend measures
for their effective implementation;
(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human
rights and recommend appropriate remedial measures;
study treaties and other international instruments on human rights and make
recommendations for their effective implementation;
146 HUMAN RIGHTS

9)undertake and promote research in the field of human rights;

(h) spread human rights literacy among various sections, of society
and promos
awareness of the safeguards available for the protection of these rights
hrough
publications, the media, seminars and other available means
() encourage the efforts of non-governmental organisations and institutions
vorking
work
in the field of human rights;
G) such other functions as it may consider necessary for the
promotion of himman
nghts.
13. Powers relating to inquiries
(1) The Commission shall, while inquiring into complaints under this Act,
have all th
powers ofa civil court trying a suit under the Code of Civil Procedure, 1908, in
particular in respect of the following matters, namely and in

(a) summoning and enforcing the attendance of witnesses and examining

them
on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court
or office:
(e) issuing commissions for the examination of witnesses or documents;
() any other matter which may be prescribed.
(2) The Commission shall have power to require any person, subject to
any privilege
which may be claimed by that person under any law for the time being in force, to
furmish information on such points or matters as, in the opinion of
the Commission,
may be useful for, or relevant to, the subject matter of the inquiry and any person
so required shall be deemed to be legally bound to furnish such information within
the meaning of section 176 and section 177 of the Indian Penal Code,
1860.
(3) The Commission or any other officer, not below the rank of a
Gazetted Officer,
specially authorised in this behalf by the Commission may enter any building or
place where the Commission has reason to believe that any document relating to
the subject matter of the inquiry may be found, and may seize any such document
or take extracts or copies therefrom subject to the provisions of section 100, of
the Code of Criminal Procedure, 1973 (2 of 1974), in so far as it may be applicable.
(4) The, Commission shall be deemed to be a civil court and
when any offence as is
described in section 175, section 178, section 179, section 180 or section 228 of
the Indian Penal Code, 1860, is committed in the view or presence of the
Commission, the Commission may, after recording the facts constituting
the oiene
and the statement of the accused as provided for in the Code of Criminal Procedure,
1973,forward the case to a Magistrate having jurisdiction to try the same and ne
Magistrate to whom any such case is forwarded shall proceed to
hear the complaint
against the accused as if the case has been forwarded to him under section 340
of the Code of Criminal Procedure, 1973.
 147
APPENDIX-

judicial
roceeding before the Commission shall be deemed to be a
proceeding
Every
5) proceeding within the meaning of section, 193 and 228, and for the
ses oof
purposes
(5)ceeding to
of th Indian Penal Code, and the Commission shallbe deemed
the
etion
section 196, of
Code
clvil court
a civil
for all the purposes of section 195 and Chapter XXVI of the
court fo
a
beCriminal Procedure, 1973.
of
Investigation
14. Commission may, for the purpose of conducting any investigation pertaining
The
inquiry, utilise the services of any officer or investigation agency of the
to the
Cntral Government or any State Government with the concurence of the Central
Government or the State pvernment, as the case may be.
purpose finvestigating into any matter pertaining tothe inquiry, any officer
For the
2)
)
or
2gency whose services
are utilised under sub-section (1) may, subject to the
Commission,
direction and control of the
(a) summon and entorce the attendance of any person and examine him
(b) require the discovery and production of any document; and
(c) requisition
any public record or copy thereof from any office.

The provisions of
section 15 shall apply in relation to any statement made by a
3)
officer or agency whose services are utilised under sub-section
Derson before any
(1) as they apply in relation to any statement made by a person in the course of
giving evidence before the
Commission.

(4) The officer or agency whose services are utilised under sub-section (1) shall
to
investigate into any matter pertaining to the inquiry and submit a report thereon
Commission within such period as may be specifed by the Commission in
this behalf.
(5) The Commission shall satisfy itself about the correctness of the facts stated and
the conclusion, if any, arrived at in the report submitted to it under sub-section(4)
and for this purpose the Commission may make such inquiry (including the
examination of the person or persons who conducted or assisted in the
investigation) as it thinks fit.
15. Statement made by persons to the Commission
No statement made by a person in the course of giving evidence before the Commission
shallsubject him to, or be used against him in, any civil or criminal proceeding except a
prosecution for giving false evidence by such statement;
Provided that the statement
a) is made in reply to the question which he is required by the Commission to answer,
or
(D is relevant to the subject matter of the inquiry.
0,Persons likely to be prejudicially affected to be heard
T,at any stage ofthe
inquiry, the Commission
148 HUMAN RIGHTS

(a) considers it necessary to inquire into the conduct of any person; or

(b) is of the opinion that the reputation of any person is likely to be prejudicially affan
ected
by the inquiry,
it shall give to that person a reasonable opportunity of being heard in the inous
quiry
and to produce evidence in his defence:
Provided that nothing in this section shall apply where the credit of a witnesss
is
being impeached.

Chapter IV
PROCEDURE
17. Inquiry into complaints
The Commission while inquiring into the complaints of violations of human rightsmay
mav.
call for information or report from the Central Govenment or any State Governme
or any other authority or organisation subordinate thereto within such time as ma
be specified by it:
Provided that-
(a) if the information or report is not received within the time stipulated by the
Commission, it may proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the Commission is satisfied either that
no further inquiry is required or that the required action has been initiated or
taken by the concemed Government or authority, it may not proceed with the
complaint and inform the complainant accordingly;
(i) without prejudice to anything contained in clause (i), if it considers necessary
having regard to the nature of the complaint, initiate an inquiry.
18. Steps after inquiry
an
The Commision may take any of the following steps upon the completion of inquiy
held under this Act, namely
(1) where the inquiry discloses, the commission of violation of human rights or
negligence in the prevention of violation of human rights by a public servant,
it

of
may recommend to the concerned Government or authority the initiation
proceedings for prosecution or such other action as the Commission may deem
fit against the concerned person or persons;
(2) approach the Supreme Court or the High Court concerned for such directions,
orders or writs as that Court may deem necessary;
sucn
(3) recommend to the concerned Government or authority for the grant of
mmediate interim relief to the victim or the members of his family as
tne

Commission may consider necessary;

to tne
(4) subject to the provisions of clause (5) provide a copy of the inquiry report
petitioner or his representative;
 149
APPENDIX
I
wit h
Commission shall send a copy of its inquiry report together
(5) The
recommendations to the concerned Government or authorty and the oncerneo
ume
Government or authority shall, within a period of one month, or such further
as the Commission mey allow, forward its comments on the report, inciuding tne
action taken or proposed to be taken thereon, to the Commission,

6) The
Commission shall publish its inquiry report together with the comments of te
concerned Government or authority, if any, and the action taken or proposed to be
aken by the concerned Government or authority on the recommendations of the
Commissilon.
forces
Procedure with respect armed to
anything contained in this Act, while dealing with compiaints of
Notwithstanding
41
violation of human rights by members of the armed forces, the Commission shall
adopt the following procedure, namely:
own motion or on receipt of a petition, seek a report from
(a) it may, either on its
the Central Government;
report, itmay, either not proceed with the complaint o
(b) afterthe receipt of the
as the cage may be, make its recommendations to that Govemment
(2) The Central
Government shall inform the Commission of the action taken on the
recommendations within three months or such further time as the Commission
may allow.
(3) The Commission
shall publish its report together with its recommendations made
by that Govermment on such
to the Central Government and the action taken
recommendations.
report pubished under sub-section
(4) The Commission shall provide a copy of the
(3) to the petitioner or his representative.

20. Annual and special reports of the Commission

(1) The Commission shall submit an annual report the Central
to Government and to
the State Government concerned and may at any time submit special reports
on
any matter which, in its opinion, is of such urgency or importance that should not
it

be deferred till submission of the, annual report.

(2) The Central Government and the State Govemment, as the case may be, shall
cause the annual and special reports of the Commission to be laid before each
House of Parliament or the State Legislature respectively, as the case may be,
along with a memorandum of action taken or proposed to be taken on the
recommendations of the Commission and the reasons for non-acceptance of the
recommendations, if any.
150
HUMAN RIGHTS

Chapter V
STATE HUMAN RIGHTS COMMIsSIONS
21. Constitution of State Human Rights Commisslon
(1) A State Government may constitute a body to be known as the .. ..
(name.
the State) Human Rights Commission to exercise the powers conferred uDoof
and to perfom the functions assigned to, a State Commission under this pter
(2) The State Commission shall consist of-
(a) a Chairperson who has been a Chief Justice of a High Court;
(b) one Member who is, or has been, a Judge of a High Court;
(c) one Member who is, or has been, a district judge in that State,
(d) two members to be appointed from amongst persons having knowledge
nff,
or practical experience in, matters relating to human rights.
(3) There shall be a Secretary who shall be the Chief Executive Officer of the
Stata
Commission and shall exercise such powers and discharge such functions of
the
State Commission as it may delegate to him.
(4) The headquarters of the State Commission shall be at such place as
the State
Govemment may, by notification, specify.
(5) A State Commission may inquire into violation of human rights only in respect
of
matters relatable to any of the entries enumerated in List ll and List Ill in the
Seventh Schedule to the Constitution:
Provided that if any such matter is already being inquired into by the
Commission or any other Commission duly constituted under any law for the time
being in force, the State Commission shall not inquire into the said matter:
Provided further that in relation to the Jammu and Kashmir Human Rights
Commission, this sub-section shall have effect asiffor the words and figures List
ll and List lIl in the Seventh Schedule to the Constitution", the
words and figures
List ll in the Seventh Schedule to the Constitution as applicable to the State of
Jammuand Kashmir and in respect of matters in relation to which the Legislature
of that State has power to make laws" had been substituted.
22. Appointment of Chairperson and other Members of State Commission
(1) The Chaiperson and other Members shall be appointed by the Governor by warat
under his hand and seal:
Provided that every appointment under this sub-section shall be made after
obtaining the recommendation of a Committee consisting of
(a) the Chief Minister-Chairperson;
(b) Speaker of the Legislative Assembly - Member:
()Minister in-charge of the Department of Home in that State - Member,
(d) Leader of the Opposition in the Legislative Assembly Member:
-
 151
APPENDIX

Provided further that wnere there ls a Legislative Council in a State,

the Chairma
DE
Council and the Leader of the Opposition in that Coundil shall also
of that
Committee:
members of the
Provided also that no sitting Judge of a High Court or a sitting
distrid judge sna
High Court of
he appointed except after consultation with the Chief Justice of the
the
concerned State.
o appointment of a Chairperson or a Member of the State Commission shall be
(2) No Committee.
merely by reason of any vacancy in the
invalid
of the State Commission
Removal of a Member
Chairperson or, any other Member
23.
Subject to the provisions of SuD-section (2), the
1) (1) Commission shall only be removed from his office by order of the
of the State
misbehaviour or incapacity after the Supreme
President on the ground of proved
being made to it by the President, has, on inquiry held
in
Court, on a reference
prescribed in that behalf by the Supreme Court,
accordance with the procedure
other Member, as the case may be ought
reported that the Chairperson such
or
to removed.
on any such ground be
remove
Notwithstanding anything in sub-section (1), the President may by order
(2)
or any other Member if the Chairperson or such other
from office the Chairperson
Member, as the case may be,-
or
(a) is adjudged an insolvent;
(b) engages during his
term of office in any paid employment outside the duties
of his office; or
infirmity of mind or body: or
(c) is unfit to continue in office by reason of
(d) is of unsound mind and stands so
declared by a competent court; or
imprisonment for an offence which in the opinion
(e) is convicted and sentenced to
of the President involves moral turpitude,
24. Term of office of Members of the State Commission
(1) A person appointed as Chairperson shall hold office for a term of five years from
of seventy
the date on which he enters upon his office or until he attains the age
years, whichever is earlier.
(2) A person appointed as a Member shall hold office for a term of five years from the
date on which he enters upon his office and shall be eligible for reappointment for
another term of five years:
Provided that no Member shall hold office after he has attained the age of seventy
years.
) On ceasing to hold office, a Chairperson ora Member shall be ineligible for further
employment under the Government of a State or under the Govemment of India.
152 HUMAN RIGHTS

Z5. Member to act as Chalrperson or to discharge hls functions In cortal

artaln
circumstances
(1) In the event of the occurrence of any vacancy in the office of the Chairperson k

reason of his death, resignation or otherwise, the Governor may, by notification

ion,
authorise one of the Members to act as the Chairperson until the appointment of
a new Chairperson to fill such vacancy.
(2) When the Chairperson is unable to discharge his functions owing to absence on on
as the Govemor may, by notification,
leave or otherwise, such one of the Members
authorise in this behalf, shall discharge the functions of the Chairperson until the
date on which the Chairperson resumes his duties.
Terms and conditions of service of Members of the State Commission
The salaries and allowances payable to, and other tem anal conditions of service of,
he Members shall be such as may be prescribed by the State Government:
Provided that neither the salary and allowances nor the other terms and conditions of
service ofa Member shall be varied to his disadvantage after his appointment.
27. Offices and other staff of the State Commission
(1) The State Government shall make available tothe Commission-
(a) an officer not below the rank of a Secretary to the State Government who
shall be the Secretary of the State Commission; and
(b) such police and investigative staff under an officer not below the rank of an
Inspector General of Police and such other officers and staff as may be
necessary for the efficient performance of the functions of the State
Commission.
(2) Subject to such rules as may be made by the State Govenment in this behalf, the
State Commission may appoint such other administrative, technical and scientifc
staff as it may consider necessary.
(3) The salaries, allowances and conditions of service of the officers and other staf
appointed under sub-section (22) shall be such as may be prescribed by the State
Government
28. Annual and special reports of State Commission
(1) The State Commission shall submit an annual report to the State Government
and may at any time submit special reports on any matter which, in its opinion, s
of such urgency or importance that it should not be deferred till submission of tne
annual report.
(2) The State Government shall cause the annual and special reports of the Stale
or
Commission to be laid before each House of State Legislature where it consists
two Houses, or where such Legislature consists of one House, before that Hous
along with a memorandum of action taken or proposed to be taken on lu
recommendations of the State Commission and the reasons for non-acceptan
of the recommendations, if any.
 APPENDIX 153

certalnpprovislons relatling to Natlonal Human Rights Commission

n
Applcation of certaln
of
Commisslons
29. State 13, 14, 15, 16, 17 and 18 shall apply to a State
ions of sections 9, 10, 12, to following modifications,
to provisions
effect, subject the namely
The prod shall have
The references to "State
to Commission" shall be construed as
Commissio nces
eommiss references
Commission;
word "Secretary General, the word
10, in sub-section (3), for the
section
-ection substituted;
in
(b) Secretary shall be
12, clause () shall be omitted;
section orany shall be omitted.
(c) in section in clause (), tne words Central Govemment
section 17,
(d) in
n

Chapter VI

HUMAN RIGHTS COURTS

Courts
Human Rights trial of offences arising out of violation of hurman
purpose of providing speedy concurrence of the Chief Justice af the High
30.
For the may, with the
State Government Human Rights
rights,the district aCourt of Session to be a
Court, notification, specify for each
by
Court to try the
said offences:
in this section shall
apply if-
Provided that nothing
is already specified as a special court or
(a) a Court of
Session
is already constituted,
(b) a special court
time being in force.
for such under any other law for the
offences
Note
Courts to
Act leaves the existence of Human Rights
This oft-criticised provision of the is to be
governments. The use of the word may in S. 30
the sole discretion of the State
noted.
31.Special Public Prosecutor notification, specifya
Court, the State Govemment shal, by
For every Human Rights in practice as an advocate
for not
advocate who has been
ubic Prosecutor or appoint an conducting cases
Special Public Prosecutor for the purpose of
5, than seven years, as a
in that
Court.

Chapter VII
AUDIT
FINANCE, ACCOUNTS AND
2. Grants by the Central Government
appropration made by Parliament by
Central Government shall, after due
The
law in this behalf, pay to the Commission
by way of grants such sums of money as
purposes of this Act.
fit being utilised for the
the Central Government may think
154 HUMAN RIGHTS

(2) The Commission may spend such sums as it thinks fit for performing the functions
under this Act, and such sums shall be treated as expenditure payable out of the
grants referred to in sub-section (1).
33. Grants by the State Government
(1) The State Govermment shall, after due appropriation made by Legislature by law
in this behalf, pay to the State Commission by way of grants such sums of monev
the State Govemment may think fit for being utilised for the
purposes of this
Act.
(2) The State Commission may spend such sums as it thinks fit for performing the
functions under Chapter V, and such sums shall be treated as expenditure payable
out of the grants referred to in sub-section (1).
34. Accounts and audit
(1) The Commission shall maintain proper accounts and other relevant records and
prepare an annual statement of accounts in such form as may be prescribed by
the Central Government in consultation with the Comptroller and Auditor-General
of India.
(2 The accounts of the Commission shall be audited by the Comptroller and Auditor
General at such intervals as may be specified by him and any expenditure incurred
in connection with such audit shall be payable by the Commission to the Comptroller
and Auditor-General.
(3) The Comptroller and Auditor-General and any person appointed by him in
connection with the audit of the accounts of the Commission under this Act shall
have the same rights and privileges and the authority in connection with such
audit as the Comptroller and Auditor-General generally has in connection with the
audit of Govermment accounts and, in particular shall have the right to demand
the production of books, accounts, connected. vouchers and other documents
and papers and to inspect any of the offices of the Commission.
(4) The accounts of the Commission, as certified by the Comptroller and Auditor
General or any other person appointed by him in this behalf, together with the
audit report thereon shall be forwarded annually to the Central Government by the
Commission and the Central Government shall cause the audit report to be laid,
as soon as may be after it is received, before each House of Parliament.
35. Accounts and audit of State Commission
(1) The State Commission shall maintain proper accounts and other relevant records
and prepare an annual statement of accounts in such form as may be prescribea
by the State Government in consultation with the Comptroller and Auditor-General
of India.
(2) The accounts of the State Commission shall be audited by the Comptroller and
Auditor-General at such intervals as may be specified by him and any expenditure
incurred in connection with such audit shall be payable by the State Commisslon
to the Comptroller and Auditor-General.
 155
APPENDIX-I

Comptroller and Auditor-General and any person appointed by him in

The
(3) connection with the audit of the accounts of the State Commission under
this Act
in connection witn
shall have the same rights and privileges and the authority
in connection
such audit as the Comptroller and Auditor-General generally has to
audit of Government accounts and, in particular, shall have the nght
with the
and other
demand the production of books, accounts, connected vouchers Commission
documents and papers and to inspect any of the offices ofthe State
accounts of the State Commission, as certified by the Comptroller and Auditor-
4) The him in this behalf, together with the
General or any other person appointed by
annually to the State Government by the
audit report thereon, shall be forwarded report to be
Commission and the State Government shall cause the audit
State Legislature.
laid, soon as may be after it is received, before the State
as

Chapter VIl
MISCELLANEOUS

Matters not subject to jurisdiction of the Commission

which is pending before a State
not inquire into any matter
36.
Commission shall time
(1) The duly constituted under any law for the
Commission or any other Commission
being in force.
shall not inquire into any matter
a
or the State Commission
(2) The Commission on which the act constituting violation
from the date
the expiry of one year been committed.
human rights is alleged have
to

37. Constitution of
special investigation teams. in force, wheree
contained in any other law for the time being
Notwithstanding anything it may constitute one or
more special
necessary so to do, purposes of
the Government considers
it
police officers as it thinks necessary for
investigation teams, consisting of such
arising out of violations of human rights.
investigation and prosecution of offences
in good faith
38. Protection of action taken Govemment, State
proceeding shall lie against the Central person
No suit or other legal Commission or any Member thereof or any
Government, Commission, the State Govermment, State Govemment, Commission
Central intended to be
acting under the direction either of the which is in good faith done or
anything
or the State Commission in respect of
or any order made thereunder or in respect of
of any rules Government
done in pursuance of this Act or of the Central Government, State
authority
the publication by or under the proceedings.
Commission of any report, paper or
Commission or the State
servants
39. Members and officers to be public or
Commission, State Commission and every officer appointed
Every Member of the this Act
or the State Commission to exercise functions under
authorised by the Commission Indian Penal
a public servant within the meaning of section 21 of the
shall be deemed beto
Code, 1860.
156 HUMAN RIGHTS

40. Power of Central Government to make rules

(1) The Central Govemment may, by notification, make rules to cary out the provisions
of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:
(a) the salaries and allowances and other terms and conditions of service of the
Members under section 8;
(6) the conditions subject to which other administrative, technical and scientific
staff may be appointed by the Commission and the salaries and allowances
of officers and other staff under sub-section (3) of section 11;
(c) any other power of a civil court required to be prescribed under clause ( of
sub-section (1) ofsection 13;
(d) the form in which the annual statement of accounts is to be prepared by the
Commission under sub-section (1) of section 34; and
(e) any other matter which has to be, or may be, prescribed.
(3) Every rule made under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or in two or more successive
sessions, and if, before the expiry of the session immediately following the session
or the successive sessions aforesaid, both Houses agree in making any
modification in the rule or both Houses agree that the rule should not be made,
the rule shall thereafter have effect only in such modified form or be of no effect,
as the case may be; so, however, that any such modification or annulment shal
be without prejudice to the validity of anything previously done under that rule.
41. Power of State Government to make rules
(1) The State Government may, by notification, make rules to carry, out the provisions
of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:
(a) the salaries and allowances and other terms and conditions of service of the
Members under section 26;
(b) the conditions subject to which other administrative, technical and scientiic
staff may be appointed by the State Commission and the salaries and
allowances of officers and other staff under sub-section (3) of section 27;
(C) the form in which the annual statement of accounts is to be prepared under
sub-section (1) of section 35.(3) Every rule made by the State Government
under this section shall be laid, as soon as may be after it is made, before
each House of the State Legislature where it consists of two Houses, or wner
such Legislature consists of one House, before that House.
 APPENDIX 157

difficultles
remove difflcultle
poweruto
Powe to the provisions of this Act, the Central
difficulty arises In giving efect
42. If any
Government may, by order
published in the Official Gazette, make such provisions,
or
nSistent with the provisions of this Act as appear toit to be necessary
G inconsisten
not removing the difficulty:
expedient for
that no such order shall be made after the expiry of the period of two
Provided
from the date of commencement of this Act.
vears made, be
Every order under this section shall, as soon as may be after it is
made und
Every Parliament.
before each House of
(2)
laid savings
Repeal and Ordinance, 1993 is (Ord. 30 of 1993) hereby
43. Protection ofHuman Rights
(1) The
repealed.]N said
anything done or any action taken under the
Notwithstanding such repeal,
taken under the corresponding
01
shall be deemed to have been done Or
Ordinance,
provisions of this Act.
1. All Human Rights are inherent in all human beings because..
(a) Human Rights are provided by the state.
All
(b) Human Rights are being provided by the United Nations.
(c) Human beings are rational beings.
(d) Human rights are the product of social revolutions.
[Ans.: (c); Referto Page No. 11
2. World Conference on Human Rights which is also known as Vienna Conference was
held in the year....
(a) 1993 (b) 1992
(c) 1991 (d) 1994 [Ans.: (a); Referto Page No. 1]
3. Human Rights is a subject of .. Law.
(a) Civil (b) International
(c) Contractual (d) None of these Ans.:(b); Referto Page No.2]
4. Human Rights Day is celebrated on..
(a) 10th December (b) 1st January
(c) 2nd March (d) 6th June [Ans.: (a); Refer to Page No. 2]
5. Human Rights are also referred as.
(a) National Rights (b) Fundamental Rights
(c) Ordinary Rights (d) Both (a) and (b) [Ans.: (b); Referto Page No. 3]
6. Right to privacy is a ..
(a) Collective Right (b) Cultural Right
(c) Civil Right (d) None of these [Ans.: (c); Refer to Page No. 3]
7. Civil and Plitical Rights are included as
... in the Indian Constitution.
(a) Fundamental Rights (b) Fundamental Duties
(c) Directive Principles (d) All of these [Ans.: (a); Referto Page No. 3]
8. The statement that "All human rights are universal, indivisible and interdependent and
interrelated" is associated with ..
(a) Universal Declaration of Human Rights- 1948
194
 MULTIPLE CHoICE QUESTIONS 195

(b) Tehran Conference-1969 (c) Vienna Conference-1993

(d) Beijing Conference-1995 Ans.: (c); Refer to Page No. 4]
.
9. The UN Vienna Declaration 1993 declared that
(a) Third Generation Rights are of primary importance.
(b) Civil and Political Rights are Core Rights
(c) All types of Rights are indivisible, interrelated and interdependent.
() Social and Economic Rights are non enforceable,
[Ans.: (c); Referto Page No. 4]
10. The unique feature of the African Charter is that it has given emphasis on
.
(a) Individual Rights (b) People's Rights
(c)Both (a) and (b) (d) None of these [Ans.: (b); Referto Page No. 8]
11. Right to education isa..
(a) Fundamental Right (b) DPSP

c) Human Right (d) All of these Ans.: (a): Referto Page No. 16]
12. Right to seek the enforcement ofall Fundamental Rights can be referred as
(a) Right against exploitation (b) Right to Freedom
(c) Right to Constitutional Remedies (d) Cultural and Educational Rights
Ans.: (c); Refer to Page No. 19]
13. Which of the following provisions articulate the constitutional vision of Justice in India?
(a) Free and Independent Judiciary
(6) Directive Principles of State policy (c) Fundamental Duties
(d) Special Status to the State of Jammu and Kashmir

Ans.: (b); Referto Page No. 19]

14. When did India enact positive law on human rights?
(a) 1993 (b) 1950
(c) 1919 (d) 1935 Ans.: (a): Refer to Page No. 27]
15. The National Human Rights Commission was constituted in .
(a) 1990 (b) 1993
(c) 1978 (d) 1979 Ans.: (b): Referto Page No. 27]
16. The Constitution of National Human Rights Commission is provided under section

of the potection of Human Rights Act, 1993.

(b) 4
(a) 3
(c) 5 (d) 6 [Ans.: (a); Referto Page No. 28]
196 HUMAN RIGHTS

17. The protection of Human Rights Act in India was

enacted in the year...
(a) 1993 (b) 1994
(c) 1995 (d) 1996
Ans.: (a); Refer to Page No. 28]
18. Who cannot be appointed as
member of the National Human Rights Commission?
(a) District Judge
(b) Chief Justice of any High Court
(c) Eminent Scholar having expertise in the field of
human rights
(d) Judge of the Supreme Court of India
Ans.: (a); Refer to Page No. 29]
19. Who can be the Chairperson of National Human Rights Commission?
(a) Former Chief Justice of the Supreme Court
(b) Retired Judge of High Court
(c) Attorney General of India
(d) Advocate General of India Ans.: (a); Refer to Page No. 29
20. The case, State of Arunachal Pradesh V. Khudiram Chakma, 1994 is concerned with

(a) Minorities (b) SCs and STs

(c) Torture (d) Refugees Ans. (d); Refer to Page No. 32]

21. When was the Universal Declaration of Human Rights (UDHR) made?
(a) 10th December 1948 (b) 8th August 1956
(c) 20th June 1950 (d) 10th November 1942
[Ans.: (a); Referto Page No. 39]
22. Universal Declaration of Human Rights was adopted in the year ..
1
(a) 1948 (b) 1947
(c) 1958

(a) UNICEF
(d) 1950

23. The Universal Declaration of Human Rights was adopted by

(b) UNESco
.
[Ans.: (a); Refer to Page No. 39]

(c) UN (d) ICJ Ans.:(c); Refer to Page No. 39]

24. The Universal Declaration of Human Rights has adopted by the...on 10th December
1948.
(a) Security Council (b) General Assemblyy
(c) Trusteeship Council (d) International Court of Justice.
Ans.: (b); Refer to Page No. 39]
 MULTIPLE CHOICE QUESTIONS 197

25. Who of the following was the main mover behind the Universal Declaration of Human
Rights?
(a) Woodrow Wilson (b) Franklin D. Roosevelt
(c) Thomas Paine (d) Eleanor Roosevelt
[Ans.: (d, Referto Page No. 39]

26. Who was a Chairman of drafting committee of UDHR ?

(a) Mrs. Eleanor Roosevelt (b) C.D. Roosevelt

() Rajendra Prasad (d) Ban K Moon

Ans.: (a), Referto Page No. 391

27. What is the legal nature of the Universal Declaration of Human Rights?
(a) It is a UN General Assembly resolution.
(b) It is a UN Security Council resolution.
(c) It is part of the American Constitution.
(d) It is a multilateral treaty. Ans.: (c); Referto Page No. 39]
28. The Universal Declaration of Human Rights is applicable to .
(a) Every citizen of third world countries.
(b) Citizens of UN member countries.
(c) Each individual, regardless of gender, race, religion or cultural background
Ans.: (c): Referto Page No. 39]
(d) None of the above.

29. Universal Declaration of Human Rights contains

(b) 22 Articles
.
(a) 20 Articles
(c) 30 Articles (0) 36 Articles
[Ans.: (c); Refer to Page No. 40]

30. Which case decided by the Indian Judiciary provided jurisprudential genesis for human
rights development in India?
(a) M.C. Mehta v. Union of India (b) Maneka Gandhi v. Union of India
(c) Visakha v. State of Rajasthan (d) Mandal Case

[Ans.: (b): Refer to Page No. 42]

31. The International Bill of Human Rights provides for..

(a) A list of economic human rights.
(6) The rights that all the citizens hold.
(c) A list of indivisible human rights covering civil and political rnights.
(d) An authoritative list of universal human rights covering civil and political rights and
economic, social and cultural rights. [Ans. : (d); Refer to Page No. 44]
198 HUMAN RIGHTS

Intemational Covenant on Civil and Politicat

32. The Universal Declaration on Human Rights,
Rights and International Covenant
on Economic, Soial and Cultural Rights are together
known as
(a) Magna Carta (b) International Bill of Rights
(c) Justiciable Rights (d) All of these Ans.: (b); Referto Page No. 44
33. Article 1 of the International Covenant on Civil and Political Rights (1966) deals with
(a) Right to self determination (b) Right to development
(c) Right to Peace (d) None of these
Ans.: (a); Refer to Page No. 44
34. Which one of the following rights is not protected under Article 27 of the ICCPR?
(a) To enjoy their own culture.
(6) To profess and practice their own religion.
(c) To use their own language.
(d) To participate in political process. Ans.: (d); Referto Page No. 45]
35. Which Part of Universal Declaration of Human Rights declares, "Everyone has the
right to life, liberty and security of person"?
(a) Part 1 (b) Part 3
(c) Part 5 (d) Part 6 [Ans.: (b); Referto Page No. 45]
36. ..s monitoring body of International Covenant on Civil and Political Rights.
(a) General Assembly
(b) Economic and Social Counsil
(c) Human Rights Committee
(d) International Commission on Human Rights [Ans.: (d); Refer to Page No. 45]
37. According to the Constitution of lndia, which one of the following rights cannot be
taken away during emergency?
(a) Right to speak (b) Right to freedom of movement
(c) Right to life (d) Right to organize
[Ans. : (c); Refer to Page No. 49]
38. At present the implementation machinery/agencies of Human Rights under European
Convention of Human Rights is/are
(a) European Commission of Human Rights.
(b) European Court of Human Rights.
(c) Both (a) and (b)
(d) None of the above [Ans.: (a); Refer to Page No. 52]
 MULTIPLE CH0ICE QUESTIONS 199

39. ILO stands for .

(a) International Labour Organ (b) International Labour Office
(c) International Labour Organization (d) International Labour Commission

Ans.: (c), Referto Page No. 57]

40. Which UN Agency was established to contribute to peace and security by promoting
international collaboration through education, science and culture in order to further
universal respect for justice, the rule of law and the human rights proclaimed in the UN
Charter?
(a) UNESCo (b) UNHCR
(c) UNIDO (d) 1BRD [Ans.: (a): Refer to Page No. 66]
41. UNICEF is an Organisation which deals with..
(a) Worker's/Labour's Welfare (b) Children's Welfare
(c) Women's Welfare (d) Refugee's Welfare

Ans.:(b); RefertoPage No. 68

42. UNICEF Headquaters is situated at .
(a) Geneva (b) Paris
(c) New York (d) Indonesia [Ans.: (c): Referto Page No.68]

42. UNICEF works through .

(a) Executive Board (b) General Assembly
(c) General Conference (d) Director General [Ans. : (a); Refer to Page No. 69/
43. Rightto equal pay for equal work is
(a) Civil and Political Right
a.
(b) Economic, Social and Cultural Right
(c) Fundamental Right
(d) Directive Principles of State Policy [Ans.: (d); Referto Page No. 74]

44. Vishakha v. State of Rajasthan case dealt with .

(a) Prevention of Domestic violence against women.
(b) Sexual violence against women at workplace.
()Promotion of educational and employment opportunitiesforwomen.
(d) Ban on the practice of female infanticide.
[Ans.: (bx Referto Page No. 76]
45. Dowry Prohibition Act was enacted in India in the year ..
(a) 1959 (b) 1960
(c) 1961 (d) 1962 Ans.: (c Referto Page No. 821
200 HUMAN RIGHTS

46. Convention on the elimination of All Forms of Discrimination against Women

was
adopted in ....
(a) 1966 (b) 1979
(c) 1983 (d) 1993 Ans.: (b); Refer to Page No. 851
47. CEDAW stands for ..
(a) Convention on the Rights of the Child.
(b) Convention on the Status of Refugees.
() Convention on discrimination against women.
(d) Convention on Elimination of all forms of discrimination against women.
Ans.: (d); Referto Page No. 85]
48. In India, Child Labour is prohibited under Article.ofthe Constitution.
(a) 21 (b) 21-A
(c) 24 (d) 23 [Ans. (o); Referto Page No. 93]
49. The Directive Principles of State Policy have been given in the Indian Constitution.
(a) Part-lI (b) Part- |
(c) Part- XII (d) Part-IV [Ans.: (d); Referto Page No. 94]
50. When the Convention on the Rights of the child was adopted by the UN General
Assembly?
(a) 18th March 1992 (b) 24th January 1982
(c) 20th November 1989 (d) 10th December 1999
Ans. : (c); Refer to Page No. 100]
51. What is CONTRABAND?
(a) all narcotics
(b) articles banned by a govermment
(c) all smuggled goods
(d) Goods which may assist an enemy in the conduct of war.
[Ans.: (d); Refer to Page No. 108]
52. National Commission for Scheduled Castes and Scheduled Tribes is established under
of Indian Constitution.
(a) Article 330 (b) Article 338
() Protection of Civil Rights Act, 1955
(d) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
Ans.: (b); Refer to Page No. 119]
 MULTIPLE CHOICE QUESTIONS 201

53. Amnesty International is an organisation which works in the field of ..

(a) Human Rights (b) Environmental
(c) Social Welfare (d) None of these Ans.: (a), Refer to Page No. 124]
54. Which of the following NGOs advocates for abolition of death peralty?
(a) Green Peace (6) International Commission of Jurists
(c) ICRC (d) Amnesty International

[Ans. : (d); Refer to Page No. 124

55. Which Article of UDHR concerns the Right to benefit from scientific advencement?
(a) Article 3 (b) Article 14

(c) Article 27 (d) Article 24 [Ans. : (c) Referto Page No. 164
 CONTENTS

Chapter
Page No.
Nature, Origin, and Basis of Public International Law
IL.
Souroes of Intermational Law
19
I. The Subjects of International Law
27
V. The Relation between International Law and State Law
V. 32
States in General
A4
VI. Recognition
VII. 58
State Succession
VilL. 75
State Responsibility
81
XState Territory 91
X State Jurisdiction
118
XThe State and the Individual
Nationality, Aliens, Extradition and Asylum
142
XIl. The State and the Economic Interest
157
XIIL.
Development and the Environment
161
XIV. The Agents of International Business and Diplomatic Envoys
165
XW. Treaties
169
XVM.
Settlement of Disputes between States
188
XVI. War and Other Hostile Relations
195
XL Neutrality and Quasi-neutrality
212
XDX International Organisations and United Nations
222
XX Some Important Cases on International Law 251
APPENDIX
269
I.
Outer Space& "Star Wars" 269
IL.
The European Economic Community 271
IL. GATT
273
TABLE OF CASES
275
Multiple Choice Questions (With
Answers) 277
 CHAPTER 1

NATURE, ORIGIN AND BASIS OF

PUBLIC INTERNATIONAL LAW

The following five topics are discussed in this Chapter:

A. Nature and Definition of International Law
[M.U Murmbai
B. Public International Law & Private International Law
University
C. Is International Law true law?
D. Origin & Development of International Law
E. Theories of International Law (Schools of International Law) What is Interna
tional Law?
A. NATURE AND DEFINITION OF INTERNATIONAL LAW Apr. 2015
Nov. 2015
As no man is self-sufficient, no State can also be self-sufficient: Apr. 2015
mutual intercourse between States becomes necessary. International Dec 2016
Law is generally a body of rules and principles which regulate the Jan. 2018
conduct of the States in their mutual intercourse. The object of
international law has been to produce an ordered rather than a just
system of international relations, but recently, attempts have also been
made to ensure that it will also maintain just international relations,
The term 'international law' was coined by Bentham and has been MCO No.
1

defined by different jurists in different ways.

Starke, in his Introduction to International Law, defines internationaluhat is Inter
law as "that body of law which is composed for its greater part of the nationa Law?
principles and rules of conduct which States feel themselves bound to What are its salient
s
observe, and therefore do commonly observe, in their relations with features? Intemational Law a
each other, and which includes also: true law?
(a) the rules of law relating to the functioning of international Dec. 2014
institutions or organisations, their relation with each other and
the relations with States and individuals; and
(b) certain rules of law relating to individuals and non-State entities Define internationai
aw. (2 marks)
so far as the rights or duties of such individuals and non M.U. Nov. 2008
States entities are the concern of the internatlonal community." Apr. 2009
Traditionally, international law has been defined as a system of Apr. 2010
rules governing the relation between States only. For example, accor Apr. 2011
ding to Oppenheim, international law is "the name for the body of Nov. 2012
Nov. 2013
Customary and conventional rules which are considered legally binding
by civilized States in their intercourse with each other." This definition
of international law, it may be noted, restricts the scope of international Define Public Inter
law, whereas Starke's definition takes into consideration the wider national Law.
Scope of international law, as it has developed after the
Second Apr. 2013
May 2017
World War.
1
 2 PUBLIC INTERNATIONAL LAW

Otherjurists have given various definitions of "international

law",
some of which are as follows:
Kelson: "International Law, orthe Law of Nations, is
the ame
MCQ No. 2 ofthe body of rules which regulate the con-duct
States in their intercourse with one another" of
Dr. Lawrence: "International Law is the body of
rules whi h
determine the conduct of the general
body of
civilized States in their mutual dealings."
Hackworth: "International Law consists of
a body of rules
governing the relations between States."
The various definitions of international law look at international
aw from four points of view: firstly, from the point of view
of its sources
secondly, from the point of view of its binding nature on
all civilised
States; thirdly, from the point of view of its scope; and lastly,
from the
point of view of the sanction behind it. Starke s definition
seems to
satisfy all these four requirements.
However, it may be noted that many of
these definitions, including
that of Starke, make no reference to justice. However,
it is now being realised that
as stated above,
the primary purpose of international law is
to maintain a just system of international
relations, and not merely an
ordered system of such relations.
General and Regional Rules of International Law
International Law may be general or regional.
Thus, rules of
international law which are of universal application
are called the
general rules of international law, and those rules which
in a particular region of the world
have developed
as between the States located there,
without having universal characteristics,
are known as regional rules
of international law. For example, very
often, there is reference to
"Latin American International Law", which
is an instance of regional
international law.
The International Court of Justice has
discussed the nature of the
regional rules in Colombian Peruvian Asylum
to the judgment:
Case (1950). According
(1) Regional rules are not necessarily
subordinate to general rules
of international law, but may be, in
a sense, supple-mentary or
correlated thereto.
(2) An international tribunal
must, as between States in the
particular region, give effect to such regional rules as are duly
proved to the satisfaction to the tribunal.
Of late, there has been a tendency
towards regionalism in
International Organizations. Instances can
be given of the European
Economic Community (EEC), the Regional
Security Treaties (like the
North Atlantic Security Pact of 1949).
South Pacific Commission and
the European Coal and Steel Community.
 NATURE, ORIGIN AND BASIS OF INTERNATIONAL LAW 3
B. PUBLIC INTERNATIONAL LAW AND PRIVATE
INTERNATIONAL LAW
It
is necessary that one should not confuse public international
law with private international law. The points of difference between the
two are the following
(i) Public International Law is of universal character, and it
comprises of rules generally recognised by States in their
mutual relations. Private International Law, on theother hand,
is essentially a part of the municipal law of a State. It is a
horizontal cross section of the various civil laws of a municipal
legal system.
(i) Public international law generally deals with the relations of
States with each other, but private international law primarily
concerns itself with the civil rights and duties of individuals.
Private international law concerns itself mainly with the
following three problems:
(a) When there is a case having a foreign element, whether
the municipal courts of a State can exercise jurisdiction
Over such a case (Choice of Jurisdiction).
(b) On account of the foreign element, if the legal dispute is
connected with different systems of law, which system is
to be applied (Choice of Law).
(c) If there has been a judgment of a foreign court, under
what conditions should the court of a State recognise,
give effect to, and enforce, such foreign judgment
(Recognition and enforcement of foreign judgments).
(ii) Public international law is not generally the outcome of the
legislation of an authority which is above all nations. Itconsists
of a set of rules which have been recognised by the States to
be binding upon themselves, whereas the basis of private
international law is legislation of the individual States. Its
basis is the same as the basis of any civil municipal law.
(iv) Public international law finally decides and regulates the
relation of States amongst themselves, but private international
law is inconclusive in its nature. It does not lead to a final
decision. It only suggests a method of choice of jurisdiction
and of law. Thereafter, it is the application of such law that
leads to a judgment in the matter.
Dicey thought it fit to refer to private international law as conflict of
laws. In his view, calling the subject "private international law" would
be misleading.
But it must be pointed out that though there is such a sharp
distinction between public international law and private international law,
there is also a sphere common to both the subjects. For example, the
question of diplomatic immunities is a question overlapping both, private
 PUBLIC INTERNATIONAL LAW

and public international law. Of late, many rules of private international

law are the outcome of multipartite conventions. Though rules of private
international law are municipal in form, they may be universal in
new
substance. Therefore, Professor Jessup thought fit to name this
it
branch of law, which has the mixed characteristics of public international al
law and private international law as "Trans-National Law."

C. IS INTERNATIONAL LAW TRUE LAW?

What is Interna This is one of the most debated questions in international law
tional Law? There have been two distinct schools of thought on this oft-debated
tional Law with 9uestion. The first maintains itthat international law is no law; atpositiv best it
Municipal law & resembles the rules of law; comprises of only the rules of
discuss if Interna- morality. The other school, however, maintains that international law is
tional Lew is a true not a set of rules of positive morality, but it is as much a legal system
law. as any other municipal legal system. These two schools have widely
Anr 201a
ApI. 2015 differed mainly because their approach to the definition of law has
been different.
The first school, led by Austin and others, defines law as the
command of a determinate superior authority, which is obeyed by
MCO No. 33
subordinate individuals, and which is enforced by the sanction of the
physical force of such an authority. Having defined law thus, this school
does not consider international law to be law for the following reasons:
(0) There being no agency for intemational legislation,
international law is not a command of a superior determinate
authority. At best, it is a limitation imposed by the sovereign
State upon itself. Self-limitation is no limitation. Therefore,
international law is no law.
(i) There is also no organised force to enforce international law
The absence of such a sanction, which would ensure
obedience to international law, would reduce it to a state of
moral rules.
MCQ No. 4 (cii) According to this school, the very essence of law is the
presence of a determinate impartial third party which would
interpret and enforce the law. In the case of international law,
such a determinate impartial arbitrator is absent. Even in the
case of the International Court of Justice, the basis of the
jurisdiction of the Court is the consent of the States. The
International Court of Justice cannot exercise jurisdiction a
if

State which is a party to a dispute has not given its consent.

For these reasons, it is contended that international law lacks a
the essential characteristics of law, and therefore, it is no aw. Thisv.
view has found a forcible expression in the judgment of Queen
Keyn (1878,2 Ex. D. 63), where the Court observed:"Strictly speaking
international law is an inexact expression, and it is apt to mislead
its inexactness is not kept in mind. Law implies a law-giver, and
tribunal capable of enforcing it and coercing its transgressors. Bu
 NATURE, RIGIN AND BASIS OF INTERNATIONAL LAW 5
there is no common law-giver to sovereign States, and no tribunal
has the power to bind them by decrees or coerce them if they
transgress".
Starke criticises Austin's criticism of the nature of international law
on the following grounds:
(i) Modern historical jurisprudence has disproved ihat force is
the sanction behind law. It is now proved beyond doubt that
there are many communities which have a system of law
without a formal legislative authority, and law is equally obeyed
as if it was enforced by a formal authority.
(i) Starke turther points out that the argument that there is no
international legislature might have been true of Austin's time,
but in modern times, international legislation through law
making treaties and multipartite conventions, has come into
vogue. Therefore, the argument that there is no formal
legislative authority has lost all its force.
(ii) The main test of law is the practical test. Citing the opinion of
Pollock, Starke says that States always refer to legal
arguments. They justify themselves on the basis of law. Moral
arguments do not generally find a place. Therefore, each
State expects other States to obey international law, and
maintains that its conduct has been in conformity with law. As
observed by Professor Oppenheim, it is wrong to deny the
legal character of international law.
Further, it must be noted that international law must be
distinguished from the rules of "international comity". The rules of
international law are legally binding, while the rules of international
comity are, for the most part, rules of goodwill and civility. Austin might
have been right in describing rules of international comity to be of
purely moral quality, but that is not true in the case of rules of
international law, which are legally binding.
Professor Oppenheim defines law as a body of rules for human
conduct within a community which, by the common consent of the
community, is enforced by an external power. Thus, according to him,
the three important requisites are:
(i) A community.
(ii) A body of rules for human conduct.
(ii) Consent of that community for the enforcement of those rules
by external power.
in
He maintains that all these three essentials are to be found
international law. In the world today, there exists a community of
nations. Science, art, culture, commerce, economic interest, communi-
cations are all international. Interests of the people of different countries
are so interdependent that a world community has come into existence.
Secondly, there exist rules of conduct which have grown up for
 PUBLIC INTERNATIONAL LAW

hundreds of years as a result of custom, international agreemo.

and a vast number of lawmaking treaties. Thirdly, one can also se
existence of a common consent of the community of States tor the
enforcement by external power of international conduct. Both the
government of the States and public opinion agree ee that rulesthe
International law can be enforced by an external authority. of
However, it is also true that there is absence of a central
authority which can enforce the rules of international law; but u
externai

then, international law is not without its sanction. Besides the sanctinn
of public opinion, there is the ultimate sanction of war. The Leaque nf
Nations and the United Nations have been gigantic steps towards the
establishment of such a central authority to provide a sanction to
international law.
Define Public Inter- The same view is endorsed by modern writers like Hall
national Law. Why Lawrence, who maintain that international law is habitually and
Austin considers enforced as law. Like any other positive law, it treated and
Public International
is derived from custom
Law, a weak law? precedent and conventions. Further, through the lnternational Court of
Apr. 2013 Justice, the idea of an impartial arbitrator has also been
developed. For
these reasons, it is maintained that international law is a true law
Those who maintain that international law is not true law do not
take into consideration the emphatic assertions of the binding force of
international law by various Courts and lInternational Conferences. For
example, the United States Supreme Court has repeatedly recognised
the constitutional validity of international law. As far back as the
beginning of the nineteenth century, in The Charming Betsy, (1804) 2
Cranch 64, at P. 118, Marshal C.J. declared that an Act of Congress
"ought never to be construed to violate the law of nations if any other
possible construction remains."
Again in The Paquete Habana, (1900) 175 U.S. 677, Gray, J
observed as follows
"International law is part of our law, and must be asserted and
administered by the Court of Justice of appropriate jurisdiction, as
often as questions of right depending upon it are duly presented for
their determination."
Write a short note Though there is enough evidence in State practice and judicial
onntenational decisions to accept that international law is true law, yet one should
aw i5 a wea
W not be blind to the fact that international law is weak law. The existing
M..Apr 4011international leaislative machinery is inadequate, and
internaioia
law is mainly customary. Though the International Court of Justice has
been established, still it does not exercise universal compulsoy
jurisdiction for setting legal disputes between States. Further, in

rules of international law can only be formulated with difficulty. hey

are quite often uncertain. However, there has been voluminous activiny
to remove uncertainty in international law by filling the gaps.
he arguments for and against the proposition that internationa
law is a true law can be summed up as under:
 NATURE, ORIGIN AND BASIS OF INTERNATIONAL LAW 7
For Against
(1) As the basis of law is notforce | (1) There is no international legi-
but public opinion, internati- slator
onal law, supported by public
opi-nion, is true law.
(2) In recent times, there has been (2) It is a law betweenthe States.
a great volume of inter-national and not above the States.
legislation.
(3) In practice, States do follow (3) (a)Thisbeing inthe natureofauto-
international law and expect lirnitation, it is nota limitation.
other States to follow it. (3) (b) A strong State has always
the choice or freedom to obey
or not to obeyinternational law.
(4) It satisfies all the ingredients (4) Even customary and other
of law as defined by Prof. rules are obscure and vague.
Oppenheim.
(5) Even during the time ofwar, if|(5) Duringtimes of crisis, parti
States commit breaches of cularly during time of war, it
law, they do not deny the be-comes conspicuous in its
existence of law, but try to breach rather than in its
defend themselves on the obedience.
basis of law.
(6) The rules of international law (6) It lacks an arbitrator of dis
cannot be unilaterally altered puted questions.
or changed by States.
(7) The jurisprudence of the
International Court of Justice
is based on consent and has
no universality.
D. ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW
Though international law in one form or another has existed from
the very beginning, yet international law, in the modern sense of the
term, is the product of recent history. International law, as the term is
understood today, can trace its origin to the 15th century. Even then,
for a correct understanding of the development of international law, a
brief acquaintance with international law, as it prevailed in the ancient
world, would be helpful.
The history and development of international law, for the purposes
of the present study, can be divided into the following seven stages
(i) The Primitive and the Ancient Period
(i) The Middle Ages
(ii) International Law in the 15th and 16th Centuries
(iv) The Era of Hugo Grotius and thereatter
 8 PUBLIC INTERNATIONAL LAW T
(v) The 19th Century
(vi) The First World War and thereafter
(vii) The Second World War and thereafter
(vii) The Present-day Status of International Law
() THE PRIMITIVE AND THE ANCIENT PERIOD
In the early stages of human history, there were some traces
ot
international law in Egypt and amongst the ancient Jews. They entered
into treaties and accorded respect to Ambassadors and treated
foreigners in the same way as they tre ated their nationals. The
peculiatity of the treaties of those days was that they were surrounded
by oaths and religious symbols. Interwoven with religious morality,
a
rather crude form of international law prevailed during those days.
Hindus
The concept of Dharma was the basis of the relation of one State
with the otheramongst the Hindus. Wars were divided into just and
unjust wars. There were rigorous rules of war which confined the
extent of war and mitigated its rigour. Though some writers are of
the
opinion that these rules of war and rules of inter-State relations were
more moral than legal in nature, yet some elements of international
law can be traced amongst the ancient Hindus.
Ancient Greece
Even amongst the Greeks, inter-city State relations were regulated
by a rudimentary kind of international law which was based on religious
morality. But these rules of international law were applied only amongst
the people of the same race. The non-Greeks were treated as
barbarians, and any treatment accorded to them was considered to be
just. Even the elementary principles of international law were not
applied in the treatment of such alien communities.
Ancient Rome
A student of international law would be rather disappointed to find
that Rome, the ancient home of civil law, had verylittle to contribute to
temporary international law. As in Greece, so in Rome also, the
meagre rules of international law were founded on religious morality
However, during the 15th and 16th centuries, when international law
happened to bedeveloped by writers, knowledge of Roman law proved
to be very helpful. Various concepts of international law were shaped
MCO No. on the analogy of similar concepts of Roman law. For example, tne
concept of dominion served as an analogy to the development of the
oncept of territorial sovereignty. The concept of agency helped, by
analogy, the development of the convention of diplomatic agents. Thus,
the concepis of Roman Law also helped to shape the law relating to
international treaties.
(i) THE MIDDLE AGES
During the Middle Ages, the climate was not favourable for tne
development of international law. The barriers to such development
were mainly the following:
 NATURE, ORIGIN AND BASIS OF INTERNATIONAL LAW 9

(a) The supremacy of the Church and the universality of its laws
throughout Europe prevented the development of international
law. The supremacy of the Pope made international law, in the
modern sense of the term, alomst unnecessary. The Popes
claimed, on the ground of their divine mission, a supreme
arbitrary power over all Christian States, and as such, the
necessity of a secular international law, which would regulate
the relations of equal sovereign States, was not felt at all.
(b) Besides the Pope, the Emperor represented the supreme and
universal authority in the Western world. Legally, there was only
one monarchy. Consequently, there could not be international
relations among the princes of the Holy Roman Empire.
(c) Feudalism undermined internal sovereignty. The feudal lords
had arrogated to themselves certain powers which belanged
to the sovereign. Quite often, these feudal ties had cut across
the national frontiers.
Thus, in the Middle Ages, the absence of independent national
sovereign States obviated the necessity of international law.
(ii) INTERNATIONAL LAW IN THE 15TH AND 16TH CENTURIES
The necessity for international law did not arise until a number of
States, absolutely independent of one another, had successfully
established themselves. That process of development was spread
over from the middle of the 9th century to the end of the 15th century.
At that time, Europe was in fact divided into a great number of
independent States, and the necessity arose for international law to
regulate the relations between these sovereign States.
The following factors were mainly responsible for the growth of the
principles of international law during this period:
0) As a result of the revival of ancient leaming, the knowledge of
Romans was brought back to the West.
(i) The sea trade, which had virtually disappeared after the
downfall of the Roman Empire, happened to revive during
those days. With the revival of the international sea trade,
customs of maritime law appeared. This growth of international
trade also gave rise to the controversy regarding the freedom
of the high seas, and thus gave an impetus to the growth of
international law.
(i) The trading cities began to develop leagues for the protection
of the trade and the trading citizens. These leagues stipulated
for arbitration on controversies between their member towns.
This also helped the growth of international law
(iv) The custom of sending and receiving permanent egations
between States introduced an element of international law.
(v) The custom of keeping standing armies by several States
necessitated the development of some universal rules and
practice of warfare.
 10 PUBLIC INTERNATIONAL LAW
(vi) The Renaissance of science and arts in the fifteenth century
revived the ancient learning of Greece. With the revival of
ancient learning, the great philosophic thought of the Greeks
became current, and its concept of the law of nature laid down
a firm foundation for further development of international law
(vi) The Reformation put an end to the spiritual mastership of the
Pope over the civilised world. The Protestant States hardy
recognised the authority of the Pope to act as an Arbitrator.
This further helped the development of the modern
international law.
(vii) It was during this time that a number of thinkers and writers
began to work out several schemes for the establishment of
an eternal peace. Such schemes at least impressed the people
about the necessity of universal rules and a common
organisation.
Thus, at the end of the period, two factors became very apparent:
() the fall of the Church coupled with the secularisation of the political
force, and (i) the fall of the Roman Empire along with the rise of
national sovereign States. With the disappearance of the supremacy
of the Pope and the Empire, the princes began to develop a claim for
absolutism, and the spiritual unity of Europe was destroyed. During
this era, Bodin of France, Machiavelli of Italy and Hobbs of England
provided the theoretical foundation for the secular concept of State
sovereignty and natural law.
(iv) THE ERA OF HUGO GROTIUS AND THEREAFTER
The greatest of writers on the subject in the 17th century, was
Hugo Grotius. In the words of Wheaton, "The leading object of Grotius,
seems to have been, first, to lay down these rules of justice which
would be binding on man living in a social state independently of any
positive laws of human institution, or, as is commonly expressed,
living together in a state of nature; and secondly, to apply the rules
under the name of 'natural law' to the mutual relation of sovereign
State". His treatise, Jure Belli ace Pacis (The Law of War and Peace),
MCO No. 6,7 hich appeared in 1625, was the first systematic attempt at a
formulation of the various customary rules and also at laying down a
theoretical foundation for the various doctrines of international law. He
has been called 'the Father of the Law of Nations.'
(A reference may be made to the topic, "Grotius His contribution
to International Law, below.)
The Peace Treaty of Westphalia
The Treaty of Westphalia of 1658, which marked the end of the 3
years war, was an epoch-making event in the history of publ
international law. This treaty remained the frame-work of the political
organisation for nearly a century after the end of the 30 years' wal
The effects of this treaty were the following:
 NATURE, ORIGIN AND BASIS OF INTERNATIONAL LAW 11

(i) The members of the Holy Roman Empire attained sovereignty.

(ii) An attempt was made for the first time at international
organisation for maintenance of peace.
(ii) The French language became the common language of
international negotiations.
Another important feature of the two centuries after Grotius had
been the rise of a number of text-book writers who not only gave a
systematic treatment of the subject and thereby provided the best
evidence of international law, but also suggested new rulesof
membership which had not yet emerged from the practice of States.
The most eminent of the writers during the 17th and 18th centuries
were the following:
(i) Zouche (1590 to 1660) Professor of civil law at Oxford
(Gi) Pufendort (1632 to 1694) A great naturalist
(ii) Bynkershoek (1673 to 1743) A great positivist
(v) Wolf(1679 to 1754) A German jurist and philosopher; and
(V) Vattel- A Swiss jurist and diplomat.
During these centuries, the writers of international law were divided
into the following three schools:
(a) Naturalists, who derived international law entirely from the
concept of the law of nature.
(b) Positivists, who laid exclusive emphasis on customs and
treaties.
(c) Grotians, who gave weight to both custom and treaties on the
one hand and to the law of nature on the other.
(v) THE 19TH CENTURY
The 19th century was the period during which treaties and
international conferences began to play a very vital role in the
development of international law. In addition to this role of the
conferences, another important development during this century was
that there was a great increase in adjudication by international arbitral
tribunals following the Albama Award Claim of 1872.
The Congress of Vienna of 1815 marks the starting point of what
may be called international legislation. This Congress formulated
various rules regarding the principle of legitimacy, diplomatic
representations and navigation in international rivers.
The Maritime Law Convention of Paris of 1856 formulated rules for
the guidance of States when engaged in warfare at sea.
The third convention of importance was the Geneva Convention of
1864, which provided rules for the betterment of the condition of the
sick and the wounded in warfare on land. Besides these, there were
numerous conferences for the regulation of economic and social
interests. Various international unions were formed for the promotion
12 1 PUBLIC INTERNATIONAL LAW
of such interests. For example, problems of public health, public morals
and public safety happened to come under the compass of the rules
The Hague Conference of 1899, called at the instance of the C2ar
of Russia, had as its preliminary object, the promotion of a general
limitation of arms and armaments.
This tendency of the 19th century continued until First World War.There
were many more intemational conferences. The most important of them
was the Hague Conferenceof 1907, which adopted conventions regardina
humanising war. However, the most important outcome of the Haque
Conference was the establishment of the permanent Court of Arbitration.
(vi) THE FIRST WORLD WAR AND THEREAFTER
It was the First World War that made Europe realise
the importance
of an international organisation for the purp0ses of maintainina
international peace and security and the promotion of international co
operation. After the First World War, the Treaty of Versailles laid the
foundation of the League of Nations which was meant to achieve those
purposes. The eague of Nations had also another sister institution
known as the Permanent International Court of Justice. Howsoever
weak and ineffective the League of Nations might have been in
achieving its purpose, it must be noted that the civilised nations of the
world gave a concrete shape to a kind of international organisation
which was intended to pave the way for a world Government.
The next important treaty was the Treaty of Locarno, 1925, whereby
important European States undertook to abstain from the use of force
against each other. The treaty emphasised that the States were to settle
their disputes peacefully in accordance with the covenants of the League
of Nations. However, this treaty was denounced by Germany in 1936.
The Kellogg-Briand Pact of 1928, which was signed at Paris,
condemned war as an instrument for setling international disputes
d enjoined on the members to pledge to settle their differences by
peaceful methods.
(vi) THE SECOND WORLD WAR AND THEREAFTER
After the Second World War, there have been two main develop-
ments in the sphere of international law:
0) A large number of permanent international institutions or
organizations like the United Nations, the International Court
of Justice, W.H.O., FA.O. etc., have been established. These
have international legal personality and their relations with
other similar institutions or States are definitely within the
scope of international law.
(m) There has been
another indispensable development in the
sphere of international law. Individuals have come to attract
the application of international law to a considerable extent
Recognition and protection of human rights and the creation
of new rules for the punishment of individuals violating
international criminal law (as in the case of Nuremberg and
the Tokyo trials) are instances on hand.
 NATURE, ORIGIN AND BASIS OF INTERNATIONAL LAW 13
(ViI) THE PRESENT-DAY STATUS OF INTERNATIONAL LAW
A student of the history of International law can see the following
developments in the present day:
() It is incresingly felt that international law is an indispensable
body of rules regulating the relations between the States
without which it would be almost impossible for them to
maintain any State relations.
(i) During the first half of the 20th century, there has been a
greater impetus to the development of international law than
in previous stages of history. This is the natural outcome of
the growing interdependence of the States and the vastly
increased intercourse between them. Custom can no longer
provide, in adequate measure, the necessary rules of
international law. Therefore, there have been a great number
of multipartite treaties which are known as law-making treaties
or measures of international legislation.
(ii) In addition to this international legislation, the practice of
international adjudication has also come into vogue, for
example, the establishment of the Permanent Court of
nternational Justice and the International Court of Justice.
(iv) There have been several attempts at codification and
progressive development of international law. In this
connection, the work of International Law Commission
sponsored by the United Nations is noteworthy.
(v) There has been an enormous growth of permanent
international organisations.
(vi) The scope of international law has widened. It covers not
only the various economic or social interests of States, but
also the fundamantal rights and freedoms of individual human
beings.
(vil) In the evolution of international law, the influence of writers
has tended to decline, and the practice and decisions of
tribunals have begun to play a more important role.
(vii) The emergence of the Afro-Asian States has resulted in a
challenge to certain basic principles of international law.
It is also true that, in some quarters, there is a tendency to dis
parage international law, even to the extent of questioning its existence
and value.
There are two main reasons for this
(1) It is generally considered that the rules of international law are
designed only to maintain peace, and not justice.
(2) It is mistakenly considered that international law is concerned
with only peace and war.
However, actually, a great part of international law is not concerned
with issues of peace or war. There are settled rules of international
 14 PUBLIC INTERNATIONAL LAW
law dealing with an immense variety of matters. These
rules
invariably obeyed, but unfortunately, these rules which are the re
t issis
of international law of civilised life do not often attract notice.
forgotten that even within the system of a municipal law, breach
revolts, revolution and strikes do take place. hes,
GROTIUS-HIS CONTRIBUTION TO INTERNATIiONAL LAW
Hugo Grotius (1583 to 1645), who was a Dutch
scholar and
MCO No.8 diplomat, has been considered as the greatest of all the
early writer
of international law. He is the author of the first systematic treatise
international law. His writings, dealing with war and peace,
have earned
him the title of "The father of international law. Though many
may not
like to accord this distinction to Grotius, yet his contribution to
tho
systematic treatment of international law has been considerable. His
contribution can be summed up briefly as follows:
(a) His main contribution, according to Wheaton,
has been that
Grotius "seems to have been the first to lay down
those rules of
justice which would be binding on men living in a
social state.
(b) Grotius tried to establish that the totality of
relations between
States was governed by law.
(c) His other great contribution was to
secularise the concept of
the law of nature, and to show that the basis of
the law of
nature was in human nature itself. According to him,
man was
social in nature, endowed with goodness, reason
and morality,
and these qualities of man were, in the last analysis,
the basis
of international law.
(d) Grotius further recognised that theindividuals
and the State
composed of the individuals were essentially identical. This
contributiom of Grotius is in contradiction of the metaphysical
theory of the State.
(e) Grotius maintained a fine distinction between just and unjust
wars, and thus condemned the absolute right of States to
wage wars according to their whims.
(1) In continuation of
the distinction between just and unjust wars,
Grotius developed a concept of qualified neutrality. According
to him, a State which was carrying on a just war was to be
assisted.
(g) Grotius emphasised the great utility of the peaceful settlement
of disputes in the international sphere. He appreciated the
great utility of the peaceful settlement of disputes between
States through negotiations, arbitrations and settlements
Defects of his Works
Though the contribution of Grotius has been considerable, his
was not without defects. The defects of his work were mainy ue
following:
(0) His
treatise on the law of war and peace was hasty an0
superficial.
 NATURE, ORIGIN AND BASIS OF INTERNATIONAL LAW 155

(i) Grotius was notvery logical in laying down the theoretical

basis of
intemational law. His method was notthat of a naturalist,
of a positivis and, as is sometimes said, noteven that of a
northat
Grotian.
(ii) The greatest criticism that can be made against Grotius is
that his concept of law of nature served more as a bulwark of
established authority and existing order than as a level of a
progressive and elastic system.
Conclusion
In spite of the above defects, the importance of
Grotius in the
systematisation of international law cannot be overlooked. He was a man
gifted with marvellous intelligence and profound scholarship, who wrotea
colossal work on international law. His was the first attempt at
systematisation of international law. He helped to bring a sort of law in the
lawless jungle of international relations. Therefore, though some would
question his title of "The father ofinternational law" it must be conceded
that he was most certainly the father of systematising international law.
E. THEORIES OF INTERNATIONAL LAW
(Schools of International Law)
Amongst the writers who have explained the nature and basis of
international law, three different trends are visible, and according to
these three trends, there have developed three different schools or
theories of international law, namely,
I.The Naturalists
I. The Positivists
I1. The Grotians.
I.THE NATURALISTS
The first school of international Law is composed of the
Naturalists. According to this School, the laws of nations are only a
part of the law of nature. Samuel Pufendorf is the leader of this
School. The Greek concept of the law of nature had acquired a
theological nature during the Middle Ages. The credit of secularising
the concept of the law of nature and basing it on the nature of man
as a reasonable being goes to Grotius. According to this School,
States submit to international law because the relations are
regulated by a higher law, the "law of Nature". For example,
Pufendorf maintained that besides the natural law of nations, one
voluntary or positive law existed, which had the force of real law.
The concept of the law of nature underwent further specialisation
in the 18th century. For example, Vattel in his book written in 1758
defined natural law and the law of nations in the following words:
"We use the term Law of Nations for that law which results from
applying the natural law to nations. It is necessary because nations
are absolutely bound to observe it. It contains those principles which
the natural law dictates to States and it is not less binding upon them
than it is on individuals. For States are composed of men, their policies
16 PUBLIC INTERNATIONAL LAW
are determined by men and these men are subject to the natural law
under whatever capacity they act."
Criticism
() The main criticism against the naturalist school is that the term
the Law of Nature' is capable of many interpretations and
these might differ widely. The term 'Law of Nature' might mean
the laws of physical nature or the laws of the living world orthe
laws of the ordinary and the normal or the ideal law as it ought
to be. If there could be such conflicting interpretations, the term
law of nature' or 'natural law can hardly be a criterion for
ascertainment of the rules of the Law of Nations.
(ii) The second criticism levelled against this schoolis that
historically, the law of nature might have played some
role
when international law was static in a Comparatively settled
world. But, in these days of the dynamic modern world,
the
theory of the law of nature can hardly be adequate
progressive. The law of nature yields on the side of stabilisina or
and justitying an established order, rather than indicating the
right direction for a moving world.
Conclusion
Historically, the law of nature did play a very important role. It did, in
fact, mitigate the severity of the doctrine of sovereignty and the absolute
authority of the States. It did make out a case that not even the
sovereign
was free from the control of laws; but, this school lost its influence
during
the 15th century, which was a period of rapid development of international
law by multipartite treaties and conventions.
appears that in the 20th century, some attempts were made to
It
revive the theory of natural law. The traces of natural law can
in the philosophy that underlies the
be seen
draft declarations of fundamental
rights of man and also the draft declaration of the rights
and duties of
the States. Besides, the same philosophy was invoked in order to
justify the punishment of war criminals.
In conclusion, it can be said that the
theory of natural law had a
tremendous influence on the development of international law. It laid
down a moral and ethical foundation of international law,
but at the
same time, it lacked precision. It made law more subjective
rather than
objective, and it made international law
rather unrealistic, as it had the
tendency of ignoring the actual practice of the
States.
II. THE PoSITIVISTS
The Positivist school fundamentally differs
from the naturalist schoo
as it ascribes the growth of international law
to treaties and customs,
rather than to human nature, reason
and justice. According to this
school, international law emanates from
last analysis, according to this school, the will of the States. In tn
the basis of international lawis
the consent of the States. The leader
of this school is Bynkershoek, a
jurist of the 18th century.
 NATURE, ORIGIN AND BASIS OF INTERNATIONAL LAW 17
The premises of the Positivist School
(a) The Positivist School starts with the premises that the State is a
metaphysical reality, having a value and significance of its own.
(b) Being a metaphysical reality, it has a will of ts own. Here,
Hegel's theory of "State-will" seems to have influenced the
Positivists.
(c) Accoriding to the Positivists, the State-will has complete
sovereignty and authority.
Starting from the above premises, the Positivists maintain that
international law consists of those rules which the various State-wills
have accepted by a process of voluntary self-restrictions. So, according
to them, international law is just a principle of auto-limitation. Without
such consent, international law would not be binding on the society of
States. Their main basis is pacta sunt servanda, i.e., agreements
between States are to be accepted.
Criticism
() The notion of the State-will is purely metaphorical. It does not
explain the fact that natural reality is the wil of the individuals
and that State-will is just a fiction.
(i) The second criticism is that the positivist concept of pacta sunt
servanda fails to explain the nature of international law in its
totality. In the case of customary rules, it may be quite
impossible to find any consent of States as the basis of their
binding effect. This theory particularly fails in the case of a new
State admitted into the family of nations. For example, the State
of Ghana, which came into existence in 1957, cannotclaim that
it is not bound by the rules of international law that were in
existence prior to admission of Ghana into the family of the
nations. Ghana is bound to obey all those rules of international
law. In this case, the positivist theory fails miserably.
(ii) In practice, the validity of international law does not depend
upon the consent or assent of a particular State, but it depends
the principle that it is generally recognised by the society
of the States.
(iv) In modern times, a multi-lateral treaty adopted by an
international conference may be binding on all the members
of the conference, irrespective of their consent, provided a
sufficient majority votes for the resolution and it is further
ratified by a minimum number of States. In such
circumstances, there is a clear indication of rejection of the
consent theories of the Positivists.
(v) It may be further pointed out that the Statute of the
International Court of Justice provides, amongst the various
sources of international law, "general principles of law
recognised by civilised nations" as a source of law. Such
18 PUBLIC INTERNATIONAL LAW

general principles could hardly be consistent with the positiins

o
theory, as this source of law is not created by the consent
a particular State. These are concepts common to all systems ms
of law, and are not dependant on the will of any State.

II. THE GROTIANS

The third school of international jurists is described as Grotian
Their approach resembles the approach of Grotius. According to this
school, the basis of the rules of international law could neither ho
explained nor supported by applying any one of the theories. The truth
is that the basis of international law is naturalistic to some extent and
positivistic to some extent. Consent is the basis, but not the sole
basis, of international law.
(See also, "Grotius His contribution to international law, above.)
cONCLUSION
"The main element enforcing the obligatory character of the
of international law is the empirical fact that the States will
rules
insist on
their rights under such rules against a State as they consider
they
should observe them. Obviously, if States do not insist on
respect for
these rules, international law would not exist.
The ultimate reasons that impel States to uphold the
of international law belong to the domain of
observance
political science and
cannot be explained by a strictly legal analysis. (STARKE)

(NOTE: A reference may also be made to the topic,

"Is International Law True Law?", discussed earlier.)
 CHAPTER 2
SOURCEs OF INTERNATIONAL LAW
the source
There is considerable difference of opinion amongst writers on oDiscuss Intemational Law
international law regarding the kinds and number of sources of international M.U. Nov. 2012
law. The term "sources" is used in different senses. Oppenheim (8th Edition) Jan. 20188
points out the distinction between "sources" and "causes" of international Jan. 2019
law. According to him, there are two sources of international law: May 20199
(1) Express consent of the States, and Dec. 2019

(2) Tacit consent of the States.

According to Prof. Brierly, the two main sources of international law
are custom and reason.
Following the practical approach adopted by Starke, may be said that
it
which an international
by international law is meant the actual materials from
lawyer ascertains the rule applicable to a given situation. The materials
from
which he tries to collect these rules are generally the following:
(i) Custom
(i) Treatiess
(i) Decisions of judicial Tribunals or arbitral Tr ibunals
(iv) Writings or determinations of the organs of International Institutions
Discuss the various
sOurces
LaW
of Interna
tional
() Decisions or determinations of the organs of International
Institutions M.U. Apr. 2005
May 2017
SOURCES RECOGNISED BY INTERNATIONAL COURT
OF JUSTICE
to are the
The Statute of the International Court of Justice directs the Court
What
sOurces of interna
apply the following sources for ascertaining international law: tional law?
(1) International treaties and conventions (2 marks)
M.U. May 2012
(2) International custom
(3) The general principles of law recognised by civilized nations. Briefly explain any 2
(4) Judicial or arbitral decisions sources of Public
Intemational Law
(5) Juristic works M.U. Apr. 2013
Additionally, a sixth source is:
MCO No. 9, 10
(6) Decisions and determinations of the organs of international
organisations.
Each of the above sources will now be discussed in necessary details.
(1) INTERNATIONAL TREATIES AND CONVENTIONS
There are two kinds of treaties:
(a) The law-making treaties-which lay down general rules binding
on the majority of States; and
19
 20 PUBLIC INTERNATIONAL LAW
What is a Treaty
(6) Treaty-contracts-which deal with special agreements between
Contract? (2 marks)
parties to the treaty.
M.U.Apr.2018
The law-making treaties are a direct source of international law
whereas treaty-contracts are not generally sources of international
law, as they are intended to create special rights and duties onl
between the parties to the treaty.
(a) Law-Making Treaties
Although custom was originally the main source of international
MCQ No. 11 law, recently, treaties have also become a very important source of
international law. As the rules of customary international law wer
inadequate to meet the needs of the dynamic world, the law-makina
treaties have come into existence increasingly from the middle of tha
19th century. This is considered to be a form of international legislation
Some writers object to the use of the term 1aw-making treaties' on
the ground that these treaties do not so much lay down rules of law
as set out the contractual obligations which the State parties are ta
respect. Starke rightly rejects this criticism. He points out that these
days, a number of conventions and international legislative instruments
are adopted by organs of lnternational Institutions, and therefore,the
are in effect law-making.
Law-making treaties involve two distinct operations:
) The legislative operation, whereby rules are laid down.
(ii) The undertaking by the States to conform to
such rules.
The second part of the treaty-making is subsidiary. These law
making treaties are multi-lateral treaties. Professor Brierly
defines law-
making treaties as "those which a large number of States have
concluded for the purpose either of declaring their understanding of
what the law is on a particular subject, or of laying down a new
general
rule for future conduct, or of creating some international institutions."
Of late, there have been a number of law-making
treaties dealing
with Red Cross, weights and measures,
suppression of slave trade,
aerial navigation, international waterways, the pacific
settlement of
international disputes, etc.
(b) Treaty-Contracts
Although treaty-contracts are not
generally regarded as sources
of international law, yet, in
the following three cases, they may lay
down rules of international law:
() A series of treaty-contracts or repetition of
the same rule in
several treaty-contracts might produce principle
a of custom,
and thus become a source of law.
For example, a series o
bilateral extradition treaties
entered into during the 19
century became a pattern of
general rules of international
law regarding extradition.
(in) Originally,
treaty-contracts may be
entered into between
 sOURCES OF INTERNATIONAL LAW 21
limited number of States, but subsequently if several States
acceptor imitate them, then such treaty-contracts may develop
into customary rules of international law.
(ii) A treaty-contract might operate as evidence of the existence
of a rule of law which has been developed by an independent
process. Phillimore, in his Commentaries upon International
Law has observed that a principle of international law acquires
additional force from having been solemnly acknowledged as
such in the provisions of a public treaty.
(2) INTERNATIONAL CUSTOM
Custom was considered to be almost the sole source of Note on: Interna-
tional Custom
international law for quite a long time. These customary rules of Apr. 2015
international law have been evolved by a long historical process, and
they are recognised as such by the international community.
Custom and Usage Distinguished
Though the terms custom and usage are often used to mean the Explain custom as
same thing, there is a fine distinction between them. Usage is a internatio
a source of
nal law.
prior state in the development of custom. When a usage crystallizes lustrate your
itself, it becomes a custom. Custom begins where usage ends. Usage, answer with case
in the words of Starke, "is an international habit of action that has law
M.U. Apr. 2008
not yet received the full legal attestation". Usages may be conflicting. Apr. 2009
These usages become custom when they become unified and self-
consistent. As Viner puts it, "A custom is such a usage as hath MCO No. 12
obtained the force of law"
When Usage Becomes A Custom
According to Oppenheim, "As usages have a tendency to become Customs as source
of Inte rnatio n al
Custom, the question presents itself, as to at what time does a usage Law.
turn into custom? This question is one of fact, not of theory." As Dec. 2014
Oppenheim continues, "International jurists speak of a custom when a Nov. 2015
Apr. 2016
clear and continuous habit of doing certain action has grown up under
to
the aegis of the conviction that these actions are, according
international law, obligatory or right.
Starke is of the opinion that before a usage may be considered as
amounting to a customary rule of international law, two tests must be
satisfied: () The material test, and (i) The psychological test.
(i) Material Test
acts
There must, in general, be a recurrence or repetition of the
they recur
which give birth to the rule. Both the frequency with which
would be relevant
and the length of time for which they have recurred,
in ascertaining whether a rule of customary
law is created.
Necessitatis)
(i) Psychological Test (Opinio Juris Sive
It is not merely the recurrence that creates a
customary rule. What
is also necessary, is that this recurrence
must be a result of a conviction
 22 PUBLIC INTERNATIONAL LAW

that there is a compulsory rule behind such a recurrence

e.
Conviction, or opinio juris, is a convenient, if ot an invariable, This
ascertaining that a usage or a practice has crystallised itseltst te for
Custom. This opinio juris must be inferred from all the circumstand
and not merely from the details which constitute the material
of the alleged customary rule. eleme
The following are illustrations ofcustomary rules crystallizing
No. 13 usages or practices: from
(a) Diplomatic Relations between States
State practices, declarations by statesmen, bilateral treaties
have crystallized usages into custom in this branch of etc.
international
(b) Practices of International Organs law
The practices of the international institutions
zation of customary rules of international law
has
led to crystalli.
powers and responsibilities of such institutions. regarding the status
(c) State Laws and State Military and Administrative
If State laws or
Practices
State practices of several States at
concur, such concurrence may indicate several times
the general recognition
broad principle of law. This is fully illustrated of
by the case of the Scotia.a
which was decided by the Supreme
Court of the United States of
America. In that case, a British ship
"Scotia" collied with "Berkshire"
an American ship. As a result, the "Berkshire"
sank.
The "Berkshire"
was not carrying the lights which were
required by a series of
regulations adopted by the British Government
American Congress. The question to be and also by the
decided was whether the
"Berkshire" was required to carry the lights
according to the new
regulations or whether it was enough if it satisfied
law. The Supreme Court of the U.S.A.
the old customary
held that by a concurrence of
these State laws, a new customary international law was evolved,
and
therefore "Berkshire", being a defaulter according to
the new customary
law, could not recover damages. This
case fully illustrates how
concurrences of State laws might crystallise a usage into custom.
Judicial Application of Custom
Very often, it becomes necessary for
the courts to examine whether
a particular rule has validly established itself as a customary rule of
international law. To do this, the court must examine the following to
ascertain the position:
(1) Treaties
(2) The practice of States
(3) Diplomatic correspondence
(4) Decisions of the State Courts
(5) Juristic writings.
This practice was adopted by the Supreme Court of the U.S.A. in
the Paquete Habana case and by the Permanent Court of Internationa
Justice in the Lotus case.
 sOURCES OF INTERNATIONAL LAW 23
(3) GENERAL PRINCIPLES OF LAW RECOGNISED BY
CIVILISED NATIONS
The general principles of law recognised by civil nations are to be
applied by analogy, and would be derived by selecting concepts
common to all systems of municipal law. By applying private la
analogy, wherever there is a lacuna in international law. the applicable
rule of law may be ascertained. The problem of non-liquet, ie., the
powerlessness of an international court to decide a case legally
because of inability to find any rule of law, is said to be solved by the
Statute of the International Court of Justice providing these general
principles as sources of law.
For example, the principle of Res Judicata which is a concept
known to municipal law, has been applied in Chorzow Factory Case.
Similarly, the general principles of subrogation or the private law
doctrine of trust are also applied by International Tribunals. The
International Court of Justice has applied the principle of estoppel in
the case conceming the Temple of Preah Vihear (1.C.J. Reports 1962,
6). A similar principle was also examined and tried by the same Court
in Barcelona Traction Case (1.C.J. Reports 1964, 6).
The words "general principles of law recognised by civilised nations"
have been interpreted in the following seven ways:
(6) General principles of justice.

(i) Natural law.

(ii) Analogies derived from private law.
(iv) General principles of comparative law.
(V) General principles of International law.
(vi) General theories of law.
(vii) General legal concepts.
According to Starke, the provision for applying general principles
has been regarded as sounding the death-knell of positivism. The
positivists view that custom and treaties alone are the sources of
international law is rejected by the Statute of the International Court of
Justice, and the general legal principles are recognised as the source
of international law.
(4) JUDICIAL OR ARBITRAL DECISIONS
Decisions that might be sources of international law are of three
kinds:
(A) Decisions of the international judicial tribunals
(B) Judicial decisions of State Courts
(C) Decisions of international arbitral tribunals.
24 PUBLIC INTERNATIONAL LAW
(A) Decisions of the International Judicial Tribunals
The International Court of Justice, which succeeds the former
Permanent Court of International Justice, is the only permanent judicial
tribunal at present. The decisions of these Courts are sources of
international law, though not in the sense in which a judicial precedent
is a souroe of English law. A decision of the International Court of
Justice is not an authoritative precedent. It does not create a bindin
rule of international law. The International Court of Justice is
bound by its prior decisions. However, such decisions are used by the
n
Court for guidance as to the law. As a general practice, it follows
series of its prior decisions, though it is not bound to do so. Besides
the International Court regards itself to be free to develop international
law. But at the same time, international lawyers have always considered
the judgments and the opinions of the International Court to be an
authoritative source of law.
(B) Judicial Decisions of State Courts
Judicial decisions of State Courts are responsible for the formation
of the rules of international law in the following two ways
() These decisions are generally regarded binding authorities
on the law of nations as understood in the Courts of
country. that
(i) These decisions (as already pointed out) may lead directly to
the growth of customary rules of international law. This growth
of customary international law will result if there
is a
concurrence of such decisions.
(C) Decisions of International Arbitral Tribunals
There is a serious controversy as to whether the decisions of
international arbitral tribunals should be considered as a source of
international law at all. Some writers hold that the arbitrators act as
negotiators or diplomatic agents, rather than as judges. It is said that
the compromise element influences the decisions rather than the rules
of law.
Though there is an element of truth in this conception of arbitral
decisions, yet, in practice, the position is different. Generally arbitratorss
act as judges rather than as mere negotiators. Thus, for instance, the
following cases have made a notable contribution to
of international law:
the development
(a) The Albania Claims Arbitration
Case
(b) The Behring Sea Fisheries Arbitration
(c) The North Atlantic Fisheries Case.
Case
(5) JURISTIC WORKSS
Juristic works are not an independent source of law.
a means of throwing light on the rules of international They are onily
their formation easier. The juristic works are law and rendering
generally
rather than the source of law. It is possible that evidence otf law
jurist may become a source of law if it is the writing of a greal
customary rules of international law. subsequently embodied i"
 SOURCES OF INTERNATIONAL LAW 25
There is only one exceptional case when juristic opinion assumes Wrte a short note
importance. Where there are no established customary rules or treaty on: Juristic works.
rules, juristic opinion may be considered as an independent source of MU. Apr. 2003
law. The Privy Council In re Piracy Jure Gentium, depended on juristic
opinion in ascertaining whether actual robbery was an essential
elememt of piracy at international law. Having seen that juristic opinion
considered that actual robbery was not an essential element in Piracy
Jure Gentium, they decided so. But in the same case, the Privy Council
was of the opinion that for ascertaining juristic opinion, it was not
enough to seek the opinion of some great works, but a consensus of
opinion must be looked at.
(6) DECISIONS AND DETERMINATIONS OF THE ORGANS OF
INTERNATIONAL ORGANISATIONS
Decisions and determinations of the organs of international organi-
sations may lead to the formation of rules of international law in the
following six ways
(1) They may represent intermediate or final steps in the evolution
of customary law. For example, a rule has developed regarding
the procedural practice of the United Nations Security Council,
that an abstention by a member State from voting is not to be
deemed a non-concurring vote, for the purpose of determining
whether a decision on a non-procedural question has been
validly taken by the Security Council according to the voting
requirements. Similarly, as a result of a resolution in 1952 of
the United Nations General Assembly, the rule that dependent
people are entitled to self-determination has been formulated.
(2) A resolution of one of the organs of international institutions
laying down regulations for the internal working of that particular
institution may have full legal effect as laying down rules which
are binding on the members and organs of the United Nations.
(3) In doubtful cases, not clearly covered by its constitution, an
international institution has inherent power to determine the limits
of its own competence. Such decisions by international institutions
on question of jurisdiction may have a law-making effect.
(4) Sometimes, organs of international institutions are authorised
to give binding determination concerning the interpretation of
their constituent instruments. These interpretative decisions
then form part of the law of the international institution in
question.
(5) Some organs of international institutions are empowered to
give general decisions of quasi-legislative effect binding on all
the members to whom they are addressed.
(6) Quite often, opinions of Committees of jurists specially
instructed by the organs of an international institution to
investigate a legal problem may have immense weight and
 26 PUBLIC INTERNATIONAL LAw

authority. For example, the opinion of the Committe

Juri
appointed in 1920 by the League of Nations Council, 1,
on the question of the Aaland lsland, that a conver advise tosts
to
1866 whereby Russia agreed not to fortify the Aaland ion ot
Islar
created a special military status contferring rights on interan
adjoining States (although not parties to the convention)sted
been cited with approval in several leading text-books has
Jus Cogens (Peremptory norm of general international law
Recently, it is increasingly being recognised that there
are ce.
peremptory principles of international law from which thera
be any derogation. The peremptory norm of general internationalOould
is a norm accepted and recognised by the international communit.law
States as a whole as a norm from which no derogation is Dermi y of
Such a norm can be modified only by a subsequent norm
international law having the same character. Article of aene
53 of the Vian
Principle of Jus Convention
prohibiting
on the Law of Treaties confirms this view. The nena
Cogens. unlawful use of force, contrary to the United
Nov. 2012 is an illustration of
Nations Charter
Jus Cogens. Article 53 of the Convention al
Dec. 2014
provides that a treaty is void at the time of its conclusion if
Apr. 2015 it conflicts
with Jus Cogens.
 CHAPTER 3

THE SUBJECTS OF INTERNATIONAL LAW

Traditionalily, international law is defined as a system of law
composed solely of rules governing the relations between States only.
It is true that the primary concern of international law is with the
rights, duties and interests of States, but this does not mean that
international law does not concern itself with other entities or persons.
Starke's definition of international law (considered earlier) covers
the following three sets of rules:
(1) Rules regulating the relations amongst States;
(2) Rules regarding the structure and function of international
institutions, and their relations with other international
institutions, States or individuals; and
(3) Rules relating to individuals and non-State entities.
INDIVIDUALS NOT SUB JECTS OF INTERNATIONAL LAw
This wide definition of international law (above) is not accepted by
some writers, who assert that States are the only subjects with which
international law is concerned. According to them, the non-State entities
or individuals do not come within the purview of international law. The
centre of this controversy is the position of individuals in international
law. Even in classical international law, before the post-war
development, slaves and pirates were always treated to be within the
purview of international law.
For example, as a result of treaties, slaves have had certain rights
and protection was given to them by the society of States. Under
Customary international law also, individuals found some place. Under
the rules of Piracy Jure Gentium, individuals who committed piracy on
the high seas were treated as enemies of mankind, and were liable to
be punished by any State which arrested them. These are instances
which show that the sole concern of international law is not with the
State only, but also with individuals.
But the writers who take a narrow view of international law hold
that the above-mentioned instances do not prove that either the slaves
have the rights or the pirates are under any liability. But the States
concerned have duties or rights as the case may be. Therefore, they
hold that the slaves or the pirates are not the subjects of international
law but the objects of it. Further, they hold that, in the last analysis,
the protection to the slaves and the liability of the pirates are enforced
by virtue of the municipal law. Therefore, individuals should not be
considered to be the subjects of international law.
Further, it is also pointed out that no individual could be a party to a
dispute before the International Court of Justice. Even if there is a claim
of an individual, such a claim can be enforced only through the State.
27
 28 PUBLIC INTERNATIONAL LAw

For these various reasons, it is argued that individuals cannot be

considered to be the subjects of international law.
INDIVIDUALS SUBJECTS OF INTERNATIONAL LAW
MCO No. 14 Amongst those who hold that individuals are the subjects of
international law, Professor Kelsen stands foremost. According to him
the States have no personality of their. Own. They are just artificial
Is an individual a persons created by a fiction of law. Therefore, even when it is said th
Subject of inter. rules of international law govern the conduct of States, the State State
national law? being nothing but a collection of individuals, the rules of international
Discuss law govern only the conduct of individuals.
M.U. Apr. 2003
Apr. 2005
Westlake reflects a similar opinion when he observes: "The duties
and rights of States are only the duties and rights of persons who
compose them." According to this view, there is no real distinction
between State law and international law. Both systems bind individuals
though international law binds the individuals mediately and through the
fiction of the State. As an answer to this, it is said that thouah
theoretically and logically, Kelsen's views may be correct, yet, practically.
international lawyers and statesmen always work on the realistic basis
that they are concerned solely with the rights and duties of States.
Apart from the theoretical discussion, there are many instances
where it can be shown that international law is concerned with
individuals. As mentioned above, the outstaning instance is that of
the
slaves and pirates. To say that the slaves and pirates are the objects
of international law, but not subjects, is just to indulge in verbal
jugglery
The fact that the States are under a duty to protect the slaves,
must
Discuss how an presuppose that the rights exist somewhere. Where do they exist, if
individual is the not in slaves? Who are slaves, if not individuals? It is true that
subject O where
International law.
protection is denied, the slaves have no international forum through
M.U. NOV. 2008 Which their rights can be enforced. But that is more a question of
Nov. 2009 procedural rules of international law, than of substantive rules of
Nov. 2010 international law.
May 2012 The question as to whether international law binds individuals is
Apr. 2014 no longer of mere theoretical significance. Neuremberg
and Toky0
trials of the War criminals after the Second World War prove beyond
doubt that individuals can be held responsible under internationl law.
This view of the Neuremberg and Tokyo International Tribunals
MCO No. 15 has
also been accepted by the International Commission of the United
Nations. The Commission, in its draft Code on Offences
Individuals
against the
as Peace and Security of Mankind, did provide that persons could be
subject of Interna- guilty of crimes against the peace
tlonal Law. Discuss and security of mankind.
its scope & Limita There have been other instances also where international law has
tions with reference inflicted direct responsibility on individuals.
to provisions of UN The Genocide Convention
adopted by the United Nations' General Assembly in December 1943,
charter concerning clearly
rights as individual. provided that persons committing certain acts should D
Apr. 2015 punished "whether
they are constitutionally responsible rulers, pubic
Apr. 2016 officials or private individuals".
 THE SUBJECTS OF INTERNATIONAL LAW 29

The following are further instances where international law has

conferred rights on individuals:
(a) The Neuremberg judgment recognised that the victims of
crimes against humanity committed even by their Government
are entitled to the protection of international criminal law.
(b) The Genocide Comvention of 1948 attempts to protect the very
right of human groups to exist as groups.
(c) The Preamble to the Charter of the United Nations stated
that one of the important objects of the Charter is to reaffirm
faith in the fundamental human rights and in the dignity and
worth of the human person. The same object is repeated in
Article 1, Para 3 which asserts that the purpose of the
organisation is to attain "respect for human rights and for
fundamental freedoms".
(d) In Europe, the movement for advancing human rights has
gone even further. The European Convention for the Protection
of Human Rights and Fundamental Freedoms establishes an
European Commission of Human Rights, with administrative
power to investigate and report on violations of human rights.
An European Court of Human Rights has also been established
in 1959. The Court has already enquired into a violation of
human rights lodged by an individual against his own
Government. (Lawless v. The Government of Ireland)
(e) The Permanent Court of lInternational Justice held, in Danzig
Co.s case, that if a particular treaty intended to confer rights
on individuals, these rights should receive recognition at
international law. In this case, the dispute was between Poland
and Danzig. There was an agreement between these two States
that Poland would respect certain conditions of employment of
Danzig Railway officials whom Poland had taken over. It was
the contention of Poland that the agreement being an
international treaty, and not having been incorporated in Polish
Law, could not create any rights in favour of the Danzig Railway
officials. At best, it could only be an agreement which created
rights and liabilities between Poland and Danzig. The Court
held that as the parties intended, by the agreement, to create
rights enforceable by private citizens, the private citizens could
enforce the rights against the Polish Government.
Similarly, the argument that individuals cannot be parties to disputes
before International Tribunals and that they must always enforce their
claims through the States only cannot be a ground for holding that
individuals are not subjects of international law. This disability, whtere
it exists, is a procedural rule. It does not refer to any substantive rule.
Inability to approach a Court is not always the test of the non-existence
of the rights and duties. Even under municipal law, a minor may not be
30 PUBLIC INTERNATIONAL LAW

ble to approach the Court independently. It may be necessarysuagee that he

he
must approach a Court through a guardian, but that does not
of municipal law, or that he has
est
r
that the minor is not a subject no
ights and duties in municipal law.
This rule that individuals cannot approach international Tribuanl anls
without exceptions, as for instance, the following cases
is also not
of Versailles, 191
(a) After the First World War, under the Treaty
of 1922, individual claim
and the Polish German Convention ts
were allowed access to the various arbitral Tribunals.
(b) Under the Treaty creating the European Coal and Steel Commi,
nity, 1951, as also under the Treaty establishing the Eurone
Economic Community (Common Market), 1957, and under th
Treaty establishing the European Atomic Energy Community
1957, individuals, private enterprises and Corporate entities
have been given certain rights of direct appeal to the Court ot
Justice of the Communities against decisions of organs of the
Communities.
()The United Nations' officials have also the right to take
appropriate proceedings before the United Nationals Admini
strative Tribunals, for alleged non-observance of their contracts
of employment or the terms of their appointment.
Therefore, it can safely be concluded that the modern tendency of
international law is to recognise increasingly, the rights and duties of
the individuals.
NON-STATE ENTITIES AS SUBJECTS OF INTERNATIONAL LAW
Of late, the scope of international law has widened, whereby the
range of subjects goes beyond that of States, as is clear from the
following
(1) International Institutions
Inrecent times, International law, lays down various rules containing
constitutional provisions of several international institutions like the
United Nations, the 1.L.0., W.H.O., etc.
(2)International Criminal Law
There are several Conventions which have created international
offences and prescribed punishment for individuals who commit those
offences. The Geneva Conventions regarding the suppression of
Counterfeiting Currency (1929) and the suppression of the International
Drug Traffic (1936) are instances.
(3) Treaties Concerning International
Minorities and Individuals
Su treaties have created rights in favour of individuals and have
made possible for individuals to approach international tribunals, as
it
for instance, Articles 297 and 304 of the Treaty of Versailles (1919).
 THE SUBJECTS OF INTERNATIONAL LAW 31
(4) Non-State Entltles
Teritories which have not attained full status, like Colonies and
Protectorates, have been regulated by several law-making conventions.
(5) Insurgents
Insurgents, who are a group of individuals, and who do not
constitute a State, are granted certain rights in international law
Conclusion
Thus, it is clear that the scope of international law to-day is no
longer limited to the States, but several non-State entities, including
international institutions, have become the subjects of international
law. Very often, individuals can be parties to disputes before
international Tribunals, and human rights and fundamental freedoms
are increasingly recognised.
 34 PUBLIC INTERNATIONAL LAW
It may be noted that the Dualistic theory enjoys support from the
positivists. But, there are also some writers who are not positivists.
and yet support the Dualistic theory. According to them, the difference
between the two legal systems lies in the fact that international law
mostly consists of customary and treaty rules, whereas municipal
law consists mainly of statutes passed by the Legislature and of
jvdicialprecedents.
Which law is to pre vail in case of conflict
The subject of the relationship between the two legal systems is
closely associated with the primacy (or superiority) of one of the
legal systems over the other. The main question here is, in case of
conflict, which should prevall. Thus, if a rule of international law
under a treaty prescribes one thing. and the municipal law of a
State prescribes just the opposite, which should prevail
international law or municipal law? The dualists maintain that, in
such circumstances, the State Law which is the creation of the
sovereign will of the State, should prevail over international law.
The monists do not have a uniform opinion on this question. They
are divided
Professor Kelsen, developing the theory of pure law, maintains
that each law is governed only by another legal principle. There is a
heirarchy of legal rules. One legal rule derives its validity and binding
force rom another higher rule. For example, a rule laid down in a
regulation or an order of a government is regulated by a supreme rule
laid down by an Act of the legislature. In its turn, the Act of the
legislature is governed by the rule laid down in the Constitution. From
principle to princjple, from rule to rule, a legal analysis eventually
reaches one supreme fundamental principle, which is the source and
foundation of all law. According to Kelsen, this fundamental principle
may be either international law or State Law.
CRITICISM OF KELSEN'S THEORY
(i) This approach of Kelsen is criticised on the ground that his
attitude is based on an extremely sceptical philosophic
approach. It is further pointed out by way of criticism of Kelsen,
that if Monism is accepted and if supremacy is not attributed
to international law, the resulting position will be very
confusing. There are hundreds of States and if the laws of
each of the States are supreme, the result would be
international anarch
(ii) Further, if State law was supreme according to Kelsen, the
validity of international law must be derived from the supreme
law of the State, that is, its Constitution, But Constitutions
appear and disappear. Should the validity of international law
also meet the same fate as that of the Constitutions?
Cii) Again, t is a well-settled rule of international law that when
a

new State comes into existence and enters the community of

 THE RELATION BETWEEN INTERNATIONAL LAW. 35
nations, the rules of international law bind it without the
consent of the State. This position can hardly prove the
supremacy of State Law.
Concluslon: Analogy of a Federal State
Though there is great truth in the statement that international
law must be attributed with superiority, it cannot be ignored that
States are sovereign States and exercise great liberties. Therefore,
in conclusion, one can agree with Starke, who suggets that the best
solution to this question is to apply the analogy of a federal State. In
a federal State, the regional States enjoy autonomy, and therefore
enjoy superiority in certain spheres, while the federal State enjoys
superiority in other spheres, and there is thee constitutional law which
claims superority over the law of both the regional States and the
federal State, and deternimes the sphere of superiority of the units
and the federal State. Applying this analogy in the international
sphere, it can be concluded that the state laws are supreme in
certain respects and international law is supreme in other respects,
and this division of supremacy is to be determined by what may be
called an international constitutioal law.
Theories concerning the application of International Law within
the Municipal Sphere
There are mainly two theories regarding the application of
international law within the municipal sphere. The problem here is how
the rules of international law become applicable in the municipal sphere.
Two views are posible:
(i) One view is that any rule of international law is to be applied
by municipal courts for the mere reason that it is a rule of
international law.
(i) The other view is that there cannot be such automatic
application of the rule of international law by the municipal
courts, unless such a rule has been specifically adopted or
incorporated as a part of municipal law. This is also known as
the "Transformation and Specific Adoption Theory."
According to the second theory. which is based on the positivist
concept of the rule, no rule of international law, by its own force, can
claim to be applied by municipal courts, unless such rule has undergone
the process of specific adoption or specific incorporation. This is again
based on the dualistic theory of the relation between State Law and
international law. As the two legal systems are separate and distinct
international law cannot infringe on State Law, unless the State, by its
Own constitutional machinery, incorporates the rule of international law.
Even in the case of treaties, the rules of treaties must be transformed
into State law by the legislative machinery of the State. Unless such
transtormation takes place, the rules of the treaty cannot be extended
to Individuals, even though the treaty may require such extension.
 LAWw
36 PUBLIC INTERNATIONAL
For example, the Berne Convention on Copyrights provides that
books published in one of the member States must enjoy copyright
in

any other State which is a party to the Convention, the same copyright
as the books published in such member State would enjoy. If an
individual in the other member State were to infringe the copyright of
the book published in the former member State, according to the
transformation theory, the person intfringing the copyright cannot be
held liable by the municipal courts, unless the provisions of the Berne
Convention on Copyright have been adopted by an Act of the local
legislature. It is this Act of the local legislature alone which makes the
rules of the treaty applicable to an individual.
The following observations on the above theories may be noted:
(1) These theories are based on the positivistic theory of
international law.
(2) They are also based on the Dualistic theory of international law
(3) These theories maintain that the treaties are only promises,
whereas the rules of the State legislature are commands. Therefore,
unless the promise is transformed into a command, it will not be
applicable to the individual.
Criticism
These theories are criticised on the ground of artificiality. Every
treaty visualises certain legal consequences. It does not visualise
merely a theoretical promise.
DELEGATION THEORY
The delegation theory is an answer to the transformation theory
discussed above. According to this theory, there is no transformation
of a rule of international law when such rule is adopted by the legislative
machinery of the State. When a treaty is entered into, a power is
delegated to the State to determine the time and the manner in which
the provisions of the treaty are to be given effect to. Therefore, when a
State legislature enacts legislation in furtherance of the treaty, it is the
ontinuation of the treaty-making. It is another phase of a single act. It
is not an act of transformation.
STATE PRACTICE AND OPERATION OF INTERNATIONAL
LAW IN MUNICIPAL SPHERE
As there is considerable theoretical difference on the question of
the application of international law within the municipal sphere, it
would be fruitful to examine the practices of different States regarding
the subject, under the following heads:
A. British practice
B. American practice
C. Indian practice
D. Practice of other States.
A. BRITISH PRACTICE
In Great Britain, distinction is made
between (1) customary rules
international law, and (2) the rules laid down by treaties.
 THE RELATION BETWEEN INTERNATIONAL LAW 37
(1) Practice Regarding Customary Rulos of Intornatlonal Law
The practice of the British Courts regarding the rules of customary
International Law has undergone some change during the past two
centuries. An attempt is made here to trace the development of the
practice upto the present rules of practice.
() In the 18th century, customary international law was deemed
automatically to be part of the Common Law. This was known as the
incorporation doctrine or Blackstonian doctrine. Blackstone was of the
opinion that, the law of nations was part of the law of the land. This
incorporation doctrine was also supported by Lord Mansfield in Triqvet
v. Bath (1964), where he observed that "The law of nations, in its ful
extent, is and forms part of the law of England."
(i) In the latter part of the 19th century, a departure was made
from the above traditional view in A. v. Keyn (Franconia's case). The
majority of the Judges held that an English Court could not give any
effect to any rules of international law unless such rules were proved
to have been adopted by Great Britain in a positive manner it was
also held that if such rules of customary law conflicted with established
principles of the English Common law, an English Court was not
bound to apply it. It was necessary in this case to decide whether the
English Couri had jurisdiction over crimes committed by foreigners
within the maritime-belt, ie., the territorial waters extending to three
miles from the English coast. According to customary international
law, the English Courts had such jurisdiction. But the majority of the
Judges in the case held that as the English Court could not give effect
to rules of international law which were not adopted by Great Britain in
a positive manner, the English Courts could not exercise jurisdiction
over the foreigner.
[NOTE: By the Territorial Waters Jurisdiction Act of 1878, the
Parliament gave jurisdiction to the English Courts in such
circumstances. But at the same time, this case threw a lot of doubt on
the doctrine of incorporation.]
(ii) It was in 1905 that the Court of Appeal made an attempt to
return to the incorporation doctrine in WEST RAND CENTRAL GOLD
MINING CO. LTD. v. R. The facts of the case are as follows:
The West Rand Central Gold Mining Co. Ltd. was registered in
England, but was working gold mines in Transval. Two parcels of gold
belonging to the company were captured by the officals
of the
Government of South African Republic. Under the law, the Government
was bound to return the gold or pay its price. In the meanwhile, the
Boer War began in 1899. As a result of the War, South African Republic
Company
was conquered and annexed by the British Government. The
claiming return
presented a petition of right to the British Government
of the company was
of the gold or payment of its price. The contention
all the rights and
that the British Government had succeeded to law.
obligations of the annexed Republic under international
38 PUBLIC INTERNATIONAL LAW

In this context, it was necessary for the Court of Appeal to

xamine
the incorporation doctrine of international law. Lord Alverstone
the following observation: "It is quite true that whatever has ade
the common consent of civilized nations must have received ceived
of our country and that to which we have assented along
the ed
assent
with other
nations in general may properly be called international law
such, will be acknowledged and applied by our Municipal T and s
when legitimate occasion arises for those tribunals to decide ait s
to which doctrines of international law may be relevant."
In CHUNG CHI CHEUNG v. R., Lord Atkin laid
down the
mode.
law regarding the relation between customary
international lawdern
the English municipal law. In this case, the accused was cabin ar
on board a Chinese armed public vessel. hile the a boy
territorial waters of Hong Kong, he shot and killed the
vessel was in
chief officer of the ship. The vessel was rushed to Hong
captain and
Kong and+
the
offender was arrested. The murderer and the murdered the
nationals in the service of the Chinese Government.
were British
The Chinee
Government started extradition proceedings, but
refused. The accused was tried by a Hong Kong Court, extradition we vas
and convicted
and sentenced to death. The contention of the acCused
Kong Court had no jurisdiction to try him was
that the Hona
rejected. He went in
appeal to the Privy Council. Amongst other things, it was
for the Privy Council to decide whether rules of customary
necessary
international
law could be deemed to have been incorporated in
English Law which
was applicable to Hong Kong.
Lord Atkin observed in this case that the rules of international
law
must be treated to have been incorporated into the domestic law,
far as the rules of international law are not inconsistent with so
rules
enacted by statutes or finally declared by their tribunals.
Conclusion
The British practice regarding the operation of customary rules of
international law within municipal sphere can be summed up as follows:
(a) The customary rules of international law are deemed to the
part of the law of the land, and will be applied by British municipal
be
courts. This general statement is subject to the following qualifications:
(i) Such rules of international law
must not be inconsistent with
British statutes, whether the statutes were earlier or later
than the customary rule.
() Once the scope of customary rules has been determined by
British Courts of final authority, all British Courts are bound
by such customary rule- even though subsequentiya
different customary rule of international law develops.
(6) Acts of State by the executive, like annexation of territory or
declaration of war, may not be questioned by British municipal courls
on the ground that such acts involve a breach of international law.
 THE RELATION BETWEEN INTERNATIONAL LAW. 39

c) Acts like de jure recognition or de lacto recognition, which fall

within the Crown's Prerogative powers, are evidenced by a certTicale
of the executive. The Courts are bound by such certificates. It is not
open for the courts to examine whether such certificates are or are
not consistent with international law.
(d) When the wordings of the statutes are capable of two
interpretations, one consistent with international law, and the other
inconsistent with international law, the courts are bound to interpret
them in such a way that the Act of the Parliament is consistent with
international law. Of course, this rule of interpretation does not
apply it
the wording of a statute is unambiguous.
(e) International Law will be taken judicial notice of,
and it need
not be proved by experts as a foreign law is to be proved.
Prize Courts
The Prize Courts in England are in a different position from other
courts. They are appointed to apply international law; they are not
bound by executive ordersin council. But they are bound by the Acts
of the Parliament.
In the case of The Zamora, a leading case on the
subject, it was
held that the Prize Courts in England are not bound by the executive
orders in council which are in violation of international law. The facts
of the case are briefly as follows:
The Zamora was a Swedish vessel carrying cargo from New York
to Stockholm. She was stopped by a British cruiseron April 8, 1950.
and was taken to a British port. A writ was issued by the Procurator-
General on April 19, 1950, confiscating the ship and the cargo, on the
ground that more than half of the cargo was contraband. The owners
of the ship filed objections before the Prize Court against the order of
the Procurator-General requisitioning the cargo. pending adjudication
by the Prize Court. The objections were over-ruled and the requisition
was ordered. The Judicial Committee reversed the decision. While so
reversing, it was held that the Prize Court was not bound by the
executive order-in-council of the Crown, when such order-in-council
contravened the principles of international law.
(2) Practice as to Treaties
As treaties in England are executive acts, the coming into operation
of such treaties within Great Britain automatically might result in the
changing of the ordinary law of the realm by the executive. This might
be derogative of the legislative powers of the Parliament. Therefore, in
most of the cases, treaties will not be automatically operative, unless
specifically adopted by an Act of the Parliament.
or
The following kinds of Treaties require an Act of the Parliament
Parliamentary Assent to be operative:
(a) Treaties affecting the rights of private subjects:
Law or the
(b) Treaties involving modification of the Common
Statute Law;
 LAWw
40 PUBLIC INTERNATIONAL
additional powers in the Crown
(c) Treaties requiring vesting of
financial obligation on tho
the
(d) Treaties imposing additional
Government; Parliament;
to the approval of
(e) Treaties made subject
Treaties involving cession of British territories.
()
cases, however, no legislation is necessary:
In the following
agreements of an informal character which do
(a) Administrative ratification.
not require parliamentarybelligerent rights of the Crown.
(b) Treaties modifying the
B. AMERICAN
PRACTICE
international law may be classified inta
Here again, the rules of
rules of international law and rules laid down by treaties .
customary
International Law
Practice Regarding Customary
The American practice
regarding the operation of customary rules
is very similar to the
ofinternational law within the municipal sphere
British practice.
Treaties
Practice Regarding Rules Laid Down by
differs from the British practice.
The American practice here
two factors:
The American practice depends on
U.S.A., declaring that
(1) The provisions of the Constitution of the
land.
the treaties are the Supreme Law of the
(2) The classification of the treaties by the
American Courts into
two categories, namely, self-executing and
non-self-executing treaties.
A self-executing treaty does not require
legislation to be operative
within the municipal sphere, provided the treaty
is made within the
powers granted by the Constitution. A non-self-executing
treaty requires
legislation; the American Courts are not bound by unless
it necessary
legislation is enacted.
C. INDIAN PRACTICE
The practice of the Indian Courts seems to be very similar to that
to the
of the British Courts. Customary rules of international law,
extent they are not inconsistent with the Indian statutes, will be deemed
to be law of the land. Rules laid down by treaties will not become
automatically operative, unless they have been specifically adopted
by legislative enactments. It may be concluded that the propositionsS
laid down by the Privy Council in Chung v. A will also be applied by
Indian Courts.
Relationship between lInternal Law and Treaty Operation
As to the position of treaties in Indian law, two views exist. Basu
advances the view that no treaties which have not been implemented
by legislation are binding on the municipal courts, relying on Art. 2
of the Constitution. On the other hand, Alexandrowicz contends that
not all treaties must be implemented by legislation. He cites several
cases as authority for assuming that certain treaties only, such as
 THE RELATION BETWEEN INTERNATIONAL
LAW. 41
treaties affecting private rights, must
become enforceable. be enacted by legislation to
here is a general statement in Birma v. State of Rajasthan on the
point as follows: "Treaties which
form part of the law of
are part of international law do not
the land unless expressly made so by
legislative authority" But the
read in the context of the whole judgment,
this general observation cannot
all treaties require implementation.be taken as authority for the view that
The Supreme Court held in
State of
S.C. 517), that extradition arrangementsMadras v. C. G. Menon (1954
other States will not justify an extradition, made between Indian and
is passed. The facts of the case are unless appropriate legislation
the following: Mr. and Mrs. Menon
who came to India from Singapore were
arrest issued by a Singapore Magistrate, arrested under warrants of
and were produced before
the Chief Presidency Magistrate of Madras to
for being tried for alleged breach of trust.
be returned to Singapore
While deciding this case, the
Supreme Court came to the conclusion given above.
This relation between treaty-making power
and
further clarified in Maganbhai v. Union [(1969), AlR internal law is
S.C. 783]. The
position as laid down by the Supreme Court in
the above case can be
Summarised as follows:
The executive might incur obligations by entering
into treaties
etc.; but if such obligations do not restrict the
rights of citizens or
others, or modify the laws of the State, no legislation is
necessary. But
if such obligations do affect such rights or modify
such laws, legislation
would be necessary.
In India, there is also an obligation
on the Courts to interpret the
statutes as far as possible so as not to conflict with International Law
unless the wordings of the statute are clear and unambiguous. The
Calcutta High Court has supported this proposition in Shri Krishna
Sharma v. State of Bengal (1954 Cal. 591).
D. PRACTICE OF OTHER STATES
The practice of other States regarding operation of International
law within the municipal sphere is not uniform. The position can be
summarised thus:
(1) Many States treat customary rules of international law as
part of internal law, provided that such rules are not in conflict with
municipal law.
(2) A few States go to the extent of treating customary rules of
international law as part of the law of the land, even though they are
inconsistent with the municipal law. In such cases, international law
has an overriding effect.
(3) The practlce regarding the rules laid down by treaties varies
from State to State.
 42 PUBLIC INTERNATIONAL LAW

International Tribunals and the Operation of Municipal Law

The position can be summarised as follows:
(1) Before an international law tribunal, no State can plead
ad
Municipal Law or Constitutional Law as a defence to a charge tha
has broken international law. To this extent, the primacy of internati
law is observed.
(2) But this does not mean that the rules of Municipal Law
irrelevant in cases before international tribunals. The rules of munici
icipal
law become relevant in the following cases:
(i) Very often, a rule of Municipal Law may be in issue, as in t
the
case of denial of Justice by Municipal courts.
(i) The rules of Municipal Law may have to be considered
h
international tribunals to ascertain whether a customary r le
ofin ent and cumulative
finternational law has evolved by concurrent
practice of Municipal Courts.
(i) Rules of Municipal Law may very often be the source n
international law. It may be noted that, while discussina the
souroes of international law, a reference was made to the
general principles of law recognized by civilized nations.
In the FINISH SHIPS ARBITRATION CASE, giving an
award in
1934, regarding the dispute between Finland and Great Britain, the
Arbitrator observed: "As to the manner in which its Municipal Law is
framed, the State has under international law a complete liberty of
action, and its Municipal Law is a domestic matter in which no other
State is entitled to concern itself, provided that the Municipal Law is
Such as to give effect to all the international obligations of the State."
The implications of the above extract must be carefully noted:
(1) Under international law, no State can concern itself with the
municipal legislation of another State.
(2) Such municipal legislation must be such as to give effect to the
international obligations of the State.
3) There is a duty on every State to pass the necessary legislation
to fulfil its international obligations.
Concept of "Opposability"
In connection with the relationship between International Law and
Municipal Law, there is reason for a new concept known as the Concept
of Opposability. This concept means that in a dispute before an
International Tribunal, one State-party to dispute may seek to invoke,
as against the other party to the dispute, rules, institutions or regime
under its domestic law, in order to defeat the ground of claim set up D
the other party to the dispute.
The main basis for setting up of such claim of opposition iste
domestic rule, institution, etc. in accordance with International La
But if such domestic rule is not in accordance with the Internationa
Law, the domestic rule, institution or regime may not be so opposeo
 THE RELATION BETWEEN INTERNATIONAL LAW. 43
However, it must be noted that a domestic rule, institution or regime
which is not in conformity with International Law is not invalid in the
domestic sphere, because international law provides no procedure of
invalidation within the domestlc framework or a rule of Municipal Law.
Further, it must be noted that if a particular domestic rule is invalid
under the constitutional law of a State it cannot be "opposable" even
in International Law.
The position can be briefly stated as follows
(a) When a domestic rule, institution or regime is in accordance
with international law and valid under the constitutional law of
a State, the State may defeat the ground of a claim set up by
another State on the basis of such valid domestic law.
(b) If, however, such domestic rule, institution or regime is not in
accordance with an international law, it can never be pleaded
to defeat the claim of another State, but such rule, institution
or regime may be valid in the domestic sphere.
Further, it must be noted that in the Fisheries Jurisdiction cases
(United Kingdom and Federal German Republic v. lceland, 1.C.J.
Reports (1974) 3), the International Court of Justice held that the
lcelandic Regulation of 1972, representing an unilateral extension of
the lceland coastal fisheries limits to 50 miles, was not opposable
either to the United Kingdom or to the Federal Republic of Germany,
as the domestic rule of lceland was not in accordance with international
Law.
The treaty may be opposable by one State to another State in
respect of the latter's ground of claim, in the same way as with a rule
of domestic law. However, a treaty rule deemed to be non-opposable
as against one State may be validly opposable to certain other States.
For example, the International Court of Justice held, in North Sea
Continental Shel, that Article 6 of the Geneva Convention on the
Continental Shelf containing the equidistance rule for the delimitation
rule of the Continental Shelf common to adjacent countries was not
opposable to the German Federal Republic, as it had not ratified the
Convention. But in the case of another State which had ratified it, the
Article would be opposable.
According to the Advisory opinion of the International Court of
Justice on Legal Consequence for State of continued presence of
South Africa, in South West Africa (Namibia) even a determination of
the United Nations Security Council which correctly declares that a
certain situation is illegal may be opposable to all States, whether
members or non-members, that may seek to rely upon the legality of
the situation.
 CHAPTER5

STATES IN GENERAL
WHAT IS A STATE
principal subjects of internati
As seen earlier, States are tothe an exact definition of a"a
difficult give
law. Though it is rather Montte
a State are well-settled. The evideo
the characteristics of down the following ications of a State
Convention of 1933 lays possess
of international law, should
The State, as a person the
following qualifications:
Name the Four (a) a permanent population;
Criteria of state (b) a defined territory:
hood? (c) a Government; and
M.U. Dec. 2016 with other States
(d) a capacity to enter into relations
Amongst these four characteristics,
some writers like Salmond
namely, a defined territory i
maintain that the second characteristic, a
essential. There could be a State of nomadic people. However
not
of a defined territory.
modern States have this characteristic
According to Starke, the fourth qualification, namely, a capacity
Accordina
to
Define are"state". enter into relations with other States is the most important.
What the to him, it is this qualification which distinguishes a State from non.
essentials of a federation.
state? State entities like protectorates or members of
M.U. Nov. 2007 MICRO-STATES
in area, population
A Micro-State is an entity exceptionally small
and human and economic resources. Nevertheless, such State 8.25
a may

emerge as independent State. For example, Naru has an area of

Yet,
sq. miles, and its population is about 3,000 persons.
it attained
independence on January 31, 1968. Such States present peculiar a
of self
problem. There is no doubt that they can exercise the right
be
determination and attain independence. But can they claim to
members of the United Nations under article 4 of the Charter
of the
United
United Nations? A State, to be admitted as a member of the in
Nations, must have the ability to carry out the obligations contained
the Charter. Therefore, admission of such Micro-States, ith
their

limited resources and population, may expose them to the obligations

of membership which they may not be able to carry out. This may also
may
weaken the United Nations. Nevertheless, these Mcro-States
they
have some kind of association with the United Nations, wherein
For
will be entitled to the benefits of membership without the burden.
example, they will be entitled to the following benefits
i) Right to access to the International Court of Justice.
(m) Participation in an appropriate United Nations Regiona
Economic Commission.
(ii) Participation in some of the specialised agencies.
44
 STATES IN GENERAL 45
However, this absence of membership does not, in any way, mitigate
their international personality. They may have the power to enterinto
treaties with other States and they may also be summoned to attend
diplomatic conferences to adopt international Conventions.
DOCTRINE OF BASIC RIGHTS AND DUTIES OF STATES
Several writers, particularly the naturalists, favour the doctrine that
the States have certain fundamental righis and duties. So far as the
Naturalists are concerned, this is a basic tenet of their concept of
international law. These rights and duties are the direct outcome of
natural law. Apart from the Naturalists, in recent times, there are others
who also maintain the existence of this doctrine. These writers are
actuated with the motive of establishing universal standards of law and
justice in international relations. For example, the International Law
Commission of the United Nations prepared a draft declaration on the
to
rights and duties of States. Unfortunately, this declaration continues
be a draft, as it has not commanded general adoption.
Those who advocate the doctrine of the basic rights consider the Explain theof a
following rights of the States to be basic:
mandates
state.
(1) Sovereignty and independence of States. Apr. 2013
(2) The equality of States.
(3) The right of territorial jurisdiction.
(4) The right of self-defence and self-preservation.
There are also co-relative duties, some of which are:
(1) Duty of not resorting to war.
(2) Duty of carrying out treaty obligations in good faith.
(3) Duty of not interfering in the affairs of other States.
sOVEREIGNTY AND INDEPENDENCE OF STATESs
A State is supposed to possess independence and sovereignty
within its territorial limits over both its subjects and its affairs. But the
term "sovereignty" must not be understood in the way it was understood are the
in the 18th or 19th centuries. In these days of international interdepenWhat attributes of a
dence, the so-called sovereign power of the State is subject to various state?
restrictions. Today, sovereignty of a State can be defined as the Nov. 2013
laid down by
residue of power which it possesses within the limits
international law. But there are other writers who deny any legal
efficacy of international law, and consider sovereignty in its old sense
to be a reality.
The term independence of a State suggests the existence of certain
rights and certain co-relative duties. The following rights are associated
with the State's independence:
(a) The power exclusively to control its own domestic
affairs;
(b) The power to admit and expel aliens;
(c) The privileges of its diplomatic envoys in other
countries
within its territory;
(d) The sole jurisdiction over crimes committed
46 PUBLIC INTERNATIONAL LAW

The following are considered to be the co-relative duties:

(i) The duty not to perform acts of sovereignty on the territor
territory
another State. of
(i) The duty to abstain and prevent agents and subiecte
committing acts constituting a violation of another SOm
independence or terrirorial supremacy.
(ii) The duty not to intervene in the affairs of another State
Each of these duties are briefly discussed below.
() The Duty notto perform acts ofsovereignty on the territor
another State y of
The basic concept behind sovereignty of a State is that
States are under an obligation to abstain from oing any act inother
nature of exercise of sovereignty in the territories of other Sovers
States. For example, one State is under an obligation notto seon
agents to the territory of another State, to arrest persons aci
criminal offences against its laws. In BEHTHOLD JACOB'S case
point was emphasised. In this case, Berthold Jacob, a German refit
h
journalist, was living in Switzerland. He was kidnapped by Nazi Gate
agents and detained in Germany. Switzerland protested
violation of her independence and demanded the return of
against tha
Jacob. The
Germans had to return Jacob to Switzerland.
But in SAVARKAR'S case, the above rule was slightly
modified
Shri Savarkar, a British Indian subject, was charged with high treason
and was being transported from England to India in a British vessel
When the ship was at Marseilles in France, he escaped from
the ship
and reached the French soil. A French policeman caught him and
handed him over to the British authorities. Subsequently, the French
overnment demanded restitution of Savarkar, on the ground that he
had been delivered to the British officials, contrary to the rules of
international law. Ultimately, the matter was referred to the Permanent
Court of Arbitration. The Court held in favour of the British Government,
on the ground that there is no rule of international law to the effect that
a country irregularly taking custody of a suspected criminal in a foreign
country is under an obligation to return the prisoner to the country
where he was illegally apprehended.
The difference between Berthold Jacob's case and Savarkar's case
is that, in the latter, the State authority had irregularly arrested and
delivered the custody to the foreign government. Under such circum
stances, it was held that the State which first arrested and delivered the
person could not claim re-delivery of the person of the prisoner.
In Cortu Channel Case (Merits) (1949), the International Court o
Justice reiterated the principle that territorial sovereignty of a Sta
must be respected. In this case, the Court held that the British protective
minesweeping operations in Albanian territorial waters in the Cor
Channel in November, 1946, three weeks after the damage to Briis
destroyers and loss of life through mines in the Channel, wer
Violation ot Albania's sovereignty, notwithstanding Albania's negig
or dilatoriness subsequent to the explosion.
 STATES IN GENERAL 47
It may also be noted that the United Nations Security Council has
adopted the view that the clandestine abduction, from Argentina to
Israel, of Adolf Eichman, a Nazi war criminal, to be tried by Israel
Court, was an infringement of Argentine sovereignty.
(i) The duty to abstain and prevent agents and subjects from
committing acts in derogation of territorial soverelgnty of
another State
A State is under a duty to prevent, within its borders, political
terrorist activities directed against a foreign State. This duty resolves
itself into two aspects as the League of Nations Council held in
connection with the assassination at Marseilles by Mesidonian terroists
of the Yugoslav Monarch. The two aspects are: (a) Every State is
under a duty neither to encourage, nor to tolerate, on its territory, any
terrorist activity with a political purpose; and(b) to do all in its power
to prevent and repress terrorist acts of a political character.
(il) Duty not to interfere or intervene in the affairs of another State What do you mean
This is a very important duty, the breach whereof is often the by "non-interven
tion2 mars
subject-matter of disputes between different States. There is generally M.U. Nov. 2011
a duty not to intervene in the affairs of another State, but that does not Nov. 2013
mean that international law prohibits every kind of intervention. It is
necessary, therefore, firstly to understand what intervention is, and What s mon
secondly, to determine when international law permits intervention intervention?
and when it does not. Nov. 2012

What is Intervention
Hyde defines intervention as a dictatorial interference in opposition
to the will of a particular State, and almost always serving, by design
or implication, to impair the political independence of that State.
Therefore, to be intervention under international law, the following
three ingredients must be present:
(a) Dictatorial interference, Discuss: Non-
(b) in opposition to the will of the State affected, intervention.
M.U. May 2012
(c) in such a way as to impair the political independence of the
affected State.
Prof. Winfield has classified intervention into three groups:
(a) International intervention; What is Interna-
(b) External intervention; and tionai principle of
non-intervention.
(c) Punitive intervention. Dec. 2014
Apr. 2015
Intervention, when perm/tted under International Law
The following kinds of intervention are considered to be legitimate
under internaitonal law, and it would not be a breach of duty if a State
intervenes under any one of the following circumstances
(a) Collective intervention, pursuant to the Charter of the United
Nations
 48 PUBLIC INTERNATIONAL LAW

(b) Intervention to protect the rights, interests, and the persn.

sonal
safety of the State's citizens abroad;
(c) Self-defence, if intervention is necessary to meet a danoger
ger
of
armed attack
(d) Intervention in the affairs of a Protectorate under the stat..
dominion; te's
(e) If the State subject the intervention has been guilty of a
breach of international law in regard to the intervening StateSt oss for
example. if it has itself unlawfully intervened.
intervention and the United Nations Charter
The right of a State to intervene when another State has been auit
of a gross breach of international law is now subject to the obligatione
of
an intervening State under the Charter of the United Nations.
Before the Spanish Civil War of 1936-1938, it was considered
if a revolution or Civil War in one State that
caused danger or likelihood of
imminent danger to the safety of another State, then such State coul
intervenein the affairs of the State affected by the Civil War. But
appears now under the Charter of the United Nations that the valitiu
of this intervention is doubtful. For example, the joint íntervention hu
Great Britain and France in 1956 in the Suez Canal Zone, on the
ostensible ground that the conflict between Egypt and lsrael
would
threaten their vital interests, was considered to be in the nature
of
breach of the United Nations Charter.
Aquestion sometimes arises as to whether aiding a
de jure
government or giving aid to rebels amounts to intervention. According
to Hyde, interposition in pursuance of invitation or treaty of
guarantee
from either party to a civil conflict is illegal intervention. On
the other
hand, others maintain that the essence of intervention is
usurpation of
sovereignty. Therefore, offering of aid to the de jure government is not
by definition, intervention. However, giving aid to
the rebels would
amount to intervention, because it is an act of derogation of the
sovereignty of the established government.
"Monroe Doctrine
This doctrine was announced by President Monroe of
the United
States of America in 1823. This doctrine has the following three aspects:
(1) The American continent would
no longer be a subject for
colonization by an European power.
(2) The United States of
America had no interest in European
wars on European affairs.
(3) Intervention by European powers
in the affairs of the Ne
South American Republics would be regarded
as an unfriendly ac
This doctrine arose out of the
fact that Russia had obtained territory
in the North West of
the American continent. The first aspect o
doctrine was directed against it.
 STATES IN GENERAL 49
The third aspect of the doctrine was directed against intervention
by European powers to restore the authority of Spain in Latin America.
The third aspect of the doctrine is a very important aspect. This
aspect of the doctrine has a very interesting history, which can
traced in three stages:
(i) Originally, as already pointed out, this doctrine was developed
as a protest against European interference in the continent of America.
(i) Until the end of the 19th century, this aspect of the doctrine
was used to support the claim by the United States to intervene in any
part of the American Continent to the exclusion of European
interference. It can be seen how, during this phase, the doctrine which
was originally a protest against intervention, was converted into a
defence of intervention by the United States of America into the affairs
of the South American Republics.
(ii) The third phase of the doctrine developed after the First World
War. As a result of the better development of relations between the
United States of America and the other American States, this doctrine
came to be used as a ground of solidarity of the American Continent.
Various inter-American security arrangements were entered into, and
the doctrine was taken very near to its original purpose.
THE DOCTRINE OF EQUALITY OF STATES
The equality of States before international law is a quality derived
from their international personality. According to the traditional doctrine,
Write a short note
States are equal as international persons in spite of inequality in their on: Sovereign
size, population, power, degree of civilization, etc. This doctrine also equality of Sætes.
finds recognition in the Charter of the United Nations. Article 1 refers M.U. Ap. 2005
to 'respect for the principle of equal rights, and Article 2 provides that Nov. 2006
Apr. 2008
the organisation 'is based on the principle of the sovereign equality of
Apr. 2013
all its members.'
This doctrine, though modified in many respects, has the following
four important consequences:
(1) Whenever a question arises, which has to be settled by consent
every State has a right, unless it is agreed otherwise, to one vote only.
(2) Legally, the vote of the weakest and the smallest State, unless
otherwise agreed, has as much weight as the vote of the largest and
the most powerful.
(3) According to the rule, parin parem non habet imperium, no What do you mean
by the principle of
State can claim jurisdiction over another. For example, though States soverign equality?
can sue in foreign courts, they cannot, as a rule, be sued, unless they2 marks
voluntarily submit to the jurisdiction of the Court concerned. M.U. Apr. 2009
(4) The Courts of one State cannot, as a rule. question the validity Apr. 2010
Apr. 2011
or legality of the official acts of another soverign State, provided such
acts fulfil the following conditions:
50 PUBLIC INTERNATIONAL LAW

(a) Such acts take effect within the sphere of the latter
jurisdiction; and
tate'sown
State.
(b) Such acts are not in themselves contrary to internationa
national
LIMITS ON THE DOCTRINE OF EQUALITY: law
This legal equality of States must not be confused with
e
equality. The vast differences between States as regards their
ic
do result in political inequality: politically, States are in no Wer
equal. anner
Even legally, the above consequences of the equality
of Stata.
tes, as
stated above, are modified in the following two respects:
(1) Equal Powers of Vote
This right was interpreted to mean that all decisions in
conno
with multi-lateral treaties should be arrived at by the particina
States. But this rule of unanimity obstructed the progress of internati
legislation. Even small tates could hold up important ional
advances
international affairs. In the world of politics, "The doctrine
of equalit
has become instrument of tyranny against the majority". Therefor
the present tendency is to adopt the procedure of voting by majority
majori
rather than by unanimity.
This power of equal votes is also modified in the working
of the
Security Council of the United Nations. The permanent
members of
the Security Council enjoy a right of veto regarding the decisions
of
the Council in matters of substance.
(2) Equality of States
Though theoretically, all States are equal in status, yet diplomatic
representatives of certain powers are designated as Ambassadors
and enjoy some higher privileges, while the diplomatic representatives
of other States are designated as Ministers only.
Rules of Neighbourly Intercourse between States
The principle of the absolute independence and equality of States
is, of late, subject to one important qualification. Though a State has
absolute independence, it should not permit the use of its territory for
purposes injurious to the interest of other States. For example, it was
recognised in the ARBITRATION CASE (1931) that a State is under a
duty to prevent its territory from being a source of economic injury
a neighbouring territory.
The same principle is to be found in the Corfu Channel Case
(Merits) 1949. In this case, the International Court of Justice held that
the Albanian Government, being aware of the existence of a mine
filled in its teritorial waters in the Corfu Channel, was under a duty to
notify and warn approaching British Naval vessels of the danger. lt
was further held that as the Albanian Government failed in such duty
it was liable to pay compensation to the British Government for damag0
caused through exploding mines. The basic principle is summed up
 STATES IN GENERAL 51

the International Court of Justice: "Every State is under an obligation

not to knowingly allow its territory to be used for acts contrary to the
rights of other States."
This principle is also accepted in the resolution of the United
Nations General Assembly passed in 1947. This resolution condemns
propaganda provoking or encouraging threats to peace or acts of
aggression.
PEACEFUL CO-EXISTENCE
Associated with the principle of neighbourly obligations is the
recently developed concept of Peaceful co-existence'. The Preamble
to the Treaty of Tibet, signed by India and the Peoples Republic of
co-
China on April 29, 1954, lays down the following five principles of
existence. They are
(1) Mutual respect for each others' territorial integrity and
sovereignty.
(2) Mutual non-aggression.
(3) Mutual non-interference in each others' affairs.
(4) Equality and mutual benefit.
(5) Peaceful co-existence.
This doctrine of peaceful co-existence has found expression in a
number of treaties and international declarations, as for instance, the
Declaration adopted by the U.N. General Assembly on 14th December,
1957, and the Final Communique of the Afro-Asian Conference held
in Indonesia in April 1955.
However, there is no general agreement among writers and
publicists regarding the scope of the doctrine. Some interpret it to mean
that the doctrine of peaceful co-existence ensures that States belonging
to different political or economic systems should respect each others
sovereignty, and should not seek to impose their system or ideas upon
other States. Others go a step further and extend the doctrine to cover
the topics of disarmament, self-determination and even duties of active
co-operation in economic, cultural and other fields.
It may be noted that there is nothing novel in most of the principles
which are proclaimed as norms of peaceful co-existence, and that
many of the principles of co-existence have been already laid down in
the Charter of the United Nations and in the constitutions of several
international organizations.
NUCLEAR EXPLOSIONS
There is another controversy regarding nuclear explosions. One
opinion maintains that conducting such nuclear experiments might
cause pollution of the atmosphere on account of the radioactive fall-
soverelgntyY
Out. The second view is that it is a necessary corollary to the
of the State, and that the State is justified in conducting such
experiments in the interest of its security and defence. Probably, the
 52 PUBLIC INTERNATIONAL LAWv
proper solution to this question is to concede such rights to the
provided those States give due warning of and take reasonable
States
care
prevent any danger. to
DIFFERENT KINDS OF STATES
For the purpose of the study of international law, the classifin.
the States from the point of view of their internal structure is neceson sary. Buof
there are certain special cases where the nature of the State might be elevant
But
to determine its status in international law. Such special cases are discusser
r.
below.
No. 16 Confederations
te under Aconfederation is a union of several independent States bound t.
gether
national by an intenational agreement. Aconfederation is not a State for the pu
of international law. The member States alone are the membersse
rpose
t kinds of mbers of the
international community.
Nov. 2007
Federal State
Apr. 2018 A Federal State is different from a Confederation, as a Federal
exercises jurisdiction over the territory of member States directly I
State
simultaneously along with the member States. The Confederation ha an
such direct jurisdiction. For purpose of international law, it is the Federa
State which is a real State. The member States have no international stat
The only peculiar case is that of the U.S.S.R., which professes to he.
Federation but at the same time the member States of the U.S.S.R, likea
Ukrania, Bylo-Russia, maintain international status under the Constitution
of the U.S.S.R.
Protected and Vassal States and Protectorates
is a Vassal Avassal State is one which is completely under the suzerainty of another
State. Internationally, its independence is restricted so much, that it can
ec. 2019 hardly be called "independent
The case of a Protectorate or a protected State arises in practice when
MCQ No. 17 a State puts itself, by treaty, under the protection of a strong and powerful
State, so that the conduct of its most important international business and
decisions of high policy are left to the protecting State.
Protectorates are not based on any uniform pattern. Each case depends
on its special circumstances and more specifically on:
(a) the particular term of the treaty of protection; and
(6) the conditions under which the Protectorate is recognised by third
Powers as against whom it is intended to rely on the treaty of
protection.
Although not completely independent, a protected State may enjoy a
Sufficient measure of sovereignty to claim jurisdictional immunities in the
territory of another State (perLord Finlay in Duff Development Co. v. Kelantan
Govenment. (1924) A.C. 797, at p. 814). It may also stil remain a State
under international law. (Case concerning Rights
of Nationals of the Uniteu
States of America in Morocco, [I.C.J. Reports (1952), 176)
 STATES IN GENERAL 53
Condominium
A condominium exists when two or more external poers exercise
joint dominion over a particular territory. An example is that of the New
Hebredes. In a condominium, the external powers exercise separate
iurisdiction over its own respective subjects. This must not be mistaken
for division of a country into separate zones. In the case of the separate
zones, a territory is divided into separate parts, and separate States
exercise their authority over each part. There is no joint exercise of
dominion as in the case of a condominium.
Commonwealth of Nations
The (British) Commonwealth of Nations is neither a super State nor
a Federation;
it is just an association of free and equal States. The
Commonwealth does not exercise any direct jurisdiction over the
territory of its member States. lt operates primarily through these States.
So far as the member States of the Commonwealth are concerned
they are fully sovereign States in every sense. In the field of foreign
affairs they enjoy unlimited autonomy. They enter into treaties
independently. Even the members of the Commonwealth may enter
into treaties among themselves. They enjoy rights of separate
legislation. A High Commissioner representing one member State in
the territory of another enjoys almost the same position as that of the
diplomatic envoy of a foreign State. These member States can also be
subjects of international disputes.
Trust Territories
The Charter of the United Nations had introduced a new system of
trust teritories. However, since most of these trust territories no longer
have this status, this topic today assumes academic interest only.
Under Chapter XIl of the U.N. Charter, an International Trusteeship
System was established for supervision of "trust territories" placed
under the U.N. by separate agreements. This system applied to:
(0) territories held at that time under mandates established by

the League of Nations after World War I;

(i) territories detached from conquered enemy States after World
War ll; and
(i) territories voluntarily placed under this System by the States
responsible for their government.
The Charter provides that the trust territories are to be administered
pursuant to the trusteeship agreement under the supervision of the
United Nations. The basic object of the trusteeship system is the
advancement of the people of the trust territories and their progressive
development towards self-government or independence.
Under the Covenant of the League of Nations, the former enemy
on their own feet, were under the
territorles, which could not stand
mandate of certain responsible States. Those responsible States were
 INTERNATIONAL LAW
PUBLIC
54
supervision and the ultimat.
territories under the
to administer the
The Charter of the United Nations convle nverted
authority of the league. into Trust Territories.
SUch mandatory
territories
Africa, which was nder
was that of South West
One such territory Africa. South Africa did not followsthe
Union of South
the mandate of the powers, and refused to allow the terito
example of other mandatory lerritory. South Africa ale
Africa to become a rust
of South West Natione
refused to recognise the
supervisory authority of the United ns.
status of the Territory of South est Africa and the
The questions of the
obligations of South Africa were referred to the International Court t
majority of the Court held that the Union
Justice for determination. The
of South Africa was under
no legal obligation to place the mandatory
system. But the Union of South West
territory under the Trusteeship
Africa was definitely bound to administer the
territory under the
which was a successor to
supervisory authority of the United Nations,
the League of Nations. Further, the Court held in the South West Africa
case (2nd phase) that individual members by themselves had no legal
claim or standing to enforce the terms of a mandate.
In all, eleven territories were placed under the system. However,
almost all of them have, by now, attained indepdendence or have
merged with a neighbouring State.
TRUST TERRITORIES AND SOVEREIGNTY
The administering countries do not claim any title to sovereignty
Very often, the question of where soverignty does reside is discussed
by academic writers. There is no agreement as to whether it resides in
the United Nations or elsewhere. At the same time, it must be noted
that though the administering powers do not enjoy sovereign rights
over the trust territories, yet they have wide powers and responsibility
both regarding its financial administration and defence matters.
Lastly, the Charter provides that when there is a dispute between the
administering power and a member State of the United Nations regarding
the Trust, it may be submitted to the International Court of Justice.
The evolution of the trusteeship and details of its administration
are discussed later in the Chapter on the United Nations.
STATUS OF NON-SELF-GOVERNING TERRITORIES UNDER THE
UNITED NATIONS CHARTER
The United Nations Charter confers a special status on colonial
territories, possessions and dependencies under the general
description of "Non-Self-Governing Territories". The members of the
United Nations administering such territories are expected to treat the
interest of the inhabitants as paramount under the Declaration of
December 14, 1960. The members accept as a sacred trust the
obligation to promote their well-being to the utmost.
They have also
 STATES IN GENERAL 55

undertaken to develop self-government, and to assist in the evolution

f free political institutions. They are also bound to keep the Secretary
General of the Ur ed Nations informed about the conditions in these
territories. This information is now placed before the Committee on
Information from Non-Self-Governing Territories. This position is the
oiutcome of the Assembly's Declaration on December 14, 1960 anda
General Assembly Resolution passed in December 1961.
NEUTRALISED STATES
According to Starke, a neutralised State is one whose inde
integrity are guaranteed
nendence and political and territorial Great Powers, subject to
Dermanently by a collective agreement of the
up
the condition that the particular State concerned agress not take
to
to defend itself, and will never
arms against another State, except
which may compromise its impartiality or
enter into treaties of alliance
lead it into war.
to safeguard peace by
The object of neutralisation is
powerful adjacent States,
(a) protecting small States against
power; and
thereby preserving the balance of
(b) protecting and maintaining the
independent "buffer" States
lying between Great Powers.
must be carefully noted:
The following characteristics of neutralisation
(1) It is a collective act.
give its consent.
(2) The State to be neutralized must
(3) Neutralization is a permanent status.
NEUTRALISATION AND NEUTRALITY
is the
Neutralisation must not be mistaken for neutrality. Neutrality
its attitude towards
status of a State which has unilaterally declared
it is temporary. A State can end
an existing hostility. In its very nature,
on the other hand, is the
its neutrality at any time. Neutralisation,
it is permanent.
result of a collective agreement of other States and
Neutralisation is also different from "neutralism", which
means the
defensive alliances.
policy of State not to involve itself in any conflicts or
XVIll for the concept
(Note: A reference may be made to Chapter
of a neutral State.)
OBLIGATIONS OF NEUTRALISED STATE
The obligations of a neutralised State are:
itself;
(1) Not to engage in hostilities except to defend
in the risk of hostilities
(2) To abstain from agreements involved
but not from non-political conventions;
a war between other
(3) To obey the rules of neutrality during
States; and
(4) To defend itself against attack by all the
means at its disposal.
 INTERNATIONAL LAW
PUBLIC NEUTRALISA
55 GUARANTEEING SATION
OBLIGATIONS OF THE STATE
neutralisation has
guaranteeing territory ane
A State any aftack on the heutralised
from territory ie
(1) to abstain force, when the neutralised ed
(2) to intervene
by
State. Austria are instan
ances of
by another
world, Switzerland and
In the modern
neutralised States.SELF-DETERMINATION OF PEOPLES AND
RIGHT OF DEPENDENT ENTITIES
self-determination of peoples and
dependent entities
en
The right of by the following:
expressly recognised Resolution of
has been Nations General Assembly's ot Self
(a) The United December 12, 1958.
Determination of
Granting of Independence of Colne olonial
(b) The Declaration on the
Countries and Peoples,
December 14, 1960.
Additionaly, the two draft
covenants on Human Rights still une
consideration by the Assembly, also recognise the right of self
determination.
However, some States have denied
that such a right of self.
determination exists. Nevertheless,
it must be noted that, in the
of the right of sel
few years, there has been
greater recognition
transferring full powers to the peonle
.
determination. The process of
non-selk.
the dependent territories has gained acceleration. Several
governing territories particularly in Africa, have been rapidly
emancipated. The General Assembly, by its Hesolution of November
27, 1961, has established a Special Committee of Seventeen:
implement the Declaration of 1960.
However, there is some doubt as to what the expression selt
deternimation" itself means or includes. The exact meaning of the
process of self-determination is also not clear as to which communities
of human beings constitute "people" for the purpose of enjoying the right
of self-determination. The present outcome is that the right of sel
determination has been in the process of becoming a part of
international law, whereas no such right was recognised prior to 1958
soVEREIGNTY OF PEOPLES AND NATIONS FOR THEIR
NATURAL WEALTH AND RESOURCES
The United Nations General Assembly Resolution of December 21
1952 has recognised the principle of "economic self-determination", by
affirming the right of peoples freely to use and exploit their natural
wealth and resources. The real obejct of the Resolution, it appears, is
to encourage non-developed countries to make use of their resources
as a proper foundation for their independent economic development
Unfortunately, there have been attempts to misinterpret
the purpose o
the Resolution by using it to justify unrestrained exproprlau
 STATES IN GENERAL 57
disregarding contractual obligations. There are also attempts to use the
Resolution to support extravagant claims to resources of high seas.
The Resolution of 1952 has been followed by the establishment of
a Commission. The Commission has since presented its report. The
Assembly has decided, by a Resolution of December 19, 1961, that
the United Nations should continue its work in the field of making a full
survey of the status of the permanent sovereignty of peoples and
nations over thelr natural wealth and resources.
This has been further elaborated by the Resolution of General
Assembly, passed on November 25, 1966, and it has been also affirmed
in Article 1 of the Covenant on Economic, Social and Cultural Rights
of December 1966. This convenant fully concedes the inherent right of
all people to enjoy and utilise freely their natural wealth and resources.
ASSOCIATION OR GROUPING OF STATES
Since the end of the Second World War, the association or grouping
of States for general or particular purposes has rapidly increased,
Under the Charter of the United Nations, States are free to enter into
such arrangements. The purpose of such associations or groupings
have been generally one of the following:
(a) Economic
(b) Political
(c) Mutual defence and security of the members
(a) The Associations formed for economic purposes are illustrated
in the following:
(1) European Economic Community (Common Market) established
by the Treaty of Rome of March 25, 1957.
(2) The European Free Trade Association (EFTA), established by
the Stockholm Convention of November 20, 1959.
(3) The Latin American Free Trade Association (LAFTA) established
by the Montevideo Treaty of February, 1960.
(b) Political Associations of States are illustrated in the
Commonwealth and the Organisation of American States (OAS).
(c) Examples of Union or alliances for mutual security purposes
are:
(1) The North Atlantic Treaty Organisation (NATO), formed in
accordance with the North Atlantic Security Pact of April, 1949.
(2) The South East Asia Treaty Organisation (SEATO), established
under the South East Collective Defence Treaty, signed on
September 8, 1959, etc.
The impact of these Associations on internatioinal law is yet to be
clearly felt
 CHAPTER 6

RECOGNITION

The States which are members of the internatlonal comm nmuni

change from time to time. Old States disappear or unite with
sher
States to form a new State or disintegrate and split into
into several
severalenew
States. Quite often, though a State exists, the old Government inn
Government. the
State might disappear and give place to a new Government.
This
change in the number and nature of States, and also a chang
Government within the States, is a matter of concern to
other Stato
and other Governments. A new State becomes an international Dero
only by recognition by other States. This problem of recognition
problem of immense importance in international law. At the same ti
it is a complicated problem.

Firstly, there are differences of opinion amongst international jurist

regarding the theoretical consequences of recognition. s
Secondly, as the present State practices go, recognition is more
question of policy, rather than of law. It is dictated more by the diplomatiea
needs than by the force of law.
Thirdly,there are various categories of recognition. As already
pointed out, there could be the question of recognition of the State
and recognition of a Government. Similarly, there could also be either
de jure recognition or de facto recognition of States and Governments.
Besides this, there could also be recognition of certain status like that
of Insurgency and Belligerency.

HOLY SEE:

What is Holy See? It refers to Pope being the Bishop of Rome. It is the supreme
Apr. 2015 organ of the Catholic Church together with the offices of the Roman
Curia. Holy see is the sovereign state having population of about
1000 persons residing therein since they are the office bearers in
the land territory of about half a kilometer known as Vatican. Vatican
is represented at United Nation as an Observer and it cannot vote.
Generally the state is called by the name of Vatican City with the
What is meant by incumbent of Holy
"recognition*? See as its Head.
(2 marks)
M.U.NOV. 2011 WHAT IS RECOGNITION
OF STATES
Nov. 2015
Fenwick defines recognition as formal acknowledgement by the
Dec. 2016
Anr 2018 existing members of an international community
of the internationa
Jan. 2019 personality of a State or political group,
not hitherto maintaining official
58
 RECOGNITION 59
relations with it. The Institute of International Law has defined recognition hat is recogniton
Wrlte ypes of
as a free act by which one or more States acknowledge the existence of a recognithon. Discuss
defined teritory of a human society, politically organised, independent of with help as
any other existing State, and capable of observing the obligations of
international law, and by which they manifest therefore their intention to
me M.U. Nov. 2012

consider it a member of the international community." What is recognition?

These two definitions suggest two elements of recognition: (1) It implies Xplain the
to
that the new political community possesses the require-ments of a State. Recognition of states
in Intemational La
That means it recognises the fact that the new State possesses the following M.U. Nov. 2015
qualifications: (a) a permanent popu-lation; (b) a defined territory: (c) a Dec. 2016
Government and (d) a capacity to enter into relations with other States. Dec. 2019
(2) And it is, therefore, a normal subject of international rights and
duties.
Recognition of Governments
Recognition of a Government, on the other hand, implies that the Define Constitutive
thearyofrecognition.
recognised Government is, in the opinion of the recognising State, qualified M.U.Apr. 2013
to represent an existing State. Dec. 2016

THEORIES OF RECOGNITION
There are two main theories of recognition:
(1) The Constitutive Theory, and
(2) The Declaratory or Evidential Theory

(1) THE CONSTITUTIVE THEORY

According to this theory, it is the act of recognition alone, which creates Give 2 theories of
statehood, or which clothes a new Government with any authority or status ecognition of stafes
M.U. Dec. 2014
in the international sphere. It is the process by which a political community Nov. 2015
acquires personality in international law by becoming a member of the family
of nations.
It is said that Hegel was the founder of this theory. There are other Explain the theories
of recognition
writers who support this theor y. According to these writers, a State comes
M.U. Apr. 2010
into existence only when it is recognised, and not before. Anzilotti maintains Nov. 2010
that the State, as a subject of international law, comes into existence only May 2017
with the conclusion of the first agreement as expressed by the treaty of Apr. 2018
Dec. 2019
recognition. Such a recognition is reciprocal and constitutive, creating rights
and obligations which did not e xist before. Oppenheim attempts to solve
the confusion between natural status, which is beyond recognition, and
membership of the international community, which depends on recognition.
 60 PUBLIC INTERNATIONAL LAW

Criticism of the Constitutive Theory

What is meant by
recognition'*? Many writers of international Law find fault with the Constitutivo
e
plain in detail Theory. The theory is criticised mainly on the following grounds:
e theories and () Firstly, the Constitutive Theory could hardly be applied to a
ms of
gnition. situation where a new State is recognised by some States, and
U. Apr. 2011 not recognised by others. In such cirCumstances, one cannot
Apr. 2015 say that the State is partly created and partly not created
(ii) Secondly, if the Constitutive Theory was valid, the unrecogni.
sed State would have no rights or duties at international law
This is not true.
(ii) Thirdly, if, according to the Constitutive Theory, a new State
is created only as a result of a treaty of recognition, the treatv
itself could not be mutual, as treaties in international law can
be entered into between States only. This reciprocity would
be lacking. Therefore, the Constitutive Theory fails to explain
the nature of the treaty of recognition.
Write a short note (iv) Fourthly, the Constitutive Theory cannot explain the
on: Theories of retrospe-
ctive effect of recognition. One of the effects of recognition.
recognition.
M.U. May 2012 as will be discussed later, is to make the consequences
recognition applicable to prior transactions. I, accroding of
to
Constitutive Theory, a State has come into existence only
as
a reuslt of recognition this retrospective effect of recognition,
applicable to a time prior to recognition, cannot be justified.
(2) THE DECLARATORY OR EVIDENTIARY THEORY
According to this theory, statehood or the authority of
a new
Government exists even prior to and independent of recognition.
Recognition is merely the declaration of an existing fact. It is just
the
evidence of the State having already come into existence. According
to this theory, recognition is a political rather than a legal
act. Its sole
aim is to secure the establishment of ordinary diplomatic
relations
between the recognising and the recognised States.
The bulk of international practice supports the Evidentiary
of recognition. The Evidentiary theory is theory
also supported by the following
rules of international law:
(1) When a question arises as to
the date on which a State came
into existence, the material date will be
the date on which the new
State fulfilled the requirements of statehood-
and not the date when
treaties with other States recognising it came into
operation.
(2) As already pointed out, recognition
dating back to the day when the new has retrospective effect,
State fulfilled the requirements of
statehood.
 RECOGNITION 61

(8) The Declaratory or the Evidentiary theory is consistent with

she rule of
international law that there should be continuity of
or governmental authority and that there should
State sovereignty
he n0 gap of time during which a State or Government is not in
existence.
(4) As there is no duty in international law imposed on old States,
is no corresponding right to a new State to be
and also as there
recognised, the act of recognition might be withheld for political reasons.
H the Constitutive theory
were true, the new State would not come into
a travesty of truth.
existence at all. This would be
difficult to disregard
For the above-mentioned reasons, would be
it

theory. However, it appears that the truth lies some-

the Declaratory Hecognition is constitutive for
where between these two theories.
aspects.
certain purposes, whereas it is declaratory other
in

VIEWS OF LAUTERPACHT
theory, as
Judge Lauterpacht took the view that the Constitutive
it, was more in accordance with the practice of States
he explained
traditional constitutive theory in
and with law. He differed from the
considering that recognition was not an act of policy, but was an act
it

of law. The main principle of his theory

was that there was a duty on
new Government fulfilling the
each State to recognise a new State or
to him, whether a
legal requirements of the statehood. According
necessary
particular political community had acquired the qualifications
law, and once the political
for attaining statehood was a question of
community has attained those qualifications, there is a duty imposed
is Constitutive.
on the other States to recognise it. Therefore, recognition
Criticism
it difficult
Starke, commenting on the views of Lauterpacht, finds
to accept them, though he concedes that Lauterpacht's thesis would
be ideal and it would remove a lot of legal and political embarrassment.
Yet, unfortunately, Lauterpacht's thesis is not supported by State
practice. State continue to treat recognition as an act of policy rather
is fully evidenced in
than as an act of law. This attitude of the States
like lsrael
the divergence of practice regarding recogntion of countries
and the communist Government of China.
Further, Starke points out another fallacy in the reasoning of
new
Lauterpacht. If there is a duty imposed on the State to recognise the
community of a new Government, how could this duty be enforced? And
as every duty pre-supposes a right, where is this right located? Is it in the
new State claiming recognition or in the international community gener
ally, and how could such claim of right be made effective? Starke
points
Out that the thesis does not answer these questions satisfactorily.
On the
 62 PUBLIC INTERNATIONAL LAW

other hand, as the State practices go, recognition is treated as a matter at

vital policy, and each State is entitled to decide for itsel. Recognition is
it
is
act in State practice. Hecognition is a lega
considered to be an obligatory
recognition, the recognisin
act only in a qualified sense. While granting fo be recognisee
States satisty themselves that the State or Government sed
qualifications, though they
at least possesses the required legal may
withhold recognition for political reasons.
MODES OF RECOGNITION
implied. Express recognition
Write a short note Recognition can be either express or
on or declaration clearly announcing the
Modes of takes place by a formal indication place throuah cIs
recognitlon. intention of recognition. Implied recognition takes
M.U. Nov. 2011 to recognition, leave no doubt as
which, although not referring expressly
is made solely when th
to the intention to grant it. The implication
to establish a formai
circumstances unequivocally indicate the intention
relation with the new State
or the new Government. The implication
are the
of a State towards the
Vs modes o recognition is not to be inferred lightly. by any act
tion? int
Nov. 2013 new State, unless the act of the State indicates unequivocally the ten
tion of the recognising States to recognise the
new State. For example.
is accorded to the new
should not be inferred that implied recognition
in an international confet
State, simply because one State participates
ence in which the unrecognised entity takes part, or the conclusion ofa
in

multi-lateral treaty 1o which that entity is a party.

reco
Oppenheim enumerates the legitimate occasions for implying
nition. According to him, the following are such occasions
(a) the conclusion of a bilateral treaty, such as a treaty of commerce
and navigation, regulating comprehensively relations between
the two States (as for example. the Treaty of Commerce signed
between Nationalist China and the United States in 1928):
(b) the formal initiation of diplomatic relations;
(c) the issue of a consular exequatur by the admitting state for a
consul of an unrecognised state
(d) in the case of recognition of belligerency, a proclamation of neu-
trality or some such unequivocal act.

Recognltion Subject to Condition

Sometimes, there is relerence to conditional recognition in interna
tional law. But the term conditional recognition must be clearly under
it is just a
stood. Here, the condition is not a condition subsequent;
condition collateral. In the case of a conditional recognition, failure to fut
the condition by the recognised State does not annul the recognition.
Recognition once given cannot be withdrawn. The breach of that cond
tion on the part of the recognised State will be treated as a breach
o
 RECOGNITION 63

international law, and it may entitle the aggrieved State to the various
remedies known to international law against breach of an international
obligation.
But States have very often used the grant of recognition as a means
new States or the Governments seeking recogni-
for exacting from the
or undertakingor stipulation. For example, the
tion, some guarantee
Berlin Congress of 1878 recognised Bulgaria, Rumania and other States
not impose any religious disabilities
on condition that these States should
United States of America took an
on any of their subjects. Again, the
undertaking from the New Bolivian Government, when recognition was
Govern
granted in 1937 to the new Government, to the effect that the
ment would respect private property. Though Lauterpacht denounces
weapon of recognition" and as
such a practice asa "spurious use the it to
of
is be noted that the weight
contrary to the true function of recognition,
insistence of each State to consider its
of State practice, as well as the
conditional recognition.
own interest, has justified this kind of

Collective Recognition
different States or by
Recognition might be given individually by
This latter method has some
some collective international act.
embarrassment that might be
advantages. and it often avoids the
some States recognise it
caused to a new State or Government when
and some do not.
Government
Recognition of a Head of a State or a New
with recognition of
Recognition of a new State must not be confused
old State. Recognition of a change
in
a new Head or Govermment an
of
Government, or of a change in the
the Head of a State or in the form of its
title of an old State is different from the
act of recognition of the State
of the State itself.
itsef. In fact. it has nothing to do with recognition
If a foreign State refuses to recognise a new head
or the new Gov
thereby its interna-
ernment of an old State. such old State does not lose official inter
It may be that by such non-recognition,
tional personality. Generally, when a
course between the two States may not be possible.
into existence in a formal
new Government of an existing State comes is
continuous way, recognition of such Government by other States
and
purely a question of formality.
recognition of a revolutionary
But in the case of a revolution, the
practically impossible to lay
Government is a serious question. Though is
it
recognition of new Governments
down strict legal principles regarding
principles can be stated.
established by revolutions, yet certain basic
recognising States that the
To begin with. care must be taken by the
stability. Sometimes, premature
new Government has the prospects of
Governments may be treated as an
recognition of the new revolutionary
 64 PUBLIC INTERNATIONAL LAWv

unfriendly act by the legitimate Government. Care also has to be take

taken
avoid such possibilities though, so far as modern practices
o, goo
to
mere
recognition of the revolutionary Government, without any display of
towards the legitimate Government by the recognising States, may forc
considered as an unfriendly act or as breach of international la
nee
practice, to avoid these difficulties, the recognising States alwavs
de facto recognition prior to granting de jure recognition. grant

Recognition: Whether recoverable

As a rule, recognition de jure, once given, is irrevocable. But it m
be noted that recognition is a declaration on the part of the recoanis must
When can the recog- State, that a foreign community or authority is in the possession of
nition of govemment necessary qualifications of statehood or of govern-mental
be withdrawn? capacity as
the case may be. These qualifications may not necessarily
(2 marks) endure for all
time. A State may lose its independence. A GOvernment may
M.U. May(2019
2019
effective. In such cases, withdrawal of recognition is
cease to h
both permissible and
indicated. The Institute of International Law, while laying
down, in a
resolution adopted in 1936, that recognition de jure of a
State is irrevocable
qualified that rule by adding that such recognition ceases
to
case of the disappearance of one of the essential elements have effect
in
of statehood
As noted above, in the case of de jure recognition,
though there may
be severance of diplomatic relations, the recognition will
not be lost and
the status acquired in the international community will not
be destroyed.
For example, Great Britain recognised the
Soviet Government de jure in
1924. Subsequently in 1927, it broke off relations,
and in 1939, participated
in the expulsion of the Soviet Union from
the League of Nations. In this
case, neither the breaking off of relations nor the expulsion
would annul
the recognition of the Soviet Government.
RECOGNITION DE JURE AND DE FACTO
In State practice, there is a
difference between recognition de jure
and recognition de facto. Both the kinds of recognition
accord inter
national personality to the entity recognised. De jure
recognition is
permanent and irrevocable; de facto recognition might be provisional
and
revocable. De facto recognition may be a prelude to
de jure recognition,
or it may be just withdrawn and the recognition might
be annulled.
Purpose of De Facto Recognition
In
the words of Oppenheim, "de facto recognition" of State or
What is meant by Government takes place when, in the view a
"de facto recogni- of the recognising State, the
tion"2 new authority, although actually independent
and wielding effective
M.U. Apr. 2010 PoWer in the territory under its control, has not acquired sufficient
Stability, or does not, as yet, offer prospects
of complying with other
requirements or ability to fulfil international
obligations. For example,
 RECOGNITION
65
after the First World War, the Governments of Finland, Latvia and Wite shart note on
Estonia which formerly were parts of the Russian Empire, were De factoRecognition
recognised in the first instance as de facto Governments, pending the M.U. Jan. 2019
final territory settlement. The Government of Soviet
Russia, though
formally and effectively established, was only recognised de facto by a
niumber of States, on the ground that it was unwiling to fulfil its
international obligations.
EFFECTS OF DE FACTO RECOGNITION
Recognition de facto is in essence provisional and liable to be MCO No. 18
withdrawn, if the absent requirements of recognition fail to materialise. But it
must be noted that, in other respects, it cannot be distinguished from de jure
recognition, as all the legislative and other internal measures of the de facto
recognised authority are treated beiore the Couts of the recognising State
on the same footing as those ofa State or Government recognised de jure
Similarly, even a de facto recogised State or Government enjoys immunity Wnat is meant by
from the jurisdiction of the Court of the recognising State. "de jure recogni-
tion"? (2 marks)
The de facto recognition by Great Britain of a foreign Government is M.U. Nov. 2008

as conclusively binding, while it lasts, upon an English Court, as de jure Apr. 2009
recognition, for the reasons stated by Warrington L.J. in Aksionaimoye
Obschestvo A.M. Luther v. Sugor (James) and Co.:
"In the latter case, as well as in the former, the Government in
question acquires the right to be treated by the recognising State as an
independent Sovereign State, and none the less than our Government
does not pretend to express any opinion on the legality or otherwise of
the means by which its power has been obtained."
These two kinds of recognition are both retroactive in operation. (See
Retroactive Effect and Recognition', below.)
Difference between De Facto and De Jure Recognition
Though generally the consequences of recognition de jure and Give wo differen-
recognition de facto are the same, there are some material differences in ces between
the consequences of these two kinds of recognition:
Facto & De jure
recognition?
e
MLU Apr. 2016
(1) Only the de jure recognised State or Government can claim to
receive property situated in the territory of the recognising State. This
principle was recognised in Emperor Haile Selassie v. Cable and Wireless
Ltd. (1938), though the Court of Appeal reversed the decision of the
original Court on the ground that the material circumstances had
subsequently altered.
The facts of the case are as follows:
The Cable and Wireless Ltd. had entered into a contract in 1935 with
the Director General of Posts, Telegraphs and Telephones of Ethiopia
66 PUBLIC INTERNATIONAL LAW
Great Britain
and was running a radio telegraphic service between and
money becan
Ethiopia. As a result of the contract, a certain amount of
Company. After the conee
due to the Government of Ethiopia from the
of Ethiopía, went in evil
of Ethiopia by Italy, Haile Seilassie, Emperor ile to
Emperor filed a suit against the Companv
England. While there, the for
the realization of the money due.
The Company admitted that the amount
was due, but it contended that
Ambassador in London that+
had recieved a letter from the Italian to the
paid to the ltalian Government and not
amount due should be the
maintained that ltaly had annexed Ethiopia har
Emperor, and had also and d
country. The ltalian Government ha
also become the Sovereign of that d
also been recognised by the British Government
as the de facto
government of Ethiopia. The right to the debt was the public debt payable to
Government.
the power in Ethiopia and as such to the ltalian
The Italian Government did not agree to submit to the jurisdiction of the
English Court for the determination of the claim. The
matter was referred t
Court with a view to ascertain the
the Foreign Office of Great Britain by the
status of Emperor Haile Selassie and the italian Government in Ethiopia
The reply of the Foreign Office was that the British Government recognized
Italian
Emperor Haile Selassie as the de jure Emperor of Ethiopia and the
Government as the de facto Government of all parts of Ethiopia under its
control. The htalian Government was in effective control of virtually the
whole of Ethiopia. That status was accorded to the ltalian Government in
December, 1936.
Justice Bennet held that, in view of the facts of the case, the title to
sue for the debt had been vested in Emperor Haile Seiassie as the
sovereign of Ethiopia. The occupation of Ethiopia by the ltalian Army and
the establishment of the Italian Government as the de facto Government
of the country deprived Haile Selassie of the actual power but that did not
have the effect of divesting him of his title.
The Company went in appeal against the decision of Justice Bennet
on 3rd November, 1938. At that time, the British Government announced
in Parliament that it intended to recognise the King of Italy as the de
jure sovereign of Ethiopia. In view of this announcement, the Court
of

Appeal adjourned the hearings of the case. On 30th November, 1938,

of
a certificate from the Foreign Office was produced before the Court
Appeal, to the effect that the British Government no longer recognized
Haile Selassie as the de jure Emperor of Ethiopia. Under the changed
circumstances, the Court of Appeal held that the right to sue passed
from Haile Selassie to the King of Italy. The transfer of the right must be
deemed to have taken place not later than December 1936, when the
British Government recognised the Italian Government as the de facto
 RECOGNITION 67
government over Ethiopia. The claim of the plaintiff was dismissed and
the appeal was allowed.
(2) Only the de jure recognised State can represent the old State for
purposes of State succession.
(3) De facto recognition can be withdrawn on several grounds other
than those normally justifying a withdrawal of de jure recognition.
(4) There is another point of difference indicated by some cases of
British practice that representation of entities recognized only de facto are
not entitled to full diplomatic immunities and privileges. However, this
view is not accepted by all jurists.

Conflict between De jure and De Facto Governments

Sometimes, a oonflict of authority between a displaced de jure
Government and a newly recognised de facto Government may arise. In
such circumstances, the English law, it appears, would adopt the view
that the rights of States of the de facto Governments prevail. This rule of
English law has been laid down in Bank of Ethiopia v. National Bank of
Egypt and Liguori (1937) decided by Clauson J., and the S. S. Arantzazu
Mendi v. The Government of Republican Spain (1939 A.C. 265), decided
by the House of Lords.
These two cases are briefly discussed below.
BANK OF ETHIOPIA Vv. NATIONAL BANK OF EGYPT AND LIGUORI
In this case, the dispute arose on account of the Italian conquest of
Abyssinia in 1936. When the Government of ltaly was given de facto
recognition in Abyssinia, it enacted certain laws which were in conflict
with those issued by the Emperor of Abyssinia, who was in exile, but was
still regarded to be a dè jure soverign of Abyssinia. It was held that the
authority ofa dejure ruler was merely theoretical and was not capable of
being enforced. On the other hand, the ltalian Government had complete
control over Abyssinia, and as such, had the authority to frame laws for
the country. Effect was, therefore, to be given to the laws of this
GOvernment over those of the de jure monarch.

THE ARANTZAZU MENDI v. THE GOVERNMENT OF

REPUBLICAN SPAIN

In this case, there was a conflict of rights between the legitimated and
insurgent Governments in Spain during the Spanish Civil War (1936-1938)
The insurgents had won over the greater part of the Spanish territory. Great
Britain continued to recognise the Republican Governments as the de facto
Government of that potion of Spain which was occupied by it. Proceedings
were initiated in the British Admiraity Court by the de jure Government
 LAVw
68 PUBLIC INTERNATIONAL

against the de facto Government of General Franco to recover poe.

of a certain ship. The de facto Government claimed immunity from
siory
the
T su
in a foreign State, on the ground that it was a fully sovereign State The
was registered at the port of Bilbao under the control of
ship

Government, and had been handed over to that Government in ct

pursuant to a requisition decree issued by it. The argument of theang
jure
Government that the insurgent administration was not a soverei Stata
was rejected. The
since it did not occupy the whole of Spain,
accordingly set aside, as the insurgent (or Nationalist)
Govern Was

was
held to be a sovereign State, and as such, entitled to immunity.
LEGAL EFFECTS OF RECOGNITION

Recognition produces certain legal consequences regarding the ri

powers and privileges of the recognised State or Government.
()At International law, the main consequence of recognition isu thal
the recognised State or Government becomes a member ot th
international community, and it acquires thecapacity to enter into diploma
lomatic
relations and to make treaties with other States.
(i) Secondly, subject to some limitations, former treaties, if anu
concluded between two States, assuming it to be an old State and not
not a
newly born one, are automatically revived and come into force.

Effects at Municipal Law

DISABILITIES OF UN-RECOGNISED STATE
An un-recognised State or a Government suffers from certain
disabilties before the Courts of other States. These disabilities may be
enumerated as follows:
(1) No un-recognised State can sue in the Courts of a State which
has not recognised it, because a foreign power cannot bring a suit as a
matter of right. It can do so on the principle of comity. No comity can exist
unless a State or Government is recognised. This rule of international law
is supported by the decision of an American Court in Russian Socialist
Federated Soviet Republic v. Cibrario (New York Court of Appeals), 235
N.Y. 255 (1923).
(2) The Court of a non-recognised State will not give effect to the acis o
non-recognised State or Govemment, as rules of comity do not prevail
(3) The representative of a non-recognised State or Government
cannot claim immunity from legal process.
and
(4) Property belonging to a non-recognised Government or State
tne
situated in the teritory of another State can be recovered by
representative of the previous regime which has been overthrown.
 RECOGNITION 69
EFFECTS OF RECOGNITION
Once recognition is granted, these disabilities of the unrecognised
State or Government disappear. Therefore, the recognised State or
Government can do the following:
(1) The recognised State acquires the right of suing in the Courts of
the recognising State.
(2) The legislative and the executive acts of the recognised State ill
be given effect to by the above Courts.
(3) The recognised State or Government can claim immunity from the
jurisdiction of the above Courts, both with respect to property and diplomatic
representatives.
(4) It becomesentitledto the property situated within the jurisdiction
of the recognising state and which belonged to the preceding Government.

Retroactive Effect of Recognition

As already pointed out, once recognition is accorded to a new State
or Government, the effect of recognition relates back to the date of
inception of the particular State or Government which is recognised. That
means the effect would relate back to the date on which the concerned
authority acquired the necessary qualifications.
So far as the British practice regarding retroactive operation of
recognition is concerned, it is fully illustrated by two decisions of the
English Courts: (1) GDYNIA AMERYCA LIVIE (ZEGUGOWE SPOLKA
AKCYJNA v. BOGULAVSKI and (2) CIVIL AIR TRANSPORT
INCORPORATED v. CENTRAL AIR TRANSPORT CORPORATION,
In the first case, the rule that retrospective effect should be given to
recognition was accepted by the House of Lords, but it was held that
whether such retrospective effect was to be given or not would depend on
the intention of the recognising State. The cerificate of the executive would
be conclusive evidence of such intention of the recognising State.
The facts of the second case are, briefily, the following:
40 Aircrafts belonging to the Government of the Republic of China
(Nationalist Government) were lying on an air field in Hong Kong, a British
possession. The C.A.T.C. was administering the State-owned commercial
air force. Subsequently the Peoples Govemment of China (Communist
Government) declared itself to be the Government of China, and declared
that the ministers of the Nationalist Government were dismissed. The
Communist Government declared C.A.T.C. to be their property. Nearly a
month after this, the Nationalist Government sold its assets in C.A.T.C. to
the Civil Air Transport Incorporated, which was an American partnership
After a few days, the Government had recognised the Communist
70 PUBLIC INTERNATIONAL LAW

Govemment as de jure Government of the United Kingdom

cease
Comm
recognise the Nationalist Government and recognised the nunist
Government as de jure Government of China.

The question to be decided in this case was whether by

virtue of
Government could claim thoS
de jure recognition, the Communist
Aircrafts, which were transferred to the American Company hu
principle to be decida he
Nationalist Government. The main legal was
act of the Communist China, which
which decia
declar
whether the executive
C.A.T.C. to be their asset, would retrospectively become operative
in 1950, orthe transfer, made by
transfer, made
virtue of the de jure recognition granted
Government at
the Nationalist Government which was recognised the
time of the transfer, would prevail.
Initially, the case was decided by the Supreme Court of Hona Ka.
which held that the claim of the Communist Government was
godng
and
the American Company's claim was to be dismissed, as de jure recognitin
would be retrospective. But, in an appeal preferred by the American
Company to the Privy Council, their Lordships of the Privy Council allou
the appeal and held that vested property or other rights which were the
result of the legal or other act of a formally recognised de jure Governme nt
cannot be invalidated by subsequent de jure recognition of Government ent.
It can be concluded that though recognition operates retroactively, it
cannot operate in such a way as to invalidate the acts of a former
Governmernt, recognised de jure. It can only validate the acts of a de facto
Government which has become the new de jure Government
RECOGNITION AND coURTS OF LAW
As the rights and obligations of the States are affected by recogni.
tion, it often becomes necessary for the Courts to decide as to whether
a particular State or Government is recognised or not. The practice of
the British and the American Courts regarding this question is to consult
the executive on this question and to be guided by the opinion of the
executive. Though recognition is a question of fact, as it is a will of
National Sovereign expressed in external affairs, it is to be ascertained
from the executive alone.
In Duff Development Co. v. Kelentan Government, Lord Sumner
observed that the British Courts act on the best evidence available, and
the best evidence in this regard is a statement by the appropriate Secretary
of State on behalf of the Crown. It is not the business of the Court to
inquire whether a particular department of State has rightly concluded
that a Government is recognised or not. But if the Crown declines to
answer the inquiry, secondary evidence may be resorted to.
One advantage of this American and British practice is that a confict
between the Judiciary and the Executive is avoided.. However, there are
 RECOGNITION 71
ers who criticise this practice of the American and British Courts. It is
said that these Courts seem to be more concerned not to embarrass t
Executive than to protect material interest of private citizens affected by
changes in statehood or Government.
RECOGNITION OF INSURGENCY AND BELLIGERENCY
In addition to the kinds of recognition discussed, two more kinds of
recognition have acquired prominence of late. They are: (1) Recognition
of insurgency, and (2) Recognition of Belligerency. These two kinds of
recognition are quite distinct from recognition of a State or recognition of
a Government or recognition de jure and recognition de facto
Recognition of Insurgency
Recognition of Insurgency may become necessary during times of
Civil War, when the Insurgency forces may attain such a position that
they are in effective occupation of, and constitute, the de facto authority in
a large part of the territory formerly governed by the parent Government
But at the same time, the Insurgent forces may not have acquired the
status of a Government. In such circumstances, recognition of Insurgency
becomes necessary when the vital interests of a foreign State are at
stake. In such a case, the external powers may enter into some contracts
or intercourse with the insurgents as the de facto authorities in order to
protect their nationals, their commercial interests or their sea-borne trade.
The de facto recognition of the Insurgents may be limited to the
territory of which they are in effective occupation. When that happens, the
rebels possess, as against third States, the status of Insurgents. This
recognition of the States may be for mutual benefit. This recognition
might enable the recognising States to exact certain advantages not only
from the Insurgents, but also from the legitimate Government. For example,
the external States might insist that the legitimate Government is not
entitled to close the ports occupied by Insurgents, unless closure is
accompanied by an effective blockade.
Recognition of Belligerency
Recognition of Belligerency is recognition of a fact that two States are
at war, and therefore the rules of War proper must come into operation.
This kind of recognition of Belligerency may also be granted when the
Civil War in a country reaches such dimensions that the external powers
are compelled to treat the Civil War as real war between rival powers.
The Legal Consequences of Grant of the
Recognition of Belligerency
(0) By this grant of recognition, the usual rules of war and neutrality

come into operation, and therefore, it will be treated as a declaration of

neutrality by the recognising State.
 INTERNATIONAL LAw
PUBLIC

recognising State becomes entitled to neutral rightsS, and

The
se must be respected by rival partie5. conrers certain rights undo.
Belligerency insurgenteer thg
(in) Thirdly, the status of and on the ts,
Government which
inhich
on the parent
ws of waradvantage struggle retains tch and
its pitch and inte
onters an as long as the eSity
right to search ships of externa
acquire the
For example, the
insurgents ips into theena
admission of their ships the ports
the right of embassuof of
powers; they also get there is no exchange
exchange of embassy the
States. Though exchanged for
the recognising treaty, yet consuls are generally the
conclusion of a interests.
protection of commercial
noted that recognition of Belligerency is quite :.
But it must be Government
of either the parent r insurgent
from the recognition
legitimate Government. s
benefits, both on the recognising State ancl ne
(iv) It confers mutual confer on the insurgents
eith
but it does not the
recognised insurgents; or the privileges attached Such
community
membership of international question of policy, and not
of
uth
is a
membership. Such recognition recognition of insurgents as Belin
t
premature
may also be noted that Governmment.
may be regarded as an unfriendly act by the parent
powers
Titles, Territorial Changes & Treatle
Recognition of New Territorial
As a rule, States may acquire
new territorial or other rights by unilaters
or by treaty, or through recognition
acts, such as discovery or annexation
MCO No. 19
on the part of third States
being required for their validity. However a
a new right by an act which is
problem arises when the State acquires or conventional rule of
alleged to be in violation of a rule of customary
international law. In such cases, such acquisition of
rights may be invalid
or the doubtful nature of the
or doubtful. In some cases, such invalidity
title may be cured wholly or partially by
individual or collective acts of
right, such
other States. If other States recognise the acquisition of the
claims or
recognition may amount to a waiver by the other States of their
objections to the new right.
THE OBLIGATION OF NON-RECOGNITION

Stimson Doctrine of Non-recognition

It is often claimed that when recognition is sought for a new territory
or other rights which are acquired in violation of international law, the
other States are under an obligation not to grant recognition. This
doctrine of an obligation not to recognise, was first declared by Stimson,
the Secretary of State of the United States in 1932. This doctrine which
was formulated by the Secretary of State in the background of tne
Japanese conquest of Manchuria in 1931, is also called the Stimso
doctrine. Mr. Stimson, maintaining that American Government refused
 RECOGNITION 73
to recognise the changes made in violation of international law, enunciated
the doctrine thus:
The United States cannot admit the legality of any situation de facto;
nor does it intend to recognise any treaty or agreement between these
Governments or agents thereto which may impair the treaty rights of the
United States and that it does notintend to recognise any situation, treaty
or agreement which may be brought about by means contrary to the
covenants and obligations of the Trealy of Paris of August 27, 1928.
The Treaty of Paris, referred to above, provided that wars were
contrary to international law unless they were for self-defence. This
treaty, which is intended to outlaw war, is known as the Kellog Briand
Pact. It must be noted that the Stimson doctrine is merely a statement
of International Policy and is not the general rule recognised by intermational
law. However, in March 1932, the League of Nations passed a
resolution to the effect that it is incumbent upon the League of Nations
not to recognise any situation, treaty or agreement, which may be
brought about by means contrary to the covenant of the League of
Nations or to the Pact of Paris. Though this resolution of the League
of Nations might suggest that the doctrine of non-recognition is a
generally recognised principle of international law, in fact, as State
practice goes, it is a dead letter.
may be noted that Italy's unlawful occupation of Abyssinia was
It

recognised by most European States. Similarly, the incursions carried on

by Hitler were also recognised. But after the Second World War, the great
powers have followed a consistent policy of refusing to recognise changes
brought about by war or gross aggression.
U.N. Charter and obligation of Non-Recognition
Under the Charter of the United Nations, the Member States are
under an obligation not to recognise teritorial changes brought about by
threat or use of force against the territorial integrity or political independence
of any State.
Now, is well-established that the obligation of non-recognition under
it

the Charter may be reinforced by a direction of the Security Council,

which seemingly has a wide power under Article 25 to impose upon
States, a duty to abide by its decisions.
1966, the General Assembly declared that the South African
In
Mandate over South West Africa was terminated, and this was followed in
1969 by a Security Council call that South Africa should immediately
withdraw its administration from the territory. In 1970, by a resolution, the
Security Council declared that "the continued presence of the South
African authorities in Namibia is illegal, and that consequently, all acts
taken by the Government of South Africa on behalf of or concerning
 74 PUBLIC INTERNATIONAL LAW
Namibia after the termination of the mandate are illegal and ins
resolution called upon all States, particularly those which hacalidl,"h
and other interests in Namibia, to refrain from any dealinoaeonom
he
Govemment of South Africa, which were inconsistent with the With th
e operative
paragraph of the resolution.
In an advisory opinion. the International Court of Justice was
opinion that operative paragraph of the resolution was bindin Of
nding on the
member States- Namibia Case (South West Africa) 1. C. al
(1971). 16. The Court was of the opinion that at "Member J.St Reports
compliance with the duty of non-recognition imposed by paraes,
agraphs in
and 5 of resolution 276 (1970), are under an obligation to abs 2
sending diplomatic or special missions to South Africa includins
from
their
jurisdiction the Territory of Namibia, to abstain from sendina onsular
agents to Namibia, and to withdraw any such ager already ther
 CHAPTER 7

STATE SUCCESSION
GENERAL PRINCIPLES

There is no unanimnity amongst the writers on international law on

the question of state Succession. Some writers consider that when one
or more international persons (generally States) take the place of
another international person, rights and liabilities pass on to such inter
national persons, and that this can be considered State Succession.
But Starke and other writers consider that the term State
Succession' is a misnomer. It presupposes that the analogies of private
law are applicable in the case of States also. According to Starke
there is no general principle of State Succession in international law.
A new State which comes in the place of an old State could hardly be
a "successor' to or the "legal representive' of the old State. Such total
substitution of one State by another State never takes place in
international law. According to him, "What is inolved is primarily a
change of territory through concurrent acquisitions and loss of
sovereignty, loss to the State formerly enjoying sovereignty, and
acquisition by the State to which it has passed wholly or partially."
Even Oppenheim is of the opinion that "the practice of States MCO No. 20
show that no general succession takes place according to the Law of
Nations. With the extinction of an international person, its rights and
duties as a person also disappear. But, it is equally wrong to maintain
that no succession whatever occurs." Whether or not certain rights
and duties pass on to the new State, depends on the nature of the
rights and duties themselves. No single uniform rule can be laid down
in general terms regarding succession or absence of succession.
Despite the existence of this controversy, some common rules
regarding succession can be laid down as follows:
(1) Universal Succession
Universal Succession takes place when one international person
is completely absorbed by another, either through subjugation or
through voluntary merger. Similarly, Universal Succession might also
take place when a State breaks up into parts and each separate part
becomes an international person.
(2) Partial Succession
Partial Succession may take place, firstly, when a part of the
territory of a State breaks off from the State, and it, in itself, becomes
an independent State. Secondly, partial Succession might also take
place when one international person acquires a part of the territory of
another through cession. Thirdly, Partial Succession might also take
place when a fully sovereign State loses its independence, by entering
75
 76 PUBLIC INTERNATIiONAL LAw
into a federal State or coming into suzerainty or under prot
when a non-sovereign State becomes a full sovereign. ctorale
TWO ASPECTS
In case of
thearise: State Succession, two questions of internati.ional
generally law
(1) To what extent are the existing rights and obligatiar
In other words,
predecessor State extinguished? when tS of
of sovereignty ver a portion only of the territory of thre
change
what extent do such rights and obligations remain vested in 1tate
is
(2) To what extent does the successor State become entitle tate
such rights or be subject to such obligations? to
To answer these questions, it is necessary to distinguish
b
"State Successionand "Succession of Governments" Firstetween
the case of State Succession that there is a change of s it is in
one State losing it and another State acquiring it. This reignty
rights and obligations takes place upon external changes of sOV g of
over the territory. Secondly, in the case of succession of Governgnty
the change of sovereignty is purely internal. A new
Government nts.
into existence in place of the Tormer
Government. The naturs
succession in both these cases is discussed below. of
(A) PAsSING OF RIGHTS AND OBLIGATIONS UPON
CHANGES OF SOVEREIGNTY OVER TERRITORY EXTERMA, 'ERNALL
External changes of sovereignty of a territory may take
one of the following ways: place in
(a) A part of the territory of an existing
State may be incorporated
in the territory of another State, or may be divided
veral States. among se.
(b) Anew State is formed with a part of the territory of
sting State as the basis. the exi
(c) The whole of the territory of an existing State
becomes incorpo
rated in another State, and the former State becomes
extinguished.
(d) The whole territory of an existing State becomes divided
amongst
several States, and the existing State gets extinguished.
(e) The whole territory of an existing State might
become the
posse-ssion of several new States, and the former State is
extinguished.
) The whole of the territory of an existing State may be in the
possession of a single new State, and the old State may be
extinguished.
Besides these methods, there may be several other methods by
ch sovereignty over one territory
passes on from one State to the
Further, the method by which sovereignty
passes on may also
erent. There might be acquisition, adjudication,
voluntary cession
lution, and so on. It is quite possible
that the treaties, if any
2re responsible for the change
of sovereignty may themselves
certain principles of succession. In the absence of these
 STATE SUCCESSION 77
provisions in the treaty, it would be necessary to fall back on the rules
of succession formulated out of State practices. These rules of
sUCcession, as already pointed out, are not the same for all the different
kinds of rights and obligations. They vary according to the nature of
the rights and obligations. These rights and obligations may be
classified under the following heads:
I. Succession to treaty rights and obligations.

II. Succession to non-fiscal contractual rights and obligations.

II. Succession and concessionary contracts.

IV. Succession and public debts.
V. Succession and private or municipal law rights.
VI. Succession and claims in tort.
VII. Succession and public funds and public property.
VII. Succession and nationality.
IX. Succession and customary rights relating to territory.
The rules of succession in each of these cases will nowbe discussed.
L.
Succession to Treaty Rights and Obligations
There is no general priniple ofinternational law that all treaty rights
and obligations pass on to a new State with the change in sovereignty
over a territory. The rules of succession are different, depending on
hether the old State becomes extinguished or remains unextinguished.
When a State Becomes Extinguished
(a) Obligations of an Executory Character
When a State becomes extinguished and its territory passes on to
another State, the rule is that, prima facie, no rights and obligations of
an executory character arising out of treaties pass to the successor
State This prima facie rule has the following exceptions:
(1) If there are treaties which refer directly to the territory that has
undergone the change, like treaties creating a servitude, then, rights
and obligations under such treaties pass on to the succeeding State.
(ii) Multi-lateral conventions relating to health, narcotics etc., which
are of universal application, irrespective of any State having sovereignty
over a territory, continue to be applicable.
(b) Obligations When Consideration Executed
In the case of rights and obligations in the nature of executed
transactions, it is reasonable and equitable that the obligations must
also pass on to the new State. For example. if under a treaty,
consideration has been executed in favour of the extinct State, and if
the successor State has also taken over the benefits of that transaction,
the latter State (successor State) would become liable to perform the
corresponding obligations under the treaty.
When a State Does Not Become Extinguished
When a part only of a territory is lost to a State and the State is
not extinguished, prima facie passing of the treaties, obligations and
rights, depends on the nature of the treaty.
 78 PUBLIC INTERNATIONAL LAW

(a) Political Treaties

Rights and obligations which are in the nature
arrangement, as a rule, do not pass on to the of a
succeeding Sttical
tate.
(b) Multi-lateral Conventions
Rights and obligations arising out of multi-lateral
pertaining to health, narcotics and similar matters, converntions,
Succeeding State.
pass on
the
(c) Treaties Pertaining to the Territory
Treaties with direct reference to the territory which
masters will continue to be applicable, even after has ch.
the territged
itory
changed. Rights and obligations arising out of such
on to the successor State. treaties wi has
ass
(o) Treaties of Other Kinds
Rights and obligations arising out of treaties pertaining
or extradition, as a rule, do notpass on to the succeeding $ to comm.
are some exceptional considerations, they pass on to
State.But,if erce
the
the successor State
II. Succession to Non-fiscal
Contractual Rights and Obligations
The question of succession to rights and
non-fiscal contracts is not well-settled, obligations arising
out of
However, some broad rules may and is highly controversial
be stated. Whether the rights
or not may depend on the nature of pass on
the contractual rights or obligations
(a) Right to Unliquidated Damages
A contractual right giving
rise to unliquidated damages
pass on, and therefore, it also cannot be will not
enforced against the successor
State. But, if some benefit is derived,
in the nature of a quasi-contractual
and if the right to be enforced is
right, the rights and obligations
Survive and pass on to successor
State.
(b) Vested or Acquired Right
A
contractual right in the nature of a
provided it is liquidated, will bind a vested or acquired right,
successor State; but, if the right is
of an executory nature, it will not
pass on. In this connection, it may be
noted that, earlier, it was considered that no
obligations would pass on to the successor
contractual rights or
State. But the doctrine of
vested or acquired rights has considerably
altered the old notion
regarding Succession to non-fiscal contractual
rights and obligations.
I. Succession and Concessionary Contracts
If
the existing State has granted certain concessions, like
to operate oil mines, etc., the right
under a contract, the question would be as
to whether the obligation under such contracts would
whether it would bind the successor be terminated or
State. The general weight o
State practices appears to be in favour of holding
are terminated with the change of sovereignty. Butthat such obligations
some writers are o
the opinion that a generalised rule of
the above kind is not correct as
the concessionary contract, though of an executory
nature, mign
benefit the successor State. In such
cases, it is just and reasonau
that the party holding the concession
should continue to enjoy rg
under the concession. An authority on international law,
O'Conne,
 STATE SUcCESSION 79
of the opinion that the concessionaire would have an acquired right if
it has invested money and expended labour. In such a case, its rights
must be respected in international law.
IV. Successlon and Public Debts
The opinion on the question of succession and public debts is not
well-settled, but the following rules can be formulated:
(1) If the successor State has benefited from the loan, by taking
over the territory in question, it should be responsible for the public
debts which were incurred by the old State.
(2) If the particular territory in question has benefited from the
loan, it is natural that the successor State which takes over the territory,
must be responsible for the public debts, as one has to take the
burden with the benefit.
(3) If the contract of loan secures a debt on the revenues of the
State, the successor State is not liable beyond the taxable capacity of
the territory which has changed the master.
(4) If the debt has been incurred for a purpose hostile to the
successor State or for the benefit of some other State, then there is no
obligation in international law which binds the successor State to pay it.
(5) When the territory of the predecessor State is divided amongst
several States, the question of passing of the public debts might
present some difficulties. Often, the treaty of division itself provides for
the apportionment of the debts. However, in the absence of any such
express provision, there are no fixed rules as to how the debts are to

.
be divided.
Succession and Private or Municipal Law Rights
The general rule here is that vested or acquired rights must be
respected by the successor State. But it is possible that the successor
State can alterthe former municipal law and thus displace existing rights.
This alteration is well within the power of the succeeding State,
unless it thereby commits a breach of some other obligation under
international law. For example, it cannot commit a breach of
international law by confiscating the property of foreigners without
compensation.
VI. Succession and Claims in Tort
There is no general rule of international law, that successor States are
bound by the liability arising out of the tort of the predecessor State. No
claim of unliquidated damages in tort can be brought against the succe
Ssor State. But, if the claim has been liquidated by agreement or through
adjudication, the successor State is bound to pay liquidated damages.
In the case of ROBERT E. BROWN CLAIM (1925). after Great
Britain had acquired the territory of South African Republics by
conquest, the U.S.A. preferred a claim with the British Government on
behalf of Mr. Brown, an American citizen, for the deprivation of his
mining rights by the Government of the Republic in South Africa,
before conquest by Britain. It was conceded that the Government of
the Republic had been responsible for the denial of justice. It was held
 80 PUBLIC INTERNATIONAL LAw
by the American & British Claims Arbitration Tribunal
for the tort did not pass to the British Government.
that the
case, the suocessor State Is noi bOund to respect Accor liabilt
iing to
claim for damages in tort.
an thig
quidates
VII. Succession and Public Funds and Public Property
Itis a settled principle of international lawthatthe successor S
over the public funds and the public property of the predecessor Staletakes
VIl. Succession and Nationality State
The prima facie rule is that persons living or domicile
territory which changes sovereigns acquire the nationality in the
sUccessor State. o the
Ix. Succession and Customary Rights Relating to
Territoes
Acustomary right relating to territory which is established fa.
in favour
one State against the predecessor's State must be of
respected
sUccessor State in whom the particular territory subject to by the
becomes vested. In the Rightot Passage over Indian Territory case(1 the
the question was whether Portugal was entitled to a rink
passage over Indian territory, which had first become certain estahlie ned of
custom during British Rule over india. However, this by
case not
authority to the proposition that customary rigniS pertaining to is territorw
can be enforced against a sUCcessor State, the
because,
case, the right had continued even some time affer India
in that particular
to
Great Britain. Therefore, It became a question of custom succeeded
between India
and Portugal. But it may be noted that it was heldin this case
was subject to regulation and control by India, and that the right
that under the
circumstances in question, passage might be refused to Portugal.
(B) PASSING OF RIGHTS AND OBLIGATIONS UPON INTERNAL
CHANGES OF SOVEREIGNTY
The general principle applicable in those cases where Governments
change, but the State itself continues, is that of continuity.
Each successive Government is, as a rule, bound by the acts of the
predecessor Government. But this principle of continuity may have
restricted application in certain cases. Where there are fundamental and
revolutionary changes in the structure of the Government, it may not be
reasonable to bind the successor Government with the burdens and
obligations incurred by a predecessor Government, which was radicaily
differentfrom the successor. It is also possible that certain treaties visualse
the existence of a particular form of a Government, and if that particular
form of Government ceases to exist, the treaty may no longer be applicaoe
A new Government by unconstitutional means
t treaties are entered into with Governments which have come
no power by unconstitutional means, and if subsequently constitutona
Governmenis come into existence, such treaties will not bind
SUCceeding constitutional Governments, provided such treates
e
entered into by other States with notice of the fact that the treat
engagements entered into by the unconstitutional Governmenis v
not be honoured by the constitutional Government.
 CHAPTERR 8
STATE RESPONSIBILITY
NATURE AND KINDS OF STATE RESPONSIBILITY
Itis often maintained that the State, as a sovereign person, can
have no legal responsibility whatever. This may be true with reference
to some acts of the State towards its subjects. But the position is
different with regard to external responsibility of a State. Some action
taken by one State may result in injury to or outrage on the dignityor
prestige of another State. In those circumstances, the rules of
international law hold that the responsibility of a State arises, and the
wronged State becomes entitled to redress for the damage suffered.
But this does not mean that the law of State responsibility is as
settled as the municipal law regarding individual responsibility. The
law of State responsibility is still in evolution. This subject is under
consideration by the International Law Commission. Reports have
been submitted by the Commission, and the Commission is yet working
on the subject. At the same time, certain rules of international law
regarding State responsibility can be formulated.
The wrongs or injuries which give rise to State responsibility may
be of various kinds. A State may become responsible:
(1) for breach of treaty; or
(2) in respect of contractual obligations, or
(3) regarding expropriation of property; or
(4) for international delinquency (wrongs unconnected with
contractual obligations).
Before the principles of liability or responsibility of the Statefor these
wrongs are discussed, some preliminary issues must be gone into.
Federal State
In the case of unitary Governments, the
incidence of liability is
clear. But in the case of a Federal State, very often, the question
regarding the incidence of liability arises when injury is done by or
through a State member of a Federation. As the member States of
federation are not recognised to be members of the international
community, having capacity to enter into relations with other States
the Federal State alone is responsible for the conduct of the member
State. For the purpose of State responsibility in international law, it is
immaterial whether the wrong done or the injury caused talls
constitutionally within the sphere of activity of the member State or
that of the Federal State. It is no defence in international law tor a
Federal State to maintain that, as the particular wrong happens to fall
constitutionally within the exclusive competence of the State, the
Federal State cannot be held responsibile for it. The constitutional
distribution of powers within a Federal State is a matter of internal
arrangement. For the purposes of international law. the Federal State
1s an international person. The wrongs committed by any one of the
82 PUBLIC INTERNATIONAL LAW

constituent States will be attributed to the Federal State. This is bae

foroed
on the sound principle that a Federal State would not allow a foreign
State to interfere in the internal affairs of member States.
Protected State
applicable in the case
The principle discussed above is is responsible in internatic
protected State also. The protecting State State. al
law for the delinquencies of the protected
International Law and Municipal Law
is raised in this connection ie
Another important question that
to whether a State can justify
an international wrong on the aroS
Constitutional Law of the State T
that such an act is justified by the are well-settled, as follaws
rules of international law on this question
(1) Once it is proved that a duty under
international law has ho
infractio
violated, it will be no answer to plead that there has been no action
of municipal law or that municipal law justified such an act.
(2) Neither can the claimant State base its claim on the und
of municipal law of the delinquent State has been violata
that a rule ted
law.
if there is no breach of international
RESPONSIBILITY FOR BREACH OF TREATY OR IN RESPECT OF
CONTRACTUAL OBLIGATIONS OR FOR EXPROPRIATION
OF PROPERTY
the case of treaty obligations, State responsibility depends upon
In
the exact terms of the treaty. If, by construction of the treaty, it
can be
shown that there is a breach of treaty obligation, responsibility follows
As the Permanent Court of International Justice in the CHORZOW
FACTORY CASE (Indemnity Case), observed: It is a principle of
nternational law that "any breach of an engagement involves an
obligation to make reparation.
If a State commits breach of a contractual obligation, and if the
contract is between the State and alien citizens or corporations, the
position will be different. Every breach of contractual obligation will not
give rise to State responsibility in international law. It is possible that
such breach of a contractual obligation may give rise to a claim at
municipal law, and therefore, it does not raise any problem of
international law. But it is quite possible that, while committing a breach
of contract with alien citizens or corporations, the State might commt
a breach of some duty extraneous to the contract. For example, the
State may be guilty of denial of justice to the other party while
committing a breach of contract. In such circumstances, the
responsibility of the State at international law exists. The responsibility
of the State might also arise regarding a breach of contract if such
State has impliedly entered into a contract with another State that it
will observe the terms of the contract with a citizen of the other State.
In ANGLO-IAANIAN OIL COMPNAY CASE (Jurisdiction), the Briisu
Government claimed that when, in 1933, it sponsored the conclus
of a new oil concession contract between Persia and the Anglo-ra
nian Oil Company, Persia engaged itself towards Great Britain not
 STATE RESPONSIBILITY 83
annul or alter the concession, and therefore, if Persia annulled thee
concession, it gave rise to a claim at international law. The Internationa
Court of Justice rejected the contention, holding that there was no
orivity of contract between Persia and Great Britain, as weighty proof
was required to prove such an implied treaty in a contract entered into
hetween a State and the citizens of another State.
EXPROPRIATION OF PROPERTY
When one State arbitrarily confiscates property belonging to foreign
citizens, the question involved is not merely a question of contractual
obiigation, but also that of breach of international law. Though, in modern
times, the right of States to expropriate property is conceded to some
extent, and though every claim of foreign citizens against expropriation
of property would not be considered as a caim in international law, yet
when expropriation becomes purely confiscatory and disocriminatory, it
will be considered to be contrary to international law.
The question of expropriation has been a subject of great contro-
versy in the twentieth century. The Mexican expropriation of the oil
properties of the British, Dutch and American companies, the Persian
legislation regarding the nationalization of British oil interest, and
Egypt's nationalization of Suez Canal Company have been subjects of
great controversy.
The rules of international law on this question may be summed up thus:
(1) If the expropriation of foreign property is in accordance with a
declared domestic policy, and if it is applied without discrimination
between the citizens and the aliens, then, such expropriation is justified
in international law.
(2) If the expropriation is purely conflscatory and does not provide
just compensation to the foreign citizens or corporations, such acts of
expropriation will be contrary to international law.
(3) If the compensation is just nominal. or if the payment of is it
indefinitely postponed, or if it is lower than the rate awarded to nationals
of the expropriating State, then such an act of expropriation is contrary
to international law
(4) It must also be noted that a mere plea of non-discrimination is
no defence to a claim founded on an expropriation, which is in the
nature of a clear breach of international law, though non-discrimination
may be one of the grounds justitying the act of expropriation
The "Calvo Clause
Very often, citizens of one State might agree with another State MCO No. 21

that, in any matter arising out of a particular contract, they renounce

the assistance and the protection of their State. Such clauses were
frequently included in contracts betw en Central and South American
Governments and foreign companies. Such clause is known as the
Calvo clause', named after the Argentinian jurist, Calvo. According
too

these cluases, the foreign companies holding concessions in Central

and South American States renounced the protection and assistance
 84 PUBLIC INTERNATIONAL LAW

of their Governments. They also agreed that they would not invol
intervention of the diplomatic agents of their country in
an m
all disputes le
related to that contract. They further agreed that
Out of the contract would be settled according
to the law of the cog9
granting the concession. The purpose of
this clause is to ensnry
all legal disputes arising out of the
contract are referred to the Mnia
cipal
Courts of the State granting the concession.
Legality of the Calvo Clause
The legality of the Calvo Clause has been questioned oefore ha
arbitral tribunals. In several cases, it has
several international no citizen can contn
beer
held to be null and void, on the ground that
n. In some other
away the right of the Government to protect
h

cases,
considered to be valid.
however this clause has been
In the North American Dredging Co. case (Annual Digest of blic
International Law Cases, 1925-1926, No. 218), the clause in questis
provided that all legal disputes arising out of a contract between the
State
State and an alien would be referred to the Municipal Court of the tate
such
granting concession or other rights. The question was whether a
arbitral
clause, which would oust the jurisdiction of international alian
tribunals and also prevent any diplomatic intervention of the
General
concerned, would be valid or not. The United States-Mexico
leaal
Claims Commission came to the conclusion that exhaustion of
remedies is a permissible provision, and therefore, he clause was valid
On the other hand, in the case of the El Oro Mining and Railwav
Co. Ltd., (Annual Digest of Public International Law Cases,
1931
1932, No. 100), where the Calvo clause was pleaded as a defence,
to dismiss
the British-Mexican General Claims Commission declined
the claim, inasmuch as the claimant company had actually filed a suit
in a Mexican Court, and nine years had elapsed without a hearing.
Therefore, it could not be said that the claimant company had sought
to oust the local jurisdiction.
Thus, there have been conflicting decisions regarding the legal
validity of this clause. But the position in international law regarding
these clauses may be summed up as follows:
the
(1) To the extent such a clause attempts to waive, in general,
Sovereign right of the State to protect its citizens, it is void.
(2) But there is no rule of international law which prevents the inclusion
of a stipulation in a contract that, in all matters pertaining to the contracl,
the jurisdiction of the local tribunals would be complete and exclusive.
(3) Where such a stipulation purports to bind the claimant Govern
ment not to intervene in respect of a clear violation of international
law, it is void.
DEBTS
Another aspect of State responsibility which has attracted mu
attention is that of claims against Government regarding loans
itor
debts. There have been three theories regarding the right ola
State against a defaulting debtor State.
 STATE RESPONSIBILITY 85
(1) Lord Palmerston's theory states one extreme point of view
Accor-ding to this theory, it a debtor State commits a default in payrnent
of a debt, owed either to the former State or its subjects, the creditor
State is entitled to diplomatically intervene, and even take military action
against the detaulting State. This theory was enunciated in 1848.
(2) "Drago Doctrine: According to this doctrine, States can never
take armed military action against a defaulting debtor State. Drago,
the Minister of Foreign Affairs of Argentina, was not opposed to
diplomatic intervention of claiming through international tribunals. He
was, however, opposed to military action under any circumstances.
TheHague Convention of 1907, regarding the employment of force for
the recovery of contracted debts, provided that States which werea
narty to the Convention should not resort to armed force for recovering
debts due to their subjects by another State, unless the debtor State
refuses to accept arbitration or to submit
to an arbitral award. At
present, it appears that the Drago doctrine has lost much of its
importance on account of the obligation imposed on every State
member of the United Nations to settle disputes peacefully and to
refrain from the threat or use of force against other States.
(3) The most generally accepted theory is to consider the question
of obligations arising out of contractual debts, as any other question of
international agreement and not to treat it as a very special kind of
agreement. Therefore, according to this theory, the rights of the credi
tor State against the debtor State would be similar to any other right
under an international agreement.
Responslbility for International Delinquencies
Another question of State responsibility is regarding the liability of
a State for wrongs which are unconnected with contractual obligations.
These wrongs might be committed by a State by breach of some duty
imposed on it by international law. Such wrongs have been called
international delinquencies. These wrongs are generally committed by
the Government of a State, or by the officials of the Government, or by
private citizens of the State against alien citizens.
Alien residents in a country have a certain minimum of rights
necessary to the enjoyment of life, liberty and property. Though a
State is under no obligation to admit an alien into its territories, once
it admits him, it must give some minimum protection. Very often, when
there is absence of the protection, injury might be caused to the alien
in various ways, for example, injuries to his property in the course
of
riots, personal injuries, improper refusal of local justice, etc.
While assessing the liability of a State for the wrongs inflicted on
aliens, two questions might arise: (i) Firstly, they may be wrongs under
the local law of a State and they may be redressed under the local
law. This is hardly a problem in international law. (ii) Secondly, either
on account of absence of local remedies, or inadequacy of local
remedies, redress may not be available. In such cases, becomes a
it

problem in international law. The State,oft which the wronged individuals

86 PUBLIC INTERNATIONAL LAW

are the nationals, might prefer claims against the State where whe
wrongs are committed. the
In the second case mentioned above, the Wrong may be co
mmitled
either by the State, or the Government itself, or by other indiv
l

viduals
Such other individuals may be either officials of the State or Priva
citizens. When one State makes a claim against another tate e
wrongs committed against its nationals by individu iduals, the main for
will be how far such wrong can be imputed to againaSion
the State against
which
the claim is made.
Liability for Acts of an Official or Organ of State
To hold a State liable for the wrongs committed by the officials
organ against nationalsof another country, two conditions must be fulf its
s oro
(1) Such official or State organ must have committed a bree
an obligation under international law. of
(2) Such breach of obligation must be atributable to the
State
according to international law. It may be noted that nat it is irrelev
whether such breach of obligation can be attributed to the SState
according to its constitutional law or municipal law. VWhat is relevar vant
whether such breach can be attributed to the State accrodina
international law. The State becomes liable for the delinquency onlu
the breach could be imputed to the State according to international au
Official acts under General Authority
To examine whether a State is liable for the delinquencies
committed by its officials or its organs, it must be ascertained whether
the act in question of the offcial or the State organ had not any general
authority under the municipal law of that State. Once it is found that such
official or the organ had such general authority, then, it must be
ascertained whether the wrong can be attributed to the State according
to international law. At this stage, international law operates indepen-
dently. It is immaterial if the official or State organ had exceeded the
authority conferred by municipal law. Even then, at international law, the
act will be imputed to the State and the State will be held liable.
This principle is illustrated in Youman's case. In this case, an Officer
of State forces in a Mexican town was ordered by the Mayor of that town
to employ troops to prevent a riot against certain American citizens. The
troops arrived at the place of the riot. But instead of preventing the rio,
they opened fire against the three Americans and killed one of them.
The other two American citizens were forced to leave the place of
shelter and they were also killed by troops and the mob. The troops in
fact had disobeyed the orders of the superiors. Yet, it was held that tng
Mexican Government was responsible for the acts of the soldiers, even
though the soldiers had exceeded the authority given to them.
Official act without authority
If it is fournd that the act of the official or
the organ does not en
the authority of the State under municipal law, and the act Is ua
vires, the general rule is that the wrong cannot be imputed o
 STATE RESPONSIBILITY 87
State. But in some circumstances, a Slate may become responsible
forthe wrongs, such wrongsorwere
if made possible by the omission or
default of some other oficial organ which could have prevented the
ccurrence of the offence. The State may incur an indirect responsibllity
arising out of ultra vires acts.
LIABILITY FOR DELINQUENCIES COMMITTED BY PRIVATE CITIZENS
As a rule, a State cannot be held liable for wrongs committed by
orivate individuals, as there is no agency. But a State may be held
liable for damages done by private individuals, if such act is made
possible by some omission or default of some agencies of the State.
For example, if a State fails in its duties of repression and punishment
of the guilty persons for such act or omission, the State must be held
responsible. Generally, this question of State responsibility for damage
in the case of harm done to the
done by private individuals arises
property or person of aliens in the course of mob riots. In such cases,
it has been held that the State will be responsible for the acts of the
On the
rioters if the State has been negligent preventing the riots.
in
other hand, if the State has exercised enough diligencelaw. give to
protection to the aliens, it incurs no liability in international
Protection of Citizens Abroad
As it can be seen from the above discussion, the question of State
responsbility is intimately connected with the rights of a State to
protect its citizens abroad.
There are two conflicting principles which need to be reconciled here:
(1) The sovereignty of a State within its territory, that is, the rights
of a State to exercise its powers within its jurisdiction, free
from interference by other States.
(2) The rights of a State to protect its citizens abroad.
There has been wide differences of opinion between States on
this question. On account of this difference of opinion, the attempt
of the Hague Codification Conference of 1930 to codify the rules as
MCO No. 22
to State responsibility ended in failure. Very often, one State intervenes
on behalf of its nationals resident in another State on the ground
that there has been "denial of justice". This term 'denial of justice' in
the technical sense means that there has been misconduct or inaction
on the part of the Courts of the respondent State, and thereby
denial to the citizens of the claimant State of the benefits of due
process of law. In this sense, the term 'denial of justice' means that
there has been some abuse of judicial process or an improper
administration of justice.
In the CUTTING CASE, the United States of America intervened with
Mexico to obtain a proper trial for an American citizen on the ground that
there was denial of justice. The facts of the case are as follows:
One Cutting, an American citizen, published in Texas, an article
alleged to constitute a libel on a Mexican citizen. When Cutting
88 PUBLIC INTERNATIONAL LAW

happened to be, for a temporary period, within the Mexican teritory

criminal libel. The United Stat
he was arrested on a charge of claiming that the Mexican Of
America successfully intervened, minal
proper administration of
of justice,
Procedure Code did notfacilitate and
therefore, it resulted in denial of justice. c
this claim of denial of justice, the respondent
As against w ale
the exhaustion of local remedies. In other ds,
might demand no
should intervene or claim in respect of an alleged deni:
State open to its nationals have
of
justice, until all local remedies
is no obligation in internatieen
exhausted without result. But there the following circumstances: al law
to exhaust the local remedies under
(1) If the municipal courts
are not in a position to award cor mpen-
sation or damages.
(2) If there is no justice to exhaust, Le., when there is no
indena
epen
suit is against the Governmen
dent Judiciary, and when the
(3) Where the injury is due to an executive
act of the Governm
nment
such, and foreign citizens are not required exhaiett
to
remedies.
However, it has been held that legal remedies are not exahusted a
or proceeded with o
an appeal to higher Court is not definitely pressed or
if essential evidence has not been adduced, or it there has beena
significant tailure to take some steps necessary to succeed in the action
(Ambatlelos Arbitration (1955) between Greece and Great Britain)
The International Court of Justice has held in the Interhandle
he
(Preliminary Objections) Case, that the legal remedies will not
is
deemed to have been exhausted, if the national claimant State
actually in the course of litigating the matter before the Municipal
Courts of the respective State. The same judgment also held that the
legal remedies will not be deemed to have been existed even though
the Municipal Courts may be called upon to apply international law in
reaching a decision in the matter.
Corporations and Natlonal law of Claims
In the case concerning the Barcelona Traction Light and Power
Co. Ltd. (Second phase), 1970, an interesting question arose, as to
whether the State is entitled to espouse the claim of companies and
its shareholders. In this case, the Barcelona Traction Light & Power
Co. Ltd. was incorporated in Canada, and it was operating in Spain.
But a considerable investment in the Company was made by
shareholders in Belgium. Certain action taken by the Government o
Spain seriously injured the Company. In the eye of law, the Company
was of Canadian nationality, though a majority of the shareholders
affected were Belgian nationals. The Government of Belgium espouse0
the cause of its citizens as shareholders. The International Court o
Justice came to the following conclusions:
 STATE RESPONSIBILITY 89

(a) Only the national State of a Company concerned was entitled

to exercise diplomatic proceedings for the purpose of seeking
to
redress for the wrong done the Company.
(h) When a
wrong is done to the Company, the wrongdoer is not
liable to the shareholders. Therefore, the Spanish State was
not liable to the Belgian shareholders.
(c) As Canada had
not espoused the cause, Belgium had no
locus standi to espouse, before the
Court of International
Justice, the claims of Belgian nationals who were shareholders
in the Company.
and the Fault Theory
State Responsibility
of opinion amongst writers on International
There is some difference
could be held responsible to another State for
I
aw as to whether a State acts are committed
unlawful acts committed by its agents, unless such
negligence. Oppenheim is of the
wilfully, maliciously or with culpable
apinion that "an act of a State injurious to another State is nevertheless
if committed neither wilfully and
not an international delinquiency
In support of this opinion, the
maliciously nor with culpable negligence".
CHANNEL CASE is cited. And it is further added
decision in CORFU
that there is an increasing
tendency among modern writers to reject the
to base the responsibility of the States
theory of absolute liability and
is of the opinion that "it is difficult to accept so
UDon fault. But Starke
requirement".
wide a conclusion and so invariable a
Claims
it is entitled to
As a State has a right to protect its citizens abroad,
an international tribunal
intervene diplomatically to lodge a claim before is deemed
against injuries suffered by its subjects. The claimant State
that the
to be injured through its subjects, or it may also be considered
for the
claimant State would be asserting its rights to ensure respect
this
rules of international law regarding its own nationals. Once
intervention is made or the claim is allowed, the matter becomes one
Court
that concerns the States alone. In the opinion of the Permanent
of Internaitonal Justice, "Once a State has taken up a case on behalf
in the eyes of
of one of its subjects before an international tribunal,
the latte, the State is the sole claimant" (Mavrommatis Palestine
Concessions Case (Jurisdiction) Pub. PC. IJ (1924) Series No. at
A 2
P. 12). The injured subject's only right is to claim through the State.
Some writers hold that the State can proceed with the claim even
though the injured subject waives it.
A State is entitled to propound an international claim only
on
behalf of its nationals or on behalf of protected subjects, such as
those who are under the diplomatic protection of the State. Several
International Arbitral Tribunals have held that the injured person must
nave the nationality of the claimant State or its protected subjects at
90 PUBLIC INTERNATIONAL LAW

the time the injury was suffered and must retain it until the
claim
decided or at least until the claim is presented. is
In the NOTTEBOHM CASE (Second Phase), the International
of Justice has held that the claimant State will not be ensCOur
ntitled
roceed if the injured person is a national by naturalisation and
andd
person had no close and genuine connection with the State sutficientif to
sSuch
for the grant of nationality.
Damages
Under international law, when a State claims damages
s against
another for delinquencies, it is entitled to damages, irrespectiv
whether there was material damage or injury or pecu ecuniary
In such cases, the damages that can be claimed by the State
loss of
be identical with that which can be claimed by the individual"ot
Ot
Permanent Court of International Justice observed in CHORZO The
FACTORY CASE (1928):
"The damage suffered by an individual is never identical
in kind
with that which will be suffered by the State; it can only
afford
convenient scale for the calculation of the reparation due to
the State
This principle seems to be consistent with the Award
in the
LUSITANIA Death Claims. This case arose out of
the sinking of the
vessel The Lusitania, by a German submarine in 1915.
In several cases, two separate
heads of damages, one in respect
of the damage suffered by individuals and the other in respect
af
injury to the claimant State have been awarded.
 CHAPTER 9

STATE TERRITORY

This Chapter is discussed under the following two heads:

1. Territory and Sovereignty
2. Parts of State Territories.
1.TERRITORY AND SOVEREIGNTY
State teritory is that definite portion of the surface of the globe
which is subject to the sovereignty of a State. Territory is one of the
assential elements of a State. The concept of territorial sovereignty
sianifies the fact that, within a particular territory, jurisdiction is exercised
by the State over persons and property, to the exclusion of other
States. Max Huber described territorial sovereignty in the lsland of what is state
Palmas Arbitration Case, in the following terms: territory?
Dec. 2014
"Sovereignty, in the relation between States, signifies independence. Apr. 2015
Independence, in reference to a portion of the globe, is the right to exercise Apr. 2016
therein, to the exclusion of any other State, the function of a State."
The concept of exercise of "the functions of a State" has been
further elaborated by the Internatioanl Court of Justice in its Advisory Explain Temitory.
Opinion in the Western Sahara, 1.C.J. Reports (1975), 12. The Court Explain modes of
was of the opinion that legal ties of territorial sovereignty over people acquisition and loss
of land must be distinguished from ties of allegiance, in the case of oftentory
persons, and mere customary rights, in relation to land. State activity M.U. Jan. 2019
on a sufficient scale indicating conclusively the exercise of authority,
is one mark of the existence of territorial sovereignty.
It is said that territorial sovereignty is indivisible. However, this Discuss: State
statement must be accepted subject to certain modifications. As already territories.
pointed out, it is possible that two or more powers may exercise M.U. May 2012
sovereignty over the same territory, as in the case of a condominium.
Again, a lease of territories is not unknown to international law. In
such cases, the lessee State exercises temporary sovereignty, while
the lessor State possesses sovereighty in reversion.
ACQUISITION OF TERRITORIAL SOVEREIGNTY
International law generally recognises five modes of acquiring What are the
territorial sovereignty by a State. They are various modes of
(1) Occupation acquisition of
territorial sove-
(2) Annexation reignty?
(3) Accretion M.U. Oct. 99
(4) Cession
(5) Prescription.
These different modes of acquiring sovereignty by a State are What are the
discussed below. In this connection, it may be noted that the topic of atributes of a
acquisition of territorial sovereignty is developed in international law on state?
a very close analogy to the concept of ownership under private law Nov. 2013

91
 92 PUBLIC INTERNATIONAL LAW
(1) Occupation
What is meant by an
acquiring
When a particular territory is not under the authority of
its sovereignty over such
by occupation?(2 State, a State can establish
occupation. Traditionally, the subject-matter of occupation is terra
by
marks)
M.U. Nov. 2008 (territory not subject to the authority of any other State); but. taus
inhabited by tribes or peoples having a social and political Oraanory
cannot be terra nullius (Western Sahara case, cited above On
land is inhabited by organised tribes or peoples, territorial
soverere
can only be acquired by local agreements with the rulers rulnty
or
representatives of the tribes and peoples.
a
To determine whether a State has occupied particular territory orn
not,
the principle of efectiveness is applied. The Perman Court
International Justice explained the elements of effective occuDatio of
Eastern Greenland Case (1933). This case arose on account of the
disputes between Norway and Denmark over the title itle to Easter
Greenland. In this case, the Permanent Court of International Justice ha
that the occupation, to be effective, must consist of following to elem
() An intention on the part of the occupying State to act aas
sOvereign; and
(i) The adequate exercise or display of sovereignty by such State
() Intention to act as sovereign
The intention to act as sovereign may either be formally expressed
or it may be inferred from the surrounding facts. The intention mustbe
a permanent intention to assume control. Therefore, mere discover
unless accompanied by some concrete display of permanent intention
to occupy, will not constitute occupation.
i) Adequate exercise or display of sovereignty by such State
So far as this element of occupation is concerned, it should be:
(a) peaceful;
(b) actual or genuine;
(c) such as to confer a valid title; and
(d) continuous.
The principle that mere act of discovery by one State is not enough
to confer a title by occupation is well-established by the award of Max
Huber in the lslands of Palmas Arbitration (1928). The facts of the
case are the following:
Spain had originally discovered the Islands of Palmas. The United
States of America claimed a title to these Islands as a successor to Spain.
Netherlands, on the other hand, claimed that, for a very long period, it had
acted as sovereign over the Islands. The Arbitrator, being convinced by the
evidence adduced by Netherlands, held that the long continuous exercise
of effective authority by Netherlands conferred on it the title to the Islands,
and the mere act of discovery by Spain gave it no title.
Extent of territory covered by occupation
There have been two theories regarding the extent of territory tna
is covered by an act of occupation.
 STATE TERRITORY 93
continuity
(a) The theory of
According to this theory, the sovereignty of an occupying State
oxtends to such area as is necessary for the security or natural
development of the area of occupation.
contiguity
(b) The theory of
According to this theory. the sovereignty of the occupying State
evtends to those neighbouring territories which are geographically Wite a sho note
nertinent to the area of occupation. But the theory of contiguity was on slend of Palmas
Feiected by Max Huber in the Island of Palmas case, on the ground Case
M.U.May 2019
"that it was only lacking in precision".
Of late, a third principle, known as the Sector principle, is advocated
According to this principle, the States with territory bordering on the
Polar region have claimed a sovereign title to land or forzen sea within
a sectorbound by definite meridian of longitude intersecting the pole.
However, the validity of this claim is not generally accepted. The
widely held view is that the Polar areas should be subject to an
international regime. The treaty on Antartica signed at Washington, on
December 1, 1959, by the seven Antarctic Section States and
Belgium, Japan, South Africa, the Soviet Union and the United States
seems to modify the Sector principle. This Treaty provides, among
other things, the following:
(1) Antarctica should be used for peaceful purposes only.
(2) There should be treedom of scientific investigation there, and
the parties should exchange information regarding Antarctica Scientiic
programmes.
(3) The nuclear explosions and the disposition of radio active
wastes in Antarctica should be prohibited.
(4) All area in Antarctica should be freely available for inspection
by observers of the contracting States
(5) However, it is expressly provided in Art. V of the Treaty that
nothing in the Treaty is to be interpreted as renunciation of claims or
of any basis of claims in Antarctica. The Treaty, while in force, would
support all the existing territorial rights, but no new claim or enlargement
of an existing claim is to be asserted.
2) Annexation
A State might acquire territorial sovereignty over a territory by
annexation in the following circumstances:
() Where a territory annexed has been conquered or subjugated
by the annexing State (as was sought to be done by Iraq, a
few years ago.)
(0) Where the territory annexed is in a position of virtual sub-
ordination to the annexing State, even before the intention to
annex is declared. In this case, there must be a formaldeolaration
of the intention to annex. If a territory is conquered during the
course of war, the possession of the power is only de facto and
provisional. It becomes de jure only when there is a tormal
declaration of annexation to all other interested powers.
94 PUBLIC INTERNATIONAL LAW

(3) ccretlon
Where a new territory is added mainly through
natur
territory already under the sovereignty of a State, acauisi cause
takes place.Insuch circumstances, no formala lassertion of onbyacc Jses
titleisnecessary
(4) Cession
When a State transfers its territory to another
State acquisitio
cession takes place in favour of such latter tate. The
may be voluntary or may be under compul cession ba
as a result ofterritor
of cession may be even in the nature of agift, of war.
sale, exchange The
constitute a valid cession in international law, any
act which or leasea
intention to transfer sovereignty is sufficient. A
irrevocable and a State cannot derogate from
cession on.cates T
its grant
de
(5) Prescription
When a State is, in exercise of continued
manner, for a long period, over the territory sovereignty in a
n
former State acquires title by prescription.
of another Statceab
ate ,
cording to D. thenthe
the following conditions must be fulfilled for a to H. Johnson,
by prescription: State acquire territo
(a) The possession of such territory
must be under
sovereign title. a claimm
(b) Such possession must
be peaceful and uninterrupted.
(c) It must be public.
(d) It must be for a considerable
considerable length of time is a length of time. What ie
question
by an International Tribunal. However, which can be decided
it must be
there is no decision of any noted tha
conclusively supports the International Tribunal
whiçh
doctrine
international law and which definitely of prescription in

length of time for which the prescribes a particular

de facto sovereignty must be
exercised by the acquiring State.
OTHER METHODS
Though some writers include adjudication
of States and lease as or award by a conference
other methods of acquiring sovereignty over a
territory.However, these
methods are notmaterially differentform cession.
Loss of Territorial Sovereignty
Sovereignty over a territory may
spond exactly to the methods of be lost by methods which corre
are by dereliction (i.e., by acquiring sovereignty. These methods
abandonment), by conquest of other staies
loss of territory by operation
of nature and by prescription. Oppenne
adds that "There is a sixth
Revolt followed by cession mode of losing territory, namely, revo
is no corresponding is a mode of losing territory, for which ine
mode of acquisition.
Soverelgnty over the Air
There are five theories
in connection with the
sovereignty of a State
over the superjacent the question o
air-space
 STATE TERRITORY 95
(a) According to the first theory, the subjacent teritorial State has
absolute sovereignty over the whole space of atmosphere above its
territory to an unlimited height. Therefore, it can prohibit the flying of
the foreign aircrafts over that part of the atmosphere.
(b) According to the second theory, the air-space above a State is
absolutely free and open, being analogous to high seas.
(c) According to the third theory, the territorial sovereignty of the
Subjacent State extends only up to a particular height ofthe air-space. The
remaining part of the air-space is free and open. This theory extends the
analogy of the maritime belt and the open sea to the air-space.
(d) The fourth theory is only a modification of the third theory
mentioned above. According to this theory, a subjacent State has a
right to impose regulations, to protect its interest, on passing foreign
aircrafts, even above the air-belt, though such air-space beyond the
belt is not subject to the sovereignty of the State.
(e) According to the fifth theory, the sovereignty of the subjacent
State extends to unlimited air-space above forbut thecivil
it, other States
have a servitude or right of innocent passage their aircrafts.
AFTER THE FIRST wORLD WAR
The questions of sovereignty over the air-space underwent a radical
change on the outbreak of the First World War. The only theory that
was universally accepted was the first theory, which conceded
sovereignty to an unlimited height over the superjacent air-space. In
1919, the Conference of Paris adopted the Convention for the
Regulation of Aerial Navigation, to which the United States was not a
party. The Convention accepted the following four broad principles:
() The subjacent States have absolute sovereignty over its air
space
(ii) Inpeace time, freedom of innocent passage is to be accorded
to aircrafts of the parties to the Convention, but regular
International Airlines have no such right, unless the subjacent
territory gives its consent.
(i) No aircraft is to be registered in a country, unless it belongs
only to the nationals of that country.
(iv) No aircraft can be registered in more than one country.
Havana Convention
As the United States was not a party to the Paris Convention
(referred to above), it entered into a Convention on commercial aviation
in 1928, known as "Havana Convention". This Convention has
provisions almost similar to those of Paris Convention.
Chicago Conference
On account of the vast technical development and consequent
of air
increase in aviation, new problems relating to the freedom 1944. In
navigation arose. A conference was convened at Chicago in
this Conference, which was represented by 40 States, deliberations
regarding governing commercial air-traffic rights and similar
 PUBLIC INTERNATIONAL LAW
96
navigational matters were carried on. In this Confer ference,
sponsored what is known as the "Five Freedoms of th the
to the doctrine of Five Freedoms of the Air, the airlin. Ac
Cordi
following rights: of each
were to have the
Sta
(1) to fly across foreign territory without landing:
(2) to land for non-traffic purpose;
(3) to disembark in a foreign country, traffic originatina
State of origin of the aircraft; i
(4) to pick up a foreign country, traffic destined h
for the Srale
s
origin of the aircraft; and
(5) to carry traffic between two foreign countries. t
There was no general support to these freedoms. Only
two freedoms were supported by the majorit of the States the lirg
in the Conference. The majority of epresente
ates signed the agreeme
containing the first two freedoms nown as "The Interna
Services Transit Agreement" Less than half of the Statealional
other agreement, embodying all the Five Freedoms. This
sement
known as "The International Air Transport Agreement." This
drew up also a Convention of International Civil Aviation, onferene
general principles of International Air Law. seti
The outcome of the Chicago Conference
The international law on air did not change much
as a resilt fa
Chicago Conference of 1944. The principles adopted in the Conventie
of Chicago are almost similar to those adopted in
the Convention
1919. The Chicago Conference also reiterated the principle the
of
exclu-sive and complete sovereignty of the subjacent State over the
air-space above. It adopted similar principles regarding registration g
aircraft, innocent passage and internal air-traffic, According to the
Chicago Conference, internal air-traffic, i.e., air cabotage, could be
reserved to the territorial State. The other States have no right offlian
over the teritory of the subjacent State without its special authorisation
In conclusion, it may be said that the international law of the air has
remained to be almost the same as it was at the end of the First World Wet
The Problems of the Abuse of Alr
There are two more problems concerning the right of States ove
the superjacent air-space
(1 Radio Communications.- The following principles areer
settled regarding radio communications:
a
a) Every State has a right to prevent injurious transmission
radio waves from traversing its air-space
(b) Every State is under an obligation in international law to preven
the use of its territory for the transmission of the radio wavesinjuro
to other States.
(2) Radiations in the atmosphere.The problem of atom
nuclear tests and the use of rain-making devices has rathd fnal
Controversy amongst writers on international law. One vieW
 STATE TERRITORY
97
uch tests and devices
must be banned as they are likely to cause
niury to the alr-space of other States. The second view is that such
e of the air-space is absolutely necessary in the interest of the
ecurity and the derence o the state conducting the experiments.
herefore, they are not opposed to international law.
Starke takes a middle view and suggests that as no State is an
1surer for its neighbouring States against the damage to the air
DeCe, a State has a right to conduct such experiments, but at the
ame time, the State is under a duty not to cause gross or serious
tamage which can be reasomably avoided and a duty not to permit
he escape or dangerous objects.
uter Space and Internatlonal Law
The recent developments in technology regarding space travel
as raised several problems in international law. The old rule that the
1sque an coelum, i.e, the doctrine of the sovereignty of the subjacent
tate to an unlimited height, has become impracticable. Probably this
loctrine is no longer true law. During these years, when the space
ravellers have crossed the space above the territories of the States,
he subjacent States have not protested. Though it may be highly
ontroversial to maintain that the custom regarding the freedom of the
uter space is already established by the acquiescence of the subjacent
States during this brief interval, yet it is very difficult to maintain that
ubjacent States can claim sovereignty to an unlimited height over the
pace above, because the outer space does not remain constant over
he territory of any particular subjacent State.
uter Space and Sovereignty
Though it cannot be said that customary rules of international law
f a definite nature have emerged, yet there is a large measure of
agreement on the broad principles relating to outer space, which can
e briefly summed up as follows:
(1) The doctrine of sovereignty of the subjacent State to an unlimited
neight cannot work in practice, because such vertical column does not
emain permanently over the territory of a State due to the rotation of
he earth. There seems to be some agreement on the principle that,
or security purposes, there must be sovereignty up to some upper
imit, but there is no consensus as to a specific height for this.
(2) Outer space beyond this upper limit is subject to international
aw and the United Nations Charter. Such space is free for exploration
and use by all States in conformity with international law and is not
subject to national appropriation.
(3) Itis the duty of every State launching a satellite or objectinto the orbit
or beyond to give due notice of launching of such objects and information
concerning such matters as orbit, weights and radio frequencies.
(4) It is the duty of every State launching objects into orbit or beyond
o take precautions to avoid injury to other States, or contamination of
upper atmosphere and outer space or impartment of the free use or
sclentific exploration of the upper atmosphere and the outer space.
98 PUBLIC INTERNATIONAL LAw
of communication satellite should be
(5) Communication by means
and non-discriminatory ha
freely available to all States upon a global
Into outer space retaine
(6) Each State launching an object it may be and
s its
no matter where
sovereign rights over the object, launching State also remains whe dire
it may be found. Consequently, the irectly
object.
responsible for any injury caused by the
to facilitate passage of the object
(7) States are under a duty ahi.
space
purposes of outer
intended for the exploration for peaceful and
landings on their territor
give aid to spaceships making forced
It may be noted that many of the above rules
have oeen
Assembly in
commanded to States by the United Nations General its
Resolution of December 20, 1961.
The progress in space technology and
exploration has been So
law to keep up with
vast that it has been difficult for International
However, the following two Treaties deserve attention:
(a) The Nuclear Weapons' Test Ban Treaty of 1963, under which carr
States parties have undertaken to prohibit, prevent, and not to
out nuclear weapons test explosion beyond the limits of the atmosphere ere
including the outer space.
(b) The Treaty on Principles Governing the Activities of States in
its Exploration and Use of Outer Space including the Moon and other
Celestial Bodies, signed on January 27, 1967 (The Space Treaty of
1967) which states that "Outer space, including the Moon and other
celestial bodies, is not subject to national appropriation by claim of the
sovereignty, by means of use or occupation or by other means." Article
I
provides that "space exploration is to be carried out for the benefit
and in the interest of all countries." Further, all activities are to be
carried out in accordance with international law, and parties to the
treaty undertake not to place on orbit around the earth, or install in
space, weapons of mass destruction, and to use the Moon and other
celestial bodies exclusively for peaceful purposes. (Articles ll and IV)
Article Vill of the Space Treaty provides that jurisdiction and control
over satellites and other objects launched into space is vested in the
State of registry while a projectile is in the outer space or ona celestial
body. Thus., the treaty accepts the national character of projectiles.
However, it must be noted that the treaty is silent on the question
as what happens when it is possible to establish space stations on
to
the Moon. Can the State claim jurisdiction over the base area of the
station? However, the draft treaty relating to the Moon under preparation
by the local Sub-Committee of the United Nations Outer Space
Committee, provides that moon is not subject to national appropriation
by any claim of sovereignty by means of use or occupation, or by tne
other means, while no part of the surface may become property of any
State or be disposed of by any form of alienation.
Article VI of the Space Treaty provides that State parties to tne
treaty shall bear international responsibility for national activities in
outer space; and Article VIl provides that each State party that launches
 STATE TERRITORY 99

claims the launching of a space object, or from whose territory

or facility, an objed
ject is launched is internationally liable for damage to
or treaty.
another party to the
These principles of general nature were further clarified by the
Convention of International Liability for Damages Caused by Space
in March, 1972). This Covenant imposes absolute
Objectson(signed
ility a launching State for damages caused by its space object on
e Surface of the earth or to an aircraft in flight. However, in the event
nf damage being caused elsewhere than on the surface of the earth to
object of one launching State or to persons or to property on
a spa
hnard, such a space object by a space object of another launching State
the latter shall be held liable only if the damage is due to its fault or the
farltof the persons for whom it is responsible. It also provides for joint
liability and a severely limited exoneration from strict liability.
Article V ofenvoys the Space Treaty proclaims that parties shall regard
astronauts as of mankind in outer space and shall render to
in the event of accident, distress or
them all possible assistance
emergency landing on the territory of another State party or on the
high-seas. t is also provided that when astronauts make such a landing,
they will safely and promptly be returned to the State of registry of
their space vehicle.
Spheres of Influence and Spheres of Interest
States have often claimed rights less than territorial sovereignty
over certain territories. Such rights are described by diplomats as
spheres of influence or spheres of interest. Hall defines a sphere of
influence in the following way:
".an understanding which enables a State to reserve to itself a
right of excluding other European powers from territories that are of
importance to it politically as affording means of future expansion to
its existing dominions or protectorates, or strategically as preventing
civilized neighbours from occupying a dominant military position."
A sphere of interest is that sphere in which a State asserts or
claims to possess exclusive economic or financial concession or
exclusive rights of exploitation. To claim a particular territory, either as
a sphere of influence or as a sphere of interest, is not consistent with
the obligations of the States under the United Nations Charter, to
respect the territorial integrity of other countries.
2. PARTs OF STATE TERRITORIES
The territory of a State consists in the first place of the land within What is state
its boundaries, and if the State is one with a sea-coast, certain waters territory?
which are within or adjacent to its land boundaries. Apr. 2014

Boundaries
According to Starke, a boundary is often defined as the imaginary
ine on the surface of earth, separating the territory of one State from
that of another. But, a boundary may not mean always a line in the
borderland. It may mean different things to a surveyor, to a strategist
 100 PUBLIC INTERNATIONAL LAW

MCO No. 23 and to an administrator. Boundaries are either recognised expressly

by treaty or acknowledged without express declaration.
What is a land
locked state? Land locked states: A state whose boundaries are
Discuss the rights& surrounded by land is called land-locked state. Art. 124(11ely of
on
duties of land. Convention the law of the sea of 1982 defines land--locked the
ocked states &
as a state which has no sea-coast". Out of thirty landlocked sai states
coastal state.
Nov. in the world, 14 states are in Africa. These states have free
2013
to &from sea and land. For instance, Nepal is a landlooc
cess
locked sta
What are land On 318 July 1950, the treaty of Trade and Commerce was si
locked states? ned
Dec. 2014 giving Nepal access to the sea through India on reciprocal bas
May 2019
In the case concerning the Temple of Preah Vihear (Merits) ambod
Give names of (Thailand) 1.C.J. Reports (1962) 6, the disputed area was the region of
Certain Temple sanctuary (Preah Vihear), and there was a conflict het
convention which
provides for use of
access of sea to the frontier according to a Treaty of 1904, whereby it was to follw
landlocked states. watershed line, and the frontier according to boundary maps completed in
Nov. 2012
1907, and communicated in 1908 to the Siamese (NewThai) Government
As the Siamese Government, and later the Thai Government, had by thoi
conduct apparently accepted the map frontier line, and had not shown that
any special importance was attached to the watershed line, the Court helt
that the map line should be preferred, and that the Temple area was under
the Sovereignty of Cambodia.
Do land locked Boundaries may be classified either as natural boundaries or
Statesenjoy free artificial boundaries. Natural boundaries consist of mountains, rivers,
Explain. sea-shore, forests, etc., where these divide the territory of two or
Nov. 2012 more States. Artificial boundaries consist either of signs erected for
the purpose of parallel of longitude or latitude. When a river constitutes
the boundary of two States, it will be difficult to draw the boundary
line. In the case of a non-navigable river, the boundary line generally
runs down the middle of the river. This line is known as the "median
What is the term line". In the case of navigable rivers, the boundary line generally
used for the state runs through the middle line of the deepest navigable Channel,
which allows its otherwise known as-the Thalweg. The Peace Treaties of 1919-20
territory to be used
by the landlocked accepted the above principles in the case of rivers which constitute
states? the boundary of two States
Nov. 2012 If the boundary is constituted by lakes or land-locked seas, the
Apr. 2014
boundary line depends on the nature of the lake or the sea concerned.
Waters as Part of State Territory
Waters which constitute the territory of a State may be either
national waters or territorial waters.
(1) NATIONAL WATERSs
National waters consist of the waters in its lakes, in its canals,
Explain the term its rivers together with mouths, in the ports, and harbours and in so
n
(2 marks) of its gulfs and bays.
M.U. May 2006 (2) TERRITORIAL WATERS
MCO No. 24 Territorial waters consist of the waters contained in a certain z0
 STATE TERRITORY 101

belt called the maritime belt, which surrounds a State and thus
or the water in some of its bays, gulfs and straits.
ludes part of further discussion on Territorial Waters, see "Maritimne
Note: For a
Territorial Sea", discussed later in this Chapter.]
Belt or of view of international law, the distinction between
From the point waters is important. National
territorial waters and territorial
national and ways:
in three important
vaters differ
11) In territorial waters, foreign states can claim for their ships a
passage, wherea in national waters, no such right
certain ht of
exists. diction, the municipal laws of certain States what is teritorial
of
(2) In matters between two
distinction the sea?
draw a measurement of territorial waters will be from a base line Apr. 2015
(3) The
of the guit or bay cease
to be national.
where waters
RIVERS
Oppenheim classifies rivers into the following categories:
rivers;
(a) National
(b) Boundary
rivers;
(c) Non-national rivers;
(d) International rivers.
(a) National rivers
A river which lies wholly
within the boundaries of one and the
is no rule of international
same State is known as a national river. There
right of admission for their pubic
law which grants a foreign State the
or private vessels to navigation on national
rivers. In the absence of a Discuss territoria
water of a Coastal
treaty, every State can exclude foreign vessels from its national rivers, state under the
or admit them conditionally. UNCLOS. What ere
(b) Boundary rivers the rights & dutiess
0f Coastal states on
Rivers which separate two different States from each other are sea?
temitorialsApr.
known as boundary rivers. In the case of boundary rivers, the riparian 201
States can regulate navigation on such part of these rivers as they
own. They can exclude vessels of non-riparian States, unless there is
a special treaty to the contrary.
(c) Non-national riverss
Rivers which run through several States are described as non-
national rivers. Such rivers are owned by more than one State. Each
State owns that part of the river which runs through its territory. The
right of the rlparian States to exclude vessels of the non-riparian
States in the case of the non-national rivers is similar to their rights in
the case of boundary rivers.
(d) International rivers
International rivers are those rivers which are navigable from the
open sea, and at the' same time either separate, or pass through
several States between their sources and their mouths. Though these
102 PUBLIC INTERNATIONAL LA
rivers belong to the territories of the different States concerned, erned, yet
they are named International rivers.
FREEDOM OF NAVIGATION ON INTERNATIONAL RIVERS
Several writers on international law, commencingpassage with Grotie
have been of the opinion that there is a general right of fus
States along with International rivers. Oppenheim observes, "freer
on all such rivers in Europe an
of navigation in times of peace
Nation
many of them outside Europe for merchant men of all
law." But Starke thinkes
recognised by conventional international that
never been generally accepted in practice, an
"this view has
la
certainly not recognised as a customary principle of international
Regarding the freedom of navigation in international rivers, ther there
are three views:
(1) Some writers are of the opinion that such freedom of navigation
is confined to times of peace only.
(2) The second view (which finds the support of Starke) is thes
only countries through which an international river passee
have such freedom.
(3) According to the third school, the freedom of navigation in
international rivers is neither restricted to times of peace nar
to the riparian State, but it exists in tavour of all, subject oniv
to the right of each State to make necessary regulations in
respect of the use of the river within its boundaries.
Freedom of navigation on international waterways is now
determined by special treaties. The process of regulating freedom of
navigation on most of the great river systems of Europe began with
the Treaty of Paris in 1814, and finally resulted in acceptance of the
Barcelona Convention in 1921 under the auspices of the League of
Nations.
BARCELONA CONVENTION ON THE REGIME OF NAVIGABLE
WATERWAYS OF INTERNATIONAL CONCERN
This Convention, which has received the requisite number of
ratifications and is now in force, laid down the following rules:
(a) Each State which is a party to the Convention accords free
exercise of navigation to the vessels flying the flag of any of
the other oontracting States, on those parts of navigable rivers
which may be situated under its sovereignty or authority.
(6) The riparian States can have the right to cabotage (i.e., internal
traffic), and can exclude the warships of other countries from
the international river.
(c) In exercise of navigation, the nationals, property and flags o
al contracting States are to be treated on a footing of perie
equality.
(d) Each riparian State is bound to measures likely
refrain from
reduce the facilities for navigation.
 STATE TERRITORY 103
Territorial Sea
Maritime Belt or
AS already
pointed out, the territory of a State includes certain MCO No. 25
sea, known as the territorial waters. One of the important
part of theterrito
ritorial waters is the maritime belt. The maritime belt Oiscuss territarie the law
kinds of relating to
comprises a belt of coastal waters to a width of at least three miles sea
measuring from the low-water mark of other selected two
base lines. MU Oct 2011
writers on international law, there are views on the
Amongst the
on the maritime belt. According to
nature of the right of a ittoral State
itime belt is that part of the sea hich is State What is Termtora
one view, the fo of innocent passage for Sea? Eplain the
property, though foreign States have a right
merchant vessels through the belt. According to the other view various freedoms of
their view), the maritime belt is not considered to be High Seas with 20
hich is a minoritylittoral State, but is subject to certain supervisory propnate eramples
of the
the territory littoral State. It appears that, by a long standing practice M.U Jan 2019
Owers of the
of international law
of the States, the first view is accepted as a part MCO No. 25
NOTION OF MARITIME BELT
THE DEVELOPMENT OF THE
There was a time when maritime States had asserted their
this claim of the States
sovereign rights over open sea, but gradually
the freedom of the high seas is an
was narrowed down, and today, in the interest of the
established principle of international law. But
of the littoral State), the
security (and probably economic advantages of the
concept of maritime belt has developed along with the concept
freedom of the high seas.
Bynkershoek, in his book "Essay on Sovereignty over the Sea". MCO No. 2
He enunciated
gave a precise form to the concept of maritime belt.
It was at a later stage that the cannon-shot
the cannon-shot rule. in miles. As probably the
rule was expressed as a definite figures
width of
maximum range of a cannon-shot was three miles. the
maritime belt, over which a littoral State should exercise complete
sovereignty, was considered to be three miles. There is another
theory that the three miles rule has its own independentInorigin and
that it was accidently blended with the cannon rule. the 19th
in
century, the three mile-limit received recognition by the States
their practice by the Courts and the Jurists.
THE CONTROVERSY REGARDING
THE WIDTH OF THE MARITIME BELT
The powerful maritime States today support a three-mile limit on the
maritime belt, whereas other States like Norway, Sweden, Spain and
Portugal claim that the range of maritime belt must be much wider. The
minimum limit of three-mile rule can be taken to have found universal
acceptance, but regarding the maximum width of the belt. there does of
not seem to be any unanimity. The Hague Codification Conference
of the belt, as
1930 could arrive at no definite agreement on the breadth
Some States very vehemently opposed it. As a writer on international
aw puts it, the three-mile limit rule was the chief victim of the
Conference. It was an idol dethroned and not restored
104 PUBLIC INTERNATIONAL LAW

The Internatlonal Law Commisslon and the width dth ofot

the
marltime belt
The International Law Commission examined the problem of the
proposal came to be
width of the maritime belt and its draft amined
by the Conference of the States, known as the nternational
Internation-e Law
Confe-rence on the law of the sea, held at Geneva in 1958
This Conference, attended by 87 nations, revealed an utteri
width of the k of
unanimity amongst the nations regarding the
belt. The powerful maritime States insisted that
the limit mst rm
claimed thre
miles, whereas certain South American nations
maritime belt should extend to 200 miles
in width. Canada s the
ggested
belt should be six miles
that the maximum width of the maritime with
a
contiguous zone of twelve miles. India, along with Mexico, sugg
to twelve milsted
that the territorial sea might vary from three miles leswith
a fishing zone extending to twelve miles from the base line irrespe
of the width of the maritime belt. But the Conference failed
to ve
two principlespla
limit on the maritime belt. However, the following
to have emerged from the Conference:
() The maximum width of a maritime belt must be twelve miles.
() The minimuim width of a maritime belt must be three miles,
Base line measuring the maritime belt
Another controversy in connection with the maritime bet is
regarding the basis on which the base line of the coast must De
drawn. There were two views on this question. The first view held tha
the base line must necessarily be a line running across the indented
coast. The other view is that the base line need not be drawn parllel
to the low-water mark on the coast, but it must follow the general
direction of the shore. This controversy was set at rest by the
International Court of Justice in the ANGLO-NORWEGIAN FISHERIES
CASE (1951), which recognised the second view. The facts of the
case are the following:
Norway, by its Decree of July 1938, defined its fishing zone by
reference to a base line, draw through 48 selected points on the main
land or on islands or rocks at a considerable distance from the main
land. The sea, enclosed by these lines and a line parallel to those
lines at a distance of four miles, was to constitute the zone. The result
of this definition in the decree was that large stretches of sea came to
be claimed as the territorial waters of Norway, and other States were
excluded from exercising rights of fishing. Great Britain claimed that
this definition of the base line was contrary to International Law. In
dispute was referred to the International Court of Justice. The Cout
held by a majority that Norway's definition of the base line Was n
inconsistent with international law. This view was based mainly on n
fact that, traditionally, the waters covered by the decree of Nor
were an exclusive preserve of Norwegian fishermen, and that
lengths fixed by the decree were reasonable.
 STATE TERRITORY 105

According to Starke, the three main points Ano

nIs laid down in the Anglo-
following:
Norwegian Fisheries case are the
t) Provided that the littoral State can satisfy an international
tribunal of the reasonableness and justice of defining the
territorial sea by reference to base lines, and provided further
followed.
that it has not acted arbitirarily, this method may be
to the low-water
(i) Such base lines need not be drawn parallel
mark on the coast, so long as the general direction of the
shore is followed.
may be deemed part of the
aii) The waters of bays and gulfs
territorial waters, notwithstanding that the distance between
the headlands is greater than ten miles.
International
Another important contribution of the decision the
of
in the Anglo-Norwegian Fisheries Case is that it
Court of Justice lnternational
clarified the concept of the maritime belt. According to the
Court of Justice, the
maritime belt is not just a limited artificial
over the open sea; it
extension of the State's ferritorial sOvereignty
is a contiguous area of
the territory of the sea over which the littoral
rights for safeguarding its
State can exercise exclusive sovereign contribution of this decision
economic interests and security. The unique
of the maritime belt to be not only
was that it indicated the rationale
security but also the economic interests of the littoral State.
The Geneva Conference of 1958 on the Law of the Sea adopted
a convention on the territorial sea, based
on the draft article of the
International Law Commission. The following principles were laid
down in the Convention:
(a) The normal base line for measuring the breadth of the territorial
sea is the low-water line along the coast.
(b) In localities where the coast line is deeply indented or cut, or
if there is a fringe of islands along the coast in its immediate vicinity,
the method of straight base line adjoining the appropriate points
may be implied.
(c) Where the method of straight base line is applicable, an
account may be taken of the economic interest peculiar to the region
concerned, the reality and importance of which are clearly evidenced
by a long usage.
(d) The drawing of such base line must not departto any appreciable
extent from the general direction of the coast, and the seas lying within
the lines must be suficiently closely linked to the land domain.
(e) The system of straight base line may not be applied in such a
way as to cut off the territorial sea of another State from the high seas.
The characteristlcs of the maritime belt What is "innocent

The following are the characteristics of the maritime belt

(territorial sea): MU. May 2012
() The littoral State is the supreme authority within the belt. It Apr. 2014
has sovereign jurisdiction over it. May 2017
 106 PUBLIC INTERNATIONAL LAW

() The merchant ships of foreign States havethe right

passage in the maritime belt. The passage is of innoce
long as a ship does not use the territorial innocentCen
sea for ommitine
any acts prejudi to the security of the coastal
to the rules of international law
Stale
contrary
(ii) Even the foreign warships have a right of innocent
o
MCO No. 28
through the maritime belt in time of peace. nt passage
(iv) The littoral State may reserve cabotage for its
own
ICabotage means intercourse ween any two bjects.
country, whether on the same coast or the differ parts
the
rentcoasts
provided that the different coasts are thethe coasts
of one an
same country.] and
(V) It may reserve the fisheries within the belt for
its own subjed
[Note: See also "Maritime Belt" under the topic, "Terri
Jurisdiction" in the next Chapter.]
CONTIGUOUS ZONE
The doctrine of contiguous zone is closely
connected
concept of territorial sea or maritime belt in international lawwith s.he
which felt that the three-mile territorial sea did not provide adeni
Write a short note
safeguards to the specific interests of the coastal State (in particd
on: Contiguous to its revenue and health regulations) have claimed jurisdictiou
Zone. control over some additional "contiguous Zone", in which limited power nd
M.U. Apr. 2011 of control could be exercised. The Geneva Conference adopter
convention on the contiguous zone. Paragraph 2 of Article 24 of Part
of the Convention on the territorial sea, limits the extent
MCO No. 29, 30 of the
contiguous zone to twelve miles from the base line from which the
breadth of the territorial sea in measured.
Para 1 of Article 24 of the Convention provides that in a zone ot
the high seas contiguous to its territorial sea, the coastal State may
exercise the control necessary to prevent and punish the infringement
of its customs, immigration, fiscal or sanitary regulations.
It must be noted that the coastal State has no
sovereignty over
the contiguous zone. This is the difference between the contiguous
zone and the territorial sea. Over the contiguous zone, the State
exercises the control necessary for the purpose mentioned above
but it exercises no jurisdiction, In the words of Sir Gerald Fitzamaurice
"the power is primarily that of the policeman, rather than of the
administrator or the judge."
MCO No. 31 The Continental Shelf and Submarine Areas
The continental shelf is the submerged belt of the sea contiguous
What is continental to a continental land-mass, and formed in such a manner as to D
shelf? realy an extension of or appurtenant to this land-mass, but notsituat
Nov. 2012
at a greater depth beneath the sea level than six hundred feet. Durng
recent years, the States have claimed the exclusive control or
 STATE TERRITORY 107
Eplain Conti
resources of such continental shelf. The United States made this nent
elaim in 1945. Once this clain
was communicated to a number of High Seas n7
interested powers, was folowed by declarations by South American
it M.U Ap, 2095
Argentina, Chile, Peru and Costa Rica. The States
States like Mexico,
claim an exclusive control of the
resources of the submerged belt of
shelf, though the water above such soil is MCO No. 22
the sea in the continental
accepted to be high seas. The claim extends to huge areas, and
therefore, the problem of the continental shelf assumes immense
doctrine
importance in international law. The claims being recent, the
af continental shelf
involves conceptions previously unknown to Defline the law of
the sea. Explain
international law. the terms. "terri
involved in the doctrine of continental shelf are the toria waters
The problems
following:
EEZ Conti
nental shel and
(1) The delimitation of the continental shelf. "High Seas"
(2) The nature of the rights of the coastal State over the shelf. M.U. Nov. 2005

(3) The status of the superjacent waters.

(4) The right of the coastal States to lay down submarine cables
installations.
and to raise constructions and
(5) Where two or more States are contiguous to the same
continental shelf- the boundary of division.
These questions have not been as yet satisfactorily answered
by
definite rules of international law. However, the Geneva OConference
of
1958 on the Law of the Seas adopted a Convention on the continental
shelf based on the drait articles prepared by the International
Law
Commission. A summary of the Convention on the Continental Shelf
is given below.
The Convention on the Continental Shelf (adopted at the Geneva
Conference of 1958)
The Geneva Convention defines the "Continental Shelf" as follows
The term "continental shelf" is used as referring
(a) to the seabed and subsoil of the submarine areas adjacent to
Write a shon note
the coast, but outside the area of the territorial sea, to a depth of 200 ne Continenta
metres or, beyond that limit, to where the depth of the superjacent Shelf.
waters admits of the exploitation of the natural resources of the said M.U. May 2005
areas; Nov. 200s
(b) to the seabed and subsoil of similar submarine areas adjacent Nov. 2007
Apr. 2010
to the coasts of islands.
Jan. 2079
The Convention further adopted the following rules regarding the
continental shelf:
(i) The coastal State exercises, over the continental shelf.
sove
reign rights for the purpose of exploring it and
exploiting itsWhat is continenta
(2 marks)
resources. Such rights are the exclusive rights of the
natural M.U. May 2012
coastal State. Nov. 2015
(i) The rights of the coastal State over the continental shelf do Dec. 2018
108 PUBLIC INTERNATIONAL LAW

not effect the legal status of the superjacent

seas or that of the air-space above that water. rs
waters as
hig
(i) Such exploration or exploitation of the natural resourea
not result in any unjustifiable cesmusi
rference with avigation
fishing or the conservation of the living resouces
of the
t
(iv) The coastal State is entitled to construct
and maintain sea
continental shelf, any installation necessary for t on Ihe
and explotation of the natural resources.
()Due notice must be given of the construction, and
means for giving warning of their presenceperm mi anent
maintained. ce must be
(vi) Where the same continental shelf is adjacent
to the territories
two or more States whose courses are oppositeto
eto each other.t ..
boundary is the medium line, unless otherwise agreedth
(vii) Where the same continental shelf is
adjacent to the territou.
of two or more adjacent States, the boundary
of equi-distetance
from the nearest point of the base line from which
of the territorial sea of each State is
the bread
measured, unlae less
otherwise agreed.
However, in the North Sea Continental Shelf case (1.C.J.
Reporte
1969, p.3), the International Court of Justice held that
the Germa
Federal Republic was not bound by this Convention in delimitation af
the boundaries of the continental shelf, with the Netherlands, Denmark
on the following grounds:
(1) The Federal German Republic was not a party to the
Convention.
(2) It had not accepted the rule laid down in the Convention in
a
manifest manner.
(3) The equi-distance principle had not, through its application by
a certain number of countries, become a settled rule of
customary international law.
The Court also added that the equi-distance principle could be
applied only if there was an agreement between the countries
concerned. Otherwise, delimitation of continental shelf between
adjacent States must be on equitable priciples.
Straits
The position of straits in international law is similar to that of the
maritime belt. If the width of the strait is less than six miles. the strai
will be considered to be territorial. If such straits divide the territories
of two States, the waters are territorial and the boundary line between
the two States runs across the middle line of the straits. However, the
opinion regarding the straits which exceed six miles in width, is no
well-settled.
A right of inoffensive passage through such straits is allowed boln
to foreign merchant shipping and foreign warships. The rule here
 STATE TERRITORY 109
connecting two portions of the open sea must be regarded
that straits
nerally as belonging to an International maritime highway.
Court of Justice in THE CORFU
As decided by the International
CHANNEL CASE, the geographical situation of the straits and the
facts of its use for international navigation must be the decisive criterion
a strait being an international maritime highway, Straits connecting
he oDen sea with the territorial bay are not regarded as international
maritime highways.
Though these are the general principles of international law
aDplicable to straits, certain straits are subject to special local
regulations. For example, the Montreux Straits Convention of 1936
orovides the rules regulating the freedom of navigation in the straits of
Dardanelles.
the Bosphorus and the
(The Chorfu Channel Case is discussed at length in Chapter XX.)
Bays and Gulfs
The law regarding the bays and gulfs can be studied in two phases:
it was before the decision of the International Court of
The law as
Justice in the ANGLO-NORWEGIAN FISHERIES CASE and the law
as interpreted in that case.
THE LAW PRIOR TO THE ANGLO-NORWEGIAN FISHERIES CASE
Bays whose entrance was not more than six miles wide were
considered to be internal or territorial, and the maritime belt was
measured from a base line joining the two head lands. If the entrance
of a bay was wider than six miles, unanimity of opinion was lacking.
Some writers were of the opinion that bays with an entrance more
than ten miles wide cannot belong to the territory of the littoral State.
There were others who did not impose this rigid ten-mile rule. For
example, Canada claimed the Hudson Bay, the entrance to which is
fifty miles wide, as territorial.

THE LAW AS LAID DoWN BY THE ANGLO-

NORWEGIAN FISHERIES CASE
In the Anglo-Norwegian Fisheries Case, the International Court of
Justice declined to adhere to the ten-mile rule, and laid down the
following principles:
(1) Where there has been a long and reasonable practice accepted
by the other States, to treat the waters of certain bays or gulfs
as a part of the littoral State's international waters, such a
practice must be recognised by other States.
(2) If there is no such practice, it is open to a littoral State, on the
grounds of economic necessity or close connection of the bay
or gult, to proclaim that the waters of the bay or gulf are of the
character of territorial waters.
(3) The indentation of a bay or a gulf could be a factor determining
the general direction of the coast-line for the purpose of drawing
the base line delimiting the extent of the territorial sea.
110 PUBLIC INTERNATIONAL LAW

The outcome of the decision in the ANGLO-NORWEGIAN FISH

RIES CASE was that the ten-mile limit rule was rejected. Thol ugh
case did not lay down a definite limit on the entrance of the curv the
of the coast to constitute a bay, yet it laid down the critalur
prescribing such a limit. The decision emphasises the fact that
lor

and gulfs are to be treated differently from the open coast, as the as
and gulfs. might raise problems of defence or national inteari
ayYs
rity or
commerce of the littoral State but Lauterpacht is rather critical ot
f the
decision, and he thinks that the legal concept of a bay needs furth
judicial clarification or international regulation.
NOTE- The Geneva Convention of 1958 on the law of the Sea ea
has attempted to define a bay, as follows: The indentation shall
however be regarded as a bay unless its area is large as eo
than, that of the semi-circle whose diameter is a line drawn acros
mouth of that indentation."This means that, to be a bay, an indental
must penetrate in land to a distance equal to at least half its breo
at the mouth.
Development since the Geneva Settlement of 1958
Though the Geneva Convention made an attempt to achieve
compre-hensive law of the sea, there were certain drawbacks intha
settlement. Firstly, the Geneva Settlement left the following mattere
unsettled:
(a) the breadth of the territorial sea;
(b) the question of innocent passage for warships at all times
through straits constituting an international highway and
consisting wholly of territorial sea;
(c) the right of passage through and overflight in relation to the
waters of archipelagoes; (-see below-); and
(d) the question of protection and conservation of maritime species
for purely scientific or tourist-amenity reasons.
The term "archipelago" refers to "a group of islands (including
their waters and other natural features), that such islands form an
intrinsic geographical, economic and political entity, or which historically
have been regarded as such". An archipelagic state is a state
constituted wholly by one or more archipelagos. Some examples of
modern States which can be considered to be archipelagos are: Hawai
the Maldives, Virgin lslands, Indonesia, Philippines and Japan.
In addition to the above
gaps in the rules of the law of sea, there
was another difficulty. The States did not adopt all the conventions, but
ony some of them in a selective manner. In addition to this, the
exploitability criteria of the continental shelf presented certain
differences between the technologically advanced States and other
developing States.
Anoher important aspeat of the defect in the law of the sea
became evident when in March 1967, a Liberian registered Ol tanke
the Torrey Canyon, ran aground off the
Southern Coast of Une
 STATE TERRITORY 111

Kingdom, releasing about 1,00,000 tonnes of crude

oil, which hada serious

effect upon adjacent Deaches. This incident focussed the attention of the
safety measures to be taken
States towards the problem preventive and
of
to be
against oil pollution of the sea, and also the problem of measures
taken by a State which was effected by such accidents. Some States made
unilateral statutory provisions which affect other States. Ultimately, the
following two resolutions were adopted by the United Nations in connection
Oil Pollution of sea:
with the problem of the
(1) Declaration of Principles Governing the Seabed and Ocean floor
i
the Subsoil thereof beyond the Limits of National Jurisdiction;
and
(2) Adecision to convene a Third United Nations Conference on the
Law of the Sea.
As a sequal to the first declaration and to meet the nature of the problem
presented by the lorrey Canyon incindent, the following two conventions
were adopted at Brussels in 1969:
(a) the International Convention relating to intervention on the high
seas in cases of Oil Pollution Casualties (Intervention Convention);
and
(b) the International Convention on Civil Liability for Oil Pollution
Damage (the Liability Convention).
The first convention (Intervention Conventional) gave the parties certain
rights of taking defensive measures against a Pollution or threat of Pollution
following maritime casualties. This convention was supplemented by a
protocol relating to Intervention on the High seas in cases of Marine Pollution
by substances other than oil, adopted at London in November, 1973.

Convention on law of sea

On 30th April 1982, the draft of the convention on the law of the sea Convention of the
aw of the sesa
was adopted wherein 117 states signed the convention. Later this number M.U. Apr. 2014
increased to 159. The convention basically laid the rules for al parts and
use of oceans to ensure that there were less disputes. The said convention Discuss provisions
has 320 articles divided into XVIl parts and IX annexes. It dealt with the of United Nations
Convention on Law
deep sea bed mining and the regulations were found extremely stringent, of the Seas
especially by the United States. United states was dissatisfied with the M.U. Dec. 2019
regulations since the convention also introduced revenue-sharing obligations
for deep sea-bed mining and despite these restrictions few states protested MCO No. 33

Since there was no protection to the investors. The convention has played a
Significant role in curbing the industrialized states. These industrialized states
are not allowed to exploit the ocean floor beyond their national jurisdiction in
accordance with their domestic law
 112 PUBLIC INTERNATIONAL LAW
What is UNCLOS?
ENplaln the impor
tance o UNCLOS Conference on the Law of the Sea
in resoiving the
disputes amongst The Third United Nations Conference on the law of tho
disputing states. (UNCLOGS) made an attempt to identiy 1he major features a sea
of a
MU Dec. 2014
Apr.
code of the law of the sea and t enter into a comprehensive Cone
2016
Dec. 2016 The Conterence had six sessions. However, all that it achievedode
May 2017 the formulation of the informal single negotiating text. was
The Conterence has been rather slow in its results, mainly
Whet is law of sea? reasons. Firstly. the Conference was bent on creation of a
State and explain and compr hensive ternational regime for the high
i
far two
plete
seas, the coast-
cw
the importance of
aw of sea in seas and seabeds and the deep ocean floor. In addition to this, the here
today's political was also an inherent conflict between the developing
countries and
scenano. the developed countries, the developing countries demanding areat
M.U. Nov. 2012 eater
rights to the coastal States and the developed countries advoCatfin
freedom of venture. ating

spite of the cross current of opinion, the achievements

In
of Third
Conference on the law of the sea can be briefly stated as follows
(1) The concept of the 12-mile territorial sea has
gained general
acceptance, though a few countries remain committed
to a
200-mile rule.
(2) The right of innocent passage is to be defined more precisely
and more explicitly.
(3) There is also a general acceptance of the concept of the fwo
hundred-mile coastal "exclusive economic zone" to
appertain
to the coastal State. The concept of the
exclusive economic
zone is that the coastal States may have sovereign rights for
the purpose of exploring, exploiting, conserving and managing
the industrial resources of the bed and sub-soil and
superjacent waters while beyond the territorial sea, the rest
would be open free sea.
(4) Notwithstanding the exclusive economic
zone, the concept of
contiguous zone is to be retained to enable control by the
coastal State for the prevention and punishment by it of
infringement of its customs. fiscal emigration, regulations, etc.
(5) There will be a special regime for
straits used for international
navigation.
(6) Qualified recognition will
be given to the "archipelagic principle
under which all waters around, between
and connecting the
Outer island of the archipelago,
are to form
part theof internal
waters of the State having sovereignty
over the archipelago.
(7) The principle of anti-pollution
control of the marine
 STATE TERRITORY 113
environment is accepted. Wha yu
undorctend br
(8) The principle of co-operating between States in the manage- UNCLo97 Elato
ment and conservation of living resources of the high seas ate the heg a
eranp
areas is accepted. Uiov 2015
(9) A special regime of access to the sea is to be established
governing the relation between land-locked States and
transit States.
(10) There Is a general acceptance of the principle of establishing
international seabed authority to exercise powers of
supervision and regulation in regard to areas of high seas
beyond the waters subject to national jurisdiction.
In the first half of 1977, the sixth session of the Third
U.N

Conference on the Law of the Sea was held New

in York. As a result of
Conference
further deliberations, there was greater agreement. The
accepted the three major regimes regarding the territorial sea (and
high seas. There has
contiguous zone), the continental shelf and the
been agreement regarding the two hundred-mile economic zone
also
Resolutions adopted on 30th April, 1982
Ultimately, the Conference on the Law of Seas adopted a resoliution What EEZ? is

MU. NCV 215

on 30th April, 1982. A significant feature of this resolution
is that the
May 2017
Convention accepted the concept of 12 nautical miles as the territorial
sea. The resolution by the Conference consists of 320 Articles. Ihe Wrte a shat note
resolution brings in a new idea of contiguous zone of 24 nautical miles. an: Ercisve E
Zone (Eez
The resolution has accepted the concept of 200 nautical miles nomic M.U. Apr. 2015
coastal as excluslve economic zone to appertain to the coastai Apr 2018
State. The concept of the exclusive economic zone is that the coastal
States may have sovereign rights for the purpose ot exploring.
exploiting, conserving and managing the industrial resources of the
exclusive economic zone. Such a State would also have jurisdiction
(with due regard to the rights of other States) as regards the
establishment and use of artificial islands and structures, protection
and preservation of the marine environment, etc.
It may be noted that in the exclusive economic zone, the traditional

freedoms of the high seas, e.g., navigation, over-tlight of aircraft,

laying of cables and pipelines, are not affected. If any conflict
arises as to which State has the right or jurisdiction, such conflict
is to be resolved "on the basis of equity and in the light of all the
relevant circumstances."
The U.N. Convention also deals with other practical aspects of the
eNclusive economic zone, e.g., construction of artificial islands,
installations and structures by the coastal State, conservation of living
 PUBLIC INTERNATIONAL LAW
114
resources (like migratory birds and
marine animals), etc.
It is interesting to note that
although the United States was
nevertheless, oppos
by a Presidential POppos
to the Convention, it has Osed
roclamatio
of 10th March, 1983, explicitly recognised and adopted thedma oncept
economic zone.
the exclusive o
Another important controversy that has been attemptedd t
to
is regarding the sea-bed resources. It is to be noted that besolveg
zonsea-be
beds
beyond territorial sea, continental shelf and contiguous nes atford
great opportunities of not only exploiting the live resources of of thor
the
but also of the mining resources of
thee sea-bed.
There ha ve sea
countries which have been exploiting these resources, and they Dee been
claim
that no other State can interfere with their right to exploit the resour
But at the same time, there have been clain of under-develd
countries that such right to exploit the sea-bed resources undped
high seas has to be subject to some International Regim
satisfactory to note that the resolution of 30th April, 1982 ha almos
accepted the "parallel system" advocated by Dr. Henry Kessinge
As
a result of this acceptance, it was decided that there shall S
e an
"International Sea-bed Authority" based on the principle of iversal
membership. The Authority shall have 36 members. In addition toth
there shall also be a business organisation called "Enterprise" f
conducting of sea-bed resources for the benefit of all mankind
The 1982 Convention (vide Art. 74) provides that the delimitation
of the exclusive economic zone between States with
opposite or
adjacent coasts is to be effected by agreement on the basis ot
international law (as stated in Art. 38 of the Statute of the International
Court of Justice) to arrive at an equitable solution.
In the Gulf of Maine case [Canada v. U.S.A. (1984)]
which deat
with Delimitation of the Maritime Boundary in the Gulf of Maine Area
the Chamber maintained that in deciding the delimitation of both
continental shelf and fishery zone, those criteria should be employed
which, by their neutral character, were best suited for employment in a
multi-purpose delimitation. In the case before it, the Chamber utilised
geographical criteria. It held that the practical methods to be employed
to give effect to the criteria should basically
be founded upon geography
and be as suitable for the delimitation of the sea-bed and subsol as
that of the superjacent waters and their living resources, and
0
Chamber therefore concluded that only geographical methods wou
be utilised. It further held that any agreement or other equivale
solution should involve the application of equitable criteria. Accordingy
it refused to apply
the parties' respective scale of fishing or
exploitation. since this could not serve pnless
as an equitable criteria, Uipear
it was shown that "unexpectedly, the overall result should ahthe
radically inequitable as entailing
disastrous repercussions O
 STATE TERRITORY 115

and economic development of the population concerned"

hcistence and
subsistence
JAMAHIRIYA v. MALTA [The continental shelf case
BYAN ARAB
case dealt with delimitation of the continental shelf
(1985)]- This
with opposite or adjacent coasts. In this case, the
en States
International Court refuted the contention that the respective
of the parties concerned could be taken into
onomic position acknowledge
that possibly security and defence
account. But it did
given cognizance.
interests might be
Canals
waterways or inter-oceanic canals. In
Canals may be either inland
canals are a part of the territory of a State. is
It
#he former case, the
consideration at
nlv the inter-oceanic canals which deservewhich
international law. These inter-oceanic canals, are artificially
subject-matter of special treaties.
constructed waterways, have been the
The three canals which have been subject of such treaties
are:

(a) the Suez,

(b) the Panama, and
(c) the Kiel Canal.

(a) THE SUEZ CANAL

regu-
The Convention of Constantinople of 1888 provided the rules
lating the possession of the Suez Canal. By this
Convention, the canal was
to be freely open in times of peace, as
well as of war, to all nations. No
attempt to restrict this free use of the canal is allowed in times either of
peace or of war. The canal can never be blockaded. No act of hostility is
alowed either inside the canal itself or within three sea miles from its ports.
Warships are not allowed to stay for more than 24 hours in the harbours
of Port Said or Suez. No permanent fortifications are allowed in the canal.
The canal is a territorial part of Egypt. In 1956, Egypt nationalised the Suez
Canal. Great Britain and France. being of the opinion that such
nationalisation might impair the free rights of States to use the canal,
protested against such nationalisation. Ultimately, it resulted in the Anglo-
French intervention against Egypt in the canal zone.
The United Nations Security Council approved certain principles
regarding the use of the Suez Canal in October 1956. The following
three principles are worth noting:
(9 The freedom of passage should be maintained without discri
mination, overt or covert.
Gi) The canal should be insulated from the blockades of any
country.
116 PUBLIC INTERNATIONAL LAW

(ii) Tolls and charges should be fixed by agreement.

(b) THE PANAMA CANAL
so called H
The United States and Great Britain concluded the
Pauncefote Treaty in November 1801, providing for a canal bet
to this treaty, the Un
Atlantic and the Pacific Oceans. According nited
exclusive right of providing for the regulation
States has the open nd
management of the canal. The canal is to be free and
war and of all nations on terms of entire
vessels of commerce and of any act of hostilit
equality. It shall never be blockaded; nor shall
committed within it. In brief, as in the case of Suez Canal, here also,
in the Treaty.
rules for neutralising it were provided
In 1903, another treaty called Hay-Varilla Treaty was conclude
between the United States and the New Hepublic oft Panama. Accordino rding
nan
to this treaty, the Republic of Panama claims the legal and ominal
sovereignty over the canal zone. The United states was granted the
In
control of the strip of land required for the construction of the canal
fact, United States exercises sovereign rights in the area.
(c) THE KIEL CANAL
The Kiel Canal, which connects Baltic with the North Sea, was
constructed by Germany mainly for stragetic purposes. According ta
the Treaty of Versailles of 1919, "The Kiel Canal and its approaches
shall be maintained free and open to the vessels of commerce and of
war of all nations at peace with Germany on terms of entire equality
This part of the treaty was denounced by Germany in 1936. The
status of the Kiel Canal was discussed by the Permanent Court of
International Justice in WIMBLEDON'S CASE. The Court held that the
passage of a belligerent warship through an inter-oceanic canal would
not compromise the neutrality of the riparian State.
SERVITUDES
Oppenheim defines the State servitudes as the exceptional restri
ctions made by treaty on the territorial supremacy of a State, by which
a part or whole of its territory is, in a limited way, made perpetualy to
serve a certain purpose of interest of another State. For example, a
State under a treaty may be obliged to allow passage of troops of a
neighbouring State, or may, in the interest of a neighbouring State, be
prevented from fortifying a certain town in the frontier.
The following characteristics of a servitude must be carefully noted
(a) It is an exceptional restriction. It is not a general restriction
upon territorial supremacy which, according to rules o
nternational law, concerns all States alike.
(b) This restriction is created
under a treaty.
 STATE TERRITORY 117

(c) It is a restriction on the territorial supremacy of a State.

As a result of this restriction, 1the whole or a part of the territory
of one State Is made to serve perpetually certain purposes or
interests of another state. As the territory is subject to this
restriction, the servitude is a right in rem in favour of the State
which has the right. Therefore, even if the soverign State over
the territory changes, the teritory would never the less be
subject to servitude.
CLASSIFICATION OF INTERNATIONAL SERVITUDES
International servitudes are classified into positive and negative.
(a) Positive servitudes are those
which entitle one State to perform
of another State.
certain acts on the territory
(b)Negative servitudes are those whereby one State is under an
abliaation to abstain from doing certain acts on its territory.
The doctrine of International Servitude appears
to be relatively
from private law. Many writers,
modern. It seems to have been imported
including Judge Lauterpacht, are critical of the docrine of International
Servitude. In 1910, the Permanernt Court of Arbitration, in the case of
ATLANTIC FISHERIES, created the impression that the
the NORTH
Court rejected the concept of servitude. The dispute before the
Arbitration Court in that case was that United States claimed that
Great Britain had granted certain fishery rights, and such rights
constituted servitude. The Permanent Court of Arbitration rejected the
plea of the United States on the ground that as servitudes are
restrictions on the sovereign rights of the States, an express grant
must be proved to claim it. The Permanent Court of Arbitration further
observed that the concept of servitude was rather obsolete and
incosistent with the modern constitutional States and their sovereignty.
In the Right of Passage over Indian Territory case (1960), a
customary right of passage of Portuguese civil persons, civil officials
and goods over Indian territory between Daman and certain Portuguese
enclaves was recognised by the International Court of Justice. However,
e Court held that such a right is not a general right being inapplicable
to armed forces, armed police and arms and ammunitions. The Court
also held that the right was hardly a servitude in the strict sense, as
the right was subject to regulation and control by India.
 CHAPTER 10

STATE JURISDICTION

Introductory
The jurisdiction of a State over property, persons,
can be discussed under the following heads: acts
A.Territorial jurisdiction
8. Immunities from teritorial jurisdiction
C. Personal jurisdiction
D. Jurisdiction according to the protective principle
E. Jurisdiction on the high seas
F. Jurisdiction according to
the Universal principle (Piracy
G. Jurisdiction with regard to aircraft.
All States do not exercise
jurisdiction on the basis
principle. The American group of of the same
on States exercise jurisdiction ma
the territorial principle. On the other hand,
on account of their peculiar geographic several European Statas
on a much wider basis than that of
problem, exercise jurisdicti
the territorial principle,
The general principle of international law
is that, unless prohibited by international
regarding State jurisdictinn
jurisdiction without any limitation.
law, a State can exercise
The Permanent Court of International
Justice held, in the LOTUS CASE (1927),
that there is no restriction
exercise of jurisdiction by any onthe
State-unlessthat
by the most conclusive evidence, to restriction can be shown.
exist as a principle of international law
In this Chapter, an
attempt is made to explain the
on the basis of whicha State can various principles
exercise jurisdiction and the restrictions
on such exercise of jurisdiction, if
any, imposed by international law.
Each of these principles of State jurisdiction
will be discussed.
A.TERRITORIAL JURISDICTION
As all persons and things within
the territory of a State fall under its
territorial supremacy, each
State has jurisdiction over them. This
principle is supported by an
COMPANIA NAVIERA observation of Lord Macmillan in
VASCONGADO v. CRISTINA S.S. (1938).
According to him, "it is an
essential attribute of the sovereignty of this
realm, as of all sovereign
independent States, that it should possess
jurisdiction over all persons
and things within its territorial limits anu
all causes, civil and
criminal, arising within these limits." Ins
observation affirms the British
any person or thing is practice that mere physical presence
enough for a State to exercise jurisdictrollk
irrespective of the domicile
or the residence of the person. It
that every legislation will apprai
be presumed to be applicable to persu
property and events in
the territory
intention appears from the constructionof a State; unless a co
the United States of America of the statute. The practice
is also the same.
118
 STATE JURISDICTION 119

ourposes of jurisdiction, the territory of a State is not only its

For also includes the following:
landmass, but it als (Territorial Sea):
Maritime Belt
)
ship bearing its national flag;
)A
(ii) Ports.
(Territorial Sea)
Maritime Belt is territoria
() jurisdiction over the maritime belt, yet What
Though the littoral State has sea?
establishe
established principle of international law that the ships of non- Apr. 2015
itt is an have.a right of "inoffensive passage" through the waters
ittoral States belt.
maritime
of the on the Territorial Sea and Contiguous
According to the Convention
the passage is ffensive so long as
it is not prejudicial
Zoneof 1958, good order or security of the coastal State. The right of
to the
peace,
by Government vessels, including
innocent passage is also enjoyed
merchant ships. The right includes stopping and
warships as well as to ordinary navigation or
anchoring, but only when they are incidental
necessary by force majure or by distress.
are rendered
is that of the jurisdiction of the littoral
The question that often arises
of other States in the maritime belt. Under the
State over the ships in England, the English Courts are
Territorial Waters Jurisdiction Act
glven jurisdiction over
offences committed within the maritime belt.
through the territorial sea and
The right of foreign vessels passing
of the littoral States are provided for in Arts. 19-
the rights and treaties
Sea and Contiguous Zone,
the Convention on the Territorialfollowing
of rules can be deduced
signed at Geneva on April 28, 1958. The
regarding the right of innocent passage:
committed on MCO No. 34
() The right of the Coastal State regarding crimes
board a Foreign Merchant Vessel
territorial
When a foreign merchant vessel is passing through the
any
sea, the coastal State cannot arrest any person or conduct
invesrigation, except in the following cases:
(a) When the consequences of the crime extend to the coastal
State.
(6) When the crime is of a kind which would disturb the peace
of
the country or the good order of the territorial sea.
(c) When the assistance of the local authorities has been
requested by the Captain of the ship or by the Consul the
of
country whose flag the ship flies.
of illicit
(d) When it is necessary to do so for the suppression
traffic in narcotic drugs.
to
However, it is further provided that these limitations do not apply
ne right of the coastal States to take any steps authorised by its laws for
ne purposes of arrest or investigation on board a ship passing through
the territiorial sea after leaving internal waters. But the coastal State
may not take any step on board the vessel to arrest any person or
 120 PUBLIC INTERNATIONAL LAW

conduct any investigation if the crime was committed before the ves
ve
entered the territorial sea and if the ship is only passing throlae
ugh the
the
teritorial sea without entering its internal water. (Art. 19)
Government Vessels
Theabove provisions of Art. 19 also apply to Government vesse
whether operated for commercial or non-commercial ial purposes.
Art
21 and 22)
Civil Process
A coastal State is under an obligation not to stop or dive
foreign merchant ship passing thorugh the territorial sea
purposes of exercising its civil jurisdiction in relation to the
MCO No. 35 erson
board the ship. Further, the coastal State cannot levy execution jainst
oon

or arrest such a vessel for the purpose of any civil proceed

except in case of obligations or liabilities incurred by the ship itself
course of its voyage through the coastal water. But, this
the doein
prevent the coastal State from levying execution against or arrestiot
foreign merchant ship lying in the territorial sea after leavino ite ng
a
waters for the purpose of any civil proceedings in accordance wit a
laws. This is also applicable to Government vessels operated.its
commercial purposes, but not to Government vessels operated for
non-commercial purposes. (Arts. 20, 21 and 22)
(1) The Ship Bearlng National Flag of a State: The Floating Island
Theory
There is a theory known as "The floating island Theory", accordina
to which a ship bearing the national flag of the State is treated asi
MCO No. 36 were the territory of the State for purposes of jurisdiction. This thedru
is applicable whether the ship is on the high seas or in the territoria
waters. But of late, this theory has attracted much criticism, both b
judicial decisions and eminent writers on international law like Hal.
(il) Ports
The port is very much different from the maritime belt as it is a part
of inland waters. Yet, ships of other States can enter into the ports o
the coastal State under special arrangements. The jurisdiction over such
foreign ships is not exercised on the basis of any uniform rule of
international law. It varies from State to State, and also it varies acording
to the nature of the ship. Different principles will be applied depending
on whether the vessel is a merchant vessel or a public vessel.
MERCHANT VESSELS
The merchant vessels, as a rule, are subject to the jurisdiction of the
State whose port they enter. The restrictions on such jurisdiction would
depend on the practice of the State in question. But under customary
international law, there is one exceptional circumstance under which the
State of the port may not exercise jurisdiction over a foreign vessel
entering its ports. When the foreign vessel, being in distress, enters a
foreign port to seek shelter, it is immune from the local jurisdiction of the
coastal State, provided such vessel does not commit any deliberale
breach of the municipal law of the State of the port.
 STATE JURISDICTION 121
practioce of different States is not uniform so far as the exercise
The
urisdiction over the merchant vessels is concemed.
of
British Practice
erchant vessels belonging to a foreign country, when in British
ris, are subject to complete jurisdiction and police regulation of the
orts,
Por authorities. Bu
But in criminal matters, the British authorities do
Pish authorities.
ritish
not erally intervene and enforce their jurisdiction, unless the peace
order of the port is likely to be affected, or either those in
or good or some representative of the State, the flag of
ntrol of the ship
which the ship
carries, invoke their assistance.
United States
Practice of the
Under the American practice, a distinction is drawn between matters
of the port and matters of internal
affecting the peace or good order
discipline of the ship. Vhen the peace and good order of the port are
of the U.S.A. exercise jurisdiction. In WILDERN
affecte the authorities
HUS CASE, the Supreme Court of the U.S.A. held that when one Belgian
ceaman killed and stabbed another Belgian in a Belgian ship in an
American port, the peace and good order of the port was affected, and
therefore, it was proper for the American authorities to exercise jurisdi-
ction and the Belgian Consul was excluded from exercising jurisdiction.
On any matters affecting internal discipline of the ship, the
authorities of the Flag State have primary jurisdiction.
Technical Extenslon of the Territorlal Jurisdiction
Crimes may not necessarily be confined in all their aspects to the
territories of a particular State. A crime may be engineered or planned in
one State and committed in another State. In such circumstances, the
question of jurisdiction raises certain problems. It is also possible that
the State in which the preliminary or the initial part of the crime was
committed may refuse to prosecute and punish the offender.
For instance, where the principal offence committed in State A is
engineered (i.e. ancillary or accessory acts took place) in State B, the
latter (i.e. State B) may decline to exercise territorial jurisdiction and
prosecute or punish the offenders on the ground that, as the acts
were accessory to a principal offence committed elsewhere, the
territorial jurisdiction is inapplicable.
Thus, in A G's Reference No. 1 of 1982 (1983), it was held that a
Conspiracy to defraud, to be carried out abroad, is not indictable in
England, even if its performance would damage the property interests
of a company within English jurisdiction, and even if its performance
WOuld injure a person resident in, or a company located in England,
Dy causing that person or company damage or
loss abroaa.
lo meet these difficulties, the territorial jurisdiction of a State is
extended. This extension of the territorial jurisdiction is called 'technical
extension' by Starke.
122 PUBLIC INTERNATIONAL LAW

The extension of the territorial jurisdiction under the circCienslances

mentioned above, may be either on (1) the subjective territorialprinciple
or (2) the objective territorial principle.
(1) THE SUBJECTIVE TERRITORIAL PRINCIPL
Some States claim to exercise jurisdiction over crimeS cor ommence
but completed in the territory of
within their territory anoth Sta
Though this principle is not generally adopted by all Statees,
yet this
principle has been adopted in the following two International
Conventions:
(i) The Geneva Convention for the Suppression of Counterfeiting
Currency (1929).
(i) The Geneva Convention for the Suppression of llic n
Traffic (1935). Drug
Under these Conventions, the States which are parties .
Conventions are under an obligation to punish the offenders iifto the he
the preparation or conspiracy to participate in the commissioth
offences mentioned in the Conventions takes place in their territoriof the
their t ries
even though the ultimate offences are not completed inin their
territo
(2) THE OBJECTIVE TERRITORIAL PRINCIPLE
Professor Hyde defines the Objective Territorial Theory thus:h
setting in motion outside of a State of a force which produces
direct consequence, an injurious effect therein justifies the terr
sovereign in prosecuting the actor when he enters its domain E
example, when a man fires a gun across a trontier and kills another
man in a neighbouring State, the State where the final act crime
of
was committed has jurisdiction according to the objective the territorial
principle. The States which apply this principle claim jurisdiction over
offences, commenced in another State provided:
() Such offence is completed within their territory.
or
(i) Such offence produces harmful consequences to the social
order inside their territory.
This principle is recognised both by the English and American
Courts. The Permanent Court of International Justice also applied this
principle in its decision in the LOTUS CASE (1927). The facts of the
case were: A French Steamship, "The Lotus", proceeding to Constan
tinople, collided with a Turkish collier, Boz-Kourt, on the open sea. The
Boz-Kourt sunk in consequence, and eight Turkish
nationals on board
lost their lives. It was alleged that the collision was
due to the gross
negligence of an Officer on board the French vessel, the Lotus.The
Lotus arrived at Constantinople, and the Officer of
the French ship was
placed under arrest without prior notice to the French Consul-Genera.
Prosecution proceedings were started against the officer by the Turk
authorities. It was contended on behalf of the
Criminal Court had no jurisdiction over him.
accused that the Turks
The plea was over-fuiedo
 STATE JURISDICTION 123

convicted aand sentenced. The French Government made

officer was
he sentations and demanded the release of the French
diplomatic
or the transfer of the case to the French Court. The Turkishof
officer to refer the case to the Permanent Court
Government agreed Hague. In pursuance of an agreement drawn up
International Jusstice at
was referred to the Court at Hague.
Geneva, the rmatter
at wo questions were to be determined in this case:
contrary to the principles of the inter
Whether Turkey acted criminal proceedings against the
national law by instituting
French officer; and reparation
If the reply was in the affirmative, what pecuniary
i) French officer?
was due to the Court, the first question
casting vote of the President of the
By the gative. It was held that the action of the
answered in the
was not inconsistent with international law. It was
Turkish authority was
course of the judgment that, "The territoriality of
abserved during the international law
criminal law is not an absolute principle of the
the sovereignty"
no means coincides with the territorial met
and by
judgment of the Permanent Court of International Justice subject
This effects was to
wide-spread criticism, as one of its possible
with might have no knowledge.
ceamen to foreign criminal law of which they Jurisdiction in
Convention of 1952 relating to "Penal
in the special etc." a contrary rule was
adopted.
matters of Collision, in the
to be noted that the principle laid down
it has
However,
not been approved by the International Law
LOTUS case has
Commission.
Foreigners
Territorial Jurisdlction over territorial
is not presumed to be immune from the
A foreigner presumption
finds himself. The general
jurisdiction of State in which he territorial jurisdiction of the local
much subject to the
is that he is as
are, unless
State as its citizens operation of the local law, by
reason of
not subject to the
() he is
some special immunity; or law.
conformity with international
(ii) the local law is not in
Criminals
Territorial Jurisdiction over generally
like Great Britain and the United States
Some States unless it is modified by
territorial theory of criminal jurisdiction
adopt States do not adhere to the
International Conventions. Several other
jurisdiction.
exclusive territorial theory of JURISDICTION
CRIMINAL
JUSTIFICATION OF THE TERRITORIAL
jurisdiction can be justified on the following
Territorial criminal
grounds:
a crime should be dealt with by the State
(9 t is convenient that
is most closely affected, and generaly the State
whose order States.
territory the crimes are committed will be such
on whose
124 PUBLIC INTERNATIONAL LAW
() Itis the State, on whose territory the crime is committed
has the greatest facility and the strongest interest for repre that
pressing
crimes.
Exceptlon to the Territorlal Princlple
Though the territorial principle is generally accepted,
vatt
principle does not justity a State prosecuting a foreigner tempora the
the
within its territory for an alleged offence against its laws commy
abroad on a prior occasion.
In CUTTING'S CASE (1887), the Mexican Government
Mexico an American citizen, Cutting. for having published
arrestoe
territories of the U.S.A. on a prior occasion, an article allo
inhthe
the
icle alleged
constitute a libel on a Mexican citizen. The United States of Au o
objected to the application of the territorial principle to sucha
casea
objection seems to be consistent with the principle off internationalThis la
law
B. IMMUNITIES FROM TERRITORIAL JURISDICTION
Under international law, the following entities are exempted,
certain extent, from the territorial jurisdiction of a State, and in mto
cases, by recognition of the immunities under municipal law: many
(a) Foreign States and Heads of Foreign States;
(b) Diplomatic Representatives of Foreign States:
(c) Public ships of foreign States;
(d) Foreign armed forces;
(e) International Institutions.
(a) Foreign States and Heads of Forelgn States
Once a State is recognised, it is an accepted principle of
international law that such State or its head cannot be sued in the
municipal court of the recognising State, unless such State or its head
voluntarily submits to the jurisdiction of the Court. Such submission
may be either under a treaty generally, or ad hoc for the purposes of
a particular litigation. But this immunity does not prevent a foreign
State or its head from suing in the municipal court of another State.
The theoretical basis of such exemption is not uniform. According
to some, it is based on comity, according to others, it is based on the
practical principle of effectiveness, whereas some other writers feel
that it is based on a grant. Whatever the theoretical basis may be, the
rules regarding immunity are well-settled.
TWO ASPECTS OF IMMUNITYY
The immunity of foreign States and foreign heads of States from
the jurisdiction of the Courts of another State can be considereo
under two aspects
0 Immunity from the process of the Court; and
() Immunity with respect to property belonging to the foreign
State or foreign sovereign.
 STATE JURISDICTION 125
of the Court
immunity from the Process
aspect of th the immunity is that no State or its head will be
The first
impleaded. arty to any legal proceedings against its will. According Explain the ertent
"The principle is well settled that a foreign sovereign o
Lord Sumer, impl
immunity
to liable to be pleaded in the municipal court of this country, but enjoyed by certain
is no heir jurisdiction only when it submits to it, whereby persons under
subject to their Public Internationa
is SU
is as plainti
plaintiff or by appearing as a defendant without objection"
invoking it as Law.
case of THE STINA (1938), the House of Lords has M.U. Apr. 2005
In the In this case, the ship, The Cristina, was
reaffirmed this principle
isitioned by the Spanish Government, and a writ in rem was
possession of the vessel. The contention of the
ed, claiming that the writ be set aside as it implied
Spanish Government was
impleading of a foreign sovereign State. The House of Lords, ordering
and all subsequent proceedi
that the writ internatic
be set aside, held that it
law to implead, even indirectly, a foreign
was gainst
State or its
head.
Immunity with Respect to Property belonging
to Foreign State or
)
Forelgn Sovereign
of the immunity is that the courts will not, by
The second aspect
or detention or judicial dispossession
their process, allow the seizure in posse
of property, owned by such State or sovereign, or property
csion or control of such State or sovereign. This immunity is applicable
is a party to the proceedings or
whether the foreign State or its head
to do to obtain such immunity,
not, All that the foreign Government has
is to show by evidence that
"its claim is not merely illusory, not founded
(JUAN YSMALE& CO. INC. V.
on a title manifestly defective."
GOVERNMENT OF REPUBLIC OF INDONESIA (1955 A.C. 75).
This immunity is available both in proceedings in rem and
proceedings in personam.
IMMUNITY AND COMMERCIAL ACTIVITIES OF A STATE
In modern days, States engage in various kinds of commerical
activities, and a question arises as to whether the immunity given to a
foreign State or sovereign should be extended to such transactions of
a commercial nature. The American and the British Courts have rigidly
adhered to the principle of jurisdictional immunity. They have refused
to modify this priciple by distinguishing between activities of the State
in the field of private law and its sovereign activities. But the Courts of
several countries have made this distinction, and have exercised
jurisdiction over foreign States or their sovereigns, if a claim arose out
of the commercial activities of such foreign States.
But this immunity, even in England, is not absolute. In the following
circumstances, exception is made to the immunity, and courts have
exercised jurisdiction:
) Suits relating to the title to land within the territorial jurisdiction,
not being land on which legation premises are established;
126 PUBLIC INTERNATIONAL LAW

() Administrative proceedings in relation to a fund in

which a foreign State or a foreign sovereign is a ourt
interestec in
(il) Representative actions, such as debenture-holders
where a foreign sovereign ora foreign actio
eisadebentureholder
(iv) The winding up of a company, in whose assets
the foreign
State or a foreign sovereign has an interest.
In modern times, there is another problem in
connection
principle of the immunity. The commercial activities of States ara he
t
carried on through public corporations. To what extent such e often
such corporations
also enjoy immunity is, howerver, not very clear.
In the case of foreign Semi-Public Corporations, the
privileno
jurisdiction and immunity does not attach, if such Corporati of
separate judicial entities and not department of States. This hs
inciple
has been accepted in KRAJINA v. TOSS AGENCIES, (1949) 2 A.IE A.I.E.R
274 and BACCUS S.A.L. v. SERVICIO NATIONAL DEL TRIGO, TRIGO, (195
(195
1 Q.B. 438. It was also held that it is a question of degree whether
Corporation has attained the characteristic of Separate incorporation the
or whether it retains the character of the department of the State
It may be noted that after the passing of the 1978
State Immunit
Act of the U.K., absolute jurisdictional immunity of foreign Slate an
Governments is inapplicable, inter alia, to a commercial transactio
And a transaction which is initially a commercial one does not losa
that character vis-a-vis the parties because of subsequent political o
governmental action by that State.
In Intpro Properties (U.K.) Ltd. v. Sauvel (1983), it was held
thata
diplomat's private residence was not protected under the State Immunity
Act, 1978. Consequently, the French Governmernt, which was impleaded
in a suit by the plaintiff against a French Diplomat, was not entitied to
any immunity. In the present case, the proceedings were for damages
for breaches of covenant in respect of the occupation of the premises.
WAIVER OF IMMUNITY
As already observed, a foreign State or sovereign can waive such
immunity, and the waiver may be either express or implied. An implied
waiver may be inferred from the circumstances. But the courts are
very reluctant to infer a waiver of immunity. However, it has been held
that the following does not amount to a waiver:
) Submission to arbitration proceedings.
(1) Living in the jurisdiction and entering into contracts there. In
MIGHELL v. SULTAN OF JOHORE (1894), it was held that even if a
foreign sovereign lived incognito under the pretext of being an ordinary
person and made a promise of marriage, such an act on his pat
would not amount to a submission to the British Court.
(in) Seizure by the agents of a foreign State of a vessel within ine
jurisdiction.
(IV) Agreeing in a contract that the sovereign will submit to e
 STATE JURISDICTION

jurisdiction ofof the territorial courts 127

in matters arising
KAHAN v. PAKISTAN FEDERATION out of
In
contract between the plaintiff and(1951), it was held that
a contract.
na the a clause
effect that disputes arising out of the contrao aion of Pakistanto
ta
to the
nglish Court did
the jurisdiction of the English
icsion must be an undertaking ntt Would be submitted
did not amount
to a
The sme given in the face submission.
atth when the Court is of the Court
asked to exercise its jurisdiction.
SET-OFF AND COUNTER-CLAIM
Once a foreign State or its sovereign
t the Court of a State, must abide chooses to litigate voluntarily
litigant.
it by all the rules like
efore, the fendant can claim set-off any other
or counter-claim,
provided such a claim arises out of the same matter
in dispute and
fficiently connected with the subject-matter of is
elaim. But, if the counter-claim is the foreign State's
independent of,
atter in dispute, Such counter-claim will notand unrelated to, the
COMMISSIONER FOA INDIA V. GOSH, (1960) 1 be allowed. (HIGH
Q.B. 134).
(b) Diplomatic Representative of Foreign State
The customary rules regarding jurisdiction and immunities
Diplomatic Agents are now modified and formulated of
by the Vienna
Convention on Diplomatic Helations of April 18, 1961.
The relevant Articles and Comventions pertaining to immunities
of
Diplomatic Agents can be summed up as follows:
(1) The person of a Diplomatic Agent shall be inviolable. He
shall MCa No. 37
not be liable to any form of arrest or detention. (Art. 29)
(2) A Diplomatic Agent shall enjoy immunity from
the criminal
jurisdiction of the receiving State. He shall also enjoy immunity from
its civil and administrative jurisdiction, except in the following cases:
(a) A real action relating to private immovable property situated in
the territory of the receiving State, unless he holds it on behalf of the
sending State for the purposes of the Mission.
(6) An action relating to succession, in which the diplomatic agent
is involved as executor, administrator, heir or legatee as a private
person, and not on behalf of the sending State.
(c) An action relating to any professional or commercial activity
exercised by a diplomatic agent in the receiving State outside his
official functions. (Art. 31)
(3) The members of the family of a diplomatic agent, forming part
of his household, if they are not the nationals of the receiving State,
shall also enjoy the immunities.
(4) The following shall also enjoy such immunity, provided thay are
nor nationals of or permanent residents in the receiving State:
Mission,
(a) Members of the administrative and technical staff the
of
of the respective
Ogether with members of their families forming part
household.
128 PUBLIC INTERNATIONAL LAW

(b) Members of the service staff of the Mission, in re

performed in the course of their duties.
in
respect
of act
(c) Private servants of members of the Mission.may
Immunities only to the extent admitted by the receiving State.However
enjoy

sUch a manner as not to interfere unduly with the performer

nev
the receiving State must exercise its jurisdiction over those persons
SOns
iv
function of the Mission. the
WAIVER OF IMMUNITY
Art. 32 of the Convention provides that the munity
jurisdiction is subject to waiver. It provides that the immun from om
jurisdiction of the diplomatic agent may be waived by the Om
State. But waiver must always be express. Waiver of immunity ending
jurisdiction in respect of civil or administra proceedings shallirom
be held to imply waiver of immunity in respect of the no
he execulin
execution not
judgment. The initiation of proceedings by a diplomatic agent of a f
others enjoying immunity precludes them from invoking immunityor by
fr
jurisdiction in respect of any cOunter-claim directly connected with
principal claim. the
DURATION OF IMMUNITY
The principle on which the jurisdiction of immunity of a diplomais
Envoy is based is that he should be free to perform official busines
on behalf of his country without any disturbance, interference or
interruption. Therefore, a person entitled to diplomatic immunity enjovs
such immunity from the moment he enters the territory of the receiving
State and continues till he leaves the country. Such immunity subsists
even in a case of armed conflict. In case of the death of the diplomatic
agent, the members of his family continue to enjoy the privileges and
immunities to which they are entitled until the expiry of a reasonable
period in which they can leave the country.
If a diplomatic agent passes
through or is in the territory of a third
State which had granted him a visa while proceeding to take up or to
return to his post or when returning to his own country, the third State
must accord him inviolability and such other immunity as may be
required to ensure his transit or return. The same immunity is to be
extended to members of his family.
The diplomatic Envoy enjoys immunity both in respect of his
private acts as well as acts in his official capacity. But it should be
noted that if a diplomatic agent engages in espionage against the
State in which he is accredited, that State is not bound to respect
his jurisdictional immunity.
It must be noted that the diplomatic representative enjoys ns
immunity from the jurisdiction of the territorial courts, but not immuniy
from liability. Though the diplomatic representative cannot be sued n
the territorial courts, yet by diplomatic process, he may be held liabi
 STATE JURISDICTION 129
IMMUNITIES AND CONsULS

ds are not diplomatic agents, and therefore they do not

Cons
complete unity from local jurisdiction. Formerly, the
enjoy to Consuls were governed by Treaty arrangements.
munities granted
Convention on Consular Relations signed at Vienna on
Vienna
The provides the following rules regarding immunities
24, 1963, officers:
granted to Consular
gra Consular officers shall not be liable to arrest or detention
(1) except in the case of a grave crime and pursuant to
pending trial, competent judicial authority. If criminal proceeedings
decision by the
institute against a nsular officer, he must appear before the
areanetent authority (Art. 41). However, Consular officer and Consular
competent
employees shall,
not be amendable to the jurisdiction of the judicial or
administrativ authorities of the receiving State in respect of acts
Consular functions, but such immunity
performed in the exercise of
does not extend in
respect of the following:
(a) In respect
of a civil action arising out of a contract concluded
a Consular officer or a Consular employee in which he did not
by
Contract expressly or implied as an Agent of the
sending State;
or
by a third party for damage arising
(b) In respect of a civil action
from an accident in the receiving State, caused by a
vehicle, vessel or
aircraft. (Art. 43)
WAIVER OF IMMUNITY
may waive, with regard to a member
The State sending the Consul
of the Consular post, any of the
immunities enumerated above. Such
in any proceedings initiated
waiver may be express in all cases except
by a Consular officer or a Consular employee.
(c) Public Ships of Foreign States
A public vessel is one which is owned and commissioned
by the
Government of a sovereign State, or even by the Government
of a
semi-sovereign State, so long as the latter is recognized externally as
by a
a separate international person. Even a private vessel chartered
of a
State for a public purpose is a public vessel. The public character
vessel is determined by her flag and the commission issued by the
Government of the State to which she belongs.
of a
There are two theories regarding jurisdiction in the case
public ship of a foreign State:
according to which a public ship is
0 The "floating Island" theory, to this
considered to be a part of the territory of the flag State. According
eory, territorial courts would have no jurisdiction over the public ship.
concept of a
() According to the second theory, the floating islandto
Public ship is not accepted. Immunities are granted such ships
according to this theory conditionally by the local law.
 130 PUBLIC INTERNATIONAL LAW

Chiet Justice Marshallof the United States of America cnconsidered

above proposition in SCHOONER EXCHANGEv. M'FADDON
1812)the the
a
held that "a public armed ship constitutes a part of the military 12) and
nation; acts under the immediate and direct command of the eOrce sovere
of
employed by him in national objects; it seems then to the Court Courgn
principle of public law that national ships of War entering to
the be be a
triendly power, open for their reception, are to be considered asort
xemptes
of
by the consent of that power from its jurisdiction."
In CHUNG CHI CHEUNG v. R., the Privy Council rejected
island theory, and approved the second theory of conditional immng
the floa
flo.

PUBLIC VESSELS AND IMMUNITY FROM CIVIL

LAW
When a public vessel of a foreign State is in port,
na lega
proceedings can be started against it, either in rem for
covery
possession orfor damages for collision oriin respect of
crew. This immunity from the civil law will extend only
members of
to the s
necessary for enabling such public vessel to function efficientlv
organ of the State. Such public vessel is under a duty
sanitary regulations of the port, and not to assist any breachohan
to
revenue laws. If there is any breach of such duty, diplomatic actie oe bcal
can be taken against the ship and probably the ship can
from the port.
be exnell
PUBLIC VESSELS AND IMMUNITY FROM CRIMINAL
LAW
If a crime is committed
in a public vessel, such crime will
be within
the exclusive jurisdiction of the flag State of the ship, such
MCO No.38 offence has been committed against a local subject. unless
There is no
unanimity regarding immunity, if those who do not
belong to the crew
commit offences on shore. One view is that the territorial
court has no
jurisdiction even over such persons. The other view is
that such persons
who take shelter in the public vessel, must be
handed over to the local
police, though, on grounds of humanity, in case of an extreme danger,
asylum may be granted to some individuals. If the crew of
such public
vessel breaks the local law, when it is on the shore, such members of
the crew are not protected. The local police would hand them over to
the ship authorities for punishment. On the other hand, if the crew
commits breaches of local law on shore while discharging official
duties, such crew enjoys complete immunity from legal jurisdiction.
STATE-OWNED COMMERCIAL SHIPS
There are divergent views as to whether States embarking on
trading activities should be given immunity in respect of their
Commercial ships or not. On the one hand, it is argued that any
action against the State-owned ship amounts to impleading a foreig
State in an indirect way. On the other hand, it is believed that sucn
State-owned commercial ships should not be given any kind o
immunity, as such immunity will result in injustice to the nationals
the territorial State; the foreign Governments will be in a position
 STATE JURISDICTION

nals and at the same time, 131

cleheeeled by the nationals. they enjoy absohute
from ot immunity to It is also immunity
pointed out
doctr an the propertyY of toreign that the
to the dignity of such sovereigns; sovereigns is
vereigns were to enter into competitive but, if such toreign
trades in foreign
$oconsistent with their dignity, and therefore, States, it
not extend to such commercial ships. the immunity must
In answer to the secona view mentioned
tice results to nationals, there is above, it is said that
always the avenue of t
resentation. But in the CHISTINA case (1939), diplomatic
Lord Maugham
made the following observations
n these days, and in the present state
of the world, dilpomatic
ontesentations made to a go0d many States afftord
nedy to the unfortunate persons whO may have been a very uncertain
injured by the
foreign Government."
The English and the American courts generally support the doctrine
of immunity of State-owned ships, though in THE CRISTINA'S CASE.
1 ord
Maugnam and Lord wright made a very trenchant criticism of
this doctrine. Several other continental countries do not extend immunity
to State-owned commercial ships.
(d) Forelgn Armed Forces
The extent of the immunity enjoyed by the Armed Forces cf foreign
States stationed in the territories of another State depends on the
circumstances in which they are so stationed and also upon any
express agreement between the States regarding the conditions af
stationing of such forces. In the absence of such an express agreement,
the mere ad-mission of the foreign armed forces gives rise to certain
consequences in international law.
Jordan C. J. of the New South Wales Supreme Court observed in
Wright v. Contrell 1943), thus:
"The State which admits into its teritory armed forces of a friendly
foreign power impliedly undertakes not to exercise any jurisdiction
over the force collectively or its members individually, which would be
consistent with its continuing to exist as an efficient force available for
the service of its sovereign."
The outcome of the decisions is that, by admission, a State
undertakes not to interfere in the autonomy of the force in such a way
as to impair its efficiency. In the above case, an Australian Court held,
as regards American forces on Australian territory for the purpose of
of these forces
the specific war, that whether the extent or efticiency
WOuld be imperilled an individual
if member were subject to a civil suit
citizen, or not
n the territorial courts for an injury caused to a local was a
to toreign torces
Should be the test. The immunity granted opinion tha?
of the
conditional or qualified immunity. The court, being over an
exercised jurisdiction
Such efficiency was not imperilled,
individual member of the American torce
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MVT 7VNoILYNHILNI oinand

 134 PUBLIC INTERNATIONAL LAW
It may, however, be noted that the protective principle
by many writers on the ground that each Sta mes toisbecriticised
judge as to what endangers its security or its financial its own
credit.
E. JURISDICTION ON THE HIGH SEAs
What Is meant by the High Seas
Explain: High seas. According to Oppenheim, "the open sea, or the high
MU May 20Os coherent body of salt water all over the greater part of the sea is
Nov. 2006 exception of the maritime belt and the territorial be, ith h
straits, gulfs the
which are parts of the sea, but notparts of the open sea."Theret Days
open sea may be defined as all parts ot the sea which are not , the
(1) the Territorial Sea; or
(2) internal Waters.
RIghts of the Freedom of the Open Sea
Although in ancient times, and the first half of the Middle Ace
navigation on the open sea was free to everybody, in the
latter hal
the Middle Ages, some maritime States began to claim their sovereiant
over parts of the open sea. For several hundred years, claim
MCO No. 39 were asserted. It was Grotius who, for the first time, such this
concept of maritime sovereignty. He contended that the attacked be
Explain the princjple State property, because no State could really
sea cannot
take into possession
of freedom of high through occupation such sea, and that consequently,
seas. Describe its nature free from the sovereignty for any the sea isby
State. Grotius was severely
sefuness. What criticized by many authors of different nations.
are the exceptions to writers followed Grotius But gradually, other
and the concept of open sea acquired great
this principle? support. Besides, as Hall has pointed out, the principle of the freedom
Dec 2014 of the open
sea began to develop with the mutual and obvious interests
Apr. 2016
of the maritime nations. The freedom of the open sea was seen to
May2013 correspond to
the general interests of all States.
Freedom of the Open Sea
The concept of the freedom of the open sea signifies the following:
Write a shot note (1) The open sea is not, and never can be,
on: Freedom o under the sovereignty
High Seas. of any State whatever.
M.U. Apr. 2010 (2) No State has, as a rule, a right to exercise its legislano
Nov. 2010 administration, jurisdiction, or police
power over parts of the open sed.
(3) No State has a right to acquire parts of the open sea througn
MCO No. 40 ocCupation.
(4) There is absolute freedom of navigation on the high seas o
vessels of all nations, whether merchant men or wareships.
(5) No State may exercise jurisdiction over ships within the ope pen
sea not bearing its flag.
(6) A State may exercisejurisdiction over a ship sailing under i1s flag
7) There is absolute freedom of fliaht above the open sea to
aircrafts.
 STATE JURISDICTION
135
(8) Every State and its citizens are entitled to make
laying submarir use
high seas for cables and oil pipe
lines.
of the
The above-mentic nciples of the "freedom
Tne hebe understood
must now unde subject to the rules of of the open sea"
Continental Shelf and the Contiguous international law
rega rding the Zones.
LIMITATIONS OF THE FREEDOM
OF OPEN SEA
Though there is freedom or tne open sea, certain
rules to regutlate
freedom of the open sea are recognised in
the interest
thete
conflh and creating a legal order in the open sea, namely,of avoiding
14 All vessels, public or private, on the high
seas are subject to Explain: Limtations
ha iurisdiction, and entitied tO the protection of the State
under whose on the freedom of
maritime flag they sai. Ihererore, no ship can sail under a particular ne ses
daa, without proper authority from the Flag State. There should M.U. Apr 2010
be
aenuine link" between a vessel and the State which grants
riaht to fly its flag. Vessels under an unauthorised flag are liable
the
to
anture and confiscation by the state whose flag has wrongfully been
raised, and the warships of any State may call on suspicious vessels
to show their flag. It there is reasonable ground for suspecting that a
merchant ship is engaged in piracy or the slave trade, it may be
boarded and, if necessary, searched.
2) The Right of "Hot pursuit": When a foreign vessel infringes the
pursu
laws and regulations of a coastal State while in the territorial waters of Expain Hict
Apr. 2015
such State, such State may pursue and arrest the foreign ship even
on the high seas. This right is known as the right of "Hot pursuit". This
can be exercised provided the following conditions are fulfilled:
(i) The pursuit must commence immediately while the foreign
ship is still within the territorial waters.
(i) The pursuit must be continuous and uninterrupted.
(ii) A visual or auditory signal must have been given, asking the
ship to stop.
or a militay
(iv) The pursuing ship must be either a warship
aircraft or an authorised patrol vessel. law
law infringed must be either a
(V The regulation or the fishery or a law affecting vitally the
regarding revenue or
interests of the coastal State. MCO Na. 39
a grave suspicion that a foreign vessel is a
) When there is
or security of that State,
or imminent danger to the sovereignty
rce
n the interests of its protection, the coastal
State may exercise
sea.
they are in the open
urisdiction over foreign ships, even when might confer rights on the
conventions
4) Certain international the high seas.
tates to exercise jurisdiction on belligerent State has
a general right to
()During times of war, a of contraband.
countries to prevent the carriage
ships of neutral according to customary
aCn States are under an obligation, both like the
A International Conventions,
international law and
Or
136 PUBLIC INTERNATIONAL LAw

Brussels' Convention of 1910, to observe certain rules relating to to .

safety of navigation. the
There is a controversy regarding the rights of States to clos
certain parts of the high seas as warning areas for the purpo
conducting nuclear experiments. Some hold that this contraveneOf s the
freedom of the open sea, but others think that this is permissible as
measure of self-defence. a
Conservatlon of the Ilvlng resources of the high seas
The Convention of Fishing and Conservation of the living resSour
of the high seas, signed on April 29, 1958, lays down the follo
rules on the matter:
(1) All Ststes may freely engage in fishing on the high seas,
subject to their treaty obligations and to the interests and riahtsof
coastal States
(2) A State, whose nationals are fishing any stock or stocks inany
anw
areas of the high seas not exploited by citizens of other States.i
, is
bound to enact conservation measures.
(3) When the nationals of two or more States are so engaoed
those States are to prescribe conservative measures by a common
agreement.
(4) A coastal State has a special interest in the maintenance of
the productivity of the living resources of the high seas in any area
adjacent to its territorial sea.
HIGH SEAS AND OIL POLLUTION
On November 29, 1969, two Conventions were adopted at Brussels,
namely, the International Convention relating to Intervention on High
Seas in cases of Oil Pollution Casualties and the lnternational
Convention on Civil Liabilities for Oil Pollution Damage.
The First Convention enables the States which are parties to the
Convention to take defensive measures against pollution or threat of
pollution only following upon maritime casualty or acts related to sucn
casualty. The self-defensive measures are to be proportionate to tr
actual or threatened damage, which could be taken recourse to in
consultation with other States affected.
The Second Convention imposes the principle of absolute liabiliy
on the Tanker-owner, unless he can prove that the damage-
(a) resulted from war, hostilities, civil war, insurrection or some
unavoidable natural phenomenon; or
6) was caused by an act or an omission, with intent to cause
damage, by a third party; or
c) was wholly caused by the negligence or wrongful act o7
Government or authority responsible for maintaining lights or providin
navigational aids.
 STATE JURISDICTION
137
e.JURISDICTION ACCcORDING TO THE UNIVERSAL
PRINCIPLE (PIRACY)
contrary
whenever an offenceit is to the interests of the international
is treated as offence against all States, and
mmunity as a whole, MCO No. 41
Hate is entitled to exercise jurisdiction over such act according to
anyState
Iniversal Principle of Jurisdiction. There are two such offences
the
recognised by international law. They are:
Gentium, and
(1) Piracy Jure
(2) War crimes.
Gentlum
(1) Piracy Jure
According to Starke, In ins jurisdictional aspects, the offence of
Gentium is quite unique. On the ground that a pírate is
Piracy Jure
mankind, all States have the right to capture, try and
an enemy of
punish a pirate.
According to the International Law Commission, piracy consists of
of violence, detention, or any act of depredation,
an illegal act
committed for private ends, by those aboard a private ship or private
or persons
aircraft, and directed, either on the high seas against a ship
or property thereon
or in territory or waters of the nature of tera
nullius against a ship or person or property thereon.
According to this definition, it may be noted that the offence of
piracy has the following ingredients:
act of
(a) It is an illegal act of violence, detention, or any
depredation.
(b) It is committed for private ends.
(c) It is committed by those aboard a private ship or private
aircraft.
(d) It is committed either on the high seas or in territory or waters
which are not under the jurisdiction of any State (Terra nullius).
on such
(e) It is directed against a ship or persons or property
waters or the high seas.
GENTIUM
The Privy Council has held in the case of PIRACY JURE
(1934) that actual robbery is not an essential element of the crime
of
on the high
piracy, and an unsuccessful attempt to commit a robbery
seas can also be considered to be piracy.
PIRACY AT INTERNATIONAL LAW AND
PIRACY AT MUNICIPAL LAW
definition of
The definition of the crime of piracy given above is the
may, by
tne crime according to international law. But two or more States
at sea, and
reaty, agree to add other acts to the category of violence
may agree that they may exercise exceptional jurisdiction over such
slave-trading be also
s. For example, two countries may agree that
as an act piracy. In such circumstances, the parties
to the
sidered of
ueaty alone have jurisdiction over nationals of the parties
to the treaty.
 138 PUBLIC INTERNATIONAL LAw
Piracy and Insurgents
Piracy can be committed only by a private ship.
other public ships sailing under the order of Warshina
or recognised belligerent powers cannot recognised Governm.hd
be held guilty of
because in such circumstances, the Government authorising ns,
can be held responsible for the acts of the public the
ships. ling
When insurgents carry on acts of hostility at
problem. Should such insurgents, it not sea, it preseni.
pirates by other States? Or should they be recognised, be treated
The British practice has been not to treat treated in a different wa
these unrecognised insurae
as pirates, unless acts of violence are committed
lives and property of British subjects. by them against th
the
However, in the case
American Federal Court held of THE AMBROSE LIGHT (1885),
that an armed vessel, commissioned an an
Columbian insurgents, was properly hv
seized
insurgents were not recognised as belligerents. as a pirate, because the
laid down was that an insurgent In this case, test
vessel will not be considered the
private one, provided it is acting as a
Government. The underlying principle
under the orders of responsible
of the test is as follows: If
insurgents are acting under the orders of the
such Government, the affected
State might seek redress against it according
international law. In the absence of to the principles of
such a
the insurgents must be treated as pirates responsible Government,
and subjected to jurisdiction
under the universal principle.
(2) War Crimes
UNIVERSAL JURISDICTION In
addition to
jure gentium, there is another principle which the principles of piracy
universal jurisdiction, that would be in extends the doctrine of
the case of war crimes. The
principle of universality of punishment or war
the Geneva Convention of 1949. crimes was affirmed by
EICHMANN CASE (1962): In
this case, the facts were as follows
Adolf Eichmann was a German
officer during the Nazi regime in
Germany. He was responsible for the wholesale
Germany. After the Second World War, massacre of the Jews in
he ran away from Germany and
started living in Argentine. He was forcibly brought from
and put up for trial in Israel under the Nazi Argentine to lsrael
Law, enacted in Israel after the
Collaborators (Punish-ment)
state of lsrael came into existence. He was
charged for the wholesale massacre of the
Jews in Germany.
Various objections were raised on behalf
of Eichmann against his
trial before a Court in lsrael. It was pointed
out that the Israel Law, by
inflicting punishment for acts done
outside the boundaries of the state
and before its establishment, against persons who
were not Israe
citizens, and by a person who acted in the course of
duty on behalt o
a foreign country, conflicted with International Law,
and exceeded the
powers of the Israeli Legislature. It was
also contended that the
prosecution of the acCused in Israel upon his abduction from atoreg
country conflicted wih International Law and exceeded the jurisdiction
 STATE JURISDICTION
139
It was also contended that there must be a
co rh connection
of the stat
state and the person who committed
between the the crime,
acknowledged linking point, it was ultra and in
of an vires on the
the absence to nflict punishment for foreign offences.
the state
part of uoreme Court of lsrael, sitting as a Court of Appeal, relied in
The
upo n the principle of universal jurisdition in upholding the conviction
part of Eichmann, a war criminal, for war crimes and
a Court in Israel
by against.humanity, ereby overruling objections that Eichmann's
rimes
ocCurred in Europe during the Second World War before the
actions
Israel was actually founded and that his offences were
State of against people who were not citizens of that State.
committe
WITH REGARD TO AIRCRAFT
G. JURISDICTION
The frequent
incidents of hijacking have resulted in the development
International Law relating to jurisdiction with regard to aircraft.
There have been three conventions regarding this matter:
1)The Tokyo Convention of September Board
14, 1963, on Offences
Aircraft.
committed on
and Certain other Acts
a
(2) The Hague Convention for the Suppression of Unlawful Seizure
of Aircraft of
December 16, 1970.
(3) The Montreal Convention of 1971, for the Suppression of
Unlawful Acts against the Safety of Civil Aviation.
(1) The Tokyo Convention
(1963)
The objects of the Convention are the following:
() To ensure that persons committing crimes on board an aircraft
in flight, or on the surface of the high seas, or an area outside the
territory of any country, or committing acts aboard such aircraft to the
danger of air safety would not go unpunished, simply because no
country would assume jurisdiction to apprehend or try them.
(it) For protective disciplinary purposes, to give special authority
and powers to the aircraft commander, members of the crew and even
passengers.
The first object is achieved by providing that the country of
registration of the aircraft is competent to exercise jurisdiction over the
offences and the terrorist acts. Further, it is also provided that the
offences committed aboard an aircraft are, for the purpose of
extradition, to be treated as if they occurred also in the country of
registration. Secondly, if the offenders are found in a country which
was a party to the Convention, they would be obliged to extradite the
offender to the country of registration.
To achieve
the second object, the Convention enabled the airoraft
COmmander to do certain acts in respect of such offenders.
Owever, it may be noted that the Tokyo Convention is not
9plicable to aircraft used in military, customs, or police services.
(2) The
Hague Convention (1970)
Dros onvention was exclusively concerned with hijacking. The MCQ No. 42
Isions of the Convention can be stated briefly, as follows:
 140 PUBLIC INTERNATIONAL LAW

(1) Though the Convention did not give the label of hijackine
9. yetit
ned as unlawfu
defined the offence in Article l. Thee offenceis defined
or
force threat or by any other form of intimidation, n, seizing or exerc by
control of an aircraft in flight, or attempting to commit such anSing
being the accomplice of any person performing or attempting to Der act or
ertorm
such an act.
(2) The Convention makes it obligatory for each State
Darh
to
make the offence punishable by severe punishment and penalt lties.
(3) It provides that the State parties are to take measure
res
establish jurisdiction over the offence and lated acts of violenc
against passengers or crew.
(4) The Convention provides that the contracting States
could
exercise jurisdiction in the following circumstances:
() If the offence was committed on board the aircraft registere
in the contracting State; ed
() When the hijacked aircraft lands in a contracting State's
teritory with the alleged hijacker still on board;
(ii) When the offence is committed on board an aircraft leased
without crew, to a lessee who has his principle place of
business in the contracting State, or if no business, his
permanent residence there.
This Convention also is applicable to only civil aircraft, and not the
aircrafts used by military, customs, or police services.
It may, however, be pointed out that even the Hague Convention
of
1970, does not make hijacking a subject of universal jurisdiction, as in
the case of offence of Piracy.
MCO No. 43 (3) The Montreal Convention (1971)
Nine months after the Hague Convention, the Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation was
concluded at Montreal. This Convention was intended to cover, besides
hijacking, other aircraft crimes like armed attacks, sabotage and other
forms of violence and intimidation directed against civil aviation.
This Convention not only covers offences against aircraft in flight,
but also against an aircraft in service. The following are considered to
be the kinds of unlawful acts pertaining to aircraft:
(a) acts of violence against a person on board an aircraft in
flight", if that act is likely to endanger the safety of that aircraft;
(b) destroying or causing damage to an aircraft "in service", so as
to render it incapable of flight, or which is likely to endanger its safety
"in flight";
(c) placing, or causing to be placed, on an aircraft "in service
any device or substance which is likely to have this effect;
(d) the destruction or damage of air navigation facilities o
interference with their operation, if any, such act is likely to endange
the safety of aircraft "in flight";
 STATE JURISDICTION 141

mmunication of information which is known to be false,

communi
(e) the
endangering the safety of an aircraft in flight, a category
there to
cover bomb--hoax extortion
intended to be "in flight" at any time from the moment
aircraft is deemed are close following embarkation until the
An exterr doors
when allwhen any door is opened for disembarkation, or during
moment forced landing pending the exercise of control by the
of a
the period
authorities. period from the beginning of the pre-flight
ervice" means the by ground personnel or by the crew for a
"In aircraf
raft
tion of the enty-four hours after any landing.
preparatio
until
cific flight Convention, countries which are parties to the
the
Under undertake to establ jurisdiction over certain categories
Convention country or
offence is committed in the territory of that
offences if the
of board an aircraft registered there, and they also bind
nst or on law to
in accordance with international law and national
themselves
practica measure for preventing the offences set out above.
take all by communicating
indertake to co-operate with each other
They also information.
relevant
Conclusion insuperable Define Ozone Deple
In conclusion,
it can be said that there are almost of tion. (2 marks)
combating these offences. In spite
obstacles against eftectually full co-operation between M.U. May 2019
three Conventions, what is needed is attracting
these
and probably one more international Convention
all states, countries.
the participation
of a wide range of Write a short note
penetration of harmful UVB wavelength
Ozone layer prevent the through the earth's atmosphere.
on: Ozone deple
and ultra violet light that passes ion
the problem of skin cancer, sun M.U. Dec. 2016
Exposure to such rays increases
burns, cataracts (eye
problems) and it even affects the flora and
fauna of the planet.
The Montreal protocol bans the
production of ozone depleting
trichloroethane. 16th
chemicals such as carbon tetrachloride and
Nations General
September is observed and voted by the United
Assembly as "World Ozone Day" since on that
day the Montreal
chlorofluorocarbons are
Protocol was signed in the year 1987. The
released in the atmosphere due to increased
use of fire
etc. if the ozone
extinguishers, coolant, refrigerators, aerosol cans
ayer is not protected, mankind would suffer from diseases which
wOuld affect the next generations too.
 CHAPTER 11
THE STATE AND THE INDIVIDUAL
NATIONALITY, ALIENS, EXTRADITIOIN
AND ASYLUM
What is "Nationality"
According to Starke, nationality is the status of
membership of tho
collectivity of individuals whose acts, decisions
and policy are
vouchsafed through the legal concept of the State
Define Nationality. individuals. representing those
ose
Apr. 2014
Nationality, as defined by Oppenheim, is the quality
of the individus
of being a subject of a certain State,
and therefore, its citizen. a
It is
continuing relationship between the sovereign
State and the citizen"
The fundamental basis of a person's nationality is
of an independent political community.
his membershin
This legal relationship involves
rights and corresponding duties upon both
the citizen and the State,
Define nationality:
Oppenheim has defined nationality of
an individual is his quality
of being a subject of a certain
state". Nationality can be defined
the status of a natural person who is attached to as
of allegiance. As per article 15 of a state by the tie
the Universal Declaration of Human
Rights of 1948 nationality is termed
as "everyone has the right to a
nationality" treating it as a basic
human right.
Determination of Nationality
The determination of nationality falls within
municipal law of each State and it is
the province of the
not the concern of international
law. Each State determines for
itself, and according to its own
constitution and la, what classes of persons
become its nationals
Therefore, naturally, there are several variations in
the
States regarding determination of nationality. But at rules different
of
the same time,
Some common principles can be culled out of
the rules of different
States on this point.
Generally, States determine nationality on
the basis of the following
principles:
(a) On the basis of the nationality
of the parents at the time of the
birth of the person (us sanguinis);
MCO No. 44 (6) By the State of the territory
of his birth (jus soli):
(C) By a combination of
these principles.
This absence of uniformity of the basis on which nationality Is
deter-mined by different States, has resulted in complicated problems
142
 AND THE INDIVIDUAL: NATIONALIT 143
THE STATE
nationality, statelessness and disputed nationality of married
ouble
of
woman. noted, is different from race, domicile or
onality, it should be
State or federation, or the right to diplomatic
citizenshio of the person
a may be a national of one county, but may
orotectio Thus,another country. Quite often, one might be considered
domiciled in
national ofa.State, and yet denied the rights of citizenship.
the according to the law of the Nazi German Government, a
to beexample,
For made betetween a German subject and a German citizen.
distinctio was
subjects, who were German nationals, were denied the rights
erman were not Aryans. Thus, the Jews were denied the
citizenship if they we
citizenship, though they were German nationals. Further,
it
of
ts of noted that nationality is different from the status
of
als be
must
subjectunder the British Nationality Act, 1948, and connected
British legislations.
Commonwealth
Nationality
Acquisition of
may be acquired in the following
Generally speaking, nationality
ways
three
By birth, according to jus soli, 1.e., the territory of one's birth,
(1)
to the nationality of the parents at birth, or
or according
according to both.
naturalisation:
(2) By
(a) by marriage
(b) by legitimation
on application to the State authority.
(c) by official grant
(3) By conquest or cession,
the inhabitants of these areas may
acquire the nationality of the new acquiring State.
Loss of Nationality
Nationality may be lost in the following ways:
citizen the right to ask
(1) By release.- Some States grant their
to be released from nationality; or, such release
may be granted by
virtue of declaring that one has acquired a
foreign nationality.
(2) By deprivation. For example, according to the municipal law
of some States, the fact that a citizen enters
into foreign civil or
deprives him of
military services without permission of his sovereign,
nis nationality. The legislations of many States
recognise numerous
grounds of deprivation of nationality.
by legislation that
.(3) By expiration.-Some States have provided country
CIUZenship expires in case of those citizens who have left the
d stayed abroad for a certain length of time.
of children,
19) 6y renunciation.-In the case of double nationality
a right, on coming of
municipal laws of certain States give them to be a citizen of a state.
,to declare whether they wish to toceasecitizens of the State other
ucn circumstances, they cease
than that of their
choice.
be
144 PUBLIC INTERNATIONAL LAW

Natlonallty and Internatlonal Law

Nationality is the principal link between the individuals
and the
benefits of international law. The function of nationality becomes
apparent with regard to individuals abroad. According to Sta
ke, the
tollowing are the important incidents of nationalityi internationa he
(1) The right to diplomatic protection abroad an essential at
is
attribute
of nationality.
(2) The responsibility ofthe State for its failure to prevent.
wrongful acts committed by its national, or to punish him t artain
after
wrong-tul acts are committed in another State is another incidehese
nationality. ent of
(3) It is the duty of a State to receive back on its territory,
ritory, ite
nationals. its own
(4) The citizen of a State is under a duty to
perform mili. itary
service for the States to which he owes allegiance.
(5) A State has a general right to retuse to
extradite its Own
nationals to another State requesting surrender.
(6) Very often, enemy status in times of war is
determined by the
nationality of the person concerned.
(7) States often exercise jurisdiction on the
basis of nationality.
It may be noted that, in some cases,
where the nationality of a
particular individual is in doubt, difficulties might
it is well-established that
arise. It appears that
the question, as to what State a person
belongs, must be decided by the municipal law of the
State to which
he claims to belong or to which it is alleged that he
v. PUBLIC TRUSTEE)
belongs. (STOCK

DOUBLE NATIONALITY
As already pointed out, the laws of different
nationality are not uniform. Consequently, it
States regarding
is possible that certain
individuals possess double nationality. For
example, when a woman
belonging to one State, marries a man belonging
to another State, this
problem of double nationality might
arise. The State to which she
belongs before marriage may not recognise
the change of nationality
by marriage, while the law of the
State to which the husband belongs
may recognise that she
has acquired the nationality of her husband.
In such cases, she retains both the nationalities.
The Hague Convention of 1930 on
the Conflict of Nationality Laws,
attempted to minimise the difficulties
arising out of double nationality
Article 5 of the Convention
provided that in a third State, a person or
more than one nationality is
to be treated as if he had one nationaly
The basis for treating him as having
one nationality may be anyone of
the following:
(a) The nationality of the
country in which he is habitually residen,
 STATE AND THE INDIVIDUAL: NATIONALITY 145
THE
nationality of the country with which he appears to be
The connected.
(b)
closely Convention tried to minimise
most the difficulties arising out
same married women, by providing that they
nationality of
double nationality before their marriage under some
oin
of the retain their
ould The Inited Nations is making a move for the adoption
circumstan
conventio the nationality of married women, so that the
of a jes arising out of the double
nationality of the married women
minimised
further
may be STATELESSNESS
opposite of doublenationality. may so happen
It
Gtatelessness is the
Statelessness
ither denationallisation or on account lack uniformity of
of of
either by
that person may find himself without any nationality.
nationality aws, a
condition of stateles exposes an individual to great hardship MCO No. 45
This Universal Declaration af Human
of security. Realising this, the
and lackwhich was as adopted by the United Nations
in 1948, provided Who are alens?
Rights, Wnat are the rgs
nationality" and that "no one shall be
"everyone ne has a right to af aliens
that his nationality" Apr. 2014
arbitrarily deprived of
This condition of
statelessness can be remedied in the following ways
upon States to regard a certain nationality
(a) by imposing duties
as acquired; on States to refrain from unjust denationa
(b) by imposing a duty
lisation measures;
(c) by liberal-minded States conferring their nationality upon
stateless persons;
admission of stateless
(d) by removing restrictions on travelling and
persons.
TO ALIENS
RIGHTS AND DUTIES OF STATES WITH REGARD
ADMISSION OF ALIENS
Explain the duties
Juristic opinion on this question is not uniform. At the one end, ot the stae govt
to admit ail
there is the extreme view that a State is under a duty towards foreign
aliens. At the other end, there is the other view that a State is fully nationals.
Nov. 2012
entitled to exclude all aliens at will. In between, some hold the view
that a State is under a duty to admit all aliens subject to some conditions
and qualifications.
nus, the following four views have been generally held by states
as regards the admission of persons into countries which are not of
their nationality,
that is, aliens:
(1 State is under a duty to admit all aliens.
A

is under a duty to admit all aliens, but has a right to

State XClude certain classes of persons like drug addicts, persons
With communicable
disease, etc.
 146 PUBLIC INTERNATIONAL LAW

(3) A State is bound to admit aliens, but it may impose

condit
with regard to their admission.
(4) A State is fully entitled to exclude all aliens at will
As tar as actual practice of States Is concerned, the first
view
never been accepted as a general rule of international law ha.
States purport to follow the last rule, claiming that an unqualified Most
ds
rio
to exclude all aliens is an essential attribute of a sovereign governmright
view which finds judicial support in some decisions of English ment,
American courts, as for instance, Musgrove
(1891 A. C.272) and Nishimura Ekiu v. U. S. (1892,
. Chung Teaong Toy
and
and
To
142 US 651
State migration laws of many countries showthat there
is no dit
international law to admit aliens. Though this at
is the theoretical position
in practice, States do freely admit aliens, subject to
Sometimes, the total prohibition of the citizens of certain conditions
one particular State
may be considered as an unfriendly act towards ate
that State.
Most States require all entrants to
have obtained in advance,
stamp on their passport, called a visa,
certitying that the receivinaa
State's representatives abroad have certified
visa is qualified to seek entry into that country.
that the holder of the
However, a visa
not guarantee that entry will be allowed in does
a given State, and its holder
may yet be refused entry into the country.
States often enter into agreements with other
visa requirements for citizens of those states States waiving the
MCO No. 46 or enact laws allowing
visa-free entry for certain categories of
tourists in transit holding an onward travel travelers, as for instance,
ticket. Again, citizens of the
E.U. (European Union) can freely travel from
one country of the EU to
Write another without the requirement of a visa.
on: a short note With his entrance into the
eliens ghts of territories of a State, an alien falls, at
once, under the territorial supremacy
M.U. of that State, unless he belongs
May 2006 to a privileged class like that of
Nov. the diplomatic agents, which enjoys
2007 immunity of so-called exterritoriality.
Apr. But at the same time, an alien
2008 admitted into a State continues to
Nov. 2011 of his own State. In the State
be under the personal supremacy
he is admitted, he is generally in the
same position before law as the subject of that State. But some States
subject aliens to some kind of discriminations
discriminations or restrictions, or restrictions. These
generally, are on voting rights and the
practice of certain professions. The
Economic Committee of the League
V A o rights of Nations has classified
the treatment of aliens abroad under the
not following heads:
5f4 i Alions (1) Fiscal treatment.- Every
resident
z013 diplomatic immunity, is under an obligation alien, unless he enjoys
taxes or customs dues. Several judicial to pay the ordinary civil

the State has a right at international law todecisions have affirmed that
tax any property of an alien
which is physically within its jurisdiction.
 STATTE AND THE INDIVIDUAL: NATIONALITY
THE 147
as to the exercise
of professions, industries or
Rights
Rig" As already pointed out, aliens can be admíitted subject
2)
(2)
ocopatio one of the conditions may be by way of restríctions
d one
nditions, and professions
practising certain
Treatment in such matters as residence, the holding of property write e short nate
8) privileges an
and immunities Regarding the right of an on: Treetment o
civll
and to onfiscate or nationalise the property of an afien, a aers
admitting State M.U. Apr. 2009
discussion is given in the Chapter on State Responsibility,
detailed
detaledsition
positi at international law may be summed up as follows:
the any tw
anoDiscriminatory confiscations and expropriations are opposed State
and
ights of aliens
international law.
priciples of Nov. 2013
to Arbitrary fiscation or expropriation without compensation is
(b) international law.
opposed to
In case of such discriminatory or arbitrary confiscation, the
c)
home State
of the lien can intervene.
with the general policy of the
ld) But, nationalisation consistent
opposed to international law and gives no ground for
State is not State.
intervention by the home
rights of an alien in his country of residence are
lel The vested clarified by the Permanent
also entitled to protection. However, as
Court of
International Justice (in the Oscar China Case, 1934),
nrotection of vested rights does not mean that the country of residence
from providing certain
of an alien has any obligation to abstain
which may cause loss to an
advantages to its local businessmen,
alien in his business.
or obedience to
Aliens, though they owe temporary allegiance
(0)

the State of residence, are

yet exempt from any compulsory obligation
to serve in the armed forces
of the country in which they reside,
to waive the exemption.
unless the State to which they belong consents
But this does not exempt such aliens from compulsory
service in a
local police force.
of
The position under American law is interesting. Under the laws
the United States, an alien can be called up for compulsory service,
but he has a right to opt out. In case the alien exercises this
right (to
opt out), if he subsequently leaves the US, he is not allowed to
return,
and if he stays on in the US, he will not be granted American citizenship.
Admission of
14)Conditions of admission and emigration.-
allens is at the discretion of the admitting States, and such a State
gnt impose several conditions regarding both admission and
immigration.

EXPULSION OF ALIENS
A State is competent to expel aliens while they are on a temporary
are
even when they are there to establish a business and
 148 PUBLIC INTERNATIONAL LAW

running a profession after they have acquired domicile. The pow.

State is analogous to the power of the State to refuse admiof the
sion
aliens. Though this power to expel is inherent, yet the manner in to
which
they are to be expelled is regulated by international law. The ev
must be effected in reasonable manner and without any iniPusion y
ld be avoided, to the
alien. Arresting the alien prior to expulsion should
or unless
such alien refuses to leave the State is likely to evade the author
Such an alien should not be exposed to unnecess ssary indignitiesities.
should he be deported to such a country where his his personal f nor
freedom
would be threatened.
Mass expulsions of aliens would, however, generally be reoard rded as
unlawtul as being in breach of human rights, including Art. 13 as
of
International Covenant on Civil and Political Right One such exa the
mple
is Uganda's expulsion of Indians in 1972, where many of those
were expelled held Ugandan citizenship (with no right to reside inwho
in
other country). It is, of course, quite another thing that, after aly
twenty years. the expelled citizens were allowed to return to Uaand
da.
EXTRADITION AND ASYLUM
The questions of extradition and asylum are inter-connecte
Extradition means the surrender by one State to another State atk
its
MCO No. 47, 48 request of a person accused or convicted of certain kinds of crimina
offences. Asylum means receiving an alien and giving him shelter a
protection, and therefore, refusing to extradite. As Starke observes,
asylum stops, as it were, where extradition begins.
EXTRADITION
The following considerations lie behind the law and practice as to
extradition:
(1) The general desire of all States is to ensure that serious crimes
do not go unpunished. If the State in which a fugitive is present cannot
prosecute or punish him because of some technical rule, he must be
surrendered to the State which can, and will, punish him.
(in) The best State
that is able to try the offender is the State on
the terriory of which the crime has been committed, because that
State has the greatest interest in the punishment of the offender and
has the greatest facilities for collecting the evidence.
THE NATURE OF THE OBLIGATION TO EXTRADITE
Customary international law is silent on this question. The
practice of extradition is comparatively recent and has developed
with modern transport and commerce. It is mostly the outcome of
bilateral treaties and statutes. In the absence of these. there is no
obligation either to extradite or not to extradite. Therefore, the
obligation to extradite is considered to be an imperfect obligatol
Nevertheless, certain broad principles regarding the condiuon
necessary for extradition can be laid down.
 AND THE INDIVIDUAL: NATIONALITY
ruE STATE 149
cONDITIONS NECESSARY FOR EXTRADITION
oadly classif
broadly classifies the conditions necessary for extradition
Starke
two
intoo
There must be an extraditable person (object of extradition).
(a) crime.
Ih) There must be an extradition
(b)EXTRADITABL PERSON (OBJECT OF EXTRADITION)
(a)
radition is the delivery of an accused or convicted
Since extra
State on the territory of which he is alleged to have
idual to the or to ave been convicted of a crime, the object of
comn mitted a crime,
any individual, whether he is a national of the
radition can be
or national of a third State or that of the extraditing
osecuting State the
However, many States, such as France and Germany, have
State. principle of ever extraditing their nationals to a foreign
adopte the
States like Great ritain do not make this distinction between
State.
their nationals and others.
(b) EXTRADITION CRIME
which extradition is requested must be a serious
The crime for prescribe that there can be extradition only for
erime, Some countries
for which is a certain minimum. Certain
certain offences, the punishment
countries enumerate
extraditable crimes. As a rule, extradition is not
is accused of:
granted when the person
(a) political crimes,
(b) military offences, or
(o) religious offences.

Political Crimes
in both the theory and
The term political crime' was unknown
practice of international law before the
French Revolution. It was after
current. Article 120
the French Revolution that this term had become
Revolution in 1793.
of the French Constitution, framed after the French
country "for the
granted asylum to a foreigner exiled from his home
of
cause of liberty." Naturally, during the Nineteenth century, a period
opinion
political revolt against despotism and absolutism,. public
liberal States
developed against extradition of political offenders. The
hke Great Britain, Swizerland and Holland refused
to extradite political
offenders.
of a political
Serious difficulties exist concerning the definition
if committed from
Crime. Some writers consider a crime to be political
a political motive. Others call political any crime committed for a political
purpose. Some writers confine the term to certain offences against
the State only.
IN RE CASTIONI (1890) the test of a political crime was
discussed
following:
Dy the English Court.
The facts of the case are the
150 PUBLIC INTERNATIONAL LAW

Castionl was a Swiss national. There was intense politicat

discontent-ment in a particular canton of Switzerland, as the demand.
the people for a popular vote on the question of revisionof the
Constitution was not accepted by the Government. There was an armer med
attack against the Arsenal. Castioni was a member of the armed mo
He fired a shot which killed the Muncipal Commissioner. After
the
incident, Castioni. ran away to England. The Swiss Governme
demanded extradition of Castioni. Castioni was arrested. Then
he
applied for a writ of Habeas Corpus. The Queen's Bench Division hal
that Castioni's crime was a political crime, and therefore, he could not
be extradited. The Court observed that "To exclude extradition for suc
act as murder, which is one of the extradition offences, it must
at
least be shown that the act is done in furtherance of, done with the
intention of or is a sort of overt act in the course of acting in political
matter, a political rising, or a dispute between two parties in the State
as
to which is to have the Government in its hand, before it is brought
within the meaning of the word used in the Act."
In another case, IN RE MEUNIER (1894), the test of
a political
crime was further clarified. The facts of the case are the following:
Meunier was an anarchist, and he was responsible for explosionss
in a Paris cafe and a French barrack. After the explosions,
he ran
away to England. The French Government requested the British Govern
ment to extradite Meunier. When extradition proceedings were started,
Meunier took up the plea that his extradition could not take place as
he was guilty of a political offence. His plea was rejected on the
ground that he was an anarchist, and he did not believe in any form of
Government. He was an enemy of all Governments. His activities
were directed against the general body of citizens. It was pointed out
by the court that "in order to constitute an offence of a political
character
there must be two or more parties in the State, each seeking to
impose the government of its own choice on the other, and that if the
offence is committed by one side on the other in pursuance of that
object, it is a political offence, otherwise not." As it was held that
Meunier was not guilty of any political offence, he was handed over to
the French Government by the British Government.
The test laid down in RE MEUNIER and RE CASTIONI has been
further extended in A. v. GOVERNOR OF BRIXTON PRISON, EXPARTE
ROLIZYNSKI (1963) 1 (QB 55), where
the Court held in effect that
offences committed with a political object or with a view to avoidin9
political persecution or prosecution for political default,
are poltica
crimes", even though any intention to overthrow
an established
Government may be absent. Thus, this decision
extends the meaning
of political crimes.
 AND THE INDIVIDUAL: NATIONALITY
THE STATE 151
in AE GOVERNMENT OF INDIA AND MUBARAK
nother case,
In MED (1952), the question of political implications of a crime
/. Hed to be discussed. The facts
happened
of the case are the following:
hap Mubarak Ail Ahmed, who claimed to be a native of Pakistan,
arrested in the Republicof India and charged with forgery and
i
was away to
was committed for trial. He jumped bail and ran
fraud. He
Later, when he came to England, a demand for his extradition
Pakistan. of India. He was arrested under the
made by the bvernment
was
ve
Offenders Act, 881.The prisoner applied for awrit of Habeas
inter alia () that there was no substance in the
Corpus. He argued
the proceedings were based on political
es made;only; that
(ii)
considerations and (ii) that having been treated as a spy for
Pakistan, he would not
be given a fair trial in Bombay, where he was
It was held that the case was not of a political
due to
come up for tria
nature. It concerned
a man who was charged with forgery. Even if the
political implications, there was no reason to supposse
case hadsome
that he would
not receive a fair trial.
test of an extradition crime.
Most of the States lay down another
This test is known as
the test of double criminality i.e., the crime
committed by the person whose MCO No. 49
which is alleged to have been
extradition is demanded, must be a crime, both
according to the law of
of the requesting State. The Supreme Court
the State of asyulm and
in the case of FACTOR v. LAUBEN
of the United States applied this rule
HEIMER. The facts of the case are the following

One Jacob Factor, who was alleged to have received money which
he knew to have been fraudulently obtained, left England and was
residing in the State of llinois. The extradition crime was not an offence
in linois, though according to criminal law, in general, of the United

States, the offence was punishable. The Supreme Court held that as it
was punishable according to the criminal law in general of the U.S.A.,
the rule of double criminality was satisfied.
principle is known as the principle of speciality, i.e., a State
The third
asking a person to be extradited on the ground that he has commi-ted
a particular crime can try him only for that crime and for no other.

Rendition
Hendition means the return of an offender to the State where he
has to be tried. This is a more generic term. Such rendition may be
Wh pecial arrangement when there is no extradition treaty. Even
Wnen there is an extradition treaty, there could be rendition in respect

Ofences which are not extraditable. Quite often, refusal of an asylum

may
result in rendition.
 152 PUBLIC INTERNATIONAL LAWN

ASYLUM
What is asylum? Itis derived from a latin word "asylia" which means inviolable placa
M.U. Nov. 2013 lace
The asylum ensuresthat shelter and protection are provided by a state toa
Dec. 2016 to a
Dec.
2019 person who is denied the same in his own country /nation. Generally asylum asylum
is granted to a person when a free and fair trial is not expected in his n
country and therefore the said person should not be extradited. In Co
channel Case, the International court of justice stated that "asylum protecte
the political offenders against the violent and disorderly action of irresponsible
sections of the population". Sometimes asylum can be viewed as an
unfriendly act. For example, Taslima Nasreen, the writer of Bangladesh
or
Dalai Lama and other Tibetans in India.
As already pointed out, asylum is inter-connected with extradition
Asylum stops where extradition begins. Asylum is the right of every Stateto
refuse to extradite in certain circumstances. It also involves the elements of
shelter and active protection on the part of the authorities in control of the
territory of asylum. Asylum is oftwo kinds
) territorial, and
(i) extra-territorial.

TERRITORIAL ASYLUM
(0)

Teritorial asylum is the one granted by a State in its territory. The power
to grant a territorial asylum is an incidence of territorial sovereignty. This
power of a State is of ancient origin.
It should, however, be noted that the power to grant territorial asylum is

the right of the State granting it. Itis sometimes said that the person seeking
asylum has a right of asylum. This is not correct. Though some Constitutions
and the Universal Declaration of Human Rights of 1948 mention the right of
asylum, there is no such right recognised by international law. The power of
a State to grant asylum may be restricted by the treaties it has entered into
with other States, as for example, extradition treaties.

(i) EXTRA-TERRITORIALASYLUM
Extra-teritorial asylum is one granted for, and in respect of, legations,
MCa No. 50 consul's premises, international headquarters, warships and merchant
vessels to refugees from the authorities of the territorial State. The granting
of extra-territorial asylum, being in the nature of a derogation from the
soverignty of the territorial State, is given under some exceptional
circmstances. The following are the kinds of extraterritorial asylum:
(a) Asylum in Legations
There is no general right to grant asylum in the premises o
the legation. The International Court of Justice in the ASYLUM CASE
 HE STATE AND THE INDIVIDUAL:
NATIONALITY

1950) reaftirmed that there is no general right of 153

exceptional cases, such diplomatic
asylum.
t for instance, the following:
diplomatic
asylum may
grantea be
()When iethere is a mob disorder or mob
rule and when
in extreme danger, asylum
in legation may the life of
a
temporary measure. be granted
as Na W/hen
there is a special treaty between
a territorial State
State of legation, such asylum may be granted. and
f (ii) When there is a local binding custom authorising
granted. such asylum,
it may be

b) Asylum in
Consulates
The iaw in this case is the same as that in the case of
legations.
e) Asylum in the premises of lnternational Institutions
There is no general right to grant asylum in the premises of
International Institutions.
(d) Asylum in Warship
Asylum may be granted in a warship on the ground of humanity in
case of extreme danger to the individual seeking it.
(e) Asylum in Merchant Vessels
There is no right to grant asylum in merchant vessels.
HUMAN RIGHTS AND FUNDAMENTAL FREEDOMs
Though the Charter of the United Nations generally expresses its
concern with the fundamental freedoms of an individual, regrettably,
the protection of human freedom by international rules has not been
achieved, It is more in the nature of a promise or an aspiration, rather
law
than an achievement. The position of human rights in international
is today in a formative stage. It has been possible at the international
make
evel only to proclaim conceptions, attempt definitions,
declarations, establish organs with limited
programmatic statements or
powers of promotion, investigation or recommendation, and encOurage
to be realised.
tne mass communication of the aims and ideals
instruments which have
Nevertheless, there have been several Ihey
auempted to enunciate or guarantee human rights standards
are the following:
Constitutions of the
United Nations Charter and the
The Specialised Agencies on member
binding obligations
neither impose
einstruments
human rights, nor
concretely define such ights.

Observe
are the nature
in of the pledges
expressed in a very general
organs have only
powers to
nguage. The United lations and its freedoms.
recom encourage such fundamental
promote and
 154 PUBLIC INTERNATIONAL LAw

(2) The Paris Peace Treatles of 1947, wlth Italy, Rumanla,

Hungary and FInland Bulgarla
These Treaties contain general pledges only to resne
rights. But these pledges are not supported by any court orect human
huma
machinery
to enforce such human rights. The general experience
hasachine
bee
the value of these pledges is very limited. tha
(3) The Unlversal Declaration of Human Rights
adopter by
United Nations General Assembly In December
1948 by the tha
This Declaration is the first of three stages of a
orogramme
designed to achieve an International Bill of Rights, imposing
bligations
on all States and reinforced by effective administrative ma
would make human rights a reality. It was visualised
international guarantee of fundamental freedom was that the
to be achiev the
the following three stages: edin
(a) A declaration defining the various human rights
which are
be respected.
(b) A series of binding covenants on the part
of State to
such rights as defined. respect
(c) Measures and machinery for implementation.
Unfortunately, the Universal Declaration
of Human Rights has no
been followed by the programme in the later stages.
Therefore. ouita
often, it is said that the Universal Declaration of
Human Rightsi
nothing but a manifesto. Though legally this position
is correct, vel it
should be noted that the Universal Declaration of
Human Rights is
definitely a big step towards international protection
It is encouraging
of human rights.
to note that the different members of the United
Nations, with conflicting political and social
ideologies, are able to
agree on a common measure of human freedom.
(4) The European Convention
for the Protection of Human Rights
and Fundamental Freedoms
What does the Euro-
This convention was sponsored by the Council of Europe and
pean Convention on
signed by the Member States of the Council of
Human Hights con Europe at Rome on
Novermber 4, 1960. It is an important
cemed with? regional Charter of Human
(2 marks)
Rights. This Convention goes much beyond the Universal Declaraion
M.U.Jan.2019 Oruman Highis in the following ways:
(a) The European Convention imposes
a binding commitment
provide effective domestic
MCa No. 51 remedies in regard to a number of rig
specified in the Universal Declaration
of Rights.
(6) It contains precise
and elaborate definition of such righis
along with the exceptions to,
and restrictions on, each of such rig
(c) It provides for the establishment sion of
of a European Commishs
Human Rights to investigate rights,
and report on violations of human which
at the instance of the State
parties, or if the State aya
 AND THE INDIVIDUAL: NATIONALITY 155
THE STATE
the petition of any person,
complaln is made has so accepteduponindividuals within that State's
vernmental organisation or group of
non-gover
jurisdiction.
The Commission became competent to receive applications in
T1955, after six States had accepted the right of individual recourse
JulyConvention also provided for a European Court of Human Rights.
The mpulsory risdiction to come into being upon at least eight
with
accepting such risdiction. This was achieved in September
States Court was set up in January 1959. It delivered its first
1958 and the
November 15, 1960 in the Laweless case.
judgment on
European Convention for
should be accepted that though the
Freedoms has
protection of Human Rights and Fundamental
the fundamental rights enforceable at the international
empted to make
are serious limitations which restrict the exercise of
level, there
to in the Convention.
jurisdiction by the court referred
EUROPEAN COURT OF HUMAN RIGHTS
the European Court of Human rights, visualised
As observed above,
Convention for the Protection of Human Rights and
in the European 1959, The Convention
Fundamental Freedoms, was set up January,
in
Preamble that the parties "as the
establishing the Court states in the
which are like-minded and have a
Government of European countries
ideas, freedom and the rule of
common heritage of political traditions,
law" are resolved to "take the first
steps for the collective enforcement
in the Universal Declaration."
of certain of the rights stated
to entry into
However, two rights, the right to work and the right
rights stated in the Universal
one's own country, are omitted from the
right to
Declaration. Among the rights and freedoms protected are the
from torture or
life, freedom from slavery or forced labour and freedom
inhuman or degrading treatment.
As observed above, the first judgment of the Court was
delivered
ln this case, the
on Novermber, 15, 1960, in the Laweless case.
to 11th
applicant had been detained without trial from 13th July
December 1957, under the Irish Offences against the State
(Amendment) Act of 1940. The Irish Government contended that
Laweless was a member of the Irish Republican Army, and the detention
of an offence
Was considered necessary to prevent the commission
under the relevant Act. The Court accepted this plea, but nevertheless
neld that a person so detained should be brought before a competent
a authority, and should be tried within a reasonable time. also
It

noted that an exceptional situation of crisis or emergency which affected

ne whole population and constituted a threat to the organised life of
une community prevailed in Ireland and the Irish Republic Army at the
ne in question, and it did constitute such a state of affairs. The Court
158 PUBLIC INTERNATIONAL LAw
appears that there is a duty or an obligation imnao.
(3) It
osed
on the producing and purchasing States in the case of intern bot
commodity agreements to co-operate in ensuring the stabilit ationa
commo-dity prices and in eqating supply and demand. Thie
not mean that there is any obligation, in international law whi
restricts a State in matters of production, but it would onl hic
that a regulatory system adopted by the contracting State man
such as to stabilise prices and equate supply and demand. De

Article 6 of Charter of Economic Rights and Duties

of stata.
es,
1974, provides as follows:
"It is the duty of States to contribute to the development
international trade of goods, particularly by meane of
arrangements and by the conclusion of long-term multilata.of
commodity arrange-ments, where appropriate, and inta
account the interest of producers and consumers. taking All States
share the responsibility to promote the regular flow
of all commercial goods tra-ded at stable, and accese
remunerative and
equitable prices, thus contributing to the equitable development
of the world economy, taking into account
in particular the
interests of developing countries."
(4) It appears that there has developed a rule of international
law which prohibits dumping and unrestricted
disposal of
stocks that may interfere with the economic developmentaccumulated of the so-
called 'developing countries.
(5) It is also clear that international law is
moving towards the
abolition of quantitative restrictions on imports
and exports, except
where such restrictions are temporarily and urgently
required to solve
problems of maintenance of currency reserves. It
also appears that
States are willing and ready to recognise that custom formalities
should be simplified and administrative barriers to
minimised in matters not materially involving the revenue, trade should be
barriers or formalities are necessary to maintain balance-of-payments.unless such
(6) It further appears that it is also an
emerging law of international law
that States should collaborate to promote exchange stability.
(7) An important branch of international
to regulate the sharing of resources economic law is emerging
such as energy, raw materials
and food. The need for such sharing regime
during the Energy Crisis of 1973-74, became very clear
by producing countries were
when restrictions on Oil exports
imposed and consequently, was
unprecedented increase in oil prices. The World Energy there
was convened in 1974 and the Conference
Development and Co-operation (OEDC) Organisation for Economic
Agency was established during of the International Energy
the same year.
The rules of interrnational
economic law, as indicated above, ar
emerging rules. The rules are in a flexible
these rules are fully formulated state. It cannot be said inae
and they have taken a concrete shap
Nevertheless, these tendencies
and evolving rules deserve to be no
 AND ECONOMIC INTEREST 159
THE STATE
INTERNATIONAL MONETARY LAW
of inter-dependence between
is a large measure
There Economic Law and International Monetary Law.
ternational
rnational netary Law attempts to ensure fair and efficient
Mone
conducting internati financial transactions, to promote
od of ary co-operation and to maintain an orderly
monetary
rnational
system. The objects of international monetary law are
Monetary Fund
hange the purpose of the International
reflected in the of
which was the outcome of the Bretton Woods Conference
(IMF) purposes, among others, are the following:
44. Its monetary co-operation;
the promotion of international
(a) facilitation of the expansion and balanced
growth of
the
inter-national trade;
export stability and assisting in establishing
icl the promotion of payment; and
multilateral system of to make
a foreign exchange restrictions, and
(d) eliminating to enable members to correct
available Funds in order payments to lessen the degree
maladiustments in their balance of
payment of members.
disequilibrium in the balance of were the following:
of
main lines on which the Fund was constituted
The of its
(1) Each member
was required to maintain the par value
or in terms of the
Currency in terms of
gold as a common denominator July, 1944
United States dollar of the
weight and fineness in effect on
were expected to take place within a
(2) Exchange transactions
closely defined margin of the
par value.
(3) The members had to
undertake to collaborate with the Fund to
orderly exchange arrangements
promote export stability, to maintain
with other members and to avoid
competitive exchange alterations.
(4) A change in the par value of the
member's currency was to
be made only on the proposal of
the member and only after
be made only
consultation with the Fund, and such proposals could
in order to correct a fundamental disequilibrium.
proved to be either
Ever since 1973, almost all these theories
reality, In that year,
temporarily or permanently out of keeping with
U.S.A. announced that it was preparing to devalue
the dollar by 10
of their
per cent. Subsequently, several States allowed the value
management of
Currencies to float. Even though "guidelines" for the
Executive Directors of the
ating exchange rates were issued by thewere floating independently
TUnd by the middle of 1975, 11 currencies
currency. even though such
d Were pegged to a single specified
specified currencies were themselves floating.
chronic balance
was not geared to deal with, or cure,
Fund
Payment difficulties among the members: and it also appeared

it wasThenot adequate already to meet the problems of the developing

Fund recognised the need tor new ideas
uries had
160 PUBLIC INTERNATIONAL LAW

and set up a Committee on Reform of the International Mo

hetary
System and Related Issues (Committee of Twenty). This Commit
of Twenty was requested to produce a plan for new internate
monetary reforms. The Committee of Twenty concluded itelonal
work
Washington in June, 1974. t recommende ded a programmne at
immediate action, which included the establishment of an interim of
Committee of the Board of Governors, and the formulatiim
guidelines for the management of floating exchange rates. The sof
amendment, submitted in January, 1976, was approved by the nd
of Governors in April, 1976. The second amendment represent.
the immediate steps required to be taken to initiate the revolution
process of reform of the international monetary system recommende
by the Committee of Twenty. The essence of
the amendment was t
release the members from the obligation of maintaining exchanaa
rates on the basis of fixed par values and to enable them to
maintain exchange arrangements of their own choice. The change
was nevertheless to remain subject to the general obligation
of
member States to collaborate with the Fund in order to ensure
orderly exchange arrangements and to promote a
stable system of
exchnage rates.
 CHAPTER
13
DEVELLOPMENT AND THE
ENVIRONMENT
Introduction
The modern wor eems to have
been caught
large number
There are aconomically of States, in an enigma.
particularly
which are
econ backward and which in Asia and Africa,
development. These are are in the
the so-called underdeveloped process of
ountries. On the other hand, there or developing
have been a
industrially and technologically
States which are large number
of
Europe and merica, and developed, mo
in they are confronted
Prolems which arise out of technological and industrial with certain
uch advancements have resulted in the degradation
Suc advancement.
vironment of those
vironment thosetates. Therefore, the following of
the
1) The process of development in developing problems arise:
he Dromoted by multi-lateral agencies. Such an
countries hasto
Heelf agency must concern
not only with the conventional or
development, but also with the economical aspect
on efect such development would of
the human race. Such an agency to see that the
have
development will not be neutralised has benefit of
by the effect such
would have on human beingS development
and ecological qualities.
(2) Consequently, the process of
development is not merely
increasing in quantity of economic production,
but it must
in development of
quality in the standard of envionment. also result
(3) Further, it must be seen
that the development and improvement
of environment must necessarily
be achieved in the framework of national
sovereignty of the concerned developing
countries.
The attempts to achieve the above objects,
in the framework of
international law, are discussed in this
Chapter.
Development
The United Nations Committee for Development, in
its report at Write a short nore
5russels for the Second United Nations Development Decade,
defined "Development" has on:United Nations
as follows: Environment Prog-
ramme
E..evelopment implies, for the developing countries, not simply M.U. Dec 2015
TIgu-res in productive
capacity, but major transformation in their
SOCial and
economical structures. The Report adds that the ulitimate
Purpose of development is to provide opportunities for a better life
to all sections of the population.
Gro achieve the desired goals, the president of the World Bank
äroup established
the following a Commission on International Development, with
objectives:
Involyin
Involving creation of a framework for free and equitable trade,
the abolition by developed countries of import duties and
161
 INTERNATIONAL LAW
which the.y
JBLIC commodities
primary offsetting af
of
nthose with offset
investment,
oduce.foreign developing
rivate developing
helping the
directed atgrowth.
uld be
self-sustained a target of one
to
fhould be increased donor
countries.
products of the of aid.
legitimate form and removed.
identified be
uld be
technical
assistance should
controlled
effectively
t be education and research.
dto multilateralised.
reasingly development of
uniform
of aid.
as adopted a policy
n October 24, 1970,
objectives.
en several inter-
ance on Treaty
Coni
Nation Development
nation Co-aperation and
and Dev Community, Asian
Programme, nic
ant Bank.
Development (
Development Bank a
lted in the pollution
Technical and industrial adva man has been a large
of the air and the water around ecticides and thee
rural land. The pesticldes,
scale degradation of terribly upset the balance of nature. The pollution
other bio-cides have
of the environment is mostly
due to the following factors:
(a) Accelerated population
growth;
(b) Increased urbanisation;
(c) The expansion and growth of new
technology.
There have been a number of treaties and
Conventions to curb
to reverse them. The Secretary
these processes, and if possible,
General of the United Nations, in a report on the Problems of the
Human Environment dated May 26, 1966, suggested international
action regarding the following:
(a) Problem of pollution and contamination of the oceans and
atmosphere, partly because these may be the object of general
use, partly because of the impossiblity in certain cases of localising
the effects of polluting or contaminating agents.
(b) Wild species and nature reserves, upon the basis that these are
a common heritage of mankind. International agreement
necessary to control the export, importand sale of endangered may be
species.
 DEVELOPMENT
AND THE
depletion ENVIRONMENT
(C The nce of of marine
depeThe monitoring mankind upon resources, 163
the sea having
of changes as a source of regard to
and weather conditions. in the earth's protein. the
(e)The definitionof
of International atmosphere,
climate
(6) Reciprocal ontrols Standards
n all countries, of, and restraints ofenvironmental
perations in all where upon, equality.
en ronment, So as to remove such operations certain industrial
ad-vantages by ignorin the consequencesinducements can endanger
to obtain the
pose a hazard to the environment competitive
of the processes
Stockholm Conference of which
1972 on
The Uniteited Nations Conference the Human Environment
h met at Stockholm trom on the Human What was the
the first major effort to solve
e June 5 to June Environment, object of mait
the global problem16, 1972, represented stocno
fmorovement conference. 1972?
reement. TheofConierence
tne numan environment
by
of protection
and M.U. Dec
2014
ceveral recommendations worked in several Committees an international
Conference also in connection and made
with
onsider the draft established a Working Groupthe problem. The
declaration on human to examine
it. and
The important decisions, environment
placed
Conference can be summedresolutions and recommendations before
up as follows: of the
(1) A resolution was
nuclear weapons tests,passed in the plenary session, condemning
atmosphere, and calling especialy those carried
to refrain from doing on states intending out in the
so, as these might to carry out
such tests
f the environment. lead to further contamination
(2) A unanimous
Environment Day be recommendation was made that a World
observed on June 5
(3) A so-called "Action each year.
of the Plan" for the protection
environment was formulated. and enhancement
grouping, in a more or This Plan was in effect
less logical fashion, of all recommendations a
nternational action adopted for
nvolved three parts, by the Conference. The
an "Earthwatch re-arrangement
of
international significance so programme to identify problems
environmental crises; as to warn against impending
recommendations concerning "environment
nanagement" or in other words
Jas shown to be desirable or the application in practice of what
nd "supporting
necessary in regard to the environment
measures" such as education, training. public
ntormation, and finance. "Earthwatch"
was to encompass, not only a
rojected network of atmospheric monitoring
stations, but also
sting programmes of international bodies for the detection of
matic changes and of marine pollution. An interesting
commendation was that for an International Referral Service to
ovide liaison between those persons or institutions seeding
ironmental information, on the one hand, and persons or
utions, on the other hand, able to furnish the information desired.
The Conference also adopted a "Declaration of the United Nations
erence of Human Environment." An optimistic view prevails that this
 164 PUBLIC INTERNATIONAL LAW

Declaration canof very well beas ompared to the Universal Declaratio

Human Rights 1948; and the latter Declaration paved the w of
internalional legal guarantee to hunman rights in certain areas r
Environment Declaration may also be productive. However, shouid be
it
noted that at present it is a non-mandatory Declaration.
(5) Another inmportant recommendation of thethe Conference w. to
up of
createanewinternational machinery. It suggested programme, setting
54.
member Governing Counci for Environmental electes
once in three years by the ceneral Assembiy on the basis of equitabl
geographical distribution. It is gratifying t note that followina
recommendation, a 58-member Governing Council has been establish
as the policy making body of the United Nations EnvironmentofPro
gramme. As a result of the recommendation and the resolutions th
Stockholm Conference, the following Conventions have been adoptec
(a) The Comvention for the_ Protection of the World Cultural and
Natural Heritage, adopted at Paris on November 16, 1972, under
he auspices of the United Nations Educational, Scientific and Cultura
Organisation (UNESCO).
b) The Conventionon International Trade in Endangered Species of
Wild Fauna and Flora, concluded at Washington on March 3, 1973.
(c) The Internationa/ Convention for
Prevention the of pollution
rom ships, and its six Annexes and two protocols, concluded on
November 2, 1973, together with the related Convention on the
Prevention of MMarine Pollution from Landbased Sources.
(d) The Action Plan adopted by the United Nations World Population
Conference at Bucharest, Romania, August. 19-30, 1974, containing
statements and recommendations directed to the control of population
growth, and related odemographic goals, and calling, inter alia, for the
continuous monitoring of population trends by the United Nations, but
involving no bindig commitments for States in this area.
(e) Mention also should be made in this connection of the draft
provisions for_the protection and preservation of the marine
environment in Part (Articles 1-47)
l of the Single Negotiating Text
SNT) adopted and revised at the Third and Fourth Sessions of the
Third United Nations Conference on the Law of the Sea.
United Nations Conference on Human Settlements held at
Vancouver, 1976 (Habitat Conference)
The main contributioin of this Conference was the Declaration onof
man Settlements adopted by it. This Declaration was a kind
a
afesto, programme charter analogous to the Universal Declaration
uman Rights of 1948. The Declaration sets out principles that are
ned to prevent aggravation of the deteriorating circumstances of
umbers of people in human settlements, to achieve action at
national and international levels to deal with such factors as
ed urbanisation, rural backwardness and dispersion, and to
the basic needs of disadvantaged people tor food, shelter,
erand leisure.
 CHAPTER 14

THE AGENTS OF INTERNATIONAL

aUSINESS AND DIPLOMATIC ENVOYS
BUSINESs
DIPLOMATIC ENVOYS
diplomatic envoys are tne the officia and the accredited agents or
The
representatives otries
ves ofaStatei foreign countries.
In
In modern times, most
most oof
have such iplomatic missions a permanent character ín
of
ates day, the diplomatic representatives are the principal
the countries. Toda
foreig which intercourse between States is conducted.
chinery by
Diplomatic Envoys
classification of
of classification of diplomatic envoys was a subject
The question time. The Congress of Vienna in 1815
troversy for a longclassificati and order or precedence of
of
attem-pted to codify the little
with success. Now, the Vienna Convention
plomatic envoys, but April 18, 1961, provides for classification MCO No. 52
Diplomatic Relations of
on
diplomatic envoys.
Before the Convention of 1961, the Diplomatic
following three categories
Fnvoys were classified into the
(1) Ambassadors,
including Papal Legatees and Nuncios.
(2) Ministers
Plenipotentiary and Envoys extraordinary.
Affairs.
(3) Charges d'
Now, the Vienna
Convention of 1961 has classified the Heads of
Missions into the following three
classes:
(a) All AmbassadorS or nuncios
accredited to Heads of State
rank.
and other Heads of Mission of equivalent
(b) All Envoys, Ministers and inter-nuncios
accredited to Heads
of State.
(c) All Charges d' Affairs accredited to Ministers for
Foreign Affairs.

Appointment of Diplomatic Envoys

Under the Vienna Convention, the sending State must make
certian that the agreement of the receiving State has been given
for
the person who proposes to accredit as Head of the Mission to that
State. The Receiving State is not obliged to give reasons to the
sending State for a refusal to agree. Two or more States may accredit
the same person as Head of Mission to another State, unless any
oDjection is offered by the Receiving State. The appointment of an
alvidual as Ambassador is usually announced to the State to which
IS accredited in certain official papers known as Letters of
Credence or Leres de Credence. Apart from the Letters of Crecdence,
the individual may
take with him documents of Full Powers relating to
aparticular negotiation or any other specific written instructions.
ne State to which an Envoy is accredited may refuse to receivve
him on either
of the following grounds
165
 166 PUBLIC INTERNATIONAL LAw
(a) That the diplomatic Envoy may not be received
particualr mission of negotiation for which he has been
sent; or the
(b) Because a particular Envoy, who is not personally accent.
MCA No. 53, 54 is a persona non grata. ptable,
The State refusing to receive the Envoy is under no obligs.
to specify the ground of its objection. Generally, before a jation
accredited as an Envoy, the State to which he is accredited wi person
sounded and its assent will be obtained. be
RIGHTS, PRIVILEGES AND IMMUNITIES OF
DIPLOMATIC ENVOYS
The rights, privileges and immunities of diplomatic envoys are
on tne need to ensure the efficient performance of the functions of basad
of fed
diplo.
matic missions. The Preamble to the Vienna Convention makes this clear
As observed earlier, diplomatic envoys enjoy exemption from lcsil
MCQ No. 55 civil and criminal jurisdiction. Articles 34 to 36 of the Vienna Conventio
provide that a diplomatic agent shall be exempt from all dueG
taxes, except certain taxes. The receiving State shall exempt diplomati
agents from personal services, from all public services of any kind
whatsoever and from military obligations connected with militar
contributions and biletting. It is also provided, in Art. 26, that the
receiving State shall ensure to all members of the Mission, freedom
of movement and travel in its territory, excepting in certain zones
which are prohibited or regulated for reasons of national security. Art.
27 provides that the receiving State shall permit and protect free
communication for all official purposes. The official correspondence
of the Mission shall be inviolable.
Termination of Diplomatic Mission
A diplomatic mission may come to an end for one of the following
reasons:
(a) The State which accredited him may recall him. The recall
of an envoy may quite often have serious implications. For example.
it may be prologue to severance of diplomatic relations with the
a
State to which the Envoy is accredited, or sometimes it may be
intended to warn the receiving State that the accrediting State is
dissatisfied with their mutual relationship.
(5) The receiving State may request that the Envoy be recalled
The implications of such a request may be as serious and lead to
the same consequences as in the case of recalling of an Envoy
C) When a war breaks out between the accrediting and receiving
States, passports may be delivered to the Envoy and the staff and
thus the diplomatic mission may come to an end. If the diplomatic
a
mission is for particular object, after the fulfilment of the object of
the mission, it may be terminated.
(d) If the Letter of Credence is granted for a particular period, at
the expiration of that period, the mission may come to an end.
(ef the sending State, by notification, informs that the function
of a diplomatic agent has come to an end.
 INTERNAITONAL BUSINESS..
THE AGENTS OF 167
recej
receiving State, by notification, declares that the
(1)f6 the been a persona non grata.
individual has
CONSULSs

The
ho orimary duty of the consuls is to protect the commercial
them. Generally, they are not diplomatic
the State appointing
inte hut at the same time, apart from protecting the commercial
agents, but
their untry, they perform a number of other duties, like
interest of passports, solemnising of marriages, acting as notaries,
ranting of
etc
The system of appointing consuls is much older than that of
diplomatic representative Formerly, a merchant residing a foreign
in
appointed as a consul, but, during recent times,
ountry would be
practice of appointing permanent consuls has developed.
the
It should be noted that consuls are different from accredited diplomatic
will be only one diplomatic envoy
envoys. Generally, there
be any number of consuls appointed in a
aState, while there can nature of the commercial interest to be
te depending on the
d. For example, there may be a consul in most of the
protected.
which they are sent. Again, consuls are
important cities of a State to
not equipped with Letters of Credence. They are appointed under a
commission and the appointement is notified to the State where the
where he is to be stationed
consul is to be stationed. The State
functions. If
grants him a permit (exequatur) to carry out the consul's
the consul violates any law of the State where he is stationed, or he
if

is guilty of any other misconduct,

such permit may be withdrawn.
Vienna
The Vienna Convention on Consular Relations signed at
in detail the functions of the Consuls.
on April 24, 1963, enumerates
in the Convention that the
As observed above, it has been recognised
Consular functions consist mainly in furthering the development of
commercial, economic, cultural and scientific relations between the
sending State and the receiving State, and in protecting, in the
receiving State, the interests of the sending State and of its nationals,
both individuals and bodies corporate, within the limits permitted by
international law.
Art. 9 of the Convention classifies Heads of Consular posts
i

the following:
(a) Consuls-General
(b) Consuls
(c) Vice-Consuls
(d) Consular Agents.
Art. 17 further provides that the Consular Office might perform
aiplomatic acts when the sending State has no diplomatic mission
na Is not represented by a diplomatic mission of a third State.
Rights and Privileges of Consuls
Art. 31 of the Convention provides that the Consular premises
shall enjoy certain amount of inviolability. The Consular archive
168 PUBLIC INTERNATIONAL LAW
documents shall be inviolable at all times, whereever they may
(Art. 34). Subject to the interests of national security, the receivibe
State shall ensure freedom of movement and travel in its territar
all members of the Consular posts (Art. 34). The receiving sta
shall permit and protect freedom of communication on the part o
the Consular post for all official purposes. The official corresponden
of the Consular post shall be inviolable (Art. 35). The receivin
State shall treat the Consular Officer with due respect and sha
take all appropriate steps to prevent any infringement of their persOnal
freedom or dignity. The other immunities enjoyed by the Consular
Officers have already been discussed.
Agents other than Diplomatic Envoys and Consuls
States may employ Agents like Trade Commissioners and Officers
of Independent Information Services or temporary representatives
to
negotiate on technical matters. No special rules of international law
have developed with respect to such agents. However, their rights
and privileges may be governed by treaty arrangements or
on
principles of courtesy.

T
 CHAPTER 15

TREATIES

the law of treaties was mostly to be found in Explain tne

to 1969, Concept
Priorles of International LaW. These rules were to a large
Customary rule summerise
and
ne
reformulated and codified in the Vienna Convention on the
extent
Treaties, concluded on May 23, 1969. various Linds of
w of with the definition of the term adopted in Art. 2 of reates.
accordance
cordance M.U Apr. 2007
In nvention, a treaty may be defined as an agreement
Vienna
the more States establish, or seek to establish, a
whereby two or MCO No. 56
themselves governed by international law. As
tionship between
rved Starke, so long aS an agreement between states is
by Sta
obse any kind of instrument or document and even an oral
- What do yau mear
attested, may constitute a by a treaty ?
betweer n states involving undertakings
exchange (2 marks)
treaty,
irrespectiv of the form or nomenclature or the circumstances MU Apr. 2011
Conclusion, provided () it is not governed by domestic national May 2017
ofits to create a legal relationship.
law and (i) it is intended
Greenland case (referred to later in this Chapter), Explain the conpe
In the Eastern
ofa treaty. 12ma
Court of International Justice held that even an oral
the Permanent Affairs Minister
M.U. May 2012
declaration in the form of a promise by the Foreign
of one country
to his counterpart of another country within their
binding as a formal
respective competence and authority, can be as
treaty in writing.
A treaty is thus an agreement
of a contractual character between
International Organisations, creating
States or between States and
legal rights and obligations between the parties.
Though treaties create international agreements and can be Ditference between
contractual treates
compared to contracts, treaties which are agreements between and law making
treates
States, or between States and International Institutions must be
distinguished from the contracts which a State might enter into with Apr. 2015
individuals or corporations. The essence of a treaty is that it is an May 2019

agreement between international persons, though it may create

contractual obligations. But in the case of contracts, at least one of
the partiesis not an international person. He is an ordinary legal
person according to the relevant law.
However, to consider a treaty as a mere agreement and nothing What is treaty?
more would be to over-simplify its functions and significance. As a What is reserve-
mater of fact, a treaty is the main instrument which the international tion in a treaty?
Wite stages ofa
y possesses today for the purpose of initiating and
ddeveloping treaty.
international co-operation. M. U. Jan. 2018
Treaties are also different from certain unilateral acts commonly
COgnised in international practice, as for instance, acts of protes,
ecognition, renunciation, notification, etc.

169
 170 PUBLIC INTERNATIONAL LAW
The functlons of a Treaty in International Law
(a) A SOURCE OF LAW
It has already been observed that certain kinds of
treatiee
known as law-making treaties, are an important source
international law. In certain instances, even the so-called trea
contracts could directly become a source of international law, aty
(b) A SOURCE OF INTERNATIONAL CONSTITUTIONAL LAw
of late, treaties, particularly multipartite treaties, play the im.
portant role of making constitutions of International Organisatinn ations
For example, the Charter of the United Nations, which is the outca come
of an international conference at San Fransisco in 1945, is in the
nature of a multilateral or a multipartite treaty. Similarly, the covenant
of the League of Nations was a multilateral treaty.
(c)AN INSTRUMENT FOR IMPOSING BINDING OBLIGATIONs
In international practice, treaties perform various functions
and
are responsible for carrying on several international transactions, A
treaty, which is an agreement between States, or between States
and International Institutions, creates obligations of a binding nature
In this sense, treaties can be compared to contracts in civil lav
Treaties and Contracts
What is treaty? Though treaties create international agreements and can be
Discuss the signl- compared to contracts, treaties which are agreements
ficance of a treaty between States
International or between States and International Institutions must be distinguished
in from the contracts a State might enter into with individuals or corporations.
Scenario.
Nov. 2012 The essence of a treaty is that it is an agreement
between international
persons, though it may create contractual obligations. But in the case of
contracts, at least one of the parties is not an international person. He
is an ordinary legal person according to the concerned law
The Treaty-maklng Power
A sovereign State which has not parted with its sovereignty
possesses full treaty-making power. As observed by the Permanent
Court of International Justice, in the case of the S.S. Wimbledon
(1923), the capacity of entering into international engagement is an
attribute of State Sovereignty.
However, such power is not confined to sovereign States. Colonies
and protectorates and other subordinate territories also enter into various
kinds of international engagements. Sometimes, agreements of a
technical character are made between the Government Departments of
different States, being signed by representatives of these departmenis.
TREATY-MAKING POWER OF U.N.
According to the Charter of the United Nations, the organisation
enjoys full treaty-making power. The lInternational Court of Justice
 TREATIES 171

the of IN THE REPARATION FOR INJURIES

case Detlne Treaty
bserved n IN THE SERVICE OF THE UNITED NATIONS (Advisory Explainthesign
SUFFERE fIcance of treaty in
UFFE940), "The organisation is an international person; it is a governing
Opinion, Internaitonal Law and capable of possessing international the
relations between
subject ofof duties." the states.
rights and provisions ofthe Charter empower the United Nations to enter Nov. 2013
Variou example, Article 43 of the Charter empowers the Security
ties. For
tr conclude a treaty with the members of the United Nations, to
intotre
Council ute to the maintenance of international peace and
contribute
them to
le
enaoArticle 63 provides that the Economic and Social Council may
security.
agreements with the various specialised agencies.
enter i nto
are bound by a Treaty
Who is Treaty?
general rule, a treaty may notimpose obligations or confer rights What
As a and indeed, many treaties expressly declare that they
what are the
parties, various stages of
onthird binding onlyon the parties. The exceptions are as follows: treaty making?
are to be effecting an international settlement or conferring an Explain the term
(i) Treaties etc., may reach out to 'reservation in
inlernational status on ports, waterways, treaties?
are non-parties. M.U. Apr. 2016
States which established customary
treaties declaratory of
il Multilateral to non-parties, but the true
international law will obviously apply
is that non-parties are bound, not by the treaty, but by the
0osition formulation of the rules in the
CUstomary rules, although the precise
significance.
treaty may be of
creating new rules of international law
(ii) Multilateral treaties will bind non-
or almost all the Great Powers,
and ratified by all,
in exactly the same way as do all rules of international law.
parties
which are intended to have uni-
(iv) Certain multilateral Conventions
for their application to non-parties.
versal operation, may provide for terms
Classiflcation of Treaties
bases.
Different writers classify treaties on different
and treaties
Oppenheim classifies treaties into law-making treaties
for any other purpose.
following heads:
MaNair classifies treaties under the Define treaties
of conveyance. and its kinds.
(a) Treaties having the character M.U. Nov.2006
(6) Treaties having the character of contracts. Dec. 2016
are further subdivided into:
(c)Law-making treaties, which
law, and
() Treaties creating constitutional
(ii) Treaties creating other conventions.
incorporations, like the Universal
(d) Treaties akin to charters of
Postal Union.
form in which they
Starke classifies treaties accordingly to the
are concluded, namely: is
In this form, the treaty
1. Treaties between heads of States:
of States.
concluded between sovereigns or heads
 172 PUBLIC INTERNATIONAL LAW
2. Treaties between Governments: This torm is usually
technical or non-political agreements. used
used.
for
3. Treaties between States.
Define treaty and
4. Treaties between Ministers: A Treaty may be
negotiated
signed between the Ministers of the respective ar
explain the kinds
of treaties. concerned.
coand
countries
M.U. May 2006
Nov. 2006
5. Treaties between particular governmental departments
Apr. 2010 6. Treaties between the actual political heads
of two
Nov. 2010 countries, as for instance, (0) the US Soviet Union or mor
- ore
Anti-ballistic Missile Systems, signed at Moscow Treaty
on May 2on
1972, by President Nixon of USA and Leonid 26,
Brezhnev of
Soviet Union, and (ii) the Joint Declaration of the
Reversion
the
o
t
Hong Kong to Chinese sovereignty signed on
1984 by the British Prime Minister, Mrs. Thatcher December 19
Mr
Zhao Ziyang, the Premier of the People's Republic and
It may be noted that there are no of China
clear-Cut rules of international
law regarding the relation between the form of a
treaty its
subject-matter. Therefore, the above classification is more or and of
academic importance. less

Bilateral, multilateral and plurilateral treaties

A bilateral treaty is (as its name suggests) a treaty
between two
What do you under- States, whereas a multilateral treaty is one entered into by many
stand by bilatera States. Somewhere in-between are plurilateral treaties where the
treaty?
Apr. 2013 number of States entering into such a Treaty is more than two, but
Jan. 2019 not a great many as in the case of multilateral treaties.
Thus, a plurilateral treaty is a special type of a multilateral
treaty. It is a one made between a limited number of States which
have a particular interest in the subject-matter of that treaty. One
example of such a treaty is the Antarctic Treaty, which came into
force in 1961 and currently has 49 signatory States.
The main difference between a multilateral treaty and one which
is plurilateral is that due to the limited nature of the plurilateral
treaty, the treaty cannot work without the full co-operation of all the
parties. For this reason, reservations are not allovwed in plurilateral
Notes on: plurila- treaties, unless all the other parties to the treaty give their consent.
teral treaties. This principle of International Law is also reflected in Art. 20(2) of
Apr. 2014
the Vienna Convention.
(See "Reservations in a Treaty", discussed later in this Chapter.)
FORMS AND TERMINOLOGY OF TREATIES
In international law, treaties are called by different names. These
names are very often loosely worded. There is no rigidity either in the use
of these names, or the forms in which treaties are entered into. It appears
that international lawdoes notas yet require established forms for treaties,
and the content and substance are of more importance.
 TREATIES 173

Tests Case, C.J. Reports (1974) P.

253 (Austratia)
ear Tes
Nuclear
The Reports (1974), P. 457 (New Zealand), the development
I.C.J was follows:
was as
ndevents whic hich was a
party to the Nuclear Test Ban Treaty frorm
of 1963,
drawal
of France,atmos pheric tests on the ground es
les
that withdrawal from the
that
that extraordinary events,
the
began was possible if
subject+matter fof this Treaty, have jeopardised the
Treaty
ne
related tointerest of its
country." Australia and New Zealand, likely to
supreme fall out, complained to the International
affected the nuclear
ice. The lInternational Court of Justice
made an interim
Justice. those ests until the proceedings before
Court ofasking ce to stopFrance did not accept the interim order. as
order, were concluc
Court judge of the jeopardy of its supreme national
he was theibest in a series of public pronounce
it
it
feltthatHowever, subseque
had stated that France
interest.
members rs of the French Government
to proceedto underground testing
ments, in the following
position
was in aparticular, the resident of the French Republic had stated at
year. In conference that he had made it clear that "this round of
press
aatmospheric tests would be the last."
pronouncemen the International Court of Justice
By this statements were binding upon France,
anncluded that because these
applicants (Austr and New Zealand) had achieved the object
the procee-dings, viz., the cessation
thev had sought in commencing the
and that, therefore, the dispute
of atmospheric tests for the future,
no longer existed.
between the parties
This decision of the World
Court lends belief to the proposition that
forms for treaties
international law does not as yet require established
and the content and substance
are of more importance. It must also be
of the French Republic
noted that the declaration made by the President
World Court held
was an unilateral oral declaration. Nevertheless, the
that such a declaration was binding on France.
It is considered that this
decision derives support from the decision of the Permanent Court of
International Justice in the Eastern Greenland case.
In the Eastern Greenland case (1933, PCIJ, Series A/B, 53), the

Permanent Courtof International Justice heldthat even an oral declaration

in the form
of a promise by the Foreign Affairs Minister of one countryto
his cOunterpart of another country within their respective competence and
authority, can be as binding as a formal Treaty in writing.
Nomenclature of treaties
(a)Convention: This term is used for an agreement to which
ny States are parties. When an international institution adopts an
nstrument, then also,
the term convention is used.
Protocol: An agreement in this form is less formal than a
y or a convention. The term protocol signifies instruments or
diferent kinds:
An instrument which is subsidiary and supplementary to a
 174 PUBLIC INTERNATIONAL LAW
Convention, and which is drawn up by the sam
negotiators
called a protocol. Generally, the purpose of such a subsid is
instrument is to provide the rules of interpretation.ry
convention.
ion of the
(i) The instrument, though of an independent character,
if it is
intended to be ancillary to a convention, is also called
a protocolis
(ii) Sometimes, a treaty which is altogether independent
also called a protocol, like the Geneva Protocol of
(iv) Sometimes, even the minutes of certain
1924 is
negotiations and th.
understanding arrived at such negotiations, are called protocol
(c) Agreement: An agreement is generally an
instrument hi
is not in the form of the treaty entered into between
the Heads h
the States, and which is less formal than a treaty or a Conventio
Generally, agreements are not subject to ratification.
(d) Arrangement: It is also an instrument of a
less formal nature
serving a limited purpose, and not requiring ratification.
(e) Process-Verbal: This term is used in two
different senses:
(i) In the first sense, process-verbal
is the
terms of an agreement reached between record of the
(ii) In the second sense, it
the parties.
suggests an administrative agreement
of a purely minor character. It is not
(6) Statute: The
subject to ratification.
term statute has three different
(1) Rules relating to the structure
connotations:
and constitution of an
inter-national institution are called a statute,
e.g., the
"statute" of the International Court of Justice.
(2) Rules laid down by an international
agreement regarding
the working of a particular entity under an
international
super-vision are also called "statute".
(3) An accessory instrument to a Convention,
setting out certain
regulations to be applied is also referred to as a "statute".
(9) Declaration: This term also does
nothave a consistent
connotation.lt is sometimes used to suggest a treaty proper. and
uniform
it suggests an informal Sometimes,
instrument appended to a treaty or convention,
orit may even mean an informal agreement with respectto
There is no uniform rule of international law aminor matter.
ratification of declarations. They may or may
regarding the necessity of
not require ratification.
(h) Modus Vivendi:: This is a
document which records an inter
national agreement of a temporary or
ratification. Generally, it is intended to
provisiónal nature. It needs no
more be replaced by a treaty of a
permanent character.
(i) Exchange of Notes: This refers to an
arrived at between diplomatic representatives. informal agreement
) Final Act: It is a document which
of an international conference
embodies the proceedings
summoned to conclude a Convention.
 TREATIES
175
olutions, recommendations
resolu
ntains the and declarations

It als
contaa
conference, lt is signed, but it does not
require ratification.
This document is really a treaty, but may be of
f
of the General Act: charad
k) rmal character
inform
formal or STEPS:TOWARDS THE CONCLUSION OF A TREATY
VARIOUS STEPS
atomaoUs
THE
THE enumerates the following steps in the conclusion of a treaty:
Starke
Accreditir of representatives Exglain thes venous
1.
Negotiation stages in fhe
formation of 2n
2. international reay.
Signature
3. Ratification MU Nov. 2008
4. adhesion iov. 21
Accession and Apr. 2014
5.
Coming into force Dec. 2015S
6. publication
Registration and
7. enforcement
Application and
8.
steps is briefly discussed below.
Each of the above
Accreditling of
Representatives
1.
Fach of the States participating in the treaty-making process
represenentative or a plenipotentiary for this purpose. The essentials ot a
appoints a
power these representatives is clearly defined and stated.
Where reay
stecs
e
Exziain
invoived
the
presentative is empoweredd to participate in the negotiation to the incesianet
conclude and sign the treaty, sUch powers are known as Full Powers.
treaties
MU. ADr. 2ons
for bilateral treaties, each representative exhibits his
In negotiation
In the case of negotiations or conferences
Full Powers to the other.
for entering into multilateral treaties, there may be a committee of
Full Powers to which the credentials are presented.
2. Negotiations
In the case of bilateral treaties, negotiations are conducted through what is a trsaty?
"pourparlers", but in the case of multilateral treaties, negotiation will be Wat are the
vanOus stages of
conducted through diplomatic conferences. The accredited treaty making?
representative will keep himself in touch with his Government during Explan the term
the progress of the negotiations. A rapporteur is generally appointed to reservation' in
help the conference in its work. The negotiations continue till such time
Apr. 2014
as an agreement is arrived at regarding the text of the proposed treaty. Dec. 2014
3. Signature

After the completion of the negotiations, the final draft of the

treaty is drawn up and the instrument is ready for signature. The
signature is affixed at a formal closing session.
Signature is essential for making a treaty legal and binding. A
ay generally comes into force on being signed by plenipotentiaries
otne contracting States, unless the States desire to subject it to
aton.
s not Generally, treaties and conventions are sealed, but this
absolutely essential.
174 PUBLIC INTERNATIONAL LAw

Convention, and which is drawn up by the same neco otiators

called a protocol. Generally, the purpose of such asalorsi bsidiary is
instrument is to provide the rules of interpretation
convention. of the
(ii) The instrument, though of an independent charac
intended to be ancillary to a convention, is also called atis
(ii) Sometimes, a treaty which is altogether indeneno
also called a protocol, like the Geneva Protocol of 192 is
an
(iv) Sometimes, even the minutes of certain negotiations
understanding arrived at such negotiations, are called protoco d the
(c) Agreement: An agreement is generally an instrument nt Which
is not in the form of the treaty entered into between the Head
the States, and which is less formal than a treaty or a Conven ention.
Generally, agreements are not subject to ratification.
(d) Arrangement: It is also an instrument of a less formal nature, natire
alure,
serving a limited purpose, and not requiring ratification.
(e) Process-Verbal: This term is used in two different senses:
(i) In the first sense, process-verbal is the record of the
terms of an agreement reached between the parties
(ii) In the second sense, it suggests an administrative agreement
of a purely minor character. It is not subject to ratification,
(6) Statute: The term statute has three different connotations:

(1) Rules relating to the structure and constitution of an

inter-national institution are called a statute, e.g., the
"statute" of the International Court of Justice.
(2) Rules laid down by an international agreement regarding
the working of a particular entity under an international
super-vision are also called "statute".
(3) An accessory instrument to a Convention, setting out certain
"statute".
regulations to be applied is also referred to as a
and unitorm
g) Declaration: This term also does nothave a consistent Sometimes,
connotation. It is sometimes used to suggest a treaty proper.
convention,
it suggests an informal instrument appended to a treaty or
a minor matter
orit may even mean an informal agreement with respect to necessily or
There is no uniform rule of international law regarding the
ratification of declarations. They may or may not require raliicaun
an inter
(h) Modus Vivendi: This is a document which records
It netu
national agreement of a temporary or provisiónal nature. of a
ratification. Generally, it is intended to be replaced by a trealy
more permanent character.
() Exchange of Notes: This refers to an informal
ag
arrived at between diplomatic representatives. proceedin
) Final Act: It is a document which embodies thea vention
of an international conference summoned to conclude O
 TREATIES

It also ntains the resolutions, 175

recommendations
of the conference.
It
is signed, but and declarations
it
(k) General Act: This document does not require
or informal character, is really a treaty, ratification.
a formal
ARIOUS STEPS but may
THE VAR TOWARDS THE be of
Starke enumerates the following cONCLUSION
steps in the OF ATREATY
1. Accrediting of representatives conclusion
of atreaty
2. Negotiation
Explain the
3. Signature various
stages ia the
4. Ratification formation of an
nternational treaty,
5. Accession and adhesion M.U. Nov.
2008
6. Coming into force Nov. 2011
7. Registration and publication Apr. 2014
8. Application and enforcement Dec. 2015
Each of the above steps is briefly
discussed below.
1. Accrediting of Representatives
Each of the States participating
in the treaty-making
appoints a representative or process Discuss
a plenipotentiary for this purpose.
power of these representatives The essentials of the
the representative is is clearly defined
empoweredd to participate inand stated. Where steps reay piain tna
conclude and sign the treaty, the negotiation to the involved in
In negotiation for
such powers are inception of
known as Full Powers. treatias.
bilateral treaties, each representative M.U. Apr.
Full Powers to exhibits his 2005
the other. In the case of negotiations
for entering into multilateral or conferences
Full Powers to which
treaties, there may be a committee
of
the credentials are presented.
2.Negotiations
In the case
of bilateral treaties, negotiations are conducted
pourparlers", through what is a treaty?
but in the case of multilateral treaties, negotiation will
conducted through diplomatic conferences. be What are the
representative will keep himself in The accredited arous st8ges o
touch with his Government during Explain making?
tne progress of the ths term
negotiations. A rapporteur is generally appointed to reservation" in
nelp the conference in its work. The negotiations
as an agreement is continue till such time ireaues
arrived at regarding the text of the proposed treaty. Apr. 2014
3. Signature Dec. 2014

Ter the completion of the negotiations, the final draft of the

ueaty is drawn up and
the instrument is ready for signature. The
signature is affixed
at a formal closing sessión.
Signature is essential for making a treaty legal and binding. A
of th enerally
of comes into force on being signed by plenipotentiaries
ratifia racting States, unless the States desire to subject it to
Sction.
Generally, treaties and conventions are sealed, but this
not absolutely essential.
 176 PUBLIC INTERNATIONAL LAW
4. Ratiflcation
When the treaty expressly provides that signatures af
represen-tatives are not sufficient, and the treaty or the Conventic the
Co
should be confirmed by the States, a treaty will not have anu ih
effect or sanction unless it is confirmed or ratified by proper authority
under the constitution of the country.
Rationale of the Practice of Ratification
According to Starke, the practice of ratification rests on
following grounds: the
(a) The time that lapses between the signature and ratification
may be used by the States which are parties to treaty to consider
the terms of the treaty carefully.
(b) By reason of its sovereignty, a State is entitled to withdraw
raw
from participating in any treaty if the State so desires.
(c) Quite often, a treaty necessitates adjustment or amendment
of
the municipal laws of the participant States. The time between signatura
and actual ratification may be used by the States to pass the necessary
legislation or obtain the necessary approval of the legislature.
(d) The other important principle behind ratification is that it
is
necessary, in the interest of democracy, that the concerned Govern-
ments should consult public opinion, either in Parliament or
elsewhere, as to whether a particular treaty should be ratified.
Withholding Ratification
According to Brierly, there is no legal compulsion, or even a
moral duty on a State to ratify a treaty signed by fits plenipotentiaries,
though in his opinion, such refusal is a serious subject which ought
not to be taken lightly.
According to Starke, the following are the valid grounds on
which the ratification of a treaty may be validly withheld:
(a) If the representative or plenipotentiary has exceeded his powers.
( f any deceit, as a matter of fact, has been practised on him.
(o the performance of treaty obligation becomes impossible.
(d) If there has not been consensus ad idem, i.e., there has not
been agreement as to the same thing in the same sense.
ratification is withheld, it may eitherinvalidate the whole of the
treaty, or it may not be applicable to the non-ratifying State only.
The former effect will take place when ratification by a particular
State is a condition for ratification by other parties of the treaty.
Constitutional law of a country and ratification
Usually, the Heads of the States can ratify a treaty. In many o
the modern Constitutions, such ratification may need the approvao
Parliaments or other similar bodies. The question that often arises
whether a treaty would be binding on a State, if the Head ol.
State has adopted the treaty in excess of his powers or withou
 TREATIES

essary confirmatior by the legislature. 177

from dou bt. There are two views on The position
States cannot this point. is not
yiew, other be expected to According free
constitutional contro-versies of a party beteoaware of the to one
ad rty
to the the various
treaty is ratified by the Head
tre of the State, treaty. Therefore,
al
a internaitonal level. it becomes operative once
the without the requisThe other view is that
constitutional adaptation at
don powers is or ratification
can be said that though null
In onclusion, it and voíd.
bind the
tate, the Head of which has
State, such treaties
rregularly ratified may not
them, the other parties to the treaties can or adopted
claim damages.
5. Accesslon and
Adhesion
A
third State can become a party to an existing
treaty
accession. This may be broug about by the formal entranceby means of
of the third
State with the consent of the original parties to the treaty. The
acCesslon is generally used when a State which was term
notan original nary
the treaty becomes a party to the whole of the treaty. When State
desires to adopt certain parts of the treaty, only then it is a
known as
adhesion. Butaccording to Oppenheim, the distinction between accession
and adhesion is made only in theory, but seldom in practice.
6. Coming into force
When ratification is not stipulated in a treaty, it comes into force
immediately after signature. When ratification is necessary, a bilateral
treaty comes into force after the exchange of ratification by the
signatory States. In the case of multilateral treaties, where ratificaiton
is necessary, the treaty comes into force after a prescribed minimum
number of States deposit their ratifications.
7. Registration and publication
In traditional international law, registration was unknown. But
with
States would enter into secret treaties, quite often inconsistent of
of the Charter
each other. To do away with this evil, Article 102
that all treaties and international
the Uni-ted Nations provides
agreements entered by a Member State shall, as Nations, s0on as possible,
United and then
De registered with the Secretariat of the
non-registration is that
tne Secretariat shall publishit. The effect of unregistered treaty
to invoke any
Oparty to a treaty would be able United Nations.
or agreement before any organ of the treaty to
United Nations requires a
Article 102 of the Charter of
non-registration will not
as soon as may be. The any
egistered a treaty cannot be invoked berore
Vlldate the treaty, but such
organ of the United Nations.
8. Applicatlon and enforcement incorporation in the
municipal
treaty is its actual necessary.
lav
ne finalstage of the
contracting States, where such
incorporation is

O he
 178 PUBLIC INTERNATIONAL LAW
RESERVATIONS IN A TREATY
a
States, very often, wish to conclude treaty, stipulating that.
c
provisions of the treaty might not bind them or that certain Dartein
treaty might be modified. This can be done either by express Drhe
in the treaty itself or by a reservation made and accepted by thsion
parties to the treaty. Starke defines a reservation "as a formal declahe laration
by a State made without signing, ratifying or accedinggtot atreaty,
ereby
as a condition of its willingness to become a party to the
he treaty, it stipu
Explain the term for exemption from one or more provisions of the treaty orthe modiio
reservation" in of these provisions, or the interpretation of the provisions in a partion
articular
treaties.
M.U. May
manner." This privilege of the parties of a treaty to make reserva
2006
regarded as an incident of the sovereignty and equality of Stateon
is
Nov.
2010
based on this principle that if a particular State annot accept the wholis It
of the treaty, it is preferable that it might becomee a party to ithe treat
least in a limited manner, and thereby a treaty may be acceptedar
approved unanimously.
A State can make a reservation at the time of the signatiue
only with the consent of the other states which are parties
treaties. In practice, States generaly express their intention tomak
reservation at an earlier stage, so that the other States may have
time for deliberations, and the treaty may be accordingly tinalised.
the treaty is signed, and thereafter, at the time of ratification, it a
State wants to make reservations, then, naturally, the consent of
other States which are signatories to the treaties is necessary
In practice, States very often ignore the requirements of obtaining
the assent of the other States for their reservations. This has created
a number of complications. The international Court of Justice
considered the rules of international law on reservation in its advisory
opinion on Reservations to Genocide Convention, 1948 (1951). Starke
summarises the views of the Court as follows:
(a) Admisslblllty of Reservatlons
Reservations are allowable, notwithstanding the absence ofa
provision in the Convention permitting them. There need not
necessarily be an express assent by other interested States to the
making of reservations; such assent may be by implication,
particularly in the case of certain multilateral Conventions, where
clauses are adopted by a majority vote of the drafting Conference.
a reservation is compatible, objectively, with the nature and purp05e
of a Convention, a State making it may be regarded as fully a pary
to the instrument. This test of the compatibility is consistent with ne
principle that the Convention should have as universal an operaio
as possible and also with the principle of "integrity" of the instrumel
(b) Effect of Reservatlons
The same test of compatibility applies, therefore, if a State rignu
objects that a reservation is incompatible with the Convention, it m
legitimately consider that the reserving State is not a partythere
 TREATIES 179
ctate entiteld to oblect to Reservatlons
() State entitled to sign or accept a Cornvention, but which has
dane so, cannot validly object to
reservations; nor is an objecion
not dsignatory St
State, which has not ratified the instrument, effective
y a ratification.
until its
ervatlons and the ienna Conventlon on Treaties
Article 20 ot the vienna Convention on Treaties provides the
ollowing rules regarding reservations:
(a) lf a limited number of negotiating States are invotved, and it
eiaat from the object and purpose of the treaty that the application
the treaty in its entirely is an essential condition of the consent of
ch State to be bound by the treaty, the admissibility of the
reservation will depend upon unanimous acceptance.
(b) If the reservation is one of the constituent instruments of an
internaitonal organisation, the prima facie acceptance by a competent
organ of that institution is required, unless there is an express
or
provision to the contrary.
(c) Where the above rules do not apply, a reserving State may
hecome party to the treaty vis-a-vis a State accepting the reservation
while an objection to the reservation does not preclude the treaty
coming into the force between the reserving State and the objecting
State, unless the objecting State opposes this.
REVISION OF TREATIES
A treaty creates a contractual obligaiton between the parties to
it. Therefore, generally, there could be hardly any right to revise
such a treaty. But, quite often, certain States feel that a treaty might
outlive its utility, and thus impose an unconscionable burden on
them. Therefore, there will be a demand for revision of such treaties
which impose a continuing burden on those States. Quite often, the
treaties or Conventions themselves will have a clause providing for
such revision. That clause might give the right of initiating revision
or amendment of a treaty or a Convention. Further,
that clause
might provide that the treaty may be revised
(1) at any time; or
(2) after a particular period; or
(3) periodically; or
(4) by a combination of one or more of the above terms.
For a revisilon of treaties, when permitted, there must be unanimity
OT Opinion
amongst allthe signatories. Some conventions, however, even
provide that a treaty may
be revised by a majority opinion.
United Nations Charter and Revision of Treaties
ACCording to Article 14 of the U. N. Charter, it is provided that
eneral Assembly of the United Nations might recommend
180 PUBLIC INTERNATIONAL LAW
measures for revision of treaties. the measures that can
However,
be adopted by the General Assembly are purely recommendatoru
ry.
VALITITY OF TREATIES
Ithas been observed that the essence of a treaty is that it is a
eement between international persons. Therefore, the principlas
regulating the validity of a treaty would, to a large extent, resembla
the principles regulating the validity of a contract under municina
law. Under municipal law, an agreement to be a valid contract, mut
satisty the following requirements:
(a) The parties must have capacity to enter into a contract.
(b) There must be free consent (i.e., there should be no fraud
coercion, etc.)
(c) The arrangment must satisty formalities and requirements
Iike registration, when it is necessary under the law.
(d) The agreement must not be for an illegal purpose,
and it
must not be opposed to public policy.
The Vienna Convention on the law of treaties signed on May 23.
1969, lays down the following rules regarding the validity of a treaty
(Article 48 to 53):
(a) Error
1. A State may invoke an error in a treaty as invalidating its
consent to be bound by the treaty, if the error relates to a fact or
situation which was assumed by that State to exist at the time when
the treaty was concluded, and formed an essential basis of its
consent to be bound by the treaty.
2. The above rule does not apply if the State in question
contributed by its own conduct to the error, or if the circumstances
were such as to put that State on notice of a possible error.
3. An error relating only to the wording of the text of a treaty
does not affect its validity.
(b) Fraud
f a State has been
induced to conclude a treaty by the fraudulent
conduct of another negotiating State, the State may invoke that
fraud as invalidating its consent to be bound by the treaty.
(c) Corruption of a representative of a State
If the expression of a
State's consent to be bound by a treaty has
been procured through corruption of its representative, directly or
indirectly. by another negotiating State, the State may invoke such
corruption as invalidating its consent to be bound by the treaty.
(d) Coercion of a representative of a State
The expression of a State's consent to be bound by a treaty, which
has been procured by the coercion of its representative through acts or
threats directed agianst him, shall be without any legal effect.
 TREATIES 18
by the threal or use of force
ercion ofa
State
its conclusion has been procured by the threat
Co
A
oid
treaty is vol
torce in
force in
if

violation of the principles of interrnational law

Use o Charter of the United Nations.
or odied in the
some difficulty in determining the validity of treeties of
there is war. Sone powers
afterthe cessation of hostilities a
in
But
signed
peace treaties on the ground that they are inequal treaties
all such Plenipotentiary, it would be
physical violence is used on the
denouahvsical
When nodenounce such
such peace treaties as invalid. The vanquished State
to choice of peace and signed it. Therefore, this can be
choice
dificunfed
accepted the
has a contract der municipal law which has been entered into
omparedto stress; so, it would not be proper to denounce all such
economic
under invalid.
treaties as JUS
peace norm of general What
conflicting with a pre-emptory
ias
Treatie
International Law (Jus cogens)
COGENS?
M.U Nov 205

conclusion, it conflicts with a pre May 2017

treaty is voidif,at the time of its
A i norm ofgener neral international law.A pre-emptory normof
general
emptory accepted and recognised by the international
ternational.law is a norm no derogation is
ommunity of States as a whole as a norm from which
Com norm of a
permitted, and
which can be modified only by a subsequent
same character.
aeneral international law having the not
Art. 64 of the Vienna Convention, if a new peremptory Wirte a short
Under on: Vierima Com
cogens emerges, even an existing treaty which is in vertian anm LEw o
norm of jus highly
conflict with that
norm becomes void. However, this is a reaty
strongly opposed at the time of its M.U. Dec 2015
controversial provision and was
main objection to this rule is that
inclusion in the Convention. The
into without being exposed to a
no treaty can safely be entered
invalidation by reason of some
possible danger of subsequent
governing principles of
unanticipated future development in the
to contain
International Law. Thus, this rule cannot be said
universally accepted rule of International Law.
reaties conflicting with earlier treaties
treaty entered
Ifa treaty happens to be inconsistent with an earlier
no by the same State, whether such treaty would be valid or not has
Deen a question of some controversy. Lauterpachtwas of the view that.
SUch a case, the latter treaty is void and the earlier treaty would prevail.
his view is not acoepted by Clive Party. He is of the opinion that the
etfectdepends on the fact whether the other party had knowledge ot the

er treaty or not. If the other party had such knowledge, the second
not entitle it to damages. If such party had no knowledge ot
ill earlier treaty, it would be entitled to damages. The question is thus
purely a
question of interpretation.
 182 PUBLIC INTERNATIONAL LAW
Treaties incompatible with the UN Charter
Aritcle 103 of the Charter of the United Nations makes it clen
that in the event of conflict between obligations of members unca
the Chartershall those under
and prevail. any other International agreemene
the former The obligationsS
under
even
the Charter woule
prevail if the other international agreement was prior to the
Charter. At the same time, it must be noted that the Charter doe.
not declare such an inconsistent treaty to be void.
REGISTRATION OF TREATIES
Article 102 of the Charter of United Nations requires a
be registered as soon as may be. The non-registration treatv te

invalidate the treaty, but such a treaty cannot be invoked will ne

organ of the United Nations. before an
TERMINATION OF TREATIES
Oppenheim enumerates four main different ways in which
treaty may be terminated. According to him, a treaty may expire, o
become dissolved, or become void, or be cancelled.
I.Termination of a Treaty by Expiry
A treaty might expire either because the period for which it was
concluded has expired, or because a condition on the happening
which a treaty was to terminate has occurred. o
I. Dissolution of Treatiees
A treaty may be dissolved by any of the following
means:
(i) MUTUAL CONSENT
As a treaty can be concluded by mutual consent,
be terminated by mutual consent, in the following ways: so also can
(a) Rescission: The parties can expressly and purposefully
declare that a treaty shall be dissolved. This is rescission.
(b) Substitution: They can conclude a new treaty concerning
the
same objects as those of an existing treaty. In such cases, if the
two treaties are inconsistent, the older treaty will be
the new treaty, and the old treaty becomes inoperative. substituted b-
(c) Renunciation: If the treaty is one that imposes obligations
upon one of the contracting parties, only the
other party ca
renounce its rights. In' such cases, the State under an obligatio
must accept the renunciation.
(ii) WITHDRAWAL BY NOTICE
ce Treaties which are not concluded for ever may be dissolved by
ion withdrawal,
after notice by one of the parties. Many treaties provide
6 expressly for the possibility of such withdrawal, but treaties which
are intended for the purpose of setting up an everlasting conditio
of things or concluded for a certain period of time only, cannot bE
terminated by notice.
 TREATIES 183

REBUS SIC STANTIBUs

very important exception to the rule that a State What is meant by
one ice from a treaty which is intended to robus sic stanti
There is notic set up pu 12marhs)
withdraw by This exception is when
applicable Apr. 2010
Zaanot condition of things.
condition M
arlasting may May 2012
changes of circumstanoes. A party to a treaty be
vital released from the obligation of a treaty Apr 2015
are demanding
demanding to be
De
Jan. 2018
there
iedin etified by
justlfied many writers on the principle of conventio omnis
ntibus and assent that the treaties are MCONo.57
sic stantit
hisis rebus
inteligtu
tur sic stantibus.
under the tacit condition rebus Wite a sho note
concluded
doctrine of rebus sic stantibus is that by an G: Rebus
if
meaning of the slartibus.
The cumstances, an obligation provided for in the
ves@en change or
mafhs)
unforeseen vital development of one of the MU. Apr 2011
shoud imperil the existence or
reaty State should have a right to demand be released
to

States,
such a It is the basic and implied condition of
obligation concerned.
hom the compared to the doctrine of
treaty This doctrine can be
every countries.
frustration known
to the law of contracts of several
doctrine is one of
Starke observes that "The Hebus sic stantibus
international law". There are three views regarding
the
enigmas of doctrine:
the
theoretical foundation of this
(a) According to
one view, the basis of the doctrine is that the
contemplated by the parties to be a
original state of facts, as
continuance of the treaty, has
necessary pre-condition for the
disappeared, the treaty
disappeared. As the contemplated basis has
must be deemed to have come to an end.
The test here laid down is
of Justice approved of this
the subjective test. The International Court
Gex (1932).
test in the case of the Free Zones of Upper Savoy and

The second view is based on an objective test. According

to
(b)
this view, the basis of this doctrine is that the original facts which
were in fact fundamental to the existence of the treaty, have
treaty.
isappeared. Therefore, such disappearance terminates the
for
CCOrding to this theory, whether there is sufficient justificaiton
or belng
Gmination of the treaty or not is a question capable
or
ctively ascertained. Therefore, a third impartial party
nernational tribunal alone can decide whether there is Suticient
ustilication for the operation of this doctrine.
a
The third view is that the doctrine operates when change
of the conclusion of
original state of facts existing at the time
treaty makes continuance of the treaty injurious to one of the
parties.
This is onsidered to be a very unsatistactory explanation of
the basis
of the doctrine.
 784 PUBLIc INTERNATIONAL LAw
Aebus sic stantibus and the
Vienna Convention
Article 62 of the Vienna Convention provides as follows:
What s Aebus sic (1) A fundamental change of circumstances,
staniibUs?
with regard to those circumstances existing
which has occurr
M.U Apr. 2016 at the time of
conclusion of a treaty, and which was not foreseen by the
te
may not be invoked as a ground partie
and for terminating or withdrawi
from the treaty, unless:
(a) The existence of those
basis of the consent
circumstances constituted as essent
of the parties to be bound upon the treaty; a-
(b) The effect of the change is radically to transform
of obligations the exte
still to be performed under the treaty. However, t
mere fact that the change of circumstances makes the performan
to the treaty and obligaitons burdensome is no ground
terminati for
or withdrawing from the treaty.
(2) The fundamental change of circumstances may not be invo
as a ground for terninating or withdrawing from the treaty-
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach bby
party invoking
other international
at either of
obligations
an
obligation under the treaty or of=
owed to any other party to the treea
(3) if, under the foregoing
paragraphs, a party may invoke
fundamental change of
circumstances as a ground for terminat
or withdrawing from a treaty, it may invoke the change as a grou
for suspending the operation of the treaty.
From the above Article (Art. 62), it can be seen that now
Subjective and objective tests have been combined.
Who can termiate
Closely associated with the problem of the theoretical basis-
the operation of the doctrine of Rebus sic stantibus, is anot
problem as to who can terminate the treaty. Here again, there
three viens: (i) The first view is that a State which is a party
treaty can unilaterally repudiate a treaty on the ground that it belie
t
that there is sufficient justification for the application of the doctr
i) The second opinion is that no State which is a party to a tre
can unilaterally denounce the treaty, but it must be done by muf
agreement. (ii) The third view is that the question should
Submitted by the parties to an international tribunal for decision.
Conclusion
In conclusion, it can be said that the increased burden o
eaty cannot be a justification for terminating a treaty. Therefe
ther the subjective or the objective test mentioned above she
satisfied. It also appears that many States have not recogni
principle that a State can treat a treaty ipso facto termina
 TREATIES

wilthou the consent

of the otherparty
or parties
are sufficient grounds whenthedenounding 185
helevesthat there for theapplicaion State
acta sunt servanda: ofthedocarine.
hat the
his means that thesstates are found
tofulfilin
sSumed by them underr the treaty. As per Articlegoodfaiththeobligations
Commission every state has the obligation 13 ofInternational what is Pacda
to carry out Law Servenda? Sunt
igations in good faith as per terms of the treaty. thedutesand MU. Nov. 2013
porated in Article 26 Vienna Convention. The saididea
is
It serves a very also Apr. 2014
ince there is internatior co-operation. important Dec. 2014
effectiven The International
ustice dmitted its in the case of
'Nuclear tests
Court of Dec.22016
mentioning Apr. 2013
France) by that principle of good faith (Australia v.
reation and performance is "one May22019
principles governing th of the basic
Dec 2019
of legal obligations

L. Voidance of Treaty MCO No. 58

Atreaty, althougnIt has nether expired nor

heless lose its binding force by becoming been dissolved. mav
neverth void. This may
consequence of one of the following four circumstances be the

(al lf one of the parties to the treaty becomes

extinct, the treaty
becomes void, unless the treaty devolves upon the States which
succeed the extinct State. Generally, all political treaties become
void by extinction of one of the contracting parties.
(b) If the performance of the treaty obligaiton becomes impossible,
the treaty will be rendered void.
(c) All treaties, the purpose of which is realised otherwise than by
fulfilment, become void. For example, the purpose of a treaty may
be fulfilled when either of the parties does nothing towards the
fulfilment of the purpose. In such circumstances, the treaty
becomes futile, and therefore, void.
treaty becomes
(d) If the object of a treaty becomes extinct, the
automatically void, and therefore, inoperative.
V. By Cancellation
cancellation. According to
treaty may lose its binding force by any of the folowing:
A
may be of
enneim, the causes of cancellation law which is created
intemational
() Inconsistency of the treaty with
treaty.
Subsequent to the conclusion of the obligation under
contracting parties the
of
one of the
VIolation by
the treaty. parties. For example,
in one ofthe State becomes part
(c) y subsequent change State and
to be a
"e State party ceases
 186 PUBLIC INTERNATIONAL LAW
of another State, generally the treaty may
be
some kinds of treaties directly pertaining to the cancelled, thoug
territory of the..
may not be
treated as cancelled. the Sta.
(d) By War.-The effect of war on existing treaties is, cordim
to Justice Cardozo,
"one of the unsetled problems of a
There
There are two views regarding the effect of war on existing the
treat
treatie
One view, the older view, is that such outbreak of war war would ine
facto result in the annulment of all treaties ips
between the belliger
States. The other view, the modern one is, as expressed gerer
by Justi
Cardozo, that international law "does not preserve
them, regardless of the effects produced". it
treaties or ann
anne
deals with proble
pragmatically, preserving or annulling as the
necessities of
demand. According to this view, two tests must
be applied in the
connection. The first test is to ascertain whether
MCO No. 59 the signatories
the treaty intended that the treaty should remain
binding on th
outbreak of the war. The second test is to
ascertain whether the
performance of the treaty obligation would be
compatible with th
conduct of the war.
INTERPRETATION OF TREATIES
Treaties may be interpreted by the International
or by International Technical Organs or by Court of Justice
the Organs of the Unitec
Nations. Sometimes, it may even be
referred to an Ad Hoc Committee
of Jurists. Very often, a Protocol
or Process-Verbal is annexed
the main Convention, which lays down t
the rules of interpretation. l
the treaties happen to be in several
languages, the treaty itselt
might provide that the text in a particular
might
language (e.g., English
prevail in case of conflict.
General Principles of Interpretation
General principles of the interpretation of
summed up as follows: treaties may be-

(i) Grammatical interpretation

The general rule in the case of interpretation
of a treaty is that
the treaty must be interpreted
according to the plain and natural
meaning of the words used in the treaty. Only
when such grammatica
interpretation results in absurdity or
go beyond the intention of
inconsistency, or would clearly
the parties, such interpretation is to be
avoided. In such circumstances,
the intention of the parties, as
prevailed at the time the treaty was
concluded, should be ascertained.
For this, the purpose or the plan
of the treaty must be taken Into
consideration.
 TREATIES 187

context of the treaty

Object and
al)
When
there is an ambiguity in a treaty, the object and the
treaty may be taken into consideration for a proper
context of the
interpretation of the treaty.

Reasonableness and consistency

must be interpreted according to their reasonable
AN treaties must.be interpreted in such a way that, as far as
/ treaty
sense A consistent with the existing rules of international law.
ssible,
POss it is
effectiveness
principle of
iv) The for granted that the parties intended the
It is
to be taken
treaty to have a certain effect, and not to be
visions of admissible which
Therefore, an interpretation is not dmissible
eaningless. Ther
Paningless.
provision meaningless or ineffective.
would make a
extrinsic material
tv) Recourse to
of the treaty forms the sole basis of
Though normally the letter
not prohibit, the
interpretation, yet when the letter of the treaty does
following extrinsic material may be considered while interpreting a
treaty:
previous treaties between the same
(a) past history and the
Darties or treaties between
one of the parties and the third party:

(b) preparatory work, like the record of the negotiations preceding

theconclusion a treaty, the minutes of the meetings of the

Commi-ttees of the conference, or preliminary drafts and draft
amendments;
(c) interpretative Protocols or process-verbal, if any; and

(d)the subsequent conduct of the parties, as evidencing the

intention of the parties and their concept of the treaty.
 CHAPTER 16

SETTLEMENT OF DISPUTES
BETWEEN STATES
Disputes between States range from minor differences
or more States which scarcely cause a ripple in international between t
water
extreme situations of prolonged friction and tension
countries, which may attain such a pitch as to threaten between the
international
and security. It has always been one of the long-standing pea
lnternational Law to settle such disputes as early aims
manner that is fair and just to the as possible and in
States involved in the dispute.
The topic of settlement of international
this Chapter under two broad categories asdisputes is discussed
under:
A. Peaceful means of
Settlement or Amicable Settlement
Under this heading, international disputes
following methods: can be settled by tH
(a) Negotiation
(b) Good offices
(c) Mediation
(d) Conciliation
(e) Enquiry
() Arbitration
(g) Judicial settlement
(h) Settlement under the auspices of the United Natio
Organisation.
B. Forcible or Coercive Settlement
What are the The following are the principal forcible modes of
methods of peace- settlement:
ful settlement of (a) Retorsion
disputes in Inter (b) Reprisals
national Law? (c) Pacific Blockade
M.U. Apr. 2016
(d) Intervention
(e) War.
Each of the above is discussed below in necessary
details.
A. PEACEFUL MEANS OF SETTLEMENT
OR AMICABLE
SETTLEMENT
(a) Negotiation.-Oppenheim defines negotiation as follows:
"International negotiation is the term for such intercourse betwe
What do you mean two or more States as is initiated
by "good offices and directed for the purpose
(2 marks)
effecting an understanding between them or settling a disput
M.U. Apr. 2011 According to him, full-fledged sovereign States alone can be regu
parties to international negotiation.
188
 SETTLEMENT OF DISPUTES BETWEEN STATES 189
you meer
Mediation In boththese methods of het do
Good. Offices and by mediedo
in bringing about an amricable
&(C(c) freindly third State assists (2 merks
& suallya main difference between good offices and MU. Fr
2011
eltlement, dispute. The third party assists to bring 2012
Nox
o f he the case of good offices, the
tjon that in
between two States by counselling of
advice Nov 2015
iationian of a disputewithou participating in the negotiation.
settlement
of a its own initiative or at Shot
aoten Mods
rsugges mediation, the third party, either at
caseo
e of
parties, plays an active role and participlates in
Don

Inthe the disp

Sputing
party which good offices
M.Ar 2014
tenders
req Jestof Such mediating
uch med
party or the May 2017
no
negotlaions. ternational Organ or even an individual. There are
Inter
oran
the aState procedure of international law regarding the conduct of either
maybe of mediation.
offices or tern
erm conciliation is used in two senses. In the Discuss peeca
briefiy fhe
aod cillation.The various f
great variety of methods whereby a dispute is meang di setlemet
(d) he
or of impartial bodies of enauiry of disputes.
with the ald of oiner dtates
Settled restricted sense, conciliation means the
rest M.U. Nav 2007
1ical committees. In the
isory dispute to a Commission or Committee to make repot
a Apr 2309

eference of a parties for settlement. It must be

noted that such Apr 2010

roposals to the
Nov. 2010
the reporta not of a binding character. Nov. 2011
wilh in
0sals contained formulating proposals of
defines conciliation a
as process of Nov. 2013
Hdson an investigation of the facts and an effect to
reconcile Apr 2015
settlement after dispute being left free to accept or Dec. 2016
contentions, thepparties to the Jan. 2018
opposing formulated".
proposals
reject the for the pacifñc
Convention of 1899 and 1907 provided Wnat do you msan
The Hague Conciliation Commissions. These
means of
setlement of disputes by which. fore? (2 marks)
special agreement of the parties
Commissions were set up by the M.U. Apr. 2011
disputes, made their report, indicating the way to
after investigation of the Commission
Conciliation
May 2017
settle the dispute amicably. Though the value of the Jan. 2018
many, it must be accepted that the procedure of conciliation
is doubted by

proved most useful and important when

the League of Nations Council Write a short nots
employed it to settle international disputes.
Conciliation differs from mediation. on Peaceful
o
third party is used to carry on the stlement
In mediation, the agency of a disputes.
conciliation, such third party ascertains the M.U. May 2012
negotiations, while in the case of
international
acis and makes a report suggesting proposals for seting Nov 2015
disputes May 2019
Dec. 2019
conciliation, the
Conciliation also differs from arbitration. In the case of
S to a dispute are free to disregard the proposals made by the
onciliation, while in the case of arbitraiton, the decision of the Arbitrator is

In the form of an award, and is binding on the paries.

nguiry.- Enquiry is a form of amicable settlement of

nternational
disputes, whereby facts are investigated and a way for
negotiated
adjustment is prepared. An enquiry differs from conciliation
 190 PUBLIC INTERNATIONAL LAW
in that the object of an enquiry is not to make any specific proposals
settling international disputes, but it is just to investigate and eet
facts. The Hague Conference of 1899 suggested the establishmeni
International Commission of Enquiry forinternationalcdisputes,
involvir
neither them nor vital interests and relating to points of factsTE
Conference further provided that such a Commission might be constitute
by special agreements between the parties. The
Conference also l-
down a scheme for selection of members of such Commission.The
Sea Incident Enquiry and the Ubantia Enquiry are instances s
Na
commissions of Enquiry. However, it must be noted that of
the Internatior
Commissions of Enquiry have not been employed in
practice as mu-
as it was expected they would be.
() Arbitration.- Arbitration is a very important
international disputes by peaceful means. Its value method of settli
judicial character. It signifies the reference of rests in its aua
What is meant by or small group of individuals the dispute to an individ
? to whom the parties state their
marks) cases and whose decision they are bound to obey, unless respecti
M.U.
Nov. 2009 that the arbitrator exceeded his authority. The procedure they can she
of inter-natior
Apr. 2014 arbitration is the same as in municipal law. But it is
Dec. 2016 possible that seve-
disputes involving purely legal issues are referred to Arbitrators
settlement on a legal basis. Several treaties which provide
for settleme
of a dispute arising out of a treaty, state
that the Arbitrator may make
award according to justice or equity or ex acquo et
bono,
specially directed to apply the rules of International Law. or he might
Growth of Arbitration in International Law
Though arbitration as an instrument of settling internation
disputes is of great antiquity it has come into vogue in
form only during the last two centuries. To its mode
Institution of international arbitration began with
be accurate, the mode
1794, between the United States and the Jay Treaty
Great Britain. In this trea
three Commissions were provided for settling certain
Arbitration as a disputes between the two States. The success of outstand
method of settle- gave new life to the Institution of Arbitration. these Commissico
ment of inter- Further stimulation
national disputes. gained by the Institution of Arbitration after
M.U. Nov. 2008
the Alabama Claims Awa
of 1872. Within three decades after this
arbitration, almost a hund
cases were settled successfully by Arbitration. Besides, arbitrat
was adopted by many treaties, and particularly
Conventions. In the latter cases, the Institution law-maki
of Arbitration interpre
the law-making Convention, and thus
developing International Law. In the became instrumenta
words of
thus became the handmaiden of international Hudson, "arbitrat
legislation.
Another important step in the history
was taken in 1899, when the Hague of international arbitrat-
to arbitration and laid the Conference codified the law
foundation of the Permanent Court
Arbitration that was another important
step in the history of Arbitra
The Hague Conference of 1907
completed
Conference and established the Permanent the workArbitration. of the 15
Court of
 SETTLEMENT OF DIS PUTES
BETWEEN
STATES
Permanent Court of itration 191
he words of Starke, the Permanent
Courtof
In apprDert
of apeculiarcharacter. Itis ne
ars of the'Court are
of Arbitration
Convareappointed by Statee is an
neor
"The
both of the nro Optedhates whtac
sitaCourt,
one orbot ntlawyers
lawyersis
competent is heHague
to prepared Conterence"
out of thefourpersons
nanel of A
It out of this panel that arhit.
State. isarties Sur
which are parties to a dispute.
dispute Thrators are chosen
the Dresiding member Ihese arbitrators thenchoose by the
umpire who vote, of the arbitral tribunal. an
majority The
is
given by a award
It
uld
should be noted that the Permanent Court of Arbitration
h but each tribunal
such, no
existence as is created by an arbitration has
compromise. T most important awards agreement
or a by the tribunals
nder this scheme
are rth Atlantic Coast Fisheries created
and avarkar's
Case of 11.Though the scheme Case
Case of
of 1910
1910
has someme defects,
played a significant role, both in settling international defects, itit
has playeda:
has
in the development of International Law
disputes and

The one areat advantage of arbitration as a

means of setlement
of international disputes is hat the absence of recognised
tional
Interr Law will not prevent the arbitrator rules of
from giving
award. This is of very great advantage at the his
ternational Law, which present state of
is yet tar from fully developed.
oruantage of Another
the method of arbitration is that it does
resolve a not
dispute when it is purely of a political character.decline to
In conclusion, it may
be said that there will always be
arbitration in the relationship place for
between States. The arbitral procedure
is more appropriate than judicial
settlement for technical disputes. It
is aiso less
expensive. Again, arbitration can be conducted
giving it much publicity without
and the parties to the dispute can even
agree that the arbitration
award shall not be published. Lastly,
arbitral procedure the
is so flexible that it can be combined with
finding processes fact
which are generally used in the case of negotiation,
good offices,
conciliation and enquiry.
g) Judicial settlement.-An international
neans of judicial dispute can be setled by
tribunal. After the First World War, the Permanent
O international Court
Justice was established under the provisions of the MCO No. 50
League of Nations.
It was replaced by
aer the Charter the International Court of Justice
of the United Nations was adopted. The Internationa
Urt of Justice is provided in the Charter as the principal Judicial
une United Nations. A Organ
Concerning Statute annexed to the Charter lays downtheruleS
nembers
theconstitution, jurisdiction and rocedure of the Court. All the
wihich
of the United Nations are ipso facto parties to the Statute. States
are not
tatute under embers of the United Nations can also become parties to
stitution, certain circum-stances. A detailed discussn
dUstice jurisdiction
is given and the procedure of the International Court of
in a later Chapter.
 192 PUBLIC INTERNATIiONAL LAw
(h) Settlement under the auspices of the United Nations
Organi
sation-One of the main objects of the United Na
Nations Organis:
is the peaceful settlement of differences between
States, Artinlon
e 2 of
the Charter imposes an obligation on the members of the the Organisat
to settle their disputes by peaceful means and to refrefrain from ation
of war or the use of force. The General Assembly off thre
is empowered by the Charter to recommend measures
the
t
Organisat
for the pean.
adjustment of any situation which is likely to impair aceful
or friendly relations amongst the nations. the general welfe
The Security Council
Organisation enjoys a greater power for of h
this purpose. It is intende
that the Security Council should act swiftly and
decisively. The Securit
Council can act in connection with the following
two kinds of disputae
() Disputes which may endanger international peace
and security
(i) Cases of threats to peace or breaches of peace
aggression. or acts of
The Council may call on the parties to the
by appropriate peaceful or amicable methods, like
dispute to settle them
negotiation, media
tion, arbitration, etc. as enumerated above. The
Council is also em
powered to make recommendations or decide what
measures are to
be taken to maintain or restore international peace
The details of the working of the Council and the General and security.
Assembliy
are discussed in a later Chapter.
B. FORCIBLE OR cOERCIVE SETTLEMENT
When States fail to agree to solve their disputes by
peaceful
methods, they may take recourse to forcible means.
(a) Retorsion
Starke defines retorsion as "retaliation by a State against
discourteous or inequitable acts of another State, such retaliation
taking the form of unfriendly legitimate acts within the competence
of the State whose dignity has been affronted." Retorsion may take
the form of severance of diplomatic relations, or withdrawal of tariff
concessions, or revocation of diplomatic privileges.
The UN Charter and retorsion
Under the U.N. Charter, it is doubtful whether the Member States
can take recourse to the use of retorsion. Article 2, para 3, of the
Charter enjoins on the Member States to settle their disputes by
peaceful means in such a way as not to endanger peace an
security and justice, it appears such act of retorsion, though legal
under traditional international law, would be illegal under the Charter.
(b) Reprisals
Reprisals are the retaliating measures adopted by States for
obtaining redress from another State. Reprisals might take the form
of boycott of the goods of a particular State, an embargo or
seizure of property or person. The main distinction between reprisais
 SETTLEMENT OF DISPUTES BETWEEN STATES 193
retorslon is this that retorsion, in itself, is not illegal, though it
and treated as unfriendly, whereas the reprisals, but for
may be
under International Law, would be illegal
stification
A
reprisal is justified the State against which It is directed has
if

Juilty of an
internatio delinquency. Such delinquent State
been been requested to give satisfaction for the wrong done.
must have
uch delinquent State fails to give such satisfaction, can
such
Only when
reprisal be taken ecourse
to. Such measures are not justified if
aredisdisproportiona excessive
they There is also another opinion that a State should not take
ea of reprisal unless and until negotations for the purposes of
recourse
ouring redress from the delinquent State are carried on, and such
m
available Reprisal, during times of war between
dress is not must be distinguished from reprisal as a forcible
lingerent States,
means of obtaining redress for an international delinquency. There
have been several cases of States taking action in the nature of
renrisal. For example, when King Alexander was murdered, Yugoslavia
expelled the Hunga-rians from its territory in 1935.
Reprisal and the UN Charter
The legality of reprisal as a means of settlement disputes is highly
of
doubtful so far as the Member States are concerned. Article 2, para 3,
which has been referred to in connection with the reprisal, obviously
to take recourse to
imposes an obligation on the Member State nof
reprisals. Para 4 of the same Article enjoins on the Member States to
refrain from the threat or use of force against the territorial integrityor
political independence of any State. Reprisal in its very nature being a
threat, or Sometimes even being use of force, is inconsistent with the
obligation of the Member States under the Charter. Article 33 of the
Charter further imposes an obligation on the Member States to seek a
solution to a dispute, the tendency of which is likely to endanger peace
and security, by negotiation and other peaceful means.
Collective reprisals
Under Geneva Drugs Convention, 1931, embargo can be imposed
on import or export of Narcotic drugs against States which may
have abnormal accumulation of such drugs.
(c) Pacific Blockade
In times of war, the blockade of an enemy port is a common
naval operation. However, pacific blockade is a measure which is
employed in times of peace. A pacific blockade is intended to
Coerce States whose ports are blockaded into complying with a
request for satisfaction by the blockading States. The legality of this
nethod is doubtful. According to Starke, this is now obsolete in the
gnt of the United Nations Charter. Starke thinks that this method
as certain advantages because this is less violent than war.
he first pacific blockade was employed in 1827, and thereafter, it
as been used internationally more than 20 times. History shows that
194 PUBLIC INTERNATIONAL LAw
this method was generaly employed by strong States with power
naval forces, against weaker States. Pacific blockade has even h
used to prevent the outbreak of war, as seen in the case of
blockade of Greece in 1886. In fact, Art. 42 of the U.N. Ch
specifically mentions blockade as one of the operations which rter 1
Security Council may initiate to maintain or restore international Dea e
and security. ace
It is now generally agreed that a blockading
State has no rinhs
to seize ships of third states, which attempt to break
blockade. This would also imply that third states are not bound a paci
hu
law to respect such a blockade. y
The selective blockade of Cuba by the United States in
although imposed in times of peace, cannot be called 1962
a "Dacifie
blockade" in its true sense. The purpose of the blockade was not to
stop entry and exit of all goods to and from Cuba. The
was to prevent the supply of certain weapons and real intent
Cuba, to prevent the establishment of missile bases inequipment
Cuba.
to
(d) Intervention
Intervention is dictatorial interference, in opposition to
the will of
the particular State affected, and intended to impair the political
independence of the State. Professor Winfield classified intervention
into three categories:
(i)
International intervention.
(ii)
External intervention.
(ii) Punitive intervention.
Punitive intervention is by way of reprisal. To what extent this
kind of intervention is legal under the United Nations
Charter is
doubtful. It appears that, as in the case of retorsion and reprisal,
any intervention which would be inconsistent with Article 2 of the
Charter would be illegal.
(e) War
War is the ultimate sanction of international law. When other
measures fail, the aggrieved State may impose terms of settlement
on the delinquent State by waging a war. The rules of War are
discussed in detail in the next Chapter, but it must be noted that the
right to wage war is now restricted both by the Briand-Kellogg Pact
also the obligations of the Member States under the United
Nations Charter.
(A reference may be made to Chapter 17, "War and Other
Hostile Relations".)
 CHAPTER
17
WAR & OTHER HOSTILE
RELATIONS
Hall defines War as follows:
nAlhen
difference between
Part
arties resort to force, or one ofStates reach a point
ther
the o at which both
chooses to look uponthem does acts of violence,
war
relation of war is set up, in which as a breach of which
the
violence against each other, until the combatants may peace, the
one of the use regulated
to accep such terms as two has
This definition his enemy is willing been brought
of war by Hall to grant."
DRIEFONTEIN CONSOLIDATED has obtained judicial
GOLD MINES approval in
Starke defines war as V. JANSON.
orimarily through a "a contest between
their armed forces, the two or more States,
contestant or ultimate
each contestant group purpose of
each
others and impose its own being to vanquish
conditions of the other or
War Proper and other peace".
Armed Conflicts
Though the term
conflicts, it does War is generally
not suggest only one used to denote armed
sense of the term, might idea. War, in
the general
non-war armed include war in the
conflicts, or sometimes strict sense of the term,
situation where it
hostility in Korea
there is no armed conflict might even inciude
(1950-1953), fighting in at all. For example. the
1954) and the Con-flict Indo-China (January
regarding the 1947
Suez in 1956 are instances
n-war armed conflicts. of
In the same way,
hostile activities
against China as "the China Japan described its
This dictinction incident".
conflicts is made on between "War" proper and "non-war armed
account of the following reasons
) The Briand-Kellogg
Pact of
Therefore, States attempt to 1928 has made war illegal
escape the allegation of having
violated the obligation under
the above treaty by callin9
their armed conflicts as "non-war
(11) armed conflicts".
Another reason for calling this hostility
as non-war armed
Conflicts is to prevent non-contesting
States from declaring
their neutrality and hampering the conduct of the hostilitiss
by neutrality regulations
(In) The third
reason is to localise the conflict and prevent it
Trom attaining the dimension of a
general war.
Status of War
sesides, the distinction between a war proper and a non-war
d conflict, another concept in the law of war seems to have been
loped recently. According to this concept, there is a formal status
rmed hostilities depending on the intention of the parties to be
195
 196 PUBLIC INTERNATIONAL LAW
belligerent. The test of war is nor in actual active military engaaer
eme
but it is in the intention. For war
example, during the Second WorldS
though
half of the
fifty States
Štates
declared against the Axis powers, less
actively engaged their military or ather forces a0ar
ar
the enemy. Besides, even after the terminaiton of the actual ns
armnec
conflict. the status war continued
of for quite a long time.
In conclusion, it may beOrsaid that there could armed
be a status of
without an armed conflict, there could be an confli ar
amounting to war prope, or there could be both a status of war
an armed conflict.
Other Classifications of war
Many old writers on international Law have classified
war, just as
War
public or private war, pertect or imperfect
war, mixed or
unjust war, and formal or informal war. Besides, writers speak of
civil war, Guerrilla war, total war and cold war. These classification
in the context of modern international law, are of very little use
Between a state of peace and war or non-war armed conflicts.
there can be various grades of hostile relations, as for example.
he cold war" existing between estern and Communist groups of
States. However, it has been held that "the cold war" is not a war
for the purpose of determining who are enemy aliens. Nevertheless.
"the cold war" has repercussions on international law. The main
question has been whether parties to such cold war can take
measures which would otherwise be a breach of international law,
for the purpose of self-defence where there is no armed attack. The
incident of the flight of the United States U-2 air-craft over the
Russian territory in 1960 and the shooting of the aircraft raises this
controversy Similarly, the action taken by United States regarding
Cuban territory in 1962 also raises this question.
Commencement of War- Is Declaration Necessary?
The practice regarding the commencement of war has varied from
time to time. Up to the sixteenth century, the practice of notifying an
intended war was prevalent. The practice thereafter fell into disuse. In
the seventeenth century, the opinion of the jurists was that a
declaration of war was necessary. This opinion does not seem to
have been put into practice during that period. In the nineteenth cenury
aso was accepted that a war would commence onlycentury.,
t after some
ind ofdecaration or ultimatum. But during the twentieth this
actice of declaring war before starting hostilities does not seem to
e been uniformly practised. For example, in 1904, Japan started
against Fussia by a sudden and unexpected attack on the Russian
in Port Arthur. After this incident, the Hague Convention of 1907
Opening of Hostilities, laid down that hostilities should not
nce without a prior declaration or ultimatum. It was also
that the neutrals must also be notified of the existenceo
of war, and further that no action could be taken agalns
ates, unless they were notifled of the existence of war. Bu
 WAR&OTHER HOSTILE
RELATIONS
197
canvention seems to have been scarcely
Conv
this twentieth century heeded to by various
States urlng the
natlonal Law and Right to resort to War
(Legallty of War)
nhoughThough from thethettimes of Grotius, the distinction
en accepted in international law, betweenjust warand
jiust war has been the distinctive feature
of e
twentieth centu has been that several attempts
thethe uSe of war as a method of setting disputes were made to
regul between States.
The Covenant of the League of Nations
(a)
veral articles of the Covenant imposed a restriction
Several on the Member
regarding their ht to resortto war in the strict
514dind to this Covenant, the Member States could sense ofthe term.
AcCOne. only if there was a breach of obligation take to war, in the
connecled with an
bitration or a judicial settlement of certain disputes, or if
there was a
violation of the recommendatio of the League of Nations Council.The
Covenant further imposed certain restrictions on the
right of States to
take recourse to non-war hostilities.
(b) Briand-Kellogg Pact of 1928
In this Pact, known otherwise as the Paris Treaty for Renunciaiton
of MCO Na. 61
War. the States which were parties to the treaty agreed to renounce war
aca method of solving international disputes and
as an instrument of
national policy. They further agreed that they would notseek the
solution
of disputes or contlicts between them except by pacific means.
(c) The Charter of the United Nations
This Charter of the U.N. was a great step in advance of
the
above two documents towards abolition of war as a method of
solving international disputes. The Charter not only prohibits
war in
the strict sense of the term, but also acts which are "threats to
the
peace" or which are "breaches of the peace" and "acts of aggression"
The Member States agreed to settle their
disputes by peaceful
means and they also agreed to submit themselves to the overriding
peace entorcement function of the Security Council.
It appears
that now wars are out-lawed in international law. But, at
the same time, it is necessary to make a distinction
between
aggressive wars and wars in the nature of self-defence. International
Law has prohibited
aggressive wars. The Security Council of the United
Nations is empowered to control such acts of
aggression, and it is
Ciear from the judgments of the Nuremburg and Tokyo Tribunals
that
waging a war of aggression or waging of a war in violation of
nternational Treaty is illegal and it is an act in the nature of a war
rme. But considerable difficulty has been felt in defining the term
aggression'. The Special Committee on the Question of Defining
ggression, established by the United Nations General Assembly in
4, has not been able to do much useful work in the direction of
defining
aggression. For that matter, there is also an opinion prevailing
a st jurists that it is neither necessary nor possible to detine an
a09ression. Defining an act of aggression may be an invitation
 198 PUBLIC INTERNATIONAL LAw
to wage war by means other than those covered by the definit.
Therefore, according to them, nternational Tribunals must
Bcic
whether a particular act is an aggression or not.
Wars and the Right of Self-defence
Just as an invidual has a right to use force in the interest
of ees
defence, so also a State has, according to customary international law
right to use force in the interest of its defence. Art. 51 of the Charter
United Nations recognises this right of a State. According to Article 51
of-
is lawtul for a State to use force, either collectively or individually, wh
there is an armed attack against it, but this right is subject th
enforcement action that may be taken by the Security Council. In tolate
Chapter, the legality of the various Regional Pacts are consideredt a
ascertain how far they are consistent with the Charter.
Effect of War and of Armed Conflicts
The out-break of a war has serious consequences on
the following
(a) On the enemy character of persons or things
(b) On diplomatic relations
(c) On treaties
(d) On enemy property.
(a) Enemy Character of Persons or Things
After the out-break of war, it is very essential to
ascertain the enem
character of persons. This varies from one municipal local system to
another; yet certain common rules can be formulated as
under:
(i) Hostile combatants and
subjects of enemy's States residing
in enemy territory are enemy
persons.
(ii) Even a territory under
the effective military occupation of the=
enemy will be treated as an enemy territory for this purpose.
(ii) According to the Anglo-American legal system, even neutrals-
residing or carrying on business in enemy territory are considered
as enemy persons. But subjects of enemy States residing in a
neutral territory are not considered to be of enemy character.
But, of late, this residence test seems to
have been modified by
the test of enemy influence or association. The House of Lords
adopted this test in the case of DAIMLER CO. LTD. v. CONTINENTAL
TYRE AND RUBBEA CO. (GREAT BRITAIN)
(1916). The facts of the
case are as follows:
The Continental Tyre and Rubber Co. Ltd. was formed in 1905,
with its registered office in London. Its Directors
were German subjectS
and excepting one, all the shares were held by the German
Companes
of German nationals. The Continental Tyre and Rubber Co. Ltd. brougnt
an action to recover a sum of money from the Daimler Co. Ltd.
The
latter pleaded that the former was an alien enemy, and
they wer
restrained from making payment to such enemy by the operatlon o
 WAR&OTHER
HOSTILE
RELATIONS
an Act of Parliament. Therefore,
charaCo.The House of Lords, holding it was necessary 199
Ltd., was of that to decide ene
enemy
principles. character, the ContinentalTyre
laid down and
T enemy character the following
agen r
the persons in de
untry,
may be assumed
enemy count or wherever facto control of its affairs,by a corporation,
if its
resident, are
instructions from or acting adhering to are resldentin any
under
A company incorporated the control of enerthe enemy
enemies. ortaking
neith a friend nor an enemy; in the United
Kingdom
act through its agents, yet could as
and these might such a company couldsuch
in time of war
wa if they were assume an only
resident in enemy
acting under the instructions the enemy countrycharacter
a. The character of enemy
shareholders. or were
of individual
ho character of the company. shareholders
dho company's It depends cannot of itself
agents, or the persons on the question affect
affairs, are in fact in de facto whether
adnering to, or taking control of its
under the control of enemies. instructions from,
or acting
4. A company registered
in
husiness in a neutral country the United Kingdom, but carrying
through agents, on
and resident there or in
neutral country, is prima properly authorized
as a friend, but may, through facie
of its affairs, assume an
ts agent or person in to be regarded
enemy character. de facto control
5. A company registered in
the United Kingdom, but
business in an enemy country, to carrying on
is be regarded as an enemy.
SHIPS AND ENEMY CHARACTER
A ship will be considered
to be of enemy character if
the enemy flag, but sometimes an it bears
enemy-owned vessel, even though
bearing a neutral flag, may be
considered to be of enemy character
under the following circumstances:
(G) If such
ships participate in hostilities under the orders of the enemy,
or if they are
in enemy employ for the purpose of conducting
war; or
Gi) If they
resist legitimate exercise of the right of visit and capture.
(b) The effect
of war on Diplomatic Relations
When war takes place, diplomatic relations come to an end. The diplo-
natic representatives must proceed home from the belligerent countries
c) The effect of war on Treatles
The effect of war on existing treaties is, according to Mr. Justie
ardozo, "one of the unsettled problems of the law There are vo
Views regarding war on existing treaties: One view. the old
the effect of
IS that such outbreak of war would ipso facto result in the
ment of all treaties between the belligerent States. Ihe einer view.
not preserve treaties
view, is that International Law "does
Odern regardless of the effects produced. lt deass wtn
inu them,
 200 PUBLIC INTERNATIONAL LAW
problens pragmaticallypreserving or annulling, as the necessities e
war exact. "
According to this tO
View,tests must be applied In th
connection. The irst to
test is
ascertain whether the signatories of tha
treaty intended that the treaty should remain binding on the outbreaks
the war. The second test is to ascertain whether performance of the
treaty obligation would be compatible with the conduct of war. Applvina
these tests, Starke sums up the effect of war on the treaties as under
1. Treaties between the belligerent States which presuppose the
maintenance of common political action or good relations betweer
them, for example, treaties of alliance, are abrogated.
2. Treaties representirng a completed situation, or intended to se
Up a permanent state of things, for example, treaties of cession or
treaties fixing boundaries, are unaffected by war and continue in force.
3. Treaties to which the bellingerents are parties relating to the conduct
of hostilities, for example, the Hague Convention of 1899 and 1907, and
other treaties prescribing rules of arfare, remain binding.
4. Multilateral Conventions of the "law-making" type, relating to
health, drugs, protection of industrial property, etc., are not annulled
on the outbreak of war, but are either suspended and revive on the
termination of hostilities, or continue to apply even in wartime.
5. Sometimes, express provisions are inserted in treaties to
cover the position on the outbreak of war. For example, Article 38 of
the Aerial Navigation Convention, 1919, provided that in case of
war, the Convention was not to affect the freedom of the contracting
States either as belligerent or as neutrals, s which meant that, during
war, the obligations of the parties became suspended.
REVIVAL OF A TREATY AFTER CESSATION OF WAR
It is held by some authorities that a treaty suspended during a
war will not be revived ipso facto. After cessation of the hostility,
they can be revived only if the peace treaty so provides.
(d) Effect on Enemy Property
Enemy property may be either property owned by the enemy State
tsel, orit may be property owned by private citizens of the enemy State
Property Owned by the enemy State
if such property is moveable and if it happens to be in the
territory of a belligerent State, the belligerent State can confiscate
it. Immovable property situated in the territory
of a belligerent State
may be Used, but it cannot be acquired.
roperty owned by private citizens of the enemy State
The moodern practice is to seize such property temporarily, but nor
onfiscate it. The disposal of such property will be determined by the
ce treaty Such private property must not be plundered o
scated or otherwise interfered with, unless it is of immediate use in
ven though such property is situated in
occupied enemy territory.
emy ships and enemy cargoes can be seized and confliscated.
 WAR&OTHER HOSTILE RELATIONS 201

AHlition to this, the outbreak of war may have certain effects

contracts ente into between the subjects of the
comm7ercial
on States. Such effect is regulated purely by the municipal
ent
hellgere belligerent States. In this connection, the State practices
th
laws of rding to the laws
Accordi of some countries, such contracts may
vary. outbreak of war, and according to the municipal
minated by the
countries, the performance of the contract may
of certain other
suspended for the duration of the hostilities, if the nature of the
laws
be such suspension.
ontract permits
Prohlbltion of Tradi and intercourse In War-Contracts
(e)Pro
Tading and intercourse befween the subjects of beligerent States
break of war, and uSually, special legislation is
ase on the matter. The details of State practice in this
oduced to cover the
it can be said that international law gives
ection vary, but
bellin-gerent States the widest freedom the enactment of municipal
in

with the subject.

laws dealing
Similarly, with regard to contracts between the citizens of
law leaves States entirely free to
helligerent States, international
contracts on the out-break of war.
annul, suspend, or permit such
law.
Consequently, this is a matter primarily concerning municipal
Most of the States treat
executory contracts, which may give aid or
add to the resources of the
enemy, to be void. Executed contracts
war.
and liquidated debts are suspended during the
Combatants and non-combatants
Traditionally, international law maintains a distinction between
combatants and non-combatants. Non-combatants are not, in principle,
to be attacked or injured. However, certain classes of non-combatants,
like merchants, seamen, may be captured and made prisoners of war.
This was an accepted principle of international policy in the nineteenth
century, as the main object of the war was to weaken the military force
of the enemy. The Hague Convention IV of 1907 on the Laws and
Customs of War on Land and its annexed Regulations attempted to
make a clear-cut distinction between the civilians and the armed forces.
Combatants are divided into two classes: Lawful and unlawful.
Lawful combatants may be killed or wounded in battle or captured
or made
prisoners of war. Unlawful combatants are liable to capture
and detention in adition to trial and punishment by military tribunals
or their offences. If a citizen or person owing allegiance to belligerent
late A enlists as a member of the armed force of the opposing
Deligerent State B, he cannot claim the privilege of a lawtul
ombatant, if he is subsequently captured by State A.
A student of international law has to accept that under the
demands of military necessity in two World Wars, the distinction
rWen combatants and non-combatants has almost disappeared.
modern "blind weapons" of war have made such distinction
y difficult. Nurick in a learned article in the American Journal of
202 PUBLIC INTERNATIONAL LAw
International Law (1945), has examined the importance
distinction between combatants and non-combatants, in the hro of
context, under the following important heads
(1) artillery bombardment;
(2) naval bombardment;
(3) sieges;
(4) blockade;
(5) aerial bombardment; and
(6) contraband.
The conclusion he arrived at after a detailed examination ura
that the non-combatants may not be the primary objects of thes
six operations of war, but they are denied any substantial protectia
from injury that may be caused by such operations.
It has to be regretfully accepted
that the distinction betweem
combatants and non-combatants can hardly be made in the case
aerial bombardments and in the case of the use of atomic, hydroner
and nuclear weapons, which are often referred to as "blind" weapons
Aerial bombardments
Starting with the Hague Regulations of 1907 to 1968,
severa
attempts have been made to prevent bombing of civilians. But
al
that is achieved is an attempt to prohibit international
civilians. The experience of the two World Wars has
attack or=

shown tha
such prohibitions are of little use. At present, the problem of increased
protection of the civilian populations and civilian objectives in times=
of armed conflict has been engaging the attention of the Geneva=
Conference on the Re-Affirmation and Development of International
Humanitarian law applicable in Armed Conflicts. This is an attempt-
to revise and update the Geneva Red Cross Convention of
1949.
It appears that any
attempt to distinguish military and civilian
objectives and population is futile, in the case of the above-mentioned
"blind" weapons. The only remedy appears to be the prohibition of
the use of these weapons. In this connection, the following treaties
have been concluded:
(a) Nuclear Weapons Test Ban Treaty of 1963;
(6) the Outer Space Treaty of 1967 (Banning Nuclear Weapons
in Outer Space);
(c) The Nuclear Weapons Non-Proliferation Treaty of 1968;
(d) The Treaty of 1971, prohibiting the emplacement of Nuclear
Weapons and other Weapons of Mass Destruction on the Sea bed
and Ocean floor.
The Laws of War
There have been certain laws arising out of longstanding
customary practice, which have regulated the use of force durn
times of war. After the Nineteenth century, these customary rui
 HOSTILE RELATIONS
WAR& OTHER 203

framed in trøaties and Corventions. The

to rules
given plaas
lana
are the most Important amongst
or Conventions
1ave
Ve prescribed certain laws of war:
lollowing
hlch have
whlo
those Parls, 1856
Declaratlon of
1.
Declaration was thefirst attempt to prescribe certain rules,
This lated use of force.
regulat
arding the
egardh Conventlon, 1864
Geneva for the amelioration of the
2. Th Convention prescribe rules
This wounded soldiers
soldiers in war.
condition
Cona
of Petersburg, 1868
Declaration of St.
Decla
.
3, The Declaration ohibited the use
of certain kinds of projectiles
his Convention, 1899
The Hague of certain expanding bullefs
4,
This Convention prohibited the use
This Dum" bullet This also prohibited the projecting
known as the "Dum
exploding of terious and dangerous gases.
or Convention, 1907
The Hague Flag of
6.
Convention prescribed rules regarding the use of
This use of distinctive badges,
uniform of the enemy and improper
troops, an enemy who
elc. The Convention also forbade killing or wounding
laid down his arms.
Bacteriological Warfare Protocol, 1925
6. The Geneva Gas and
This Convention prescribed
rules prohibiting the use of poisonous
gases and indulging in
bacteriological warfare.
7. The Submarine Rules Protocol,
1936

8. The Geneva Red Cross Convention, 1949

in 1949 relating to
Four Conventions were concluded in Geneva
(a) The treatment of prisoners of war.
in
6) Amelioration of the condition of the wounded and sick
armed forces in the field.
The amelioraiton of the condition of wounded, sick and
(c)
shipwrecked members of armed forces at sea.
(d) The protection of civilian persons in time of war.
The essential purpose of all these rules, as pointed out by
Starke, is not so much to provide a code governing the game or

ut humanitarian reasons to reduce or limit the suffering ot

VIduals and to circumscribe "the area within which the savagery
h edconflict is permissible." As Starke points out, these rules
ebeen very often violated, and probably in the modern context
uclear weapon and missiles, these rules are unrealistic.
Rules of Land,
Sea and Air Warfare
Ora
necessary detailed examination these laws
of of war, it wolo be
to divide wars into three aspects:
(a) Land
warfare;
204 PUBLIC INTERNATIONAL LAW
(b) Sea warfare; and
(c) Air warfare.
(a) Rules of Land Warfare
The main rules regarding land warfare are set out in the va.
Convention of 1907 on the Laws and Customs of War on Landu
its annexed Regulations. and
THE BELLIGERENTS, THE cOMBATANTS AND
THE NON-COMBATANTS
The Convention, at the very outset, distinguished between comk
tants and non-col batants. The combatants may be killed or wounded
in battle or captured and made prisoners of war. The non-comhat
are not to be heavily attacked or injured. Amongst combatants, thera ants
might be lawful combatants and unlawtul combatants. Guerrilla ere
tro0
and militia will be treated as lawful combatants and will be subiect to
the laws, rights and duties of war if they tultil the following conditions
(a) They must be properly commanded.
(b) They must have fixed distinctive emblem
recognizable at a
distance.
(c) They must carry arms openly.
(d) They must conduct their operation in accordance
with the
laws and customs of war.
LEVY EN MASSE
By levy en masse is meant the organised or spontaneous
civilian population against the enemy. Such rising of civilian
rising of the
population
must satisfy two conditions to be considered as lawful combatants if
their
rising is spontaneous. Those conditions are the following:
(0) It must carry
arms openly
(ii) It must respect the laws
and customs of war.
On the other hand, if the civilian population are called to
up arms by the authorities, they must satisfy all the take
four conditions
prescribed for the Guerrilla troops (above) if such population is to
be considered as lawful combatants.
TREATMENT OF PRISONERS OF WAR
The Hague Rules of 1907 contained certain provisions regarding
the treatment of prisoners of war. Now, those rules are supplemented
by the Geneva Convention of 1949. According to this Convention,
strict duties are imposed on those who capture prisoners of war. An
obligation is imposed on them to treat the prisoners of war humanely,
and not to expose such prisoners of unnecessary brutality. It is als0
provided in the Convention of 1949, that prisoners of war
should be
released without delay after the cessation of active hostilities. But
during the Korean Conflict (1951-1953), a curious situation arose
when the United Nations command wanted to release many of
prisoners of war who were unwilling to be repatriated, as they feared the
 WAR & OTHER
HOSTILE
persecution.Therefore, it was RELATIONS
Command +ake to what was necessary for 205
called "screening"the United
Out that this practice of screening Natlons
might Starke rightly
TREAT OF oUNDED be opposed in future points
AND
The onvention of 1949 provided SICK MEMBERS
helligerents to protect wounded certain rules
facilities for the medical units, and sick requiring
namely, personnel the
caring for and to give
THE METHO AND MEANS such personnel.
CONDUCT OF COMBAT
OF HOSTILITIES AND THE
The Hague Rules oT 1907
of poisonous weapons prescribe certain rules
Use or forbidding
nrohibiting bombardment of openprojectiles.
cities.
It also provides the
rules
(b) The Rules of Sea Warfare
These rules are partiy regulated by customary
artly by the Declaration of Paris 1856, the International Law
Hague Convention and
and the Submarine Hules of 1907,
of Protocol of 1936.
wArfare is to deprive The
the enemy ot those means of object of maritime
the high seas in their communication which
character as res nullius afford
defeat the enemy navy and annihilate enemy to every nation, to
aeneral rule, public and private merchant fleet. As a
vessels of the enemy may be
and captured in their own ports attacked
and waters, in the ports and waters of
attacking power and on the high seas, but not in the
the neutral or neutralised
ports or waters. This general rule has some
exceptions.
() Hospital ships. The Hague Convention gave immunity
to
hospital ships from being captured. Such ships were to
be painted
white and to fly the Geneva Flag. This rule was not meticulously
followed by the Germans in the First World War.
(ii) Vessels employed for religious, scientific or philanthropic
purposes
are also immune from capture under the Hague Rules of 1907.
(in) Ships employed in the exchange of prisoners of war are
also immune from capture.
The other rules of sea wartare are briefly summed up below:
(1) Undefended ports and towns are immune from naval bombardment
(2) Floating mines must not be sewn indiscriminately
(c) Rules of Aerlal Warfare
in the following
Ihe laws regarding aerial warfare are contained
conventions: conterenoe,
1874-According to this
(1) The Brussels Conference, to
and of buildings devoted
Dombarding of undefended towns or villages
was prohibited.
eglon, arts, sclences and hospitals prescribed more
Hague Regulations of 1907-These Regulations Regulations
(2) aerialwarfare.According to these
with regard to not be bombarded.
erules
population who were
non-combatant could
206 PUBLIC INTERNATIONAL LAW

Destroying or damaging private property was prohibited

bombardment was legitimate only when directed at a militaryoheria
As Starke observes, the history of attempts to protect the
combatant has not been encouraging. During the Secon on.
War, the Axis powers remorselessly bombed civilian and orld
objectives, using various prohibited kinds of bombs.
nd civillan

THE LEGALITY OF THE NUCLEAR WARFARE

AND
THE USE OF ATOMIC WEAPONS
During the Second World War, Nagasaki and Hiroshima
ctims of the atom-bomb attacks of the American becama
forces. An atte the
has been made to justify the use of the atomic bomb as measi
retaliation against the indiscriminate bombing of the civilian a
populati
by the Axis powers. It should be noted that, even measure
as a
retaliation, it was excessive, as it resulted in the
death of very hiune
umber of civilians. It is very difficult to justify the legality a the
nuclear weapons. There can be no doubt that the use of
of e
is not only opposed to the Hague Regulations, which such weanone
prescribe the rules
of aerial warfare, but it is also opposed to the
rules of other kinds, of
warfare. It is no argument to say that modern war
therefore. the distinction between the combatantsa total war, and
is
combatants have vanished. Acceptance of this and the non-
one to the position of saying that modern warfare argument is
would lead
as it is unlimited in its inhuman cruelty. unregulated by law
War Crimes and the Nuremburg and Tokyo
Trlals
1. Sanctlons against Violations of Law
of War
According to Starke, "While the laws
of war are frequently
violated, international law is not entirely without
States to observe them." According to him, means of compellng
sanctions against violation of the laws of war: the
following are the

(a) REPRISAL
Starke admits that reprisal is at best a crude and
redress. The sanction of reprisal could hardly be arbitrary form of
sanction against violation of the laws of war, considered as a
that if the enemy State violates the law of war, because it would mean

also retaliate by means of violating some the other State would

more laws of war. Though it
might have been occasionally effective,
its efficacy is highly doubted.
(b) PUNISHMENT OF WAR CRIMINALS
This is discussed in greater detail below.
(c) COMPENSATION
According to Article 3 of the Hague (IV) of 1907, a
belligerent State violating the laws Convention
compensation to the other party. At the war ofis concluding
of liable to pay
peace treaty, compen-sation can be time the
exacted from the other State.
 WAR &OTHER
HOSTILE
RELATIONS
War Crimes and Trlals
Oppenheim classifies war crimes 207
ta) Violation of recognised rules as tollows.
of the armed forces. regarding
the members wartare
stilities in arms
All hostilities committed
committed by
the enemy's armed forces by individual
(c) Espionage and treason. members o
(d) Maraudering. Acts (looting
r Lauterpacht
suggests
and plundering

he
limited to acts which would that the term "war
be condemned crime" should should
conscience of mankind, by reason of by th common
vanton disregard of the rinkson theied
of their
the right of property
by
brutality, the
inhumanity
military necessity. unrelated or
to reasonable
NUREMBURG
AND TOKYO
TRIALSs
Nuremburg Trials
fter the Second World War, the Allied
Forces set up
known as the International Military Triburn a tribunal
and Japan. to try war criminals
Germany The ribunal held its trial of
dha criminals at Nuremburg
of Germany. his Iribunal to try
uremburg trial was empowered which presided over
rimes. The Prosecutors of under a Charter to try
the four allied nations drew the war
crimes cOmmitted by the war criminals. up a list ot
They were the following:
(a) Aggressive war.
(b) Violation of international treaties.
()Common plan of conspiracy.
(d) War crimes and crimes against humanity.
(e) Violation of the Charter.
The main contention of the Prosecutors was that
the accused
had waged wars of aggression in violation of
the Briand-Kellogg
Pact. They had committed unprecedented atrocities.
The following defences were advanced on behalf of the accused:
(i) It was a fundamental principle of law
that there can be no
punishment of a crime without there being a law in existence which
made the act punishable. In briet, criminal law could neither be
retro-spective nor retroactive.
() The defendants were protected by the defence of act of
State and they obeyed the orders of superiors.
(in) Individuals are not subjects of International Law. Theretore,
tne International Military Tribunal could not exercise jurisdiction ove
the individuals.
The Decislon
defendants and
rejected all the three defences of the
IO
ribunal
them liable for punishment. When they
had violated al canons o
to plead the absence
na treaty, it was not open for the acused
208 PUBLIC INTERNATIONAL LAW
of any law prescribing punishment as a defence. The
order
superiors could not be, a defence when the acts were in the h the
unprecedented atrocities. Surely, International Law imposes ature of om

and liabilities upon individuals as well as upon States. uties

Critlcism of the Trlal
Several eminent writers on International Law
criticised the trial. The following are briefly the points have se
of criticiely
(a) The Charter, which created the International Military
Tribiun.
and the law which the Tribunal applied, was merely
agreement. an ee Jtive
(b) Though the Briand-Kellogg Pact declares war
prescribed no punishment for individuals who violated as unlawf
(c) The Briand-Kellogg Pact, ever since the Pact
honoured in breach than in obedience. Therefore, its inception, was mor
it was uniust
punish the German war leaders alone. The
punishment of individial
who participated in a war which was in violation of
Pact, was unprecedented. Neither the Japanese the above mentioned
leaders who invadied
China in 1931, nor the Italian leaders who invaded Abissinia
were punished. On the other hand, these very States, which in 1985
Prosecutors in the Nuremburg Trial, had acquiesced in those were the
acts
which were in the nature of violation of the Pact.
The Nuremburg Trial was clearly one-sided. If the German
leaders were guilty of unprecedented atrocities, the atom-bomb war
on Hiroshima and Nagasaki could hardly be stated to attack
have been
"precedented atrocities". During the Second World War, no participant
could claim that his conscience was clear and that he had
committed any war crimes. not
Tokyo Trlals
Under the Charter, the Tribunal tried the Japanese war leaders for
their war crimes. What has been said of the Nuremburg trials can also
be said of the Tokyo trials.
BELLIGERENT OCCUPATION OF ENEMY TERRITORY
Meaning of Belligerent Occupatlon
Belligerent occupation consists in taking possession of the enemy
territory and es tablishing an administration over it. Belligerent
occupation must be distinguished on the one hand from invasion, and
on the other hand, from complete transfer of sovereignty. Invasion IS
only a state of conquest and does not include the establishment of an
administration, whereas in belligerent occupation, such administration
is established. In belligerent occupation, the occupying authority does
not have a complete transfer of sovereignty in its favour, but it has
only limited military authority, subject to international law.
In the words of OPPENHEIM, "occupation is invasion plus taking
possession of enemy country for the purpose of holding it, at any rad
temporarily."
According to LAWRENCE, beligerent occupation implies
a firm possession so that the occupying power has the country
under its control; and
 WAR & OTHER HOSTILE RELATIONS 209

hl continuance of war, which suggests that the invader has not

A
soverelgn.
become a
Article 42 of the Hague Regulations, 1907, declares that a teritory
occupied when it is actually placed under the authority of
sald to be
stle army,force.
host and that such occupation is effective only when i is
sufficient to maintain the authority of the occupant.
ported by a
cONSEQUENCES OF BELLIGERENT OCCUPATION
IN
(A) CONSEQUENCES
RESPECT OF THE POPULATION
Belligerent occupation does not result in any change of
(a)
nationality of the local citizens.
b)By belligerent ocCupation, the allegiance of the people is notcom-
from the former Government to the occupying authority.
letely transferred
ic) The occupying power, being in the possession of an interim
railitary administration, Is entitled to obedience from the inhabitants, to
tha xtent such obedience is necessary for the following purposes:
The purpose of the maintenance of public order;
(ii) The purpose of the safety of the occupying force; and
(ii) The purpose of administering the territory in general.
R)CONSEQUENCES IN RESPECT OF IMMOVABLE PROPERTY
According to Lawrence,immovable property, being bound up with
the territory, is incapable of appropriation by the occupying authority,
but an actual conflict may justify destruction of buildings or their use
as fortification Troops may be accommodated in private houses, though
inhabitants can not be ejected to accommodate the soldiers.
(C) cONSEQUENCES IN RESPECT OF PRIVATE PROPERTY
Private property cannot be confiscated. But the occupying authority
can requisition in kind and services for the purpose of supplying the
need of the occupying army. They can be demanded only on the
authority of the Commander in the occupied locality. Pillage of private
property is strictly forbidden. Contributions over and above the ordinary
taxes may be collected, under the authority of the General, to the
extent it is necessary to meet the needs of the army and the expenses
of the administration of the occupied territory. But no hostage can be
taken and collective penalties cannot be imposed.
Geneva Conventlon of 1949 on the Protectlon of Civlians in
Times of War
This Convention is intended to supplement the provisions of the
Hague Rules. This Convention imposed on the occupying authority
the following dutles, amongst others:
(a) Not to take hostage or impose collective penalty on the
POpuiation, for breaches of security or interference with the occupying
orces by individual inhabitants. This duty of not taking hostages
According to the
gatves the decision in the "Hostage case".
the purpose of securing
eision, hostages could be takenButfornow, under the Convention,
dlence of the local population.
Such a power cannot be exercisea.
 210 PUBLIC INTERNATIONAL LAW
(b) Not to transfer, by force, inhabitants individually or en mae
the other territory ass t

(c) Not to compel the inhabitants to engage in military operatin

or in any work connected with such operation, other
for the
than
needs of the occupying army.
(d) Not to requisition food and medical supplies, so as to infri.
upon the ordinary requirements of the civilian population.
The Doctrine of Postliminium
This doctrine is based on the Roman Private Law concept
postlimini. According to this Roman Law doctrine, persons and of
thin
captured by the enemy regain their original possession if
thev
rescued from the power of the enemy. Hall describes the doctrinare
postliminium as follows:
When a territory which has been occupied and a population which
haas
been controlled by an enemy, comes again into power of its Own State
the
a
during the progress of a war, orwhen State, the whole
of which
subjected, throws off the yoke which has been placed upon it, has beea
settled conquest has been clearly effected, or finally when a State before
or
portion of a State is freed from foreign domination by the action of
an ally
before a conquest of which has been consolidated, the legal state of thinas
existing prior to the hostile occupation is re-established.
This doctrine has lost much of its importance at present,
because
modern treaties of peace provide for every minute detail, and therefore,
the need for a general application of the doctrine of postliminium mayy
not arise. However, when peace treaties are silent, the doctrine may
play an important role.
The Limitations of the Doctrine
The following limitations of the doctrine of postliminium must
however be noted:
(a) The doctrine has no application when a territory is appropriated
by the conqueror by possession and establishment of administration
or when a territory is ceded to the enemy by a treaty.
(b) The doctrine cannot be enforced by neutral
countries.
(c) The legitimate acts done by the occupant cannot fall within the
doctrine.
(d) Imposition of contributions and requisition and collection of
taxes by the occupant are immune from the application of the doctrine.
The Modes of Termination of War and Hostility
This topic can be resolved into two parts: Firstly, the modes o
termination of status of war, and secondly, the modes of termination o
other hostilities.
(1)Modes of Termination of Status of War
(a) By abstinence from further acts of war
The status of war might come to an end by
the belligerent
abstaining from further acts of war and creating a peaceful relatio
without formally entering into a peace treaty.
There are various
 WAR& OTHER HOSTILE
RELATIONS
instances of of termination of war
by this method, 211
hind it an atmosphere of uncertainty. but this method
become aimost obsolete. Therefore, leaves
this method
(b) By peace treaty has
The status of war night come to an
apea aty This is the most common end by the beligerents
neace might provide tor method of signing
terminating war.
all the conseuqences
of the war,ke
like the evacuation of territory, of
The
indemnities, etc. if the treaty is silent repatriation of the termination
indemu nointed ou regarding certain war personnel
as already pointed out, the doctrine of postliminium consequences
There is anothe doctrine known as uti may be applicable.
licable if the treaty is silent. According posiditis, which
would
be
eantitled to retain to this doctríne, also
State such property as was actually each
of COntrol on the date or cessation of hostilities, in its possession
(c) By armistice agreement
1awrence defines
an armistice agreement
abstain from active operation within a limited as an agreement
raements area for a short time. to
agre are generally a prelude to the signing Such
of a peace treaty.
(d) By unlateral declaration
One or more of the victorious powers may declare unilaterally
termination of the status of war. the
(e) By conquest followed by annexation
if one of
the belligerent States is completely
annexed, there will be an end of the war, as the conquered and
conquered State
ceases fo exist in the eyes of internaitonal law.
(1) Modes of Termination of other Hostiities
Other hostilities like the non-war armed conflicts may be terminated
by the following methods:
(a) By armistice agreement
As already pointed out, an armistice agreement is an agreement
to temporarily suspend hostilities. But this might also be in fact an
agreement for the de facto termination of war. Such an agreement is
generally a prelude to a peace treaty.
(b) By Truce
Termination of hostilities by truce is very much similar to termination MCO No. 52
Dy armistice agreement. The only difference between these
two modes
by treaties is less definitive.
of termination of hostilities is termination

() By cease-fire
Council or other International
When the United Nations Security hostilities, such cessation
rgan orders or requests the cessation of
Is known
as cease-tire.
hostilities
(d) Agreement of cessation of forces to
agreement between the participating
nere might be an
terminate the hostilities
 CHAPTER 18

NEUTRALITY AND QUASI-NEUTRALITY

Concept of Neutrality
Oppenheim defines neutrality as the attitude of impartiality
third States towards the belligerent, and recognised by the ador belli b
such atitude creating rights and duties between the impartial
the beligerents. Neutrality is the legal pOsition of a State Statem
aioof from a war between two or more beligerents which rem
and keeps an attitud
of impartiality. Neutraity is thus a legal status involving
a complex natH
ights, dubes and privileges at international law. atter
Difference between Neutrality and Neutralisation
Neutraity must notbe mistaken for neutralisation.
the permanent status conterred on one state by the Neutralisationi
other great powers. By conierring this status, the collective acts
undertake certain obligations. and in return, conferring State-
on the neutralised State. whereas neutrality impose certain obligation-
is the unilateral attitude -
a State towards an existing hostility. It might be
just temporary
hoc. A neutral State. at its will, may get involved and
with the hostility. an-
thereby its status of neutrality comes to an end.
On the other hand. i
the case of neutralisation, there is a permanent
neutralised State not to get invoived in hostilities obligation on th
for the purposes of self-defence. or wage war, excep
The Development of the Concept of Neutrality
At the early state of the
development of
neutrality was generally the result of bilateral the international la
treaties. The status
neutraity was to be obtained by vitue of a treaty,
participating State would not be considered to and every norm
of such treaties. be neutral in the absenc=
it was during the 18th century
Varnel refined the concept of
that writers like Bynkershock an
neutrality,and established the theory tha
non-belligerent States could be impartial and
Tnis theory was also followed in practice. It
unaffected by the was
was
century that the theory developed to its fullest extent.during the 19t
The reasons for the development of the concept neutrality durin=
the 19th century are the following: of
(1) The American attitude of not allowing its territory to be used b
the belligerents during the Napoleonic wars
Great Britain wa
responsible for the development of various against neutrality.
rules of
(2) During the American Civil War,
there were disputes o
questions of neutrality between the United States several
and Great Bntal
These desputes were refered to arbitration,
MCO Na. 63 CLAIMS ARBITRATION of 1872 and the famous ALABAM
upheld the claims of the United stat
GOvernment. It was decided that the British
its neutraity by construction and fitting Government had violate
of commerce- destroyi
212
 NEUTRALITY
AND QUASL-NEUTRALITY
ssels for the other party
onsible in the civil war.
great extentr for claritying This z1
that vae
(3) The other factor that was the rightsaara
e rights
neutrality in the century was responsible anddutes to a very
to
Switzerland and Belgiumy
was sible tor
the permanet
of neutres
thederelopment
4) The advantages of neutrality neutralisaton o
commerce of non-belligerent
nerence States werein the interest
was greater to neutrality. realised, of trade
andtherefore, ard
5)) Ultimately,1856,
the rule of neutrality
were embodied
here
and Hague Conventions
Neutrality in the 20th Century of 1899 in the Deca
and 1907.
Unfortuna during the 20th
favourable to the development century,
of various facdors
lising war, became athe atitude eutreity. were not
instead of localis
easily walk over the unprepared temptation Netray
neutral Stetes.for begerent States
the concept of neutrality in modern imes Therefore, to
is highiy the uty of
The Rational Basis of Neutrality doubted.
Starke mentions the following
considerztions
tions of neutrality: as possiblsjus
(1) It serves to localise war.
(2) It discourages war.
(3) It enables States to
keep out of war.
(4) It regularises international
Unfortunately, during relations.
Second World War, all the 20th century, and partouiariy
false. The neutrality
these justifications of neuttaty during the
of States such as Norway. proved ts be
Belgium paved
the way for an easy walk-cver Denmark Holerd and
of Germany. Neutrality, by the aggresSe foroes
aggressors. instead of discouraging war.
Besides, the very concept oi neutraty tece he
States into war. When nas dragged severa
to engage neutral righiS are violaIEd.
themselves in warfare to define neta SEes havE
inter-war period, their ngmts. Dunng the
most of the European States
safeguard their own were
of war at any
neutral rights, their sole anxeTy Deng aniOUS t
cost. For example, France and Britain, to kesp cut
Vl war, maintained a very meek artitude. Trerefore, during the Spanish
Etner neutrality will t aDOEES thet
beligerent States. encourage war or will indirectiy hep cne ot the
Neutrality
and the United Nations Charter
Neutrality is the outcome
of a peculiar
.A neutral State would not examine theattude towards an existing
merts of the be gere
ae,neither would it distinguish beiween a just nar and an unus
war.
Its sole concern
in the is to keep out of war. BLt wars (which are nat
i

ure of a self defence) are illegai, t would be very dimicut to

Catter modern States can be neutral. Article 41 of the United Nations
imposes an obligation on every Member State to partioipate
214 PUBLIC INTERNATIONAL LAW
enforcement measures if called upon to do so in pursuance to
decision of the Security OCouncil. Likewise, the Member States ar-
also under an obligation to assist the United Nations in any actio-
under the Charter (Para 5 of Article 2). In view of these provisions
the Charter, no Member State of the United Nations has any absolt-
right of neutrality; but at the same time, It must be noted that the
concept of neutrality is not completely abolished under the Charter.
Under the following two circumstances, Member States may be
neutral to an existing hostility:
(1) When the Security Council takes recourse to preventive
enforcement measures, it may allow a particular Member State t
refrain from participating in such enforcement measures.
(2) If the resolution of the Security Council providing
for th
preventive or enforcement measures is vetoed by one of the permaner
Members, then the Member States can choose to be neutral.
Rights and Duties of Neutrals
The basic concept of neutrality, as summarised by Oppenhei
involves impartiality and acquiescence. The rights of
neutrals
correlated to the duties of belligerent, and similarly the rights ar
belligerents are correlated to the duties of neutrals. Basically. th-
neutral State is under an obligation to perform the following duties:
(a) Duties of abstention.- The neutral State is under a
duty nott-
assist a belligerent State, directly or indirectly, in its war activities.
(b) Duties of prevention. The neutral State is also under a dut
to prevent its territory from being used for preparation for
hostilities b
any belligerent State or for carrying on any warlike measures
by suc
belligerents.
Thus, both the duties of abstention and prevention require that th
neutral State must maintain an attitude of impartiality towards th-
existing hostility.
(c) Acquiescence. -The neutral State must acquiesce in
of the belligerent State to safeguard the commercial
the act-
impartiality of th
nationals of the neutral State. For example, if a belligerent Stat
suspects that the nationals of the neutral State are supplying wa
materials to the other belligerent State, the suspecting belligere
State has the right of inspection and seizure. The neutral State mus
suffer such activity of the belligerent State.
Corresponding to these duties of the neutral State, the followin
duties are imposed on the belligerent State:
(a) Abstention-A belligerent State must
abstain from committin
warlike acts on neutral territory. It must not violate the territorial wate
or the air space of the neutral State.
(b) Prevention. A belligerent State is also
under a duty
prevent injury to the persons or the property of the neutral State.
(c) Acquiescence.- A belligerent State is under a duty t
acquiesce in any act of the neutral State which such
neutral Stat
 NEUTRALITY
AND OUASLNEUTRALITY
might do to safeguard its neutrality.
the members of the For example,
internho take refuge armed forces if the
215

undera duty to acquiesce a

in neutral territory, of one
of he
in such activities. a belligerent
neral State
beligerent
Lawrence gives an exhaustive State
is
enumeration
of the belligerent States. Though of the rights
it
iahts and duties enumerated above, is mostly an explanation andduies
the rights and duties mentioned f the purpose of
by LaWrence of greater the
a are clar
arity.
(a) Rights of Neutral State given below:
The neutral States have a right
to have their
from hostile activities. territory immune
They have also the right to
have
sted, where thecables connect the their submarine cablesunmo
of a neutral, except in case o the territory of abelligerent with
necessity of self-preservation,that
(ii) They have the right
to have their territory immune
preparation for acts of hostility. from direct
(iv) They have the right to get
state which might have violated reparation from any
its neutrality. Reparation beligeret
adequate and proportionate to the gravity should be
Claims Arbitration (1872), of the offence. In
the
the Arbitrators awarded the UnitedAlabama
sum of 15,500,000 dollars in gold as indemnity States a
against losses arising
Out of Great Britain's breach of neutrality by
construction and fitting of the Alabama and otherfailure to prevent the
commerce-destroyers
for use by the Confederate party.
(b) The duties of a Neutral State
In addition to the duties of abstention, prevention and
acquiescence
mentioned above, Lawrence mentions two more duties:
() RESTORATION.-The neutral State is under a duty to restore
when a belligerent breaks the law and flouts neutral soverignty t: he
detriment of its enemy. For example, if one of the belligerent States
captures a prize within neutral powers, the neutral State has a nght to
ask for the restoration of the prize captured by the enemy.
(i) REPARATION.- When a belligerent State sufters through the
failure of a neutral State in its duties, the belligerent State can demand
reparation. The ALABAMA CASE, cited above, fully ilustrates this
duty of the neutral
neutral State is under a
However, it must be noted that though the
used for hostile purposes such
uty to prevent its territory from beingimplies that the neutral State must
Outy is not an absolute duty. The duty
its obligations. The neutral
use all the means at its disposal in fulfiling Similarly, the
interest of belligerent State. example, the
olate is not an insurer of the asbolute. For
is also not
u of the belligerent state privilege known as the privilege
ot Angary
gerent State enjoys a any neutral ship
the belligerent State to requisition goodsS IS
Sprivilege entitles ship or
jurisdiction, provided such
Ogoods physically within its required by the beligerent.
Serul in war and it is urgently
216 PUBLIC INTERNATIONAL LAWv

Insuch circumstances, the belligerent State is under a duly to.

full compensation. The belligerent States also have the right of innon
passage through the neutral terrtorial waters. They can also decl
certain parts of the high seas as war zones and require the nert
States to conduct their ships through certain safe routes of passa
Unneutral Service
Starke sums up the doctrine of "unneutral service" as follows:
"1is the duty of the owners or persons in charge of a neut
vessel or aircraft not, by any acts or conduct on their part, to emos
the vessel or aircraft for objects or purposes (other than carriage
contraband or breach of blockade) which may advance the belligere
interest of one State and injure the same interest of the opponente
Analysing the above summary of Starke, the following ingredier
of the doctrine can be noted
(0) It is a duty imposed on individuals.
(i) Such individuals are either the owners or persons in charge
a neutral vessel or aircraft.
(ii) It is a duty not to employ the vessel or aircraft for any
object
purpose which may advance the interest of one belligerent
injure the interest of the other belligerent State.
State
Unneutral service might consist of activities like transport of th
members of the enemy armed forces or the transmission of the inter
gence in the interest of the enemy. The belligerent State is empowere
to take action against such unneutral service by confiscation,
and
necessary, by destruction of the vessel or the aircraft.
Quasi-Neutrality and the Rights and Duties of the Quasl-Neutra
The status of neutrality arises in the case of war proper. TH
status of quasi-neutrality arises in the case of non-war armed conflic-
and breaches of the peace. Quasi-neutrality is the legal status
States and non-State entities not participating in 'non-war arme
conflicts. For example, during the Korean conflict of 1950-53, som
States claimed this status. The exact scope of this status is not as ye
defined by International Law. The pattern of rights and duties in th
case of quasi-neutrality might depend on the special circumstances
the non-war armed conflict. It appears that it is open for the participanE
in the armed conflict and the
quasi-neutrals to agree amongs
themselves as to the extent of their respective rights and duties.
such armed conflict is subject to the peace enforcement action of th
Security Council of the United Nations, the rights and
duties of quass
neutrals may be determined by the Security Council.
Economic Warfare
The main purpose of the economic warfare is to weaken the
belligerent's capacities for war. The fundamental aim of such warfare
is to prevent the flow of goods which might help the enemy in its wa
effort. Such prevention is done by taking recourse to the device o-
 QUASI-NEUTRALITY
NEUTRALITY AND 217

blockade During the 20th century, this limited concept

d and
traband are,
warfare,.as it prevailed In the 19th century, has undergone
onomic change. day, the magnitude of the scope of the
of lutionary waged
oevolutiondare States is very much greater
warfare waged by the beligerent
nomlc 19th century.
was In the
than itcording to the new concept of the economic warfare, as deve-
Seco rld War, the belligerent States could take
during the
ed only to the traditional expedient of contraband and
urse not kinds of economic pressures, including control of
TBcOu
butto allaimedlat weakening of the enemies' economic and
anddfinance
credit sinews.
financial
According to Starke,
by the practice of the Second World
conclusion is justified
any conclusion
"f
f examined in this survey, it is that in conducting economic
War as belligerent state is entitled under Internatlonal Law to subject
re, a
kind of pressure or restriction necessary to weaken
eutrals to any provided
financially,
the enemy economically and
(1) that the
inconvenience to neutrals, is as far as possible,
minimised; and
concerned stops short of causing actual
(2) that the belligerent
arave injury to neutrals (forexample, denying them the bare minimum
of food and other
necessaries)."
Contraband
designation of such
According to Oppenheim, "Contraband is the MCO No.64
belligerent to be carried to the
goods as are forbidden by either
him to carry on the war with
enemy, on the ground that they enable
of a belligerent to
greater vigour." The basis of this law is the right
of its enemy.
Condemn neutral property which is destined for the use
of
The doctrine of contraband can be traced to the declaration
Paris, 1856. Belligerents may seize enemy contraband goods
which
are being carried to an enemy destination on neutral ships, or neutral
contraband goods which are being carried to enemy's destination or
enemy's ships or neutral ships.
For the purpose of contraband, articles can be classified
into
three categories, viz.
(a) Absolute contraband,
6) Relative contraband, and
(c) Free articles.
(a) Absolute Contraband
ammu-
Articles clearly of warlike military character like arms and
considered
Or machinery for the manufacture of such arms, are
t
to be
absolute contraband.
(6) Relative Contraband
of peace and of
Arttcles which may be used both for the purpose
are considered to be relative contraband, for example, looastu,
clothing, fuel,
etc.
 218 PUBLIC INTERNATIONAL LAW
(c) Free Articles
Articles which can never be declared as contraband like
soap
paint, fancy goods, watches, etc., are considered as free articiles
Articles which are considered as an asbolute contraband are alwa.
.
considered to be contraband material. They can be seized anc
confiscated if intended for enemy destination, whereas articles
relative contraband can be seized if destined for the armed forcecna a
of
belligerent. The free articles can never be seized, and they can neves
be treated as contraband.
Contraband and Total War
Though the classification of articles into different categories for
the
purpose of declaring them as contraband was disCussed by writers ane
Prize Court Judges, there was very little agreement amongst them.
the Declaration of London, 1909, an attempt was made to draw up liste
of goods into these three classes. This Declaration did not obtain the
requisite number of ratifications. Therefore, it did not come into force
the context of modern 'total war, the utility of classification of
articles
into these three lists is very much doubted. One could hardly
think
any article or substance that may not have warlike use in the
warfare. The present position is that the old classification has moder
almos-
come into disuse, and new rules have not yet been crystallised.
Doctrine of Continuous Voyage or Continuous Transportation
As already noted above, the very essence of the test of
contrabanc
material is that it is destined to a hostile territory. Quite often,
apparently
the material may be destined to a neutral State, with the view
may be resold and sent to the adjacent enemy territory. that i
The main
object of such device is to avoid the capture of the material by the
other belligerent State. In such circumstances, the doctrine o-
continuous voyage or continuous transporation, becomes applicable
Starke describes the doctrine of continuous voyage in these terms:
"This consists in treating an adventure which involves
the carriag=
of goods in the first instance to a neutral port,
and then to somE
ulterior and hostile destination, as being for certain purposes only to
an enemy destination with all the consequences
that would attach
were the neutral port not interposed. Accordingly, if
these goods are
contraband, they are liable to seizure."
The History of the Doctrine of Continuous Voyage or Continuous
Transporatation
The first clear enunciation of the doctrine
can be found in the
decision of Lord Stowell, in MARIA (1805). The
doctrine was appliec
by the United States Supreme Court,
during the American Civil war-
But, whether the doctrine was of
general validity was doubted ti
1909. The Declaration of London, 1909,
stated that the doctrine was
applicable only to absolute contraband, but
the Declaration itself di
not come into effect. The doctrine
received the fullest approval p>
 NEUTRALITY
AND QUASI-NEUTRALITY
Great Brit in the First World
War.The
following principles in the KIM Britlsh 219
(1915) Court laid
(a) ontraband goods, though
seized
non their way, destined
down
the
e it the uimate to a neutral
an enemy territory intention country,
was to forward might
(b) Such goods could them
be seized, even to
the goods were innocent, provided though
theshippers
entertains such intention to pass the consignee carrying
it on to
The doctr of contin the enemy of he goods
transporation, teritory.
was accepted and applied by as enunciated
all the other belligerents
World War. above.
of the First
Navicerts
To avoid the inconven
Diplon of goods
the or Consular representative being seized
as contraband,
stify in a certificat (called in a neutral
neu ship is not liable to a navicert) that country can
seizure the cargo on board
rtificates are normally exempted as contraband. Vessels using a
of doubt, from search
the belligerent State might and seizure, but such
t is found out that the contraband
carry on
is destined to
the search
and
in case
seize it, if
The Effect of Carriage of Contraband the enemy teritory.
1) Contraband material
can be seized, provided
can seize it in the open sea the belligerent
or in the territorial
State. But it cannot be seized waters of such belligerent
in neutral territorial
even the ship carrying waters. Sometimes,
the contraband cargo is liable
(2) Cargo, or the to seizure.
vessel so captured, must
contraband by the adjudication be confirmed as
of a Prize Court
State. If the Prize Court established by that
holds that the seizure
cargo or vessel is
declared to be a good prize. was legitimate, the
(3) The cargo, or
the vessel
confiscated by the State which declared as a good prize, can be
has captured it.
Prize Court
According to the British
and Continental practice, the right of a
belligerent State to seize contraband
IS not cargo or vessels carrying them
absolute, but requires confirmation by the adjudication
Prize Court established of a
by the State.
The origin of a Prize Court
and Prize laws goes back to Middle
Ages in England. In
a case of piracy, the Court of Admiralty would
enquire into the authority of
the captor and into the nationality of the
aptured vessel and of the owners of her goods. This practice was
xlended to a captured vessel and of the owners of her gods. This
Ce as extended to captures made in time of war, and it gradually
me a recognised customary rule of international law that in time of
belligerents should set up Courts to decide whether captures
the lawful
re or not. These Courts, called Prize Courts, are not
ternational Courts, but municipal courts, altough they apply
 NEUTRALITY AND QUASI-NEUTRALITY 221

period within which the neutral vessels

may come out.
the
tne)IMPARTIALITY.-A
IMF blockade must be impartial
(5) against all the
Any relaxat
els. state,
In
favour of any belligerent state to the exclusion
neutral renders the blockade inoperative.
of
Breach of Blockade and its Consequences
Breach
Chios which break a blockade by entering or leaving the blockade
to eizure in the same way as contraband cargo, by
area are liable the
elligerent operating the blockade. After capture, such ships must be
sen to a port forasadjudication by a Prize Court. If the Prize Court
a good prize, lt is llable to be confiscated.
declares the ship
declares
t should be noted that a breach of blockade takes place only if the
fulfilled:
following three conditions are
1) There must be the existence of an actual blockade.
(2) The party which is aleged to have offended the blockade must
be proved
to have the knowledge of the blockade.
8) Some act of violation, either in the nature of egress or ingress,
must be proved.
"Long Distance" Blockade
During the First World War, the British Navy enforced a "long
distnoe" blockade of Germany through ships and squadrons operating
at
times more than a thousand miles from the German ports. This was
done as a reprisal for the German decision to attack British and Allied
merchantmen in the waters surrounding the British Isles without regard
to the safety of the passengers or the crew. The U.S. and other States
objected to such a blockade as being, inter alia, a blockade of neutral
ports also, but France supported Great Britain. Great Britain justified
the action on the ground of changed conditions of modern war, which
required that an effective blockade must be able to cover commerce
with the enemy passing through neutral ports.
The "long distance" blockade was re-instituted in 1939 in the
Second World War, and its rational justification was declared to be the
necessity for waging total economic warfare against the enemy. During
both the World Wars, France followed the example of Great Britain.
Great Britain was able to enforce such a blockade only because of its
predominant naval power.
A reference may also be made to "Pacific Blockade", discussed
in Chapter 16.)
 220 PUBLIC INTERNATIONAL LAW
international law to a great extent. Every State is under an obliaatio.
enact only such regulations or statutes which are in conformity
international law to govern the operation of the Prize Courts
The structure of Prize Courts is not uniform in all States, but in.
British Empire and the United States, they are exclusively iudie
tribunals.
If the Prize Courts confirm the legitimacy of the seizure, the eas
or vessel is considered to be 'a good prize' and it can be confiscat
by the Captor State. Once the decree of condemnation is passed h
the gods are disposed of is nOt the concern of international law bu
is solely a matter of municipal law.
BLOCKADE
ODDenheim defines a blockade as "the blockading by men of Wa
MCQ No. 65 of the approach to the enemy coast or a part of it for the purpose o
preventing ingress or egres of vessel or aircraft of all nations". The
following ingredients of blockade must be carefully noted:
(1) Blockade must be by men of war, though it may be reinforcec
by other means.
(2) Blockade may prevent ingress or egress or both.
3) Only enemy coast, or part of it, is to be blockaded.
(4) Blockade, to be admissible, must be impartially applied t
vessels or aircrafts of all nations.
(5) Blockade is a war-like operation.
(6) Blockade is not a siege which aims at the capture of the
besieged place; it only intercepts intercourse by sea.
The Requisites of a Valid Blockade
To be a valid blockade, it must satisfy the following requisites:
(1) PROPER ESTABLISHMENT- It must be established unde
the authority of a beligerent Government or its Naval Commander.
(2) EFFECTIVENESS. Both the Declaration of Paris (1856) an
the Decaration of London (1909) emphasise the fact that the blockade
to be valid, must not be nominal or a paper blockade, but it must bi
real and present danger to vessel in any attempt to pass through. I
the opinion of Lord Chief Justice Cockburn (in GEIPLE V. SMIT
(1826), a blockade is effective if the enemy's ships are in such number
and positions as to render running the blockade a matter of dange
although some vessels may succeed in getting through.
(3) CONTINUOUSLY MAINTAINED.-The blockade must be cont
nuously maintained. If the blockading force is driven off by a superic
force of the enemy, the blockade is deemed to be null and void.
(4) NOTIFICATION-The notification must be made either by
belligerent Government or a Commander of a naval force acting o
behalf of his State, and must specify the date when the blockad
begins, the geographical limits of the coast line under blockade an
 220 PUBLIC INTERNATIONAL LAW
internationat law to a great extent. Every State is under an obligation
enect only to
international
sUch
Jaw
regulations
to govern the
or statutes
operation
which
of the
are
Prize
in conformity with
Courts.
The structure of Prize Courts is not uniform in all States, but
British Empire and the in the
United States. they are excluslvely judicial
tribunals.
I the Prize Courts confirm the legitimacy of
or vessel is considered to be 'a good
seizure, the cargo
prize and it oan be confiscated
the
by the Captor State. Once the decree of condemnation
the goods are disposed of is not the concern
is passed,
of international
howN
law, but
is solely a matter of municipal law.
BLOCKADE
MCQ No. 65
Oppenheim defines blockade
of the approach
a
to the enemy
as
"the blockading by men of war
coast or a part of it for the purposeo
preventing ingress or egress of vessel or aireraft of all nations" The
following ingredients of blockade must be carefully noted:
(1) Blockade must be by men of war, though it may be reinforcec
by other means.
(2) Blockade may prevent ingress or egress or both.
(3) Only enemy coast, or part of it, is to be blockaded.
(4) Blockade,
vessels or aircrafts
to
be admissible,
of all nations.
must be impartially applied t
(5) Blockade is a war-like operation.
(6) Blockade is not
a siege which aims at the capture of th
besieged place; it only intercepts intercourse by sea.
The Requlsites of a Valld Blockade
To be a valid blockade, it must satisfy the following requisites:
(1) PROPER ESTABLISHMENT. It must be established und
the authority of a belligerent
Government or its Naval Commander.
(2) EFFECTIVENESs.- Both the Declaration of Paris (1856) a
the Declaration of London (1909) emphasise the fact that
the blockac
to be valid, must not be nominal or a paper blockade, but it must
real and present danger to vessel in any attempt to pass through.
the opinion of Lord Chief Justice Cockburn (in GEIPLE V. SMI
(1826), a blockade is effective if the enemy's ships are in such numb
and positions as to render running the blockade a matter of dang
although some vessels may succeed in getting through.
(3) CONTINUOUSLY MAINTAINED.-The blockade must be co
nuously maintained. If the blockading force is driven off by a supe
force of the enemy, the blockade is deemed to be null and void.
(4) NOTIFICATION.-The notification must be made
either
belligerent Government or a Commander of a naval force acting
behalf of his State, and must specify the date when the block
begins, the geographical limits of the coast line under blockade
 NEUTRALITY
AND QUASI-NEUTRALTY
the perlod within whlch the
(5)IMPARTIALITY. neutral
A vessels 221
vessels. Any relaxatio , in blockade must may come out.
of neutral state, favour of be Imparllal
renders the blockadeanybelligerent againest
state to all the
Breach of Blockade inoperative. the excusion
and Its onsequences
Ships whichbreak blockade
area are liable to zure in by antering
nt operating the same way or leaving
bellga Dort the blockade. After as contrabandtheblockade
sent to a port forfo adjudication
capture, cargo,
by th
lares the ship as a good by a Prize Court.such ships mustthe
prize, it
If
the Prize be
It hould be noted
that a reach is liable to be confiscated Court
following three conditions of blockade
are fulfilled: takes place
1) There must be the only if the
(2) The party existence of an
which is alleged to actual blockade
be proved to have the knowledge ofhave offended the blockade
Some
must be proved.
act of violation, either the blockade.
in the nature
must
of egress or ingress
"Long Distance" Blockade
During the First World War,
distnce" blockade of Germany the British Navy
enforced a "long
at times more through ships and
than a thousand miles from squadrons operating
done as a reprisal tor the German the German ports. This
decision to attack British was
merchantmen in the waters surrounding and Allied
to the safety of the passengers
the British Isles without
or regard
objected to such a blockade as the
crew. The U.S.
and other States
being, inter alia, a blockade of
ports also, but France supported neutral
Great Britain, Great Britain justified
the action on the ground of changed
conditions of modern war, which
required that an effective blockade must
with the enemy able to cover commerce
passing through neutral ports.
The "long distance" blockade was re-instituted
in 1939 in the
Second World War, and its rational justification
was declared to be the
necessity for waging total economic warfare
against the enemy. During
both the WNorld Wars,
France followed the example of Great Britain.
Great Britain was able to enforce
such a blockade only because of its
predominant naval power.
A reference may also be made to "Pacific Blockade", discussed
in
Chapter 16.)
 CHAPTER 19
INTERNATIONAL ORGANISATIONS AND
THE UNITED NATIONS
INTERNATIONAL ORGANISATIONS

Internatlonal Organlsatlons and Internatlonal Law

While defining international law, it was noted that the
modern to
dency is to include international organisations as subjects ofn
national law. The position of an international organisation in
international
law has to be studied in three aspects nal
(1) The relation between one international organisation
and another
(2) The relation between international organisations
and States
(3) The relation between international organisations
and individuals
Each international organisation is the creation of multilateral
treaties. These treaties and the other rules which regulate the working
of the internatioal organisations might be considered as International
Constitutional Law. These constitutions of international organisations
though different from the constitutions of the modern States,
close resemblance to them. bear a
Organs of International Organlsationss
International organisations generally have three organs:
(1) Executive, (2) Legislative, and (3) Judicial.
(1) THE EXECUTIVE ORGAN
The executive functions of an international organisation are not
similar to the government powers of the modern States. Administrative
powers are exercised by certain organs of the internaitonal organi-
sations through other agencies or States. The activities of the interna
tional organisations can be either promotional or operational. In its
promotional activity, the international institution inspires co-operation
between States. For example, the Food and Agricultural Organisation
(FAO) and the World Health Organisation (WHO) are primarily
promotional in their activity. The operational activities of these
organisations consist of direct performance of certain duties. Modern
international institutions mostly perform promotional activities, rather
than operational activities.
(2) THE LEGISLATIVE ORGAN
The international legislative functions are performed by some
international institutions like the General Assembly of the United
Nations. the Internaitonal Labour Council and the World Health
Assembly. But the term international legislation' must be understooa
in a restricted sense. It is true that none of the international
institUO
222
 INTERNATI ORGANISATIONS AND THE U.N. 223

a world legislature. While the international institurtions

he
claim to
legislative function, they mostly do it ín the form of framing
Can
perlorm a Sometimes they might even adopt certain regulations.
conventions,
ons.
international field, the technique of delegated egislation
legislation
the i are
Even inordinate law-making are be to found. These mostly in the
subor dealing with the detailsof
and making rules or regulations
administration.
nalu
procedureand
INTERNATIONAL JUDICIAL ORGAN
(3) THE
functionsare vested in the International Court
Internationa judicial
also be vested in other International Tribunals.
Justice and| they may
of GENERAL FEATURES
three important general features of the functions
Starke points outorganisation:
international
of the than operational
They are mostiy promotional rather
(1)
are operational, they are, as a rule, empowered
2) Even where they to binding decisions.
investig or recommend, rather than make
only to international institutions are more in the
13) In most instances,
international conferences.
nature of
Finally, it must be noted
that to understand the true nature and
international institutions, it must be realised
ourpose of present-day
fhat these bodies present
a practical method whereby States have
organised themselves to meet the
needs and improve the welfare of
mistaken for "super States".
the individuals. They should not be
organisations have three organs
Though, generally, international
is no separation of powers under the
in their constitutions, there
organs exercise
constitutions of most international institutions. Their
quasi-judicial functions in the
legislative, judicial or quasi-legislative or
executive functions.
same way as they carry out administrative or
have executive organs
Some of these international institutions may not
in the strict sense of the term, as their functions may be
merely
consultative and advisory.
FUNCTIONS
Regarding the functions of international institutions, it must be noted
that predominantly their functions are "promotional", being directed
primarily to inspire co-operation between States. They may take
operational"activities in a direct way, only incidentall. Forinstance, the
United Nations Food and Agricultural Organisation or the World Heafth
Organisation have functions which are predominantly promotional rather
nan operational. Further, it must be noted that even when they have
perational functions, such functions will be, as seen above. mainily to
Vestigate or recommend, rather than to make binding decisions.
INTERNATIONAL ADMINISTRATIVE LAW

IS Well-known that, in the context of modern welfare States

nistrative law has developed as a branch of Municipal law of
224 PUBLIC INTERNATIONAL LAw
various States. This branch of law deals with the problems of legislative
judicial and quasi-judicial and discretionary powers. In recent time
there has been a similar development in the working of internation
institutions. The legislative function vested in some institutions
also resulted in the following practices:
(a) Delegated legislation,-Regulation-making powers and powe-
to amend or extend the annexes to international comventionsa
given to some international institutions.
(b) Subordinate law-making, as for example, power given to t
General Assembly of the United Nations to adopt its own rules
procedure, the Treaty Registration Regulations, the Statute of
Administrative Tribunal and the Staff Regulations, and so on.
t
Judicial or Quasi-judicial Powers
Some organs of the international institutions have been conferr-
with quasi-judicial powers. For example, the Commission of the Europe-
Economic Community can determine whether certain activities of Me-
ber States are compatible with the common market or not.
This, in turn, has resulted in the need for judicial review to ensL
that such organs do not exceed the legal powers. The Court of Just
of the European Community has been given such power. However, su
supervisory jurisdiction will not extend to questions of fact. Similarly
International Court of Justice has been empowered to exercise judie
review over the Administrative Tribunal of the United Nations.
Some organs of international institutions have been a
empowered to determine questions concerning the interpretation
application of the instrument which is the constitution of the instituti
There has also developed the practice of an organ of internatie
institution delegating an enquiry to a smaller committee or other be
Thus, it can be seen that International Administrative Law
been rapidly developing.
The Characteristics of International Organisaltons
International organisations are defined with reference to their l
functions and responsibilities. Their powers are limited by t
constitutions. In this sense, they differ from States. Every State
within its competence, prima facie, every activity, unless arule to
contrary can be shown under international law; whereas, in the
of international organisations, their sphere of activity is limited
determined by their constitutions.
As the International Court of Justice has observed,
"Whereas a State possesses the totality of international rights
duties recognised by international law, the rights and duties of an e
such as the Organisation must depend upon its purpose and func
as specified or implied in its constituent documents and practices
Internatlonal Institutlons-subjects of Internatlonal law
In the context of the traditional belief that States alone are sub
of international law, a new development with the emergence of se
 suemerJENM
ofmation internationall
international themselves.
themselves
bng
The international
lne States and
and institutions
maters Slales
ledto betweeninternational
inlefnational other
has
ollowing several
several
1)relationsbetween, Naitons,
between Naions, legal
relaitons United personality
personality. enjoy
relaitons Unilea legal instinutions
2) the
the
international answered in a
Wnelnertese is
inmemalonai
2 ADart
Apart
from
States,
states, Is
not
nor
or notto
stitutions e
nave
have grant
nstilutions guesion, as laws of the
0 tne
are free to
ree
other municipal bal States
dlales
that
tha the
tne ORGANS
in the appears
The systems.
7sonalily SUBSIDIARY
manner. t tneirlegal THE institution
0oherent personainy in AND international
ORGANS every
qrantsuchPRINCIRAL Organs-Generally,
THE organs: congress.
Prinoipal principal assembly or a
The folowing either an Member-States
the called
consists of
policy-making body, policy-
representative of all by the
(a) A elected
9generally a generaly
This bodly is body, which is
(b)An
executive administration of the
detailed
making organ.
to carry out the
Service Staff may be
Secretariat, permanent Civil
c) A institutions; a
international
constitution.
provided in the Organisations
Internatlonal
The Constitution of organisations vary in the
international
Constitutions of features. They are
Ihough the common
they have some
ase of each institution,
the following: HEADQUARTERS.-The consti-
0CONSTITUTIONAL SEAT OR or tne
usually fixes the location
an internaitonal organisation
of
headquarters.
constitution generally provides who the
EMBERSHIP- The subsequently admitted, and how
members are, who can be
hnay can
be admitted.
 226 PUBLIC INTERNATIONAL LAW
(3) CONDITION OF WITHDRAWAL OR EXPULSION OR SuSPEI
SION F MEMBERS Though are no
there general rules in thie
matter, the constitution may provide ater
tha a specified perioda
notice, the mem-bers might withdraw, and under some circumstanc.
the members can be expelled or suspended.
(4) VOTING RIGHTS Generally, every member has a votine
right, and the majority of the votes are Sutticient for adoptiona
decisions and resolutions. Sometimes. speial systems of voting miah:
be provided for by the constitution of the international institution
(5) PROCEDURAL RULES.- Generally, the constitution of the
international organisation might provide some detailed rules regardinc
the budget of the institution and also its detailed working. So far the as
detailed working of the institution is concerned, power to make rules
may be given to the policy-making body.
THE UNITED NATIONS
ts genesis.- Throughout the Second World War, the establishmen
of a general organisation of States for the purpose of safeguardino
peace and promoting international co-operation was regarded as an
immediate need. There was difference of opinion as to whether the
future internaitonal organisaiton ought to be a continuation of the
League of Nations, suitably altered, or whether it ought to take the form
of a more organic association on a federal basis. There was also a third
view as to whether the structure of the international institution ought to
be determined by a combination of the lessons of experience and the
requirements of the international situation at the oclose of the war.
The folowing declarations were responsible for shaping the form
of the United Nations:
(1) ATLANTIC CHARTER
On August 14, 1941, President Roosevelt and Mr. Churchill signed a
declaration known as the Atlantic Charter, which condemned the usee of
force and territorial aggradisement and envisaged security from
aggression and freedom to choose the form of government to the people.
(2) THE UNITED NATIONS DECLARATION
The Atlantic Charter was followed by the United Nations Decla-
ration, signed by 26 nations on the New Year Day, 1942, after Japan
had opened hostilities in the Pacific. This Declaration which was signed
at Washington, subscribed to the principles embodied in the Atlantic
Charter, each nation pledging itself to employ its full resources against
the enemy, and also not to make a separate armistice or peace with
the enemies.
(3) THE MOSCOW DECLARATION
This Decaration was issued on November 1, 1943, by the
Governments of Great Britain, the United States, Russia and China.
as the Declaration which recognised the necessity of establishing,
earlest practicable date, a General International Organisation
 INTERNATIONAL ORGANISATIONS AND THE U.N. 227

principle of overeign equality of all peace-loving States

on the membershio
sed mbership of all such States, large and smal,
open to international peace and security.
for the

and
mainten nce
of
DUMBARTON OAKS CONFERENCE
DUM
4) This Conference was convened in Washington in September, 1944,
purpose ating into action the principles of the Moscow
for the representatives of Great Britain, the United States
Declaration. The
Declaration.
Conference
China attended the Conference. was this
It in
ssia and
first blueprint
of the United Nations Organisaiton was prepared.
the
that blue-print is Known as Dumbarton Oaks Proposals.
This
YALTA
CONFERENCE OF FEBRUARY, 1945
) Roosevelt, Churchill and Stalin agreed in this Conference to call a
the constitution
nference of about 50 nations consider
to
General Confe the Dumbarton Oaks Proposals.
United Nations based on
ofth FRANCISCO CONFERENCE
G) SAN
of 50 nations met at San Francisco between
April 25
The delegates Yalta Agreement
and June 26,
1945. Dumbarton Oaks Proposals and the
Were fully discussed, and ultimately, the
Charter of the United Nations
International Court of Justice were unanimously
and the Statute of the
force on October 24, 1945.
adopted. The Charter came into
THE OBJECTS OF THE UNITED NATIONS MCQ No. 65
of the United Nations are set forth in the Preamble.
The objects
"We the people of the United Nations are Name any zw
The Preamble states that
objectives of ths
determined to do the following: 2
charter
(1) To save the succeeding generations from the scourage
of war.
marks
(2) To reaffirm faith in fundamental human rights and the dignity
in M.U. Apr. 2011
and worth of the human person.
(3) To reaffirm faith in the equal rights of men and women, and all
nations large and small.
(4) To establish conditions under which justice and respect for
International Law and international obligations can be maintained.
(5) To promote social progress and better standards of life and
larger freedom.
(6) To unite our strength to maintain internaitonal peace and security.
(To ensure that armed forces shall not be used, save in the
Common interest.

6 employ international machinery for the promotion of economic

10
and social advancement of all the people.
tmay be noted that the Preamble states that the object of the
Unite
Nations is to be achieved in two ways. The object of maintaining
rnational peace and security is to be achieved, firstly, by prohibiting
Use of armed forces, and secondly, by promoting conditions
to the preservation and the maintenance of peace
clve
228 PUBLIC INTERNATIONAL LAw
The Preamble realises the fact that peace is not mere absence t
war and further that war is the symptom of certain social and economi
mal-adjustments in society. Therefore, it sets before the United Natinn
the object of positively achieving peace by recognising the worth an
dignity of the individual, his fundamental rights and by promotin
social progress and better standards of life. The Preamble also realise
that war can be avoided only by the promotion of the economic an
social advancement of all people.
THE PURPOSES AND PRINCIPLES OF THE UNITED NATIONs
The purposes of the United Nations.In addition to the obiect
mentioned in the Preamble, Article 1 of the Charter enumerates th
purposes of the United Nations. The purposes are the precise an
detailed statements of the objectives as under:
(1) To maintain Internaitonal peace and securityTo achieve thi
pur-pose, the Charter undertakes to work for certain subsidiar
purposes, viz.
(i) To take effective colective measures for prevention and remova
of threats to the peace.
i) To take such measures for suppression of acts of aggressio
or other breaches to the peace.
(i) To bring about, by peaceful means and in conformity with th
principles of justice and international law, adjustment or settlement c
internaitonal disputes or situations which might lead to the breach of peace
The main purpose of the United Nations is to maintain internationa
peace and security, and thus to prevent use of force as a means
settling international disputes.
(2) The second purpose of the United Nations is to develop friendi
relations amongst nations, based on respect for the principle of equa
rights and self-determination of people, and take other appro-priat
measures to strengthen universal peace.
In fulfillment of this purpose, the United Nations strives to brin
about friendly relaitons, based on independence and equality of th
several peoples of the world.
3) The third purpose of the United Nations is to achieve inte.
national co-operation in solving international problems of economic
sOcial, cultural or humanitarian character, and in promoting an-
encouraging respect for human rights and for fundamental freedoms
The second and the third purpose of the United Nations strive E
creating positive conditions for prevalence of peace. As already obse
ved, the basic philosophy of the United Nations is that peace is ne
negation of war. "You cannot prevent a war by working against it. Yo
can prevent a war only while working for peace." The Charter realise
that so long as inequality prevails amongst States and States do ne
have political indepndence, so long as certain people of the world ar-
economically, socially and culturally backward, and so long as huma
rights and fundamental rights are crippled, there can be no peace
War is a crime, and particularly a crime against humanity.
 INTERNATIONAL
ORGANISATIONS
4) To achieve all these common AND THE
U.N.
centre tor armonising the action ends, the
U.N.intends
229
of
The Principles of United Nationsthe nations. to bea
The objects,
The rposes and
overlapping. But Article 2 enumerates
the principles
on might appear
the basis of which the Organisationcertain fundamental to be
(i) The orga tion is based is designed, principles
on the principle namely
equality ot its Members. of
Members, in order the sovereign
(ii) All
to ensure
benefits resul om membership, to all of them, the rights
shall fulfil
obligations assumed by them in accordance in good faith and
This part of.Article 2 imposes an with the the
present Charter.
obligation on
act in conformity with the Charter. all the members
to
(ii) AIl members shall settle their international
in such a manner that international disputes by peaceful
justice are not endangered. peace and security
and
iv) All Members shall retrain
in their international
h threat or use of force against the territorial relations from
independence of any Stale or in any integrity or political
other manner inconsistent
the purpose of the United Nations. with
(v) All Members shall give
the United Nations every assistance
any action it takes in accordance with in
present Charter, and shal
refrain from giving assistance to any State
against which the United
Nations is taking preventive or enforcement action.
(vi) The Organisation shall ensure that States
which are not
members of the United Nations act in accordance with these principles,
so far as may be necessary for the maintenance of international
peace and security.
It may be noted that these principles of the Charter makeit
mandatory upon the United Nations to ensure that non-member States
act in accordance with the principles of the Organisation "so far as
may be necessary for the maintenance of international peace and
security."Though the Charter cannot impose any legal obligation upon
non-member States, it asserts, in effect, the right to control their
Conduct with regard to the essential aspect of their foreign relations.
o that extent, it amounts to assertion of a right of intervention in
of the United Nations to
relation to non-member States. This right
lawTuly affect non-member States is supported by the unanimous
of Justice in the case concerning
ecision of the International Court service of the Uited Nations.
neparation for injuries suffered in the
Charter shall authorise the
V Nothing contained in the present are essentially within the
Nations to intervene in matters which require the Members to
nted any State, or shall present Charter; but this
mestic jurisdiction toofsettlement under the entorcement
t Such makers application of the
shall not prejudice the to the threat to the
PCiple (action with
respect
under Charter VIl acts of aggression
nereS
Pcace, breaches of peace and
 230 PUBLIC INTERNATIONAL LAW
The main problem before the United Nations is to re
things which cannot. apparently, be reconciled; to maintain inter two
peace and: ecurity on the one hand, and at the same
time, ational
the sovereign equality of its Members. An attempt to reconcile to respect
is made in para 7 of Article 2. According to this para, the Unitedthes wo
e
cannot intervene in matters which are essentially within the
jurisdiction of any State, unless such a matter happens to dons
nature of a threat to the peace, breach of peace or an act of be iicthe
aein
The principles of the United Nations Charter can be briefly sion.
rised as below: summ:
(i) The sovereign equality of all the Members of
the Organisatin.
() The Members are under duties of peaceful
settlement
participation in the system of collective security and of the enforcemarand of
of peace. nent
(ii) The Members have mutual benefits and obligations
Charter. under the
(iv) The Organisaiton can intervene in the
member States to the extent it is necessary for actions of the non.
international peace and security. maintenance af
(v) Matters of domestic jurisdiction are
of intervention by the United Nations.
excluded from the sphere
MEMBERSHIP
The Members of the United Naitons are of two kinds
(1) Original
Members.
(ii) Members subsequently admitted.
Original Members.-States are original Members by
folowing methods one of the
(a) By participating in the United Nations
Conference at San
Francisco (1945)
or
(b) Having previously signed the Declaration
by the United Nations
of January 1, 1942, and by signing the present
Charter and
ratifying it according to Article 110.
Members subsequently admitted.- According to Article 4, States
may be admitted as members of the United
Nations by a decision
reached by 2/3rds majority of the Assembly, on the recommendation
of the Security Council. The Security Council
recommends such entry
by a majority of seven Members of the Council including the concurring
Votes of the Permanent Members. (Article 27)
Qualifications of Members to be admitted.- Article 4 lays down
the following three qualifications of the States which can be admitted
as Members of the United Nations, namely,
(a) A State must be peace-loving.
(b) It must accept the obligations contained in the Charter.
(c) In the judgment of the Organisation, it must be able and willing
to carry out these obligations.
 INTERNATIONAL
ORGANISATIONs
nust be notedthat though
no State
ANDTHE U.N.
a Member, the Me nbers of has 231
Council must exercise theirthe General Assembly a right to
be admitted
as
decislon. to whether a judgment and of the as
in good
State is peace-loving Security
willing to carry out the obligations faith, in
and whether reaching a
of the Charter.
by the decision of the International it
This view is able and
inlon on Conditions of Membership
Court of Justice is supported
in its advisory
The present editor of Oppenheim in the United Nations
(1948).
fthe Security Council would is of the opiníon
that the members
either they exercise the so-called be improperly
exercising
and partisan interpretation right of veto that power
of what constitutes make a one-sided f
i also be noted that these a peace-loving
restrictions of the State. It
affect the univerality of the United admission of
Members
Nations.
Suspenslon and Expulsion.-
Article 5 provides
State, against which preventive or that a Member
enforcement action
bv the Security Council, may be has been taken
IDon the recommendation suspended by the
of the Security Council. General Assembly
Article 6 provides that the
General Assembly may
recommendation of the Security Council, expel upon the
persistently violating the principles any Member-State
which is
contained in the Charter.
It may be noted that this provision
regarding the expulsion of
further affects the universality of the United Nations Members
as an Organisation.
THE ORGANS OF THE UNITED NATIONS
The following are the major Organs of the United Nations:
() The General Assembly Write a short nota
(ii) The Security Council on Principal
organs athe
(ii) The Economic and Social Council United Naions
M.U. Nov. 2007
(iv) The Trusteeship Council
(v) The lInternational Court of Justice MCO Na. 67, 53
(vi) The Secretariat. 9 and70

In addition to the above, other subsidiary Organs, it found nece-

ssary, may be established in accordance with the Charter.
(i) THE GENERAL ASSEMBLY
The General Assembly consists of all the Members of the United
Nations. This is the only principal Organ of the United Nations which
vote
Consists of all Members. In this Organ, each Member has one in
once a year, but can meet
and 5 representatives. meets regularly
It
request
at
a special session, if summoned by the Secretary-General the at the
of the Members or
ot the Security Council or of a majority
in by a majority of the Members.
request of one Member concurred is mainly a
General Assembly
Functions and powers.- The supervision and
of discussion, revieW,
elberative body. It has power of the United Nations as a whole. lt can
criticism in relation to the work within Charter
matter the scope of the present
GsCuss any question or any
 232 PUBLIC INTERNATIONAL LAW
What is meant by or relating to the powers and functions of any Organ,
the General the onh
Assembly of Ihe
the
being that it cannot make any recommendations to the Members mitation
United Nations? (2Security Council on any question or any dispute orsituation or to
over the
marks) Security Council is exercising its functions. This restriction c Ch the
M.U. Nov. 2011
long as the Security Council is exercising its functions.
The Powers and functions of the General Assembly
by Starke as follows: are summ marised
(i) powers of discussion and recommendation
in relation
maintenance of international peace and security: thethe
(i) the direction and supervision of international
social co-operation economin.and
(ii) the supervision of the international
(iv) the consideration of information
trusteeship system:
as to non-self-governina
territories; in g
(v) budgretary and financial powers,
whereby it has exclusive
control over the finances of the United Nations; sive
(vi) powers of admitting, suspending
and expelling Member-States
(see above);
(vii) powers in relation to
the adoption of amendments
Charter; to the
(vii) the election of Members of other
organs;
(ix) the receipt and consideration
of reports on the work
United Nations; and of the
(x) the adoption of International
Conventions.
(ii) THE sECURITY cOUNCIL
The Security Council is a continuously
of 15 Member-States. China, functioning body, consisting
France, Russia, Great Britain and
States are the five permanent Members of United
non-permanent Members are elected for the Security Council. The
MCO No. 71
Assembly. According to Article 23 of two years by the General
Members are to be elected by the the 'Charter, these non-permanent
regard to the following: General Assembly paying due
(a) The contribution of Members of
nance of international peace and security the United Nations to the mainte
and to the other purposes.
(b) An equitable geographical
A retiring Member
distribution.
is not eligible for immediate re-election. Each
Member of the Security Council has one
States of the United Nations who are representative. The Member
Council may participate without vote in not Members of the Security
Council under the following circumstances: the discussions of the Security
(a) If the Council considers that
the
cially affected by any question being interests of that Member are spe
(b) If any Member State is a party
discussed by the Security Council.
by the Security Council, such to a dispute being considered
Member may be invited to participate.
In the latter circumstances,
even a non-member State can be
invited to participate without vote.
 INTERNATIONAL ORGANISATIONS AND THE U.N. 233

The nature
of the 5ecurity Counci.- In the opinion of the present
Oppenheim, the Security Council must be considered more
of
dito
an
ency
tor for preserving peace, rather than a comprehensive
as 1ent for the government of the world. It must also be noted that
instrumer
basic politica assumptions of the Charter, as conceived in
one ofthe Oaks and San Francisco Conferences, was
unanimity
Dum arton powers. The founders of the Charter were fully
amon ongst the great
of the League of Nations, which happened to be
ware of the fate
awa
paralysed on accc count of dissensions amongst great powers. To Are the UN Secunty
overcome such difficulty, the Security Council was constituted on tne council resouions
cuch dif passed under the
acSumption
assumptic that all the permanent Members of the Security UN charterbinding
basic mously in important questions. It is this principle on the states?
Counci must act
responsible for the five great powers having permanent seats Dec 2014
that was
als0 for their s0-called veto.
in
the Security Council and
Voting procedure in the Security Council- Each member of the
Cecurity Council has one vote. Decisions of the Security Councilon MCO No.72
nrocedural matters be made by an affirmative vote of eleven Members.
Decisions on all ther matters are made by an affirmative vote of
aleven Members, including the concurring votes of the permanent
Members; provided that as regards any decision under Chapter 6
dealing with pacific settlements of disputes and under Para 3 of Article
52, dealing with the encouragement of the development of the pacific
settlement, a party to a dispute must abstain from voting. It is this
necessity of the concurring votes of the five permanent Members of
the Security Council on all matters which are not procedural that has
led to the operation of the "veto". If one of the permanent Members
does not affirmatively vote in favour of a particular decision, the decision
is vetoed, and does not come into existence.
The Veto-The Veto of the permanent Members has been one of the
most controversial questions in the Charter. It may be pointed out that one
of the cardinal principles of the Charter is the sovereign equality of allits
Members. Obviously, it appears that the Veto of the permanent Members
is inconsistent with the principle of sovereign equality of the Members; but
the political reason for giving this Veto to the permanent Members has
been already referred to. It was felt that the lack of unanimity amongst the
permanent Members might split the United Nations, and the Organisation
might meet the fate of the League of Nations.
Starke refers to another justification for giving this power of Veto to
the permanent Members. According to him, as the permanent Members
bear the main burden of responsibility for maintaining peace and
security, no permanent Member should be compelled by the voteof
the Security Council to follow a course of action with which it disagrees.
hough it was understood at the San Francisco conference that the
9reat powers would not use their powers wilfully to obstruct the
operations of the Security Council, in practice, the Security Council
nas been stuititied on account of the veto. The Security Council, which
Was expected to be in continuous session and to attend to situations
234 PUBLIC INTERNATIONAL LAW
of emergency when the international peace and security wa wa
threatened, has been paralysed on account of the veto.
The only occasion when the Security Council could act with are:
promptitude was during the Korean Conflict, 1950-53. In this Conflic
the Northern Korean troops had crossed into Sourth Korean territor
in June 1950. Russia remained absent from the Security Council as
protest against the representative of Nationalist China Governmer
occupying the seat of permanent Member in the Security Council, The
Security Council passed resolutions finding that a breach of peace
had been committed, recommending assistance to the South Koreat
authorities and providing for a unified United Nations command unde
United Nations direction. Russia, which soon returned to the Security
Council, challenged the validity of the resolutions on the ground tha
China, which was a permanent Member of the Security Council, was
the Communist China and not the Nationalist China. Both these
objections of Russia were met. So far as the first objection was con-
cerned, it was maintained that concurring of votes of the five permanent
Members was necessary only when all the five Members were present
Security Council. Secondly, it was ruled that Nationalist China
was the true representative of China, the permanent Member.
Powers and functions of the Security Council.- In contradiction
with the predominantly deliberative character of the functions of the
Assembly, those of the Security Council are primarily of an executive
nature. The executive function of the Security Council is almost exclu-
sively confined to the maintenance of international peace and security
According to Article 24 of the Charter, the primary responsibility
for the maintenance of international peace and security is conferred
on the Security Council in order to ensure prompt and effective aciton
by the United Nations. In discharging these duties, the Security Council
acts in accordance with the purposes and principles of the United
Nations. The Members of the United Nations agreed to accept and
carry out the decision of the Security Council in accordance with the
present Charter. Though the primary responsibility for maintaining
international peace and security lies with the Security Council, this
responsibility is not exclusive. It is also to some extent shared by the
General Assembly and regional agencies that might be created under
Chapter ViI. The powers and functions of the Security Council can be
broadly classified into the following categories:
(A) Powers and functions regarding pacific settlement of disputes
(Chapter VI);
(B) Powers and functions regarding action with respect to threat to
the peace, breaches of the peace and acts of aggression (Chapter VI);
(C) Other executive powers regarding the working of the United
Nations as a whole.
(A) Pacific settlement of dispute.- The Security Council can, when
it deems necessary, call upon the parties to settle their disputes by
negotiation, enquiry, mediation or such other peaceful means of settling
 INTERNATIONAL ORGANISATIONS AND THE U.N. 235
are the resuir
ac. The Security Council has this power if the continuance of a What
Ceaselire viola
dispute the maintenance of international peace of under Iaterna
te likely to endanger
dispute is tions
dispecurity. If the parties to a dispute fail to settle it by meansbonal Law?
M.U, May 2017
indicated above, they refer
it to the Security Council. If the Security
aated
Councll leems that the continuance of the dispute is in fact likely to
peace and security, it decides-
danger
ende
the appropriate procedures or methods of
whether to erecommend
Security Council may recommend appropriate
tlement.-The
a dispute or a situation, the
ocedures or methods settlement
of of
proc whic. is likely to endanger the peace and security. Ifitis
of which
ntinuance of
ntinuance
it Court of Justice.
is to be referred to the International
legal dispute,
ae the
at) whether to recommend actual terms of settlement.-If all
so request, the security Council may make recommen-
narties to a dispute to a pacific settlement of the dispute.
dations to the parties With a view
investigate underArticle 34.-The Security Council
(i) whether to
any dispute or any situation which might lead to
can investigate in order to determine
international friction or give rise to a dispute,
situation is likely to endanger
whether the continuance of the dispute or investigation
maintenance of international peace and security. Such
the
Council on its own initiative or on a
may be made by the Security
attention of the Security Council or a
Member State bringing to the
it
bringing it to the
non-member State which is a party to the dispute
In addition to these, the General
notice of the Security Council.
bring to the notice of the
Assembly or the Secretary-General may also
which threatens the
Security Council, any situation or dispute
mainteance of peace and security.
of peace and
(B) Action with respect to threat to peace, breach
Security Council
acts of aggression.-The powers and functions the
of
can be broadly enumerated thus:
(i) The Security Council must determine the existence
of any threat
to the peace, etc.
to prevent an
i) It must take certain provisional measures
aggravation of the situation.
of the
(in) It may decide what measures not involving the use
armed forces are to be employed.
(IV)It may take measures involving the use of the
armed forces.
These powers are discussed below.
the existence of any threat
) The Security Council shall determine
o the peace, etc-The first function of the Security Council regarding of
tne preventive or enforcement action is to determine the existence
any threat to the peace, breach of the peace or act of aggression.
are to be
nereafter, it makes recommendations as to what measures
taken to maintain or restore international peace and security.
(0) Provisional measures. In order to prevent an aggravation
of

the situation, the Security Council may, before making

recommendations or deciding upon the measures to be taken, call upon
 236 PUBLIC INTERNATIONAL LAW

the parties concerned to comply with such provisional measures ures

deems necessary or desirable. Such provisional measuree as
however, without prejudice to the rights, claims or compensation ar
parties concerned. th
(ii) Measures not involving Use of armed forces- The
Council may decide what measures, not involving the use ofSecs ar
forces, are to be employed to give effect fo its decision, and it ma me
upon the Members of the United Nations to aPply such measures TH
ay be in the form of complete or partial interruption of
economic rel
tion and means of negotiation and the severance of diplomatic relatione
(iv) Measures involving use
of armed forces.-If the Securit-
Council considers that the above-mentioned measures are inadeauat
it may take such action by air, sea, or
land forces, as may necessar
to maintain or restore international peace and security. be
may include demonstration, blockade and other operations Such actio- se=
by
land forces of Members of the United Nations. The Membersair, the
United Nations are under an obligation to make available to of
Council, on its call and in accordance with special the Securit-
or-
Are the UN Security
agreements, armed forces, assistance, and facilities agreement
council have power including rights
to take military of passage necessary for the purpose of maintaining
action the peace and international
against security.
state which does In its Advisory Opinion of 1971,on the
not comply with its Legal Consequences for States
reservation? Give a
ofthe Continued Presence of South Africa in Namibia (South
West Africa),
historical precedent the International Court of Justice ruled that the Security Council's primary
governing the authority and responsibility for maintaining peace entit-led the Council
situation. to make a binding determination (as it did in a Resolution in
Apr. 2014 the continued presence of 1970) that
South Africa in the Territory of South West
Africa was illegal, because its mandate for the Territory
through failure to comply with its obligation to submit to had terminated
of United Nations organs. (1.C.J. Reports, (1971) 16) the supervision
(C) Other executive powers of the Security
Council regarding the
United Nations as a whole.- The Security Council, being
executive organ of the United Nations, has several executivethepowers main
and functions. They are as follows:
(1) Control and Supervision of Strategic
Area.- Trust Territories
According to Article 83 of the Charter, all functions of the United
Nations relating to strategic areas, including the approval of the terms
of the trusteeship, are to be
exercised with the assistance of the
Trusteeship Council.
(2) Regional Agencies and Arrangements
The Member States of the United Nations may
arrangements or agencies for dealing with enter into regional
maintenance of international peace and security, matters relating to
provided sucn
arrangements are consistent with the purposes and principles of tne
United Nations. The Security Council shall encourage
the developmen
of pacific settlement of local disputes through such regional arrange
ments. It shall also utilize, where appropriate, such regional arrange
ments or agencies for enforcement action under this authority.
 INTERNATIONAL ORGANISATIONS AND THE U.N. 237

Members
Admission, Suspension and Expulsion of
(3) Council has the power of recommending States for
The Security
The member bership in the United Nations. For some time, was
it
ion to
admission
the General Assembly of the United Nations could suo
thought that own) admit members to the United Nations the
if
on its
muto (i.e.,
Council could not make a recommendaiton
on account of the
curity veto. But the International Court of Justice has given
ration of the Assembly could not
dvisory opinion to the effect that the General
ts advi own ision admit a State
to the membership of the United
h its in case the Security Council failed to make a recommendation.or
by
jons
action can be aken by the General Assembly to suspend
Similarly of the Security Council.
member only. on the recommendation
pel a rights and privileges of a Member
The Security Council may restore the
privileges are suspended by General Assembly.
rights and
state if such Judges of the lInternational Court of
Justice.
(4) Election of the MCO 7
No. 73
MCO No.
by the Security Council and
members of the Court are elected
The
General Assembly.
by the
the Charter
(5) Amendment of United Nations
A general conference of the Members of the
(i) two-
reviewing the Charter may be held by
for the purpose of seven
of Assembly and any
thirds votes of the members
Council.
members of the Security can be
Any piecemeal amendment to the present Charter
(i)
of the General Assembly and
adopted by a particular majority
the Security Council.
RELATION BETWEEN THE SECURITY COUNCIL
THE
ASSEMBLY
AND THE GENERAL
Assembly is mainly a deliberative
As already observed, the General main
the Security Council is the
and recommendatory body, whereas
many executive functions are
executive body. Yet, as seen above,
General Assembly jointly.
exercised by the Security Councll and the
Maintenance of peace and security
maintenance of peace and
The primary responsibility for the
yet the General Assembly
Security belongs to the Security Council;
recommendation. According
nas certain powers of consideration and
To Article 11 of the Charter, the General
Assembly may consider the
maintenance of international
general principles of co-operation in the governing disarmament
peace and security, including the principles
recommendation to
ana the regulaiton of armaments, and may make
both. The General
ne Members or to the Security Council or to of
may discuss any question relating to the maintenance
sembly make recommendations to
ernational peace and security, and may or to both. The General
e concerned States or to the Security Council Council to situations
RSSembly may call the attention of the Security
security.
wnich are likely to endanger international peace and
 PUBLIC INTERNATIONAL LAW
238
This power of the General
Assembly to make recommendations
while the Security Council is exercisi
subject to one restriction, i.e., or situation, the General Assemb
its jurisdiction over any dispute
regard to the dispute
cannot make any recommendation withrequests.
situation unless the Security Council so
Subject to the limitations referred above, the General Assemh
to
in questions of international peac
has, in fact, taken a leading role Arab-Palestire
and security. Its contributions towards settling the
dispute of the Suez Canal Zone are notable.
The Effect of Veto
What do you Though the Charter intended the General Assembly to be
understand by the deliberative and recommendatory body, yet certain developmen
tem VETOPOWER during the working of the Charter have given the General Assemb
of the permanent
members of the greater importance than was intended in the Charter. On account
Security Council ? the unfortunate cold war atmosphere and the consequent vet
M.U.
Nov. 2015 exercised by certain powers, the Security Council has almost bee
alysed regarding its ability to take action for either solvin
international disputes or for maintaining international peace an
security. This almost complete paralysis of the Security Council gav
additional importance to the General Assembly. As there is no vetoi
the General Assembly, and as each Member State has one vote, th
General Assembly has become, to a greater extent, a forum off th
opinion of the Member States.
The main consequences of the veto can be briefly summed up a
follows:
(1) As the Security Council, which is to work continuously an
which should be in a position to take prompt steps when internationa
peace and security are threatened, is incapable of taking such promp
action on account of the conflict among the permanent Members, th
need for some organ of the United Nations which would be continous
in session and which would take such action was felt. The Genera
Assembly generally sits once in a year. Therefore, the Genera
Assembly created in 1947, an interim committee, popularly knowna
the "Little Assembly" to assist the General Assembly in its duties
relation to maintaining peace and security. But it appears that thi
Little Assembly has not made any significant contribution.
(2 As taking of any preventive or enforcement measure by th
Security Council would be impossible on account of veto, the Genera
Assembly passed in November, 1950, a resolution known as "Unitin=
for Peace" resolution.
(a) According to this resolution, a special session at 24 hourS
notice on the vote of any seven Members of the Security Council or a
a majority of the Member States could be convened if the Securit
Council failed to act because of the veto.
(b) The resolution also provided for setting up a
Peace Observatior
Commission to observe and report on the situation in any area where
international tension threatened international peace and security.
 INTERNATIONAL ORGANISATIONS AND THE U,N. 239

resoltuion also provided for a Collective Measures Commi

iel The
to consider methods which might be used collectively to maintain
Consider
tee strengthen ternational peace and security.
of this resolution is challenged by
t may be noted that the legality
It is argued that if the General Assembly can call upon
many writers.
Member States to take collective measures, such a step would
the int of force inconsistent with the purpose of the United
amount to the use
laid down in its Art. 2. It is also argued that both
Nations Charter, as
Dumbarton Oaks Proposals and the San Francisco Conference
powers for taking collective
dcllalised unanimity amongst great
visua to this resolution is to
measures. The resolution that goes contrary
in maintaining international peace and
trengthen the ited Nations
relieve it of the stultifying effect of the veto in the
security and to resolution is not illegal or
Security Council. It can be said that the
Charter.
contrary to the
(3) The General
Assembly recommended, in 1950, the appointment
Commission of Good Offices.
of a Permanent
setting up a panel of individuals to serve
(4) It also recommended
of Enquiry and Conciliation.
on the Commission
In brief, it can be said
that the General Assembly has played quite
in maintaining international peace
and security, and on
a vital role Council, the importance of the
account of the veto in the Security
in practice.
General Assembly has grown
NATIONS
PEACE-KEEPING MACHINE OF THE UNITED
in the Charter of the
Though the term "peace-keeping" not used
is
has evolved over a
United Nations, yet the concept of peace-keeping
U.N. Emergency Force in
period of time. Some illustrations are: the
Organisation in Palestine.
the Suez area, the U.N. Truce Supervision
in the Dominican Republic
the U.N. Force in Cyprus, the U.N. Mission
Observer Group in
established in May, 1965), and the U.N. Military
variety of the tasks
India and Pakistan. These would not exhaust the
of U.N. peace-keeping.
which are contemplated by the protagonists
In recent years, the "peace-keeping" concept
has emerged to
projected programmes
receive as much attention as other current or
on Peace-keeping
of United Nations action. A Special Committee
Assembly Resolution
Operations has met in pursuance of a General
or February 18, 1965, for "a comprehensive review of the whole
aspects. The issues
question of peace-keeping operations in all their
ciroumstances, in the absence
volved in peace-keeping are, in what interposition forces, groups,
Or Security Council enforcement action,
to areas of conflict, with
missions can be sent by the United Nations of peace, or the
unctions related to the restoration or maintenance truce
mitigation of deteriorating situations, such as, for observation,
restoring freedom of movement.
ervislon purposes, negotiation, and Council has
a mission operates, unless the Security
Such
POVIded to the contrary, the operation of the mission does
not depend
 240 PUBLIC INTERNATIONAL LAW
on the consent of the concerned States. The Mission is
the location of the forces, the importation of supplies,
free to decid
with the conflicting entities or forces. The Security and contact-
ac
Council alone
under the Charter, executive responsibility to establish has
operate
force compulsorily in the territory of a Member State. and
However, it may be noted that, for
forces, whether the consent of the hosttheestablishmentof peace-keepinc
been a subject of controversy. In addition States is necessary or not ha
to this, the problem
contribution towards expenses of the force is also difficult
to solve.
(ii) THE ECONOMIC AND SOCIAL COUNCIL
The Economic and Social Councli of the United
of 27 members elected by the General Nations consiste
by rotation, and are elected for a term
Assembly. The members retire
of 3 years.
Functions and Powers
The Charter correctly appreciated that
stability and well-being were necessary creation of conditions o-
relations among nations. Therefore, an for peaceful and friendl
United Nations to promote higher
obligation was imposed on the
and conditions for economic and social
standards of living, full employmen
Social Council is the main body which progress. The Economic anc=
towards creating conditions of stability has to promote these measures=
and well-being.
Its powers are briefly the following:
(1) It may make or initiate
studies and reports with respect tointerna-
tional, economic, social, cultural, educational,
(2) It may make recommendations
health and related matters.
to the General Assembly, to the with respect to any such matters
to the specialised agencies members of the United Nations, and
concerned.
(3) It may make recommendations
respect for, and observance of, human the purpose of promoting
for
freedoms for all. rights and fundamental
(4) It may prepare draft Conventions
Assembly, with respect to matters falling submission to the General
for
within its competence.
(5) It may call International Conferences
its competence, on matters falling within
(6) It may co-ordinate activities of
obtain regular reports from them. the specialised agencies, and
(7) It may communicate its
General Assembly and also to the observance on these reports to the
Security Council.
(iv) THE TRUSTEESHIP COUNCIL AND
THE INTERNATIONAL TRUSTEESHIP
SYSTEM
The Charter provides for the Trusteeship system,
basic objects: with the following
(1) To further international peace and
security.
(2) To promote the political, economic,
social and
advance-ment of the inhabitants of the Trust territorieseducational and thelr
progressive development towards self-Government or independence.
 INTERNATIONAL ORGANISATIONS AND THE U.N. 241

encourage respect for human rights and for fundamental

a1 To
(3) distinction as to race, sex, language or religion.
doms for all,without
(4) To
ensure equal treatm in social, economic and commercial
United Nations and their nationals.
for all members of the
tars for.
matters
Territories
Tust the to following categories of territories
TheTrusteeship shall apply mandate at the commencement of the
under
(a) Territories held
Charter;
may be detached from enemy States as a
(b) Territories which
World War; and
result of the Second by States
c)Territories voluntarily placed under the system
administration.
responsible for their
TRUSTEESHIP COUNCIL
Membershlp
of the following members:
The Council conslsts
trust territories.
(1) Members administering
Security Council who are not administering
(2) Members of the
trust territories.
(3) Members elected by the
General Assembly in such number as
that the total number of the members
of
may be necessary to ensure
members of
Trusteeship Council is equaly divided between those
the do
administer trust territories and those who
the United Nations who
not.
Functions of the Trusteeship Councll Inter
Trusteeship Council is to supervise the Explain:
The main function of the national Labour
work of the administering authority. organlzation
ORGANISATION AND Composition. Role
THE INTERNATIONAL LABOUR and function.
OTHER SPECIALISED AGENCIEs Apr. 2015
(ILO) was created under
The International Labour Organisation
the section dealing with
the Treaty of Versailles, 1919. Subsequently,
with the treaty, and it was re
the Organisation was disassociated Wite a short note
Organisation. The consti-
formulated as the constitution of the Labour on: Inter-national
TUion was amended in 1945 and 1946,
and now it is a specialised Labour Organisa
agency associated with the United Nations. tion.
is to promote inter- M.U. Nov. 2005
ObjectsThe main object of the Organisation
industry and labour, so that
May 2008
national co-operation in the sphere of Nov. 2007
could be maintained
minimum as well as unlform labour standards Nov. 200S
Organisation, economic
Throughout the world. In the absence of such an Apr. 2009
in the deterioration of the Nov. 2009
Competition between States might result Nov. 2010
accordingly directed its
Condition of the labourers. The Organisation has May 2012
into line with
etorts to bring the legislation and practice of each State according to Nov. 2012
of labour
the idea of social justice and the treatment Nov. 2013
Apr. 2015
enlightened modern conception. May 2019
 242 PUBLIC INTERNATIONAL LAW
What is meant by Organisation.- The International Organisation is represented
"ILO "? (2 marks) b
M.U. Nov. 2011
organs of Governments, employers and employees. In this sense,
Nov. 2013 has a tripartite character. This structure of the I.L.O. is of unique
April 2015 significance in the development by States only, but in theIL.L.O., othe
Nov. 2015 groups or interests are also represented. The Organisation
Apr. 2016 main organs
has three

(a) The International Labour Conference.

(b) The Governing Body.
(c) The International Labour Office.
The International Labour Conference is a policy-making anda
legislative body. The Conferene promotes labour legislation in each
State by adopting recommendations and conventions,
The Governing Body is the executive organ of the Organisation. IE

is also represented by the three interests mentioned above: Govern-

Whatis ILO? State ment, employers and employees.
2 objects of ILO.
Nov. 2012 The third organ, the International Labour Office, representing the
Apr. 2016 administrative or Civil service staff of the Organisation, discharges
Jan. 2019 functions similar to those of the United
Nations Secretariat.
Since 1970s, the organization is involved in drafting laws and
legislations for the betterment of labour standards and working
conditions. It has also concentrated on the hygienic working
environment and has given special importance to the welfare of
women and children employment.
Give examples of The organization was deemed successful inits efforts and was
two legislations therefore awarded the Nobel Prize for Peace in 1969. The member
based on Inter
national convention States are expected to follow the said rules and the ILO acts as a
for improvement of supervisory body to monitor the member states. Such supervision
workers conditions. ensures that the
member states do not violate the law and rules.
.O DEC E010
Those members who have adopted the rules and conditions of the
LO also make reports and submit them regularly with the ILO. The
member states are also required to make report and submit it with
the organization.

The Speclallsed Agencies

There are a number of specialised agencies which concern them-
selves with certain aspects of the world affairs. The Food and
Agricultural Organisation (FAO) of the United Nations, for example,
concerns itself with improving living standards and nutrition of people
and with promoting increased production and more efficient distribution
of food and agricultural products.
 INTERNATIONAL ORGANISATIONS AND THE U.N. 243

ha
United Nations Educational, Scientific and Cultural Wte e thorn note
on: UNESco
rganisation (the UNESCO) concerns itself with the field of education,
nisation (the MU. Apr. 2006
and science. The objects of the UNESCO have
oultural knowledge
May 2012

uandescribe
described in these words: "The purpose of the organization is Nov 2013
been by promoting collaboration among Apr. 2014
contribute to peace andsecurity Nov. 2015
to througn education, science and cultural effort, to futher Jan 2019
nations, rule of for
for justice, for the law and the human
niversal respect
fundamental freedor which are affirmed for the peoples where is the
and
without distinction of race, sex, language or religion by permanent
rights
rign
world, headquarier of
of the of the United ations". The UNESCO prepares plans UNESCO?
this Charter
programmes for the progress of education, science and culture April 2013
and with the co-operation of the various states.
throughout the world
Postal Union Organisation concerns itself with the
The Universal throughout the world.
improvement of postal services
have fulfilled two
According to Starke these specialised agencies
objects
(0) They have not only acted
as buttresses to the United Nations,
themselves drawn strength from their association
with
but they have
the United Nations.
national authorities of different States
(i) They have involved the
association with the work of
into more direct and continuous
international Institutions.
JUSTICE
(v) THE INTERNATIONAL COURT OF Note en: Interna-

International court of justice can be termed as na

the successor to Justice.
cour o
The main objective of Nov. 2012
the Permanent Court of International justice. Dec. 2014
the court is to settle international disputes or
situations as per the
Jan. 2019
to it also
principles of justice and international law. And secondly,
acts as an advisory body to opine on legal questions that
are put
forth by any institution or organization recognized and
authorized by
the Charter of the United Nations.
cannot be Write a shon note
The court consists of 15 judges which requires that two judges
required to be on: Compostion
the nationals of the same state. The judges of this court are
of the Intsnationa!
ndependent. The court has its president and Vice- President. CouTt of Justice

However, the International Court of justice has been criticized on the M.UL Apr. 2018
are not adequately qualified on legal
rund that it is partial and the judges Court is sometimes MCa No. 74
religion, culture of the disputing states. The
Ke
aso criticized for unfair appointment of judges.
he International Court of Justice at the Hague is a very important MCQ No. 75
organ of the United Nations. It has succeeded the Permanent Court of
nternational Justice created under the covenant of the League of
Nations. The
IOns. This is the principal judicial organ of the United
 244 PUBLIC INTERNATIONAL LAW

rules concerning the constitution, Jurisdiction and

procedure nfof
Court are set out in a Statute annexed to the Charter. All Memb the
the United Nations are ipso facto parties to the Statute, but eveners o
non
non-
member States may become parties to it, on conditions to
be
down in each case by the United Nations General Assemblv. upon aic
recommendation made by the Security Council. the

Structure of the Court

The Court consists of 15 Members, but two or more Memha.
nbers-
cannot be nationals of the same State. The Judges of the Coirt.
MCQ No. 76 elected by the General Assembly and by the Security Council, fram
list of persons nominated by the national groups in the Perman
Write the role Court of Arbitration. The Judges of
the Court are elected for 9 veaent
played by Inter- and mav be re-elected. They ars
national Court of retire by rotation. No Judge of
Justice in world may exercise any political or administrative function or engage in
the Cou
peace. Give sui other occupation of a professional nature. The any
table examples. Court elects its President
and Vice-President for three years. They may be re-elected.
Nov. 2013 The Cotrt
mains permanetly in session, except during the judicial
a quorum of 9 Judges is sufficient to constitute the Court.vacation; but
of the nationality of each of the parties retain
The Judges
their
case before the Court. If the Court includes upon the right to sit in the
bench a judge of
the nationality of one of the parties, any other party
may choose a
person to sit as a Judge.
The Competence and jurisdiction of the Court
Only States may be parties in cases before
jurisdiction of the Court can be divided into two the Court. The
categories:
(i) To decide contentious
cases; and
(i) To give advisory opinion.
Contentious Jurisdiction
What is the main
objective of Inter The contentious jurisdiction of the Court comprises
kinds of cases
the following
national Court of
Justice? (a) All cases which the parties refer to it.
Apr. 2014
(b) All matters specially provided for in the Charter of the United
Nations.
(c) All matters specially provided for in the treaties and conventions
in force.
It should be noted that the basis of the contentious jurisdiction of
the International Court of Justice is that
States give their consent,
either specifically in a case or generally under the
treaty or convention. Charter or under a
State the procedure Compulsory Jurisdictlon
followed by the
countries to appro The jurisdiction which does not arise out of consent of the States
achthe International in a specific case, is called compulsory jurísdiction, and sUch
Court of Justice. compulsory jurisdiction is exercised by the Court under the following
M.U. Dec. 2016 two circumstances:
 INTERNATIONAL ORGANISATIONS AND THE U.N. 245

41 The Court exercises

compulsory jurisdiction when the parties
(1)
hound by treaties or conventions in which they have agreed that
bound
are jurisdiction over certain categories of disputes;
Court should have
the example,
oxample, disdisputes arising out of the working of the specialised
for
aencles like the l.L.O. give compulsory jurisdiction to the International
agend
Justice.
Court of
jurisdiction can be exercised by
(2) The other kind of compulsory
Court if the parties concerned are bound by declarations made
the 2 of Article 36 of the
under the so called "optional clause" (Para may,
Statute). According to this clause, the State parties the Statute
to

at any time, declare

that they are recognised as compulsory subjects
jpso facto, and
without special agreement in relation to any other
jurisdiction of the Court in all
State accepting the same obligation, the
legal disputes concerning:
(a) The interpretation of a treaty.
law.
(b) Any question of lnternational
if established, would constitute
(c) The existence of any fact which,
obligation.
a breach of international
(d) The nature of extent of the
reparation to be made for the
breach of an international obligation.
These declarations may be:
(1) unconditional; or
or certain
(2) on condition of reciprocity on the part of several
States; or
(3) fora certain period of time only.
subject to certain
The States can also make such declarations following:
reservations. The reservations may be regarding the
(1) Past disputes;
are available;
(2) Disputes for which other methods of settlement
(3) Questions within the domestic jurisdiction
of a State:
hostilities.
(4) Disputes arising in time of war or
International Court
To maintain the continuity with the Permanent
of the International Court
of Justice, Para 5, Article 36 of the Statute
Article 36 of the
of Justice provides that the declarations made under
are deemed to
Statute of the Permanent Court of International Justice
International Court
be acceptance of the compulsory jurisdiction the
of
of Justice for the period during which they still have
to run and in
accordance with their terms.
According to its decision in the case concerning the Aerial Incident
of July 27, 1955 (Preliminary Objections), such former declarations
MCQ No. T

are only transferable if made by State parties to the present Statute

who were represented at the San Francisco Conference which drew
up that Statute, and a former declaration made by any other State
246 PUBLIC INTERNATIONAL LAW
party to the Statute lapsed in 1946 when the Permanent Cou
International Justice ceased to exist. However, under ourt of
the Courte
decision in the Preah Vihear Temple Case (Preliminary Objections
declaration made after 1946 by any such other State, a
renew a declaration under the "Optional Clause" in the purportina to
is nonetheless valid as a declaration under the present earlier Statito
owing to the dissolution of the Permanent Court, it
Statute, becaus
could have no
application, except in relation to the present Court.
At one time, it was thought that a
third category of compulsorv
jurisdiction existed, namely, where under Article
36
Nations Charter, the Security Council recommends of the United
dispute to refer their case to the Court if the the parties to a
ispute is of a legal
character. But after the decision of the International
the Corfu Channel case [Preliminary Objection
Court of Justice in
(1948)), it is now settled
that if a Member State has not accepted
International Court of Justice under a specialthe jurisdiction of the
treaty or convention under a declaration agreement or under a
made according to Para 2 of
Article 36 of the Statute, compulsory jurisdiction
by the Court. cannot be exercised
Advisory Opinion
The International Court of Justice may give
on any legal question, at the request an advisory opinion
of anybody authorised by, or in
accor-dance with, the Charter of the United Nations,
request. It must be noted that an advisory to make such a
opinion can be sought on
legal questions only. An advisory opinion
lacks the binding force of
judgments in contentious cases. Even the
had requested for such advisory opinion is
organisation or organ which
though it may choose to treat it as of
not bound by such opinion,
the nature of compulsory ruling.
But so far as the States are
concerned, they may, by treaty or
agreement, undertake to be bound by
advisory opinions on certain
questions. Under any circumstances, advisory
pursuasive authority. opinions will have strong
Such advisory opinion may be sought by the
the Security Council of the United General Assembly,
Nations Organisation, and by the
other organs of the United Nations and
authorised by the General Assembly. An the "specialised agencies i
advisory opinion can only De
sought on legal questions, and while giving
exercises a judicial function. However, it must such opinion, the Court
WOuld not give an advisopry opinion on
be noted that the Court
a purely academic question.
The Court has also a discretion to
refuse to give an advisory
opinion upon other grounds, such as that
the questions submitted
involve other than legal aspects, or is
embarrassing.
The procedure to be followed in the case of advisory opinion is the
following:
 INTERNATIONAL ORGANISATIONS AND THE U.N.247
1) A written request must be made before the Court, containing
statement of the question upon which an opinion is required,
act stat
exact
n question.
accompanied by all documents likely to throw light on the
and torthwith gives notice of the request to all
(2) The Hegistrar then
also invites
Ctates entitled to appear before the Court. The Registrar
if it is the opinion of the
any State entitled to appear before the Court,
Court able to furnish information on the question.
written or oral statements.
(3) The Court then receives
delivers its advisory opinion in open Court
(4) The Court finally
(vi) THE SECRETARIAT
United Nations is the Secretariat. comprises
It
The sixth organ of the require.
of a Secretary-General
and such stafi as the organisation may
upon
is appointed by the General Assembly
The Secretary-General a Chief
the Security Council. He acts as
the recommendation of all meetings of the General
Administrative Officer of the Organisation in
Economic and Social Council
Assembly, of the Security Council, of the annual
Council. The Secretary-General makes an
and of the Trusteeship
the work of the Organisation. He
report to the General Assembly on
Security Council any matter which,
in
may bring to the attention of the
maintenance of international peace and
his opinion, may threaten the
security
maintain the exclusive internationa/
The Secretary-General must
or receive instructions
character of the Secretariat. He should not seek
from any Governament or from
any other authority external to the
Each member of the
Organisation, in the performance of his duties.
to respect the exclusive inter
United Nations is under an obligation
and his staff.
national ocharacter of the Secretary-Genearl
by the Secretary-General
The staff of the Secretariat is appointed
General Assembly. Though the
under regulations established by the
staff is the necessity
paramount consideration in the employment of the
efficiency, competence and integrity,
of securing the highest standard of
of recruiting the staff on as
due regard is to be paid to the importance
wide a geographical basis as possible.
AMENDMENT AND REVIEW OF THE CHARTER
of which it can
The U.N. Charter visualises two methods by means
of the Charter, whereby
be altered. The first method is amendment
certain parts of it can be altered. According to this method, the
Charter
of two-thirds
can be amended if such amendment is adopted by a vote
of the Members of the United Nations, including the Permanent
Members of the Security Council.
The second method of altering the Charter is by review. Article 109
of the Charter provides that a general conference of the Members of the
United Nations for the purpose of reviewing the Charter may be held, if
248 PUBLIC INTERNATIONAL LAWT
sO decided by a two-thirds vote of the Members of the General
Assembly and by a vote of any seven Members of the Security Council
In the conference, each Member of the United Nations
has one vote
This Article is not amended though the strength of the Security Counei
is increased to 15. The alterations suggested by the conference
must be
recommended by a two-thirds vote of the conference and ratified by two-
thirds Members of the United Nations, including the Permanent
Members of the Security Council. It may be noted that a review of
Charter means the alterations of the Charter even regarding the
fundamentals on the basis of which the Charter is formulated, the
while
amendment of the Charter might mean altering the Charter in its minor
details. But the Charter does not make a clear distinction between
scope of amendment and that of review. the

THE DIFFERENCE BETWEEN THE UNITED NATIONS

AND THE LEAGUE OF NATIONS
Though the United Nations Charter drew from the experience
the working of the League of Nations, and though the pattern of
of
ganisation in the Charter resembles the pattern of the League
of
Nations, yet there are fundamental differences between the two.
These
differences are summarised below:
(1) Ends or purposes
Both the organisations aimed at international peace, by
settling
disputes by amicable means, but the League of Nations, in view of
the
fact that the principles and purposes of the Charter are more
broad-
based. As the Preamble of the Charter reads, the Charter is
the
outcome of the determination of the people of the United Nations to
save the succeeding generations from the scourge of war and to
reaffirm faith in fundamental human rights; whereas the Preamble of
the Covenant was an agreement between the high contracting parties
to promote international peace and security.
The difference in phraseology of the Preambles of the two organi
sations is highly illuminating. The United Nations attempts not only at
preventing war but also at removing the causes of war. Therefore,
there is greater emphasis in the Charter on economic, social, cultural
and humanitarian matters.
The Covenant was the offspring of the Treaty of Versailles whereas
the Charter is unconnected with any peace treaty. It is an independent
attempt on the part of the various States to realise the futility of war in
modern times and to establish international peace and security.
(2) Organisation
The League of Nations had only four organs, the Assembly, the
Council, the Permanent Court of International Justice and the
Secretariat; the Charter of the League of Nations had six organs, the
 INTERNATIONAL ORGANISATIONS AND THE U.N. 249

Soclal
ceneral Assembly, the Security Council, the Economic and
Council, the Irusteeship Council, the International Court of Justice
nurmber of the organs of the
and the Secretariat. The increase the
in

United Nations under the Charter retlects the emphasis given the
in
and cultural matters.
Charter on soclal, economic
Procedure
(3) Voting
of importance had to be decided by
In the League, all questions
will be decided by the
unanimity. In the Charter, important questions
questions by
General Assembly by a two-third majority and other
Council, the Permanent Members, as
ordinary majority. In the Security
veto. In spite of this, it can be said
already observed, have the right of
a step towards the world government, as discards
it
that the Charter is
The Intrernational Organisation under the
the unanimity principle.
decisions by a majority in spite of the
Charter wll be able to take
veto in the Security
recalcitrasnce of some members. Though the
Assembly has been able to play a
Council has stultified it, the General
peace and security.
vital role in maintaining international
(4) Obligations
of the League were stated
The obligations of the Member States
terms, but under the Charter they are
and defined in specific and rigid
stated in general terms.
(5) Enforcement Measures
were recommendatory in
The powers of the Council of the League
binding obligations
character, whereas the Security Council can impose
with settlement of international
on the Member States in connection
measures.
disputes and preventive and enforcement
two organisations is
Another important difference between the
Nations to use armed forces in
that the Charter enables the United
the interest of international peace and security,
whereas such powers
The Members of
under the League of Nations were recommendatory.
in advance to provide
the United Nations have bound themselves
Security Council and the
armed forces on terms to be agreed with the
by a Military Staff
Security Council is to be advised and assisted
provisions
Committee in the direction of the use of force. Corresponding
were absent in the Covenant of League of Nations.
(6) Rlght of self-defence
The Covenant of the League of Nations was silent on the question
of the right of self-defence of the Member States, whereas Article
51

of the Charter is explicit on this point. It recognises the inherent right

of a State to use force to defend itself if an armed attack occurs
against it. This right of self-defence can be exercised by the Member
States either individually or collectively.
250 PUBLIC INTERNATIONAL LAW
(7) Neutrality
Under the League of Nations, the traditional concept of neutralit
was left intact. In the Charter, generally, the concept of neutrality hae
been replaced by the concept of collective responsibilities though
rare cases, member States can be neutral. i
(8) Withdrawal
The Covenant of the League of Nations provided for
withdrawal of Members; the Charter does not provide any
voluntar
method o
withdrawal.
(9) The Limitation of the Organisation
The jurisdiction of the League of Nations did not extend to
vitally affecting the interests of the Member states; matters
but under the
Charter, no organ of the United Nations can intervene in the
domestic
jurisdiction of a State, unless there is a breach of international
peace
and security, or such breach is threatened.
 CHAPTER 20

SOME IMPORTANT CASES ON

INTERNATIONAL LAW

1) Albama
Claims Arbitration (1872)
Civil War, certain commerce destroying Write the fwo
Facts: During the American cases
fitted out in England for the Confederate famous
vessels were constructed and ecided by the
Navy of the party opposing the legally constituted International Court
Navy, the Justice.
Government. The United States Government alleged a breach of of
Government, as it had failed to MU. Dec. 2016
neutrality on the part of the British
construction of the vessels and their
exercise due care to prevent the
States Government put
despatch to the Confederates. The United
forth its claim for damages through
the activities of the vessel in the
Civil War. The Albama was one of those
vessels. The dispute was
in favour of the United
referred to arbitration. The arbitrators decided
States Government. history of inter
Significance: (a) This case was a landmark in the
of development of
national law, as it proved arbitration as a method
international law.
of obligations by a neutral
(b) It was held in this case that a breach
international law.
State will give rise to reparation in
(2) The Ambrose Light (1885)
Light, commissioned by
Facts: An armed vessel, the Ambrose Government
Colombian insurgents, was seized by the United States
express recognition of the
as a pirate, because there had been no Confederal Court held that
insurgents as belligerents. The American
the seizure was proper.
insurgents,
Significance: According to this case, all unrecognised
to be pirates.
if they were to operate on the sea, will be considered
According to
However, itmay be noted that the British view is different.
pirates, so long as
that view, insurgent vessels cannot be treated as
the lives
they abstain from repeated or wilful acts of violence against
and properties of British subjects
(3) Anglo-Iranian Oil Co. (Jurisdiction 1962)
Facts: On April, 1933, the Iranian Government granted a Conce-
All diffe-
ssion to the Anglo-lranian Oil Co. for a period of 60 years.
rences related to the Concession were to be submitted to arbitration
by the three Arbitrators, one each to be appointed by the Company
If
and by the Government and the Umpire by two Arbitrators jointly.
there was no agreement on this point, either party could appy to the
President of the World Court to make the appointment. Similarly, if one
of the parties failed to make an appointment, the other party could
251
252 PUBLIC INTERNATIONAL LAW
apply to the President of the World Court to appoint a Sole Arbitrato
It was further agreed that the performance of the agreement would he
faith whilst
based "on principles of mutual good-will and good
reasonable interpretation" of the agreement, and the Government
Iran agreed that the Concession "shall not be annulled and the ter
shall not be altered either by general and special Legislation in the
future, or by administrative measures or any other Acts whatever
af
the Executive authority."
In 1951, the Iranian Government passed a
Law nationalisina the
oil industry in Iran. On the failure of the ranian Government to appoint
to
an Arbitrator, the Company asked the President of the World Court exerci
appoint a Sole Arbitrator. The British Government, claiming to ise
diplomatic protection, submitted an application to the World
its right of
Court in the light of the Declaration under the 'Optional Clause' of the
Courts' Statute made by both the parties. Before hearing on the
merits, the Court made an order for interim measures of protection. It
contention of the Iranian Government that its declaration
under the Optional Clause naturally referred to treaties and
conventions accepted by it after ratification of the Declaration. The
agreement with the Anglo-Iranian Oil Company, not being a treaty or
a Convention, the Court had no jurisdiction. The Court found, by a
majority vote, that it had no jurisdiction.
Significance: (1) The Contract signed between the Iranian Govern-
ment and the Anglo-lranian Oil Company, being in the nature of a
oncessionary contract between a Government and a Foreign Corpo
ration, the United Kingdom was not a party to the contract. There was
no privity of contract between the Government of lran and the Govern
ment of the United Kingdom.
(2) An implied treaty between the two Governments could not be
inferred, as weighty proof is required of such implied treaty.
(3) The International Court of Justice can exercise jurisdiction
if

there is voluntary submission to jurisdiction by either party. When an

unilateral reference of a dispute is made to the Court by one party,
assent by conduct can scarcely be inferrerd where the respondent
State consistently denies that the Court had jurisdiction.
(4) Anglo-Norweglan Fisheries Case (1951)
Facts: A decree of the Norwegian Government was promulgated
in 1935, purporting to define its fisheries zone, by reference to base
sea
lines drawn through 48 selected points on the main land. The
to a
enclosed by these lines and the adjoining seaward belt of waters
width of four miles was to constitute the zone. The result of the decree
was to include large stretches of sea, including coastal inden-tafion
which normally would have been open sea in which other States
would have been entitled to fish.
Great Britain challenged the validity of the decree on the ground that
it was contrary to international law. The dispute was referred to tne
 sOME IMPORTANT CASES ON INTERNATIONAL LAW 253

Court of Justice. The International Court of Justice gave its

ternational Cou
efarnational
holding that the method followed in the decree and the
ision in 1951,
eision contravene international law.
etlal lines themselves did not of the International Court of Justice in
Signlficance: The decision law
development of the
Case is considered a landmark in the
hie lnternational Court of Justice held in
redarding territorial waters. The
this case if a littoral State defines its
territorial waters by reference
(a) That the islands
lines comprising of points on the main land and
to base law, provided such
rocks, It is not contrary to international
and the reasonable, just and not arbitrary.
drawing of the line is
such base lines need not be drawn parallel to the low
(b) That of the shore
mark on the coast, so long as the general direction
water
is followed gulfs may be deemed part of the
(c) That the waters of bays and
the head
waters, notwithstanding that the distance between
territorial
miles.
lands is greater than ten
from this principle regarding the base line, the case has
Apart
consequences:
other far-reaching case, that the
International Court of Justice held, in this
() The
limited artificial extension of a State's
maritime belt is not so much a economic
contiguous area wherein, for
territorial domain, but is a to
geographical reasons, the coastal State is entitled
security and a State
exclusive sovereign rights. According to this decision,
exercise defining
into consideration while
might take even its economic interest
the maritime belt. it defined
is that, by implication,
(i) Another contribution of this case no
all parts of the sea which are
the seas or the open sea as
(a) the territorial sea, or
(b) internal waters. Justice
International Court of
(ii) Further, this case shows that the weight of
to develop international law, without being tied by the
is free of
been criticised by many
practice and authority. But the decision has to pay proper regard to
of Justice
the failure of the International Court
precedence.
the weight of practice and judicial
Traction Light and Power
(5) The Case Concerning the Barcelona
Co. Ltd. (Second Phase), (1970)
Traction Light and Power
In the case concerning the Barcelona
Co. Ltd. (Second Phase), an interesting question
arose, as to whether
companies and its
the State is entitled to espouse the claim of & Power Co.
shareholders. In this case, the Barcelona Traction Light
in Spain. But a
Ltd. was incorporated in Canada, and it was operating
in
considerable investment in the company was made by shareholders
Belgium. Certain action taken by the Government of Spain caused
of law, the
serlous loss and damage to the Company. In the eyes
 INTERNATIONAL LAW
PUBLIC majority of the
254 nationality, though the Government of
Canadian The
nationals.shareholders.
pany was of were Belgian
sharehloders affected cause of its citizens as following
the came to the
Belgium espoused Court of Justice
The International
conclusions: Company concerned was entitled
a
national State of for the purpose of seeking
redress
(a) Only the
exercise diplomatic proceedings
to Company.
of the wrong done to the
to the Company, the wrongdoer is not
liablea
(b) When a wrong
is done
Therefore, the Spanísh State was not
shareholders.
liable to the shareholders.
to the Belgian the cause, Belgium
had no locus
had not espoused Justice, the claims
(c) As Canada the Court of International Company.
before
standi to espouse, who were shareholders in the
of Belgian
nationals
Cheung v. R. (1939)
Chung Chi Chinese armed
(6)
Chi Cheung, a cabin boy on board a
Facts: Chung killed its Captain, while the vessel was in the
public ship, shot and He also shot and wounded another officer
Hongkong territorial
waters.
proceeded to Hongkong, and Chung Chi Cheung
of the ship. The ship "in the waters of their
colony" and duly
was charged with murder were British nationals.
the murdered Captain
committed. Both he and on the ground
Chinese authorities instituted extradition proceedings extradition
The
was committed in a Chinese public ship. The
that the offence
refused. The accused was convicted and sentenced to death. He
was
Council.
went in appeal to the Privy
On the particular facts of the
case, it was held that the Hongkong
Court had jurisdiction. international law was to be
Significance: (a) This case held that
law, so far as it was not
treated as incorporated into the domestic or finally declared by
inconsistent with any rule enacted by statutes
the Tribunals.
(b) The Privy Council rejected in this case the
"Floating Island"
court accords to
Theory of a public ship, and it held that the territorial
the ship and its crew immunity depending, not on an
objective theory
implication
that the public ship is part of a foreign territory, but on an
immunity
of an exemption granted by the local territorial law. The
by
conceded by local law is conditional, and can, in turn, be waived
the State to which the public ship belongs.
(c) But at the same time, it held that the public ship enjoys the
jurisdictional immunity, only so far as it is necessary to enable such
public vessel to function efficiently as an organ of the State and for the
purposes of the State.
(7) Corfu Channel (Merits) Case (1949)
Facts: The Corfu Channel constitutes a frontier between Albania
and Greece. The British warships passing through the same channe
 sOME IMPORTANT CASES ON INTERNATIONAL LAW 255

seriously damaged by mines in the Albania territorial waters. This

seriously
were 22nd October, 1946, not only caused damage to the
damage, done on
warships, butalso resulted the death and injuries to several persons,In
in of
British Navy, without the consent of the
ovember, 1946, the Units of the
eernment ofA
Government fAlbania, conducted mine sweeping operations in the channel.
between Great Britain and Albania. The matter wastaken
dispute arose dispute was referred to the Intemational
hefore the Security Council. Then, the
in the matter is discussed
Court of Justice. The preliminary question arising
two questions
14, below. Apart from this preliminary question,
under Case No.
case:
were raised in this
under international law for the damage
(1) Was Albania responsible in its territorial waters?
caused and loss of human life by explosions
If so, was Albania liable
to pay compensation to Great Britain?

(2) Had Great Britain violated

the sovereignty of Albania, by carrying
in the teritorial waters of
Albania?
on the mine sweeping operations
responsible for the damage caused as
it
It was held that Albania was
It was also negligent in not
negligent in not giving warning to ships.
was mines.
trying to find out and punish those
who were responsible for laying the
International Court of Justice held that, by
On the second question, the
in the territorial waters ofAlbania,
carrying on the mine sweeping operations
without its consent, the United
Kingdom had violated the sovereignty of
intervention notjustifiable in international
Albania, and thereby was guilty of
law.
in this case that:
Significance: The International Court of Justice stated
well-recognised principle that every State is
(a) It was a "generally
knowingly its territory to be used
under an obligation not to allow
States".
for acts contrary to the rights of other
entitled to a right of inoffensive
(b) Warships are, in times of peace,
as form an
passage through such parts of the territorial sea exercising
from
international highway, and cannot be prohibited
this right.
(c) The decisive criterion of a strait as a
highway was its geographical
the fact of
situation, as connecting two parts of the open sea and
not whether there was
its use for international navigation, and
considerable volume of traffic passing through it.
(1948)
(8) The Corfu Channel (Preliminary Objection) Case
It washeld that the Security Council could not subject a Member
State Write a short note
to the compulsory jurisdiction of the International Courtof Justice,
by calling on : Corru Channe
CEse
upon the parties to adjust their differences by judicial settlement, either of
if
M.U. May 2017
compulsory jurisdiction of
the parties to the dispute had not accepted the Jan. 2018
the Court either under a treaty or under a convention or by a declaration Dec. 2019
under Article 36 of the Statute.
256 PUBLIC INTERNATIONAL LAW
(9) The Cristina (Companla Navlera Vascongado v. Crlstina
(1938) S.s.
Facts:During the Spanish Civil War (1936-1939), General Francos
Army captured from the Republican Government, the Port of Bilbao,
The Cristina was a ship registered at Bilbao. The Republican Govern.
ment issued a decree a week later, requisitioning all ships registered
at Bilbao. When the Cristina arrived in a British Port, she was taken
charge of by the Spanish Consul. The original owners of the vessale
raised an action by a writ in rem and claimed possession of the vessel
as sole owners. The Spanish Government entered a conditlonal
appearance and contended that the action be dismissed as it impleaded
a foreign sovereign State.
The House of Lords held, in Appeal, that the contention of the
Spanish Government was good, and that a sovereign State could not be
impleaded, unless it consented. It was also held that as the Spanish
Government took possession of Cristina under a requisition order, the
vessel was brought within the description of public property of the State.
Therefore, it was immune from the jurisdiction of the English Courts.
Significance: The House of Lords observed in this case that, as a
condition of obtainingimmunity, the foreign Government needs only to
produce evidence showing that "its claim is not merely illusory, nor
founded on a title manifestly defective".
Another problem discussed in this case was whether the State-
owned commercial ships should enjoy immunity. Lord Maugham
observed that as diplomatic representations made to foreign States
would render a very uncertain remedy, the foreign State-owned
commercial ships should not enjoy the immunity. However, it may be
noted that the majority held that immunity would extend to State
owned commercial ships also.
(10) Duff Development Company v. Kelantan Government (1924)
Facts: In 1912, the Government of Kelantan entered into an
agreement with the Duff Development Co. Ltd. and granted it certain
rights of mining, etc. An arbitration clause was added in the agreement.
In 1921, a dispute was referred to arbitration, and an award was made
in favour of the Duff Development Company. An attempt was made to
enforce the award against the Government of Kelantan. The Court of
Appeal held, reversing the judgment of the lower Court, that as the
Government of Kelantan was a Sovereign Government, the English
Court could not exercise jurisdiction. This decision was confirmed by
the House of Lords. The contention of the plaintiff company was that
Kelantan was not an independent State, as it was in the postion ora
Protectorate of Great Britain. The House of Lords held that, althougn
not completely independent, a protected State may enjoy suficle
measure of sovereignty to claim jurisdictional immunities in the territory
of another State.
 sOME IMPORTANT
CASES ON INTERNATIONAL
significance: This case LAW
257
is also illustrative
nlish Courts that regarding the nature of the practice
of the
Courts seek the opinion of the executiveof a Foreign State, the British
o best evidence of the status of the and accept such opinion
concerned foreign as
This case also lays down State.
nrOceeding, or even a that a submission
subsequent application to to arbitration
nroceedings, does not amount set aside these
to
to the jurisdiction of the British waiver or immunity or to a submission
Courts.
(11) Eastern Greenland Case (1933) (B.U.
Apr. 83, 84 & Nov.82,
Facts: The dispute in this case arose between 83)
regarding Denmark's claim of sovereignty over Denmark and Norway
The foreign ministers of these two the whole of Greenland.
Governments had discussed
matter, and the foreign minister for Norway had the
assured that the plans
of the Danish Government respecting Danish sovereignty
over the
whole of Greenland would meet with no difficulties on the
part of
Norway. This assurance was regarding Norway's attitude at the
Paris
Peace Conference of 1919.
The question to be decided by the International Court of Justice
was whether the declaration made by the foreign minister for Norway
did not constitute an engagement, obliging Norway to refrain from
OcCupying any part of the territory of Greenland. It was held that an
oral declaration in the nature of a pronise made by the minister for
foreign affairs of one country on behalf of the country to the minister
of foreign affairs of another, and in a matter within his competence
and authority, may be as binding as a formal written treaty. International
Law does not as yet require established forms of treaties.
Significance: The Court also laid down, in this case, that occupation,
to be effective, requires, on the part of the appropriating State, two
elements:
(i) an intention or will to act as sovereign, and
(i) the adequate exercise or display of sovereignty.
(12) The Franconia Case (R. v. Keyn) (1876)
collided with Strathclyde,
Facts:The Franconia, a German Steamer, two miles
at a distance of about
a British steam vessel, on the sea, Officer-in-Command of the Franconia,
form Dover pear-head. Keyn, the
account of the collision, a person
in
it was alleged, was negligent. On convicted
for manslaughter and
Strathclyde died. Keyn was indicted was reserved by the Court of
of law
by the lower Court. A question had to decide whether the
Criminal Appeal. The Court of Appeal over an offence committed
jurisdiction
English Courts could exercise It was held, by
miles from the English shore.
within a distance of three over such offence.
majority, that the English Court had jurisdiction International Law
a case that
Significance: (a) It was held in this
law, unless adopted by legislation.
was not part of English
258 PUBLIC INTERNATIONAL LAW
(b) Thiscase also is interesting for the views of Lord Coleridno
regarding the nature of International Law. His Lordship observed
Strictly speaking, International Law is an inexact expression and it is
apt to mislead if its inexactness is not kept in mind. Law implies law
a
giver, a tribunal capable of enforcing it and coercing its transgressors
But there is no common law giver to a Sovereign State and no tribunal
has the power to bind them by decrees or coerce them if thev
transgress."
(13) The Case of the Freezone's of Upper Savoy and Gex (1932)
Facts: The matter in dispute, in this case, was whether France had
succeeded to Sardinia in the matter of an obligation to respect a
territorial arrangement between Sardinia and Switzerland. It was held
that treaties which create obligations pertaining to, or for the benefit
of, the territory, will pass in succession.
Significance: (a) The Permanent Court of International Justice
pointed out in this case that the operation of the right of a
third
State, which is not a party to the treaty, is not likely to be presumed
much depends on the circumstances of each case. But, if the parties
intended to confer rights on a State which was not a party, this
intention may be decisive.
(b) In this case, the Permanent Court of International
Justice
adopted the subjective theory of the doctrine of rebus sic stantibus.
(14) The Case of the Extradition to Haya De La Torre (1951) (Asylum
case)
Facts: Haya De La Torre, a political leader of Peru, had been
accused of having instigated a military rebellio in Peru. He sought
refuge in the Columbian Embassy, which was granted by the Columbian
Ambassador. The Government of Peru refused to issue a safe conduct
for the departure of Haya De La Torre. The Government of Columbia
moved the International Court of Justice.
The International Court of Justice held that the asylum granted ta
the accused by the Columbian Embassy was irragular, as there was
no urgency. though if there was urgency, the accused would be entitlec
to such asylum.
(15) I'm Alone Case (1929) (B.U. Apr. 83))
Facts: The ship "I'm Alone" was a British Schooner of Canadian
Registry. The ship was engaged in the smuggling of alcohol into ths
United States. This ship was sunk in 1929 by United States Coas.
Guard vessel, at a point on the high seas more than 200 miles from
the United States course. The Canadian Government claimed damages
The matter was referred to an arbitration. The award was in favouro
Canada.
The argument of the United States was that the ship was in taca
owned by the American nationals, though de jure, the ship was 0
Canadian nationality. It was also urged that the damages awaroe
 sOME IMPORTANT CASES ON INTERNATIONAL LAW 259

ultimately go to the pockets of American citizens. But these

ld
tentions on behalf of the United States of America, were of no
ontentions
avail. The Canadian Government was
entitled to claim, as injury was
nationality.
caused to a ship of its
of the case is that the Arbitral tribunal
The other significance
awarded two separate heads ot damages, the other being in respect
claimant State.
of injury to the
It may be noted here that such an
award made in the l'm Alone
International Court
case is consistent with the views expressed by thefor Injury suffered in
on Reparation
of Justice in its Advisory Opinion
United Nations (1949).
the Service of the
Tribunal of the International
(16) Judgments of the Administrative
Labour Organisation upon complaints made against the
UNESCO (1956)
The facts of the case are as follows:
appointed with UNESCO
Certain employees of the UNESCO were
on a fixed term. Subsequently,
the appointments were renewed. Such
to expire on 31st December, 1954.
renewed appointments were due
representative of their national
These employees were asked from the information, to answer a
state for UNESCO to furnish certain Loyalty Board of their State
questionnaire and to appear before the
orders. The concerned
Embassy in Paris. All these were executive
UNESCO of their decision
employees informed the Director General of
of conscience which
not to appear before the Board and of the reason
Consequently, the Director General
caused them to take such decision.
subject of non-renewal
issued an Administrative Memorandum on the
of appointments expiring at the end of
1954, while the appointment of
employees complained
others were renewed, to which the concerned
to the Administrative Tribunal of the International
Labour Organisation.
the complaint and
The Tribunal declared its competence to entertain
gave a decision on the merits of the complaint.
advisory opinion
The Executive Board of the UNESCO sought an
of the International Court of Justice on the
competence of the Tribunal
11 of the Statute of the
and the validity of its judgment. Under Article sought
Tribunal, Advisory opinion of the International Court could be
following:
complaining against the judgment of the Tribunal by the
(1) A Member State;
(2) The Secretary-General; or
(including
(3) The person in respect of whom a judgment was made
any person who had succeeded to that person's right on his death),
and the statute further provided that the challenge may be made on
the following grounds:
(1) that the Tribunal has "exceeded its jurisdiction or competence";
(2) that the Tribunal had "failed to exercise jurisdiction vested
in it";
 260 PUBLIC INTERNATIONAL LAW
(3) that it has "erred on a question of law relating to the provisions
the U.N. Charter; or
(4) that it has committed "a fundamental error in procedure
whi
has occasioned a failure of justice".
The Executive Board raised the following issues, and the Co
answered them accordingly:
(1) Was the Administrative Tribunal competent under Article 11
of t
Statute to hear the complaints against UNESCO?
Ans.-The Court, after examining the problem in detail, gave a positi
answer.
(2) The competence of the Administrative Tr ibunal to determine th-
power of the Director General to renew fixed term appointment was
als
challenged.
Ans The I.C.J. did not think it necessary to answer this question, a=
it accepted the judgment of the Tr ibunal.

(17) Liandovery Castle (1923-24)

During the First World War, a German killed a defenceless person in
life-boat, and when he was accused, he pleaded the order of the
superiors
as a defence. His plea was rejected on the ground that such an order was
"universally known to be against the law". It was also held that such order-
might be an extenuating circumstance, but it does not absolve a person
from the crime committed by him.

(18) The Lotus Case (1927)

Write two issues of Facts: The French mail steamer, the Lotus, collided on the high seas
The Lotus Case.
with a Turkish ship. It was alleged that the collision was due to the gross
(2 marks)
M.U. May 2017
negligence of the Officer of the Watch on board the Lotus. The result was
Jan. 2018 that the Turkish ship sank, and eight Turkish nationals on board died. The
Dec. 2019 collision took place on the high seas. Subsequently, the crew members of
the Lotus were taken to Constantinople. The Turkish authorities instituted
proceedings against the Officer of the Watch, basing their claim to jurisdiction
on the ground that the act of negligence on
board the Lotus had produced
effects on the Turkish ship, and according to the objective territorial principle,
the Turkish authorities were justified in exercising
the jurisdiction. France
protested against this exercise of jurisdiction by the Turkish authorities. The
dispute was referred to the Permanent Court
of International Justice. By a
majority decision, the Permanent Court held that the
action of the Turkish
authorities was not inconsistent with international law.
Significance: (a) This case is also an authority on the 'floating island
theory of a ship. The International Court of Justice
the negligence on the Turkish ship to be an effect
considered the effect or
on an operation of Turkish
authority, and therefore, the objective territorial principle was
applicable.
(b) It was also pointed out in this case
that no presumption
of immunity arises from the fact that the person
against whom the
 eOME IMPORTANT
CASES ON INTERNATIONAL
oceedings are taken is a foreigne LAW
261
(c) However, one of the judges
af
articl the Turkish Penal Code, whereby in this case
pointed out
that an
er foreigners committing offences abroadjurisdiction was asserted
rkish Subject, was contrary to international"tolaw.the prejudice" of a
ahe Dassive nationality According to
principle of jurisdiction was him,
ceoted.
acce The same view is also supported not to be generally
in the Cutting
(d) It may be noted that the objective case.
turisdiction as laid down in the Lotus teritorial principle of
case was not generally
to mariners, and it has acceptable
been disapproved by the Conference at
Brussels
in 1962, which adopted the Convention for
the unification of certain
rules relating to Penal jurisdiction in matters of collision
and other
incidents of navigation.
(e) It may also be noted that the International Law Commission
has disapproved of the rule laid down in the LotusS case.
(f) This case is also significant in that the Permanent Court of
International Justice had recourse to juristic opinion tor ascetaining
the existence or non-existence of a customary rule.
(g) This is also significant in view of the fact that the Court refused
to deduce a customary rule where State judicial decisions on the point
were divided.
It must be noted, however, that the principle laid down in the Lotus

Case has not been approved by the International Law Commi-ssion.

relating
The Brussels Convention for the Unification of Certain Rules
Incidents of
to Penal Jurisdiction in Matters of Collision and other
of the flag State
Navigation, now provides for the exclusive jurisdiction
of collision cases, subject to
in penal or disciplinary proceedings out
conceded to a non-flag State
penal and disciplinary jurisdiction being
over an accused person of its nationality.
(19) Lather v. Sagor Republic
Socialist Federal Soviet
Facts:In June 1918, the Russian working
mechanical saw mills and wood
passed a decree nationalising Companies, and took
and limited
establishments belonging to privatemanufacturing goods belonging to
Over the plaintiffs' mill and certain
them in Russia. Delegation in
the Russian Commercial
Ihe representative with the defendants in August 1920, for the
of
London made a contract including some of them
delivery of a quantity of timber, declaration that these
sale and The plaintiffs sought a detendants
plaintiffs.
Sezed from the property, an injunction restraining the defendants
us Were their
Trom selling, and damages
decree
for conversion and
of June 1918 was
detention. The
the Act of a
sovereign
title and
argued that the plaintiffs of the
was valid to deprive the the following
Government and
the Court of First Instance,
convey it to the defendants. In
Office were admitted
letters from the Foreign
262 PUBLIC INTERNATIONAL LAW

(1) To the Solicitor of the Russian Commercial representative, that

he was regarded as a foreign representative for certain purposes and
should be exempt from the process of the Court.
(2) To the defendants' Solicitors, recognising the claim of the
Delegation to represent in this country a State Government of Russia
(3) To the plaintiffs' Solicitors, pointing out that the representative
received privileged treatment for certain limited purposes, but his
Majesty's Government had never officially recognised the Soviet
Government in any way.
The Court of First Instance gave judgment for the plaintiff, on the
basis that the Russian Government had not been recognised. In the
Appellate Court, the defendants produced further letters from the
Foreign Office-one of which stated that His Majesty's Government
recognised the Soviet Government as the de facto Government of
Russia. The Court of Appeal allowed the appeal.
Significance: (1) Recognition is retroactive to such duty as the
recognising Government might accept.
(2) For the present purpose, there is no difference between a
Government recognised de jure and one recognised de facto.
(3) The Court of England will recognise and give effect to the Acts
of a de facto Government in relation to persons and property in the
Government territory, and will disregard and treat as annulled the Acts
of a de jure Government.
(20) Mighell v. Sultan of Johore [(1894) a.B. 149]
Facts: The Sultan of Johore, whilst staying in Great Britain,
introduced himself by the assumed name of "Alburt Baker". He did not
reveal that he was a foreign sovereign. He promised to marry the
plaintiff. He did not carry out his promise and the plaintiff sued him for
breach of promise of marriage. It was contended on his behalf that the
Court had no jurisdiction, as he was a sovereign, independent ruler
and he had not submitted to the jurisdiction of the Court. It was
contended, on behalf of the plaintiff that since the Sultan lived as
private citizen under a false name, it would amount to waiver of
immunity, and therefore, the English Courts could exercise jurisdiction
over him. The Court of Appeal, as well as the Court of First Instance,
held that jurisdiction could not be exercised over the Sultan of the
State of Johore, as living in cognito did not amount to voluntary
submission to the jurisdiction of the English Court.
The significance of this case is that the immunity given to a foreign
sovereign prevents a Court from exercising jurisdiction, unless such
foreign sovereign waives his immunity and voluntarily submits himselt
to the jurisdiction of the Court at the date of institution of proceedings.
His conduct or agreement, implied or express, to submit himself to the
law of a Country does not amount to submission.
 sOME IMPORTANT CASES ON INTERNATIONAL LAW 263

The Island of Palmas Arbitration (Asked at B.U. Apr. 84)

21 Facts: The Palmas Island is situated half-way between the Philipine
lclands and the former Netherland East Indies.
In 1906, there was a

ispute between the U.S.A. and the Netherlands regarding sovereignty

aver this lsland. The contention of the American Government was that
the Island was ceded to the U.S. by the treaty of 1808 by Spain. The
Dutch Government maintained that the Island was a part of its terrtory,
and that Spain, from whom the U.S.A. claimed to have acquired
The
SOvereignty over the Island, never had any right over the same.
to Permanent Court of Arbitration. was held
It
dispute was referred the it
was responsible for the discovery of the island,
that, though Spain
of the Island. On the other hand, the
was not in efective control
Netherland's East India Company was in possession of the Island and
1677.
exercised sovereignty over the same since
Arbitrator, described
Significance: (a) In his Award, Max Huber, the
in the relation between
sovereignty in these terms-"Sovereignty,
Independence in regard to a portion
States, signifies independence.
therein, to the exclusion of any
of the globe is the right to exercise
State."
other State, the functions of a
if a State were to occupy a
(b) It was also held in this case that
effective control and authority either
territory, there must be display of
from which the State claiming
by the claiming sovereignty or by a State
derived.
sovereignty can prove that the title has been
award in the Island of
(c) It is claimed by some writers that the
the doctrine of acquisitive
Palmas case is an authority to support
prescription in International Law.
(22) Paquete Habana (1900)
fishing
Facts: The Paquete Habana, a fishing boat, and another
to Spanish subjects,
boat, Lola, flying the Spanish flag, and belonging
in the blockade of
were captured by a United States warship engaged
betore the Court for
the North coast on Cuba. They were brought
whether,
condemnation. The question that was to be decided was
were exempt form
under customary International Law, fishing boats
order of the
capture. The Supreme Court of the U.S.A. reversing the
lower Court, held that they were free from capture.
attitude of the
Significance: (a) This case is illustrative of the
During the course of the
American Courts towards International Law.
Judgment, Gray. J. made the following remarks
ascertained and
International Law is part of our law, and must be
jurisdiction, as
administered by the Courts of Justice of appropriate
it are duly presented for
onren as questions of right depending upon
their determination."
of the judicial method in the
() This case is also illustrative investigation
application of custom. The Supreme Court, after a detailed
of publicists evidencing
of State laws and practice, treaties, writings
264 PUBLIC INTERNATIONAL LAW
usage and decisions of courts, found that they uniformly proved the
existence of a valid customary rule giving immunity to small fishina
vessels from belligerent action in times of war
(c) This case is also illustrative of the function of State judicial
decisions in clarifying an international nature of custom and law.
In this case, Gray, J. also pointed out that the juristic works have
the value of being, on many occasions, the evidende of International
law. He observed: "Such works are resorted to by judicial tribunals
not for the speculation of their authors concerning what the law ought
to be, but for trustworthy evidence of what the law really is".
(23) Parlement Belge (1679)
Facts: The Parlement Belge was a Belgian mail vessel belonging
to the King of Belgium. In addition to mail duties, it was also used for
trading purposes. The vessel collided against a British ship in the
Dover Harbour. Proceedings against the Parlement Belge were started
to recover damages. It was held by the Court of Appeal that the British
Courts had no jurisdiction over the Parlement Belge, as it was the
property of the King of Belgium.
Significance: This case supports the doctrine of the immunity of
State-owned trading vessels. [A reference may be made to the Cristina
case, where this doctrine was approved by the British Courts.]
(24) Preah Vihear Case (1962)
In the case, concerning the Temple of Preah Vihear
(Merits)
(Cambodia-Thailand) I.C.J. Reports (1962) 9, the disputed area was
a
the region of certain Temple sanctuary (Preah Vihear), and there
was a conflict between the frontier according to a Treaty of 1904,
whereby it was to follow a watershed line, and the frontier according to
boundary maps completed in 1907 and communicated in 1908 to the
Siamese (now Thai) Government. As the Siamese Government, and
later the Thai Government, had, by their conduct, apparently accepted
the map frontier line, the Court held that the map line should be
preferred, and that the Temple area was under the Sovereignty ot
Cambodia.
(25) Reparation for Injurles Suffered in the Service of the United
Nations, I.G.J. Reports (1942), 174
Facts: In 1948, certain agents and officers of the United Nations
suffered injuries in Palestine, and Count Folke Bernadotte, United
Nations Mediator, was assassinated. There arose a question as to
whether the United Nations could claim compensation as against a de
jure or de facto Goverment, even though such Government was not a
Member State of the organisation. In this connection, the following
questions arose:
(1) As a State could claim damages against injuries caused to its
diplomatic agents, could the United Nations Organisation also claim
damages for injuries caused to its agents or servants? This, in turn,
 sOME IMPORTANT CASES ON INTERNATIONAL LAW 265

raised the question as to whether the United Nations was a subject of

International Law and whether it enjoyed international personality.
of another State,
(2) If such agents or servants were nationals
could the United Nations also claim damages?
opinion of the Inter
This matter was referred for an advisory
International Court of Justice gave its
national Court of Justice. The
It laid down the following principles:
advisory opinion in 1949.
and does nothave all
(1) Though the United Nations is not State
a
State, it has international personality and it is an
the attributes of a
international person.
Nations, in the performance
(2) Therefore, if an agent of the United
injury in circumstances involving the respon-
of his duties, suffered the
United Nations has the capacity to bring
siblity of a Member State, the
the responsible de jure or de facto
an international claim against the reparation due
government, the claim being with a view to obtain
in respect of the damage
caused to the United Nations; such claim
State, even though it is not a mem-ber
can also be brought against the
of the United Nations.
in respect of the damage caused to
(3) Such a claim could also be
entitled through such persons.
the victims or to persons
(4) Such claim in respect of damage
caused to the victim or to
claimed, whether the responsible
persons entitled through him may be
not.
State is a Member State or
(5) These claims, being based
upon a breach of obligations due to
conflict between the action of
the United Nations, there will not be a
the individual national State
the United Nations and such rights as
reconciled as there is no conflict. The
may possess. The claims can be
the United Nations
claims of the individual national State andHowever, there may be
Organisation are based on different grounds.
on the basis of agreements to be
need for reconciliating these claims
individual States, either generally
made between the organisations and
or in each case.
(1812)
(26) The Schooner Exchange v. McFaddon
was at Philadelphia, was
Facts: The Schooner Exchange, which
McFaddon and another
an armed ship under the control of France.
of the Schooner Exchange
alleged that they were the sole owners
in Spain on October 27, 1809,
which sailed from Baltimore for a port
and orders of Napoleon,
that the vessel was seized under the decrees
and it was disposed of, though no
sentence of condemnation had
jurisdiction.
been passed by a Court of competent
Government was that, as there
The contention of the American
public vessels
was peace between the United States and Napoleon, the
of France could freely enter the ports of the
United States and depart
therefrom. Even though the ship had been captured, had become
it

vested in His Majesty Napolean according to the laws of France, and

266 PUBLIC INTERNATIONAL LAW
therefore, the American Courts could not exercise jurisdiction
over
such a ship. Marshall C.J. of the Supreme Court of the U.S.A. held
"The national ships of war entering the port of a friendly power open
for their reception are to be considered as exempted by the
consent of
that Power from its jurisdiction."
Significance: (a) In this case the immunity of public vessels was
based on "an implied licence" to enter a port, the licence containing
an exemption from jurisdiction of the State which granted the rights of
hospitality.
(b) It was also held in this case that a State which admits to
its
territory armed forces of a friendly foreign Power, impliedly undertakes
not to exercise any jurisdiction over the force which would
inconsistent with its continuing to exist as an efficient force. In brief,be
was held that no jurisdiction could be exercised over members it
visiting force in such a way as to impair the integrity of the
and efficiency of
the force.
(27) South-West Africa Cases
South-West Africa was administered by South Africa
mandate agreement with the League of Nations. Supervisionunder of the
a
carrying out of the mandate was vested in the Council of the
to which annual reports had to be submitted by League,
South Africa, in
accordance with Article 22 of the Covenant of the League and Article
6 of the mandate. In a resolution of 18th April,
1946, the Assembly of
the League had recognised that, "on the termination of the
League's
existence, its functions with respect to the mandated territories will
come to an end"; it had noted that U.N. Charter embodied "principles
corresponding to those declared in Article 22 of the Covenant";
and it
had also taken note of the expressed intentions of the Members of
League now administering territories under the Mandate, to the
to administer them for the well-being and development continue
of the peoples
concerned in accordance with the obligations contained in the
respective Mandates, until other arrangements have been
made
between the United Nations and the respective mandatory Powers.
But there was no express transfer of functions to
the United Nations.
South Africa was the only administering power which refused to
enter into a trusteeship agreement with the United
Nations to supersede
its mandate. Disputes had arisen with regard to
South Africa's
obligations under the mandate, and these controversies were
the
subject-matter of a number of advisory opinions by the International
Court. In the first case (Status of South-West Africa, 1. C.
J. Reports,
(1950), 128), the Court was asked three questions:
(1) about the continued existence of the
mandate
(2) about the applicability of Chapter 12 of
the Charter dealing
with supervision of trusteeship agreements to
mandate; and
(3) about the competence of South Africa acting
alone to modify
the status of South-West Africa.
 sOME IMPORTANT CASES ON INTERNATIONAL LAW 267

The Court had no difficulty in answering the frst and third

que
It had been obvious to all concerned that the mandates
etions.
continued to exist, even after the dissolution of the League. It was
envisaged that they should be replaced by trusteeship agreements.
upon a mandatory state to enter into such
but there was no obligation
an agreement. On the other hand, the fact that the mandatory state
continued to be bound by the mandate implied that it could not
unilaterally alter the status of the mandated territory
In its advisory opinion of 1962 (South-West Africe cases, 1.Cj,
reaffirmed
Reports, (1962), 154), the International Court of Justice
a new international institution, the primary
that a Mandate constituted
over-riding purpose of which is to promote the well-being and
development of the people of the territory under the Mandate. also
It

League and the

affirmed that a mandate was a treaty between the
Mandatory State.
(1966), the
In the South-West Africa cases, Second Phase
of Nations.
International Court of Justice dealing with the League
with reference to a mandate
ruled that an individual member State had,
to assert before the Court, over and
no separate self-contained right
institutional activity.
above the League's collective
opinion expressed
This opinion appears to be consistent with the
in the Reparation ocase regarding the
international personalityof
that individual
international organisations. Therefore, the Court held
claim or standing. by
member States of the League had no legal
matter for
themselves, to enforce the terms of a mandate, this being a
Court held that the
organic or institutional action. Consequently, the
in the
plaintiffs, Liberia and Ethiopia, had no legal right or interest
matter of apartheid in South-West Africa.
FOR
ADVISORY OPINION ON THE LEGAL CONSEQUENCES
AFRICA IN
STATE OF THE CONTINUED PRESENCE OF SOUTH
16):
NAMIBIA (SOUTH-WEST AFRICA) (1.C.J. REPORTS (1971).
views expressed
In its opinion, the Court upheld and reaffirmed its
in addition, that the
in its advisory opinion of 1950. The Court ruled,
submit to the
fallure of South Africa to comply with its obligation to
continued presence
Supervision of the United Nations Organs made its
In South-West Africa illegal. The Court also
reaftirmed the obligation
oT non-recognition on the part of the member
States in pursuance of
was of the opinion
the directives of the Security Council. The Court
of non-recognition
that "Member States, in compliance with the duty
covenant, are under an obligation
mposed by paragraphs 2 and 5 of the
To abstain from sending diplomatic or special
missions to South Africa.
to abstain from
Including in their jurisdiction the Territory of Namibia,
sending consular agents to Namibia, and to withdraw any such agents
already there"
 266 PUBLIC INTERNATIONAL LAw
therefore, the American Courts could not exercise jurisdiction over
a ship. Marshall
such national C.J.of the Supreme Court of the U.S.A. held,
"The ships of war entering the port of a friendly power open
for their reception as
are to be considered exempted by the consent of
that Power from
its jurisdiction."
(a) In this case the immunity of public vessels was
Signiticance:
based on "an implied licence" to enter a port, the lioence containing
an exemption from jurisdiction of the State which granted the rights of
hospitality.
(b) It was also held in this case that a State which admits to its
territory armed forces of a friendly foreign Power, inmpliedly undertakes
not to exercise any jurisdiction over the force which would be
inconsistent with its continuing to exist as an efficient force. In briet, it
was held that no jurisdiction could be exercised over members of the
visiting force in such a way as to impair the integrity and efficiency of
the force.
(27) South-West Africa Cases
South-West Africa was administered by South Africa under a
mandate agreement with the League of Nations. Supervision of the
carrying out of the mandate was vested in the Council the
of League,
1o which annual reports had to be submitted by South Africa, in
accordance with Article 22 of the Covenant of the League and Article
6 of the mandate. In a resolution of 18th April, 1946, the Assembly of
the League had recognised that, "on the termination of the League's
existence, its functions with respect to the mandated territories will
come to an end"; it had noted that U.N. Charter embodied "principles
corresponding to those declared in Article 22 of the Covenant"; and it
had also taken note of the expressed intentions of the Members of the
League now administering territories under the Mandate, to continue
to administer them for the well-being and development of the peoples
concerned in accordance with the obligations contained in the
respective Mandates, until other arrangements have been made
between the United Nations and the respective Powers." mandatory
But there was no express transfer of functions to the United Nations.
South Africa was the only administering power which refused to
enter into a trusteeship agreement with the United Nations to supersede
its mandate. Disputes had arisen with regard to South Africa's
obligations under the mandate, and these controversies were the
Subject-matter of a number of advisory opinions by the International
Court. In the first case (Status of South-West Africa, I. C. J. Reports,
(1950), 128), the Court was asked three questions:
(1) about the continued existence of the mandate;
(2) about the applicability of Chapter 12 of the Charter dealing
with supervision of trusteeship agreements to
mandate; and
(3) about the competence of South Africa acting
e alone to modity
status of South-West Africa.
 sOME IMPORTANT CASES ON INTERNATIONAL LAW 267

The Court had no difficulty in answering the first and third que-
It had been obvious to all concerned that the mandates
ations.
continued to exist, even after the dissolution of the League. It was
anvisaged that they should be replaced by trusteeship agreements,
hut there was no obligation upon a mandatory state to enter into such
an agreement. On the other hand, the fact that the mandatory state
continued to be bound by the mandate implied that it could not
unilaterally alter the status of the mandated territory.
In its
s
advisory opinion of 1962 (South-West Africe cases, 1.C.,
Reports, (1962), 154), the International Court of Justice reaffirmed
that a Mandate constituted a new international institution, the primary
over-riding purpose of which is to promote the well-being and
development of the people of the territory under the Mandate. It also
affirmed that a mandate was a treaty between the League and the
Mandatory State.
In the South-West Africa cases, Second Phase (1966), the
International Court of Justice dealing with the League of Nations,
ruled that an individual member State had, with reference to a mandate,
no separate self-contained right to assert before the Court, over and
above the League's collective institutional activity.
This opinion appears to be consistent with the opinion expressed
in the Reparation case regarding the international personality of
international organisations. Therefore, the Court held that individual
member States of the League had no legal claim or standing, by
themselves, to enforce the terms of a mandate, this being a mater for
organic or institutional action. Consequently, the Court held that the
plaintiffs, Liberia and Ethiopia, had no legal right or interest in the
matter of apartheid in South-West Africa.
ADVISORY OPINION ON THE LEGAL CONsEQUENCES FOR
STATE OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN
NAMIBIA (SOUTH-WEST AFRICA) (1.C.J. REPORTS (1971), 16):

In its opinion, the Court upheld and reatfirmed its views expressed
n ts advisory opinion of 1950. The Court ruled, in addition, that the
failure of South Africa to comply with its obligation to submit to the
Supervision of the United Nations Organs made its continued presence
in South-West Africa illegal. The Court
also reaffirmed the obligation
of non-recognition on the part of the member States in pursuancoe of
the directives of the Security Council. The Court was of the opinion
that "Member States, in compliance with the duty of non-recognition
Imposed by paragraphs 2 and 5 of the covenant, are under an obligation
abstain from sending diplomatic or special missions to South Africa,
including in their jurisdiction the Territory of Namibia, to abstain from
sending consular agents to Namibia, and to withdraw any such agents
already there".
 268 PUBLIC INTERNATIONAL LAW
(28) Stoeck v. Public Trustee (1921)
Facts: Stoeck was born in Prussia in 1872. In 1895, he went to
Belgium to live there. In 1896, he was deprived of his Prussian
nationality. After that, he did not apply for any nationality, and
consequently obtained none. In 1896, he went over to England and
made that country his permanent home. However, he did not apply for
British nationality. During the First World War, he was interned and
deported to Holland. From there he shifted to Germany. He had certain
shares in a limited company of England and the Public Trustee proposed
to attach his property on the ground that he was an enemy. Stoeck
contended that his property could not be attached, as he was not a
German national.
On the basis of the evidence before him, Lord Russell came to the
conclusion that Stoeck had lost his German nationality. Therefore, he
was a Stateless person.
Significance: (a) Russell J. observed in this case"The question
to what State a person belongs must ultimately be decided by the
municipal law of the State of which he claims to belong or to which it
is alleged that he belongs."
a
(b) It was also held in this case that person who seeks to
establish loss of nationality of a particular State must prove that
nationality has been lost for all purposes and with all incidence, and
any possibility that a right of protection or a chance of resumption of
nationality still exists will prevent the onus being discharged. It was
also observed, in this case, that state-lessness is a condition
recognised by both municipal law and by International Law.
 APPENDIX

topics are discussed below

The following three
I. Outer Space
and "Star Wars".
Economic Community.
II. The European
T. T.
I1. G. A.
SPACE&"STAR WARS"
I.OUTER
Activities carried on by States in the upper strata
of the atmosphere and advances
astronautical navigation and exploration of planets in outer
fnSDace technology,
rise to new problems in International Law.
Space have given
Ever since the launching
of the first artificial satellite around the earth byth
Soviet Union in 1957,
space activity has increased considerably. According to Starke
difficult indeed for the International Law of Space to keep up with the
t has been technology and exploration.
unflagging speed of this progress in space
At the second United Nations
Conference on the Exploration and Peaceful Uses
it was recognised that legal controis over all
of Outer Space (UNISPACE 82),
of question. It was decided that a
activities in or related to outer space are out
Law will be institutional law. consisting of
portion of future International Outer Space
numerous international and national
rules governing the relationships between the
United Nations Commission
agencies concerned with space questions, such as the
on Peaceful Uses of Outer Space, the
lnternational Telecommunications Satellite
Organisation (INTELSAT), the European Space Agency (ESA), Nationai Aeronautics
National d'Etudes
and Space Administation (NASA) in the United States and Centre
Spatiales (CNES) in France.
As a result of the growing importance of the use of outer space, the following
Treaties, Conventions and Agreements have come into force:
(1) The Nuclear Weapons Test Ban Treaty of 1963, under which the signatory
states undertake to prohibit, prevent, and not carry out nuclear weapon test explosions
beyond the limits of the atmosphere, including outer space.
(2) The Space Treaty of 1967, which is the most important treaty governing the
activities of States in the exploration and uses of Outer Space, including the moon
and other celestial bodies.
(3) The Astronauts Agreement (1968), dealing with rescue and return of astronauts
and return of objects launched into Outer Space.
(4) Convention of International Liability for Damage caused by Space Objects
(1972).
6) Registration Convention of 1975 (for registration of objects launched into outer
space).
(6) The Moon Treaty of 1979, governing the activities of States on the moon and
other celestial bodies.
An attempt has been made to denuclearise and demilitarise outer space, though
wItnout much progress. Article IV of the Space Treaty of 1967 (-above-) is important,
269
270 PUBLIC INTERNATIONAL LAW
as itprohibits States from placing in orbit objects of mass destruction, or installing
these on celestial bodies or in outer space. According to Starke, "t is nolorious that
there has beon no denuclearisation, strictly speaking. of outer space, as satellites
have continued to be used for purposes of espionage and surveillance." The use of
laser weapons based in space and with a global capacity to attack a wide range of
targets has been the most controversial topic of discussion, with arguments for and
against on either side.
In view of Article IV of the Space Treaty of 1967, the "Star Wars" project (Strategic
Defence Initiative) has received much attention. The "Star Wars" programme of U.S.A'
has been justified on the ground that it is designed to take defensive, rather than
offensive, action. The demilitarisation of outer space was the subject of discussion at
the UNISPACE Conference of 1982. Administration of outer space by the United Nations
has notbeen tavoured by all countries. Interestingly enough, the Star Wars programme
of U.S.A. has received opposition not only trom U.S.S.A., but also from within the
U.S.A. itselt.
Satellites all over the globe are used for spying. These satellites can be used for
detecting and destroying missiles which are programmed at hitting specified targets.
This is done by placing certain military satellites in space at certain strategic places
over the globe. These satellites are fitted with sophisticated instruments capable of
detecting any missile, tracing its path and destroying it, using laser weapons, and
thereby preventing it from hitting its target. What U.S.A. aims to do is to place several
of such military satellites all over the globe, so that in case of attack by any
nation
(particularly the threat posed by U.S.S.R. in 1980's), the incoming missile can be
destroyed. In this way, a protective shield can be built over U.S.A., which would make it
virtually impossible for any country to attack or even to spy over U.S. territory and
places of strategic interest.
The Concept of "Star Wars" project was introduced when cold war conditions
existed between the U.S.A. and the U.S.S.R. and the threat of war from the Soviet
Union was prevalent. as it was also regarded as a "Super Power" like U.S.A.
Hostilities existed between the NATO countries and Warsaw Pact countries and
conditions were far less than cordial on major issues. The U.S. was, and perhaps still
is, the only country possessing the know-how and technology for implementing
this
programme. However, ever since its initial stages, it was opposed by the U.S.S.R.,
and also by the U.S. Senate. The defence expenditure in the U.S. budget would
considerably increase if this project is approved by the U.S. Government. It was felt
that this money could be utilised for purposes other than defence.
At the Reykjavik Summit between the two Super Powers,
the peace talks failed,
mainly because the U.S.S.R. insisted that arms reduction would
not be possible
unless the U.S. set aside the Star Wars project. However, during the next Summit at
Washington between U.S.A. and U.S.S.R., the situation was quite different.
President
orbachov's policy of "perestroika" and glasnost' began to be taken seriously by
several countries. The economic situation in U.S.S.R. made it impossible for it to
continue its military adventurism and to aid countries like Cuba, Afghanistan, Vietnam,
etc. So, U.S.S.A. no longer insisted on U.S. setting aside the Star Wars project.
 APPENDIX 271
Gradually, the threat of war from U.S.S.R. lessened and U.S.A. emerged as the sole
SIDer Power", having great economic strength and stability. This has led to a
progressive arms reduction on both sides.
During the Gulf war in January 1991, Patriot Missiles were used successfuly to
destroy Iraqi Scuds. The Patriot Missile System is quite similar to the
Star Wars
programme, and works more or less on the same principle. The success of the
Palriot Missile System made the Bush adminidtration go ahead with the Star Wars
Project, irrespective of the enormous cost involved

The Star Wars Project has received criticism from several countries, as well as
from several quarters
in the U.S., as the collosal expenditure involved
could hardly
ustify the need for such a defence system to-day, when there is poverty and
starvation in several "third world countries" and human considerations stand primary
above all.
. THE EUROPEAN EcONOMIC COMMUNITY
With the division of the world and Europe into trade blocs after 1945, confederate
superstructures were created on both sides of the dividing line between Wesiern and
Eastern Europe, new rules of European law emerged, and organisations such as the
Council of Europe, the European Coal and Steel Community, the European Common
Market, the European Economic Community, etc. were established. The countries of
the "Eastern Block" separated from the rest of Europe, and came to be known as the
Warsaw Pact countries.
There was intensive network of legal relations between the countries of Western
Europe. In their relations with one another, the European territorial states had developed
common customs and usages, and several multilateral and bilateral treaties existed
between them. This led to the formation of a European Community having severa
common factors.
The European Community
ne European communities are the European Coal and Steel Community (ECSC),
the European Atomic Energy Community (EURATOM) and the European Economic
Community (EEC). The EEC was founded by the Treaty of Rome in 1957. Since the
establishment of the EEC, there has been a continuous process of assimilating the
tnree communities, though they remain distinct as to the division of powers among
their organs.
Since the Treaty of Rome in 1957 and the Merger Treaty in 1967, the three
munities share a common commission, Council of Ministers, Court of Justice and
rament. Out of the three communities of Western Europe, the EEC is the most
nteresting and also the world's only truly supra-national entity.
The Euro-the New Common Currency

he most important development in the European Economic Community is the

Sment of a common currency called the Euro since Januarx 2002. Several
ountires in Europe have now adopted the EURO as their official cumency
272 PUBLIC INTERNATIONAL LAW
Objectives of the EEC
The Treaty of Rome aims to establish a closer union among the European
peoples, which is also expressed in its Preamble. Article 2 of the Treaty deals with
promotion of harmonious economic development, stability, expansion, higher standard
of living and closer relations among the members.
Article 3 of the Treaty provides for the following:
(1) elimination of customs duties between members;
(2) establishment of a common external tariff for the community vis-a-vis the rest
of the world;
(3) freedom of movement within member states for persons, services and capital;
(4) common agricultural and transport policies;
5) ensuring that competition in the common market is not distorted;
(6) co-ordinating the economic policies of the members;
(7) approximating the laws of the member states as required for the proper
functioning of the common market;
(8) creating a European Social Fund for improvement of employment opportunities;
(9) creating European investment opportunities for economic expansion of the
community; and
(10) increasing trade and promoting development of the EEC by agreements with
countries overseas and colonies.
Structure of the EEC
Article 4 of the Treaty provides for an EEC Assembly, Council, Commissi
Court of Justice.
(1) The Assembly- This is commonly known as the European Parliament. It is
composed of members elected directly by the people of the member countries
according to the agreed quotas for each state. Within the EEC system, the most
important decisions are taken by the Council and the Commission, and not by the
Parliament. However, in recent years, the elected Parliament has exercised its powers
by witholding its approval to the community's budget, hereby pursuading the Council
and the Commi-ssion to adopt certain policies. The Parliament may also vote to
censure the Commission, and thereby force the entire body to resign.
(2) The Council.-This is the constitutional seat of power within the EEC. The
Council the legislative and executive body represented by one member appointed by
is
each EEC country. The member states represented in the Council determine the commu-
nitie's basic policies and programmes. The highest political authority vests in the Council.
(3) The Commission.- This is the EEC's executive body. It also exercises consi-
derable legislative power, as delegated to it by the Council. Legislation may be by
regula-tions directly binding all member states, or by directives binding member
governments to implement the purpose stated within their territory. In particular cases,
the EEC authorities also issue decisions which bind only the States or persons to
om they are addressed. Recommendations which are sometimes issued are, however,
of a non-binding nature.
 APPENDIX 273
(4) The Court of Justice.- This consists of panel of judges appointed by the

uunanimous agreement of the EEC members. These Judges exercise wide powers, and
act with complete impartiality and independence. The Court may hear
act appeals for
annulment regulations, directives or decisions of the Council or the Commission, appeals
against penalties Imposed on states or individuals by the Council or the Commission,
and petitions to enforce the contractual or non-contractual liabilities of the community
or to force a community institution to take action which it has improperty tailed to take.
The Court has jurisdiction to decide questions arising before the muricipal courts
of the member states on issues pertalning to interpretation of EEC treaties, and the
validity and effect of acts of the EEC's institutions. Any natural or legal pereon may
institute proceedings against a decision of the Council or commission. either addressed
to that person or addressed to another person, but which is of direct and individual
concern to the former.
The Court also hears cases brought by the Commission against member states,
as also cases between member states, and settles disputes between the different
organs of the community itself.
Legal capacity of the EEC
Article 210 of the Treaty of Rome lays down that the "Community shal have a legal
personality" This international legal personality enables it to enter into treaties with
other states. The EEC has exercised this treaty-making power on a number of occasions,
by entering into agreements with neighbouring states like Greece, Turkey. Cyprus,
Malta etc., and on a multilateral basis with third world countries, as for instance, the
Rome Conventions of 1975, 1979 and 1984 to which over sixty states are parties. The
EEC has external trade agreements with Switzerland, India, Pakistan, Israel. Spairn
and Yugoslevia.
Another consequence of the international legal personality is its capacity to
maintain diplomatic relations with other states and to receive ambassadors from
them. The EEC also maintains a delegation at the United Nations. The President of
the EEC Commission has represented the EEC at several economic summit conferences.
The EEC was represented by its own delegation at the United Nations Law of the
Sea Conferences from 1973 to 1982, and it adopted a community policy on the
question of deep seabed mining.
MCO Na 783
I. G.A.T.T.
GATT (General Agreement on Tarrits and Trade) is an Internationai insttuñon
dealing with economic problems and comprising of legal rules, which are used in he
organization of international life. GATT is the most legal of international institutions
Consisting of a legal document The General Agreement - setting forth mutual
ights and duties, and not constituting an organisation at all. At the same time,
Secretariat and contracting parties have followed a pragmatic policy of down-playing
s
the legal character of the institution to the maximum extent and always atempting to
reach "practical" solutions to problems.
COuntries like U.S.A. are interested in the economic efficiency of international
trade. Trade tends to promote international division of labour, to ailocate limited
274 PUBLIC INTERNATIONAL LAW
resources, and thereby to raise the standards of living in all trading countries. From
this perspective, GATT's work is directed towards eliminating barriers to international
trade. Other countries, especially less-developed ones, do not give importance to
economic efficiency. For them, economic development (by which most of them mean
industrialisation) is of primary importance. These countries view international trade
as important only to the extent it can contribute to industrialisation. They, therefore,
promote international trade which contributes to industrialisation.
These conflicting values among nations and governments have resulted in GATT
trying not only to resolve these conflicts, but to aid governments in classifying the
common interest of all members of the international trading community.
GATT can be said to be a product of U.S. planning and a reflection of certain
views that dominated the thinking on trade matters of U.S. diplomats in 1940's.
The origin of GATT Ccan be traced to the work of U.S. State Department Officials
during World War lI. The General Agreement was drafted in Geneva in October,
1947. It was, in its origin, a trade agreement designed to record the results of a tariff
conference that was envisioned as being the first of a number of such conferences
to be conducted under the auspices of the International Trade Organisation. The
General Agreement was originally an agreement on tariffs, although it did not specity
the rules to be followed in tariff conferencees.

TT

TE
 TABLE OF
CASES
Adolf Eichmann Driefontein
Consolidated
47 v. Gold Mines
A. G.s Reference No. 1 of 1982 Janson
Aksionairnoye Obschestvo 117 Dutf Development 187
A. Luther Co. v.
v. Sugor (James) & Kelanton Govt.
Co. 64 52. 69
Albama Award Claim of 1872 E
11
Ambatlelos Arbitration Eastern Greenland
86 Case 90, 188
Ambrose Light Case Eichmann Case
134 47, 134
Anglo-Norwegian Fisheries Case80, El Oro Mining&Rly.
Co.
102 Ltd. 82
Arantzazu Mendi v. Govt. of Spain 66 Emperor Haile
Selassiev
Asylum Case Cable&
147 Wireless Ltd. 64
Anglo-Iranian Oil Co. Case 80, 241 F
B Factor v. Lauben Heimer
145
Baccus SRL v Servicio Finish Ships Arbitration Case
42
National Del Trigo 122 Franconia's Case (R. V. Keyn)
37
Bank of Egypt Re 66
Free Zones of Upper Savoy& Gex 175
Bank of Ethiopia v. National Bank G
of Egypt and Liguori 66 Gdynia Ameryca Livie (Zegugowe
Berthold Jacob's Case 46 Spolka Akcyjna v. Bogulavski) 68
Birma v. State of Rajasthan 41 Geiple v. Smith 212
Barcelona Traction Case 23, 86 Golder v United Kingdom 149
C Govt. of India v Mubarak Ali Ahmed 145
Gulf of Maine Case 111
Charming Betsy
Chung Chi Cheung v R. 38, 40, 126
Chorzow Factory Case 23, 88 Haya v. De La Torre 248
Civil Air Tpt Incorporated . High Commissioner For India v. Ghosh 123
Central Air Tpt Corp. 68
Cristina 127 Sauvel 122
Intpro Properties (UK) Ltd. k
Cutting Case 85, 120 249
I'm Alone Case
Corfu Channel Case (Merits) Island of Palmas
Arbitration Case
46, 87, 106, 237 89. 91, 253
145
Castioni Case
Compania Naviera Vascongadov. Prosecution 129
114 Joyce v Director of Public Tribuna
Cristina Administrative
105 Judgment of
Continental Shelf Case Complaints made
of the ILO upon 249
D against UNESCO Govt. of
29 & Co. Inc. v.
Danzig Co.s Case Juan Ysmale Indonesia 121
Continental Republic of
Daimler Co. Ltd. v. 190
Co. (UK) Ltd.
Tyre & Rubber 275
276 PUBLIC INTERNATIONAL LAW
K R. v. Keyn 37
Kahan v. Pakistan Federation 123 Reparation for Injuries
Krajina v. Toss Agencies 122
Kiel
Suffered in the Service of UN 217, 255
Case 112
Kim Case Rights of Nationals of USA in Morocco 52
211
Right of Passage over Indian Territory 113
L
Russian Socialist Federated Soviet
Lather v. Sagor 251 Republic v. Cibrario (New York) 67
Lawless v. Govt. of Ireland 29
Libyan Arab Jamahiriya v. Malta Robert E. Brown Claim 77
111
Lotus Case 114, 118, 250 S
Liandovery Castle 250 S. S. Wimbledon 164
Lusitania Death Claims 88 Savarkars' Case 46
M Schooner Exchange v. M'Faddon 126, 256
Maganbhai v. Union 41 Shri Krishna Sharma v. State of
Maria Case 210 West Bengal 41
Mavrommatis Palestine Concessions Stock v. Public Trustee 140, 258
Case (Juris) 87 South West Africa Case
Meunier 256
145 State of Madras v. C. G. Menon 41
Mighell v. Sultan of Johore 122, 252 Suez Canal 111
N
Namibia Case 72
Nuremburg Case Temple of Preah Vihear (Merits) 23, 98
199
North American Dredging Co. 82, Torrey Canyon Case 108
253
North Atlantic Fisheries Case 113 Triquet v. Bath 37
North Sea Continental Shelf Case 105 Trailsmelter Arbitration Case 50
Nottebohm Case (lInd Phase) 88 U
Nuclear Tests Case 165 United Kingdom& Federal German
Republic v. lceland 43
Panama Canal 112
Paquete Habana W
6, 254 Sniit
Parlement Belge Western Sahara Case
Passage over Indian Territory
254
78 West Rand Central Gold
OB89
Piracy Jure Gentium 25, 133 Mining Co. Ltd. v. R. 37
Wildemhus Case 117
Queen v. Keyn Wright v. Contrell 127
R Z
R. v. Govemor of Brixton Prison 145 Zamora Case 39
1. The term International
Law was first coined by
..
(b) Jeremy Bentham
(a) Hugo Grotius
(c) Hagel (d) None of these [Ans.: (b;Relerto Page No. 1]

2. The International
Law was earlier known as..
(a) Transactional Law (b) Interstate Law

(c) Law of Nation (d) Transitional Law Ans.: (c); Refer to Page No. 2]
Morality, is defined by
3. International Law is not True Law, is only Positive
it

(a) J.L. Brierly (b) Gray

(c) Austin (d) Starke Ans.: (c); Referto Page Na. 4]
4. The jurisdiction of the international court of justice ..
(a) is binding on all the members of the UNO
(b) is not binding on all the members of the UN0
(c) is binding only upon the members of the SECURITY COUNCIL
(d) none of the above. [Ans.:(b); Refer to Page No. 4]

5. Much of international law is derived through analogy from

..
(a) Islamic law (b) Christian Law
(c) Roman law (d) None of these [ Ans.: (c); Refer to Page No. 8]
6. The book "Jure Belli ac paceis" is written by
.
(a) Jhon Austin (b) Jeremy Benthem
(c) Hugo Grotious (d) Belli Ans.: (c): Refer to Page No. 10]
7. The Law ofWar and Peace was written by.
(a) Hegel (b) Kelsen
(c) Grotius (d) None of these Ans.: (c; Referto Page No. 1014
8. Who is called the father of International Law?
(a) Hago Grotius (6) Oppenheim
(c) Suerez (d) None of these Ans.: (a); Referto Page No. 14]
277
278 PUBLIC INTERNATIONAL LAW
9. Which of the following is nota source of international law?
(a) treaties and conventions (b) custom
(c) judicial decisions and teachings (d) none of these
Ans.: (d); Refer to Page No. 19
10. Which one of the following is not a source of International Law?
(a) Constitution of Sovereign States
(b) Treaties
(c) International Conventions
(d) International Customs and Practices [Ans.: (a); Refer to Page No. 19]
11.Which one of the following is relatively the most important source of International
Law?
(a) Treaties (b) Judicial Decisions
(c) Custom (d) The General Principles of Law
Ans. (a); Referto Page No. 20]
[

12. Who amongst the following said that, "Usage represents the Initial Stage of Custom
as a source of International Laws and Custom begins where Usage ends":
(a) Oppenheim (b) Brierly
(c) Starke (d) Hall [Ans.: (c); Refer to Page No. 21]
13. Customary Rules of International Law are developed from the following sources:
(a) Diplomatic Relation between States
(b) Practice of International Organs
(c) Treaties between States
(d) All the above [Ans.: (d); Refer to Page No.22]
14. Subject of International Law are
(a) States (b) Individuals
(c) Both (a) and (b) (d) None of these (c); Refer to Page No. 28 ]
Ans.:
15. Genocide Convention was adopted by the UN General Assembly in ..
(a) 1945 (b) 1950
(c) 1960 (d) 1948 [Ans.: (d); Referto Page No. 28 ]
16. Confederation means..
(a) good diplomatic relation between some states.
(b) union between some states.
(c) relation between the provinces of a federal state.
(d) none of the above. [Ans.: (b); Refer to Page No. 521
 MULTIPLE CHOICE QUESTIONS 279

"Vassal State" is the

one which is ..
17. A
on the sea shore
(a) situated
independent state
(b) an
suzerainty of another state
(C) under the
[Ans.: (c); Refer to Page No. 52]
above
(d) none of the

18. De facto
recognition is .
recognition
(a) legal
in principle
(b) recognition
conditional recognition
(c) temporary and
above [Ans.: (c;Referto Page No. 65]
(d) none of the
of new States is a matter of...
19. Recognition
(b) Constitutional law
(a) International law 72]
[Ans.: (c); Refer to Page No.
(c) Policy of the State (d) None of these
to that Extent the
of Nations is Primarily a Law Between States are
20. Since the Law
Nations is said by
.
only subjects of the Law of
(a) Austin (b) Oppenheim

Salmond (d) Kelson [Ans.: (b): Refer to Page No. 75]

(c)

21. Calvo clause and Drago doctrine

are the result of ..
(b) Writings of Jurists
(a) The Decisions of IC
(c) State Judicial Decisions (d) None of these
[Ans.: (b); Referto Page No. 83]

22. Denial of Justice' means.

nationals.
(a) A state can intervene on behalf of its
nationals.
(6) A state can't intervene on behalf of its
diplomatic protection of his own state.
()An alien agrees not to seek the
(d) None of the above. Ans.: (a); Refer to Page No. 87]

23. A landlocked state is..

(a) Surrounded by water from all sides.
from all sides.
(6) Surrounded by enemy states
(C) Surrounded by land from all sides.

(d) None of the above.

[Ans.: (c); Referto Page No. 100]

24.Territorial Waters are

of a state.
(a) Water outside the teritorial limits
 PUBLIC INTERNATIONAL LAW
(b) Waters dividing teritory of Two or more state
(c) Waters Adjacent to the contiguous Zone.
(d) None of the above. [Ans.: (c); Refer to Page No. 100]
25."Maritime Belt" means.
(a) that portion of land which belongs to no state.
(b) that portion of land on the South Pole which can be used by any state.
(c) that portion of sea which is adjacent to the territory of a coastal state.
(d) none of the above. [Ans.: (c); Refer to Page No. 103]
26. "Littoral State" means
(a) situated on the sea coast
(b) an independent state
(c) under the suzerainty of another state
(d) none of these [Ans. (a); Referto Page No. 103]
27. Bynkershoek principle is related to ..
(a) Measurement of maritime belt (b) Contiguous zone
(c) Extradition of criminals (d) None of these
[Ans. : (a); Refer to Page No. 1031
28. Foreign warships have....
(a) The right of free passage in the territorial waters.
(b) The right of innocent passage in the territorial waters
(c) To stay in the territorial waters
(d) None of the above
[Ans.: (b); Refer to Page No. 106]
29."Contiguous Zone" means.
(a) that portion of land which belongs to no state.
(b) that portion of land on the South Pole which
can be used by any state.
(c) that portion of sea which is adjacent to
territorial waters.
(d) none of these.
Ans.: (c); Refer to Page No. 106]
30. Contiguous Zone is limited to a maximum of ..
(a) 25 miles (24 nautical mile ) (b) 50 miles
(c) 12 miles (d) None of these
[Ans.: (c); Referto Page No. 106]
31. "Continental Shelf means.
(a) that portion of land which belongs to no state.
 MULTIPLE CHOICE QUESTIONS 281
on the South Pole which can be used by any state.
(b) that portion of land
(c) submerged bed of
sea contiguOus to a continental land mass where the sea is
shallow.
(d) none of the above Ans.: (c) Referto Page No. 1061
right to exploit in the Continental Shelf.
32. A state has the
(b) non-living resources
(a) living resources
(c) both (a) and (b) (d) none of these
n Ans. : (c); Refer to Page No. 107]

33. Convention on the

Law of the Sea was signed at Jamaica in
.
(a) 1948 (b) 1975

(c) 1982 (d) none of these [Ans. : (c) Refer to Page No. 111

34. The right of innocent passage

means..
(a) right ofa foreign merchant ship to pass un-hindered through the territorial sea of
the cost.
(b) Not to publicize dangers to navigation in the sea.
(c) To over look regulations of marri-time traffic.
(d) Non of the above. [Ans.: (a); Referto Page No. 119]

35. Teritorial sea of a State is under ..

(a) its total control
(b) its control, but subject to certain intermational obligations
(o) its control, only for exploration of mineral resources
(d) none of the above [Ans.: (b; Refer to Page Na. 120]
36. According to the "fioating island theory, a "floating island" is.
(a) an island within three nautical miles from the coast of a country.
(6) an island on the high seas, which is not the terntory of any particular state.
(c) a ship bearing the national fag of a state.
(d) none of the above. [Ans.: (c; Refer to Page No. 120]

37.A diplomatic agent isimmunefrom localjurisdiction

(a) in all cases
(b) in criminal cases
(c) in cases involving personal property
(d) none of the above [Ans.: (a): Refer to Page Na. 127]
282 PUBLIC INTERNATIONAL LAWN
38. Foreign ships sailing and anchoring in the coastal waters of another state are.
(a) Subject to the law of Flag State.
(b) Subject to the law of Coastal State.
(c) Subject to the law of both the States.
(d) None of the above. Ans.: (c); Refer to Page No. 130 and 135]
39. The doctrine of open sea was elaborated by ..
(a) Blunt schli (b) Pufendorf
(c) Grotius (d) Non of these Ans.: (c); Refer to Page No. 1341

40. Select the correct one:

(a) only coastal states have the right to sail ships under their flags on the high seas.
(b) every state has the right to sail ships under its flag on the high seas.
(c) only five big powers have the right to sail ships under their flags on the high
seas.
(d) no state has the right to sail ships under their flags on the high seas.
[Ans.: (b); Referto Page No. 134]
41. Piracy is an offense within the jurisdiction of the...
(a) Flag State (b) Offenders State
(c) All the States

.
(d) None of these Ans.: (c); Refer to Page No. 137]
42. Hague convention of 1970 dealt in properly with the crimes relating to
(a) refugees (6) prisoners of war
(c) hijacking (d) none of these [Ans.: (c); Refer to Page No. 139]
43. The Montreal Convention forthe safety of Civil Aviation was signed in.
(a) 1975 (b) 1974 (c) 1971(d) None of these
[Ans.: (c); Referto Page No. 140 1

44. Principles Jus Soli means

(a) Grant of nationality on the basis of place birth.
(b) Grant of nationality on the basis of blood relationship.
(c) Grant of nationality through naturalization.
(d) None of the above. [Ans.: (a); Referto Page No. 1421
45. The Universal Declaration of Human Rights was adopted in .
(a) 1920 (b) 1945
(c) 1948 (d) none of these [Ans.: (c); Refer to Page No. 145]
 MULTIPLE
CHOICE QUESTIONS
46. The group of European countries created
social unity is called the
(a) European Market
... to promote
peace, security, 283
economic and
(6) European Union
(European Coalition (d) None of these
Ans.:: (by
[Ans. (b), Refer
Refer to
to Page No. 146
47. Extradition means, 1461
(a) Handing over a diplomat to other
state.
(b) Handing over a spy to other state.
(c) Handing over a criminal to other state.
(d) None of the above
Ans.: (c) Referto Page No. 143]
48. Extradition is normally granted ..
(a) in all cases (b) in criminal cases only
(c) in civil cases only (d) none of these
Ans.:(b); RefertoPage No. 143]
49. Principal of "double criminality" means that ..
(a) the person who is being extradited must be tried in both the states.
(b) the person who is being extradited must be tried in both the states
but may be
punished in one.
(c) that the offence for which a person is extradited must be an offence in both the
states.
(d) none of these. [Ans.: (c); Refer to Page Na. 1511
50. Which of the following is not an example of Extra-Territorial Asylum?
(a) asylum granted in a ship in high seas.
(b) asylum granted in the premises of an intemational insttution.
(c)asylum granted in an embassy within the country.
(d) none of the above. Ans.:(0 Referto Page No. 152]
51. When was the Charter of Human Rights adopted?
(a) 1945 (b) 1948
No. 154]
(d) none of these [Ans. : (b); Referto Page
(c) 1951
related to
..
52. Vienna Conference of 1961 is
immunities
(a) Diplomatic inter course and states
(6) Prisoners-of-war () Recognition of [Ans.:(a); Refer to Page No. 165]
(d) None of the above
means..
53. Persona non grata Diplomat
(b) Inefficient
(a) Ungrateful Diplomat
284 PUBLIC INTERNATIONAL LAWN
(c) Unacceptable or unwelcome Diplomat
(d) None of the above
TB
Ans. (c); Refer to Page No. 1661
54. Persona Non Grata means ..
(a) Impracticable article of international law.
(b) A fugitive criminal. (c) A person refused for asylum.
(d) None of the above [Ans. (d); Referto Page No. 1661
55. Diplomatic envoys in the receiving state are given immunity from ...
(a) Civil jurisdiction
(b) Criminal jurisdiction
(c) Both criminal and civil jurisdiction
(d) None of these
Ans.: (c); Referto Page No. 166]
56. Vienna Convention on Law of Treaties was signed in ...
(a) 1961 (b) 1945
(c) 1927 (d) 1969
Ans.: (d); Refer to Page No. 169]
57.The principle of rebus sic stantibus means.
(a) a state cannot use force.
(b) there is no crime without a law.
(c) fundamental change of circumstances.
(d) none of the above.
[Ans.: (c); Refer to Page No. 183]
58. Pacta Sunt Servanda means..
(a) Treaties between states are to be respected.
(b) An unwanted person. 1
(c) International Law must be honoured.
(d) None of the above.
[Ans.: (a); Referto Page No. 1851
59. Eruption of war terminates ..
(a) All treaties (b) No treaty
(c) Only political treaties (d) None of these
[Ans.: (c); Refer to Page No. 186]
60. Permanent Court of International Justice was established
under...
(a) League of Nations (b) UNO
(c) European Union (d) None of these
[Ans.: (a); Refer to Page No. 191]
 MULTIPLE CHOICE QUESTIONS 285

Kellogg Briand Pact or Paris Peace

Treaty was signed in n.
.

1. (b) 1928
(a) 1945
(d) none of these [Ans.: (b); Refer to Page No. 197]
(c) 1919

62. Truce
mean..
(a) A temporary
arrangement berween the beligerent parties for cessation of
hostilities.
(b) Any peace treaty
to end a war.

(c) No War Pact

[Ans.: (a); Referto Page No. 211]
(d) None of these

63. The Alabama Claims

Arbitration case was decided in
.
(a)1872 (b) 1854

(c) 1890 (d) None of these [Ans.: (a); Refer to Page No. 212]

64. What is CONTRABAND?

(a) all narcotics
(b) articles banned by a government
(c) all smuggled goods
(d) Goods which may assist an enemy in the conduct of war.
[Ans.: (d); Refer to Page No. 217]

65. The term Men of War signifies ..

(a) Military personal (b) A warship
(c) An aircraft carrier (d) None of these
[Ans.: (b); Refer to Page No. 220]
66. UN Charter begins by proclaiming
(a) We the People of United Nations
(b) We the States of UN
(c) We Sovereign States
(d) None of these Ans.: (a); Refer to Page No. 227]
67. The United Nations is governed by all except which of the following?
(a) the general assembly (b) the security council
(c) the secretariat (d) none of these

[Ans.: (d); Refer to Page No. 231

68. The General Assembly is .

a) The Principle Organ of UNO
 PUBLIC INTERNATIONAL LAW
(b) An ordinary Organ of UNO
(c) A check on the Security Council
(d) None of these [Ans.: (a); Referto Page No. 231]
69. The Security Council is ..
(a) Specialized agency of the U.N.
(b) Principle organ of the U.N.
(c) N.G.O. for setting disputes between various states
(d) None of the above Ans.: (b); Referto Page No. 231
70." Economic and Social Council".
(a) was an organ of the League of Nations.
(6) is an organ of the WTO.
(c) is an organ of UNO.
(d) none of these [Ans.: (c); Refer to Page No. 2311
71. Non-Permanent members of the Security Council are elected for a period of ...
(a) 7 years (b) 3 years (c) 2 years (d) None of these
Ans.: (c); Refer to Page No. 232]
72. In procedural matters, the decisions of the Security Council are made by the
affirmative votes of any ..
(a) 5 members (b) 9 members
(c) 15 members (d) 11 members [Ans.: (b); Referto Page No. 233]
73. Judges of the lCJ are..
(a) Elected by the Security Council.
(b) Elected by the General Assembly and the Security Council.
(c) Appointed by the Secretary General in consultation with the five permanent
members of the Security Council.
(d) None of the above.

.
1
Ans.: (b); Refer to Page No. 237
74. Number of Judges of International Court of Justice is
(a) Nine (b) Twelve
(c) Fifteen (d) None of these [Ans.: (c); Referto Page No. 243]
.
75. Headquarters of lInternational Court of Justice is in
(a) Hague (b) Geneva
(c) New York (d) None of these TAns.:(a); Refer to Page No. 243]
 MULTIPLE
CHOICE QUESTIONS
76. The term of judges of International
Court of Justice 287
(a) Three years (b) Five years is .
(c) Six years (d) Nine years
Ans.: (d Referto Page
77. Statutes of International Courts No.2441
of Justice were
(a) London Declaration in 1941 drawn up by.

(b) Moscow and Tehran Conference

in 1943
(c) San Francisco Conference in
1945
(d) None of the above
[Ans.: (c); Referto
Page No. 2451
78. GATT is a multilateral treaty that
..
(a) restricts trade among non-member countries.
(b) imposes multiple trade barriers among its
member nations.
(c) establishes trade agreements and limited tariífs
and trade restricions.
(d) none of the above.
[Ans.: (c); Referto Page No. 273]